6 Pa. Super. 405 | Pa. Super. Ct. | 1898
Opinion by
The defendant was convicted and sentenced on the charge of soliciting one Robert Williams to burn a store building. The material parts of the indictment are as follows : “ That R. Bruce Hutchinson .... did unlawfully, maliciously and wickedly solicit and incite Robert Williams to unlawfully, wilfully and maliciously burn, attempt to set fire to with intent to burn a certain new building .... owned by the firm of Pheasant & Wagner, and used, on the first floor for a storeroom and post-office, on the second floor by the Young Men’s Christian Association and the Juniata Borough Council, and on the third floor by the Independent Order of Odd Fellows and the Patriotic Sons of America; and did offer the sum of 125.00 to the said Robert Williams to pay him for setting fire .... with intent to burn the said building.”
It is contended, on the part of the defense, that solicitation to commit a misdemeanor is not indictable, and that, as the indictment charges only such solicitation, it sets forth no criminal offense.
There seems no question that solicitation to commit a felony is a misdemeanor: Rex v. Higgins, 2 East, 5; Rex v. Hickman, 1 Moody, 34; Reg. v. Quail, 4 F. & F. 1076; State v. Avery, 7 Conn. 266; People v. Bush, 4 Hill, 133; Com. v. M’Gill et al., Add. 21; State v. Bowers, 15 L. R. A. 199. This however cannot be affirmed of the broad proposition that solici
The adjudications by the highest court of our own state, on the subject of solicitation to commit crime, touch it only at two points. They decide that it is a misdemeanor to solicit the commission of murder: Stabler v. Com., 95 Pa. 318 ; Com. v. Randolph, 146 Pa. 83; and that solicitation to commit fornication or adultery is not indictable: Smith v. Com., 54 Pa. 209. The latter case does not, however, go to the length of declaring tbat solicitation to commit a misdemeanor is not a misdemeanor. No general rule on the subject was there laid down. The decision was based on the difficulty of defining the particular offense charged in the case; of determining “ what expressions of the face or double entendres of the tongue, what freedom of manners, are to be adjudged solicitation;” and on the principle that “ a rule of law which should make mere solicitation to fornication or adultery indictable would be an impracticable rule, one that in the present usages and manners of society would
In the broad field lying between the extremes thus adjudicated, our guide must be found in the principles that underlie our criminal code. To reach just conclusions, we must pursue the method thus laid down by Mr. Justice Paxson in Com. v. McHale, 97 Pa. 397, and applied in that case: “We must look beyond the cases and examine the principles upon which common law offenses rest. It is not so much a question whether such offenses have been punished as whether they might have been. ... We are of opinion that all such crimes as especially affect public society are indictable at common law. The test is not whether precedents can be found in the books, but whether they injuriously affect the public police and economy.”
The distinction, sometimes attempted, between solicitation to commit a felony and to commit a misdemeanor, is based on an artificial and not an intrinsic difference. It has received comparatively slight judicial recognition. In Reg. v. Ransford, 13 Cox C. C. 9, it was declared to be without foundation. Indeed, the statutory classification of crime, as felony or misdemeanor, is governed by no fixed or definite principle, but is purely arbitrary. Legislative whim or caprice may alone determine in which category an offense, not a felony at common law, shall be placed. There is no reason, arising from the nature of the offenses, why the burning of another’s house shall be classed as a felony, and the burning of one’s own house or other building, with intent to defraud insurers, as a misdemeanor; why the larceny of money shall be pronounced a felony, and its embezzlement only a misdemeanor; why it shall be deemed a felony to make counterfeit coin, and but a misdemeanor to utter it, or a felony to attempt to utter a counterfeit bank note, and only a misdemeanor to utter counterfeit coin; why the possession of ten counterfeit bank notes, with intent to utter them, shall be declared a felony, and the forgery of a deed merely a misdemeanor ; or why the forgery of a bank check shall be made a felony, and the forgepr\f á promissory note but a misdemeanor. With respect^jj^Hepiblic police and economy, and the general interests society, there are misdemeanors more pernicious in
Argument is scarcely needed to demonstrate that the solicitation charged in the present case is of a character to injuriously affect public society and the public police and economy. Except solicitations to murder and riot, nothing is more calculated to disorder and terrorize society than incitements to incendiarism. Such incitement is a direct blow at security of property and even of life. It must therefore be pronounced an indictable offense.
The evidence tending to show that the defendant, at or about the time of his solicitation of Williams, addressed similar solicitations to other persons, was properly admitted. The testimony on this point does not fall within the rule excluding evidence of other offenses than that laid in the indictment. While an independent crime, having no connection with that charged, cannot be shown, evidence may be given of one so connected
Nothing in the assignments of error requires further discussion.
The judgment of the court below is affirmed, and it is now ordered that R. Bruce Hutchinson, the appellant, be remanded to the custody of the keeper of the county jail of Blair county,, there to be confined according to law for the residue of the term for which he was sentenced and which had not expired at the date of his admission to bail pending this appeal, and that the record be remitted that the sentence and this order be carried into effect.