State v. Baller, 26 W. Va. 90

26 W. Va. 90 | W. Va. | 1885

Green, Judge:

The only question involved in this case is : Was the indictment in this case good ? The only defect claimed by the counsel for the plaintiff in error is, that it charges that the defendant below did unlawfully furnish to Ran for the use of Earl $3.00 to unlawfully induce Earl to absent himself from the circuit court of said county at the February term, 1883, as a witness on behalf of the State in the trial of an indictment against the defendant below, whereby she the defendant below attempted to obstruct the administration of justice. It is claimed by the counsel for the plaintiff in error, that the facts alleged in this indictment are insufficient to show, that the defendant below did attempt to obstruct the administration of justice, as the giving by her of money to a third party to be given by him to a witness to prevent his attendance as a witness on the trial of a case does not amount legally to an attempt to obstruct the administration of justice, unless this third party gave or tendered this money to the witness or in some other way attempted to induce this witness to absent himself as a witness in that case; and that the indictment was therefore fatally defective, because there was no allegation that any inducement was presented to the witness to absent himself as a witness on the trial of this case. The question to be decided is : Was such an allegation necessary to complete the offence charged in the indictment, an attempt to obstruct and impede the administration of justice ?

In the case of Cunningham v. The State, 44 Miss. 701 the court say: “The doctrine of attempt to commit a substantive crime is one of the most important and at the same time most intricate titles of the criminal law. There is ■ no title, indeed, less understood by the courts, or more obscure in the text-books than that of attempts. There must be an attempt to commit a crime, and an act towards its consummation. So long as the act rests in bare intention, it is not punishable ; but immediately when an act is done, the law judges not only the act done but of the intent, with which it was done; and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal and punishable.”

An attempt to obstruct or impede the administration fo justice by inducing a witness to absent himself from court is unquestionably a misdemeanor. It was a misdemeanor at common law. (Hawkins’ Pleas of the Crown Book 1 chap. 21 sec. 15 p. 90; Commonwealth v. Reynolds, 14 Gray 89; State v. Keys, 8 Vt. 57; State v. Carpenter, 20 Vt. 9.) And it was declared a misdemeanor by the Code of W. Va. chap. 147 sec. 30 p. 691. This provision in our Code was amended on March 23, 1882, sec. 1, ch. 134; and by this amendment the punishment of either obstructing or impeding the administration of justice in any court or the attempt so to do was fixed at a fine of not less than $25.00 nor more than $200.00 and imprisonment in the county jail not exceeding six months.

As before said, it is obvious, that an indictable attempt to-commit this or any other crime must consist of something-more than a mere intention to commit the crime. The very word used in the above statute, which declares an attempt to obstruct the administration of justice a misdemeanor, implies, that this misdemeanor can be committed only by some act intended to result in the crime. An indictable attempt is therefore such an intentional preparatory act as will apparently result, if not extrinsically hindered, in a crime, which' it was designed to eftect. This is the definition given by ’Wharton in his Commercial Law (eighth edition) chapter eight, section one hundred and seventy-three. ■ The great difficulty is to determine, what must be the nature of these preliminary acts and the nature of their connection with the intended crime, so as to make them an indictable attempt to commit such crime. These preliminary acts, if connected with the intended crime only as a condition as distinguished from a cause, can never according to the better authorities constitute an indictable attempt to commit such crime. While it is often not difficult to distinguish a condition from a cause, yet they frequently approximate so closely, that it becomes exceedingly difficult to distinguish them. By cause is meant that condition which determines the final result. As illustrating the difference between a cause and a condition I will put the case of the death of a child proceeding from suffocation produced by forcing moss into the child’s throat. This would still be considered the cause, as the swelling arose from the forcing of the moss into the child’s throat, though the immediate occasion of the child’s death was the swelling up of the passages of the throat causing suffocation. In this case the swelling of the throat, which occasioned the suffocation, was the condition of the death, while the causé of it was the forcing of the moss into the throat. This illustration is found in Wharton’s Criminal Law (8th Ed.) Book 1, sec. 154, p. 184. In the same section is the following illustration : “ Iron is dug from a mine, is melted in a furnace, is shapen in a factory, is sold as a weapon by a tradesman, is used to inflict a fatal wound by an assassin. Now the mining, the melting, the shaping, the selling are all conditions of the murder, without which it could not in the line, in which it was effected, have taken place; but none of these acts is a cause of the murder, unless the particular act was done in concert with the murderer, to aid him in effecting his purpose.”

