People v. Bush — 4 Hill & Den. 133

Majority

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The People vs. Bush.

Headnote

In an indictment under 2 R. S. 698, § 3, for attempting to commit an offence, the particular manner in which the attempt was made is immaterial, and need not be alleged.

On the trial of an indictment under the above statute for an attempt to commit arson, it was shown that the prisoner solicited one It. to set fire to a bam, and gave him materials for the purpose; held, sufficient to warrant a conviction, though the prisoner did not mean to be present at the commission of the offence, and K. never intended to commit it.

Semble, that merely soliciting one to commit a felony, without any other act being done, is sufficient to warrant a conviction under the statute.

Certiorari to the Livingston general sessions, where Bush was tried and convicted of an attempt to commit arson. The first count of the indictment charged that the defendant, on &c.j at &c., did attempt unlawfully, feloniously and wilfully to set fire to a certain barn of John Sheldon, situate &c., with intent to injure the said Sheldon, against the form of the statute &c. The second and third counts were similar.- The fourth count charged that the defendant, on See., at Sec., falsely, wickedly Sec. did solicit and incite one Kinney, unlawfully,

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feloniously See., in the night time, to set fire to a certain barn of said Sheldon, situate &c., with intent to injure, said Sheldon, against the peace of the people &c.

The proof given at the trial was, that the defendant requested one Kinney (named in the fourth count of the indictment) to set fire to Sheldon’s barn, offering him a reward; that after-wards, 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, however, that Kinney never intended to commit the crime. The court instructed the jury that the evidence was sufficient to bring the case within the statute, (2 R. S. 698, § 3,) and to sustain either of the first three counts in the indictment. The defendant excepted. After verdict, judgment was suspended and the proceedings brought here by certiorari pursuant to 2 R. S. 736, § 27.

J. Young, for the defendant.

G. Hastings, (district attorney,) contra.

Ry the Court,

The 2 R. S. 583, 2d ed. § 3, is, that u every person who shall attempt to commit an offence prohibited by law, and in such attempt shall do any act towards the commission of such offence, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same; upon conviction thereof shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows,” &c. An attempt, as charged in either of the first three counts, would subject the prisoner to punishment in the state prison. If the offence proved be not within the statute, but confined to the fourth count, it is a mere misdemeanor. (1 Russ, on Cr. 49, Am. ed. of l836.)

An attempt in any form to commit an offence is within the statute ; and the particular manner in which the attempt was

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made need not be pointed out by the indictment. The case relied on by the prisoner’s counsel, (Rex v. Carr, Russ, & Ry. 377,) arose under Lord Ellenborough’s act, (43 Geo. 3, ch. 8,) which prescribes, the means of making the attempt, viz. if any person shall “ level any kind of loaded fire arms, and attempt by drawing a trigger, or in any other manner,” &c. The indictment charged an attempt by pulling the trigger of a loaded blunderbuss. The proof was that it had no priming. The judges held, therefore, that not being loaded so as to be capable of doing mischief by having the trigger drawn, it was not loaded within the meaning of the statute. No question was made of the act being an offence; but only one of variance from the statute to which the indictment referred.

The act imputed to Bush was no doubt an attempt to commit an offence. It is admitted that heSndeavored to make himself an accessory before the fact ■, and to become an accessory is, in itself, an gffence. A mere solicitation to commit a ‘ felony is an ¿ffence, whether it be actually committed or not. This was held in The King v. Higgins, (2 East, 5.) In the case before us there was more. The solicitation was followed by furnishing the instrument of mischief. The question of principal and accessory does not arise, as it would have done provided the crime had actually been committed. Had it been Committed, the attempt would have been merged in an actual felony—a crime of another species. There would have been a principal arson by Kinney and an accessorial offence by Bush. The attempt of the latter was to have both crimes committed ; and the question bf principal and accessory not being in-the case, I see nothing against considering the matter in the light of the ordinary rule, that what a man does by anoth- ' er he .does by himself; in other words, the course taken to" / commit the arson by the hand of Kinney, was the same thing, in legal effect, as if Bush had intended to set the fire personally, and had taken steps preparatory to that end. An attempt may ' be immediate—an assault, for instance ; but it very commonly | means a remote effort, or indirect measure taken with intent to

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effect an object. An abundance of illustration will be found in The King v. Higgins, especially in the learned and copious arguments of the counsel. An approved writer on criminal law speaks of the act of solicitation in that case as belonging to the class of attempts. (1 Russ, on Cr. 49, Am. ed. of’36.)

The offence proved against Bush was, therefore, within the words, and we think within the meaning of the statute.

New trial denied.