246 N.Y. 334, 158 N.E. 888, 55 A.L.R. 711

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

CHARLES Rlzzo, Appellant, Impleaded with Others.

Court of Appeals of New York.

Argued October 17, 1927.

Decided November 22, 1927.

Crimes -- attempt to commit robbery -- construction of section 2 of Penal Law defining attempt to commit crime defendants who planned intended robbery and started to look for victim but never reached him improperly convicted of attempt to commit robbery.

1. In construing section 2 of the Penal Law, providing that an act done with intent to commit a. crime, and tending but failing to effect its commission, is an attempt to commit that crime, the law has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference.

2. Defendants, therefore, who had planned and started in an automobile to commit a robbery but were arrested before they had found or reached the presence of the person they intended to rob, were not guilty of the crime of attempt to commit robbery in the first degree, and their conviction for that crime was improper. It cannot be said that their acts came so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference.

People v. Rizzo, 221 App. Div. 353, reversed.

(Argued October 17, 1927; decided November 22, 1927.)

APPEAL, by permission, from a, judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Bronx County Court entered upon a verdict convicting the defendant of the crime of attempted robbery in the first degree.

James F. Donnelly, Mark Eisner and Merwin Lewis for appellant. The evidence failed to establish the crime. John E. McGeehan, District Attorney (George B. De Luca, I. J. P. Adlerman and Herman J. Fleiderblum of counsel), for respondent. The evidence was sufficient to establish an attempted robbery. (People v. Gardner, 144 N. Y. 119; People v. Spolasco, 33 Misc. Rep.22; People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122; Commonwealth v. Peaslee, 177 Mass. 267; State v. Hurley, 64 Atl. Rep. 78; People v. Stiles, 75 Cal. 570; U. S. v. Stephens, 12 Fed. Rep. 52; People V. Bush, 4 Hill, 133; McDermott v. People, 5 Park. Cr. Rep. 102; People v. Lawton, 56 Barb. 126; People v. O’C0nnell, 60 Hun, 109.)

CRANE, J.

The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide­-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of at crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree and sentenced to State’s prison. There is no. doubt that he had the intention to commit robbery if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, Anthony Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a, payroll valued at about $31,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. . The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all- four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped no one had been pointed out or identified by Rizzo. The four `men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.

Does this constitute the crime of an attempt to commit robbery in the first degree? The Penal Law, section 2, prescribes, An act, done with intent to commit a crime, and tending but failing to effect its commission, is "an attempt to commit that crime". The word tending is very indefinite. It is perfectly evident that there will arise differences of opinion as to whether an act in a, given case is one tending. to commit a crime. Tending means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency towards its accomplishment. The procuring of the automobile, searching the streets looking for the desired victim, were in reality acts tending toward the commission of the proposed crime. The law, however, has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and, therefore, considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would, have been committed but for timely interference." The cases which have been before the courts express this idea in different language, but the idea remains the same. The act or acts must come or advance very near to the accomplishment of the intended crime. In People Mills (178 N. Y. 274,284) it was said: “Felonious intent alone is not enough, but there must be an overt: act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.” In Hyde V. U. S. (225 U. S. 347) it was stated that the act amounts to an attempt when it is so near to the result that the danger, of success is very great. There must be dangerous proximity to success.” Halsbury in his Laws of England” (Vol. IX, p. 259) says: “An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence.” Commonwealth V. Peaslee (177 Mass. 267) refers to the acts constituting an attempt as coming very near to the accomplishment of the crime.

The method of committing or attempting crime varies in each case so that the difficulty, if any, is not with this rule of law regarding an attempt, which is well understood, but with its application to the facts. As I have said before, minds differ over proximity and the nearness of the approach. (People V. Collins, 234 N. Y. 355; People V. Sobieskoda, 235 N. Y. 411; People V. Werblow, 241 N.Y. 55.)

How shall we apply this rule of immediate nearness to this case? The defendants were looking fort the payroll man to rob him of his money. This is the charge -in the indictment. Robbery is defined in section 2120 of the Penal Law as the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person; and it is made robbery in the first degree by section 2124 when committed by a person aided by accomplices actually present. To constitute the crime of- robbery the money must have been taken from Rao by means of force or violence, or through fear. The crime of attempt to commit robbery was committed if these defendants did any act tending to the commission of this robbery. Did the acts above describe come dangerously near to the taking of Rao’s property? Did the acts come so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference? Rao was not found the defendants were still looking for him; no attempt to rob him could be made, at least until he came in sight; he was not in the building at One Hundred and Eightieth street and Morris Park avenue. There was no man there with the payroll for the United Lathing Company whom these defendants could rob. Apparently no money had been drawn from the bank for the payroll by anybody at the time of the arrest. In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an attempt to commit murder if he armed himself and started out to find the person whom he had planned to kill but could not him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob. (People v. Sullivan, 173 N. Y. 122, 135.)

For these reasons, the judgment of conviction of this defendant, appellant, must be reversed and a new trial granted.
A very strange situation has arisen in this case.. I called attention to the four defendants who were convicted of this crime of an attempt to commit robbery in the first degree. They were all tried together upon the same, evidence, and jointly convicted, and all sentenced to State’s prison for varying terms. Rizzo was the only` one of the four to appeal to the Appellate Division and to this court. His conviction was affirmed by the Appellate Division by a divided court, two of the justices dissenting, and we have now he1d that he was not guilty of the crime charged. If he were not guilty, neither were the other three. As the others, however, did not appeal, there is no remedy for them through the court; their judgments stand, and they must serve their sentences. This of course is a situation which must in all fairness be met in some way. Two of these men were guilty of the crime of carrying weapons, pistols, contrary to law, for which they could be convicted. Two of them, John Thomasello and Thomas Milo, had also been previously convicted, which may have had something to do with their neglect to appeal. However, the law would fail in its function and its purpose if it permitted these three men whoever or whatever they are to serve a sentence for a crime which the courts subsequently found and declared had not been committed. We, therefore, suggest to the district attorney of Bronx county that he bring the cases of these three men to the attention of the Governor to be dealt with as to him seems proper in the light of this opinion.

The judgment of the Appellate Division and that of the County Court should be reversed and a new trial ordered.

KELLOGG and O’BR1EN, JJ., concur.

Judgment accordingly.

319 Mo 1222
6 S.W. (2d) 609

THE STATE
v.
CARL B DAVIS, Appellant

Court en Banc
May 18, 1928.

[1226] The jury returned a verdict fixing his punishment at imprisonment in the penitentiary for a term of eight years, which the trial court reduced to five years, sentencing him to that term. Defendant duly appealed from the judgment entered accordingly.

On the hearing before us defendant accepted the facts as outlined by the Attorney-General in his brief, as a true recital of the evidence adduced. The evidence submitted on the part of the State warrants the finding that defendant and Alberdina Lourie resided in Kansas City. They were seemingly infatuated with each other, planning and arranging to have Edmon Lourie, the husband of AIberdina, killed, so that they could obtain the insurance on his life; aggregating sixty thousand dollars, as well as cohabit. Edmon Lourie was absent from home the greater part of the time, returning at intervals of two or: three weeks In furtherance of their plan defendant, acting for himself and Alberdina, arranged to have one Earl Leverton obtain for them the services of an ex-convict to murder Edmon Lourie for hire. Leverton, instead of procuring the services of an ex-convict for that purpose, disclosed the plot to Joel L. Dill, a member of the Kansas City police force, who agreed to pose as an ex-convict to that end. Several meetings were had between defendant, Leverton and Dill, defendant stating that he and Alberdina were in love and desired Edmon Lourie killed. He agreed to pay for the execution of the plot. Defendant outlined, his plan, offering Dill the sum of six hundred dollars, with the further agreement that AIberdina, who was to be with her husband at the time of the contemplated, assault; would wear diamonds of the value of three thousand dollars. He further arranged for Alberdina and Dill to see each other, that each might recognize the other on sight. Defendant, Dill and Leverton during January and the early part of February, 1926, held prearranged conferences, on the subject. Prior to February 11, 1926, defendant arranged for Dill to go to Chicago to kill Edmon Lourie there, defendant making and giving Dill a map or drawing showing where Lourie, could be found, as well as two photographs of him. The arrangements contemplated that if Dill was unable to locate Lourie, Alberdina would go to Chicago to aid him. The trip to Chicago was to be made about February twelfth. However, Edmon Lourie telegraphed Alberdina  that he would return to Kansas City on February 13, 1926, defendant thereupon notifying Leverton, who in turn communicated the fact to Dill. Defendant paid Dill six hundred dollars, advising him that Alberdina would persuade Edmon to accompany her to a place of amusement and that she planned to leave their home at eight o'clock P. M. on February 13, 1926. It was further planned that Alberdina was to carry the diamonds on her person, and that Dill was to shoot Lourie either as they left their home or as they returned, and that Alber[1227] dina was to be mussed up and the diamonds taken from her so that it might appear the result of a robbery. Alberdina was to appear to faint, giving Dill time to bake his escape. However, on the night of February 13, 1926, Dill, accompanied by three other police officers, proceeded about eight o 'clock P. M. to the home of Edmon Lourie as arranged. Edmon and Alberdina Lourie were there found dressed and ready to leave, with the diamonds on her person.  As Dill and the officers entered the room; she turned her face to the wall as planned.  Two officers took charge of Edmon and Alberdina,  Dill and the other officer going to the home of defendant, where they arrested him. The defendant had previously informed Dill that he would remain at home in order to have an alibi.

