JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendant, Stanley Gentry, was convicted of attempted murder (El. Rev. Stat. 1983, ch. 38, pars. 8 — 4(a), 9 — 1(a)) and aggravated battery (El. Rev. Stat. 1983, ch. 38, par. 12 — 4). At the sentencing hearing, the trial court merged the aggravated battery conviction with the attempted murder conviction and on the charge of attempted murder sentenced Gentry to the Illinois Department of Corrections for a term of 45 years’ imprisonment.

On appeal, Gentry asserts that his conviction should be reversed because: (1) the trial court’s instruction regarding the intent necessáry for attempted murder was prejudicially erroneous; (2) the State’s use of certain hearsay statements denied Gentry a fair trial; and (3) the prosecutor committed reversible error by making several improper and prejudicial remarks during closing argument.

Background

The record indicates that on December 13, 1983, Gentry and Ruby Hill, Gentry’s girlfriend, were in the apartment they shared at 1756 North Taiman in Chicago, Illinois. At approximately 9 p.m. the couple began to argue. During the argument, Gentry spilled gasoline on Hill, and the gasoline on Hill’s body ignited. Gentry was able to smother the flames with a coat, but only after Hill had been severely burned. Gentry and Hill were the only eyewitnesses to the incident.

Police and paramedics were called to the scene. James Fahey was the first Chicago police officer to arrive. Fahey testified that when he entered Gentry and Hill’s apartment, he found Hill’s upper body (including her head, face, and arms) to be badly burned. He further testified that Gentry was the only person in the apartment other than Hill. Fahey also stated that he found no matches on the floor of the apartment.

The paramedics who arrived at the scene testified that Hill had suffered third degree bums over 70% of her body. They further testified that after some initial treatment, Hill was transported by ambulance to Cook County Hospital and that Gentry accompanied Hill in the ambulance.

. Wayne Milla, a detective for the Chicago police department, also testified. Milla stated that he arrived on the scene shortly after Fa-hey. Milla also stated that a gas stove was the only possible source of *901ignition in the apartment’s kitchen. Milla averred that he originally classified the fire as “accidental” but later changed his mind when he discovered that Hill’s clothing had been doused with gasoline.

The victim, Ruby Hill, also testified at trial. Hill stated that she and Gentry had been drinking all afternoon and that both of them were “pretty high.” She further testified that Gentry had poured gasoline on her and that the gasoline ignited only after she had gone near the stove in the kitchen. Hill also related how Gentry tried to snuff the fire out by placing a coat over the flames.

Hill also testified as to her relationship with Gentry. She stated that she had lived with Gentry for three years prior to the accident, that she wanted to marry Gentry, and that she still loved Gentry notwithstanding the fire incident. Hill claimed that the entire episode was an accident and that she intended to again live with Gentry after the case was over.

In addition, over the objection of Gentry’s counsel, the prosecution proffered certain impeachment evidence. The claimed purpose of this evidence was to impeach Hill as to her assertion that the fire incident was an accident. The prosecution first established the foundation for the impeachment by asking Hill if she had previously claimed that Gentry had threatened her with matches after he had poured gasoline on her. Hill denied it. The prosecution also asked her if she had previously claimed that she was terrified of Gentry. Hill again denied making such a statement. Hill also denied ever stating that she was afraid of Gentry and denied that Gentry had ever tried to choke her while she was taking a bath in the apartment’s bathtub.

After Hill denied making positive answers to the aforementioned questions posed by the prosecution, the prosecution set out to “prove-up” the impeachment. First, the prosecution called Jeffrey Zitzka, a Chicago police officer who interviewed Hill while she was in the hospital after the incident. Zitzka testified that Hill had nodded “no” when asked if the incident was an accident and had nodded “yes” as to whether she wanted to press charges.

Diane Meyer, a law clerk for the State’s Attorney’s office, then testified. Meyer stated that she had heard Hill tell prosecutors that Gentry had lit matches after pouring gasoline on her, that Hill had claimed that' the incident was not an accident, and that Hill had also said that she was afraid of Gentry.

Hill’s brother, Bill Starnes, testified that Hill had previously told him that Gentry had once tried to choke Hill while she was in the bathtub. Hill’s mother also testified. She stated that some time before the incident, Hill had written a letter to her in which Hill *902claimed to be “scared to death” of Gentry and that Gentry had once attempted to choke her while she was in the apartment’s bathtub.

During the prosecution’s closing argument, the record reveals that the prosecutors relied heavily on the impeachment testimony and invited the jury to consider the evidence for its substantive value as well as for what it revealed about Hill’s credibility

At the close of the case, the jury found Gentry guilty of attempted murder and aggravated battery. The lesser aggravated battery conviction was merged into the greater attempted murder conviction at sentencing, where Gentry was sentenced to the Illinois Department of Corrections for a term of 45 years. From his conviction for attempted murder and his sentence, Gentry now appeals.

Gentry contends that the jury was improperly instructed on the required mental state for attempted murder where the instructions given would permit a conviction without a finding that Gentry possessed the specific intent to kill. The State, on the other hand, contends that the instructions as given show Gentry’s assertion to be illogical. Alternatively, the State maintains that any error in instructing the jury was harmless and that defendant has waived review of this issue by failing to object at trial.

The record evinces the fact that Gentry did indeed fail to object at trial to the instructions in question. However, the specific intent to kill is an essential element of the crime of attempted murder. (People v. Bryant (1984), 123 Ill. App. 3d 266, 462 N.E.2d 780.) Accordingly, the alleged error affects Gentry’s substantial rights, and we will review this issue under the plain error doctrine. 87 Ill. 2d R 615(a); of. People v. Sanders (1984), 129 Ill. App. 3d 552, 472 N.E.2d 1156 (error in attempted murder instruction held to be plain error; attempted murder conviction reversed on appeal).

At the . close of the presentation of evidence in this case, the following instructions were given. First, the trial court defined “attempt” as it relates to the underlying felony of murder:

“A person commits the offense of murder when he, with intent to commit the offense of murder does any act which constitutes a substantial step toward the commission of the offense of murder. The offense attempted need not have been completed.” (Emphasis added.)

Second, after giving this definition, the trial court set forth the necessary elements of attempted murder, to wit, an act and intent:

“To sustain the charge of attempt, the State must prove the following propositions:

First: That the defendant performed an act which consti*903tuted a substantial step towards the commission of the offense of murder; and

Second: That the defendant did so with intent to commit the crime of murder.” (Emphasis added.)

Finally, the trial court defined the crime of murder, including all four culpable mental states:

“A person commits the crime of murder where he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual.” (Emphasis added.)

Gentry contends that the inclusion of all the alternative states of mind in the definitional murder instruction was erroneous because the crime of attempted murder requires a showing of specific intent to kill. Gentry, posits that inclusion of all four alternative states of mind permitted the jury to convict him of attempted murder upon a finding that he intended to harm Hill, or acted with the knowledge that his conduct created a strong probability of death or great bodily harm to Hill, even if the jury believed that Gentry did not act with specific intent to kill. We agree with Gentry’s position that the jury was misinstructed in this case.

Our supreme court has repeatedly held that a finding of specific intent to kill is a necessary element of the crime of attempted murder. (People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) Indeed, a trial court instructing a jury on the crime of attempted murder must make it clear that specific intent to kill is the pivotal element of that offense, and that intent to do bodily harm, or knowledge that the consequences of defendant’s act may result in death or great bodily harm, is not enough. (People v. Jones (1979), 81 Ill. 2d 1, 8-9, 405 N.E.2d 343, 346. Accord, People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270; People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404; People v. Coleman (1985), 131 Ill. App. 3d 76, 475 N.E.2d 565.) Recently, in People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154, this court found an identical instruction to be erroneous based on the legal principle cited above. Accordingly, the instructions given in this case were erroneous, since it is clear that the jury was permitted to convict Gentry without specifically finding that Gentry intended to kill Hill. New errors are more highly prejudicial than the trial court’s failure to give the proper instruction on the intent element of a *904crime. People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.

The State attempts to minimize the significance of this error by arguing that the instructions as given actually did require the jury to find specific intent to kill. The State labels as illogical those cases which distinguish between the specific intent to kill and the three other alternative states of mind also found in the definitional murder instruction.

The State would read the attempted murder instruction as requiring a showing of any of the alternative mental states sufficient for a conviction of murder. In other words, the State makes no distinction between the mental state required to prove murder and the mental state required to prove attempted murder. We find the State’s analysis and conclusion to be erroneous and lacking in legal substance since it fails to contain the judicial reasoning which recognizes the distinction between the intent elements of murder and attempted murder.

Specifically, we cite the Kraft case, where defendant’s attempted murder conviction was reversed where the jury instructions would have permitted a conviction without a finding of specific intent to kill. (People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154.) In reversing the defendant’s attempted murder conviction in that case, the Kraft court analyzed the distinction between the culpable mental states required for murder and attempted murder, noting as follows:

“Our criminal code contains separate statutory definitions for the four culpable mental states of intent, knowledge, recklessness, and negligence, with knowledge encompassing a distinct and less purposeful state of mind than intent. *** [0]ur State legislature manifested a desire to treat intent and knowledge as distinct mental states when imposing criminal liability for conduct. *** Knowledge is not intent as defined by our statutes, and the jury instructions should reflect this distinction. Accordingly, we hold that in a prosecution for attempted murder, where alternative culpable mental states will satisfy the target crime of murder, but only one is compatible with the mental state imposed by our attempt statute, the incompatible elements must be omitted from the jury instructions.” 133 Ill. App. 3d 294, 302, 478 N.E.2d 1154, 1160.

Consequently, it is sufficient only for us to say that we recognize the distinction between the alternative states of mind delineated in the definitional murder instruction, as well as the fact that only the specific intent to kill satisfies the intent element of the crime of at*905tempted murder. Accordingly, the State’s assertion that the instructions as given actually required the jury to find that Gentry had a specific intent to kill Hill is doomed.

Alternatively, the State argues that this error is harmless. We note that there are apparently two lines of cases on this point. In the first, our supreme court has reversed convictions for attempted murder without evaluating the evidence to determine if the error is harmless where the jury has not been correctly instructed on the issue of intent. (See People v. Trinkle (1977), 68 Ill. 2d 198, 203-04, 369 N.E.2d 888, 891; accord, People v. Viser (1975), 62 Ill. 2d 568, 581-83, 343 N.E.2d 903, 909-11.) These cases take the position that when a jury is misinstructed on a fundamental issue (like defendant’s intent in this case) the jury lacks a tool necessary for the performance of its function as trier of fact. Cf. People v. Stromblad (1978), 74 Ill. 2d 35, 41, 383 N.E.2d 969, 972.

In the second line of cases regarding misinstruction of the jury, our supreme court recognized that errors in giving or refusing to give instructions will not always justify reversal when evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably find defendant not guilty. (See People v. Truelock (1966), 35 Ill. 2d 189, 192, 220 N.E.2d 187, 190 (evidence of defendant’s knowledge of the presence of narcotics was clear and convincing); People v. Ward (1965), 32 Ill. 2d 253, 256, 204 N.E.2d 741, 743.) The factual distinction between these two rules, however, is based on the issue of defendant’s intent to kill. In the first line of cases, the question of defendant’s intent is in issue, which has been held to be sufficient to require reversal without further consideration of the evidence. (See, e.g., People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888; People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903.) In the second line of cases, on the other hand, the fact that defendant formed the requisite intent to kill is blatantly evident from the facts, such that the intent element is not at issue. People v. Jones (1979), 81 Ill. 2d 1, 9-10, 405 N.E.2d 343, 346-47 (where the only question was whether the defendant was the perpetrator or one of the perpetrators of the crime, and where the trial court gave an accurate directive attempted murder instruction, followed by an inappropriately complete definitional murder instruction).

In the instant case, it is clear that the essential task before the jury was the determination of whether Gentry sufficiently formed the specific intent to kill, in order to satisfy the elements of attempted murder. This is evidenced by the State’s efforts to prove that Gentry knew that splashing gasoline on Hill would kill her, as *906well as by the State’s attempts to impeach Hill’s testimony that the incident was accidental. As such, we are faced with a situation where proving that Gentry formed the intent to kill was a necessary predicate to a finding of his guilt.

Given the circumstances delineated above, and given the misinstruction on the crime of attempted murder, we must necessarily conclude that Gentry was prejudiced by the inclusion of the alternative states of mind in the definitional murder instruction. We find this to be a fundamental error and not merely a technical defect cured by the evidence in this case. Indeed, the error which occurred here was in a definition essential for the jury to make a legally permissible judgment as to Gentry’s guilt or innocence as to the crime of attempted murder. (Cf. People v. Stromblad (1978), 74 Ill. 2d 35, 41, 383 N.E.2d 969, 972.) Justice would best be served by our application of the line of cases which would entitle Gentry to a new trial before a properly instructed jury, precluding our further consideration of the evidence in this case. We note that even if we were to apply the standard used in cases like Ward and its progeny (clear and convincing proof of guilt), we would not find the error harmless, as other evidentiary problems surrounding the impeachment of Hill foreclose a clear and convincing showing of Gentry’s guilt. This is because proof of Gentry’s guilt is inextricably tied to proving the requisite mental state for the crime of attempted murder, which was clearly misstated by the trial court when it gave an erroneous definitional murder instruction. Thus, because we find this to be a fundamental error, it is not necessary for us to continue any further.

In conclusion, based upon the discussion of law and fact stated above, we reverse defendant’s conviction and sentence and remand this cause for a new trial in front of a properly instructed jury.

Reversed and remanded.

McMORROW, P.J., and JOHNSON, J., concur.

MURPHY, Chief Judge.

The question presented is whether “attempted felony murder” is a crime in this State.

I.

On December 2, 1986, three men entered Barry Tensor’s shoe store. One man, later identified as Leon Bruce, was masked and armed with a handgun. He ordered Tensor to open the cash register. One of Bruce’s confederates jumped over the counter, and emptied the drawer of its money. Tensor was then ordered to open a second register. Upon finding it empty, Bruce demanded to know where the money could be found. Tensor testified:

“I said it’s empty, that is all there is and then he took the gun and aimed it right at my face, at my head. And he said I’m going to kill you in a very serious voice, and the gun was continuously held right at my face.

“At that point, I was incredibly afraid and I just tucked my head down and kind of tried to get out of the way and ducked down and moved forward. And at that point, I guess I banged into him or something and he shot me.”

*644Tensor was hospitalized for five weeks from a gunshot wound to his stomach.

On March 10, 1987, Bruce was charged by criminal information with attempted first degree murder, robbery with a deadly weapon, and two counts of unlawful use of a handgun. A jury in the Circuit Court for Baltimore City found him not guilty of attempted first degree premeditated murder, guilty of attempted first degree felony murder, guilty of robbery with a deadly weapon, and guilty of the two handgun charges. The presiding judge (Noel, J.) subsequently granted Bruce’s motion for a new trial on all charges. He concluded that his jury instructions pertaining to attempted felony murder were erroneous because no such offense existed under Maryland law.

Bruce was tried a second time before a jury in the Circuit Court for Baltimore City (Ross, J., presiding). Again, he was found guilty of attempted felony murder, robbery with a deadly weapon, and upon the two handgun violations. For the attempted felony murder conviction, Bruce was sentenced to a life term to run consecutively to all outstanding sentences, and to twenty years- for using a handgun in the commission of a crime of violence. Bruce’s other handgun conviction, as well as that for armed robbery, was merged into the attempted felony murder conviction.

On appeal to the Court of Special Appeals, Bruce argued that attempted felony murder was not a crime in Maryland. We granted certiorari prior to decision by the intermediate appellate court to consider the significant issue raised in the case.

II.

Maryland Code (1982 Repl.Vol.), Article 27, § 407 provides that murder “perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.” Section 410—the so-called felony murder statute—provides that all murder committed in the perpetration of, or attempt to *645perpetrate, certain designated felonies, of which robbery is one, is also murder in the first degree. These statutes do not create new statutory crimes but rather divide the common law crime of murder into degrees for purposes of punishment. See Hook v. State, 315 Md. 25, 28, 553 A.2d 233 (1989); Campbell v. State, 293 Md. 438, 441, 444 A.2d 1034 (1982); Wood v. State, 191 Md. 658, 666, 62 A.2d 576 (1948).

We observed in Veney v. State, 251 Md. 159, 174, 246 A.2d 608 (1968), cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969), that at common law “a killing in the perpetration of a robbery was murder, regardless of intent.” See also Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17 (1958); Clark and Marshall, Crimes § 245 (4th ed. 1940). To secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove a specific intent to commit the underlying felony and that death occurred in the perpetration or attempt to perpetrate the felony; it is not necessary to prove a specific intent to kill or to demonstrate the existence of wilfulness, deliberation, or premeditation. Hook v. State, supra, 315 Md. at 31, 553 A.2d 233; State v. Frye, 283 Md. 709, 712-13, 393 A.2d 1372 (1978); Newton v. State, 280 Md. 260, 269, 373 A.2d 262 (1977); Thompson v. State, 230 Md. 113, 117, 186 A.2d 461 (1962); Thomas v. State, 206 Md. 575, 581-82, 112 A.2d 913 (1954). As we said in Jackson v. State, 286 Md. 430, 435, 408 A.2d 711 (1979), “homicide arising in the perpetration of, or in the attempt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice.”

III.

In determining whether attempted felony murder is a crime in Maryland, we note that criminal attempts are common law misdemeanors in Maryland, applicable to any existing crime, whether statutory or common law. Cox v. State, 311 Md. 326, 329-30, 534 A.2d 1333 (1988); Young v. *646State, 303 Md. 298, 301, 493 A.2d 352 (1985); Hardy v. State, 301 Md. 124, 139, 482 A.2d 474 (1984). Under Maryland law, a criminal attempt consists of a specific intent to commit the offense coupled with some overt act in furtherance of the intent which goes beyond mere preparation. Cox, supra, 311 Md. at 330, 534 A.2d 1333 and cases there cited.

In Cox, the question presented was whether an individual could be convicted of attempted voluntary manslaughter. Recognizing that criminal attempt is a specific intent crime, we held that an individual may be convicted of the crime of attempted voluntary manslaughter since the substantive offense is “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation.” Id. at 331, 534 A.2d 1333 (emphasis in original). On the other hand, we noted that involuntary manslaughter is an “unintentional killing done without malice, by doing some unlawful act endangering life, or in negligently doing some act lawful in itself”; accordingly, we held that it may not form the basis of a criminal conviction for attempt. Id. at 332, 534 A.2d 1333 (emphasis in original).

IV.

The elements of wilful, deliberate and premeditated attempted murder in the first degree are the intent to commit the offense and some overt act towards its commission. State v. Holmes, 310 Md. 260, 271-72, 528 A.2d 1279 (1987). In that case, we distinguished this species of first degree murder from murder committed in the perpetration of one of the felonies enumerated in the felony murder statute. As we said earlier, the criminal intent requisite to proving a felony murder is the specific intent to commit the underlying felony. Because a conviction for felony murder requires no specific intent to kill, it follows that because a criminal attempt is a specific intent crime, attempted felony murder is not a crime in Maryland.

The majority of jurisdictions which have considered the question have concluded that “attempted felony murder” is *647not a crime. See, e.g., People v. Franklyn, 157 Cal.App.3d 518, 203 Cal.Rptr. 813, 824 (1984); People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903, 910 (1975); Head v. State, 443 N.E.2d 44, 51 (Ind.1982); State v. Darby, 200 NJ.Super. 327, 491 A.2d 733, 736 (1984), cert. denied, 101 N.J. 226, 501 A.2d 905 (1985); State v. Price, 104 N.M. 703, 726 P.2d 857 (1986); People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253, 254 (1975); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171, 177-78 (1983); State v. Maestas, 652 P.2d 903, 904 (Utah 1982).

In People v. Viser, supra, 343 N.E.2d at 910, the Supreme Court of Illinois said:

“There can be no felony murder where there has been no death, and the felony murder ingredient of the offense of murder cannot be made the basis of an indictment charging attempted murder. Moreover, the offense of attempt requires an ‘intent to commit a specific offense’, while the distinctive characteristic of felony murder is that it does not involve an intention to kill. There is no such criminal offense as an attempt to achieve an unintended result.” (Citations omitted.)

Similarly, the Supreme Court of Indiana flatly concluded that “absent death the applicability of the felony murder rule is never triggered.” Head v. State, supra, 443 N.E.2d at 50. The Court of Appeals of New Mexico, noting the absence of a mens rea (an intent to kill) in a felony murder prosecution, has held that even when a specific intent to kill is established, the felony murder rule is not applicable to an attempted murder. State v. Price, supra. And the court in State v. Darby, supra, 491 A.2d at 736, bluntly stated that “the purported crime of attempted felony murder is manifestly unintelligible____ The fact is that the concepts of attempt and felony murder cannot rationally be joined.”

