Stokes v. State

46 So. 627, 92 Miss. 415

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinion

Mates, L,

delivered the opinion of the court.

William Stokes and Cora Lane were jointly indicted for an attempt to kill and murder one Wallace Lane, the husband of Cora Lane. The testimony shows that the relations existing between Cora Lane and Will Stokes were of a very friendly nature, so much so that he spent much time in and about the Lane-residence. The motive for the killing, it seems, was both to get rid of Lane and also make it possible to realize on certain policies of life insurance which Lane was carrying for the benefit of his wife. This is the state’s testimony on this subject.

The facts which the state claims constituted the attempt are as follows: Stokes and Mrs. Lane undertook to hire one Shorty Robertson to do the killing. Shorty Robertson was a negro,- and it was agreed that he would do the killing on a certain night, when it was believed that Lane would be coming home from a lodge meeting. It was agreed to pay Robertson $1,000, $600 of which was to be in cash, and $400 after the killing should take place. After this proposition had been made to Robertson, he (Robertson) informed certain officers about it, and told them of the conversation had with Stokes and Mrs. Lane, and posted them as to the night when, the hour at which, and the place where it was understood that he should go for the purpose of stationing himself for the purpose of killing Wallace Lane. About dark, on the night when it was agreed that Robertson should do the killing, the officers went to the place, secreted themselves, and there awaited developments. Robertson went to the house of Mrs. Lañé, where he found Stokes, and together they proceeded to the place where it was understood that Robertson was to lie in wait for the purpose of killing Lane-. Stokes procured a loaded gun and went with the negro for the purpose, as he (Robertson) states, of properly placing him at the point where he was to do the killing. They arrived there a little after dark on a rainy night, and, just as Stokes was in the act of handing the gun to Robertson, were arrested by the officers, who had preceded them.

It is not shown in the testimony that any money was ever paid to Robertsob. as promised, nor is it shown that Lane came by the place where the killing was to occur on the night in question. Stokes admits that he was there with the gun, but denies that he went there for any such purpose as is testified to by Robertson. He asserts that the negro had promised him to help catch some parties that had been stealing, and he started out with him to look up and arrest them. Stokes denies that he had any intention of killing Lane, pr that he ever attempted to hire Robertson to do so. These facts, together with all proof offered by Stokes, were submitted to the jury, however; and they found that he had gone there on the mission testified to by the negro, and convicted him of the attempt to kill and murder as charged in the indictment. A severance was asked for and granted, and Stokes was tried and convicted.

The only question in the case is: Do the facts constitute an attempt, within the meaning of Code 1906, § 1049 ? This section is as follows:

“Every person who shall design and endeavor to commit an offense, and shall do any overt act towards the commission thereof, but shall fail therein, or shall be prevented from •committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.”

It is useless to undertake to reconcile the authorities on the subject of what constitutes an attempt, or what is an overt act, within the meaning of the section in question. It is equally impossible for us to -undertake to lay down any rule on this subject ‘which, would serve as a guide in all future cases. To a very great extent each and every case must stand on its own facts. The ■text-books and decisions are noted for their lack of harmony. It is impossible to decide any case on this subject without doing ■violence to some author or some adjudicated ease. Therefore ■all we can hope to do is to follow the best authorities and to clear up the subject as best we can, so far as the laws of this state are concerned.