Upon his arrest defendant made and signed a confession in which he stated that he and Alberdina planned to have Edmon Lourie killed. In pursuance to the plan he met Dill, to whom he assumed to be an ex-convict and the subject of hire for the purpose intended. The day before the contemplated murder he gave Dill two hundred dollars, and four hundred dollars the day the murder was to be consummated, together with a picture of Edmon Lourie.  It was arranged that Dill was to go to Chicago to kill Lourie. Lourie, however, unexepectedly arranged to go home, notifying Alberdina of his intention by telegram. Thereupon Alberdina informed defendant of the fact, whereupon he notified Dill, resulting that the scene of the contemplated murder was changed to Lourie's home in Kansas City. The arrangements contemplated that Alberdina was to accompany Lourie that night to a picture show, and Dill was to stage a hold-up and kill Lourie. Alberdina agreed to remove the diamond rings from her fingers, giving them to Dill, and he was to retain them as part payment for the murder of Lourie. Lourie masqueraded under different names, among them Lourie, Frank, Payne, and Edmonds, Alberdina telling defendant that she thought  he was a master mind among criminals. The confession was made o the night of February 13, 1926. The evidence establishes that all of the acts complained of occurred in Kansas City, Jackson County, Missouri, during January and February, 1923.

The evidence on the part of defendant tends to establish that defendant was urged to agree to the arrangement by Dill and Leverton, but that after paying the money he abandoned the crime before ' an overt act was committed. There was also testimony that Alberdina, the co-conspirator, abandoned the plot, which abandonment was communicated to Dill and defendant. Defendant was addicted to; drink and had been an inmate of a sanatorium. It was asserted that all these facts were known to Dill and Leverton, who purchased and gave him liquor while persuading him to continue the plot. Such other facts as we find pertinent, if any, will later be noted.

[1228] Section 3683, Revised Statutes 1919, upon; which the indictment and prosecution are based, reads: "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, 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." The remaining portion of the section sets forth the punishment prescribed, which it is unnecessary to recite.

The sufficiency of the evidence to sustain the conviction is raised. The defining of an attempt to commit a crime and the ascertaining of its essential elements is necessary in the consideration of its essential elements is necessary in the consideration of the question. 16 Corpus Juris, page 112, in defining an attempt, says: “An attempt to commit a crime 'may be defined as an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to  consummate, all the elements of the substantive crime, so that, if not prevented, it would have resulted in the full consummation of the intended crime.” The elements of an attempt are stated in 16 Corpus Juris, page 113, thus: “An attempt to commit a crime consists of three elements: (1) The intention to commit, the crime; (2) performance of some  act  toward  the commission  of the crime; and (3) the failure to consummate its commission."

The proof adduced advises us that the only debatable question is the presence of sufficient facts to demonstrate the second element. The record develops the presence of the intent to commit  the crime and the failure to consummate its commission. We therefore dismiss the first and third elements of an attempt from further consideration. However, as there must be coincidence as to every element of the offense, the lack of one essential element demonstrates a failure to commit the crime of attempted murder. Our sole inquiry then relates to the performance of some act upon the part of defendant toward the commission of the crime.

The physical overt act, which, with intent and failure to consummate, brings the crime of attempt into existence, is distinguishable from solicitation and preparation. An attempt to commit a crime involves an act on the part of the defendant moving directly toward the commission of the offense. With these concepts in mind we proceed to review the solicitations and preparations by defendant to murder Lourie as constituting an overt act.

In State v. Hayes, 78 Mo. 307, this court through PHILIPS, C., said: “It is the recognized law of this country that the solicitation of another to commit a crime is an act toward the commission." How [1229] ever, the proof in the above case developed in addition to solicitations an act on the part of the accused extending beyond solicitation or preparation, that of saturating  a portion of  the floor with coal oil as well as, the furnishing of plans and an oil can. Conceding that the court reached the proper result in, that case, concerning which it is unnecessary to express an opinion, the basic facts there shown extend far beyond the facts here developed. While a few of the courts have treated solicitation to commit a crime as an attempt, the great weight of authority warrants the assertion that mere solicitation, unaccompanied by, an act moving directly toward the commission  of the intended crime, is not an overt act constituting an element of the crime of attempt. Solicitation of itself is a distinct offense when declared so by law. [16 C. J. 118; 8 R. C. L. 277.] Therefore, in conformity with the weight of authority, we hold that, merely soliciting one to commit a crime does not constitute an attempt.

The State contends that the arrangement of a plan for the accomplishment of the murder of Lourie and the selecting and hiring of the means or instrumentality by which the murder was to be consummated were demonstrated. We take it that the State means by the foregoing declarations that overt acts were shown. To that we do not agree. The evidence goes no further than developing a verbal arrangement with Dill, the selection of Dill as the one to kill Lourie, the delivery of a certain drawing and two photographs of Lourie to Dill and the payment of a portion of the agreed consideration. These things were mere acts of preparation failing to lead directly or proximately to the consummation of the intended crime. In this regard we have found no authority which holds that preparations constitute an overt act.

The distinguishment between the overt act and preparation is stated by FIELDs, C. J., in People v. Murray, 14 Cal. 159, reading "Between preparation for, the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.”

In Reg. v. Taylor, 1 Fost. &. F. 512, the court say: "The act to constitute a criminal attempt must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner in such, circumstances that he has the power of carrying ,his intent  into execution.”

The plans or arrangements amounted to nothing more than mere preparation. The contract of hiring entered into between defendant and Dill also fails to extend beyond mere preparation. In regard to the hiring the trial court instructed the jury that the payment of [1230] money by defendant to Dill to commit the intended crime did not constitute such an overt act as was tantamount to an attempt. The ruling of the court we think was right, for the payment of money was not an act moving directly toward the consummation of the intended crime. The only case we have found involving the actual payment of money to another as the consideration for the proposed crime is Reg. v Williams 1 Car. & K. 589, 1 Den. C. C. 39. In that case the facts develop the actual delivery of money to the agent who straight-way went with the poison given him for that purpose to the home of the intended victims. However, on his arrival he disclosed to them the plan to kill, handing over the poison. The fifteen judges who considered the case on appeal held the conviction erroneous.

The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime. He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. [Ex: parte Floyd, 95 Pac. 175; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, 19 Am. St. 891, Stabler v. Commonwealth, 95 Pa. St. 318, 40 Am. Rep. 653; State v. Rider,  90 Mo. 54; State v. Baller, 26 W. Va. 90; People v. Youngs, 122 Mich. 292; McDade v. People, 29 Mich. 50; State v. Fraker, 148 Mo. 143, 49 S.W. 1017; State v. Harney, 101 Mo. 470, 14 S. W. 657.]

Whether it is necessary to make an actual assault before the crime of attempt can be said to come into existence, we need not decide, for the solicitations and preparations upon the part of defendant were not equivalent to an overt act which must take place before the crime of attempt comes into existence. In addition to the case of State v. Hayes, 78 Mo. 307, we have considered the case of State v. Mitchell, 170 Mo. 633; 71 S. W. 175, but do not think it is apposite to the facts here developed, for in that case the intended victim was absent from the bed where he usually slept when defendant, with intent to harm him, fired through the window into the pillow of the bed. In that case the proof shows an overt act which develops the crime.

Our statute, Section 3683, Revised Statutes 1919, in proscribing an attempt to commit an offense prohibited by law, is to be interpreted as providing that the doing of any act toward the commission of such offense shall constitute an attempt.  The statute we think follows and coincides with common law in that respect. There must be an overt act before an attempt exists and the overt act, must move direct [1231] ly in consummation of the crime, in other words, toward the commission of the offense. People v. Youngs, 122 Mich. 292, supports this ruling.