These holdings are fully in accord with the rationale advanced by LeFave & Scott, Criminal Law, § 6.2 at 500 (2nd ed. 1986):

“Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state *648which need not be an intent to bring about that result. Thus, if A, B, C, and D have each taken the life of another, A acting with the intent to kill, B with an intent to do serious bodily injury, C with a reckless disregard of human life, and D in the course of a dangerous felony, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm, that he acted in reckless disregard for human life, or that he was committing a dangerous felony. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder (i.e., the death of another).”

Reaching a contrary result is Amlotte v. State, 456 So.2d 448 (Fla.1984) (attempted felony murder is a valid crime). See also White v. State, 266 Ark. 499, 585 S.W.2d 952, 954 (1979) (recognizing the existence of attempted felony murder under that state’s statutory definition of attempt, but noting a distinction from precode cases).

The State maintains that because the evidence in the case sufficiently supported a finding that Bruce harbored a specific intent to kill Tensor, the crime of attempted felony murder was necessarily established. But, as we have said, the criminal intent necessary to convict for attempted murder requires, as one of its essential elements, a specific intent to kill. Consequently, as Maryland does not recognize attempted felony murder as a crime, Bruce’s conviction for committing that non-existent offense must be reversed. Bruce’s convictions for armed robbery, as well as the handgun violations, are unaffected by our holding in this case. Since the court merged the armed robbery conviction into the now vacated conviction for attempted felony murder, we shall remand the case for sentencing on the armed robbery count.

*649AS TO THE CONVICTION OF ATTEMPTED FELONY MURDER: JUDGMENT REVERSED; AS TO THE CONVICTION FOR ARMED ROBBERY: CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR IMPOSITION OF SENTENCE ON THE ARMED ROBBERY COUNT; COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

McAULIFFE, Judge,

dissenting.

The jury in this case found that Leon Bruce, in the course of committing a robbery, shot Barry Tensor in the chest with the specific intent to kill him. Had Tensor died, Bruce would have been guilty of murder in the first degree. Ross v. State, 308 Md. 337, 341-42, 519 A.2d 735 (1987). The fact that Tensor did not die does not absolve Bruce of liability for his dangerous and deadly action. Rather, it changes the nature of the offense from murder in the first degree to attempted murder in the first degree.

There are complications inherent in applying the law of attempt to the concept of felony murder. By mechanical application of established principles, one might, in a facially logical manner, reach the result that every assault committed in the course of an enumerated felony is punishable as an attempted first degree murder. The rationale for that result is that if the victim had died, the result would be first degree murder, and because the defendant had taken every step necessary to commit such a crime, the failure of the victim to die should operate only to change the crime to an attempt. The majority properly rejects that possibility. Our cases have consistently held that proof of an attempt requires proof of a specific intent to commit the underlying crime. See, e.g., Cox v. State, 311 Md. 326, 330, 534 A.2d 1333 (1988); Young v. State, 303 Md. 298, 302-03, 493 A.2d 352 (1985). That portion of the felony murder concept which obviates the need for a specific intent to kill cannot logically be transplanted into the law of attempt.

No such abstruse application of the law is suggested by this case. Here, the trial judge correctly instructed the jury *650that in order to find the defendant guilty of attempted murder, they were required to find that Bruce harbored a specific intent to kill Tensor at the time he shot him.1 The relevant instructions given were: *651That instruction is in accordance with our statement in Young v. State, 308 Md. 298, 311, 493 A.2d 352 (1985) that:

*650In order for one to be guilty of attempted murder in the first degree, three things must be shown: it must be shown that the person intended to kill the victim without excuse or justification or circumstances of mitigation. It has to be a specific intent to kill the victim without excuse, without justification, and without circumstances of mitigation. That’s the first thing.

Then it must be shown that that—that a substantial step was taken toward the commission of that crime. A substantial step toward intentionally killing that human being.

And third, in order for it to be attempted murder in the first degree, that intent and that substantial step or act toward the commission must occur during the course of the commission of the crime of robbery or robbery with a dangerous or deadly weapon.

Those are the three elements that must be proved in order for there to be guilt of attempted murder in the first degree. A specific intent to kill the victim without excuse or justification, a substantial step toward the commission, toward carrying out that intent, and both the intent and the substantial step or act must occur during the course of the commission of the crime of robbery or robbery with a dangerous or deadly weapon.

*651A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which constitutes a substantial step toward the commission of that crime whether or not his intention be accomplished.

Accepting, as I have, and as the trial judge did below, the premise that a specific intent to kill is a necessary element in any attempted murder, the sole remaining question is whether the fact that the murder was attempted during the perpetration, or attempted perpetration, of an enumerated felony operates to make it an attempted murder in the first degree. History and logic compel the conclusion that it does.

At common law, all murder was punishable by death. In 1809, in recognition of the fact that the several forms of murder varied greatly in degree of atrociousness, and with an express desire to match the penalty to the seriousness of the offense, our legislature divided murder into degrees. Ross v. State, supra, 308 Md. at 340-41, 519 A.2d 735; Hardy v. State, 301 Md. 124, 137, 482 A.2d 474 (1984). The legislature considered the following circumstances sufficiently egregious to warrant inclusion of the offense within the highest degree: murder perpetrated by means of poison, or by lying in wait, or any kind of wilful, deliberate and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, certain enumerated felonies. Ross, supra, 308 Md. at 341, 519 A.2d 735. All other murder was murder in the second degree. No significant change in the treatment of this aspect of the law of murder has been made in the intervening 180 years. See Maryland Code (1957, 1987 Repl.Vol.) Art. 27, §§ 407-411.

It is entirely logical to conclude that an attempted murder committed under the aggravating circumstances singled out by the legislature should be treated as an attempted murder in the first degree. Certainly this is true of attempted premeditated murder. Hardy, supra, 301 Md. at 137, 482 *652A.2d 474. It should be no less true of an attempted murder committed during the perpetration of an enumerated felony, provided that there exists a specific intent to kill. This portion of the concept of felony murder, embracing as it does the clear intent of the legislature, translates very nicely into the law of attempts. As Judge Cole wrote for the Court in Hardy, supra, 301 Md. at 139-40, 482 A.2d 474:

If the evidence satisfies the fact finder by proof beyond a reasonable doubt that the conduct of the defendant falls within the proscribed conduct in the statute labeled as first degree murder that did not result in death of the victim, then the crime of attempted murder in the first degree has been established. If the evidence of criminal culpability is something less, the crime proved may be attempted murder in the second degree or attempted voluntary manslaughter. We emphasize that the basic characteristic of an attempt is that it adjusts according to the proof established at trial.

I would affirm the judgment of the trial court.

*708PRICE, Judge.

Appellant, a Negro man, was found guilty of an attempt to commit an assault with intent to rape, under an indictment charging an assault with intent to rape. The jury assessed a fine of $500.

About 8:00 o’clock on the night of June 29, 1951, Mrs. Ted Allen, a white woman, with her two children and a neighbor’s little girl, were drinking Coca-Cola at the “Tiny Diner” in Atmore. When they started in the direction of Mrs. Allen’s home she noticed appellant sitting in the cab of a parked truck. As she passed the truck appellant said something unintelligible, opened the truck door and placed his foot on the running -board.

Mrs. Allen testified appellant followed her down the street and when she reached Suell Lufkin’s house she stopped. As she turned into the Lufkin house appellant was within two or three feet of her. She waited ten minutes for appellant to pass. When she proceeded on her way, appellant came toward her from behind a telephone pole. She told the children to run to Mr. Simmons’ house and tell him to come and meet her. When appellant saw Mr. Simmons he turned and went back down the street to the intersection and leaned on a stop sign just across the street from Mrs. Allen’s home. Mrs. Allen watched him at the sign from Mr. Simmons’ porch for about thirty minutes, after which time he came back down the street and appellant went on home.

Mrs. Allen’s testimony was corroborated by that of her young daughter. The daughter testified the appellant was within six feet of her mother as she approached the Lufkin house, and this witness said there was a while when she didn’t see appellant at the intersection.

Mr. Lewis Simmons testified when the little girls ran up on his porch and said a Negro was after them, witness walked up the sidewalk to -meet Mrs. Allen and saw appellant. Appellant went on down the street and stopped in front of Mrs. Allen’s home .and waited there approximately thirty minutes.

Mr. Clarence Bryars, a policeman in At-more, testified that appellant stated after his arrest that he came to Atmore with the intention of getting him a white woman that night.

Mr. W. E. Strickland, Chief of Police of Atmore, testified that appellant' stated in the Atmore jail he didn’t know what was the matter with him; that he was drinking a little; that he and his partner had been to Pensacola; that his partner went to the “Front” to see a colored woman; that he didn’t have any money and he sat in the truck and made up his mind he was going to get the first woman that came by and that this was the first woman that came by. He said he got out of the truck, came around the gas tank and watched the lady and when she started off he started off behind her; that he was going to carry her in the cotton, patch and if she hollered he was going to kill her. He testified , appellant made the same statement in the Brewton jail.

Mr. Norvelle Seals, Chief Deputy Sheriff, corroborated Mr. Strickland’s testimony as to the statement by appellant at the Brewton jail.

Appellant, as a witness in his own behalf, testified he and Bill Page, another Negro, carried a load of junk-iron from Monroeville to Pensacola; on their way back to Monroeville they stopped in At-more. They parked the truck near the “Tiny Diner” and rode to the “Front,” the colored section, in a cab. Appellant came back to the truck around 8:00 o’clock and sat in the truck cab for about thirty minutes. He decided to go back to the “Front” t-o look for Bill Page. As he started up the street he saw prosecutrix and her children. He turned around and waited until he decided they had gone, then he walked up the street toward the “Front.” When he reached the intersection at the telegraph pole he decided he didn’t want to go to the “Front” and sat around there a few minutes, then went on to the “Front” and stayed about 25 -or 30 minutes, and came back to the truck.

He denied that he followed Mrs. Allen or made any gesture toward molesting her or the children. He denied making the statements testified to by the officers.

*709He testified he had never been arrested before and introduced testimony by two residents of Monroeville as to his good reputation for peace and quiet and for truth and veracity.

Appellant insists the trial court erred in refusing the general affirmative charge and in denying the motion for a new trial on the ground the verdict was contrary to the evidence.

“ ‘An attempt to commit an assault with intent to rape/ * * * means an attempt to rape which has not proceeded far enough to amount to an assault”. Burton v. State, 8 Ala.App. 295, 62 So. 394, 396. '

Under the authorities in this state, to justify á conviction for an attempt to commit an assault with intent to rape the jury must be satisfied beyond a reasonable doubt that defendant intended to have sexual intercourse with prosecutrix against her will, by force or by putting her in fear. Morris v. State, 32 Ala.App. 278, 25 So.2d 54; Burton v. State, 8 Ala.App. 295, 62 So. 394.

Intent is a question to be determined by the jury from the facts and circumstances adduced on the trial, and if there is evidence from which it may be inferred that at the time of the attempt defendant intended to gratify his lustful desires against the resistance of the female a jury question is presented. McCluskey v. State, 35 Ala.App. 456, 48 So.2d 68.

In determining the question of intention the jury may consider social conditions and customs founded upon racial differences, such as that the prosecutrix was a white woman and defendant was a Negro man. Pumphrey v. State, 156 Ala. 103, 47 So. 156; Kelly v. State, 1 Ala.App. 133, 56 So. 15.

After considering the evidence in this case we are of the opinion it was sufficient to warrant the submission of the question of defendant’s guilt to the jury, and was ample to sustain the judgment of conviction.

Defense counsel contends in brief that the testimony of the officers as to.defendant’s declarations of intent was inadmissible because no attempt or. overt act toward carrying that intent into effect had been proven.

Defendant’s grounds of objection to this evidence were that it was “irrelevant, incompetent and immaterial.” Proper predicates were laid for the introduction of each of said statements. In the absence of a ground of objection calling the court’s attention to the fact that the corpus delicti has not been sufficiently proven to authorize admission of a confession such question cannot be reviewed here. Edgil v. State, ante, p. 379, 56 So.2d 677 and authorities there cited.

Moreover, if any facts are proven from which the jury may reasonably infer that the crime has been committed proof of the confession is rendered admissible. Rutland v. State, 31 Ala.App. 43, 11 So.2d 768; Ratliff v. State, 212 Ala. 410, 102 So. 621; Hill v. State, 207 Ala. 444, 93 So. 460.

We find no reversible error in the record and the judgment of the trial court is affirmed.

Affirmed.

RIVES, Circuit Judge:

Mandujano appeals from the judgment of conviction and fifteen-year sentence imposed by the district court, based upon the jury’s verdict finding him guilty of attempted distribution of heroin in violation of 21 U.S.C. § 846.1 We affirm.

I.

The government’s case rested almost entirely upon the testimony of Alfonso H. Cavalier, Jr., a San Antonio police officer assigned to the Office of Drug Abuse Law Enforcement. Agent Cavalier testified that, at the time the case arose, he was working in an undercover capacity and represented himself as a narcotics trafficker. At about 1:30 P. M. on the afternoon of March 29, 1973', pursuant to information Cavalier had received, he and a government informer went to the Tally-Ho Lounge, a bar located on Guadalupe Street in San Antonio. Once inside the bar, the informant introduced Cavalier to Roy Mandujano. After some general conversation, Mandujano asked the informant if he was looking for “stuff.” Cavalier said, “Yes.” Mandujano then questioned Cavalier about his involvement in narcotics. Cavalier answered Mandujano’s questions, and told Mandujano he was looking for an ounce sample of heroin to determine the quality of the material. Mandujano replied that he had good brown Mexican heroin for $650.00 an ounce, but that if Cavalier wanted any of it he would have to wait until later in the afternoon when the regular man made his deliveries. Cavalier said that he was from out of town and did not want to wait that long. Mandujano offered to locate another source, and made four telephone calls in an apparent effort to do so. The phone calls appeared to be unsuccessful, for Mandujano told Cavalier he wasn’t having any luck contacting anybody. Cavalier stated that he could not wait any longer. Then Mandujano said he had a good contact, a man who kept narcotics around his home, but that if he went to see this man, he would need the money “out front.” To reassure Cavalier that he would not simply abscond with the money, Mandujano stated, “[Y]ou are in my place of business. My wife is here. You can sit with my wife. I am not going to jeopardize her or my business for $650.00.” Cavalier counted out $650.00 to Mandujano, and Mandujano *372left the premises of the Tally-Ho Lounge at about 3:30 P.M. About an hour later, he returned and explained that he had been unable to locate his contact. He gave back the $650.00 and told Cavalier he could still wait until the regular man came around. Cavalier left, but arranged to call back at 6:00 P.M. When Cavalier called at 6:00 and again at 6:30, he was told that Mandujano was not available. Cavalier testified that he did not later attempt to contact Mandujano, because, “Based on the information that I had received, it would be unsafe for either my informant or myself to return to this area.”

The only other government witness was Gerald Courtney, a Special Agent for the Drug Enforcement Administration. Agent Courtney testified that, as part of a surveillance team in the vicinity of the Tally-Ho Lounge on March 29, 1973, he had observed Mandujano leave the bar around 3:15 or 3:30 P.M. and drive off in his automobile. The surveillance team followed Mandujano but lost him almost immediately in heavy traffic. Courtney testified that Mandujano returned to the bar at about 4:30 P.M.

II.

Section 846 of Title 21, entitled “Attempt and conspiracy,” provides that,

“Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

The theory of the government in this case is straightforward: Mandujano’s acts constituted an attempt to distribute heroin; actual distribution of heroin would violate section 841(a)(1) of Title 21; 2 therefore, Mandujano’s attempt to distribute heroin comes within the terms of section 846 as an attempt to commit an offense defined in the subchapter.

Mandujano urges that his conduct as described by agent Cavalier did not rise to the level of an attempt to distribute heroin under section 846. He claims that at most he was attempting to acquire a controlled substance, not to distribute it; that it is impossible for a person to attempt to distribute heroin which he does not possess or control; 3 that his acts were only preparation, as distinguished from an attempt; and that the evidence was insufficient to support the jury’s verdict.

Apparently there is no legislative history indicating exactly what Congress meant when it used the word “attempt” in section 846.4 There are two reported federal cases which discuss the question of what constitutes an attempt under this section. In United States v. Noreikis, 7 Cir. 1973, 481 F.2d 1177, where *373the defendants possessed the various chemicals necessary to synthesize Dimethyltryptamine (DMT), a controlled substance, the court held that the preparations had progressed to the level of an attempt to manufacture a controlled substance. In its discussion, the court commented that,

“While it seems to be well settled that mere preparation is not sufficient to constitute an attempt to commit a crime, 22 C.J.S. Criminal Law § 75(2)b, at 230 et seq., it seems equally clear that the semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule. The procuring of the instrument of the crime might be preparation in one factual situation and not in another. The matter is sometimes equated with the commission of an overt act, the ‘doing something directly moving toward, and bringing him nearer, the crime he intends to commit.’ 22 C.J.S., supra at 231.”

481 F.2d at 1181.

In United States v. Heng Awkak Roman, S.D.N.Y.1973, 356 F.Supp. 434, aff’d, 2 Cir. 1973, 484 F.2d 1271, where the defendants’ actions would have constituted possession of heroin with intent to distribute in violation of section 841 if federal agents had not substituted soap powder for the heroin involved in the case, the court held that the defendants’ acts were an attempt to possess with intent to distribute. The district court in its opinion acknowledged that “ ‘Attempt,’ as used in section 846, is not defined. Indeed, there is no comprehensive statutory definition of attempt in federal law.” The court concluded, however, that it was not necessary in the circumstances of the case to deal with the “complex question of when conduct crosses the line between ‘mere preparation’ and ‘attempt.’ ” 356 F.Supp. at 437.

The courts in many jurisdictions have tried to elaborate on the distinction between mere preparation and attempt. See the Comment at 39-48 of Tent. Draft No. 10, 1960 of the Model Penal Code.5 In cases involving statutes other than section 846, the federal courts have confronted this issue on a number of occasions.

Wooldridge v. United States, 9 Cir. 1916, 237 F. 775, involved a conviction for an attempted rape prosecuted under a general criminal attempt provision of the Alaska code. The court reviewed the state authorities and several treatises and then opined as follows:

“In light of these and many other cases that might be cited, it must be held that there was a failure of proof with respect to the doing of an overt act toward the commission of the crime charged. The undisputed evidence of the occurrences at Rose’s store is that no act was done by Wooldridge toward the commission of *374the crime, and although it may have been his intention when he went to the store to have intercourse with the girl, in the absence of evidence of an attempt to carry out such purpose, there could be no conviction of an attempted rape.”

237 F. at 779. Thus, the court indicated that an attempt requires an intent to commit the specific crime and, in addition, an overt act toward its commission. A more recent Ninth Circuit opinion uses language similar to that used in Wooldridge: In Lemke v. United States, 9 Cir. 1954, 211 F.2d 73, 75, 14 Alaska 587, the court states, “Of course it is elementary that mere preparation to commit a crime, not followed by an overt act done toward its commission, does not constitute an attempt.” The definition of attempt in United States v. Baker, S.D.Cal.1955, 129 F.Supp. 684, 685, is also consistent with the language of Wooldridge: “The classical legal elements of an ‘attempt’ are the intent to commit a crime, the execution of some overt act in pursuance of the intention, and a failure to consummate the crime.” Also see Giles v. United States, 9 Cir. 1946, 157 F.2d 588, 590, where the court found no error in the following jury instruction: “ ‘An attempt is an act tending toward the accomplishment, and done in part execution of the design to commit a crime, exceeding an intent but falling short of an execution of it.’ ”

United States v. De Bolt, S.D. Ohio 1918, 253 F. 78, involved an apparent attempt to sabotage the manufacture of war materials in violation of federal law. With regard to the elements of an attempt, the court in this case quoted Bishop’s New Crim. Law (1892) vol. 1, §§ 728, 729:

“ ‘An attempt is an intent to do a particular criminal thing, with an act toward it falling short of the thing intended. Hence, the two elements of an evil intent and a simultaneous resulting act constitute, and yet only in combination, an indictable offense, the same as in any other crime.’ ”

The court also cited Wooldridge v. United States, supra, and United States v. Quincy, 1832, 31 U.S. (6 Pet.) 445, 8 L.Ed. 458, discussed infra.

Gregg v. United States, 8 Cir. 1940, 113 F.2d 687, involved in part a conviction for an attempt to import intoxicating liquor into Kansas. The court in this case acknowledges with apparent approval the definition of attempt urged by appellant Gregg:

“He calls attention to the fact that an attempt is an endeavor to do an act carried beyond mere preparation, but falling short of execution, and that it must be a step in the direct movement towards the commission of the crime after preparations have been made. People v. Collins, 234 N.Y. 355, 137 N.E. 753. The act must ‘carry the project forward within dangerous proximity to the criminal end to be attained.’ Cardozo, J., in People v. Werblow, 241 N.Y. 55, 148 N.E. 786, 789; People v. Rizzo, 246 N.Y 334, 158 N.E. 888, 55 A.L.R. 711; People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913; State v. McCarthy, 115 Kan. 583, 224 P. 44; State v. Davis, 319 Mo. 1222, 6 S.W 2d 609; Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55; Wooldridge v. United States, 9 Cir., 237 F. 775.”

