The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-05-24
AN INrERESr1NG LAW CAsE.


monwealth; also the dissenting opinion of
Justice Agnew. The Court held that solici-
tation to commit felony or misdemeanor was
not indiotable, while the dissenting Justice
affirmed the contrary. "When doctors DIS
agree" ETC. The case is of Importance and
interest,"
SUPREME CoURT.-The following interesting
opinion, touching very delicate question, was
delivered by the Chief Justice at the recent sit
ting of the Supreme Court at Harrisburg.
Smith VS.. The Commonwealth. Certlorarl TO
she Quarter Sessions of Clinton County. OPT
nion by Woodward, O. j.
An attempt to commit misdemeanor is
niis1emeanor, whether the offense is created by
statute, or was an ohense at common law.
These we're the words of Parker in the case Of
Rex vs.. Roderick, Car. and Pay, 795, delivered
in the year 1887. They have been adopted by
the compilers on crimlnallaw Rup. on Grimes,
46. 1 Arch. Grim. Pleading, and EIv. p, 10
WhaTtons Grim. Law, PIP. 10 and S73.
Long before 1887, to wit, in 1901, 1t was held
in the King We. Higgins I'D Ear, aud p. 6), that
to solicit q servant 10 steal his masters goods is
a misdemeanor, though it be not charged In the
indictment that the servant stole the goods, or
that any other act was done except the soliciting
and melting. This was the case of an unsuc-
Cessfu solicitation to commit felony, and 1t is
authority for nothing more than that such soli-
citation is indictRble as a misdemeanor, though
the language OF the judges, and especially Judge
j., went so far as to intimate that such solicl-
''An these cases prove,n said the learned judge,
THAT melting another to commit misdemeanor
is itself misdemeanor. a foTttori, therefore,
it must be such to incite another to commit
felony"
No fault can be found with his conclusion If
his premises be true, but "all these cases" to
which he referred himself were cases rather of
attempts than OF mere solicitations to commit
mlsdemeanor. Thus, Rex vs. Sco6eld Cald.,
S97, was an attempt by man to set fire to his
own house; at that time the burning of ones
hnr hatn lu nioH0 IN
land, but since made felony by statute. The
act done In that case was setting lighted can
die under the stairway, and the question was
whether the intent was to burn the house.
And in Rex VS.. Vaughan, Burr, 2494 the
defendant attempted to brlbe the Duke of Graf
ton, then Cabinet minister. to give the defen-
dant place in Jamaica, and it was indicted as
an attempt. The King VS.. Plympton, ID. Reg,
1877, was another case of attempted bribery;
the offer OF money to member of corporation
for his vote.
Rex VS.. johnson, 2 Shew, /, another of the
authorities relied upon by the Judge, as in Hig-
gins case, was nothing less than subornation of
peri Jury, he actual putting of money into desk
TO be paid to witness upon the event of
verdict And such indeed was the unreported
case mentionsl by the Judge as having occur
red before Baron Adams, at Shrewsbury, where
the Indictment charged an attempt to suborn
one to commit perjury.
These were the cases upon which Higgins case
was ruled, ,and no doubt they were ample autho-
rity for the point ruled there, but do they sus-
tain or attempt to sustain the obuer dict1n, that
merely melting another to commit misdemea-
nor is indictable? That depends upon another
question, whether there is any distinction in
law and reason between an attempt to commit q
crime, and the melting or soliciting of another
TO commit a crime?
Long before any of the above mentioned cases
were ruled, 1t had been decided in Peirson's
case, Salkeld 382 that one may be indicted
Tor keeping bawdy house, but bare solicita-
tion of chastity is not indictable and this had
passed into the text of Hawkins, cap. "a, and
perhaps of other writer's on criminal law. Here
the distinction between attempt and solicitation
is sharply drawn. Keeping a bawdy house is
an organized temptation to adultery, and pre-
paration of all facilities for the contamination
of the crime. 1t is an attempt, deliberate
effort, to promote the crime of the most unquali-
fed significance; but so many equiVocal words
looks, and gestures might be constrained into
solicitation, that it would be difficult to define
the crime. What expressions of the face or
double entendres of the tongue are to be adj
judged solicitations? What freedoms of man
ners amount to this crime? Is every cyprian
who mods and winks at the married men she
meets on the sidewalks ind ctable for soliciting
to adultery? Aud could the law safely under
take to decide what recognitions in the street
were chaste and what were lewd? 1t would be
a dangerous and difficult rule of criminal law
so administer.
When an act is done which uneuuiyocally
tends to crime, the law can lay hold of it, and
punish it either as a consummated crime, or an
attempt at crime. AS, for instance the renting
OF a house Tor purposes of prostitution, as in
the Commonwealth vs.. Harrington, Pickering
may be called an overt act, it seems unreason-
able that the law should be required TO detect
and punish the criminal intent. This Court
said so with great emphasis in the case of Shan
non and Nugent VS.. Commonwealth, H., 1926
when 1t was held that conspiracy between
man and woman to commit an adultery was not
indictable Conspiracy to commit adultery looks
much more criminal than unsuccessful solicta-
t1on. In Regina VS.. Martin, 8 Car. q Payne
2l6, Justice Patterson hit the distinction when
he said, at is perfectly clear that every attempt
not every intention, to commit a misdemeanor is
misdemeanoT.n To the same effect are the
cases collected in Wharton's Grim. Law, 1873,
which have oeen decided under the statutes
that exist in several States for the punishment
oil attempts 10 commit crime.
The attempt can only be made by an actual
Intellectual deed done in pursuance of and fur
therance of the design to commit the offense I
would have supposed that the case of Rex VS.
Butler, Gar. d Payne, 1858, would have fallen
within this rule, and yet 1t was held there that
count was not good, although it was clearly
proved that the defendant did solicit by tic
most overt and almost forcible acts the
plaintiff TO commit adultery.% This was
soliciting and persuading with overt acts that
clearly manifested the guilty INTENT and il soli-
citation with such indubtabe acts be not IN
dlctable, 1t is quite necessary to conclude that
mere solicitation, without any overt acts, is not
indictable. 1t lis easy to say that solicitation is an
attempt but O study of the cases will show that
every case of attempt has included something
more than mere solicitation, and the slightest
reflection will persuade any observant man that
a rule oflaw which should make mere soltcta-
non to fornieation or adultery indictable, would
Oe an impracticable rule-one that, in the
Present usages and manners of society would
leau 70 great abuses and expressions The
i1ltola,hly OF Inc law cannot undertake to regu-
1a.s tne thoughts and intents of the heart. The
oest II can do is to punish open acts of leWdness
ana repress indecent assaults For the rest it