It follows from what we have said that the judgment must be reversed and the defendant discharged. It is so ordered. Higbee and Henwood, CC., concur.

PER CURIUM:—This cause coming into Court en Banc, the foregoing opinion of DAVIS, C., in Division Two, is adopted as the decision of court en Banc. Graves, Atwood and Ragland, JJ., concur; White, J., concurs in a separate opinion, in which Blair and Gantt, J.J., concur; Walker, C. J. dissents in separate opinion.

WHITE, J., (concurring).— I concur the conclusion reached in  the opinion, of DAVIS,C., and in the reasoning by which he reaches it. However, a principle of law, not referred to in the argument or the briefs, I think is the decisive of the case.

Defendant was charged with an attempt to commit murder as accessory before the fact, under Section 3687, Revised Statues 1919.He did not attempt to commit the crime himself, but hired Dill to do it. He might have been charged directly, but the proof would have been the same.

I. 

The principle of the law is this: Where one hires or incites another person to do a criminal act, he is responsible only for what the other person does. The principle thus applicable is thus stated in 16 Corpus Juris, at page 134:

“There are several things that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense; (2) that he was not present when the offense was committed (3) that the principle committed the crime."

And again (pp. 134-5):  

"To constitute one an accessory before the fact, it is of course essential that the felony shall have been in fact committed by the person whom the accused is alleged to have incited or counseled, etc., and under such circumstances as to render him guilty. In other words, although the offense of the accessory is distinct from that of the principal, yet it is in judgment of law connected with it and cannot subsist without someone being guilty as principal. This principle, which is embodied in the maxim, Accessorius sequitur naturam sui principalis, appears at every point in the common-law rules regulating the indictment and trial of accessories."

A few cases illustrative of that doctrine would show the extent to which it is applied. Ray v. State, 102 Ark. 594, is where the defendant [1232] was charged as accessory before the fact in commission of murder. The court said, at page 596:

“The accessory cannot be guilty if the principal is not guilty; and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. . . .

"The guilt of the accessory before the fact is based and dependent upon the guilt of the principal; and if the principal has committed no crime, then the accessory is free from guilt. To charge an offense against the accessory, it is necessary to also charge an offense against the principal" (citing Wharton on Criminal Law, and other authorities).

In Harper v. State of Mississippi, 83 Miss. 402, defendant was charged with aiding and abetting a crime of murder. An instruction authorized the finding of defendant guilty if he was present at the time of the aiding and abetting the principal in killing the deceased. The court said:

"The error in this instruction is glaring and manifest.  . . . It omits all mention of the intention, malice or premeditation of McCormick [the principal] in killing deceased.”

The court goes on to reason that the person who actually did the killing might have acted in self-defense or killed by accident, or been guilty of manslaughter; that although the defendant, accomplice, aided and abetted the act, he could not be guilty unless the principal was guilty to the same extent.

In the case of Stoops v. Commonwealth, 10 Am. Dec. (Pa.) 482, the plaintiffs in error were indicted as accessories before the fact for the crime of burglary. The court said, at page 483:

"The offense of the accessory, though different from that of the principal, though different from that of the principal, is yet, in judgment of law, connected with it, and cannot subsist without it.”

In Gene Hall v. State, 52 Tex. Crim. 250, defendant was charged as being an accomplice in the crime of burglary. The court said (l. c. 253):

"It is not a violation of the law with reference to the conviction of an accomplice in that he simply furnished the means, advised or aided; there would be no offense  unless  the offense in contemplation was subsequently committed.”

In Brooks v. State, 103 Ga. 50, one was charged as accessory before the fact with murder. The court said: (l. c. 52):

“It is therefore necessary, before one can be found guilty as accessory before the fact, that someone must not only be charged with having perpetrated the crime, but the guilt of that person must be established.”

In State v. Hickam, 95 Mo. 322, four defendants were jointly charged with an attempt to kill, and were convicted, Hickam as [1233] principal, and the other three as aiders and abettors. The judgment was reversed. The court said (l. c. 332):

"Neither of these defendants (other than Hickam), however, could properly be convicted of the offense charged in the indictment, unless the jury found, either that there was a common purpose in the minds of Sam Hickam and such defendant to kill Davenport, and the shooting was done in the attempted accomplishment of such common purpose, or that such shooting was done by Sam Hickam in the attempted accomplishment of a purpose in his mind to kill Davenport of which such defendant had knowledge, and that she did some act in furtherance of the attempted accomplishment of such purpose, and a proper instruction on this branch of the case ought to have been given.”

The part I put in italics states the principle applicable. One cannot be convicted as aider and abettor without a guilty principal. In State v. Baker, 297 Mo. 249, the defendant was charged with secretly burying a child to conceal the birth thereof, contrary to statute. The court said (l. c. 252):

“If appellant be punished under the facts in this case, it must be because her offense is within the scope of Section 3687, Revised Statutes 1919, as accessory before the fact. . . . To convict one as an accessory, you must have a principal; conversely, without principal there is no accessory.

That was concurred in by all of the judges of Division Two.

The case of State v. Hayes, 105 Mo. 76, is where the defendant proposed to one Hill the burglary of a store house. Hill consented, but notified the authorities. The two went together to the building, defendant raised the window and assisted Hill in getting into the building. Hill handed out a piece of bacon. This court said (l. c. 80):

“The trial court told the jury in this instruction that defendant was guilty of burglary; if he, with a felonious intent, assisted and aided Hill to enter the building, notwithstanding Hill himself may have had no such intent. In this we think the court erred. One cannot read this record without being convinced beyond a reasonable doubt that Hill did not enter the warehouse with intent to steal.”

And at page 81:

“The act of Hill, however, was by the instruction of the court imputed to defendant. This act, according to the theory of the instructions, so far as Hill was concerned, was not a criminal act, but when it was imputed to defendant it became criminal, because of the latter’s felonious intent. This would probably be true if Hill had acted under the control and compulsion of defendant, and as his passive and submissive agent.  But he was not a passive agent in this transaction. He was an active one.  He acted of his own volition.  He [319 Mo. Sup.78] [1234] did not raise the window and enter the building with intent to commit crime, but simply to entrap defendant in the commission of crime, and have him captured.

Quoting from a Kansas case, the court added:

“’The act of a detective may, perhaps, be not imputable to the defendant, as there is want of community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime.’”

The court then cites authorities and reasons at length upon the principle, too long to quote here.

The effect of the above authorities is that, in order to convict one  as accessory before the fact of any crime, the criminal intent must be in the minds of both the accessory and the principal, and followed' by the overt act in the commission or attempted commission of the crime.

II.

But it is argued that the acts done by the defendant Davis, in this case, were of themselves an attempt to commit murder, independent of any act or intent on the part of Dill, his supposed agent.

Counsel for the State in his argument suggests that it is an indictable offense at common law to counsel and solicit another to commit a felony, and that, under the statute, becomes an attempt to commit the felony. True enough that is an, offense, at common law. [16 C. J. 117.] It is also an offense at common law to attempt to commit a crime. [16 C. J. 111-113.] Likewise it is an offense at common law to become accessory before the fact to the commission of a crime. [16 C. J. 119.] The common law recognizes these three distinct offenses.  The Attorney-General cites the case of Commonwealth v. Randolph, 146 Pa. St. 83, in support of his position. The defendant in that case was convicted of soliciting another to commit a crime at all.  That was charged as a distinct offense in itself. The court cites numerous cases in support of the position that soliciting another to commit a crime at all. The opinion cites, among others, the case of Stabler v. Commonwealth, 95 Pa. St. 318, reported in 40 Am. Rep. 653. The indictment there was in six counts, on two of which defendant was tried, the first and the sixth. The first charged a felonious attempt to poison one Waring with intent to commit the crime of murder.  The sixth charged that the defendant wickedly solicited one Neyer to administer the poison to Waring. The evidence shows that the defendant solicited Neyer to put poison in Waring's spring, so that the latter and his family would be poisoned, and offered him a reward for so doing.  He handed Neyer the poison and directed him how to place it. Neyer, however, refused to carry out the scheme.  The defendant was convicted on [1235] both counts. On appeal it was held that he was not guilty on the first count of attempt to murder, but he was rightly convicted on the sixth count for soliciting another to commit the murder. The court says, in speaking of the statute on the subject (l. c. 654):

“The act recognized and distinguished between intent and attempt. The former indicates the purpose existing in the mind, and the latter an act to be committed.”