113 F.2d at 690. The court held, however, that Gregg’s conduct went beyond “mere preparation”:

“The transportation of goods into a state is essentially a continuing act not confined in its scope to the single instant of passage across a territorial boundary. In our view the appellant advanced beyond the stage of mere preparation when he loaded the liquor into his car and began his journey toward Kansas. From that moment he was engaged in an attempt to transport liquor into Kansas within the clear intent of the statute.”

113 F.2d at 691. Also see United States v. Duane, D.Neb 1946, 66 F.Supp. 459.

In United States v. Coplon, 2 Cir. 1950, 185 F.2d 629, where the defendant *375was arrested before passing to a citizen of a foreign nation classified government documents contained in defendant’s purse, Judge Learned Hand surveyed the law and addressed th.e issue of what would constitute an attempt:

“Because the arrest in this way interrupted the consummation of the crime one point upon the appeal is that her conduct still remained in the zone of ‘preparation,’ and that the evidence did not prove an ‘attempt.’ This argument it will be most convenient to answer at the outset. A neat doctrine by which to test when a person, intending to commit a crime which he fails to carry out, has ‘attempted’ to commit it, would be that he has done all that it is within his power to do, but has been prevented by intervention from outside; in short, that he has passed beyond any locus poenitentiae. Apparently that was the original notion, and may still be law in England; but it is certainly not now generally the law in the United States, for there are many decisions which hold that the accused has passed beyond ‘preparation,’ although he has been interrupted before he has taken the last of his intended steps. The decisions are too numerous to cite, and would not help much anyway, for there is, and obviously can be, no definite line; but Judge Cullen’s discussion in People v. Sullivan,1 and Mr. Justice Holmes’ in two Massachusetts decisions,2 are particularly enlightening. In the second of the Massachusetts opinions Holmes, J., said: “Preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.’ We have found scarcely any decisions of federal courts, but, so far as they go, they are in accord.3 There can be no doubt in the case at bar that ‘preparation’ had become ‘attempt.’ The jury were free to find that the packet was to be delivered that night, as soon as they both thought it safe to do so. To divide ‘attempt’ from ‘preparation’ by the very instant of consummation would be to revert to the old doctrine.”

185 F.2d at 632, 633. Also see United States v. Butler, S.D N.Y.1962, 204 F.Supp. 339, 343, where the court considered “whether the conduct of the defendant went sufficiently far towards the commission of the crime to constitute an attempt or whether it merely constituted preparation.”

In United States v. Robles, N.D.Cal.1960, 185 F.Supp. 82, 85, a case in which the defendant was charged with using communication facilities in attempting to import heroin illegally, the court enunciated the following test:

“The language of Title 18 U.S.C. § 1403 is such as to compel a conclusion that an attempt may be made by the mere use of communication facilities. To attempt to do an act does not imply a completion of the act, or in fact any definite progress towards it. Any effort or endeavor to effect the act will satisfy the terms of the law. United States v. Quincy, 6 Pet. 445, 31 U.S 445, 8 L.Ed. 458; and see: United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553; and Simpson v. United States, 9 Cir., 195 F.2d 721, 13 Alaska 635 ”

The language used in Robles, supra, is drawn directly from United States v. Quincy, 1832, 31 U.S. (6 Pet.) 445, at 464, 8 L.Ed. 458, which involved an indictment under a statute which made it unlawful to attempt to fit out and arm a *376vessel with intent to employ her in the service of a foreign people. The Supreme Court in Quincy further stated that, “The offence consists principally in the intention with which the preparations were made .... And this must be a fixed intention .... This intention is a question belonging exclusively to the jury to decide It is the material point on which the legality of criminality of the act must turn.” 31 U.S. (6 Pet.) at 466, 8 L.Ed. 458.

In Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 148, we noted that, “Much ink has been spilt in an attempt to arrive at a satisfactory standard for telling where preparations ends [sic] and attempt begins,” and that the question had not been decided by this Court. The Court in Mims, at 148 n. 40, did note that the following test from People v. Buffum, 40 Cal.2d 709, 256 P.2d 317, 321, has been “frequéntly approved”:

“ ‘Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature. * * * ’ (Emphasis added.)”

Although the foregoing cases give somewhat varying verbal formulations, careful examination reveals fundamental agreement about what conduct will constitute a criminal attempt. First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting. United States v Quincy, supra, 31 U.S. (6 Pet.) at 466, 8 L.Ed. 458 (“The offence consists principally in the intention with which the preparations were made”); Wooldridge v. United States, supra, 237 F. at 779 (“although it may have been his intention”); United States v. Baker, supra, 129 F.Supp. at 685 (“the intent to commit a crime”); Giles v. United States, supra, 157 F.2d at 590 (“the design to commit a crime”); United States v. Coplon, supra, 185 F.2d at 633 (“the intent to complete [the crime] renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime” [emphasis added]); United States v. Noreikis, supra, 481 F.2d at 1181 (“ ‘the crime he intends to commit’ ” [emphasis added]); United States v. Heng Awkak Roman, supra, 356 F.Supp at 437 n. 5 (“There is no doubt here, and I so find, that the defendants had the requisite mens rea; that is, that their actions were knowing and intentional, and with the purpose of distributing the heroin.”); People v. Buffum, supra (“the will of the attempter”).

Second, the defendant must have 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. Wooldridge v. United States, supra, 237 F. at 779 (“an overt act toward the commission of the crime charged”); Lemke v. United States, supra, 211 F.2d at 75 (“an overt act done toward its [the crime’s] commission”); United States v. Baker, supra (“some overt act in pursuance of the intention”) ; Giles v. United States, supra (“an act tending toward the accomplishment, and done in part execution of the design to commit a crime”); Gregg v. United States, supra, 113 F.2d at 690 (“a step in the direct movement towards the commission of the crime after preparations have been made”); United States v. Coplon, supra, 185 F.2d at 633 (“there are many decisions which hold that the accused has passed beyond ‘preparation,’ although he has been interrupted before he has taken the last of his intended steps . . . there is, and obviously can be, no definite line”); United States v. Robles, supra 185 F.Supp. at 85 (“Any effort or endeavor to effect the act”); United States v. Noreikis, supra 481 F.2d at 1181 (“the commission of an overt act, the ‘doing some*377thing directly moving toward, and bringing him nearer, the crime he intends to commit’ ”); People v. Buffum, supra, 256 P.2d at 321 (“there must be some appreciable fragment of the crime committed .... the act must not be equivocal in nature”). The use of the word “conduct” indicates that omission or possession, as well as positive acts, may in certain cases provide a basis for liability. The phrase “substantial step,” rather than “overt act,” is suggested by Gregg v. United States, supra (“a step in the direct movement toward the commission of the crime”); United States v. Coplon, supra (“before he has taken the last of his intended steps”) and People v. Buffum, supra (“some appreciable fragment of the crime”) and indicates that the conduct must be more than remote preparation. The requirement that the conduct be strongly corroborative of the firmness of the defendant’s criminal intent also relates to the requirement that the conduct be more than “mere preparation,” and is suggested by the Supreme Court’s emphasis upon ascertaining the intent of the defendant, United States v. Quincy, supra, and by the approach taken in United States v. Coplon, supra 185 F.2d at 633 (“. . . some preparation may amount to an attempt. It is a question of degree”).6

*378III.

The district court charged the jury in relevant part as follows:

“Now, the essential elements required in order to prove or to establish the offense charged in the indictment, which is, again, that the defendant knowingly and intentionally attempted to distribute a controlled substance, must first be a specific intent to commit the crime, and next that the accused wilfully made the attempt, and that a direct but ineffectual overt act was done toward its commission, and that such overt act was knowingly and intentionally done in furtherance of the attempt.

“ * -x- x- jn determining whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging a means for its commission, is not sufficient to constitute an attempt, but the acts of a person who intends to commit a crime will constitute an attempt where they, themselves, clearly indicate a certain unambiguous intent to wilfully commit that specific crime and in themselves are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.”

(Tr. Jury Trial Proc., pp. 138-139.) These instructions, to which the defendant did not object, are compatible with our view of what constitutes an attempt under section 846.

After the jury brought in a verdict of guilty, the trial court propounded a series of four questions to the jury:

“(1) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally placed several telephone calls in order to obtain a source of heroin in accordance with his negotiations with Officer Cavalier which were to result in the distribution of approximately one ounce of heroin from the defendant Roy Mandujano to Officer Cavalier?”

“(2) Do you find beyond a reasonable doubt that the telephone calls inquired about in question no. (1) constituted overt acts in furtherance of the offense alleged in the indictment?”

“(3) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally requested and received prior payment in the amount of $650.00 for approximately one ounce of heroin that was to be distributed by the defendant Roy Mandujano to Officer Cavalier ?”

“(4) Do you find beyond a reasonable doubt that the request and receipt of a prior payment inquired about in question no. (3) constituted an overt act in furtherance of the offense alleged in the indictment?"

Neither the government nor the defendant objected to this novel procedure. After deliberating, the jury answered “No” to question (1) and “Yes” to questions (3) and (4). The jury’s answers indicate that its thinking was consistent with the charge of the trial court.

The evidence was sufficient to support a verdict of guilty under section 846. Agent Cavalier testified that at Mandujano’s request, he gave him $650.-00 for one ounce of heroin, which Mandujano said he could get from a “good contact.” From this, plus Mandujano’s comments and conduct before and after the transfer of the $650.00, as described in Part I of this opinion, the jury could have found that Mandujano was acting knowingly and intentionally and that he *379engaged in conduct — the request for and the receipt of the $650.00 — which in fact constituted a substantial step toward distribution of heroin. From interrogatory (4), it is clear that the jury considered Mandujano’s request and receipt of the prior payment a substantial step toward the commission of the offense. Certainly, in the circumstances of this case, the jury could have found the transfer of money strongly corroborative of the firmness of Mandujano’s intent to complete the crime. Of course, proof that Mandujano’s “good contact” actually existed, and had heroin for sale, would have further strengthened the government’s case; however, such proof was not essential.

IV.

Mandujano claims prejudicial error with regard to two evidentiary questions. The first question arose near the beginning of Agent Cavalier’s testimony:

“A. Shortly after we have been talking for awhile, Mr. Mandujano looks at Mr. O’Leary and asks Mr. O’Leary if he was looking for stuff. I entered saying, ‘Yes, I was.’

“Q. In your understanding, what were you talking about, the stuff?

“MR. ALEXANDER [Attorney for Defendant]: Objection. This would be a conclusion on the witness’ part.

“MR. PINCKNEY [U.S. Attorney] : Of his own state of mind, your Honor, not someone else’s.

“THE COURT: How long have you been in the .job that you have?

“A. Since May, 1972, sir, on my present assignment.

“THE COURT: And how many times have you acted in an undercover capacity?

“A. Between November of ’72 and May of ’73 I acted in a total undercover capacity eighty-six times, I believe, sir. .

“THE COURT: In your experience dealing in the narcotics traffic, what have you understood the word ‘stuff’ to mean? I am asking it, counsel, and the record will reflect that you are objecting to it, and the Court will overrule the objection.

“A. ‘Stuff’ on the street, between narcotic traffickers and some of the local people in those streets, ‘stuff’ refers to narcotics.”

(Tr. 24-25.) Mandujano argues that allowing Cavalier to testify as to his understanding of the word “stuff” exposed the jury to the inference that Mandujano dealt in narcotics. In the light of Cavalier’s later testimony that Mandujano said he had good brown Mexican heroin available for sale, if Cavalier would wait until the regular man made his deliveries, and that Mandujano later tried to locate an immediate source of heroin for Cavalier, it is doubtful that Cavalier’s testimony on this point was prejudicial. At any rate, a trial court has some latitude in permitting a witness on direct examination to testify as to his conclusions, based on common knowledge or experience. See United States v. Trenton Potteries, 1927, 273 U.S. 392, 407, 47 S.Ct. 377, 71 L.Ed. 700; Batsell v. United States, 8 Cir. 1954, 217 F.2d 257, 262; Wiley v. United Sates, 8 Cir. 1958, 257 F.2d 900, 908; VII Wigmore Evidence (3rd ed.) §§ 1923, 1924, 1925. The court in this instance ascertained that Cavalier had wide experience as an undercover agent dealing in the narcotics traffic. We conclude that the trial court acted within its discretion in allowing Cavalier to testify as to his understanding of the word “stuff.”

The second evidentiary question developed near the end of Cavalier’s testimony. Cavalier had just testified that “We aborted the deal” (Tr. 31), and the United States Attorney proposed to ask Cavalier why he didn’t try to contact Mandujano again After a bench con*380ference and then a conference in the absence of the jury, the trial court decided to allow the following which was read to the jury by the court reporter:

“Q. Subsequent to the calls that you received on the evening of March 29th, 1973, why did you not again attempt to contact Mr. Mandujano?

“A. Based on the information that I had received, it would be unsafe for either my informant or myself to return to this area.”

(Tr. 40.) The court cautionéd the jury immediately that the answer to this question was admitted “only to show what was in his mind, not as proof to you or any evidence to you that it actually was unsafe, but only what he had been told and why he didn’t go back.” As limited by the trial court, the testimony was admissible to show Cavalier’s state of mind. See VI Wigmore, Evidence (3rd ed.) § 1789. This testimony was not so inherently prejudicial that the trial court should have suppressed it.

For the reasons stated in this opinion, the judgment is

Affirmed.

OPINION

DROWOTA, Judge.

The defendant, Trade Reeves, appeals from the Court of Appeals’ affirmance of the trial court’s order designating her a delinquent child. The trial court’s delinquency order, which was entered following a jury trial, was based on the jury’s finding that the defendant had attempted to commit second degree murder — a violation of Tenn.Code Ann. § 39-12-101. The specific issue for our determination is whether the defendant’s actions constitute a “substantial step,” under § 39-12~101(a)(3), toward the commission of that crime. For the following reasons, we hold that they do, and therefore affirm the judgment of the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

On the evening of January 5, 1993, Trade Reeves and Molly Coffman, both twelve years of age and students at West Carroll Middle School, spoke on the telephone and decided to kill their homeroom teacher, Janice Geiger. The girls agreed that Coffman would bring rat poison to school the following day so that it could be placed in Geiger’s drink. The girls also agreed that they would thereafter steal Geiger’s car and drive to the Smoky Mountains. Reeves then contacted Dean Fouteh, a local high school student, informed him of the plan, and asked him to drive Geiger’s car. Fouteh refused this request.

On the morning of January 6, Coffman placed a packet of rat poison in her purse and boarded the school bus. During the bus ride Coffman told another student, Christy Hernandez, of the plan; Coffman also showed Hernandez the packet of rat poison. Upon their arrival at school Hernandez informed her homeroom teacher, Sherry Cock-rill, of the plan. Cockrill then relayed this information to the principal of the school, Claudia Argo.

When Geiger entered her classroom that morning she observed Reeves and Coffman leaning over her desk; and when the girls noticed her, they giggled and ran back to their seats. At that time Geiger saw a purse lying next to her coffee cup on top of the desk. Shortly thereafter Argo called Coff-man to the principal’s office. Rat poison was found in Coffman’s purse and it was turned over to a Sheriffs Department investigator. Both Reeves and Coffman gave written statements to the investigator concerning their plan to poison Geiger and steal her car.

Reeves and Coffinan were found to be delinquent by the Carroll County Juvenile Court, and both appealed from that ruling to the Carroll County Circuit Court. After a jury found that the girls attempted to commit second degree murder in violation of Tenn.Code Ann. § 39-12-101, the “criminal attempt” statute, the trial court affirmed the juvenile court’s order and sentenced the girls to the Department of Youth Development for an indefinite period. Reeves appealed from this judgment to the Court of Appeals, which affirmed the judgment of the trial court. Reeves then applied to this Court for permission to appeal pursuant to Tenn.RApp.P. 11. Because we have not addressed the law of criminal attempt since the comprehensive reform of our criminal law undertaken by the legislature in 1989, we granted that application.

Prior and Current Law of Criminal Attempt

Before the passage of the reform legislation in 1989, the law of criminal attempt, *911though sanctioned by various statutes, was judicially defined. In order to submit an issue of criminal attempt to the jury, the State was required to present legally sufficient evidence of: (1) an intent to commit a specific crime; (2) an overt act toward the commission of that crime; and (3) a failure to consummate the crime. Bandy v. State, 575 S.W.2d 278, 281 (Tenn.1979); Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449, 451 (1963); Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238, 240 (1959).

Of the elements of criminal attempt, the second, the “overt act” requirement, was by far the most problematic. By attempting to draw a sharp distinction between “mere preparation” to commit a criminal act, which did not constitute the required overt act, and a “direct movement toward the commission after the preparations had been made,” Dupuy, 325 S.W.2d at 239, 240, which did, Tennessee courts construed the term “overt act” very narrowly. The best example of this extremely narrow construction occurred in Dupuy. In that case, the Memphis police sought to lay a trap for a pharmacist suspected of performing illegal abortions by sending a young woman to request these services from him. After the woman had made several attempts to secure his services, he finally agreed to perform the abortion. The pharmacist transported the young woman to a hotel room, laid out his instruments in preparation for the procedure, and asked the woman to remove her clothes. At that point the police came into the room and arrested the pharmacist, who then admitted that he had performed abortions in the past. The defendant was convicted under a statute that made it illegal to procure a miscarriage, and he appealed to this Court.

A majority of this Court reversed the conviction. After admitting that the defendant’s “reprehensible” course of conduct would doubtlessly have resulted in the commission of the crime “had he not been thwarted in his efforts by the arrival of the police,” Dupuy, 325 S.W.2d at 239, the majority concluded that:

While the defendant had completed his plan to do this crime the element of attempt [overt act] does not appear in this record. The proof shows that he did not use any of the instruments and did not touch the body of the girl in question. Under such facts we do not think that the defendant is guilty under the statute.

Dupuy, 325 S.W.2d at 240.

To support its holding, the Dupuy court quoted a treatise passage concerning actions that constituted “mere preparation,” as opposed to actions that would satisfy the overt act requirement:

In a general way, however, it may be said that preparation consists in devising or arranging the means or measures necessary for the commission of the offense and that the attempt [overt act] is the direct movement toward the commission after the preparations are made. Even though a person actually intends to commit a crime, his procurement of the instrumentalities adapted to that end will not constitute an attempt to commit the crime in the absence of some overt act.

Id. (quoting 14 Am.Jur. § 68 (1940)). To further illustrate the foregoing principle the majority provided the following example: “the procurement by a prisoner of tools adapted to breaking jail does not render him guilty of an attempt to break jail.” Id.

As indicated above, the sharp differentiation in Dupuy between “mere preparation” and “overt act,” or the “act itself,” was characteristic of the pre-1989 attempt law. See e.g., Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963) (criminal solicitation does not constitute an attempt); McEwing v. State, 134 Tenn. 649, 185 S.W. 688 (1915) (conviction for attempted rape affirmed because defendant actually laid hands on the victim). In 1989, however, the legislature enacted a general criminal attempt statute, Tenn.Code Ann. § 39-12-101, as part of its comprehensive overhaul of Tennessee’s criminal law. In that statute, the legislature did not simply codify the judicially-created elements of the crime, but utilized language that had up to then been entirely foreign to Tennessee attempt law. Section 39-12-101 provides, in pertinent part, as follows:

*912(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believe them to be, and the conduct constitutes a substantial step toward the commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person’s entire course of action is corroborative of the intent to commit the offense.

(emphasis added.)

The Substantial Step Issue

As stated above, our task is to determine whether the defendant’s actions in this case constitute a “substantial step” toward the commission of second degree murder under the new statute. The “substantial step” issue has not yet been addressed by a Tennessee court in a published opinion, and the question is made more difficult by the fact that the legislature declined to set forth any definition of the term, preferring instead to “leave the issue of what constitutes a substantial step [to the courts] for determination in each particular case.” § 39-12-101, Comments of Sentencing Commission.

In addressing this issue, we first note that the legislature, in enacting § 39-12-101, clearly looked to the criminal attempt section set forth in the Model Penal Code. That section provides, in pertinent part, as follows:

(1) Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result, without further conduct on his part; or

(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime

Model Penal Code, Section 5.01 (emphasis added.)

The State argues that the striking similarity of Tenn.Code Ann. § 39-12-101 and the Model Penal Code evidences the legislature’s intention to abandon the old law of criminal attempt and instead adopt the Model Penal Code approach. The State then avers that the model code contains examples of conduct which, if proven, would entitle, but not require, the jury to find that the defendant had taken a “substantial step;” and that two of these examples are applicable to this case. The section of the model code relied upon by the State, § 5.01(2), provides, in pertinent part, as follows:

(2) Conduct which may be held substantial step under paragraph (l)(c). Conduct shall not be held to constitute a substantial step under paragraph (l)(c) of this Section unless it is strongly corroborative of the actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law:

(e) possession of materials to be employed in the commission of the crime, *913which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;

(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

(emphasis added.)

The State concludes that because the issue of whether the defendant’s conduct constitutes a substantial step may be a jury question under the model code, the jury was justified in finding her guilty of attempting to commit second degree murder.