Perhaps we can not get a clearer conception of the nature of these preliminary acts and of the character of their connection with the intended crime, which made them an indictable attempt to commit such crime, than by referring to some eases, which have either actually arisen, or which have been stated as illustrations by eminent judges in deciding cases. I do not say, that from these cases any rule can be drawn, which would lead us to certain results in many cases, which might arise ; nor do I say, that these cases are all of them reconcilable in principle. Still they will aid us in making correct conclusions in this case; and they will illustrate the inherent difficulty and the great obscurity, which arises, when we undertake to determine, whether certain acts are or are not indictable attempts to commit a crime. An indictment lies for attempting to pursuade a witness not to appear and give evidence. (Rex v. Lanley, 2 Strange 904; State v. Keyes, 8 Vt. 57; State v. Carpenter, 20 Vt. 9). An indictment lies, where a party sends a letter to another offering to bribe a minister of state, or where one sends a letter denouncing another with the expressed intention of provoking him to send a challenge to fight. In either case the sending of such letter was a step towards the misdemeanor intended to be accomplished, the corrept abuse of a minister of his official position or the sending of a challenge. The sending of such letter is an indictable attempt to cause the commission of such misdemeanor. (King v. Philips, 6 East 464.) It is an indictable offence to solicit a servant to steal his master’s goods, though they were not stolen nor any act done except the soliciting. Such soliciting is an indictable attempt to cause larceny tobe committed. (King v. Higgins, 2 East 6.) If a man intends to commit murder, the walking to the place, where he intends to commit it, would not he a sufficient act to make it an indictable offence. (Irwin. C J. in Rex v. Roberts, 33 Eng. Law & Eq. 539; Dears 553.) So if a man intended to carnally abuse a child and was to take his horse and ride to the place, where the child was, that would be a step towards the commission of this offence, but would not be indictable. (Lord Abinger in Rex v. Meredith, 8 C. & P. 589.) In the two last cases supposed the acts done stood in relation to the crimes intended to be committed as conditions not as causes; and for that reason, I presume, it was held that they were not indictable attempts. So too and for a like reason the buying of-a box of lucifer matches with intent to set fire to a house is not an indictable offence. (Pollock C. B. in Rex v. Taylor, 1 F. & F. 511). An attempt to produce a miscarriage is indictable, though it turn out that the woman was not actually pregnant. (Rex v. Goodall, 2 Cox, C. C. 40.)

In some cases acts ¡preparatory to the commission of a crime are themselves a crime and indictable as such, and not as an attempt to commit the crime. Decisions based upon the doing of such acts, as constitute a substantial crime in themselves, should be distinguished from those decisions which hold certain acts to be crimes, only on the ground that they are attempts to commit crimes. As examples of cases, where the doing of certain preliminary acts, which look to the commission of certain crimes, are regarded per se as indictable, as substantive crimes and not properly as attempts to commit the future crime contemplated, I may refer to the carrying of concealed weapons. 'Whether or not carried with the specific purpose of being used to assail a particular individual this is a substantive crime and should be indicted as in itself a crime and not as an attempt to commit a crime, even though they were carried with the specific intent of assailing a certain person. So the procuring of dies, wherewith to counterfeit, is an indictable offence per se and should be indicted as an independent misdemeanor and not as an attempt to counterfeit. It is on this ground that the conclusion reached in Rex v. Roberts, 33 Eng. Law & Eq. 539 (Dears 553) can be sustained.

It is some times difficult to determine, whether the tacts in a particular case constitute jjer se a substantive crime or only an attempt to commit a crime. I shall not undertake to lay down any rules by which the one may be distinguished from the other. And some of the cases, which have been or may be put as examples in this opinion, may constitute substantive crimes and ought not perhaps for that reason to be regarded as illustrations of attempts to commit crimes. I regard it in this case as sufficient to call attention to the existence of a difference between such substantive offences and attempts to commit crime. This difference- will aid in some instances in reconciling cases with each other, which may at first sight appear to be in conflict.