And further:

“In the present case it 'is contended that putting the poison into the pocket of the witness was an act sufficient to constitute the attempt, if Stabler expected and believed it would be used as he had requested.”

And further commenting on the facts, the court said (l. c. 655):

"If, however, it was actually delivered with that intent, we do not think it constituted an attempt to murder under the eighty-second section of the Act of March 31, 1860.”

That section, similar to ours, defined an attempt to commit a crime. The court then cites cases showing the distinction between an attempt to commit a crime and soliciting another to do it. Thus, the Pennsylvania courts, upon which the State relies, destroy the State’s position.

Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. 891, is where the accused, charged with attempt to murder, purchased poison and solicited one L to put it in the “Old Man’s coffee," the old man being the intended victim. L had no intention to administer the poison.  It was held that it was not an attempt to murder; that mere preparation did not constitute an attempt. The court said (1. c. 896):

"'Merely soliciting someone to do an act is an attempt to do that act’ (citing an old case).

“‘In that case the agent was actually given money for his services, and immediately proceeded with the poison to the house of the intended victim; but upon his arrival there, he gave up the poison to them, and told them all about it. The prisoners were convicted but at the ensuing term the case was considered by the fifteen judges who held the conviction wrong.’” 

And further.

“Here, undoubtedly, there was an intent to commit murder, but the acts done do not amount to anything more than the mere arrangement of the proposed measures for its commission."

That case and this are as like as two peas.

In the case of Hall v. State, 52 Tex. Crim. l. c. 253, the appellant was charged as an accomplice in a burglary, and the court said:

“It is not a violation of the law with reference to the conviction of an accomplice that he simply furnish the means, advised and aided; it would be no offense unless the offense in contemplation was subsequently committed."

[1236] Not a case has been cited, nor can one be found, I think, which would support the conviction in this case.

State v. Mitchell, 170 Mo. 633, is cited as one in point. There the defendant actually fired the shot with intent to kill, at the spot where he thought the victim lay. That was an overt act in pursuance of the attempt by the defendant himself.

In the argument we were directed to the heinous nature of the crime, where one, who is too cowardly to commit the act himself, employs someone else to do it. That is a serious offense, and no doubt many a crime is committed by a hired agent, but the master minds in the criminal world from whom that danger comes never make mistakes such as Davis made. They know their men and they employ real killers. Davis was not only a coward, but a fool. The entire plan and preparation showed the want of judgment and discretion. He has no criminal record, and he is not a dangerous criminal. If every person who, at some time in his or her life, entertained a criminal impulse, was put in jail, a small minority of us would be at large.

It is said further that the defendant in this case did all he could do in furtherance of the plan to have this murder committed. This is incorrect. He failed of many things he might have done—things, absolutely necessary for the commission of the crime or its attempt. He might have used the weapon himself. He might have used sense enough to solicit a real criminal to commit the deed. He might have taken precaution to find out who the man was that he employed for the purpose. But blindly he picked up the! first man who offered his services.

The upshot of the matter is this: The defendant had no intention to kill; that is, to commit the murder himself. Dill had no intention to kill. There can be no crime without a criminal intent, and neither the defendant nor his agent entertained an intent to do the deed. The defendant intended that Dill should do it, but that intent cannot be connected with an act of another which was neither done nor contemplated by the other. The intent to commit the crime must be in the mind of the man who is to commit the crime.

Of course, the defendant was guilty of soliciting another to commit the murder; a serious crime, but he was not charged with that nor convicted of that offense. We must determine eases upon the law, as it is written, and as it has been adjudged for generations.

The judgment is properly reversed.

WALKER, C. J., (dissenting).—The charge against the defendant was based upon the following statute,  so far as the same is definitory of the offense: “Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any [1237] act toward the commission of such offense, 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:” (this is followed by the punishment prescribed, part of Section 3683, Revised Statutes 1919).

"An attempt,” as this court said in construing this statute, "is a deliberate crime which is begun, but through circumstances independent of the will the action is left unfinished. It is such an intentional, preliminary guilty act as will apparently result, in the usual course of natural events, if hot hindered by causes outside of the actor's will, in a deliberate crime. If the means are adapted to the end and there is an apparent physical ability to complete the attempt on the part of the attempter,  then the case may be fairly made out." [State v. Bobbitt, 228 Mo. l. c. 264; State v. Mitchell, 170 Mo. 633; State v. Montgomery, 63 Mo. l. c. 298.] The presence of the essentials necessary to constitute the crime are, threefold: (1) the intent; (2) the doing of acts toward the commission of the crime; and (3) the failure of their consummation. [State v. Fraker, 148 Mo. l. c. 162.] An intent may be inferred from all of the facts and circumstances in a given case. This rule finds its genesis in the fact that intent involves the purpose with which an act is done and requires an exercise of the will. [State v. Santino, 186 S. W. (Mo.) 976.] Intent, therefore, may be inferred from all of the facts and circumstances in evidence; and a sane man may be held to intend the usual and necessary consequences of his acts; and when he acts in a mariner so as to produce a result prohibited by law, his thus acting may be regarded as proof of his unlawful intent in the absence of evidence to the contrary. Thus the first essential may be said to be established.

In determining whether there is proof of the crime we are authorized in considering the defendant's conduct throughout, from his first proven effort to the moment of his failure—due to no cause of his.

Proof of preparations alone to commit the crime will not, of course, constitute a violation of our statute. Its language renders the distinction clear between mere preparations and acts in attempts to commit crime. The first are out introductory and do not form a part of the offense; the second are constitutive and when shown to have been committed render the accused amenable to the statute. The language of the latter, after prohibiting attempts to commit a crime generally, adds: “or to do any act toward the commission of an offense prohibited by law but shall fail in the perpetration thereof, and shall be prevented in the execution of the same upon conviction, shall be punished,: etc.

[1238] Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.  He solicited the detective, Dill, to do the killing. In so doing he was guilty of a constitutive act within the terms of the statute. Thus defined the act became overt. [People v. Mills, 178 N.Y. 274, 67, L. R. A. 131.] Despite the contrariety of rulings elsewhere it is the recognized law in this State that the solicitation of another to commit a felony is an act toward its commission, without any other act being done, to warrant a conviction. [State v. Hayes, 78 Mo. l. c. 316.] The evil intent in the mind of the defendant—the existence of which is shown by all of his acts, imparts to the solicitations their criminality. Incidentally it may be said in this connection, that the party solicited may not have acquiesced or intended to share in the crime will not exonerate the defendant. [State v. Hayes, supra.]

I find that our statute was copied from that of New York, where it was held in People v. Bush, 4 Hill, 133, where an accused solicited another to commit the crime of arson and gave him some material for the purpose, that this was sufficient to sustain a conviction, although the person solicited did not intend to commit the offense. A like ruling was made by the Supreme Court of Georgia, whose statute was also modeled upon that of New York, in the case of Griffin v. State, 26 Ga. 493, in which it was said, citing with approval the New York case of People v. Bush, supra, that the fact that the person hired had no. intention to commit the crime made no difference with the criminality of the accused. The intent of the hired could not lessen the crime of the hirer.

In Commonwealth v. Jacobs, 9 Allen (Mass.), 274, Judge GRAY said: "Whenever the law makes one step toward the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking the step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some act unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.”  In the Jacobs case the defendant was charged with soliciting another to leave the state and enlist elsewhere in military service when the person solicited was not fit to become a soldier.

Recurring to rulings in this jurisdiction construing this statute (Sec. 3683), we find in State v. Sullivan, 110, Mo. App. l. c. 87, a very terse discussion by ELLISON, J., of the construction to be given to solicitations in a case as at bar.  It there said:

“It has been at times suggested that to merely: solicit the unlawful offense was not doing an act, and that the law could not notice a mere [1239] desire unaccompanied by an act. But, manifestly, soliciting is an act. It is a step in the direction of an offense. [State v. Hayes, 78 Mo. l. c. 316; King v. Higgins, 2 East. 5; State v. Avery, 7 Conn. 267; 1 Bishop's Crim. Law, sec. 767.] And so it may, also be said that some of the foregoing cases are for attempts to commit an offense and that they therefore do not apply to a case where there has only been a solicitation; it being contended that a solicitation, is not an attempt to have the offense committed. But it is. For the act of soliciting is an attempt to have the offense committed. Indeed, the case of King v. Higgins, supra, and several others, were cases of solicitation.