The defendant counters by arguing that despite the similarity of Tenn.Code Ann. § 39-12-101 and the Model Penal Code’s attempt provision, the legislature intended to retain the sharp distinction between “mere preparation” and the “act itself’ characteristic of such decisions as Dupuy. She supports this assertion by pointing out that although the legislature could have easily included the examples set forth in § 5.01(2) of the model code, the Tennessee statute does not include the examples. The defendant concludes that the new statute did not substantially change Tennessee attempt law, and that her conviction must be reversed because her actions constitute “mere preparation” under Dupuy.

Initially, we cannot accept the argument that the legislature intended to explicitly adopt the Model Penal Code approach, including the examples set forth in § 5.01(2). Although § 39-12-101 is obviously based on the model code, we agree with the defendant that the legislature could have, if it had so desired, simply included the specific examples in the Tennessee statute. That it did not do so prohibits us from concluding that the legislature explicitly intended to adopt the model code approach in all its particulars.

This conclusion does not mean, however, that the legislature intended to retain the distinction between “mere preparation” and the “act itself.” Moreover, while we concede that a strong argument can be made that the conviction conflicts with Dupuy because the defendant did not place the poison in the cup, but simply brought it to the crime scene, we also are well aware that the Dupuy approach to attempt law has been consistently and effectively criticized. One persistent criticism of the endeavor to separate “mere preparation” from the “act itself’ is that the question is ultimately not one of kind but of degree;1 the “act itself’ is merely one of the termini on a continuum of criminal activity. Therefore, distinguishing between “mere preparation” and the “act itself’ in a principled manner is a difficult, if not impossible, task.2 See U.S. v. Dworken, 855 F.2d 12, 19 (1st Cir.1988); U.S. v. Brown, 604 F.2d 347, 350 (5th Cir.1979); Levenbook, Prohibiting Attempts and Preparations, 49 U.M.K.C.L.Rev. 41 (1980); Hall, Criminal Attempt—A Study of Foundations of Criminal Liability, 40 Yale L.J. 789, 821-22 (1940). The other principal ground of criticism of the Dupuy approach bears directly on the primary objective of the law — that of preventing inchoate crimes from becoming full-blown ones. Many courts and commen*914tators have argued that failing to attach criminal responsibility to the actor — and therefore prohibiting law enforcement officers from taking action' — until the actor is on the brink of consummating the crime endangers the public and undermines the preventative goal of attempt law. See People v. Tenell, 99 Ill.2d 427, 77 Ill.Dec. 88, 92, 459 N.E.2d 1337, 1341 (1984); U.S. v. Prichard, 781 F.2d 179, 182 (10th Cir.1986); U.S. v. Stallworth, 543 F.2d 1038,1040 (2d Cir.1976). See generally Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum.L.Rev. 571, 586-611 (1961).

The shortcomings of the Dupuy rule with respect to the goal of prevention are particularly evident in this case. As stated above, it is likely that under Dupuy no criminal responsibility would have attached unless the poison had actually been placed in the teacher’s cup. This rigid requirement, however, severely undercuts the objective of prevention because of the surreptitious nature of the act of poisoning. Once a person secretly places a toxic substance into a container from which another person is likely to eat or drink, the damage is done. Here, if it had not been for the intei’vention of the teacher, she could have been rendered powerless to protect herself from harm.

After carefully weighing considerations of stare decisis against the persuasive criticisms of the Dupuy rule, we conclude that this artificial and potentially harmful rule must be abandoned. We hold that when an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a “substantial step” toward the commission of the crime if such action is strongly corroborative of the actor’s overall criminal purpose.3 For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

ANDERSON, C.J., and REID and WHITE, JJ., concur.

BIRCH, J., files separate concurring and dissenting opinion.

BIRCH, Justice,

concurring and dissenting.

I concur in the majority’s statement of the rule to be applied in deciding whether a criminal attempt has occurred. I dissent, however, from their application of that rule to this case.

The applicable standard of review for this case is “[findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn.R.App.P. 13(e); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (“[T]he relevant question [in reviewing the sufficiency of the evidence] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”). Applying this standard of review, I would find that under the test adopted by the *915majority for determining whether a “substantial step” was taken, the evidence in this case is insufficient as a matter of law.

Tenn.Code Ann. § 39-12-101, the criminal attempt statute, states, in pertinent part:

(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense:

(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the pei'son believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person’s entire course of action is corroborative of the intent to commit the offense.

(Emphasis added). Based upon this record, I would find that the “entire course of action” of these two twelve-year-old girls was not “strongly corroborative” of intent to commit second-degree murder and that the evidence was insufficient as a matter of law. In looking at the “entire course of action,” we should remember that these were twelve-year-old girls, not explosive-toting terrorists.

Accordingly, while I concur in the majority’s abandonment of the rule stated in Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238 (1959), I dissent from the conclusion of the majority in this case.

Opinion by

Hoffman, J.,

Appellant contends that the Commonwealth’s evidence at trial was insufficient to sustain his conviction for an attempted prison breach.1

*579At the time of the alleged offense, appellant was serving a one- to three-years sentence for larceny in the Luzerne County Prison. At about 12:15 a.m., on December 26, 1972, James Larson, a Guard Supervisor at the prison, heard an alarm go off that indicated that someone was attempting an escape in the recreation area of the prison. The alarm was designed so that it could be heard in the prison office, but not in the courtyard. Larson immediately contacted Guards Szmulo and Banik. Initially, the guards checked the prison population, but found no one missing. The three men then conducted a search of the area where the alarm had been “tripped”. Near the recreation yard between two wings of the prison, they found one piece of barbed wire that had been cut. In addition, Guard Szmulo found a laundry bag filled with civilian clothing. The bags are issued by the prison and are marked with a different number for each prisoner. A check revealed that the bag belonged to appellant.

At approximately 5:15 a.m., on December 26, the appellant voluntarily approached Larson. Appellant had spent that night on the nine p.m. to five a.m. shift at work in the boiler room, situated near the point where the alarm had been triggered. Appellant explained to Larson that “I was gonna make a break last night, but I changed my mind because I thought of my family, and I got scared of the consequences.” Appellant testified at trial that he had become depressed prior to his decision to escape because he had been denied a Christmas furlough on December 24, 1972. His testimony at trial was consistent with Larson’s version of the episode: “... in the yard, I realized that I had shamed my family enough, and I did not want to shame them any more .... So I went back to the boiler room and continued working.”

On April 18, 1973, the grand jury returned an indictment charging the appellant with prison breach. Appellant went to trial on May 25, 1973, before a judge sitting without a jury and was found guilty of attempted prison *580breach. Thereafter, appellant filed motions in arrest of judgment and for a new trial. Motions were heard in October, 1973, and denied on June 10, 1974, by the Luzerne County Court of Common Pleas en banc. This appeal followed.

A criminal attempt is defined as “an overt act done in pursuance of an intent to do a specific thing, tending to the end by falling short of complete accomplishment of it. In law, the definition must have this further qualification, that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. So long as the acts are confined to preparation only, and can be abandoned before any transgression of the law or of others’ rights, they are within the sphere of intent and do not amount to attempts.” Commonwealth v. Eagan, 190 Pa. 10, 21-22 (1899) (Emphasis added). Thus, we must locate the line between an act which is mere preparation and one that is sufficiently proximate to be labelled an attempt.

A review of the cases on the law of attempt indicates that “[i]t is difficult to formulate any precise rule about how close the overt act must come to the accomplishment of the ultimate criminal result.” 21 Am. Jur. 2d Criminal Law §111. “At what point does a potential criminal pass beyond preparation and become guilty of an attempt? Among the various tests suggested or applied are: the last act doctrine, holding that the defendant will not be guilty of an attempt until he does the last act necessary to the commission of a crime; Justice Holmes’ dangerous-proximity test which focusses on both the dangerousness of the crime and the nearness to which the defendant has come to accomplishing it; and the movie camera test, which disregards the defendant’s declarations of intent and instead focusses on the extent to which his acts demonstrate a specific intent or commitment to the criminal purpose.” White, The Inchoate Crimes Provisions of *581the New Pennsylvania Penal Code, 35 Pitt. L. Rev. 235, 237-38 (1973). Professor White suggests that the law in Pennsylvania approximates the last act doctrine, Id.

Commonwealth v. Willard, 179 Pa. Superior Ct. 368, 116 A. 2d 751 (1955), represents the broadest statement of what constitutes mere preparation. In Willard, this Court reversed the appellant’s conviction for attempt to perform an abortion. The Commonwealth proved that the appellant accepted $160 from a police undercover agent, told her to undress and to lie on a bed equipped for the operation, left the room momentarily and returned with surgical instruments. At that point, the police agent and her “paramour”, stationed in the next room, arrested the appellant. These acts were held not “sufficiently close or proximate to the completed crime so that it could be said that they were done in pursuance of the intent to commit the crime as distinguished from mere preparation to commit the crime.” 179 Pa. Superior Ct. at 371, 116 A.2d at 752-753.2

In Commonwealth v. Eagan, supra, a seminal case on the law of attempts, the Court noted that “. . . the acts of the prisoner in going to [the victim’s] place and watching his house, and even of preparing the rope to tie him, while undoubtedly done in pursuance of the intent, did not go beyond mere preparation, and had the intent been abandoned at this point, an indictment for an attempt to commit robbery or burglary could not have been sustained. But the moment a blow was struck on [the victim] the first step of the actual crime had been taken, and *582the intent was merged in the attempt. Subsequent abandonment might prevent the completion of the crime, but could not save from the consequences of acts done in the attempt.” 190 Pa. at 22.

We recently dealt with an attempted prison breach in Commonwealth v. Skipper, 222 Pa. Superior Ct. 242, 294 A. 2d 780 (1972). In Skipper, appellant approached a fellow prisoner and asked him to procure hacksaw blades to be used in an escape attempt. The fellow prisoner, Commonwealth’s witness at trial, worked in a bakery in a day release program and was to hide the blades in loaves of bread bound for the prison kitchen. Prison officials intercepted a note that the Commonwealth’s witness attempted to pass to a third prisoner, one Schaef-fer, who was to pay him for smuggling the blades into the prison. Subsequently, prison officials caught Schaeffer attempting to go over the prison wall. They found one of the smuggled blades on Schaeffer. A “shake-down” of the prison uncovered two additional blades in appellant’s cell. We reversed appellant’s conviction, noting that “discovery of the hacksaw blades in appellant’s cell did no more than interrupt appellant’s alleged plan in a preparatory stage. If the hacksaw blades were in fact procured by the appellant for use in an intended prison breach, appellant would have had sufficient time to withdraw before the commission of the offense.” 222 Pa. Superior Ct. at 245, 294 A. 2d at 781.

In the instant case, the evidence on the record indicates that appellant scaled a fence within the prison walls that led to the recreation yard and then to the prison wall. Appellant testified that “I went over the fence. I was in the yard.

“Q. Well, when you say you went over the fence, this is still in the prison?

“A. This is still in the prison, yes, sir. . .”

The Commonwealth’s evidence supports the appellant’s claim that he went only as far as the yard before giving *583up his plan to escape. Guard Szmulo testified that “We checked the trip wire. We couldn’t find nothing broke. And then when I got to the gate that goes into the recreation yard between center and left wing, I found one barbed wire was cut.” Thus appellant was still within the prison, still only contemplating a prison breach, and not yet attempting the act. He was thus in a position to abandon the criminal offense of attempted prison breach voluntarily, thereby exonerating himself from criminal responsibility.

Judgment of sentence is vacated and appellant ordered discharged on the conviction of attempted prison breach.

Watkins, P. J., and Jacobs and Spaeth, JJ., join in this opinion.

Van dee Voort, J., concurs in the result.

Concurring Opinion by

Cercone, J.:

I agree with the majority that appellant’s conviction for attempted prison breach should not be permitted to stand. However, I disagree with the basis for the majority’s conclusion, that the acts done by appellant prior to his decision to abandon his escape were insufficient to constitute an attempt. I would have found little difficulty, for instance, in affirming appellant’s conviction had he been apprehended by the guards immediately after he had snipped the barbed wire and crossed the inner fence. To hold otherwise is to require that prisoners must literally be plucked from the prison wall before their conduct may be characterized as attempted prison breach.

I respectfully suggest that the majority has fallen into a trap peculiarly common to the law of attempts. As Professor Perkins has stated in discussing when conduct ceases to be merely preparatory and becomes perpetration:

“The preparatory-perpetrating dichotomy is useful in discussing situations of a rather general nature, but the actual dividing line between the two is shadowy *584in the extreme. There is reason to believe that in close cases the decision is based wpon other considerations and that the label attached is that appropriate to the conclusion reached — after it is reached.” R. Perkins, Criminal Law 561 (2d ed. 1969). [Emphasis added.]

The “other consideration” which has influenced the majority herein is appellant’s voluntary abandonment of his escape plan. In my opinion, appellant’s abandonment of his plan is a sufficient defense to the crime of attempted prison breach and should be recognized as such.

As a practical matter, it has long been recognized that plans voluntarily abandoned are less likely to be found to be attempts than are plans carried to the same point, but interrupted by the apprehension of the perpetrators. Unfortunately, in jurisdictions where voluntary abandonment or renunciation of a criminal purpose has not been recognized as an affirmative defense, the courts have sought to give effect to the defendant’s abandonment, sub silentio, by characterizing his conduct as “preparatory.” See Model Penal Code §501, comment 19 at p. 70 (Tent. Draft No. 10, 1958). That is precisely the error which the majority has made in the instant case. The difficulty with this position is that, with regard to the preparation-perpetration dichotomy, it breeds results superficially inconsistent. If voluntary abandonment is to be given effect in attempt cases, it should not be done covertly.

For some time the trend in the law has been to recognize voluntary abandonment as an affirmative and complete defense to a charge of attempt, despite the exhortations to the contrary by some commentators.1 Id. And, in *585following this trend our legislature substantially adopted section 5.01 of the Model Penal Code in drafting the attempt provisions in our recently enacted Crimes Code.2 Our Code now recognizes that abandonment under circumstances indicating voluntariness, is a complete defense to a charge of attempt. Appellant, however, was charged under our old Penal Code which did not speak to whether voluntary abandonment was a defense to a charge of attempt.3

In one of the first cases ever decided by this court, we stated:

“In the case under consideration, Johanna Tadriek left her mother’s house, intending to steal the prosecutor’s money, entered the house of the prosecutor and seated herself on the bed where she knew the money was concealed. Nothing remained to be done save to insert her hand and secure the money. Each of the three acts mentioned was intended to be, and actually was, a step towards the consummation of her felonious purpose. Taken together and in connection with the uninterrupted intent existing in her mind, we are compelled to hold that they constituted an attempt at larceny which would have been punishable had she gone no further. If the offense of larceny were not completed, we must assume, from the evidence, that *586the failure was not owing to a change of purpose, which of course would leave her guiltless, but to extraneous circumstances, over which she had no control. An overt act is one which manifests an intention to commit the crime: Bouvier’s L.D. 267. It need not be the last proximate act prior to the consummation of the attempted crime, if the latter be a felony: Uhl v. Commonwealth, 6 Grattan, 706; 1 Bish. Crim. Law, sec. 764.” Commonwealth v. Tadrick, 1 Pa. Superior Ct. 555, 566 (1896) [Emphasis added.]

It is clear that this court long ago perceived voluntary abandonment to be an affirmative defense to the crime of attempt; and, I have not been referred to any Pennsylvania authority which persuades me that this court’s implicit conclusion was then erroneous, nor any authority to indicate that this court’s observation in Tadrick has not withstood the test of time. On the contrary, as aforementioned, voluntary abandonment is now recognized in Pennsylvania as a statutory defense to an attempt charge.

Sound policy reasons also underlie the recognition of voluntary abandonment as an affirmative defense. As the drafters of the Model Penal Code have pointed out, the defense of complete and permanent abandonment should be allowed because voluntary abandonment negates the conclusion that the accused continues to be dangerous; and, the knowledge that voluntary abandonment exonerates one from criminal liability provides a motive to desist prior to completion of the crime. Model Penal Code §5.01, comment 19 at pp. 71-72 (Tent. Draft No. 10, 1958). See also Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Co-lum. L. Rev. 571, 617 (1961).4

*587Thus, I have concluded that the law in Pennsylvania recognized voluntary abandonment as an affirmative defense even prior to the adoption of the Crimes Code. In any event, the trend in the United States is so profoundly in favor of such a defense that we should have recognized its existence in the instant case even had the Crimes Code not been enacted. Furthermore, I think it would be erroneous to construe the attempts provision of the Crimes Code as somehow implying that the law was otherwise prior to the Code’s adoption. On the contrary, I think the adoption of that provision only fortifies the conclusion I have reached herein.

Therefore, I would not rest the decision of this case on the basis that appellant’s acts prior to renunciation of his criminal purpose were merely preparatory; for, as has my brother, Judge PRICE, I have concluded that appellant had clearly gone further than preparation. Rather, I would rest the instant decision on appellant’s unequivocal and undisputedly voluntary abandonment of his criminal purpose. Thus, I only concur in the result reached by the majority herein.

Spaeth, J., joins in this opinion.

Dissenting Opinion by

Price, J.:

I cannot agree with the majority’s conclusion that appellant’s acts were confined to preparation and contemplation, therefore, I must respectfully dissent.

The facts are fully set forth in the majority opinion and need not be repeated. The evidence is sufficient to establish that appellant went over a forbidden fence, albeit still within the physical confines of the prison, cut a piece of barbed wire and tripped the alarm system designed and equipped to alert the authorities to attempts *588at prison breach. Any one of these three acts "would, in my opinion, take appellant beyond preparation and contemplation. Accordingly, there is more than sufficient evidence to sustain appellant’s conviction.

I would affirm the judgment of sentence.

*85TOOKEY, J.

Defendant appeals a judgment convicting him of nine crimes, contending that the trial court erred in denying his motion for judgment of acquittal and entering convictions on four counts of attempted aggravated murder (Counts 1 through 4), three counts of attempted murder (Counts 5 through 7), and two counts of tampering with a witness (Counts 15 and 16).1 Defendant argues that the trial court erred in denying his motion for judgment of acquittal on those counts, because defendant did not take a substantial step toward the commission of each of those crimes, and thus cannot be guilty of attempt. For the reasons that follow, we affirm.

In reviewing a trial court’s denial of a defendant’s motion for judgment of acquittal, “[w]e view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt.” State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998).

Defendant was incarcerated pending prosecution on a burglary charge. Defendant became cellmates with another inmate, Crowley. Defendant told Crowley that defendant “wanted his witnesses [to his burglary case] to not show up to trial,” and that “he wanted people dead.” Specifically, defendant mentioned his father-in-law, brother-in-law, and the Wasco County District Attorney. Defendant asked Crowley whether Crowley knew of anyone who had killed a person before. Crowley responded, “Yeah, I have. I mean, I’ve been to prison. I mean, I know people that have killed people.” Defendant asked whether Crowley “could have somebody killed” and Crowley responded affirmatively. In fact, Crowley did not know of such a person. After hearing that Crowley “might know somebody that could *86do something,” defendant began “writing stuff,” including writing people’s names. Within hours, Crowley sent several inmate request forms to jail staff, asking to speak to detectives because “someone could get hurt.” Sergeant Birchfield visited Crowley, and Crowley told Birchfield what defendant had said.

When Crowley returned to his cell, defendant was writing a letter. According to Crowley, defendant “wrote out a couple letters, and he wanted to get it perfect. His detail about it had to be perfect.” When defendant finished writing the letter, he gave it to Crowley to read, then put the letter in an envelope, placed it underneath his mattress, and asked Crowley if he was a cop. The next morning, defendant gave Crowley the envelope. Defendant believed that Crowley would “put [the envelope in Crowley’s personal] property” and release it to someone outside the prison “so that a hit man could get it for [defendant] and take care of what he wanted [taken] care of.”2 The envelope contained a map of defendant’s father-in-law’s house and a letter stating:

“Dear stranger,

“I have a job for you. I need your help. There are three people I need taken care of. First one is my father-in-law. * * * Second is my brother-in-law. * * * The third is the D.A. (District Attorney). He is a piece of shit, and tears families apart. He is just as crooked as the cops in this town. * * * [My father-in-law] is leaving town October 15 for two [and a] half weeks. [Father-in-law] - Age 64 - address *** - health - bad - has had a [triple] bypass 15 years ago - takes handful of pills a day. (Dead) Net worth 150,000 to 200,000 dollars + life insurance policy. Not sure [of the] value.

“[Brother-in-law] - Age 36 - address - halfway house in Oregon or Washington/Life insurance 100,000 to 150,000. He is a recovering meth addict. Liked doing his meth through a [syringe]. (Dead)

“D.A. (District Attorney) - [first and last name] - Age 40s - (Dead) [Oregon State Bar Number].

*87“Witnesses in my and my wife’s Burg I case. I just want them threatened.

