State v. Otto

• Citation: 102 Idaho 250,629 P.2d 646
• Decision Date: 09 April 1981
• Docket Number: No. 12714,12714
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Ralph OTTO, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 646

629 P.2d 646

102 Idaho 250

STATE of Idaho, Plaintiff-Respondent, v. Ralph OTTO, Defendant-Appellant.

No. 12714.

Supreme Court of Idaho.

April 9, 1981.

Rehearing Denied June 23, 1981.

James W. Givens, Lewiston, for defendant-appellant.

David H. Leroy, Atty. Gen., Roy L. Eiguren, Deputy Atty. Gen., Boise, Gordon W. Petrie, Sp. Deputy Atty. Gen., Lewiston, for plaintiff-respondent.

McFADDEN, Justice.

The appellant appeals his conviction of attempted first degree murder based on his hiring of an undercover police officer to kill Captain Ailor of the Lewiston Police Department. Appellant had been under investigation by Captain Ailor concerning the disappearance of the appellant's wife in August, 1976.

On October 24, 1976, appellant was in the Long Branch Saloon owned by Stan Kuykendall. Mr. Kuykendall testified that during a conversation appellant expressed a desire to find a "hit-man" to kill Captain Ailor because Ailor had been harassing him over Mrs. Otto's disappearance. Mr. Kuykendall reported this to the Lewiston Police Department. Following this report an officer telephoned appellant and said he was a "hit-man." This officer later testified that appellant stated he was willing to spend $500 to have the killing done, but after dickering a price of $1,000 was agreed upon.

The Lewiston police called in members of the Idaho State Police to assist them in investigating the matter. It was decided that Officer Watts of the Idaho State Police would wear a "bug" and attempt to record his conversations with appellant. On the afternoon of October 26, 1976, Officer Watts, wearing the transmitter, met with appellant at the Long Branch as prearranged earlier in the day. During this conversation, Watts agreed to kill Captain Ailor for $250 "up front" if he were to receive an additional $750 after the killing. It was agreed that appellant would place the $250 in a cup in Watts pickup, which appellant was seen to do later in the day. Appellant was arrested on October 27 and charged with attempted murder in the first degree, I.C. §§ 18-4001, 4003 and 306. ¹ The essential question before this court is whether the appellant's conduct amounted to more than solicitation of another to murder and reached the extent or degree of an attempt under accepted principles of criminal law. We hold it did not and thus the conviction must be reversed.

The concern of the criminal law is to determine at which points along a continuum of activity criminal liability of differing degrees will attach. There can be no doubt that what the appellant did in this case was criminal as well as reprehensible. But the task facing this court is not merely to pass judgment; we must strive to correctly determine under the accepted precepts of the law whether the appellant's conviction can stand. The sincere desire to protect society from acts such as the appellant's here cannot lead us to slight this duty.

It is recognized, of course, that a close relationship exists between solicitation and attempt. In the early stages of criminal activity, the two offenses may run parallel courses. However, there exists an accepted and distinct difference between them in law, the strength of which cannot be muted by a few courts erroneously treating the terms and concepts as interchangeable.

It is supported beyond contradiction that, regardless how heinous, no man can be convicted for having criminal intent alone. An actus reus is essential. And in the sphere of inchoate criminal offenses, it is clear that not every act will, when combined with criminal intent, suffice to establish the basis for an attempt. In the voluminous jurisprudence on attempts in the criminal law, some well supported tenets have been established in regard to the act required.

LaFave and Scott state in their treatise, Criminal Law (1972):

"The crime of attempt ... consists of: (1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation." (Emphasis supplied.) LaFave at 423.

See also, 1 Wharton, Criminal Law and Procedure, § 71, p. 151-2 (1957), cited with approval, Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449, 450 (1963); Clark & Marshall, Crimes, § 4.09, p. 247-250; 22 C.J.S. Criminal Law §§ 73, 75. This element was elaborated upon in Perkins, Criminal Law (2d ed. 1969);

" 'The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.'

. . . .

So far as the common law is concerned there is no criminal attempt unless what was done went beyond the state of preparation. The 'act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation'; although it is not required to be the 'last act' intended for that purpose. " (Citations omitted.) Perkins at 557.