Where a party is indicted for an attempt to murder by shooting with a gun, at what time shall it be said that such party has ■committed an overt act? Is it necessary, in order to convict, that a party shall be allowed to proceed to do all towards the .accomplishment of his crime, except actually to pull the trigger ? If not, then when may it be said that an overt act has been committed ? When it is proved that a party has the design to kill and has the means to accomplish that design, shall it be held that no crime is committed unless that design is frustrated at the very instant it is attempted to be carried out? Must the citizen be required to imperil his existence up to the time of the actual menace before he can claim the protection of the law and procure the punishment of the offender ? The mere buying of the gun would be preparation, and not attempt. ,The mere buying of a gun and loading it might not constitute an attempt. But when the facts show, in furtherance of the design, that a gun has been procured and loaded, and the party so procuring and loading the gun has armed himself and started out -on his mission to kill, but is prevented from carrying out his ■design by such extraneous circumstances as that the party he intends to kill does not come to the point where he expected to ■carry out his design, or if the party designing to kill is arrested and prevented from carrying out the design, he is clearly guilty of the attempt. When Stokes attempted to procure Robertson to perpetrate this crime, and in furtherance of this purpose took the gun, loaded it, and started with him to the point where the killing was to occur, the act was an act done tending to effect the commission of tbe crime, witbin tbe meaning of Code 1906, § 1049, and was an attempt. In tbis stage it bad proceeded-beyond mere preparation or intent, and was an actual step taken towards tbe commission of tbe crime. If tbe jury believed, as they did believe, that tbe starting out with tbe gun was for tbe purpose of stationing tbe negro at a point where be could do the-killing and was in furtherance of tbe design to kill Lane, tbis was an act done, and defendant was properly convicted. Tbe public welfare and peace are better subserved, and tbe lives of citizens better protected, by tbe bolding that these acts constitute criminal attempt, as in fact they do, than would any attempted: refinement of tbe law which would result in a contrary view; In McClain on Criminal Law, § 226, it is held: “Where there is tbe intent to commit, and an act is done tending to effect tbe commission thereof, tbe attempt is punishable, although by reason of extraneous circumstances tbe actual commission of tbe crime is impossible.”

In many states it is held that tbe mere solicitation of a person to commit a crime is in itself an attempt, whether tbe person solicited agree to commit tbe crime or not. It is not necessary for us to decide tbis question, and we do not do so, since tbis case progressed beyond mere solicitation. Tbe record in tbis case fully warrants tbe conclusion that there was an act done towards tbe commission of tbe crime, witbin tbe meaning and purpose of tbe law, and for tbe peace and protection of society. At last, it is tbe safety of tbe public and their protection which is to be guarded. All criminal laws have tbis as their aim. While a person cannot be punished- for mere intent to do a crime, surely, when that intent has so far manifested itself as to cause tbe party to take bis gun and go out on a search for tbe intended victim, being prevented by arrest or other extraneous circumstance from effecting bis purpose, such act constitutes an attempt. We are now concerned only with what facts constitute an attempt. We have no concern at tbis time with fbose things which fall short of constituting an attempt. All the authorities hold, that, in order to' constitute an attempt, the act attempted must be a possibility; and counsel for appellant argue from this that the appellant could not have committed this crime at the time he was arrested, because Lane was not even there, and therefore, they say, no conviction could be had. It was no fault of Stokes that the crime was not committed. He had the gun, and the testimony warrants the conclusion that it had been taken for the purpose of killing Lane. It only became impossible by reason of the extraneous circumstance that Lane did not go that way, and, further, that defendant was arrested and prevented from committing the murder. This rule of the law has application only to a case where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short, it has’ no application to the ease when the impossibility grows out of extraneous facts not within the control of the party. In the case of Cunningham v. Siate, 49 Miss., 685, the court says (on page 101) : “This 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. It is truly remarked by Mr. Bishop in his valuable work on Criminal Law that 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 toward its consummation. So long as an act rests on bare intention, it is not punishable; but, immediately when an act is done, the law judges, not only of 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, the act becomes criminal and punishable.”

When the intent to commit crime exists, or, to put it more accurately, when the only proof is that it is merely the declared intention of a person to commit a crime, with no act done in furtherance of the intent, however clearly may be proved this intention, it does not amount to an attempt, and it cannot be punished as such. But, whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt, and this court will not destroy the practical and common-sense administration of the law with subleties as to what constitutes preparation and what an act done toward the commission of a crime. Too many subtle distinctions have been drawn along these lines for practical purposes. Too many loopholes have been made whereby parties are enabled to escape punishment for that which is known to be criminal in its worst sense. We can see no application of the decision of Lott v. State, 83 Miss., 609, 36 South., 11, to the facts of this case. People v. Moran, 20 Am. St. Rep., 723, and notes; 1 McClain’s Crim. Law, 226; State v. Avery, 7 Conn., 266, 18 Am. Dec. 105; People v. Bush, 4 Hill (N. Y.), 133; People v. Sullivan, 173 N. Y., 122, 65 N. E., 989, 63 L. R. A., 353, 93 Am. St. Rep., 582.

Affirmed.