State v. Taylor

• Decision Date: 02 January 1906
• Citation: 47 Or. 455,84 P. 82
• Parties: STATE v. TAYLOR.
• Court: Oregon Supreme Court

84 P. 82

47 Or. 455

STATE v. TAYLOR.

Supreme Court of Oregon

January 2, 1906

On Rehearing, Jan. 30, 1906

Appeal from Circuit Court, Umatilla County; W.R. Ellis, Judge.

Moses Taylor was convicted of an attempt to commit arson, and he appeals. Affirmed.

J.H. Raley and W.C. Peterson, for appellant.

A.M Crawford, Atty. Gen., and G.W. Phelps, Dist. Atty., for the State.

BEAN C.J.

Section 2159, B. & C. Comp., reads: "If any person attempts to commit any crime, and in such attempt does any act towards the commission of such crime, but fails or is prevented or intercepted in the perpetration thereof, such person, when no other provision is made by law for the punishment of such a attempt, upon conviction thereof shall be punished," etc. Under the provisions of this section the defendant Taylor, was indicted and convicted of an attempt to commit the crime of arson. The proof was that he entertained an enmity against John Bannister, one of his neighbors, because of some testimony Bannister had given in a divorce suit. Apparently for revenge, he desired to burn and destroy Bannister's barn and wheat. He solicited one McGrath to do the burning, who, in turn, asked one Palmer to assist in the commission of the crime. Palmer informed his employer, a friend of Bannister's, of the proposed plan, and was advised to allow the matter to proceed, and that arrangements would be made to apprehend the parties. After some preliminary negotiations Taylor, McGrath, and Palmer met in the back room of a saloon in Athena on July 30, 1904, and Taylor there engaged McGrath and Palmer to burn Bannister's barn and wheat, agreeing to pay them $100 for so doing, and at the same time showed them how to start a slow burning fire with a pair of overalls, saying he had tested it. After the conference at the saloon the parties separated, agreeing to meet that night about 12 o'clock at Taylor's place, from which McGrath and Palmer were to start to Bannister's for the purpose of consummating the crime. Palmer advised Bannister's friends of what was about to take place, and they made arrangements to lie in wait and intercept the parties. At the appointed time Palmer went to Taylor's place and there met Taylor and McGrath who were waiting for him. Taylor had his own horse saddled and ready for McGrath to ride. He produced a pair of overalls, and after again showing McGrath and Palmer how to use them in starting a fire tied them on the saddle of his horse and paid McGrath $100 in money. McGrath and Palmer then started towards Bannister's with the purpose, so Taylor supposed and believed, of setting the fire, with a parting expression from him of "Good luck go with you." Taylor "laid awake two hours to see the fire," but as McGrath and Palmer were going towards Bannister's they noticed fresh tracks in the road, and when they approached within 20 feet of the barn observed two or three buggies in the barnyard, which frightened McGrath, who was afraid to go on with the enterprise for fear they were being watched, and so it was abandoned. McGrath and Palmer were both witnesses for the prosecution. Palmer testified that he never had any intention of committing the crime, and McGrath said that he did not intend to set the fire, but that the arrangement was that it should be started by Palmer. Upon these facts the question for decision is whether the defendant was legally convicted of an attempt to commit the crime of arson.

The question as to what constitutes an attempt to commit a crime is often intricate and difficult to determine, and no general rule has or can be laid down which can be applied as a test in all cases. Each case must be determined upon its own facts, in the light of certain principles which appear to be well settled. An attempt is defined as an "intent to do a particular criminal thing, with an act toward it falling short of the thing intended." 1 Bishop, New Crim.Law, § 728. Or, according to Wharton: "An attempt is an intended apparent unfinished crime." 1 Wharton, Crim.Law (9th Ed.) § 173. Another author says: "An attempt to commit a crime is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime." 3 Am. & Eng.Enc.Law (3d Ed.) 250. An indictable attempt, therefore, consists of two important elements First, an intent to commit the crime; and, second, a direct, ineffectual act done towards its commission. To constitute an attempt, there must be something more than a mere intention to commit the offense, and preparation for its commission is not sufficient. Some overt act must be done toward its commission, but which falls short of the completed crime. It need not be the last proximate act before the consummation of the offense, but it must be some act directed toward the commission of the offense after the preparations are made. It is often difficult to determine the difference between preparation for the commission of a crime and an act towards its commission. There is a class of acts which may be done in pursuance of an intention to commit a crime, but not, in legal sense, a part of it, and do not constitute an indictable attempt; such as the purchase of a gun with the design of committing murder, or the procuring of poison with the same intent. These and like acts are considered in the nature of mere preliminary preparation, and not as acts toward the consummation of the crime. It is upon this principle that most of the cases cited by the defendant rest, although some of them seem to have carried the doctrine to the utmost limit. Patrick v. People, 132 Ill. 529, 24 N.E. 619; McDade v. People, 29 Mich. 50; People v. Youngs, 122 Mich. 292, 81 N.W. 114, 47 L.R.A. 108; State v. Lung, 21 Nev. 209, 28 P. 235, 37 Am.St.Rep. 505; Stabler v. Commonwealth, 95 Pa. 318, 40 Am.Rep. 653; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, 19 Am.St.Rep. 891; State v. Baller, 26 W.Va. 90, 53 Am.Rep. 66.

In the case at bar we have something more than mere intention or preparation, so far as the defendant is concerned. His part in the transaction was fully consummated when he employed McGrath and Palmer to commit the offense, gave them the materials with which to do it, showed them how to start a slow burning fire, paid them a compensation for their services, furnished a horse for one of them to ride, and started them on their way. He had thus done all that he was expected to do, and his felonious design and action was then just as complete as if the crime had been consummated, and the punishment of such an offender is just as essential to the safety of society. The failure to commit the crime was not due to any act of his, but to the insufficiency of the agencies employed for carrying out his criminal design. One may commit a crime by his own hand or that of another employed, aided, or encouraged by him. If he endeavors or attempts to commit it himself, and is interrupted or frustrated, he would clearly be guilty of an indictable attempt, and, if he uses another person to accomplish the same purpose, and the other fails to carry out his design, whether purposely or otherwise, the result is the same. State v. Bowers (S.C.) 14 S.E. 488, 15 L.R.A. 199, 28 Am.St.Rep. 847. The statute under which the defendant was indicted was probably taken from that of the state of New York. It had received a judicial construction in that state long before it was enacted here. In People v. Bush, 4 Hill, 133, decided in 1843, the defendant was indicted for an attempt to commit the crime of arson. The proof was that he requested...