129. Legal Impossibility to Commit Intended Crime.

By the weight of authority, if, as a matter of law, the completed act accomplished as intended would not be a crime, the attempt to commit it is not criminal, whatever may be the party's state of mind. For example, it is not a crime at common law to procure an abortion with the consent of the woman, where she is not quick with child; and therefore an attempt to procure an abortion under such circumstances is not indictable, though the party may not know that the child has not quickened. So, by the weight of authority, where it is held that

boy under fourteen years of age cannot commit the crime of rape, he cannot be guilty of an attempt to rape.68 Likewise an attempt to commit subornation of perjury is not shown when it does not appear that any proceeding was pending in which the false testimony was to be used.68a On the same principle it would seem clear that consent of the person against whom a crime is attempted must prevent the other party from being guilty of a criminal attempt to commit the crime, if it would prevent him from being guilty of the intended crime, but this is doubtful.69

Reg. v. James, 1 Car. & K. 530; Tarver v. State, 43 Ala. 354; Robinson v. State, 31 Tex. 170; Smith v. State, 32 Tex. 593.

67 State v. Cooper, 22 N. J. Law, 52, 51 Am. Dec. 248.

681 Whart. Crim. Law (10th Ed.) § 184; Rex v. Eldershaw, 3 Car. & P. 396; Reg. v. Phillips, 8 Car. & P. 736; State v. Sam, 1 Winst. (N. C.) 300; State v. Handy, 4 Har. (Del.) 566; Foster v. Com., 96 Va. 306, 31 S. E. 503, Mikell's Cas. 355, n. Contra, Com. v. Green, 2 Pick. (Mass.) 380, Beale's Cas. 139. And see People v. Randolph, 2 Park. Cr. R. (N. Y.) 213; Williams v. State, 14 Ohio, 222.

68a Nicholson v. State, 97 Ga. 672, 25 S. E. 360.

69 In People v. Gardner, 73 Hun, 66, 25 N. Y. Supp. 1072, Mikell's Cas. 358, the accused had threatened to accuse a woman of a crime unless she would give him money, and she parted with the money, not under the influence of fear, but for the purpose of prosecuting him. It was held that, since he could not, under such circumstances, be guilty of the statutory crime of extortion by putting in fear, he was not guilty of a criminal attempt to commit such crime. This decision

III. SOLICITATION TO COMMIT CRIME.

130. In General. According to the better opinion, it is a misdemeanor to solicit another to commit either a felony or a misdemeanor. This doctrine, however, is not recognized in all jurisdictions to the full extent.

70

131. Solicitation to Commit a Felony.

The decided weight of authority, both in England and in the United States, is in favor of the doctrine that it is a misdemeanor merely to solicit another to commit a crime, if the crime be a felony, though nothing further is done towards carrying out the unlawful purpose. The solicitation, without more, is regarded as a sufficient act to take the case out of the sphere of mere intent. In a leading English case an indictment was sustained for soliciting a servant to steal his master's goods. It was argued that no crime was charged because "a mere intent to commit evil is not indictable, without an act done;" but the

was reversed by the court of appeals in People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 43 Am. St. Rep. 741, and it was held that he was guilty of an attempt, for the same reason that a man who attempts to pick an empty pocket is guilty of an attempt to steal.

Consent after an attempt does not prevent the attempt from being a crime. Thus, a man who attempts to commit rape is none the less guilty because the woman afterwards consents to intercourse, so that rape is not committed. State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519; State v. Hartigan, 32 Vt. 607, 78 Am. Dec. 609, Mikell's Cas. 72; State v. Atherton, 50 Iowa, 189, 32 Am. Rep. 134; People v. Marrs, 125 Mich. 376, 84 N. W. 284.

In Rex v. Edwards, 6 Car. & P. 521, it was held, in effect, that a person who forcibly compelled another to write an order for the payment of money, intending to take the order, was not guilty of an attempt to rob, as the act would not have been robbery if he had accomplished his purpose.

70 Rex v. Higgins, 2 East, 5, Mikell's Cas. 337 (referred to in Beale's Cas. 129); Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128; Com. v. Randolph, 146 Pa. 83, 23 Atl. 388, 28 Am. St. Rep. 782, Beale's Cas. 134; and cases cited in the notes following.

court held that the solicitation was sufficient to render the defendant accountable.71 This case has repeatedly been followed both in England and in this country. Thus, in other cases it has been held an indictable offense to solicit any person to commit larceny or embezzlement,72 or murder,73 or arson, 74 or sodomy,75 or adultery where by statute adultery was made a felony,76 or to utter forged bank bills, made a felony by statute.7 There are some statements against this doctrine, but it is supported by an overwhelming weight of authority.78

77

71 Rex v. Higgins, 2 East, 5, Mikell's Cas. 337.

72 Reg. v. Quail, 4 Fost. & F. 1076; Reg. v. Daniell, 6 Mod. 99. 73 Reg. v. Williams, 1 Car. & K. 589, 1 Den. C. C. 39; Bacon's Case, 1 Sid. 230, 1 Lev. 146, Mikell's Cas. 336; Stabler v. Com., 95 Pa. 318, 40 Am. Rep. 653; Com. v. Randolph, 146 Pa. 83, 23 Atl. 388, 28 Am. St. Rep. 782, Beale's Cas. 134.