While the distinction between acts of preparation and those of commission (or as is more commonly phrased "perpetration") may be difficult to make in many situations, courts have widely adopted the differentiation. ² See, e. g., Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.1977); Hutchinson v. State, 315 So.2d 546 (Fla.App.1975); Johnson v. Sheriff, Clark County, 91 Nev. 161, 532 P.2d 1037 (1975); Smith v. State, 279 So.2d 652 (Miss.1973); People v. Spencer, 66 Misc.2d 658, 322 N.Y.S.2d 266 (1971); Logan v. State, 263 A.2d 266 (Me.1970); Gervin v. State, supra; People v. Woods, 24 Ill.2d 154, 180 N.E.2d 475 (1962) cert. den. 371 U.S. 819, 83 S.Ct. 34, 9 L.Ed.2d 59 (1962); State v. Bereman, 177 Kan. 141, 276 P.2d 364 (1954); People v. Gallardo, 41 Cal.2d 57, 257 P.2d 29 (1953); State v. Schirmer, 70 Idaho 83, 211 P.2d 762 (1949); ³ State v. Ainsworth, 146 Kan. 665, 72 P.2d 962 (1937).

The general rule in regard to solicitations within the context of the preparatory-perpetratory acts sufficient for an attempt ⁴ is well stated by the Tennessee Supreme Court in Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963):

"The weight of American authority holds, as a general proposition, that mere criminal solicitation of another to commit a crime does not constitute an attempt. 1 Wharton, Criminal Law and Procedure, Sec. 81 at 168 (1957); 1 Burdick, Law of Crime, Sec. 106 at 117 (1946); Perkins, Criminal Law, 505, 508 (1957); Clark and Marshall, Crimes, Sec. 4.05 at 200 (6th ed. 1958); Model Penal Code, Sec. 5.02, comment at 86 (Tent. Draft No. 10, 1960); 14 Am.Jur., Criminal Law, Sec. 66 at 814 (1938) and 22 C.J.S. Criminal Law § 73 at 225 (1961). The one significant exception to this position is 1 Bishop, Criminal Law, Secs. 767, 768 at 543-546 (9th ed. 1923).

The weight of authority is, of course, not determinative, but the reasons for that position are compelling." 371 S.W.2d at 450-1. The "weight of authority," supra, is not composed solely of treatise authors, though clearly they have done the most exhaustive work on the subject. The majority of jurisdictions considering the issue have also held that solicitation is not an attempt. See, e. g., Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.1977); Johnson v. Sheriff, Clark County, 91 Nev. 161, 532 P.2d 1037 (1975); Hutchinson v. State, 315 So.2d 546 (Fla.App.1975); People v. Adami, 36 Cal.App.3d 452, 111 Cal.Rptr. 544 (1973); Smith v. State, 279 So.2d 652 (Miss.1973); People v. Spencer, 66 Misc.2d 658, 322 N.Y.S.2d 266 (1971); State v. Miller, 252 A.2d 321 (Me.1969); Gervin v. State, supra; State v. Bereman, 177 Kan. 141, 276 P.2d 364 (1954); State v. Lowrie, 54 N.W.2d 265 (Minn.1952); State v. Lourie, 12 S.W.2d 43 (Mo.1928); State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (1928); State v. Donovan, 90 A. 220 (Del.1914); Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024 (1889). A few courts, however, have held that solicitation can be sufficient predicate for an attempt to commit the crime solicited. Braham v. State, 571 P.2d 631 (Alaska 1977) cert. den. 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978); State v. Gay, 4 Wash.App. 834, 486 P.2d 341 (1971); State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954). Since the state relies primarily on the minority view expressed in these last cited cases to support appellant's conviction, a brief discussion of this line of authority is called for.

These decisions rely heavily upon the proposition that when the intent that a crime be committed is clearly shown, "slight acts" on the part of the solicitor will make him liable for an attempt to commit that target crime. This theory in turn rests primarily upon the case of Stokes v. State, 92 Miss. 415, 46 So. 627 (1908). The court in Stokes stated:

"When the intent to commit crime, or, to put it more accurately, when the only proof is that it is the declared intention of a person to commit a crime merely, with no act done in furtherance of the intent, however clearly may be proved this intention, it does not amount to an attempt, and it cannot be punished as such. But, whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt, and this court will not destroy the practical and commonsense administration of the law with subleties (sic) as to what constitutes preparation and what an act done toward the commission of a crime. Too many subtle distinctions have been drawn along these lines for practical purposes. Too many loopholes have been made whereby parties are enabled to escape punishment for that which is known to be criminal in its worse (sic) sense." 46 So. at 629.

It appears, however, that the language in Stokes as to the sufficiency of slight acts in attempt prosecutions is gratuitous. In Stokes, both solicitor and solicitee planned the murder, proceeded to the designated spot from which the attack was to be made, and were apprehended as the solicitor was handing...