Stokes v. State

• Decision Date: 15 June 1908
• Docket Number: 13,339
• Citation: 92 Miss. 415,46 So. 627
• Court: Mississippi Supreme Court
• Parties: WILLIAM STOKES v. STATE OF MISSISSIPPI

46 So. 627

92 Miss. 415

WILLIAM STOKES v. STATE OF MISSISSIPPI

No. 13,339

Supreme Court of Mississippi

June 15, 1908

FROM the circuit court of Pike county, Mississippi.

HON MOYSE H. WILKINSON, Judge.

Stokes appellant, and another were jointly indicted for an attempt to murder one Wallace Lane. A severance was had, and the appellant tried, convicted, sentenced to the penitentiary for ten years, and appealed to the supreme court.

The opinion of the court states the facts.

Affirmed.

Mixon &amp Cassidy, J. W. Cassedy, and J. B. Holden, for appellant.

It is apparent that this prosecution is based on Code 1906, § 1049, making it a crime to attempt to commit certain offenses. Our statute law effectually removes all questions which might otherwise, under the common law, exist as to whether or not solicitations and conspiracy to commit offenses are attempts; inasmuch as the statute provides that there must be an overt act coupled with the intent. In consideration of this, the question arises whether or not the acts done by the appellant, as testified to by witnesses for the state, amounted to an overt act within the meaning of the statute. We understand the true rule to be that an overt act is one which tends directly to the execution of the crime, an act done after the preparation had so far advanced and under such circumstances that, if there were no interruption, the result would be the commission of the crime intended. See 1 Wharton Crim. Law (10th ed.), § 181. Preparation must go so far that it would result in crime, unless frustrated by extraneous circumstances. The further rule follows, that there must be a probable object within reach upon which the intended crime can be committed. 1 Wharton Crim. Law (10th ed.), § 186. While the questions involved in this case have not been before this court often, yet the rules mentioned have practically been sanctioned by this Court in Cunningham v. State, 49 Miss. 685, this court (p 703 of the opinion) stating in regard to attempts that "there should be such a beginning as, if not interrupted, would end in the completion of the act."

As showing our contention that preparation must go so far that, unless interrupted, there would be commission of the intended crime, we refer to the following authorities:

In State v. Young, 47 L. R. A., 108, the defendant had procured revolvers, chloroform and slippers, and had gone some distance on his way toward a house for the purpose of robbery, when arrested with the articles named in his possession. On appeal, after conviction below, he was discharged, the appellate court holding in effect that the acts committed by him amounted merely to preparation.

In People v. Murray, 14 Cal. 139, the court held that doping and sending for a magistrate, etc., amounted only to arranging or devising the means or measures for committing the statutory offense (under the circumstances alleged in the indictment) of attempting to marry illegally, hence the defendant could not be held guilty of attempt to do so.

In Hicks v. Commonwealth, 6 Va., 223, 19 Am. St. Rep., 891, the defendant, having procured poison and given it to another person with instructions as to how and when it should be administered, for the purpose of killing such person, and being arrested while making the arrangements for the execution of his design, was held not guilty of attempted murder because the acts amounted merely to preparation. See also cases cited in 13 Am. & Eng. Encyc. of Law (1st ed.), 266, 967.

The case at bar presents a good illustration of the soundness of the rule that preparations must have advanced to a point where they directly tend to the commission of the crime. The undisputed evidence is that Lane, the intended victim, did not come by the bridge where the supposed intent was alleged to have been made to kill him. Hence no attempt could have been made on Lane's life. It would have been beyond the pale of possibility for the negro, Robertson, to have even shot at Lane. Hence appellant cannot be held liable. Lott v. State, 88 Miss. 609, 36 So. 11.

It is not contended by the state that appellant himself intended to shoot Lane. Then, can the appellant be guilty of an attempt to murder, when Robertson, the negro whom the state claims was employed by appellant to do the killing, did not intend to shoot? In the case of State v. Douglas, 44 Kas., 618, a detective had induced the defendant, Douglas, to assist him in placing obstructions on a railroad track or the ostensible purpose of wrecking a train. The court held that even though the defendant assisted the detective, intending to wreck the train and believing that the detective so intended, yet the fact that there was no criminal intent on the part of the detective, the principal, made it impossible for Douglas, the accessory, to be guilty. To the same effect is the case of Love v. People, 160 Ill. 501. In People v. Collins, 53 Cal. 185, a third party, after consulting with the defendant, obtained the advice of the sheriff of the county, and acting thereon, entered a house, stole money and divided the same with defendant. Held that the defendant, as accessory, was not guilty, since there was no criminal intent on the part of the principal; and, further, that if the defendant were guilty, then the sheriff, who aided and encouraged the commission of the act, would have also been guilty.