I will state a few additional cases, which have arisen, and which throw some light on the questions arising in this ease. Thus it has been held, that it is not an indictable offence to have possession of forged bank-bills of the bank of A., no such bank in fact existing, with the intent to pass them as genuine bills. Eor this amounts to nothing but an intent to cheat; which at common law is not indictable. (Commonwealth v. Moyer, 2 Mass. 138.) If an indictment charged that A. “ with force and arms unlawfully and wickedly did attempt to pick the pocket of one B. with intent then and there felo-niously to steal, take and carry away the goods and chattels moneys and property ot the saidB.,” it is fatally defective. (Randolph v. Commonwealth, 6 Searg. & R. 398.) This indictment was held fatally defective, because there can be no attempt to commit a crime without the doing of some act; and it is absolutely necessary for the indictment to state the act done, which is claimed to constitute the attempt, in order to give the accused an opportunity of disproving that he did the specific act alleged, and also to enable the court to determine, whether, what it is claimed he did, was an-indictable offence. This decision seems to me to be obviously correct; yet it was held in the People v. Bush, 4 Hill (N. Y.) 134, that in an indictment for attempting to commit an offence the particular manner, in which the attempt was made, need not be stated. This, it seems to me, was not the only error committed by the court in that case. The evidence in the case was that the defendant requested one Kinney to set fire to Sheldon’s barn offering him a reward; that afterwards, understanding and believing Kinney would set fire to the barn, the defendant gave him a match for the purpose, not meaning to be present himself at the doing of the act. It clearly appeared, that Kinney never intended to commit the crime. The court held that the attempt to commit arson was sufficiently proven and the defendant properly convicted. This decision was based on the case of King v. Higgins, 2 East 5, before cited, where it was decided that the soliciting of one to steal was itself a sufficient act to complete the offence of attempting to steal.

There is no question but that solicitations to do certain acts or commit certain crimes are indictable, as for instance, if the object is to provoke the breach of public peace, as in challenges to fight a duel or seditious addresses or the coun-selling of the resistance of a judicial writ,or when the object of the solicitation is to defeat public justice, as where perjury is advised, or the escape of a prisoner is encouraged, or the corruption of a public officer is sought. But in these cases these solicitations constitute at common law substantive offences, which are per se punishable as misdemeanors, and it is not as attempts to commit crimes that they are punishable. Except in those few cases, in which the common law made solicitation to do certain acts a substantive crime, it seems to me that solicitation to commit a crime is generally not a substantive crime and never can be properly an attempt to commit a crime. As I understand them, the great mass of judicial decisions proceed on the assumption, that an attempt to commit a crime, is such an intentional preliminary act, as will apparently result in the usual course of natural events, if not hindered by extraneous causes, in the commission of a deliberate crime. But this can not be said of mere advise given to another, -which he is at full liberty to accept or reject.

That this is a correct view may be deduced from Smith v. Com. 54 Pa. St. 209, where it was held, that a solicitation to commit adultery was not indictable at common law; vide State v. Avery, 7 Conn. 266. So it is held, that pursuading to consent to incest without any act done towards actual consummation is notan indictable attempt. (Cox v. People, 82 Ill. 191.) So a person, who induces one to sell him spirituous liquors, knowing that the seller is committing a misdemean- or, is not guilty of any indictable offence. (Commowealth v. Willard, 22 Pick. 476).

It is not however at all necessary in this case to decide in what eases a solicitation of another to commit a crime would be of itself a substantive crime at common law, or whether in any case such solicitation accompanied by no act tending to a specific crime could ever be an indictable attempt to commit such crime. But I will say, that when the crime, which one is solicited to commit, has for its object an interference with public justice, for instance, the procuring of a witness to absent himself from court so as to avoid testifying, when he had been summoned to testify, there can be no doubt that at common law such a solicitation would be a misdemeanor in itself. (State v. Caldwell, 2 Tyler 212; People v. Washburne, 10 Johns. 160; Walsh v. People, 65 Ill. 58 ; Jackson v. State, 43 Tex. 421; State v. Keys, 8 Vt. 57; State v. Carpenter, 20 Vt. 9; State v. Early, 3 Harr. 562; Comm. v. Reynolds, 14 Gray 87; Martin v. State, 28 Ala. 71).