“1) [Witness’s name, address, telephone number, and date of birth]

“2) [Witness’s name, address, telephone number, and date of birth]

“There are three safes in the house. I want you to get the stuff out of the safe. You can hang on to the stuff in the safe until you are [paid]. * * *

“Stuff in safes: 1) guns 2) car titles/1968 Dodge Charger RT/value 150,000 easy 3) jewelry 4) life insurance 5) money.

“Final bill = 80.000 I will be paying you. [Father-in-law]- Natural death - heart attack. [Brother-in-law]- Drug OD. DA-Your choice.

“How I would like it to look.”

(Underscoring in original.) After giving Crowley the envelope with the letter, defendant repeatedly asked Crowley, “Are they coming yet? Are they coming yet? Is he going to do it yet? Why ain’t this done yet?”

Shortly thereafter, defendant and Crowley were placed in separate isolation cells across the hall from one another. Defendant and Crowley exchanged handwritten notes by using strings to fling cylinder-shaped papers into one another’s cells. Defendant wrote, “Any idea when dude is coming man? I decided I’m not going to let DA tear me and my family up.” Crowley responded, “I’ll give you his name [when] I get it then you can go to visit and give him the hit that way [you’re] face to face with the killer and he can talk to you and say what[’]s up.” Defendant wrote, “Ok that sounds good to me. Just got [to] let me know the day [and the] name so I can put the person on my visitors list.”

In another exchange, Crowley asked defendant whether defendant still wanted the district attorney killed even though the district attorney has a family. Defendant responded, “Hell yeah, I can deal with it. Remember toes *88pointing up to the clouds.” Crowley saved the notes that he received from defendant and gave them to jail staff.

Defendant was charged with four counts of attempted aggravated murder, three counts of attempted murder, four counts of solicitation of aggravated murder, three counts of solicitation of murder, and two counts of tampering with a witness. Defendant tried his case to the court. After the state rested, defendant moved for a judgment of acquittal as to the four counts of attempted aggravated murder, three counts of attempted murder, and two counts of tampering with a witness. Defendant argued that the state failed to present sufficient evidence that defendant engaged in conduct constituting a substantial step towards the commission of the charged crimes, as required by ORS 161.405. The trial court denied defendant’s motion for judgment of acquittal and found defendant guilty of the attempted aggravated murder, attempted murder, and tampering with a witness counts. As to the solicitation counts, the trial court found defendant guilty of attempted solicitation.

On appeal, defendant contends that the trial court erred by denying his motion for judgment of acquittal on the counts of attempted aggravated murder, attempted murder, and tampering with a witness. Defendant renews his argument that he did not take a substantial step toward the commission of the crimes of aggravated murder, murder, and tampering with a witness. According to defendant, he “did not meet with a purported ‘hit man,’ he did not engage in detailed planning, and he did not pay money or arrange to pay money,” and therefore his conduct was insufficient to satisfy the substantial step element of his attempt convictions and his convictions for tampering with a witness.3 Defendant contends that “ [h] is desire to meet with someone to make a plan is not a plan in itself, much less a substantial step toward the commission of the objective.” In response, the state argues that defendant’s conduct was “more than enough to amount to a substantial step.”

*89As noted above, our task is to determine “whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt.” Hall, 327 Or at 570. We begin with the text of ORS 161.405(1), which provides that “[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” In State v. Walters, 311 Or 80, 85, 804 P2d 1164, cert den, 501 US 1209 (1991), the Supreme Court observed that “ORS 161.405 codifies the Model Penal Code’s ‘substantial step’ test for distinguishing acts of preparation from an attempt.” (Footnote omitted.)

To constitute a substantial step, a “defendant’s conduct must (1) advance the criminal purpose charged and (2) provide some verification of the existence of that purpose.” Id. “Under that standard, an attempt *** must be established by conduct that is corroborative of the actor’s criminal purpose.” State v. Carlton, 361 Or 29, 45, 388 P3d 1093 (2017). “[T]he same conduct may constitute a substantial step toward the commission of more than one charged crime, as long as that conduct strongly corroborates the actor’s criminal purpose underlying each charged crime.” Walters, 311 Or at 86 n 9. There is no special rule regarding whether a solicitation is also an attempt: “[U]nder Oregon law, ‘[s]olicitation *** qualifies as a “substantial step” if, under the facts, the defendant’s actions exceed mere preparation, advance the criminal purpose charged, and provide some verification of the existence of that purpose.’” State v. Badillo, 260 Or App 218, 223, 317 P3d 315 (2013) (quoting State v. Johnson, 202 Or App 478, 489, 123 P3d 304 (2005), rev den, 340 Or 158 (2006) (second brackets in Badillo)).

Viewing the evidence in the light most favorable to the state, we conclude that a reasonable factfinder could determine that defendant’s conduct constituted a substantial step toward the commission of the murders of his father-in-law, brother-in-law, and the Wasco County District Attorney. As recounted above, defendant told Crowley that he “wanted people dead,” specifically mentioning his father-in-law, brother-in-law, and the Wasco County District Attorney. *90Defendant then asked Crowley whether Crowley “could have somebody killed.” When Crowley answered in the affirmative, defendant carefully composed a letter to an unknown “hit man” that set out the details of his intended murders. Then, defendant gave the letter to Crowley for the purpose of delivering it to the purported hit man. Finally, defendant inquired of Crowley why the murders were not “done yet.” As the trial court explained,

“With regard to advancing the purpose, it’s very clear from the content of the letter that the Defendant gave great consideration to the details of the offenses. And had he just sat around and thought about that, * * * we’d have no offense here. But he did the next step of writing it all down. And then he went beyond that, delivering it to a third person with the intent that it be carried out, believing that that third person had a relationship with individuals that could carry it out. And he actively inquired about the progress of the events related to his letter.”

Defendant’s contention that his “desire to meet with someone to make a plan is not a plan in itself,” mischar-acterizes the evidence. Indeed, viewed in the light most favorable to the state, the evidence shows that defendant advanced his criminal purpose by seeking out a hit man, and writing and delivering the letter to Crowley, with the intention that Crowley deliver the letter to the hit man; as a result, defendant believed that the letter alone would result in the murders of his father-in-law, brother-in-law, and the district attorney. As the trial court noted, defendant’s letter provided detail with regards to whom he wanted killed, how be wanted them killed, and how the hit man would be compensated, and after delivering the letter to Crowley, defendant repeatedly asked why the murders had not taken place. To explain why the murders were not committed promptly, Crowley later told defendant that the hit man would visit defendant to finalize the details of the murders. Before that point, however, a trier of fact could find that defendant believed that the letter alone would cause the hit man to commit the murders; indeed, defendant’s actions exceeded mere preparation because defendant had done all that he could have done under the circumstances to cause the murders of his intended victims. See State v. Taylor, 47 Or 455, *91459, 84 P 82 (1906) (holding that the defendant’s actions exceeded mere preparation for purposes of attempt where “he had * * * done all that he was expected to do, and his felonious design and action was then just as complete as if the crime had been consummated” and that “failure to commit the crime was not due to any act of [the defendant], but to the insufficiency of the agencies employed for carrying out his criminal design”). Thus, defendant’s actions advanced his criminal purpose in having his father-in-law, brother-in-law, and the district attorney murdered. Moreover, a reasonable factfinder could also conclude that that same evidence of defendant’s conduct verified his criminal purpose. In that way, defendant’s conduct was corroborative of his criminal purpose.

The facts in this case are similar to the circumstances in Johnson. In that case, the defendant solicited a woman he met in a public Internet chat room to kill his wife and daughter. 202 Or App at 481. The defendant reaffirmed his desire during “at least one” telephone conversation with the woman. Id. at 482. The defendant “described his house plan and mentioned that the sliding glass doorway to his wife’s bedroom was not lockable. Further, he stated that it would be easy to continue down a hallway to shoot his daughter.” Id. “A quid pro quo was discussed; once the plan was completed, [the] defendant stated, [the woman] would ‘never want for anything.’” Id. Ultimately, the woman informed the police of the defendant’s conversation with her, and the defendant was convicted of various counts of attempted aggravated murder, attempted murder, solicitation to commit murder, and solicitation to commit aggravated murder. Id. at 482-83. On appeal, we concluded that the defendant’s conduct constituted a “substantial step” for the purposes of proving attempt because “ample evidence would permit a finding that [the] defendant solicited [the woman] to kill his wife and daughter. That solicitation, it could be concluded, served to advance defendant’s criminal purpose—murdering his wife and daughter.” Id. at 489.

Here, defendant’s conduct was similar to the defendant’s conduct in Johnson. It is immaterial that, there, the defendant successfully solicited the woman to kill his wife *92and daughter, whereas here, defendant’s attempt to solicit the hit man failed because the hit man did not exist. As defendant concedes, for purposes of attempt, it is not necessary that conduct constituting a substantial step actually be capable of causing the crime. See ORS 161.425 (“In a prosecution for an attempt, it is no defense that it was impossible to commit the crime which was the object of the attempt where the conduct engaged in by the actor would be a crime if the circumstances were as the actor believed them to be.”)4 Accordingly, the trial court did not err in concluding that defendant took a substantial step toward the crimes of attempted aggravated murder and attempted murder.

Similarly, as to the two counts of witness tampering, a reasonable factfinder could conclude that defendant’s conduct constituted a substantial step toward the commission of tampering with the witnesses to his burglary case. Defendant initially told Crowley that he “wanted his witnesses [to his burglary case] to not show up to trial.” In his letter to the hit man, defendant wrote that he wanted the two witnesses threatened. Following his instruction to threaten the witnesses, defendant included both of the witness’s names, addresses, telephone numbers, and dates of birth. As previously mentioned, the letter also contained information on how the hit man would be paid with the personal property stolen from defendant’s father-in-law’s home. A reasonable factfinder could conclude that defendant’s conduct in instructing the purported hit man to threaten the two witnesses, with the inclusion of specific identifying information about each of the witnesses, and a method of payment, both advanced and provided verification of his criminal purpose; in that way, defendant’s conduct was corroborative of his criminal purpose. Thus, the trial court did not err in concluding that defendant took a substantial step *93toward inducing the witnesses to offer false testimony or withhold testimony.

Accordingly, because a reasonable factfinder could conclude that defendant’s conduct constituted a substantial step toward the commission of aggravated murder, murder, and tampering with a witness, the trial court did not err in denying defendant’s motion for judgment of acquittal.

Affirmed.

SERCOMBE, P. J.,

concurring.

ORS 161.405(1) provides that “[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” To constitute a “substantial step” toward the commission of a crime, “ah act must be strongly corroborative of the actor’s criminal purpose; that is, the actor’s conduct must (1) advance the criminal purpose charged; and (2) provide verification of the existence of that purpose.” State v. Carlton, 361 Or 29, 45, 388 P3d 1093 (2017). I agree with the majority that, under our case law, defendant’s actions in instructing a hypothetical hit man on the details of the crimes and the amount of compensation to be paid for commission of the crimes and delivering those instructions to a courier were a substantial step toward the commission of those crimes. See State v. Johnson, 202 Or App 478, 487-89, 123 P3d 304 (2005), rev den, 340 Or 158 (2006) (solicitation of crime as a substantial step); State v. Taylor, 47 Or 455, 459, 84 P 82 (1906) (mere preparation exceeded .when defendant had “done all that he was expected to do”).

I question whether this decision and our case law have pushed the substantial step line too far into the territory of conduct that is merely preparatory in nature. Even if actual solicitation of a crime can be a substantial step, how is an attempted solicitation equally substantial? It seems to me that conduct that advances a criminal purpose is conduct that makes the crimes more likely to occur. Defendant’s delivery of the letter to his cellmate did not make the crimes any more likely, even though the delivery corroborates defendant’s intent to commit the crimes.

*94The test that a defendant has “done all that he was expected to do” in determining whether a substantial step has been taken, while suggested by our precedents, should be re-examined and discarded, and the meaning of “advancing the criminal purpose charged” should be clarified.

FLEMING, J.

In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria’s telephone answering service, presumably for business purposes.

On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria’s answering service. Mrs. Weeks, in the course of her conversation with Lauria’s office manager, hinted broadly that she was a prostitute concerned with the secrecy of her activities and their concealment from the police. She was assured that the operation of the service was discreet and “about as safe as you can get.” It was arranged that Mrs. Weeks need not leave her address with the answering service, but could pick up her calls and pay her bills in person.

On February 11, Mrs. Weeks talked to Lauria on the telephone and told him her business was modelling and she had been referred to the answering service by Terry, one of the three prostitutes under investigation. She complained that because of the operation of the service she had lost two valuable customers, referred to as tricks. Lauria defended his service and said that her friends had probably lied to her about having left calls for her. But he did not respond to Mrs. Weeks’ hints that she needed customers in order to make money, other than to invite her to his house for a personal visit in order to get better acquainted. In the course of his talk he said “his business was taking messages. ’ ’

On February 15, Mrs. Weeks talked on the telephone to Lauria’s office manager and again complained of two lost calls, which she described as a $50 and a $100 trick. On investigation the office manager could find nothing wrong, but she said she would alert the switchboard operators about slip-ups on calls.

On April 1 Lauria and the three prostitutes were arrested. Lauria complained to the police that this attention was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of himself and the police. When asked if his records were available to police who might come *475to the office to investigate call girls, Lauria replied that they were whenever the police had a specific name. However, his service didn’t “arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them. ’ ’ In a subsequent voluntary appearance before the grand jury Lauria testified he had always cooperated with the police. But he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.

Lauria and the three prostitutes were indicted for conspiracy to commit prostitution, and nine overt acts were specified. Subsequently the trial court set aside the indictment as having been brought without reasonable or probable cause. (Pen Code, § 995.) The People have appealed, claiming that a sufficient showing of an unlawful agreement to further prostitution was made.

To establish agreement, the People need show no more than a tacit, mutual understanding between coconspirators to accomplish an unlawful act. (People v. Calhoun, 50 Cal.2d 137, 144 [323 P.2d 427] ; People v. Yeager, 194 Cal. 452, 484 [229 P. 40].) Here the People attempted to establish a conspiracy by showing that Lauria, well aware that his codefendants were prostitutes who received business calls from customers through his telephone answering service, continued to furnish them with such service. This approach attempts to equate knowledge of another’s criminal activity with conspiracy to further such criminal activity, and poses the question of the criminal responsibility of a furnisher of goods or services who knows his product is being used to assist the operation of an illegal business. Under what circumstances does a supplier become a part of a conspiracy to further an illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for criminal purposes ?

The two leading cases on this point face in opposite directions. In United States v. Falcone, 311 U.S. 205 [85 L.Ed. 128, 61 S.Ct. 204], the sellers of large quantities of sugar, yeast, and cans were absolved from participation in a moon-shining conspiracy among distillers who bought from them, while in Direct Sales Co. v. United States, 319 U.S. 703 [87 L.Ed. 1674, 63 S.Ct. 1265], a wholesaler of drugs was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a codefendant physician who was supplying them to addicts. The distinction between these two *476cases appears primarily based on the proposition that distributors of such dangerous products as drugs are required to exercise greater discrimination in the conduct of their business than áre distributors of innocuous substances like sugar and yeast.

In the earlier case, Falcone, the sellers’ knowledge of the illegal use of the goods was insufficient by itself tp make the sellers participants in a conspiracy with the distillers who bought from them. Such knowledge fell short of proof of a conspiracy, and evidence on the volume of sales was too vague to support a jury finding that respondents knew of the conspiracy from the size of the sales alone.

In the later case of Direct Sales, the conviction of a drug wholesaler for conspiracy to violate federal narcotic laws was affirmed on a showing that it had actively promoted the sale of morphine sulphate in quantity and had sold eodefendant physician, who practiced in a small town in South Carolina, more than 300 times his normal requirements of the drug, even though it had been repeatedly warned of the dangers of unrestricted sales of the drug. The court contrasted the restricted goods involved in Direct Sales with the articles of free commerce involved in Falcone: 1 ‘ All articles of commerce may be put to illegal ends, ’ ’ said the court. ‘1 But all do not have inherently the same susceptibility to harmful and illegal use. . . . This difference is important for two purposes. One is for making certain that the seller knows the buyer’s intended illegal use. The other is to show that by the sale he intends to further, promote, and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another purposes unlawful action it is not unrelated to such knowledge. . . . The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation. And there is also a ‘stake in the venture’ which, even if it may not be essential, is not irrelevant to the question of conspiracy.” (319 U.S. at pp. 710-713, 87 L.Ed. at pp. 1681, 1682.)

While Falcone and Direct Sales may not be entirely consistent with each other in their full implications, they do provide us with a framework for the criminal liability of a supplier of lawful goods or services put to unlawful use. Both the element of knowledge of the illegal use of the *477goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.

Proof of knowledge is ordinarily a question of fact and requires no extended discussion in the present case. The knowledge of the supplier was sufficiently established when Lauria admitted he knew some of his customers were prostitutes and admitted he knew that Terry, an active subscriber to his service, was a prostitute. In the face of these admissions he could scarcely claim to have relied on the normal assumption an operator of a business or service is entitled to make, that his customers are behaving themselves in the eyes of the law. Because Lauria knew in fact that some of his customers were prostitutes, it is a legitimate inference he knew they were subscribing to his answering service for illegal business purposes and were using his service to make assignations for prostitution. On this record we think the prosecution is entitled to claim positive knowledge by Lauria of the use of his service to facilitate the business of prostitution.

The more perplexing issue in the ease is the sufficiency of proof of intent to further the criminal enterprise. The element of intent may be proved either by direct evidence, or by evidence of circumstances from which an intent to further a criminal enterprise by supplying lawful goods or services may be inferred. Direct evidence of participation, such as advice from the supplier of legal goods or services to the user of those goods or services on their use for illegal purposes, such evidence as appeared in a companion case we decide today, People v. Roy, ante, p. 459 [59 Cal.Rptr. 636], provides the simplest case. When the intent to further and promote the criminal enterprise comes from the lips of the supplier himself, ambiguities of inference from circumstance need not trouble us. But in cases where direct proof of complicity is lacking, intent to further the conspiracy must be derived from the sale itself and its surrounding circumstances in order to establish the supplier’s express or tacit agreement to join the conspiracy.

In the case at bench the prosecution argues that since Lauria knew his customers were using his service for illegal purposes but nevertheless continued to furnish it to them, he must have intended to assist them in carrying out their illegal activities. Thus through a union of knowledge and intent he became a participant in a criminal conspiracy. Essentially, the People argue that knowledge alone of the continuing use of *478Ms telephone facilities for criminal purposes provided a sufficient basis from which his intent to participate in those criminal activities could be inferred.

In examining precedents in this field we find that sometimes, but not always, the criminal intent of the supplier may be inferred from his knowledge of the unlawful use made of the product he supplies. Some consideration of characteristic patterns may be helpful.

1. Intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture. (United States v. Falcone, 109 F.2d 579, 581.) For example, in Regina v. Thomas, [1957] 2 All Eng. 181, 342, a prosecution for living off the earnings of prostitution, the evidence showed that the accused, knowing the woman to be a convicted prostitute, agreed to let her have the use of his room between the hours of 9 p.m. and 2 a.m. for a charge of £3 a night. The Court of Criminal Appeal refused an appeal from the conviction, holding that when the accused rented a room at a grossly inflated rent to a prostitute for the purpose of carrying on her trade, a jury could find he was living on the earnings of prostitution.

In the present case, no proof was offered of inflated charges for the telephone answering services furnished the codefendants.

2. Intent may be inferred from knowledge, when no legitimate use for the goods or services exists. The leading California case is People v. McLaughlin, 111 Cal.App.2d 781 [245 P.2d 1076], in which the court upheld a conviction of the suppliers of horse-racing information by wire for conspiracy to promote bookmaking, when it had been established that wire-service information had no other use than to supply information needed by bookmakers to conduct illegal gambling operations.

In Rex v. Delaval (1763) 3 Burr. 1434, 97 Eng.Rep. 913, the charge was unlawful conspiracy to remove a girl from the control of Bates, a musician to whom she was bound as an apprentice, and place her in the hands of Sir Francis Delaval for the purpose of prostitution. Lord Mansfield not only upheld the charges against Bates and Sir Francis, but also against Frame, the attorney who drew up the indentures of apprenticeship transferring custody of the girl from Bates to Sir Francis. Fraine, said Lord Mansfield, must have known that Sir Francis had no facilities for teaching music to ap*479prentices so that it was impossible for him to have been ignorant of the real intent of the transaction.

In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, the defendant was convicted of conspiracy to corrupt public morals and of living on the earnings of prostitution, when he published a directory consisting almost entirely of advertisements of the names, addresses, and specialized talents of prostitutes. Publication of such a directory, said the court, could have no legitimate use and serve no other purpose than to advertise the professional services of the prostitutes whose advertisements appeared in the directory. The publisher could be deemed a participant in the profits from the business activities of his principal advertisers.

Other services of a comparable nature come to mind: the manufacturer of crooked dice and marked cards who sells his product to gambling casinos; the tipster who furnishes information on the movement of law enforcement officers to known lawbreakers. (Cf. Jackson v. State of Texas (1957) 164 Tex. Crim. Rep. 276 [298 S.W.2d 837], where the furnisher of signaling equipment used to warn gamblers of the police was convicted of aiding the equipping of a gambling place.) In such cases the supplier must necessarily have an intent to further the illegal enterprise since there is no known honest use for his goods.