“Text-writers have laid down the law that to solicit the commission of an offense was indictable, without noticing any distinction whether the offense solicited was a felony or misdemeanor.  [Bishop on Crim. Law, supra; Wharton on Crim. Law, secs. 179, 1857, 1858; 1 Russell on Crim. Law, 193, 194.] These writers look only to the character of the offense in its evil tendency and not to its technical designation. And so in a case from the Supreme Court of Illinois, much like the present, . . . it was held that, though there was no statute on the subject in that State, yet it was an indictable misdemeanor for an officer to propose to receive a bribe. The court said: ‘According to the well-established principles of the common law, the proposal, to receive the bribe was an act which tended to the prejudice of the community; greatly outraged public decency; was in the highest degree injurious to the public morals; was a gross breach of official duty, and must therefore be regarded as a misdemeanor, for which the party is liable to indictment. It is an offense more serious and corrupting in its tendencies than an ineffectual attempt to bribe. In the one case, the officer spurns the temptation, and maintains his purity and integrity; in the other, he manifests a depravity and dishonesty existing in himself, which, when developed by the proposal take a bribe, if done with a corrupt intent, should be punished; and it would be a slander upon the law to suppose that such conduct cannot be checked by appropriate punishment. [Walsh v. The People, 65 Ill. 58]’”

The proof of defendant’s guilt in the instant case is not limited to solicitations. He and his paramour, the wife of the intended, victim planned and directed with particularity, the time, manner and place of the proposed taking off of her husband. A trip to Chicago was even in contemplation to effect that end when the husband returned home unexpectedly and the scene of the proposed tragedy was shifted to Kansas City. When it was to occur, the defendant had it understood that he was to remain at his home so as to afford a basis for a plea of alibi. There he waited expectantly for, news of the murder. His paramour—but she is not on trial and the vocabulary of scorn and contempt need not be wasted on her connection with the contemplated murder of her husband.

[1240] The chain of proven facts and properly deducible circumstances cannot be otherwise construed than as conclusive of the defendant's guilt. Of what more avail would it have been as proof of his intent or purpose, to have shown that he furnished the detective with the weapon he was to use or the poison or other instrumentality he might employ in committing the murder. The limits of human fancy know no  horizon; but it is difficult to conceive what more the defendant could have done, than he did do, towards the attempt to commit the proposed murder without actually  participating in its commission.

Ample proof of the presence of those essentials required by our rulings, having been adduced to sustain a conviction, the judgment of the trial court should be affirmed.

29 M.J. 679

UNITED STATES

v.

Senior Airman William M. CHURCH, FR United States Air Force.

ACM 27324.

U.S. Air Force Court of Military Review.

Sentence Adjudged 16 Sept. 1988.

Decided 26 Oct. 1989.

Accused, a senior airman in the United States Air Force, Was convicted by general court-martial convened at Grand Forks Air Force Base, North Dakota, Stephen R. Bloss, J., of attempted premeditated murder of his wife, and he appealed. The United States Air Force Court of Military Review, Blommers, J., held that evidence supported conviction, although person whom accused attempted to hire to kill wife was undercover agent and accused argued that his conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder.

Affirmed.

1. Military Justice

There can be no conspiracy when supposed participant merely feigns acquiescence in criminal venture to secure another’s detection and apprehension by proper authorities.

2. Military Justice

Evidence supported accused’s conviction for attempted premeditated murder of his Wife, although person he attempted to hire to kill Wife was undercover agent and it was claimed accused’s conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder; accused obtained services of purported hit man to murder his wife, participated in detailed planning of intended crime, and paid agreed-upon consideration before crime and after he was apprised that crime had occurred. UCMJ, Art. 80, 10 U.S.C.A. § 880; MCM 1984, Pt. IV, H4, subd. c.

3. Military Justice

Variances between attempted murder specification, which alleged that crime occurred at particular Air Force base and alleged dates on or about 25-26 April, and proof of meeting between accused and undercover agent posing as hit man 78 miles from where -base was located and on 22 April, were not fatal variances; companion attempted conspiracy charge that was dismissed alleged offense occurring between 19-22 April at both air base and town in which meeting took place, so accused was not misled so as to affect his ability to adequately prepare for trial and would be fully protected against another prosecution for the same offense.

Appellate Counsel for the Appellant: Colonel Richard F. O'Hair and Major Lynne H. Wetzell.

Appellate Counsel for the United States: Colonel Joe R. Lamport, Lieutenant Colonel Robert E. Giovagnoni and Captain Morris D. Davis.

Before LEWIS, BLOMMERS and KASTL, Appellate Military Judges.

Decision

BLOMMERS, Judge:

[1] Before a general court-martial with members, the appellant, contrary to his pleas, was found guilty of the attempted premeditated murder of his wife in violation of Article 80, UCMJ, 10 U.S.C. 880.^[1] His sentence, as adjudged and approved, extends to a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances; and reduction to airman basic (E-1). The principal issue raised before us is framed by appellate counsel as follows:

WHETHER THE MILITARY JUDGE ERRED IN DENYING TRIAL DEFENSE COUNSEL’S MOTION FOR A FINDING OF NOT GUILTY OF THE CHARGE AND SPECIFICATION OF ATTEMPTED PREMEDITATED MURDER, AS THE EVIDENCE FAILED TO SHOW ANY ACTS ON THE PART OF THE APPELLANT BEYOND MERE PREPARATION, NOR THAT ANY ACT OF THE APPELLANT TENDED TO EFFECT THE COMMISSION OF THE INTENDED OFFENSE.

Simply stated, it is asserted that the evidence is not sufficient to support findings of guilty of attempted murder. We disagree and affirm. Article 66(c), UCMJ, 10 U.S.C. 866(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987).

This case involves contracting out for the commission of a crime. As appellate counsel note, the facts of this case present an issue of first impression for the military appellate courts in applying principles of law relating to “attempt" crimes. The specification in question alleges that the appellant “did, at Grand Forks Air Force Base, North Dakota, from on or about 25 April 1988 to on or about 26 April 1988, attempt to, with premeditation, murder [his wife] by procuring, assisting, and counseling Nicholas J. Karnezis to commit, for payment in United States currency, the premeditated murder of the said [wife]." In order to be found guilty of an attempt, the evidence must establish “a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose.” MCM, Part IV, para. 4c(1) (1984). The act in question must amount to more than mere preparation to commit the offense.^[2] A solicitation to commit an offense in violation of Article 134, UCMJ, 10 U.S.C. 934, on the other hand, is committed if one counsels or advises another to commit an offense with the specific intent that the offense solicited be committed. No overt act directly tending to accomplish the unlawful purpose is required. During oral argument, appellate defense counsel conceded that the appellant is guilty of soliciting another to commit murder, but argued forcefully that he was not guilty of attempted murder because no act beyond mere preparation was proven.^[3] To resolve this matter, it will be necessary to review the evidence of record in some detail.

Facts

The appellant and his wife were married in 1985, and a son was born of this union about a year later. In 1987, they experienced marital difficulties which eventually led to their separation. By an order dated 5 October 1987, the local district court awarded custody of the child to the appellant’s wife, and shortly thereafter she returned with the child to her home in Michigan. The appellant loved his son and desired to regain custody of him, but began to realize it was unlikely he would be able to do so through the courts.

Sometime between Thanksgiving and Christmas of 1987, the appellant, a security policeman, asked Senior Airman Mohon, a former co-worker, if he knew anyone the appellant could hire to kill his wife. Mohon did not take the appellant seriously. Sometime January 1988, Senior Airman Kowalkowski, a co-worker, and the appellant were talking about the appellants, marital difficulties, and the appellant commented that he would be better off if was dead. Shortly thereafter, during another conversation, the appellant asked Kowalkowski if he had any friends from a big city. Kowalkowski did not take the appellant seriously either.

On about 31 March 1988, Airman Meyer, another co-worker, was talking with the appellant in the hallway of their dormitory. The appellant said that since. Meyer was from a big city, he wondered if Meyer knew anybody who could do a job for him. Knowing the appellant’s family situation, Meyer believed the appellant was talking about getting someone to kill his wife so he could regain custody of his son. Meyer replied that he would check around and make some calls, but really did not take the appellant seriously. A couple of days later, he made one call to a friend back in New York in the appellant’s presence. He asked his friend, “Do you know anybody that you could find to eliminate this guy’s wife so he can get custody of his kid?” The appellant gave no indication he had just been kidding around or joking when Meyer asked this question. On another occasion when Meyer was present, the appellant made a rough drawing of the residence where his wife was living and explained how easily someone could gain access to it. On about 6 April, Meyer went with the appellant to the city of Grand Forks to pick up tax returns. During the trip, the appellant said he was expecting an $800.00 refund and implied it could be used to pay for his wife’s killing.