In my judgment the fact, that in the case of People v. Bush, 4 Hill 134 it was proven in addition to the solicitation of the defendant to Kenny to burn the barn, that the defendant furnished to Kenny a box of matches, wherewith to burn the barn, did not add the least strength to the ease made out by the State. If the defendant had bought a box of matches with the declared intent to burn the barn, that would not have made him guilty of an attempt to burn the barn, any more than the purchasing of a pistol with the intent of shooting a man would of itself make one guilty of an attempt to murder.

The case of The People v. Lawton, 56 Barb. 126 based principally upon the ease in 4 Hill is in my judgment much less objectionable; and indeed it may probably be sustained on sound principles. But it certainly stands very near the boundary, when preparatory acts are to be held as indictable attempts, and when they should not be so held. The proof was, that the prisoner had reconnoitered the premises and agreed with a witness at the trial that about ten o'clock of a particular night they would commit a burglary by entering the store of B.; that in pursuance of such design and agreement at about the hour of one they went to the store through au alley in its rear; that the prisoner carried or caused to be carried there a set of burglars’ tools to aid them in committing the burglary; that when they arrived the prisoner suggested that none of the tools were strong enough to enable them to forcean entrance; that they then concluded to enter a blacksmith shop close by for the purpose of getting a crow-bar or some other tool, with which to break into the store; and that before they entered the shop an alarm was given, and they were interrupted and were prevented from executing their intended purpose, not however abandoning their design. The court held, that this evidence was sufficient to support a conviction. The court say in their opinion p. 134 : All the cases cited “concur in saying that in order to constitute the attempt, there must appear to have been more than the design or intention to commit the offence. There must have been some ineffectual act or acts toward its accomplishment. (Wharton’s Criminal Law sec. 2,702; 6 Grat. 706; 5 Cush. 367.) But none of them tend to establish that acts analagous to those proved in this case do not constitute an attempt: The only case which appears in, the least to conflict with it is the nise prius case of Regina v. Meredith, 8 Car. & Payne, 589, where Lord Abingor said, he thought some illegal act should be proved, to constitute the offence; and illustrated the suggestion by supposing that when a man was indicted for an attempt to have connection with a female child between the ages of ten and twelve years, and the proof showed he took his horse and rode to the place, where the girl was, he thought such an act would not constitute an attempt. We think the riding of the horse would not be an act towards the commission of the offence. While the taking of burglars’ tools and crow-bars to the place designed to be broken open would bo acts done towards its accomplishment.”

This reasoning is far different from that in the The People v. Burk, 4 Hill, which the court afterwards say covers this case completely. Certainly we can not infer from this reasoning, that mere solicitations to commit a crime would make a party indictable for an attempt to commit such crime. But we could infer the very reverse. Yet this was the ground on which this case in 4 Hill was based. If it were a sound ground, why did the court in the case in 56 Barb, enquire into the character of the preparatory acts, if the simple fact, that the person had solicited or induced the witness to undertake the burglary, would alone have made the prisoner guilty of an attempt to commit this crime ? It seems to me quite clear that advice given to another, which he is at full liberty to accept or reject, can not be regarded as an act towards the commission of a crime. Bor such advice would not apparently result in the usual course of natural events in the commission of the crime, and if it would not, then, it seems to me, it can not legally be regarded as an act towards the commission of the crime. I am also inclined to think, that the taking of burglars’tools to a store with intent to break it open without using them in any manner can not legally he regarded as an attempt to commit burglary, because such act, it seems to me, is not one which would apparently result in the usual course of natural events in the commission of the burglary. But it seems to mea nice question, and I may be mistaken in my first impression.

The case is thus stated in the syllabus of Uhl et als. v. The Commonwealth, 6 Grat. 706 : “On an indictment against several for an attempt to burn a barn, held: That an attempt according to the true intent and meaning of the statute, can only be made by an actual, ineffectual deed done in pursuance of, and in furtherance of, the design to commit the offence. But if the parties combined to commit the offence, and they all assented to it, and a part of them only went to do the act, those who were absent knowing with what intent the others went to the place, and assenting to the same, are principals in the offence. The overt act done in the attempt to commit the offence, need not be the last proximate act prior to the commission of the fellony attempted to be perpetrated.” The genera] court in that ease delivered no opinion and referred to no authorities. The syllabus is substantially the instruction given by the court below. The facts are not stated; and it therefore does not appear what, if any thing, was done towards the burning of the barn by those who went there for the purpose.