In 12 Cyc., 189, d., the rule, deduced from the above and other authorities cited, is stated as follows: "Where an act is not a crime, because of an absence of a criminal intent in the person doing it, one does not thereby become guilty as a principal in the second degree by being present and aiding and abetting it, although he supposes it to be a crime."

Hence, as the negro, Robertson, did not intend to kill Lane, and the appellant did not himself intend to kill Lane, appellant cannot be held guilty of attempting to do what neither alone intended to do.

We do not think that the cases cited by the learned assistant attorney-general are in point.

George Butler, assistant attorney-general, for appellee.

The indictment complied with the statute, and was not demurred to by appellant. The proof on the trial conformed to the indictment. The jury's verdict was amply Supported by the evidence which had been properly introduced. Hence the only question here for consideration is, whether or not, in connection with the appellant's design and intent, there were sufficient acts to constitute a technical attempt to murder. These acts were practically as follows: a conspiracy between appellant and Mrs. Lane to kill her husband; the soliciting of the negro, Robertson, by appellant, to do the murder; the arranging of details of the prospective homicide to the most minute details, by appellant; the full explanation by him of the same to the negro; the procuring of a gun by appellant, and his loading it, and explaining again to the negro how and when to shoot from the ambush, and finally his delivery of the loaded gun to the negro immediately prior to his arrest by the officers of the law.

It will be seen that appellant had, at the time of his arrest, done each and every act toward the commission of the ultimate crime, under the scheme as outlined, that it was possible for him to do; and while it may be claimed that the crime was not consummated, yet this was through no fault of appellant.

Learned counsel for appellant contend that appellant's acts never passed beyond mere preparation. The law will not uphold such contention. In Crowell v. Fraternal Ass'n, 6 N. D., 201, 66 Am. St. Rep., 601, 40 L. R. A., 437, it is said, "It is impossible to formulate a rule which will constitute an unerring guide in assigning to cases which occupy the debatable ground their respective places on one side or the other of the line which separates preparation from legal attempt. The question must needs from its very nature be always difficult of solution. The wisest course for tribunals to pursue with respect to it is to deal with each case as it arises." There are many authorities which hold contrary to the contention of the appellant in the case at bar. There are two lines of authorities in the United States, the one supported by Mr. Bishop, to the effect that certain acts are sufficient to constitute an attempt to commit a crime, the other line supported by Mr. Wharton and being to the contrary. Mr. Bishop quotes with approval the holding of the court in People v. Bush, 4 Hill, 135, and criticises the opinion of the court in Cox v. People, 82 Ill. 191; while Mr. Wharton approves the holding in the Cox case and criticises the holding in the Bush case.

The rule of the common law as to the criminality of conspiracy, solicitations and attempts, is not affected by our statute-law except as to the punishment and the grade of the offense of the attempt. The statute-law is but declaratory of the common law.

We have here, first, an indictable conspiracy, a substantive crime, yet a species of attempt. 2 Bish. Crim. Law, 191; second, a solicitation, indictable as an attempt. 1 Bish. Crim. Law, 767. Hence there existed two unlawful acts concurring and tending to the final consummation of the ultimate offense.

At the English common law a solicitation to commit either a misdemeanor or a felony was indictable as a misdemeanor, it being a form of attempt. 1 Bish. Crim. Law, 761; Rex v. Higgins, 2 East, 5; Rex v. Turvey, Holt, 364; Reg. v. Gregory, 10 Cox C. C., 459. This doctrine is recognized in many well considered cases in the United States. 1 McClain Crim. Law, p. 186. Some of the different decisions are as follows:

In State v. Avery, 7 Conn. 266, 18 Am. Dec., 105 defendant wrote a letter to Mrs. White soliciting her to commit adultery. It was there held that the...