However, there is nothing in the furnishing of telephone answering service which would necessarily imply assistance in the performance of illegal activities. Nor is any inference to be derived from the use of an answering service by women, either in any particular volume of calls, or outside normal working hours. Night-club entertainers, registered nurses, faith healers, public stenographers, photographic models, and free lance substitute employees, provide examples of women in legitimate occupations whose employment might cause them to receive a volume of telephone calls at irregular hours.

3. Intent may be inferred from knowledge, when the volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller’s total business. In such cases an intent to participate in the illegal enterprise may be inferred from the quantity of the business done. For example, in Direct Sales, supra, the sale of narcotics to a rural physician in quantities 300 times greater than he would have normal use for provided potent evidence of an intent to further the illegal activity. In the same case the court also found *480significant the fact that.the wholesaler had attracted as customers a disproportionately large group of physicians who had been convicted of violating the Harrison Act. In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, almost the entire business of the directory came from prostitutes.

No evidence of any unusual volume of business with prostitutes was presented by the prosecution against Lauria.

Inflated charges, the sale of goods with no legitimate use, sales in inflated amounts, each may provide a fact of sufficient moment from which the intent of the seller to participate in the criminal enterprise may be inferred. In such instances participation by the supplier of legal goods to the illegal enterprise may be inferred because in one way or another the supplier has acquired a special interest in the operation of the illegal enterprise. His intent to participate in the crime of which he has knowledge may be inferred from the existence of his special interest.

Yet there are eases in which it cannot reasonably be said that the supplier has a stake in the venture or has acquired a special interest in the enterprise, but in which he has been held liable as a participant on the basis of knowledge alone. Some suggestion of this appears in Direct Sales, supra, where both the knowledge of the illegal use of the drugs and the intent of the supplier to aid that use were inferred. In Regina v. Bainbridge (1959) 3 Week.L. 656 [ (C.C.A. 6) [3 All Eng. 200, 123 J. P. 499, 43 Crim. App. 194], a supplier of oxygen-cutting equipment to one known to intend to use it to break into a bank was convicted as an accessory to the crime. In Sykes v. Director of Public Prosecutions [1962] A.C. 528, one having knowledge of the theft of 100 pistols, 4 submachine .guns, and 1,960 rounds of ammunition was convicted of misprision of felony for failure to disclose the theft to the public authorities. It seems apparent from these eases that a supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from that knowledge alone to have intended to produce the result. Such proof may justify an inference that the furnisher intended to aid the execution of the crime and that he thereby became a participant. For instance, we think the operator of a telephone answering service with positive knowledge that his service was being used to facilitate the extortion of ransom, the distribution of heroin, or the passing of counterfeit money who continued to furnish the service with knowledge of its use, might be chargeable on knowledge alone with participation in a scheme to extort money, to distribute narcotics, or to *481pass counterfeit money. The same result would follow the seller, of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use.

Logically, the same reasoning could be extended to crimes of every description. Yet we do not believe an inference of intent drawn from knowledge of criminal use properly applies to the less serious crimes classified as misdemeanors. The duty to take positive action to dissociate oneself from activities helpful to violations of the criminal law is far stronger and more compelling for felonies than it is for misdemeanors or petty offenses. In this respect, as in others, the distinction between felonies and misdemeanors, between more serious and less serious crime, retains continuing vitality. In historically the most serious felony, treason, an individual with knowledge of the treason can be prosecuted for concealing and failing to disclose it. (Pen. Code, §38; 18 U.S.C. § 2382.) In other felonies, both at common law and under the criminal laws of the United States, an individual knowing of the commission of a felony is criminally liable for concealing it and failing to make it known to proper authority. (4 Blackstone 121; Sykes v. Director of Public Prosecutions [1962] A.C. 528; 18 U.S.C. § 4.) But this crime, known as misprision of felony, has always been limited to knowledge and concealment of felony and has never extended to misdemeanor. A similar limitation is found in the criminal liability of an accessory, which is restricted to aid in the escape of a principal who has committed or been charged with a felony. (Pen. Code, § 32.) We believe the distinction between the obligations arising from knowledge of a felony and those arising from knowledge of a misdemeanor continues to reflect basic human feelings about the duties owed by individuals to society. Heinous crime must be stamped out, and its suppression is the responsibility of all. (Backun v. United States, 112 F.2d 635, 637.) Venial crime and crime not evil in itself present less of a danger to society, and perhaps the benefits of their suppression through the modern equivalent of the posse, the hue and cry, the informant, and the citizen’s arrest, are outweighed by the disruption to everyday life brought about by amateur law enforcement and private officiousness in relatively inconsequential delicts which do not threaten our basic security. The subject has been summarized in an English text on the criminal law: 1 ‘ Failure to reveal a felony to the authorities is now authoritatively determined to be misprision of felony, which is a commonlaw misdemeanour; *482misprision of treason is punishable with imprisonment for life. . . . No offence is committed in failing to disclose a misdemeanour. . . .

“ ‘To require everyone, without distinction, as to the nature and degree of the offence, to become an accuser, would be productive of inconvenience in exposing numbers to penal prosecutions, multiplying criminal charges, and engendering private dissension. It may sometimes be more convenient that offences should be passed over, than that all should indiscriminately be made the subject of prosecution; and a law would be considered to be harsh and impolitic, if not unjust, which compelled every party injured by a criminal act, and, still more so, to compel everyone who happened to know that another had been so injured, to make a public disclosure of the circumstances. Here, therefore, there is reason for limiting the law against mere misprisions to the concealment of such crimes as are of an aggravated complexion. ’ ” (Criminal Law, Glanville Williams (2d ed.) p. 423.)

With respect to misdemeanors, we conclude that positive knowledge of the supplier that his products or services are being used for criminal purposes does not, without more, establish an intent of the supplier to participate in the misdemeanors. With respect to felonies, we do not decide the converse, viz., that in all eases of felony knowledge of criminal use alone may justify an inference of the supplier’s intent to participate in the crime. The implications of Falcone make the matter uncertain with respect to those felonies which are merely prohibited wrongs. See also Holman v. Johnson (1775) 98 Eng.Rep. 1120 (sale and delivery of tea at Dunkirk known to be destined for smuggling into England not an illegal contract). But decision on this point is not compelled, and we leave the matter open.

Prom this analysis of precedent we deduce the following rule: the intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself.

When we review Lauria’s activities in the light of this analysis, we find no proof that Lauria took any direct action to further, encourage, or direct the call-girl activities of his codefendants and we find an absence of circumstance from *483which his special interest in their activities could be inferred. Neither excessive charges for standardized services, nor the furnishing of services without a legitimate use, nor an unusual quantity of business with call girls, are present. The offense which he is charged with furthering is a misdemeanor, a category of crime which has never been made a required subject of positive disclosure to public authority. Under these circumstances, although proof of Lauria’s knowledge of the criminal activities of his patrons was sufficient to charge him with that fact, there was insufficient evidence that he intended to further their criminal activities, and hence insufficient proof of his participation in a criminal conspiracy with his codefendants to further prostitution. Since the conspiracy centered around the activities of Lauria’s telephone answering service, the charges against his codefendants likewise fail for want of proof.

In absolving Lauria of complicity in a criminal conspiracy we do not wish to imply that the public authorities are without remedies to combat modern manifestations of the world’s oldest profession. Licensing of telephone answering services under the police power, together with the revocation of licenses for the toleration of prostitution, is a possible civil remedy. The furnishing of telephone answering service in aid of prostitution could be made a crime. (Cf. Pen. Code, § 316, which makes it a misdemeanor to let an apartment with knowledge of its use for prostitution.) Other solutions will doubtless occur to vigilant public authorities if the problem of call-girl activity needs further suppression.

The order is affirmed.

Herndon, J., concurred.

Roth, P. J., concurred in the judgment.

PER CURIAM:

Appellant Charles Azim appeals nunc pro tunc from judgments of sentence imposed for criminal conspiracy and robbery. He seeks dismissal of all the charges brought against him. In the alternative, he requests a new trial on *312a lesser charge of robbery and a vacating of the conspiracy sentence, for resentencing following the outcome of the new robbery trial.

Appellant was arrested, along with Mylice James and Thomas Robinson, on September 18, 1977 for simple assault, robbery, and conspiracy. The victim of the robbery was Jerry Tennenbaum, a Temple University student. Appellant drove a car in which the other two men were passengers. Appellant stopped the car, Robinson called Tennenbaum over to the curb, the two passengers got out of the car, inflicted bodily injury on Tennenbaum, took his wallet which had fallen to the ground, and immediately left the scene in the same car driven by appellant. Robinson and appellant were tried to a jury and convicted as co-defendants in April 1978. After denial of post-trial motions, appellant was sentenced to five to ten years for robbery and five to ten years for conspiracy, the sentences to run concurrently. He received a suspended sentence for assault.

Appellant’s trial counsel did not file a timely appeal on his behalf and on January 25, 1979 he filed a pro se Petition under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. claiming ineffective assistance of counsel on the grounds, inter alia, of failure to file an appeal of the conviction. New counsel was appointed, and on October 9, 1980, appellant was granted the right to appeal, nunc pro tunc. The PCHA Petition raised other issues relating to ineffectiveness of counsel which were denied at the PCHA hearing. The direct appeal and the appeal under PCHA are here consolidated.

Appellant’s co-defendant Robinson also appealed from the judgment of sentence. In January 1980 this Court vacated judgment of sentence and remanded for a new trial on the charges of simple assault and robbery; affirmed judgment of sentence on the charge of conspiracy, and remanded for resentencing on conspiracy. Commonwealth v. Robinson, *313284 Pa.Super. 152, 425 A.2d 748 (1980). On July 29, 1981, the trial judge ordered similar relief for appellant.1

In this appeal, appellant presents two issues: (1) that he was convicted upon insufficient evidence; and (2) that his trial counsel was ineffective in the course of the trial.2 The claim of insufficiency of the evidence relates to the charge of criminal conspiracy. He argues that because his conspiracy conviction was not supported by sufficient evidence against him, the charges of assault and robbery must also fail.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) holds that an essential of due process guaranteed by the Fourteenth Amendment is that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof, which is defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. In Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982) (also reviewing the sufficiency of the evidence in a conspiracy charge) our Court maintained that the test to be applied in appraising the sufficiency of the evidence is a two-step inquiry:

First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could have based the verdict and then we must ask whether that evidence, along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 402 A.2d 546 (1979); Commonwealth v. Eddington, 255 Pa.Superior Ct. 25, 386 A.2d 117 (1978); Com*314monwealth v. Luther, 266 Pa.Superior Ct. 240, 403 A.2d 1329 (1979). Criminal conspiracy is defined as:

(a) Definition of conspiracy — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903 (1973).

“The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, supra. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra. Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy cannot be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy “may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958) (Volk, at 1184-5).

At trial, the prosecution presented evidence that established that appellant was the driver of the car in which James and Robinson (the men who demanded money from Tennenbaum and beat and choked him) rode. Robinson was seated on the front seat, next to appellant. Robinson rolled *315down the car window, twice beckoned to the victim to come close to the car, and when Tennenbaum refused, the two passengers got out, assaulted Tennenbaum, and took his wallet. Appellant sat at the wheel, with the engine running and lights on, and the car doors open, while the acts were committed in the vicinity of the car. He then drove James and Robinson from the scene (Suppression Hearing T. 77-88; N.T. 4-8).

Among those circumstances relevant to proving conspiracy are association with alleged conspirators, knowledge of the commission of the crime, presence at the scene of the crime, and, at times, participation in the object of the conspiracy. Commonwealth v. Anderson, supra. Conspiracy to commit burglary has been found where the defendant drove codefendants to the scene of a crime and then later picked them up. Commonwealth v. Wright, 235 Pa.Super. 601, 344 A.2d 512 (1975). “Thus, the driver of a ‘get away’ car can be found guilty as an accomplice if it is reasonable to infer that he was aware of the actual perpetrator’s intention. His agreement to effectuate the escape aids the perpetrator in the planning and commission of the actual crime” (Wright, at 515). Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975) upheld the conviction for conspiracy of the driver of a get away car. We find no merit in appellant’s claim that he was merely a hired driver, with no knowledge of his passengers’ criminal activity.

We hold that a rational factfinder could find, beyond a reasonable doubt, that appellant conspired with James and Robinson to commit assault and robbery. Applying the test mandated by Volk, supra, we decline to dismiss appellant’s conviction for criminal conspiracy on the basis of insufficiency of the evidence.

Once conspiracy is established and upheld, a member of the conspiracy is also guilty of the criminal acts of his co-conspirators, even if he is not present at the time the acts are committed. Commonwealth v. Roux, 465 Pa. 482, *316350 A.2d 867 (1976), Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981). In the instant case, co-conspirator Robinson’s direct appeal resulted in the grant of a new trial on the assault and robbery charges, and we agree with the trial court that it is appropriate for appellant to be afforded the same relief. We therefore find it unnecessary to reach appellant’s additional charges on his trial counsel’s ineffectiveness.

Judgment of sentence is vacated. The case is remanded for a new trial on the charges of assault and robbery, and for resentencing on the conviction for conspiracy, following the outcome of the new trial. Jurisdiction is relinquished.

SPAETH, J., concurs in the result.

*563Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ.

This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.

The principal issue presented by this case is whether a defendant may be convicted both of aiding and abetting the commission of extortion, MCL 767.39; MSA 28.979 and MCL 750.213; MSA 28.410, and conspiracy to commit that same crime, MCL 750.157a; MSA 28.354(1). We hold that, under the facts of this case, the defendant was properly convicted under both the aiding and abetting and conspiracy statutes.

In addition to challenging his dual convictions, defendant raises a number of other issues involving alleged errors that occurred before and during his trial. He challenges as impermissibly suggestive the photographic identification which led to his arrest. Defendant further alleges that the prosecution’s failure to indorse and produce a res gestae witness deprived him of a fair trial. Finally, he claims that the trial court erred in allowing the jury to hear testimony that defendant had been fired from his job for assaulting his supervisor.

We find these issues to be without merit. Accordingly, we affirm defendant’s convictions of extortion under an aiding and abetting theory and conspiracy to commit extortion.

I

Alvin D. Carter was charged with aiding and abetting another to commit both unarmed robbery, MCL 750.530; MSA 28.798, and extortion, MCL 750.213; MSA 28.410, and with conspiracy to commit both offenses, MCL 750.157a; MSA 28.354(1).

*564The charges against the defendant arose out of the taking of $1,365.00 from an employee of the Consumers Power Company customer service office in Jackson around noon on December 19, 1975. The employee, Mrs. Peggie Johnson, was approached by a man, subsequently identified as Edward Kimble, who handed her a note threatening her three sons unless she gave him. money. According to her testimony at defendant’s trial, she complied with the demand because she feared for her own safety and that of her children.

Mrs. Johnson also testified that she had never seen Edward Kimble before the robbery, but that she knew Alvin Carter well and regarded him as a family friend. Further, she indicated that approximately one or two months before the robbery, the defendant stopped in at the Consumers Power Company office and "questioned] us about the lunch hours”.

Kimble and his girlfriend, Diane Potter, were arrested the day after the robbery while shopping at a J. C. Penney store located across the street from the Consumers Power Company office. Potter’s identification of the defendant at a photographic showup approximately three weeks later led to Alvin Carter’s arrest.

Edward Kimble pled guilty to unarmed robbery and received a 5-1/2- to 15-year sentence. Testifying for the prosecution at defendant’s trial, he indicated that he first met Carter, who he knew only as "Hank”, at Jackson Prison, where he was serving a sentence for armed robbery and Carter was employed as a prison guard. According to Kimble, he again came into contact with the defendant in November of 1975 at Leake’s Lounge, a *565Jackson bar they both frequented. Kimble testified further that he and Carter discussed the "Consumers Power job” on the afternoon of December 18, the day before the robbery; that on that same evening Carter came to see him at the Sewell Hotel, where he lived with Diane Potter; that during that visit Carter wrote the threatening note that was to be presented to Peggie Johnson; and that Potter copied the note because Carter was afraid the victim would recognize his handwriting.

Kimble admitted taking the note to the Consumers Power office around noon on December 19, presenting it to Peggie Johnson, and receiving the money in a paper bag. He testified that he then met Carter and gave the money to him at a place called "the roller room”, where Carter had been waiting. Both men returned to Kimble’s room at the Sewell Hotel, Kimble arriving about five minutes after Carter, and Carter divided the money.

Diane Potter, who was not charged with participation in the crime,1 corroborated Kimble’s testimony about the events at the Sewell Hotel on the evening of December 18 and after the robbery on December 19. She added that while Carter was drafting the note he and Kimble were "whispering a conversation back and forth”, and that she heard Carter ask Kimble if the content looked all right to him. After she rewrote the note, she tore up Carter’s copy and flushed it down the toilet. Finally, Potter indicated that she had seen Carter approximately 6 to 12 times before the night of *566December 18, both at the apartment and at Leake’s Lounge.

The defendant denied any involvement in the crime and presented an alibi defense. He denied having ever been in Kimble’s room at the Sewell Hotel or having met Kimble while employed as a prison guard. He further denied even knowing Kimble or Potter, other than casually from seeing them at Leake’s Lounge.

The jury, after deliberating for seven and one-half hours, returned a verdict of guilty on all four counts. On July 14, 1976, defendant was sentenced to 7-1/2 to 15 years with credit for 189 days on the unarmed robbery and conspiracy to commit unarmed robbery convictions and to 7-1/2 to 20 years with credit for 189 days on the extortion and conspiracy to commit extortion convictions, with all four sentences to be served concurrently.

In a published per curiam opinion, the Court of Appeals affirmed defendant’s convictions of extortion and conspiracy to commit extortion, but reversed, as violative of the proscription against double jeopardy, US Const, Am V; Const 1963, art 1, § 15, the convictions of unarmed robbery and conspiracy to commit unarmed robbery. People v Carter, 94 Mich App 501; 290 NW2d 46 (1979). This Court granted defendant’s application for leave to appeal his remaining convictions. 409 Mich 867 (1980). The people do not contest the reversal by the Court of Appeals of defendant’s robbery-related convictions.

II

Defendant attacks his joint convictions of aiding *567and abetting the commission of extortion and conspiracy to perpetrate extortion on three grounds, all of which relate to principles of double jeopardy. He argues, in the alternative, that the charge of conspiracy should merge with, or be absorbed into, the charge of the completed crime, and that his conviction of both crimes is in essence unconstitutional multiple punishment for the same offense under federal and state double jeopardy interpretations.

A

Criminal conspiracy occupies a unique place in our criminal justice system. It is defined as "a partnership in criminal purposes”, United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910), a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. While the offense has its origins in the common law, it is now specifically proscribed by statute, which sets forth the penalties for its commission. MCL 750.157a; MSA 28.354(1).2

*568"The gist of the offense of conspiracy lies in the unlawful agreement”. People v Atley, 392 Mich 298, 311; 220 NW2d 465 (1974). The crime is complete upon formation of the agreement; in Michigan, it is not necessary to establish any overt act in furtherance of the conspiracy as a component of the crime.3 However, a twofold specific intent is required for conviction: intent to combine with others, and intent to accomplish the illegal objective. Perkins, Criminal Law (2d ed), ch 6, § 5, p 629.

In spite of the importance of the element of agreement in conspiracy liability,

"[d]irect proof of agreement is not required, nor is it necessary that a formal agreement be proven. It is sufficient if the circumstances, acts, and conduct of the parties establish an agreement in fact. * * *.

"Furthermore, conspiracy may be established, and frequently is established by circumstantial evidence”. (Citations omitted.) People v Atley, p 311.4

*569It is a settled principle of black-letter law that conspiracy is a crime that is separate and distinct from the substantive crime that is its object. LaFave & Scott, Criminal Law, § 62, p 494; People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975); People v Chambers, 279 Mich 73; 271 NW 556 (1937). The guilt or innocence of a conspirator does not depend upon the accomplishment of the goals of the conspiracy. More importantly in the context of the instant case, a conviction of conspiracy does not merge with a conviction of the completed offense.5 Thus, a defendant may be convicted and punished for both the conspiracy and the substantive crime. Pinkerton v United States, 328 US 640; 66 S Ct 1180; 90 L Ed 1489 (1946).

The cited justification for the prosecution of conspiracy as a crime independent of, and often in addition to, the prosecution of the object offense is the alleged increased and special danger to society presented by group as opposed to individual activ*570ity.6 The "greater threat” rationale was detailed in Callahan v United States, 364 US 587, 593-594; 81 S Ct 321; 5 L Ed 2d 312 (1961):

"[Collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.”7

One of the major exceptions to the general principle that conspiracy and its target offense are separately punishable is known as Wharton’s Rule. This rule, which operates as a substantive limitation upon the scope of the crime of conspiracy, states that an agreement by two persons to commit a substantive crime cannot be prosecuted as a conspiracy where the crime itself necessarily requires the participation and cooperation of two *571persons.8 Thus, where concerted activity and a plurality of agents are essential elements of a substantive offense, Wharton’s Rule bars a prosecution for conspiracy to commit that crime. Defendant asserts that, given the offenses at issue in this case, Wharton’s Rule precludes his conviction of conspiracy to commit extortion.

