2 Nev. 268 | Nev. | 1866
Opinion by
The indictment in this action charges the defendant with “ the crime of an attempt to commit the crime of embracery.” The facts set out in the bill to support this charge are substantially as follows:
The defendant, whilst acting as a juror in a certain civil action pending in the District Court for the County of Lander, approached one of the attorneys in the cause and offered to secure and return a verdict for the defendant for the sum of one hundred dollars. There is no charge that he was corruptly influenced, or that he attempted in any way corruptly to influence his fellows. The substance of the indictment is an offer to secure a verdict for the defendant in the action for a sum of money. To this indictment the defendant put in a general demurrer, which was sustained, and the case was re-submitted to the Grand Jury. The only question presented to this Court for determination is whether the facts detailed in the indictment constitute an indictable offense. Whilst we are inclined to the belief that the defendant might be held under a proper indictment, we do not think the bill presented to us in this record charges the defendant with any crime known to the law. Embracery is defined to be an attempt by either party, or a stranger, to corrupt or influence a jury, or to incline them to favor one side by gifts or promises, threats, or persuasions, or by instructing them in the- cause, or any other way, except by opening and enforcing the evidence by counsel at the trial, whether the jurors
In other words, there can be no indictment for an attempt to commit a crime which crime itself is but an attempt to do a criminal act. It is a general rule of the Common Law that an attempt to commit a crime is itself a crime, but in our opinion, from the very nature of the crime of embracery, there can be no attempt to commit it. However, notwithstanding the demurrer to the indictment was well taken, we see no reason why the defendant might not be indicted and punished for soliciting and inciting another to commit the crime of embracery, if it can be shown that he did so.
The Common Law made it an indictable offense to solicit another to commit a felony or misdemeanor. (1 Russell on Crimes, 46.) In Rex v. Higgins, 2 East. R. 5, it was held that to solicit a servant to steal his master’s goods was a misdemeanor, though it was not shown that the servant stole the goods, nor that any other act was done except the soliciting and inciting. In delivering his opinion in that case, Lord Kenyon says : "But it is agreed that a mere intent to commit evil is not indictable without an act done ; but is there not an act done when it is charged that the defendant solicited another to commit a felony ? The solicitation, is an act, and the answer given at the bar is decisive that it would be sufficient to constitute an overt act of hi°h. treason.” So Le Blanc.
Under this view of the law, if the defendant solicited the attorney to employ money to corruptly influence the jury, he is indictable for inciting or soliciting another to commit the crime of embracery. But the indictment in this case does not sufficiently charge such an offense. The Court below, therefore, ruled correctly in sustaining the demurrer, and in re-submitting the case to another Grand Jury.
Judgment affirmed.