On 7 April 1988, Sergeant Skyberg, a co-worker and friend, received a message that the appellant wanted to talk to him. Skyberg phoned the appellant and asked him what he wanted to talk about. The appellant indicated that the matter was too private to discuss over the phone, and Skyberg arranged to meet the appellant at his dormitory room. After Skyberg arrived, the appellant asked him if he knew anyone “who could . . . [the appellant gestured with his hand, his fingers arranged as if to simulate a gun] his wife.” The appellant indicated that he felt that was the only way he could get custody of his son. He said he was getting out of the service in about a month, and wanted “it” done before he left so he would have a good alibi as to where he was at the time. Skyberg believed the appellant was serious. A few other airmen, including Airman Meyer, entered the room and they changed the subject of conversation. After all had left except Skyberg and Meyer, the conversation about the appellant’s wife was resumed. The appellant talked in more detail about the location of his wife’s home in Michigan, and a hotel close by where someone doing the job could stay. He indicated her house was up for sale, so someone could easily get inside by posing as a prospective buyer. He said he could provide a detailed map of the area, and would be able to raise “a few grand” for the job. The appellant said this was not a spur of the moment thing, but some» thing he had been thinking about for the last few months. Meyer indicated that he had tried to contact someone on the appellant’s behalf. After leaving the appellant’s room, Skyberg and Meyer discussed the matter further and decided to contact the Office of Special Investigations (OSI).

After talking with Skyberg and Meyer the following day, OSI decided to open up an investigation and attempt to place an undercover agent in the role of a hit man. Meyer agreed to assist them by introducing the appellant to the undercover agent. On 15 April 1988, Meyer was instructed to contact the appellant and tell him that his [Meyer’s] friend in New York had found someone to do the job if the appellant was still interested. The appellant indicated he was, and Meyer told him an individual by the name of “Nick” (in reality, Special Agent Nicholas J. Karnezis) would call him on the evening of 19 April. The appellant subsequently borrowed $400.00 from Meyer (money provided by OSI) to help pay the hit man.

Nick called the appellant as planned, and indicated they had some business to discuss. Nick related that he would need a picture of the appellant’s wife, a sketch of the house, and maps of the local area in Michigan. The appellant said he already had the picture and a detailed diagram of the residence, and that he could get the maps. Nick indicated he would need $500.00 up front for expenses. It Was agreed they would meet at the Holiday Inn in Fargo, North Dakota on 22 April 1988 and that the appellant would wear an Ohio State football jacket and carry a Time magazine so Nick could recognize him.

The meeting occurred as planned. After some discussion about his family situation the appellant indicated he wanted his Wife killed. The appellant said he had brought the things Nick had asked for and had $1,100.00 with him, $500.00 for the job, plus $600.00 for air fare. After discussing the location of the appellant’s residence, Nick simulated a phone call to an airline ticket agent, booking a flight to Marquette, Michigan. The appellant provided Nick„With pictures of his Wife and son; a spiral notebook containing a list of people who lived in the house and hours they were away from home, two detailed diagrams of the house and surrounding area, and directions on how to get to the house from the Marquette airport; a Rand-McNally road atlas with two different routes from the airport to the house highlighted; and, a local Marquette area phone book, which included the phone number at his Wife’s home. They discussed the schedules of the residents, the vehicles they drove, Where the dogs were located, closets in the house where guns were kept, and other details of the planned murder. They settled on a total price of $2,100.00 if the job went as easily as the appellant indicated it should. The appellant gave Nick the $1,100.00 he had brought with him. Nick asked for ideas on how the killing should be done, and the appellant said it seemed to him the easiest way was to make it look like a robbery and that his wife got in the way. As to the weapon, he indicated a knife or gun could be used. Nick showed the appellant a .22 caliber semi-automatic pistol, equipped with a silencer, that he had in his brief case. Nick asked the appellant if he had any “special requests” as to how he wanted it done. The appellant replied “one in her head and one in her (using a slang term for a private part of the female anatomy). Nick expressed concern about the appellant’s wife’s grandfather, who also lived in the house and did not work. The appellant indicated there should be no witnesses, and that if the grandfather got in the way Nick should take care of him too. The appellant indicated he wanted the job done while he was at work S0 he would be very visible. He provided Nick with his work and dormitory phone numbers, and Nick said he would be in touch, and for the appellant to expect a call around 8:00 to 8:30

Nick called the appellant from K.I. Sawyer Air Force Base, Michigan (a base located close to Marquette) on 24 April. He told the appellant that his wife had moved, and that the job would cost more, another $500.00, since he would have to locate where she was living. The appellant agreed to pay the additional amount. That evening the appellant asked Airman Meyer to call directory assistance in Michigan for him to find out his wife’s new phone number. Meyer did, and gave the new number to the appellant. (A fair inference is that the appellant obtained the number so he could provide it to Nick if Nick was unable to locate the appellant’s wife on his own.) Nick called again the following day, indicating he had located the appellant’s wife and that the job would be done between then and the following morning. The appellant said that was fine. He indicated he had the other $1,000.00, but that it would take a little longer to come up with the additional $500.00.

On the morning of 26 April, the appellant was notified of his wife’s death by his unit commander. According to Airman Meyer, the appellant told him that everyone was sympathetic and that the appellant put on “a Class A act,” including crying and laying down on the first sergeant’s couch. Later that day, the appellant received a message to meet Nick down in Fargo. He proceeded to the Holiday Inn in Fargo. He told Nick he had received notification of his wife’s death. Nick said: “You mean you got the word already!” And the appellant replied: “You do good work.” Nick showed the appellant a picture of his wife laying on the floor with what appeared to be two bullet wounds, one in her head and another in her neck. The appellant confirmed that it was his Wife. After some further discussion, he gave Nick $1,000.00. At that point Nick identified himself as a government agent and apprehended the appellant. The two meetings between- the appellant and Nick at the Holiday Inn were both video and audio tape recorded (the tapes were admitted in evidence at trial). 

An Attempt or Only a Solicitation?

[2] On the appellant’s behalf, it is forcefully argued that his conduct never passed the threshold from mere preparation (i.e., a solicitation) to an attempt to commit the offense because there was no “dangerous proximity” to success of the planned murder. See Hyde v. United States, 225 U.S. 347, 388, 32 S.Ct. 793, 810, 56 L.Ed. 1114, 1134 (1911) (Justice Holmes dissenting); Perkins, Criminal Law 572 (2d Ed.1969). Since there is little military authority on point, appellate counsel rely principally on state court approaches to this dilemma.^[4] See, e.g., State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981); Hobbs v. State, 548 S.W.2d 884 (Tex.Ct.App.1977); Johnson v. Sheriff Clark County, 91 Nev. 161, 532 P.2d 1037 (1975); Hutchinson v. State, 315 So.2d 546 (Fla.App.1975); People v. Adami, 36 Cal. App.3d 452, 111 Cal.Rptr. 544 (1973); Smith v. State, 279 So.2d 652 (Miss.1973); State v. Miller, 252 A.2d 321 (Me.1969); State v. Laurie, 12 S.W.2d 43 (Mo.1928); State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (1928). In various factual situations involving “contracting out” for crimes, these courts held that the evidence only established mere acts of preparation not leading directly or proximately to consummation of the intended crime.^[5] For example, in Adami the Court concluded that “the contemplated murder would not have resulted in the usual course of natural events since neither the ‘agent’ nor the solicitor [defendant] did any unequivocal overt act which can be said to be a commencement of the commission of the intended crime.” People v. Adami, 111 Ca1.Rptr. at 548.