The classic Wharton’s Rule offenses — adultery, bigamy, dueling, and incest — are those crimes where "the conspiracy to commit them is in such close connection with the objective offense[s] as to be inseparable from them”. In re Vickers, 371 Mich 114, 117; 123 NW2d 253 (1963). Additionally, the crimes are such that "[t]he parties to the agreement are the only persons who participate in [the] commission of the substantive offense, and the immediate, consequences of the crime rest on the parties themselves rather than on society at large”. Iannelli v United States, 420 US 770, 782-783; 95 S Ct 1284; 43 L Ed 2d 616 (1975).9

*572The rationale for the rule is based on two different analyses. The primary justification relates to legislative intent; where cooperative action is a necessary component of the substantive offense, it is presumed that the Legislature took that element into account when setting forth the penalty for the offense. Recent Developments, Criminal Law — Multiple Punishment Under the Organized Crime Control Act — A Need for Re-examination of Wharton’s Rule and Double Jeopardy, 52 Wash L Rev 142 (1976). In addition, because the target offense itself requires concerted action, the combination constituting the conspiracy creates no added danger, "because nothing is involved which will not [also] be present whenever the offense is committed.” Perkins, Criminal Law (2d ed), ch 6, § 5, p 620.

In practice, Wharton’s Rule generally operates as a judicial presumption to proscribe a conspiracy charge in the absence of legislative intent to the contrary. Iannelli v United States, supra, 420 US 782.10 The applicability of the rule depends on the *573nature of the target offense that constitutes the object of the conspiracy. Specifically, the focus is upon the elements of the crime rather than upon the factual circumstances of the particular case. Iannelli, p 780. Thus, the test is satisfied when, by definition, the object crime necessarily requires the participation of two people. If the offense could logically be accomplished by a single individual, Wharton’s Rule does not apply. The fact that in a particular case cooperation between the offenders was a practical necessity, i.e., the crime could not have been committed without concerted action or would have been made much more difficult without it, is not sufficient to invoke the rule. State v Huegin, 110 Wis 189; 85 NW 1046 (1901); LaFave & Scott, supra, pp 492-493; People v Davis, 408 Mich 255, 285, fn 6; 290 NW2d 366 (1980) (Levin, J., concurring). See also 408 Mich 255, 320-321 (Moody, J., dissenting).

Thus, to determine the applicability of Wharton’s Rule, "accurate identification of [the] target offense is essential”. People v Davis, p 280 (Levin, J., concurring). The controversy in the instant case arises because the defendant and the prosecution focus on different aspects of the target crime in their analyses, which leads them to different conclusions regarding the applicability of Wharton’s Rule.

The defendant focuses upon the aiding and abetting aspect of the extortion offense. He argues that aiding and abetting necessarily requires concerted action among a plurality of agents. "The sine qua non of aiding and abetting is that more than one person must be criminally involved”. People v Parks, 57 Mich App 738, 743; 226 NW2d 710 (1975). Therefore, the agreement embodied in the conspiracy has no element of added danger that is *574not already present upon commission of the substantive crime. Further, when aiding and abetting occurs, no additional persons are involved in the conspiracy than are required to commit the object offense. Defendant adds that both the aiding and abetting and conspiracy statutes are directed at the same evil, namely, cooperation between perpetrators of crime. Thus, Wharton’s Rule applies, and his conspiracy conviction should be vacated.

The prosecutor, in contrast, focuses on the criminal act of extortion in his Wharton’s Rule analysis. The elements of extortion are: a malicious threat of violence or criminal accusation, and an intent to extort money. MCL 750.213; MSA 28.410.11 No agreement is required to complete the crime; further, the crime may logically be committed by one person. Therefore, Wharton’s Rule is inapposite in this case.

We agree with the prosecutor. Defendant’s emphasis upon the aiding and abetting aspect of the offense is misplaced under these circumstances. The purpose of the aiding and abetting statute, MCL 767.39; MSA 28.979, is to ensure that any person who participates in a substantive offense is held liable as if he had directly committed the offense.12 People v Palmer, 392 Mich 370; 220 *575NW2d 393 (1974). The statute declares that one who "procures, counsels, aids or abets” in the commission of a crime may be "prosecuted, indicted, tried and on conviction shall be punished” as a principal.13 Aiding and abetting is not in and of itself a substantive offense. It is, rather, a means of connecting a person with a completed criminal act, whether that act be extortion, as in the instant case, or any other action defined as unlawful. It takes on criminal characteristics only because of its link to that illegal action.

Reduced to its bare essentials, the basic charge against a defendant is not aiding and abetting, but rather the substantive crime that results from the aiding and abetting. In assessing the applicability of Wharton’s Rule, the target offense to be evaluated is, therefore, the underlying substantive crime itself, not the means developed to hold a person liable for that crime.

In the instant case, of course, the substantive crime is. extortion. Extortion is not a crime of such a nature as to necessarily require the participation of two persons.14 Therefore, defendant’s prosecu*576tion and conviction for conspiracy to commit extortion does not violate Wharton’s Rule.15

In addition, any presumption in favor of the application of Wharton’s Rule is rebutted by the legislative intent expressed in the aiding and abetting statute. As noted earlier, conspiracy does not merge with the completed substantive crime that is its object. The aiding and abetting statute states that in all respects — prosecution, indictment, trial and punishment — one who aids in the commission of a crime is to be treated exactly as if he had directly committed the offense. To provide that conspiracy would merge with the object crime for an aider and abettor but not for a principal would be to provide for differences in the prosecution, indictment, trial and punishment of accessories as opposed to principals. Under such a rule, upon completion of the crime, a principal could be prosecuted, indicted, tried and punished16 for conspiracy, while an aider and abettor could not, in direct *577contravention of the equal treatment mandated by the statute.17

B

Defendant argues further that his convictions of conspiracy and aiding and abetting with respect to the same substantive crime violate his federal constitutional right not to be placed twice in jeopardy for the same act. See US Const, Am V.18

The guarantee against double jeopardy in the Constitution of the United States has been made applicable to the states through the Fourteenth Amendment. That guarantee incorporates three distinct constitutional protections:

"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

In the instant case, the question is one of multiple punishment. Under such circumstances the Double Jeopardy Clause operates to protect the defendant from receiving double punishment for *578what is in reality a single criminal offense. People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980).

The problem in multiple punishment cases, as in multiple prosecution cases, is to determine whether the charges at issue constitute the "same offense” for double jeopardy purposes. In Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), the Court articulated the definition of the "same offense”:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

The Blockburger test focuses on the statutory elements of the offenses involved, not on the particular facts introduced at trial to establish their commission. Iannelli v United States, 420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975).19

Defendant concedes that under a strict application of the Blockburger test, aiding and abetting and conspiracy would be considered different offenses because aiding and abetting requires a completed crime and aiding and abetting by the defendant in the commission of that crime, People v Mann, 395 Mich 472; 236 NW2d 509 (1975), and conspiracy requires a combination or agreement. *579People v Atley, 392 Mich 298; 220 NW2d 465 (1974).

As an offshoot of the Blockburger rule, the Supreme Court has applied a necessarily lesser-included-offense analysis in determining whether offenses are the same for double jeopardy purposes.20 If one offense is necessarily included in the other, it is the "same offense” and cannot be additionally punished. Reference is made to state law for definitions of the offenses involved and also to ascertain whether they stand in the relation of greater- and lesser-included offenses. Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Again, the emphasis is upon the legal elements of the offense, not upon the facts of a particular case.

Under the necessarily lesser-included-offense test, the separate crimes need not contain identical elements to constitute the "same offense”. Brown v Ohio, supra. To be necessarily included in the greater offense, a lesser offense must be such that it is impossible to commit the greater crime without also having committed the lesser. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).21

For the same reasons that aiding and abetting and conspiracy are different crimes under Block-*580burger, they are different crimes for double jeopardy purposes under a necessarily lesser-included-offense analysis. It is true that the two crimes contain certain common elements, i.e., the participation of more than one person and the shared intent to commit the substantive crime. However, aiding and abetting the commission of a crime and conspiracy to commit that crime are legally distinct offenses. The crux of a conspiracy is an agreement to perpetrate the crime. Conviction of conspiracy does not depend on the success or failure of its object. Further, as defined in Michigan, conspiracy does not require any overt act in furtherance of its illegal end. People v Atley, supra.

In contrast, to be convicted as an accessory, one must procure, counsel, aid, or abet the commission of a crime. MCL 767.39; MSA 28.979. Some form of active, overt participation toward the accomplishment of the offense is required, as is a completed crime and a guilty principal. People v Palmer, supra.

It is, therefore, possible to commit either crime without necessarily having committed the other. A person may aid and abet the commission of a crime without at the same time having specifically agreed to commit it. It does not automatically follow that when an offense is committed by multiple defendants the action is taken pursuant to a prior arrangement or agreement. Comment, Conspiracy, 28 La L Rev 534 (1968). Even if, factually, liability as an accessory is based upon an agreement, it does not require proof of such agreement. Iannelli v United States, 777, fn 10. Further, as stated by the United States Supreme Court:

"Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defen*581dant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy.” Pereira v United States, 347 US 1, 11; 74 S Ct 358; 98 L Ed 435 (1954).22

Conversely, a conspirator is not necessarily liable as an accessory to the completed crime on the basis of the agreement alone. To be liable as an accessory, a person must advise, assist, counsel, or induce the commission of the crime. Such behavior may require more than mere agreement. The fact that, in many cases, conspirators do assume an active role in the commission of the object crime does not alter the legal distinction between liability as an accessory and as a conspirator.23

Nor is the fact that some of the evidence introduced at trial "may have served double duty”, supporting both the conspiracy and accessory charges, material under federal double jeopardy analysis. Nye & Nissen v United States, 336 US 613, 619; 69 S Ct 766; 93 L Ed 919 (1949). What is *582critical is that the offenses are legally different, as tested by the Blockburger and necessarily included offense rules. Thus, defendant’s dual convictions of conspiracy to commit extortion and of aiding and abetting the commission of extortion are not barred by the double jeopardy provision of the United States Constitution.

C

Michigan, unlike some other states,24 has its own specific constitutional protection against double jeopardy. Const 1963, art 1, § 15. Although the language of the state provision is nearly the same as that of the federal constitution,25 there are certain important differences between the state and federal tests used to establish, a constitutional violation. Significantly, the Michigan rules offer broader double jeopardy protection than do the federal standards.26 Thus, the fact that defendant Carter’s federal double jeopardy challenge must fail does not preclude this Court from considering whether he has been multiply punished for the same offense under the Michigan Constitution. People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980). Whitton v State, 479 P2d 302 (Alas, 1970).

As do their federal counterparts, Michigan courts engage in a greater- and lesser-included-offense analysis to evaluate double jeopardy challenges. However, in Michigan the emphasis is not on the theoretical elements of the crimes involved, but rather upon the proof of facts adduced at trial:

*583"For purposes of the double jeopardy analysis, as a matter of state constitutional law, the question is not whether the challenged lesser offense is by definition necessarily included within the greater offense also charged, but whether, on the facts of the case at issue, it is.” People v Jankowski, supra, 408 Mich 91.

Of course, in focusing upon the facts, a court must nevertheless still take account of the elements of the offense. People v Wilder, 411 Mich 328, 348-349, fn 10; 308 NW2d 112 (1981).

In addition, Michigan has an expansive definition of necessarily included offenses for double jeopardy and other27 purposes:

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. * * * This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate’ or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.” (Citation omitted.) People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975).

The fact that a lesser offense contains an element not also contained in the greater does not necessarily preclude the lesser from being included within the greater. The major factor is notice to the defendant; if the relation between the lesser *584offense and that originally charged is close enough to fairly inform the defendant that he will be required to defend against it, the lesser offense may be included within the greater. Further, cognate offenses include common statutory purposes as well as common elements; and, the shared elements must be related to those purposes, i.e., "coincide in the harm to the societal interest to be protected”. Ora Jones, p 390.

Thus, in contrast to the test used in the federal system, the Michigan test for double jeopardy focuses on the facts of the particular case and proscribes multiple convictions of cognate as well as necessarily included offenses.

The Michigan analysis has been applied by this Court to preclude dual convictions of possession and delivery of the same heroin, where the possession was necessarily incident to delivery. People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

Reaching the same conclusion with respect to the sale and possession of the identical heroin in People v Stewart (On Rehearing), 400 Mich 540, 548-549; 256 NW2d 31 (1977), we explained:

"Possession and sale of narcotics are separate crimes which may be separately charged. * * * In a given case, sale may be found without possession. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.

"Therefore, from the evidence adduced at this trial, the illegal possession of heroin was obviously a lesser included offense of the illegal sale of heroin. When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin.

*585"Defendant Stewart may not be 'doubly punished’ by convicting him of possession, which in this case was a 'necessary’ prerequisite or the sine qua non for the very sale for which he was also convicted.”28 (Citation omitted.)

This Court has also held that multiple convictions of armed robbery, larceny in a building, and larceny over $100, all arising from the same taking, violate double jeopardy. People v Jankowski, supra.29 Finally, in People v Wilder, supra, 411 Mich 342, we held that conviction and sentence for both first-degree felony murder and the underlying felony also contravened the state constitutional provision, because in that case "the evidence needed to prove first-degree felony murder require^] proof of the underlying lesser included felony”.

In the instant case, defendant Carter contends *586that his dual convictions violate double jeopardy in that the two crimes are cognate-included offenses. Further, he argues, the facts introduced at trial to demonstrate aiding and abetting necessarily proved the crime of conspiracy and vice versa, i.e., the facts used to show conspiracy required the jury to find aiding and abetting.

We disagree. Initially we note that aiding and abetting the commission of extortion and conspiracy to commit extortion do not satisfy the definition of cognate offenses set forth in Ora Jones, supra. Although both crimes involve concerted activity, the offenses are not of the same class or category. Nor do they appear to reflect a common statutory purpose. The conspiracy statute punishes the planning of the offense and focuses upon the alleged "special dangers” resulting from group action. On the other hand, the aiding and abetting statute punishes the actual commission of the crime.

In addition, on the facts of this case, neither crime was necessarily included within the other. Neither was a " 'necessary' prerequisite or the sine qua non” of the other. Stewart, p 549. And, proof of either crime did not necessarily require a finding of the other.

In applying the Michigan "factual” double jeopardy test, it is critical to recognize the distinction between what a jury could or did conclude from the evidence and what a jury necessarily found. Thus, in the instant case, when the jury found the defendant guilty of aiding and abetting Kimble in the commission of extortion, it did not thereby find sufficient facts to find him guilty of conspiracy. To convict Carter on the aiding and abetting charge, the jury was required to find that he actively participated in the joint venture and that he *587shared Kimble’s intent to commit the crime. Carter’s participation in the crime was demonstrated at trial by testimony that he had composed the threatening letter in Kimble’s room at the Sewell Hotel, met Kimble after the robbery, and divided the money. However, these facts do not necessarily presuppose or establish an agreement to commit the extortion, the indispensable element of conspiracy. Establishing the agreement required a completely separate inference, or a separate factual finding. Further, unlike the situation in Martin and Stewart, where the delivery and sale could not have taken place without the possession, in the instant case, the aiding and abetting could have occurred without the conspiracy.

By the same token, the jury was not required to find defendant guilty of aiding and abetting the extortion based on proof that he conspired with Kimble to commit it. Certainly the aiding and abetting was not a "necessary prerequisite or the sine qua non” of the conspiracy. In addition, proof of the conspiracy in this case was not sufficient to establish aiding and abetting. Even if the jury used the same facts as a starting point for finding defendant guilty of both charges, an additional fact is required to support a conviction of aiding and abetting, i.e., evidence of the completed crime. In that sense, the instant case differs significantly from other cases in which this Court has found double jeopardy violations. In Martin and Stewart, once the delivery and sale were found, the possession was established without further proof. On the facts in Jankowski, when the jury found that the defendant had committed the taking which constituted an element of the armed robbery, the jury necessarily found, without additional evidence, the facts sufficient to convict on the larceny charges. *588In Wilder, proof of first-degree felony murder necessarily established the underlying felony of armed robbery.

Finally, the factual pattern in the instant case may have allowed the jury to convict defendant of both crimes on the basis of completely different facts. Edward Kimble testified that he met with defendant Carter on two different occasions on December 18, the day before the robbery. According to Kimble, he and Carter discussed the "Consumers Power job” on the afternoon of December 18.30 That evening, they met again to compose the extortion note. The jury could have believed Kimble’s entire testimony, and concluded that the agreement was consummated in the first meeting, making the crime of conspiracy complete. It could then have found the more active participation required for liability as an accessory in the events of the evening meeting at the Sewell Hotel.

In sum, it was both factually and logically possible for defendant to be guilty of either crime in the case — aiding and abetting the commission of extortion and conspiracy to commit extortion— without at the same time being guilty of the other. Cf. Jankowski. These crimes are factually and theoretically independent; they are neither inseparably intertwined, cf. Stewart, nor merely alter*589native routes for creating liability for the substantive crime.31 Neither crime necessarily supplies an indispensable element of the other. Cf. Wilder.

"[Conspiracy may be an evil in itself, [independent] of any other evil it seeks to accomplish.” Dennis v United States, 341 US 494, 573; 71 S Ct 857; 95 L Ed 1137 (1951) (Jackson, J., concurring). In the instant case, this statement describes the facts as well as the law.32 Thus, defendant’s "factual” double jeopardy challenge to his dual convictions must be rejected.33

Ill

In a further challenge to his conviction, defendant contends that the trial court erred in refusing to grant a new trial, despite the prosecutor’s failure to indorse and produce a res gestae witness.

Edward Kimble was arrested as a result of information supplied to the police by Lawrence *590Morris, the manager of the J. C. Penney store located across the street from the Consumers Power office. According to Morris’s affidavit filed in support of defendant’s motion for a new trial, and also his testimony at the evidentiary hearing34 to consider that motion, on two different occasions prior to December 19, 1975, he noticed a black male standing in the lobby between the inside and outside doors of his store, staring at the Consumers Power building. On each occasion, the man stayed for 10 or 15 mintues before leaving.

Morris stated further that on the morning of December 19, he again saw the same black male come into the lobby and watch the building across the street for approximately 15 minutes. Morris testified that he went out to lunch at 11 a.m. on that day, and did not return to his store until after the robbery had occurred. When the same black male, subsequently identified as Edward Kimble, appeared in the store the day after the robbery, Morris called the police, who made the arrest.

In his affidavit, Morris explained that he had noticed this particular black male because he was afraid that the man might be planning to rob the J. C. Penney store. On all three occasions, the man appeared to be alone.

Before trial, defense counsel filed a general demand for exculpatory evidence. He subsequently filed several specific motions for discovery, and received the particular evidence requested.35

*591Larry Morris was not called to testify at trial. Defense counsel first learned of his existence when he reviewed the presentence report following defendant’s trial and conviction.

In denying defendant’s motion for a new trial, the trial judge ruled that Morris was not a res gestae witness, and that further, in view of the "very persuasive” evidence of defendant’s guilt, the failure of the jury to hear his testimony did not affect the outcome at trial.

The people have an affirmative duty to indorse and produce at trial all res gestae witnesses. MCL 767.40; MSA 28.980. While no precise definition of the term has been developed, a res gestae witness has been loosely described as "an eyewitness to some event in the continuum of a criminal transaction and [one] whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense”. People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976).

The defendant argues that Morris’s testimony would "aid in developing a full disclosure of the facts” by contradicting Edward Kimble’s testimony in two important respects. First, Kimble indicated, in essence, that the conspiracy began on the afternoon of December 18, when he and Carter discussed the Consumers Power job. However, Morris’s statements reveal that some time before that date, Kimble was seen staring at the Consumers Power building from across the street. Second, Kimble testified that "one day” he and Carter surveyed the proposed scene of the crime from the sidewalk. Morris’s testimony would indicate that, on the contrary, Kimble engaged in such activities *592not with Carter, but by himself. Thus, defendant concludes, Morris is a witness who can attest to a crucial fact, i.e., the fact that Carter was not present during the surveillance.

We disagree. Morris’s statements do not necessarily contradict the prosecutor’s case. The fact that Morris saw only Kimble does not require the conclusion that Kimble was surveying the robbery scene alone. Carter could have easily been present, outside Morris’s range of vision. Further, the fact Kimble may have been seen near the Consumers Power office before December 18 is not relevant to any involvement of Carter in the conspiracy.

More importantly, even in terms of the "continuum of the criminal transaction”, Morris is simply too far removed from the criminal event to be denominated a res gestae witness. Morris was not an eyewitness to the crime; moreover, he never even saw the defendant until approximately two years after the crime. In those cases in which individuals were found to be res gestae witnesses in spite of the fact that they did not observe the actual commission of the crime, the connection between what was observed and the criminal event was much closer than in the instant case. In People v Hadley, supra, the witness observed the defendant, a suspicious-looking person, in a parking lot just a few minutes before the defendant broke into an automobile. The witness’s phone call led directly to the defendant’s arrest, and the court found that he qualified as a res gestae witness.

