CHAPTER VI.

THE CRIMINAL ACT.

SECTION 1.-CONCURRENCE OF ACT AND INTENT.

REGINA v. MATTHEWS.

(Court of Criminal Appeal, 1873. 12 Cox, C. C.4489.)

BOVILL, C. J.1 We have considered this case, and have come to the conclusion that the conviction must be quashed. The jury have found that at the time the prisoner found the heifers he had reasonable expectation that the owner could be found, and that he did not believe that they had been abandoned by the owner. But at the same time they have found that at the time of finding the heifers the prisoner did not intend to steal them, but that the intention to steal came on him subsequently to the first interview with Stiles. That being so, the case is undistinguishable from Reg. v. Thurborn, 3 Cox, C. C. 453, and the cases which have followed that decision. Not having any intention to steal when he first found them, the presumption is that he took them for safe custody, and unless there was something equivalent to a bailment afterwards he could not be convicted of larceny. On the whole, we think there was not sufficient to make this out to be a case of larceny by a bailee.

Conviction quashed.

(Supreme Court of Florida, 1898. 40 Fla. 251, 24 South. 60.) MABRY, J. The following instruction given by the court to the jury was excepted to by defendant, viz.: "If you believe from all the testimony in this case that the defendant was informed that in a certain house an offense was being committed against the ordinances of the city of Tampa, and that the defendant was a policeman of the city of Tampa at the time, then it was his duty, and it was lawful, if not resisted, for him to go into said house for the purpose of preventing, or arresting those who might in his presence be guilty of

1 The opinion only is printed.
2 Part of the opinion is omitted.

a violation of the ordinances of said city; but if you believe from all the evidence in this case that he went to that house in good faith as an officer of the law to enforce the law, and after he got in there violated the law himself, then the law removes its sanction to such entry, and he becomes a trespasser from the beginning." This charge is not correct, and we find no authority to sustain it. The circuit judge must have failed to observe the distinction obtaining in the civil and criminal departments of the law in the application of the rule sought to be invoked in the charge. Mr. Bishop says (1 Crim. Law [8th Ed.] § 208): "In civil jurisprudence we have the rule that when a man does a thing by permission of law-not by license, but by permission of law-and, after proceeding lawfully part way, abuses the liberty the law had given him, he shall be deemed a trespasser from the beginning by reason of this subsequent abuse. But this doctrine does not prevail in our criminal jurisprudence; for no man is punishable criminally for what was not criminal when done, even though he afterwards adds either the act or the intent, yet not the two together." The cases cited, State v. Moore, 12 N. H. 42, and Commonwealth v. Tobin, 108 Mass. 426, 11 Am. Rep. 375, sustain the text.

The judgment is reversed, and a new trial awarded.

REGINA v. SUTTON.

(Court for Crown Cases Reserved, 1838. 2 Moody, 29.)

The prisoner was tried before Mr. Baron Alderson at the Spring Assizes for the county of Gloucester, 1838, upon an indictment which contained two counts: First, for stealing a sheep; secondly, for killing the same with intent to steal the carcass.

The jury found the prisoner guilty upon the latter count only. It appeared that the prisoner was interrupted by the prosecutor, who came into his field whilst the prisoner was in the act of killing the sheep. The sheep, however, had only been wounded in the throat; the jugular vein being cut on one side of it, but not altogether through. The animal was immediately removed by the prosecutor to his own house, and the wound sewed up; but it died in two days. The jury found the prisoner had given to the sheep a deadly wound, of which it died two days after, with intent to steal the carcass.

Upon these facts the learned Baron directed them to find a verdict of guilty upon the second count. See Clay's Case, R. & R. 387.

In Easter Term, 1838, Lord DENMAN, C. J., TINDAL, C. J., Lord ABINGER, C. B., PARK, J., LITTLEDALE, J., PARKE, B., BOLLAND, B., BOSANQUET, J., ALDERSON, B., PATTESON, J., COLERIDGE, J., and COLTMAN, J., considered this case, and unanimously held the conviction right.

PINKARD v. STATE.

(Supreme Court of Georgia, 1860. 30 Ga. 757.)

The plaintiff in error was indicted and found guilty of simple larceny. He moved for a new trial on the following grounds: (4)1 Because the court erred in refusing to charge the jury, as requested by the counsel for defendant in writing, that if they, the jury, believe from the evidence that Pinkard, the defendant, did agree with Perry and Axon to steal the negro woman belonging to Brinsfield, yet if they believe that Pinkard abandoned the purpose, and went off and did not participate in the crime, then the jury must find the defendant not guilty.

LUMPKIN, J. We think the fourth charge should have been given. The law as well as the gospel allows a place of repentance, and, notwithstanding the accused may at one time have agreed to engage in this crime, yet, if he afterwards changed his mind and abandoned that intention, he is not guilty; and there was proof in that case to warrant a charge to that effect.

SECTION 2.-SUFFICIENCY OF THE ACT.

I. SOLICITATION.

BACON'S CASE.

(King's Bench, 1664. Lev. 146.)

He was indicted for intending to murder the Master of the Rolls, and for offering £100 to J. S. to do it; and saying, That, if he would not, he would do it himself; and he being convicted, it was moved that this intent only was not indictable: But the Court to the contrary said: "Anciently the will was reputed or taken for the deed. in matters of felony, and tho' it is not so now, yet it is an offense and finable; and they fined him 1000 marks, three months' imprisonment, and to find sureties of good behavior during life."