In the Commonwealth v. Clark, 6 Grat. 675, the general court decided, that, “An indictment for an attempt to commit an offence ought to allege some act done by the defendant, of such a nature as to constitute an'attempt to commit the offence mentioned in the indictment.” No opinion was delivered by the court, nor are the facts sufficiently stated to ascertain accurately what the indictment stated, which the general court quashed as insufficient. But as in the argument the New York cases were referred to, I presume the court by its decision intended to disapjrrove the case of The People v. Bush, 4 Hill, which was decided some six years before this Virginia case.

It is very difficult to deduce from the cases we have cited or from the reports of many other cases, which I have examined but not cited, any principle so clear as to enable us to determine with certainty, whether upon many states of facts in particular cases a party has or has not been guilty of an indictable attempt to commit a crime. But it seems to me that these cases show clearly enough certain general principles, which, when applied to the case actually before us, will enable us to reach a distinct conclusion. In the first place there can be no question but that to solicit or in any manner induce a witness to absent himself from a trial, in which the witness has been summoned to testify, is an indictable of-fence, though it is questionable whether in general the solicitation of a person to commit a crime is indictable, and it is clear that there are many crimes, to commit which the mere solicitation would not be an indictable offence. If therefore the defendant below' had induced by giving money or by any other act attempted to induce the -witness Ear! to absent himself from the court on the trial of the indictment pending against the defendant below', whether this inducement came directly from the defendant below' or indirectly through Ban, she w'ould clearly have committed an indictable offence. But the allegations in the indictment utterly fail to show', that the defendant Caroline Bailer either directly or indirectly did anything to induce Earl, the witness, or which could have operated on his mind so as to induce him to absent himself from the court as a witness against the defendant. The allegation is, that she gave Ban money for the witness to induce the witness to absent himself from court as a witness against her. But as there is no allegation that Ban gave this money to the witness, or ever even saw’ the witness, it is obvious that the giving of money to Ban for the witness to induce him to absent himself from court could have had no tendency to produce such result, if the witness never received the money, and Ban never spoke to him on the subject; and there is no allegation in the indictment, that he ever did. If he had given this money to the witness to induce him to stay away from the court as a witness, then, whether he had staid away or not, she could have been indicted for obstructing and impeding or for attempting to obstruct and impede the administration of justice.

The authorities all agree, that on an indictment for attempting to commit any crime it is uot necessary in any case to allege or prove, that the crime was actually committed; but the indictment in such case must specifically allege, what the crime is, which the accused is charged with attempting to commit or to procure to be committed. The indictment in this cese is entirely correct in this respect. It alleges, that the crime, the committing of which the defendant attempted to procure •was “that Peter Earl should absent himself from the circuit court of Wood county at the February term 1883, to which said term he, the said Peter Earl, had been summoned as a witness on behalf of the State of West Virginia against said Caroline Bailer,'the defendant, in a case pending in said court upon an indictment for misdemeanor against the said Caroline Bailer at the November term of said court 1882.” This is an abundantly full and perfect description of the crime, which it is alleged the defendant Caroline Bai-ler attempted to induce Peter Earl to commit. The indictment did not allege, that Peter ever committed this crime ; and the authorities all show, that there was no necessity that it should. The great weight of authority and reason, as we have seen, lay it clown that the preparatory acts done by the accused, and which, constitute the offence of attempting to procure the committing of a certain crime must be stated to have been actually done and must be proven to have been done as stated. It is true that in the People v. Bush, 4 Hill it was held, that in an indictment for attempting to commit an offence the particular facts, which constitute the attempt, need not be alleged. But this is contrary to both reason and authority. I have seen no other case, in which this has been held to be law. In Randolph v. The Commonwealth, 6 Serg. & R. it was decided otherwise; and the court said there were no precedents in support of such an indictment, as was held good in 4 Hill; and in the Commonwealth v. Clark, 6 Grat. 675 the position taken in 4 Hill was condemned, for the court expressly held : “the indictment for the attempt to commit an offence ought to allege some act done by the defendant of such a nature as to constitute an attempt to commit the of-fence mentioned in the indictment.”