74 Com. v. Flagg, 135 Mass. 545. And see People v. Bush, 4 Hill (N. Y.) 133; State v. Bowers, 35 S. C. 262, 14 S. E. 488, 28 Am. St. Rep. 847; Com. v. Hutchinson, 42 W. N. C. (Pa.) 137, 6 Pa. Super. Ct. 405, 19 Pa. Co. Ct. 360, Mikell's Cas. 338.

75 Rex v. Hickman, 1 Mood. C. C. 34; Reg. v. Rowed, 3 Q. B. 180, 6 Jur. 396.

76 State v. Avery, 7 Conn. 266, 18 Am. Dec. 105.

77 See State v. Davis, Tappan (Ohio) 171.

78 Wharton, in discussing the question whether solicitations to commit crimes are independently indictable, says: "They certainly are when they in themselves involve a breach of the public peace, as is the case with challenges to fight and seditious addresses. They are also indictable when their object is interference with public justice, as where a resistance to the execution of a judicial writ is counseled; or perjury is advised; or the escape of a prisoner is encouraged; or the corruption of a public officer or a witness is sought, or invited by the officer himself. They are indictable, also, when they are in themselves offenses against public decency, as is the case with solicitations to commit sodomy; and they are indictable, also, when they constitute accessaryship before the fact. But the better opinion is that, where the solicitation is not in itself a substantive offense, or (and) where there has been no progress made towards the consummation of the independent offense attempted, the question whether the solicitation is, by itself, the subject of penal prosecution, must be answered in the negative." 1 Whart. Crim. Law (10th Ed.) § 179.

*

This statement was approved by the supreme court of Illinois in Cox

132. Solicitation to Commit a Misdemeanor.

Whether solicitation to commit a misdemeanor is indictable is not so clear. Some of the courts have made a distinction in this respect between felonies and misdemeanors, and have held that solicitation to commit a misdemeanor is not indictable at all, though they hold that it is an offense to solicit the commission of a felony.80 There is no more reason, however, for such a distinction in the case of solicitation than there would be for holding an attempt to commit a misdemeanor not to be indictable; and there are many cases in which an indictment for solicitation to commit a misdemeanor has been sustained. Thus, indictments have been sustained for solicitation to commit embracery,81 for soliciting a person who has been summoned as a witness for the state in a criminal prosecution to absent himself,82 and for solicitation to accept a bribe,83 or to pay a bribe.84

v. People, 81 Ill. 191. The indictment in this case, however, was for assault with intent to commit a felony (incest), and not merely for solicitation. Several other cases, sometimes cited as holding that solicitation to commit a felony is not indictable, do not so hold at all, but merely hold that solicitation is not indictable as an attempt, which, as we have seen, is very generally conceded. Ante, § 125, McDade v. People, 29 Mich. 50; State v. Harney, 101 Mo. 470, 14 S. W. 657; State v. Butler, 8 Wash. 194, 35 Pac. 1093.

79 Thus, in Smith v. Com., 54 Pa. 209, 93 Am. Dec. 686, it was held not to be an indictable offense to solicit a woman to commit adultery, since, by the laws of Pennsylvania, adultery was merely a misdemeanor. The court distinguished State v. Avery, 7 Conn. 266, 18 Am. Dec. 105 (supra, note 76), on the ground that, in Connecticut, adultery was a felony.

In Com. v. Willard, 22 Pick. (Mass.) 476, it was held, in effect, that solicitation to sell liquor in violation of law was not an indictable offense.

80 See the cases cited in the notes to the section preceding.

81 State v. Bonds, 2 Nev. 265.

82 State v. Keyes, 8 Vt. 57.

83 Rex v. Vaughan, 4 Burrow, 2494; Rex v. Plympton, 2 Ld. Raym. 1377; U. S. v. Worrall, 2 Dall. (Pa.) 384; post, § 432.

84 Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128; post, § 432.

C. & M. Crimes-13.

133. Solicitation not Indictable as an Attempt.

As was shown in a former section, some of the cases in which solicitation to commit a crime has been held to be an indictable offense proceed on the theory that mere solicitation is sufficiently an act done "a step in the direction of the crime"-to constitute an attempt. But this view is not supported by the weight of authority. Solicitation is not an attempt. It is not an act done with intent to commit a crime, and which would apparently result in the commission of the contemplated crime unless frustrated by extraneous circumstances. If punishable at all, it is punishable as a distinct misdemeanor.85

IV. CRIMINAL CONSPIRACY.

134. In General.—It is a misdemeanor at common law, known as "conspiracy," for two or more persons to conspire or combine, either—

1. To accomplish a criminal or unlawful purpose;

2. Or to accomplish a purpose not in itself criminal or unlawful by criminal or unlawful means.

It is the unlawful combination or agreement that constitutes the offense, and no overt act is necessary.

As to Definition or Description of Offense.—The courts have found it difficult to frame a definition of the crime of conspiracy sufficiently accurate to include all agreements or combinations that are punishable, and at the same time avoid including some that are not punishable. Perhaps it cannot be done. The definition or description, rather-given above has been adopted by some of the most eminent judges, and is sufficiently accurate as a definition. It was said by Chief Justice Shaw in a leading Massachusetts case: "Without attempting to review and reconcile all the cases, we are of opinion that as a general description, though perhaps not a precise and accurate defini

85 See ante, § 125, and cases there cited.