Typical, and perhaps closest factually to the present appellant’s case, are the companion cases of Davis and Lourie. They involved a plan hatched by two lovers to murder the woman’s husband (Edmon Lourie) so that they could get his life insurance amounting to $66,000.00. The parties resided in Kansas City, Missouri. In furtherance of their plan, Davis engaged a man named Leverton to find an ex­convict who would commit the murder for hire. However, Leverton disclosed the plot to the police. Thereafter, several meetings were held between Davis, Leverton and an undercover police officer, Dill. It was agreed that Dill would kill Mr. Lourie for $600.00 and diamonds valued at about $3,000.00 owned by the Lourie’s. Also, arrangements were made for Dill to meet Mrs. Lourie so they would be able to recognize each other. It was decided that the contemplated assault would occur in Chicago, where Mr. Lourie had gone on business. Davis provided Dill a map showing where Mr. Lourie could be located and two photos of him. If Dill could not locate him, Mrs. Lourie would also travel to Chicago to assist. However, this part of the plan was interrupted when Mr. Lourie returned early from his trip. It was then decided that Mrs. Lourie would persuade her husband to go out for a night on the town, and that they would leave their home at 8:00 p.m. on a certain date. Mrs. Lourie was to have the diamonds on her person so it would appear that robbery was the motive for the crime. She would be “mussed up”, and then faint, permitting Dill time to escape~ On the evening in question, Dill, accompanied by three other police officers, proceeded to the Lourie residence as planned. The Lourie’s were dressed and ready to leave; Mrs. Lourie had the diamonds on her person. Davis, also as planned, was at home in another part of the city in order to have an alibi. Two of the officers entered the residence and took charge of the Lourie S, while Dill and the other officer proceeded to Davis’ residence and arrested him. The Supreme Court of Missouri concluded:

The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime.  He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife, and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. (Citations omitted.)

State v. Davis, 6 S.W.2d at 612. The Court adopted the same rationale in its decision in State.v Laurie. The Court acknowledged that the defendants were guilty of soliciting another to commit murder, a crime not charged. (Apparently under Missouri law that offense is not a lesser included offense to murder or attempted murder.)

Not all authority favors the defense position. A few state courts have upheld attempt convictions in cases involving crimes for hire. See, e.g., Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978); State v. Gay, 4 Wash.App. 834, 486 P.2d 341 (1971); State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954); Stokes v. State, 92 Miss. 415, 46 So. 627 (1908). These cases stand for the proposition that once the intent that a crime be committed is clearly proved, “slight acts” on the part of the solicitor will Support an attempt conviction. For example in Gay, payment by the solicitor was considered a sufficient overt act directed toward commission of the intended crime.

Appellate defense counsel urge that it would be inappropriate to adopt this minority view under military law. Doing so, it is argued, would violate “the very essence of the requirement that a sufficient actus reus be proven before criminal liability will attach.” Perhaps so, because our law requires “a direct movement toward the commission of the offense," and provides that “[s]oliciting another to commit an offense does not constitute an attempt” (though solicitation can be a lesser included offense). MCM, Part IV, para. 4c (1984).^[6]

We are not convinced, however, that military law should extend so far as to hold that a factual situation such as that present in the Davis and Laurie cases will not constitute an attempt to commit a crime. In this regard, we find solace in the reasoning of some of the dissenters in the foregoing cases. In Davis, Chief Justice Walker wrote: “Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.” State v. Davis, 6 S.W.2d at 616. In State v. Otto (defendant soliciting undercover agent to commit murder, paying him $250.00 up front with promise of larger sum after crime was committed, not sufficient to support conviction of attempted murder), Chief Justice Bakes observed:

[T]he acts here went far beyond an offer of “employment” [a solicitation]. . .. [T]he type of weapon to be utilized and the manner in which the hit was to be made were discussed, an agreement was reached, payment was made, and the defendant completed all necessary steps preliminary to the “hit” being made.

The real question is whether acts of preparation when coupled with intent have reached a point at which they pose a danger to the public so as to be worthy of law’s notice.

Whether a person takes on for himself the task of trying to kill another person, or tries to bring about that killing through hiring another to perform the deed, is in actuality nothing but a matter of personal choice. While the principal is guilty of murder when the contract is performed, an attempt has been made when the bargain is struck…If criminals are going to contract out their services, and if there are persons who will retain those services, there is no reason why the criminal courts should decline to respect those contracts.

State v. Otto, P.2d at 653-654.

To a great extent, resolution of the issue we face is dependent upon the facts of the case. United States v. Stallworth, 543 F.2d 1038, 1039 (2d Cir.1976); 40 Am.Jur.2d 830. We hold that under the circumstances present in the case now before us, the appellant’s conviction of attempted murder can be sustained. We have found no military or federal precedent which we believe would require us to reach the opposite conclusion.

As this Court has recently stated, “a criminal attempt attaches culpability to a state of mind consisting of an accused’s criminal intent and the belief that he is acting in such a manner as to achieve that intent.” United States v. Guevara, 26 M.J. 779, 781 (A.F.C.M.R.1988). In United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987), the United States Court of Military Appeals relied upon a test adopted by the United States Court of Appeals for the Second Circuit:

[T]o be guilty of an attempt, a ‘defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime’ and that substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. United States v. Jackson, 560 F.2d 112, 116 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977); see also United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974), cert. denied 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); ALI Model Penal Code, Sec. 5.01 (1962).

See also United States v. Stallworth, 543 F.2d 1038 (2d Cir.1976); United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278, 285-286 (1962). The Court of Military Appeals most recently affirmed reliance upon this test in United States v. Hyska, 29 MJ. 122 (C.M.A.1989)~but the Court did not apply the test to the facts of the case as it was decided on other grounds. See also United States v. Presto, 24 M.J. 350 (C.M.A.1987).

In Mandujano, an informant introduced an undercover narcotics agent to the defendant. After some general conversation, the subject turned to drugs. The agent said he was from out of town, and was looking for an ounce sample of heroin to determine the quality of the material in the local area. Mandujano replied that he could get good brown Mexican heroin for $650.00 an ounce. He indicated he had a good contact, but would need the money up front. The agent gave Mandujano $650.00, and he departed. He returned about an hour later, explained that he was unable to locate his contact, and gave the money back to the agent. The Court found that the request for and receipt of the $650.00 from the agent constituted a substantial step toward distribution of heroin.” United States v. Mandujano, 499 F.2d at 379. Thus, the jury’s verdict of guilty of an attempt to distribute heroin in violation of 21 U.S.C. § 846 was upheld. The Court, noting that the statute did not define an “attempt" assessed the case law and concluded that in order to constitute a criminal attempt, the defendant must have (1) acted “with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting,” and, (2) “engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.” at 376~377. This test was derived in large part from the Model Penal Code standard.^[7]

United States v. Jackson, supra, involved an attempted bank robbery. The Court examined various approaches taken in an effort to distinguish preparation from attempt, and then affirmed the trial court’s use of the Mandujano test. The Court noted that once criminal intent is established, the key question remaining is “the substantiality of the steps taken and how strongly this corroborates the firmness of [the] obvious criminal intent.” 560 F.2d at 120. This determination is a matter of degree, and a mixed question of law and fact.

As noted above, the Court of Military Appeals applied the Mandujano/Jackson test in United States v. Byrd, supra. Byrd met SP4 Calloway (who was a drug suppression team member, though Byrd did not know this at the time) at the Community Center on Fort Gordon, Georgia. After some general conversation, Byrd mentioned Something about marijuana. Calloway asked Byrd if he could get some marijuana for him. Byrd said he knew someone who could get him a five dollar bag for ten dollars. Byrd attempted to contact a certain taxi cab driver for this purpose, but found out he was not working that day. He told Calloway to meet him at the Community Center the following day. When they met, Calloway was accompanied by an undercover military police investigator who was posing as an individual interested in obtaining drugs. Byrd took them to another location on post and introduced them to the cab driver Byrd knew. The Cab driver told them he could get marijuana for them for ten dollars. The investigator then gave Byrd ten dollars. It was agreed that Byrd would meet the investigator at the Community Center in half an hour with the marijuana. The cab driver then took Byrd to an off­post liquor store where marijuana was sold. The stipulation of fact in this guilty plea case provided: “The accused purchased a bottle of liquor with the money . . . [the investigator] gave him because he was afraid he’d be caught lf he tried bringing marijuana back on post.” During the providence inquiry, Bryd explained that on the way to the liquor store he decided not to purchase any marijuana. He did not want to get a reputation as a drug peddler.

Based upon these facts, the Court of Military Appeals found that Byrd’s guilty plea to attempted distribution of marijuana was improvident. Receipt of $10.00 from the undercover agent and traveling to a liquor store where marijuana could be purchased did not constitute conduct going beyond preparation. The Court concluded:

Riding to the liquor store with the other occupants` of the taxi-cab was not ‘strongly corroborative of the firmness of’ Byrd’s intent to distribute marijuana. The act is simply too ambiguous; and too many other steps remained before the distribution could be consummated.

United States v. Byrd, 24 MJ. at 290. We believe that Byrd’s renunciation of his criminal purpose was an important factor to the outcome in his case. Chief Judge Everett, writing for the Court, discussed the principle of renunciation and the defense of Voluntary abandonment in some detail. Id. at 290-293.