In the case before us the indictment does allege some act done by the defendant, which, it is claimed in argument, was “of such a nature as to constitute an attempt to commit the offence mentioned in the indictment.” The act done by the defendant alleged in the indictment and claimed to be of such a nature as to constitute the attempt to get Peter Earl to commit the offence of absenting himself from attendance at the circuit court as a witness against the defendant was, that “she did unlawfully furnish one Ban with money for Peter Earl to induce him to commit said offence.” And the question is : Was this of such a nature as to constitute an attempt to commit this offence? It seems to me clear both on reason and the authorities that it was not. The act done by the accused alleged in the indictment, it would seem obvious, can not be independent and unconnected in any manner with the acts, which, if done, would constitute the crime, which the accused is indicted as having attempted to commit or procure to be committed. The weight of authority, as I have stated, seem to show, that these acts done by the -defendant and the acts constituting the crime attempted should be the cause of the other. But an examination of the cases, which we have cited, shows that there are some cases^which have been decided, which seem to hold, that the acts done by the defendant should be related to the acts, which constitute the crime attempted, not as crime necessarily, but that it will suffice, if the first is only a condition of the other. Of this character apparently are the cases of The People v. Bush, 4 Hill 134 and The People v. Lawton, 56 Barb. 126. But I have seen no case, which intimates, that the acts done by the accused need not be related to the acts constituting the attempted crime either as causes or as conditions.

In the case before us these acts done by the defendant are neither the cause nor a condition of the acts constituting the crime alleged to be attempted. A condition of any crime is the act or acts without which it would not have occurred. A cause is that condition, which determines the final result; or it may be defined as .the preponderating condition. See Wharton’s Criminal Law, eighth edition, Vol. 1, secs. 153 and 154. W e have already given illustrations of causes and conditions, which will, I think, suffice to show, what is meant by these words. In Washington v. The B. & O. R. R. Co., 17 W. Va. 197 et seg. mauy cases are cited, which when carefully considered will enable us to distinguish between what is properly called a cause and what should be called a condition merely. Though m these eases cited and in the case of Washington v. The B. & O. R. R. Co. there is no attempt to draw formally the distinction between a cause and a condition ; and I do not know, that the term “ condition ” is used in any of the cases. Still in very many of them certain facts stated in them as not causes are still connected with the result; and this remote connection 'not being a cause is'what we here call a condition. But it is apparent that the fact as alleged in the indictment, that “ Caroline Bailer,” the defendant below, “ on the 1st day of January, 1883, in said county of Wood did unlawfully furnish to one John A. Ban for the use of Peter Earl an amount of money, to wit, the sum of $3.00 to unlawfully induce the said Peter Earl to absent himself from the circuit court of said county at the February term 1883 of said court ” could not possibly be either a cause or a condition of his, Peter Earl’s, absenting himself from the circuit court of Wood at the February term, 1883, unless Ran gave these $3.00 to Earl to induce him to so absent himself, or saw said Earl and by his communication with him endeavored in some manner to influence him to absent himselt from said term of said court. If Ran never saw Earl, then of course the giving of this money hv the defendant below for this alleged purpose could not possibly have operated in any manner to induce said Earl to absent himself from the said term of said court to avoid being a witness against the defendant. The two acts, the giving of the money by the defendant below for this illegal purpose and the absenting of Earl from this term of the circuit court, are entirely independent acts, and the one could not possibly influence the other, if Earl was in no manner communicated with; and there is no allegation in the indictment that he was. In the absence of any such allegation the simple giving of this' money by the accused to a third person for Earl is a fact of such a nature, that it could not possibly constitute an attempt to induce Earl to com-, mit the offence of absenting himself from the circuit court as a witness against the accused. The indictment really amounts to nothing more than that- the accused intended to induce Earl, a witness against her in an indictment there pending, not to appear as a witness against her and indicated this intention by a certain transaction, which she had with a third party. Of course she can not he indicted, as all the authorities show, for entertaining such intention, however immoral it may be regarded, and however clearly it may bo shown that she did entertain it. This being the case the circuit court ought to have quashed this indictment when her counsel moved the court to quash it on July 19,1883.

For this reason the judgment of the court below rendered on August 6, 1883, must be reversed and annulled; and this court proceeding to render such judgment, as the eoui’t below ought to have rendered, must quash this indictment.

Indictment Quashed ;