1 Part of this case is omitted.

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2 "In some Year Books of the fourteenth century we find our lawyers appealing to a dangerous maxim, 'Voluntas reputabitur pro facto.' See Coke, Third Instit. 5; 2 Stephen, Hist. Crim. Law, 222. This was, we believe, due to the fact that, owing to the disuse of appeals, our criminal law had become far too lenient in cases of murderous assaults which did not cause death. We * believe that the adoption, even for one limited purpose, of this perilous saying was but a momentary aberration. Our old law started from the other extreme: 'Factum reputabitur pro voluntate.'" 2 Pollock & Maitland's Hist. Eng. Law, p. 475, note.

REX v. HIGGINS.

(King's Bench, 1801. 2 East, 5.)

The defendant was indicted for a misdemeanor at the quarter sessions for the county of Lancaster, and was convicted on the second count of the indictment, charging, "That he on," etc., "at" etc., “did falsely, wickedly, and unlawfully solicit and incite one James Dixon, a servant of J. Phillips," etc., "to take, embezzle, and steal a quantity of twist, of the value of three shillings, of the goods and chattels of his master, J. P.," etc., "aforesaid, to the great damage of the said J. P.," etc., "to the evil example," etc., "and against the peace," etc. After judgment of the pillory and two years' imprisonment, a writ of error was brought, and the following causes assigned for error: (1) That the said count does not set forth any misdemeanor or offense which the justices of peace at their quarter sessions had jurisdiction to determine.1

The case was twice argued-first in Trinity term last by Scarlett for the defendant and Cross for the crown, and now Topping for the defendant and Christian for the crown.

LE BLANC, J. It is contended that the offense charged in the second count, of which the defendant has been convicted, is no misdemeanor, because it amounts only to a bare wish or desire of the mind to do an illegal act. If that were so, I agree that it would not be indictable. But this is a charge of an act done, namely, an actual solicitation of a servant to rob his master, and not merely a wish or desire that he should do so. A solicitation or inciting of another, by whatever means it is attempted, is an act done; and that such an act done with a criminal intent is punishable by indictment has been clearly established by the several cases referred to. The cases of R. V. Daniel and R. v. Callingwood, cited for the defendant, do not support the proposition that a mere solicitation is not indictable. On the contrary, Lord Holt says in the former case (6 Mod. 101) that perhaps an indictment might be for the evil act of persuading another to steal. That part of the case, however, was determined upon the want of a venue. And in R. v. Callingwood, 2 Ld. Raym. 1116, the only point determined was that the first part of the charge, which was for enticing an apprentice to take and carry away goods from his master, was not indictable, being only a private injury for which an action on the case would lie, but not of such a public nature as to maintain an indictment, and that the second part of the charge was not well laid for want of a

venue.

Judgment affirmed."

1 Part of this case is omitted.

Kenyon, C. J., and Grose and Lawrence, JJ., delivered concurring opinions.

COMMONWEALTH v. HUTCHINSON.

(Superior Court of Pennsylvania, 1898. 6 Pa. Super. Ct. 405.)

SMITH, J. The defendant was convicted and sentenced on the charge of soliciting one Robert Williams to burn a store building.1 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, 18 Am. Dec. 105; People v. Bush, 4 Hill (N. Y.) 133; Commonwealth v. McGill et al., Add. (Pa.) 21; State v. Bowers, 35 S. C. 262, 14 S. E. 488, 15 L. R. A. 199, 28 Am. St. Rep. 847. This, however, cannot be affirmed of the broad proposition that solicitation to commit a misdemeanor is itself a misdemeanor. On the contrary, it seems clear that with respect to various misdemeanors, involving little or no moral turpitude or prejudice to society, solicitation to their commission is not in law an offense. It is equally clear that as to certain others it is an offense. The cases cited in Wharton's Criminal Law, § 179, show that such solicitations are indictable "when their object is interference with public justice, as when a resistance to the execution of a judicial writ is counseled, or perjury is advised, or the escape of a prisoner is encouraged, or the corruption of a public officer is sought, or is invited by the officer himself." In Rex v. Phillips, 6 East, 464, it was held that solicitation to commit a misdemeanor of an evil and vicious nature, was indictable. The authorities collected in the notes to Washington v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900, embrace cases in which it was held indictable to solicit another to make a plate for counterfeiting bills of exchange, to commit assault and battery, or to commit perjury. There is also a class of cases frequently referred to in the discussion of this question, but really without bearing on it: Solicitations accompanied with the offer of a bribe, of which Rex v. Plympton, 2 Ld. Raymond, 1377, and Rex v. Vaughan, 4 Burr. 2494, are leading instances. In these the act sought was lawful. The offer of a bribe to influence its performance was the unlawful feature.

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. Commonwealth, 95 Pa. 318, 40 Am. Rep. 653; Commonwealth v. Randolph, 146 Pa. 83, 23 Atl. 388, 28 Am. St. Rep. 782; and that solicitation to commit fornication or adultery is not indictable, Smith v. Commonwealth, 54 Pa. 209, 93 Am. Dec. 686.

1. The indictment and part of the opinion relating to a question of evidence are omitted.