In United States v. Presto, supra, the accused, pursuant to his pleas, was found guilty of the attempted sale of three kilograms of marijuana. He had previously sold over 500 grams of marijuana to two acquaintances, one a confidential source, the other an undercover agent. They asked if he could get them an additional ten kilograms. He agreed to try to do so, but told them he doubted he could get more than two or three kilograms. He contacted the people he had dealt with, indicated they would try to get the ten kilograms. A couple days later he contacted them again, but they did not have it yet. Later that day he was arrested. The Court stated: “Although placing a call to a potential source in order to determine the availability of drugs tends to corroborate appellant’s criminal intent, we are unconvinced that the statutory requirement of ‘more than mere preparation’ has been met.” United States v. Presto, 24 M.J. at 352. The Court relied upon the test adopted in Byrd in reaching this conclusion. In the case now before us, the appellant’s acts far exceed those of the accused in Byrd and Presto.

Conclusion

Applying the test adopted in Byrd and the principles set forth in the Manual (MCM, Part IV, para. 4 (1984)), we are convinced that the trial court’s findings of guilty of the offense of attempted murder should be upheld. See also Article 66(c), UCMJ. The appellant’s conduct in obtaining the services of Nicholas Karnezis to murder his wife, his detailed participation in planning the intended crime, up to advising the agent exactly how he wanted his wife shot, and his payment of the agreed upon consideration, both before the crime was to occur and after he was apprised that it had, constitutes “a substantial step toward commission of the crime,” and establishes the requisite overt act amounting to more than mere preparation. We can envision nothing else the appellant could possibly have done to effect what he believed would be his wife's murder, short of committing the act himself (which is precisely what he did not want to do). As characterized by appellate government counsel during oral argument, the appellant armed a missile (Nick) and fired it off, fully believing it was aimed directly at his intended victim. See United States v. Keenan, 18 U.S.C.M.A. 108, 39 C.M.R. 108, 113 (1969). Or, using an example contained in the Manual: “if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire.” MCM, Part IV, para. 4c(3) (1984). If we were to accept the reasoning of appellate defense counsel neither appellant nor SA Karnezis ever took any steps or perpetration in dangerous proximity to the commission of the offense planned” because the agent never intended to commit the offense»-no contract for hire criminal scheme could ever be prosecuted as an attempt if the person hired turned out to be a government agent or informant. Cf. United States v. Johnson, 7 U.S.C.M.A. 488, 22 C.M.R. 278, 283 (1957). To place our criminal justice system in this posture defies logic. It is the accused’s criminal intent we are concerned with, not that of the person hired to commit the crime. United States v. Guevara, supra.

Turning to that intent, we find the record replete with evidence establishing “conduct strongly corroborative of the firmness of the defendant’s criminal intent.” The appellant retained whom he believed to be a big city hit man for the purpose of murdering his wife; he paid an agreed upon amount of money up front; he provided photographs, documents and diagrams to facilitate commission of the crime; he helped plan precisely how it would be committed; he indicated the need for an alibi for himself; after being advised that his wife had moved, he agreed to an increase in the contract price and obtained her new telephone number; when notified of her murder through unit channels, he “put on a Class A act;” upon being shown a staged picture of his wife with gun shot wounds, he commended Nick for his “good work,” and paid a further installment on the contract price. The firmness of his intent is clearly established.^[8]

We are convinced beyond a reasonable doubt that the appellant is guilty of attempted murder. We further find the sentence to be appropriate for commission of this crime. Our attention has also been invited to issues raised at trial which centered around the composition of the court panel. We find them to be without merit.  Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Smith, 27 M.J. 242, 250 (C.M.A.1988); United States v. Cunningham, 21 M.J. 585 (A.C.M.R.1985), pet. denied, 22 M.J. 275 (C.M.A.1986); United States v. Townsend, 12 M.J. 861 (A.F.C.M.R.1981); Article 25, UCMJ, 10 U.S.C. 825; R.C.M. 502(a)(1), 503(a)(v.

[3] One other matter warrants brief comment. As noted early on in this opinion, the attempted murder specification alleged that the crime occurred “at Grand Forks Air Force Base,” yet the evidence established that the two meetings between the appellant and Nick took place in a motel room in Fargo, North Dakota, a distance of some 78 miles from Grand Forks, North Dakota, where the base is located. Additionally, the dates alleged in the specification were on or about 25-26 April 1988, but the key meeting between Nick and the appellant where plans for this crime were made occurred on 22 April. We do not find these to be fatal variances between pleadings and proof. The companion attempted conspiracy charge dismissed by the military Judge alleged that the offense occurred between 19-22 April 1988 at both Grand Forks Air Force Base and Fargo. Clearly, the appellant was in no Way misled so as to affect his ability to adequately prepare for trial, and he will be fully protected against another prosecution for the same offense. Therefore, there is no prejudice. United States v. Lee, 1 M.J. 15 (C.M.A.1975); United States v. Rath, 27 M.J. 600 (A.C.M. R.1988); United States v. Mendoza, 18 M.J. 576 (A.F.C.M.R.1984).

The findings and sentence are correct in law and fact, and no error prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence are

AFFIRMED.

Senior Judges LEWIS and KASTL concur.

Senior Judge LEWIS took final action on this case prior to his retirement.

[1] He was also charged with attempted conspiracy to commit premeditated murder, but the military judge granted a defense motion to dismiss that offense as being multiplicious with the offense of attempted premeditated murder. We also note that there can be no conspiracy when a supposed participant merely feigns acquiescence in the criminal venture to secure another's detection and apprehension by proper authorities. United States v. LaBossiere, 13 MA. 337, 32 C.M.R. 337 (1962).

[2] Other parts of paragraph 4c, Part IV of the Manual provide the following guidance:

(2) More than preparation. Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson lo applying [sic] a burning match to a haystack, even if no fire results. The overt act need not be the last act essential to the consummation of the offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An attempt would nevertheless have been committed, for the Combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.

(3) Factual impossibility. A person who purposely engages in conduct which would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an attempt. For example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger. A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, a person who reaches into the pocket of another with the intent to steal that person's billfold is guilty of an attempt to commit larceny, even though the pocket is empty.

(4) Solicitation. Soliciting another to commit an offense does not constitute an attempt

The Analysis to the 1984 Manual indicates that these provisions are based on paragraph 159 of the 1969 Manual. MCM, App. 21, para. 4 at (1984). Paragraph 159 provided in part:

An accused may be guilty of an attempt even though the commission of the intended offense was impossible because of unexpected intervening circumstances or even though the consummation of the intended offense was prevented by a mistake on the part of the accused. The physical impossibility of committing the intended crime does not constitute a defense.

MCM. 1969 (Rev.), para. 159 at 28-7.

[3] Among other punishments, confinement for 20 years is authorized for attempted murder, whereas the period of confinement authorized for soliciting another to commit murder is 5 years. At trial, the parties agreed that solicitation to commit murder was a lesser included offense to the attempt as charged, and the court members were appropriately so instructed.

[4] Our research has revealed only two reported military cases involving a factual situation (contract murder) similar to the one present in this case. United States v. Vanderlip, 28 MJ. 1070 (N.M.C.M.R.l989); United States v. Jones, 14 M.J. 740 (A.F.C.M.R.l982). In both those cases the accused was charged with soliciting another to commit murder, not attempted murder. They are not dispositive of the issue we face. See also United States v. Thomas, 13 U.S.C.M.A. 278. 32 C.M.R. 278 (1962) for an excellent and extensive discussion of the various principles developed by courts and legal scholars in an effort to deal with attempt crimes where impossibility of completion of the substantive crime is involved.

[5] It should be recognized that many of these decisions rest, at least in part, upon interpretation of state statutes.

[6] See Annotation, What Constitutes Attempted Murder. 54 ALR 3d 612 (1974) for an extensive discussion of this subject.

[7] Section 5.01 of the ALI Model Penal Code addresses criminal attempt. It provides in part:

(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another t0 commit a crime which would establish his complicity under Section 2.06 if the crime were committed by such other person is guilty of an attempt to commit the crime, although the crime is not Committed or attempted by such other person.

Section 2.06 deals with liability for conduit of another.

[8] The defense theory at trial was that Senior Airman Church was a peaceful, happy-go-lucky individual, hurting from a difficult divorce, who fell victim to an OSI machine. His counsel forcefully argued this position on his behalf. “This machine was used lo scare, intimidate, and overwhelm Airman Church lo go along with the plan that was designed and created by the OSI. The situation was induced. They create an offense where there never was one." The military judge provided the members instructions on the defense of entrapment.  By their findings, the jury determined this defense did not exist. We agree.