35 S.C. 262 | S.C. | 1892
The opinion of the court was delivered fey
The defendant was indicted for soliciting another to commit the crime of arson, the charge in the indictment being that the defendant “wilfully, unlawfully, and maliciously did solicit, entice, and endeavor to persuade one Thompson Mayer feloniously, wilfully, and maliciously to set fire to and burn down a certain house, to wit, the dwelling house of one Anderson G. Mayer, situate in the county and State aforesaid, by offering to pay him, the said Thompson Mayer, a certain sum of money, to wit, ten dollars, for so doing, and giving him the matches with instructions to use them in setting the said fire to the said house.”
It is stated in the “Case” that defendant’s counsel moved to quash the indictment, and it being admitted in the argument of that motion that the house had not been set on fire bv said Thompson Mayer, the motion was granted. The Circuit Judge, however, in his report appended to the “Case,” says the motion was not, in the first instance, a formal motion to quash the indictment, but rather a proposal to have the ruling of the court upon a conceded state of facts. Whereupon the Circuit Judge ruled as follows: “The indictment does not charge that money was given to Thompson Mayer as a bribe to burn the house of Andrew G. Mayer; nor does it allege that the solicitation was in any manner acceded to or accepted. There is no allegation that there was in any manner the slightest movement made by Thompson Mayer towards committing the proposed arson. It was conceded by the solicitor that he could not prove that the solicitation was accepted; but, on the contrary, it would appear in evidence that it was promptly rejected and exposed ; that all that did occur was that Bowers promised to give Mayer ten dollars if he would burn the house, and handed him matches, with a request that he would burn the house, which request and promise were promptly refused, and that ended it.” His honor held “that a naked solicitation, promptly rejected, is wanting in the essential elements of
From this ruling and order the State appeals upon the several grounds set out in the record, which substantially make the single question whether solicitation to commit a felony, accompanied with an offer of a reward, and the furnishing of the means to the party solicited, of committing the proposed felony, does not constitute a criminal offence at common law, and as such is indictable in the Court of Sessions of this State. It is not denied that an attempt to commit a felony is an indictable offence, and therefore the inquiry here is narrowed down to the question whether soliciting another to commit a felony, accompanied by an offer of a reward and the delivery to the person so solicited of the means by which the felony may be committed, constitutes an attempt to commit a felony, where the offer is rejected and the means furnished are not used for the purpose indicated.
This is in accordance with reason as well as authority. There can be no doubt that a person may commit a felony either by his own hand or by the hand of- another prompted or encouraged by him ; and if he undertakes to commit a felony by his own hand, and his purpose is frustrated by the failure of the inanimate agencies which he employs to serve his felonious purpose, he would unquestionably be guilty of an attempt to commit a felony. Upon
In a note to the case just cited, the conflicting views of Wharton and Bishop above alluded to are stated, and several cases are cited showing that “solicitation to commit crime has often been punished as solicitation.” We see also in standard authorities on criminal pleading forms of indictments for solicitation to commit a crime, as well as forms of indictments for attempts to commit felonies, which are distinct and different. Archbold’s Criminal Pleading, 1st Am., from 1st Lond., edit., pages 238, 403; 2 Chitty Criminal Law, 50; and 3 Chitty, 807. If, therefore, the indictment in this case be regarded as an indictment for soliciting another to commit a felony, and not as an indictment for an attempt to commit a felony, we think it can be sustained if its allegations are established by the proof. Rex v. Higgins, 2 East, 5; People v. Bush, 4 Bill (N. Y.), 133; State v. Avery, 7 Conn., 266; and other cases cited in 1 Bishop Criminal Law, (7th edit.), section 767 et seq.
It seems to us, therefore, that the Circuit Judge erred in his ruling and in granting the motion to quash the indictment.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for trial.