Defendant challenges the prosecutor’s failure to indorse and produce Larry Morris from another perspective. He argues that the people’s nondisclo*593sure of the existence and identity of the witness in the face of a general request for exculpatory material constituted a denial of a fair trial.

Because the government’s ability to investigate and uncover information is superior to the defendant’s, the adversary process has been somewhat modified in the criminal trial context. Focusing upon the unfairness of this disparity and also upon the affirmative duty of the prosecution to ensure that a trial is directed toward fair ascertainment of the truth,36 the United States Supreme Court has held that a defendant has a due process right of access to certain information possessed by the prosecution. The prosecution may not suppress evidence requested by the defendant where the evidence is favorable to the accused and material to his guilt or punishment. Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

In United States v Agurs, 427 US 97, 103-104; 96 S Ct 2392; 49 L Ed 2d 342 (1976), the Court further detailed the standard for prosecutorial disclosure. It identified three different situations in which a defendant’s due process right to discovery may be implicated. In the first situation, where the prosecutor knowingly uses perjured testimony, the failure to reveal the perjury mandates reversal of a conviction ”if there is any reasonable likelihood *594that the false testimony could have affected the judgment of the jury”. In the second type of situation, illustrated by Brady, supra, where a specific request for a piece of evidence is made, the test for reversal is whether "the suppressed evidence might have affected the outcome of the trial”. (Footnote omitted.)

Quite often, however, as in the instant case, a third type of situation occurs: the defendant has no knowledge of exculpatory material possessed by the prosecutor, and, therefore, cannot make a specific request. In these circumstances, where defendant can only make a general request for exculpatory information, or, in fact makes no request at all,37 the standard for what is in effect a voluntary disclosure is more difficult to meet:

"[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Agurs, p 108.

The specific test for determining when a prosecutor must reveal exculpatory evidence in this *595situation is governed by the standard of materiality enunciated in Agurs:

"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” (Footnotes omitted.) Agurs, pp 112-113.

Applying the Agurs test, the trial judge held that, given the overwhelming evidence of defendant’s guilt, Larry Morris’s testimony was not sufficient to create a reasonable doubt regarding that guilt.

We agree. The evidence implicating defendant in the crime was direct and persuasive. The testimony of the victim, describing her friendship with Carter and his knowledge of facts about her family reflected in the extortion note, i.e., that she had three sons, helped connect him with the crime in a manner which corroborated the testimony of Kimble and Potter. Further, for the reasons noted above, the evidence contained in Morris’s statements would not necessarily have contradicted the other evidence presented against the defendant. The omitted evidence, Morris’s testimony, would not have served "to create a reasonable doubt that did not otherwise exist”. The prosecution, therefore, was under no duty to disclose his identity.

*596IV

Defendant was arrested approximately three weeks after the robbery, when he was identified by Diane Potter from a photograph. Defendant challenges the photographic identification procedure as impermissibly suggestive and argues further that there was no independent basis for her identification of defendant at trial.

A Wade38 hearing was held to consider this issue prior to trial. At the hearing, Detective Michael Rand, the investigating officer, testified that he showed Potter a total of approximately 200 photographs on three or four different occasions. At the first showup, held the day after the robbery, she selected the photograph of a person who had been in prison at the time of the crime. At the last photographic lineup, held nearly three weeks later, Potter picked out defendant’s picture. Officer Rand testified that the witness stopped at Carter’s picture, which was the third one in the pack, and did not look at the remaining photographs. This testimony was contradicted by Potter, who stated that she went through the entire pack twice before identifying defendant.

Diane Potter testified that she had given the police an independent description of defendant before viewing the photographs. He was depicted as clean-shaven, about six feet tall with a sturdy build, hair in tight circles, "buggy eyes”, and flared nostrils. Although she remembered him as clean-shaven both in person and in his photograph, in fact defendant, both in person and as pictured, had a mustache and a goatee.

*597Potter testified, somewhat equivocally, that just before the final showup, Officer Rand mentioned that he had a particular suspect in mind, and that she should look over the photographs very closely. After she picked out defendant’s picture, he confirmed that she had selected the right person. Detective Rand, on the other hand, stated that he could not recall making any such comment to Potter at the showup in question.

The trial judge concluded that Potter, having testified that she had seen Carter several times at Leake’s Lounge and the Sewell Hotel, had an independent basis for her identification of Carter. He also held that the photographic identification procedure was "fair under the circumstances”.

Defendant challenges both conclusions. He argues that Detective Rand’s statements to Potter revealing that he had focused on a particular suspect and that she had selected the proper photograph rendered the procedure impermissibly suggestive and tainted her identification at trial.

It is true that comments such as those allegedly made by Detective Rand may lead to error in a photographic identification procedure:

"The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime.” (Footnotes omitted.) Simmons v United States, 390 US 377, 383; 88 S Ct 967; 19 L Ed 2d 1247 (1968).

This Court has also recognized the impropriety of this behavior:

*598"Improper suggestion commonly comes about because of three things. First, the witness when called by the police or prosecution either is told or believes that the police have apprehended the right person. Second, if the witness is shown only one person or a group in which one person is singled out in some way, he is tempted to presume that he is the person. Third, as the second factor just discussed above shows, eyewitness identification has inherent weaknesses from the standpoint of the witness’s problems of sensation, retention, etc., and the similarity in appearance of people.” People v Anderson, 389 Mich 155, 178; 205 NW2d 461 (1973). (Emphasis added.)

The great danger of an improper procedure is that an initial misidentification may unduly influence any subsequent identification. Thus, a courtroom identification may be made on the basis of the initial photographic showup or corporeal lineup rather than from an independent recollection of the crime. United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967); People v Anderson, supra.

To guard against this possibility, if a pretrial identification has been improperly conducted, an independent basis for any in-court identification must be established. In People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977), this Court set forth the criteria to be used to determine whether such an independent basis exists:

"1. Prior relationship with or knowledge of the defendant.

"2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.

"3. Length of time between the offense and the disputed identification. * * *.

*599"4. Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual description.

"5. Any previous proper identification or failure to identify the defendant.

"6. Any identification prior to lineup or showup of another person as defendant.

"7. [T]he nature of the alleged offense and the physical and psychological state of the victim.

"8. Any idiosyncratic or special features of defendant.”39

We agree with the trial judge that the photographic identification procedure used in this case was not impermissibly suggestive. First, it is less than clear that the allegedly improper remarks even took place. Not only was Diane Potter’s testimony contradicted by Officer Rand’s, but also it was somewhat inconsistent in itself. At one point in the pretrial hearing, she stated that she was not positive that the officer had said anything before showing her the photographs. Second, even if Officer Rand did indicate that he had a suspect in mind, he in no way indicated who that suspect was until after Potter unequivocally identified the defendant. Finally, any inconsistencies in Potter’s testimony and identification relate more directly to her credibility as a witness than to the alleged suggestiveness of the procedure.

In addition, application of the relevant Kachar criteria reveals that there was a sufficient independent basis for Diane Potter’s identification of Alvin Carter. She had a prior knowledge of the defendant, having seen him on at least six occasions *600prior to the crime. The quality of the circumstances in which she observed him is also more likely to give rise to reliable identification than the emotional circumstances in which a victim views a suspect while the crime is taking place.

Further, although Potter erroneously described defendant as clean-shaven, she did accurately focus on a number of defendant’s idiosyncratic features, such as his "buggy” eyes and flared nostrils. And, in spite of her initial selection of the wrong photograph, when confronted with defendant’s picture, Potter’s identification was clear and unequivocal.

Under the totality of the circumstances, therefore, we hold that Potter’s in-court identification was supported by . a more than adequate independent basis. The trial judge properly allowed this evidence at trial.

V

At trial, Kimble testified that he had first met defendant in prison, where Carter was a guard and Kimble a prisoner. Defendant then called witnesses to establish that defendant and Kimble were assigned to different units of the prison and would have had no contact with each other. One of the witnesses testified from personnel records that Carter had been employed in the trusty division until he was dismissed. On cross-examination, the prosecutor inquired as to the reason for the dismissal. Over defense counsel’s objection, the witness was permitted to respond that defendant had been fired for assaulting his supervisor. The trial court allowed the testimony on the theory that the defense had opened the door by bringing in the employment records.

*601At the conclusion of the witness’s testimony, the trial court, sua sponte, gave a cautionary instruction:

"Jurors, I want to make a cautionary instruction at this time. I’ve allowed the prosecutor to go into the records because the defendant produced them himself, and I thought it was only fair that he do so; however, I want to caution you at this time that you’re not to consider anything concerning what was testified to in reference to any suspension or dismissal in determining whether he is guilty or innocent of this charge. It would be error for you to do so. So, don’t consider anything about that in reference as to whether he Committed the offenses that he’s on trial here for.”

After this instruction was given, there was no further objection.

Defendant argues that the trial court erred in allowing the testimony. Evidence that a defendant has committed another crime or offense is generally inadmissible on the issue of his guilt of the charged offense. People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). The purpose of the rule is to guard against convicting an accused on the theory that he is a "bad man”. The probative value of such evidence is often outweighed by its prejudicial effect. DerMartzex, supra.

Under the facts of this case, we find that any error that may have occurred was cured by the cautionary instruction. See People v Richardson, 239 Mich 695; 214 NW 965 (1927); People v Page, 198 Mich 524; 165 NW 755 (1917). The instruction immediately followed the objectionable testimony, and the only further reference to defendant’s discharge by either party was defendant’s testimony that he had been reinstated with back pay after an investigation of the incident. Thus, we find this issue to be without merit.

*602VI

Accordingly, we affirm defendant’s conviction of aiding and abetting the commission of extortion and conspiracy to commit extortion.

The Court of Appeals is affirmed.

Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ., concurred.

Kavanagh, J.

(for reversal of conspiracy conviction). I would affirm defendant’s conviction of extortion, but would set aside his conviction of conspiracy to perpetrate extortion.

Nothing was added to the extortion by the "conspiracy” to effect it. When the extortion was carried out the charged conspiracy merged into the completed act.

Levin, J., concurred with Kavanagh, J.

Riley, J., took no part in the decision of this case.

BRATTON, Circuit Judge.

Section 11 of the Selective Service Act of 1940, 54 Stat. 885, 50 U.S.C.A.Appendix § 311, imposes a criminal sanction on any person who knowingly makes or is a party to the making of any false registration, who knowingly makes or is a party to the making of any false statement as to his or another’s fitness or liability for service, who knowingly counsels, aids, or abets another to evade registration or service, who knowingly fails or neglects to perform any duty required of him by the Act, who knowingly hinders or interferes by force or violence with the administration of the Act, or who conspires so to do.

By indictment returned in the United Stales Court for Wyoming, Kiyoshi Oka-molo, Pa til Takeo Nakadate, Tsutomu Wa-*906kaye, Frank Seishi Emi, Minoru Tamesa, Isamu Horino, Guntaro Kubota, and James Matsumoto Omura were charged with entering into a conspiracy with each other and with divers other persons to evade the requirements of the Act, and to counsel and abet themselves and others who had registered under the Act and who were not yet inducted into the land or naval forces of the United States to evade service in such forces. The defendant James Mat-sumoto Omura was acquitted. The other defendants were found guilty, four were sentenced to terms of imprisonment of four years each, and three to terms of two years each.

The sufficiency of the evidence to sustain the convictions is challenged. Following the attack on our naval base at Pearl Harbor and our declaration of war against Japan, many Japanese aliens and American citizens of Japanese descent'were evacuated from their homes in the Pacific coastal area and placed in war relocation centers. The appellant Kubota was born in Japan and the other appellants were American born citizens of Japanese ancestry. They were evacuated from their homes in the Pacific Coastal region and placed in a relocation center at Heart Mountain, Wyoming. An organization called the Fair Play Committee, hereinafter referred to as the Committee, was formed at the relocation center. Its membership was limited to citizens of the United States, and apparently its original purpose was to air grievances, improve the lot of the evacuees, and test the constitutionality of the evacuation. All the appellants except Kubota were members of the Committee, and most of them were officers of it. Sometime after the inception of the Committee, the appellants and others of like status were reclassified under the Selective Service Act and made eligible for service in the armed forces. The Committee thereupon inaugurated an active program relating to that matter, and each of the appellants took an active part in it. Funds were raised, meetings were held, addresses were delivered, letters were written, bulletins were published and circulated, and publicity was prepared for publication and was published in the Rocky Shimpo, a newspaper published by the defendant Omura in Denver, Colo. Much said in the address, bulletins, and publications was to the effect that because of the uncertainty of their status, those at the relocation center who had been thus reclassified were not subject to the provisions of the Selective Service Act; that their evacuation and detention constituted a wrongful violation of law; that clarification of their status was desired before being inducted into the armed forces; and that they were willing to enter the armed service as soon as the wrong done them was corrected and they were restored to their rights as citizens. A test case in court to determine their status and vindicate their rights was discussed, and correction by Congressional pronouncement was mentioned. But the activities of the members of the Committee did not end there. At a largely attended meeting, it was decided by unanimous vote that until their status had been clarified and their rights restored, they would refuse to submit to physical examination or report for induction when called for service. And the action thus taken was given publicity by a bulletin circulated at the center in which it was stated, “We, Members of the Fair Play Committee Hereby Refuse to Go to the Physical Examination or to the Induction If or When We are Called in Order to Contest the Issue * * * We hope that all persons whose ideals and interests are with us do all they can to help us. We may have to engage in court actions, but as such 'actions require large sums of money, we do need financial support and when the time comes, we hope that you will back us up to the limit.” Thereafter more than sixty persons detained at the relocation center, including some of the appellants, disobeyed orders of the draft board to report for preinduction physical examination or orders to report for induction into the armed forces. One of the appellants stated in a letter, “The other Centers are ahead of us in the movement against the draft * * *. ” Another appellant stated on one occasion that he did not know’ whether the United States should resist the Japanese government in the war effort; that he professed loyalty to the United States but could not believe whether it was doing right or wrong; and that he had not come to a conclusion yet as to whether he believed in the cause of the United States in the war with Japan. A third appellant stated on one occasion that he was not willing to go into the army. And a fourth appellant stated that he would rather go to the penitentiary than report when called by his draft board. Manifestly the evidence, together with the permissible infer-

*907 The further contention is that the convictions denied to appellants their rights of freedom of speech, press, and assemblage, guaranteed by the First Amendment. The Act, supra, was enacted into law at a time when most of the world was at war. Realizing the danger of our becoming involved in the war, Congress recognized the urgent necessity of integrating our forces for national defense, and the Act was passed for the purpose of mobilizing our national manpower. By its terms a comprehensive system was established intended to operate as a process for the selection of men for service in our armed forces. And in furtherance of that legislative purpose, section 11 was inserted making it a penal offense to violate certain provisions in the Act, or to conspire together for that purpose. Freedom of speech, freedom of the press, and freedom of assembly guaranteed by the First Amendment are fundamental rights. But, though fundamental, they are not in their nature absolute. These rights are not unbridled license to speak, publish, or assemble without any responsibility whatever. Their exercise is subject to reasonable restriction required in order to protect the Government from destruction or serious injury. The delicate and difficult question usually presented is whether speech, press and assembly are of such nature as would produce, or are calculated to produce, a clear, present, and imminent danger of a substantive evil which Congress has the constitutional power to prevent. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534. Ordinarily “the substantive evil must be exlremely serious and the degree of imminence extremely high” in order to warrant punishment for the exercise of speech, press, or assembly. Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. enees fairly to be drawn from it, presented an issue of fact for the jury as to whether the statements, acts and conduct of the appellants, considered in their totality, were honest objections directed in good faith against that which was believed to be wrongs, or constituted convincing evidence of a concert of understanding and purpose to' evade the Selective Service Act themselves and to aid and abet others in doing so. It cannot be said that the evidence was insufficient to support the verdict and judgments. 315. But the First Amendment in its full sweep does not protect one in speech, publication, or assembly in furtherance of a conspiracy to promote evasion of an act reasonably designed to protect the Government against destruction by military force. Cf. Schenck v. United States, supra.

The remaining contention which merits discussion concerns itself with the denial of a requested instruction and the giving of an instruction. The appellants tendered to the court a requested instruction, the substance of which was that in determining whether the appellants acted in good faith or bad faith, the jury might take into consideration their sincerity or insincerity of belief that the status and rights of American citizens of Japanese descent, evacuated from their homes and detained in the relocation center, could be lawfully determined or clarified by the courts upon refusal of such persons to comply with the orders of the draft board and upon criminal prosecution for such refusal; and that if the jury should find that the appellants sincerely and in good faith entertained such belief, and that all of their pertinent acts and conduct were based upon such belief a verdict of acquittal should be returned. The court refused the tendered instruction and instructed the jury in this language: “They took the positipn that a test case should be filed, having for its purpose a test of the constitutionality of the selective training and service act as applied to them while detained in a relocation center. In this connection you are instructed that a desire to have a test case for that purpose does not excuse failure to comply with the selective training and service act. * * * The selective training and service act provides that it is a violation of the law for anyone to counsel another to disobey the draft law or to assist or abet one to evade the draft law. And I charge you that it is a violation of the law, even though it is contended that the purpose was to create a case for the testing of the constitutionality of the law.”

The indictment in Keegan v. United States, 325 U.S. 478, 65 S.Ct. 1203, 1207, charged a conspiracy to counsel divers persons to evade, resist, and refuse service in the land and naval forces, in violation of section 11, supra. The defendants there were members of an organization called the Bund. Its professed purpose was to keep alive the German spirit among persons of German blood in the United States. Par*908ticular objection was directed against section 8(i) of the Selective Service Act, supra, SO U.S.C.A.Appendix § 308(i) which declared it to be the expressed policy of the Congress that vacancies in the employment rolls of business or industry caused by the induction of employees into the armed forces under the provisions of the Act should not be'filled by members of the Bund. The evidence disclosed among other things that by a document called Bund Command No. 37, it was stated in effect that every man, if he could, would refuse to do military duty until that section of the act and all other laws which confined the rights of members of the organization were revoked. Broadly stated, the facts there were fairly comparable to those presented here. It was contended by the Government there that the honesty and bona fides of the defendants was immaterial, and further that whether they desired to test the constitutionality of the law was likewise of no decisive moment. But the court did not share that view. The court said, “But to counsel merely refusal is not made criminal by the Act.” And the court further said, “One with innocent motives, who honestly believes a law is unconstitutional and, therefore, not obligatory, may well counsel that • the law shall not be obeyed; that its command shall be resisted until a court shall have held it valid, but this is not knowingly counseling, stealthily and by guile, to evade its command.” Viewed in the light of the opinion in the Keegan case, it is clear that the trial court erred in giving the instruction to which reference has been made. In respect of the issue as to whether the appellants acted with honesty of purpose and innocence of motive in a good faith effort to bring about a test case to determine their exempt status under the Selective Service Act, the court should have instructed the jury in substantial harmony with the rule later enunciated in the Keegan case.

The United States seeks to avoid the impact of the Keegan case in its controlling application here by urging that there the judgment was reversed solely on the ground that the evidence was insufficient. It is said that there only five members of the court joined in the reversal; that four members dissented; that two of the members who joined in the reversal did so exclusively on the ground of the inadequacy of the evidence; and that therefore only three members concurred in that part of the opinion of the majority relating to the right of one to counsel in good faith and with innocent motives noncompliance with a law honestly believed to be unconstitutional and for that reason not obligatory. But a critical examination of the crucial language in the opinion of the majority and in the separate concurring opinions indicates that they fail to sustain the contention.

The judgments are severally reversed and the causes remanded.

HUXMAN, Circuit Judge

(dissenting in part).

I concur in the conclusion of the majority that the trial court erred in its instruction on the issue of good faith, but I cannot agree with the majority that the evidence was sufficient to support the verdict and judgments. In my opinion the evidence was wholly insufficient to establish a conspiracy to evade the Act, or aid or abet others to do so, as the term “evade” is construed by the Supreme Court in Keegan v. United States, supra. No useful purpose would be served by analyzing in detail the evidence which leads me to this conclusion.

I would reverse and remand, with directions to dismiss.

Mr. Justice Douglas

delivered the opinion of the Court.

Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel’s farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.1 151 F. 2d *642499. The case is here on a petition for a writ of certiorari, which we granted because one of the questions presented involved a conflict between the decision below and United States v. Sall, 116 F. 2d 745, decided by the Circuit Court of Appeals for the Third Circuit.

A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U. S. C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U. S. 49.

In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one *643conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.

Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U. S. 354, 355-356; Gebardi v. United States, 287 U. S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another’s crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy,2 has little vitality in this country.3 It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U. S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U. S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. *644McClaughry, 183 U. S. 365, 395. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U. S. 338, 342. Cf. Freeman v. United States, 146 F. 2d 978. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U. S. 78, 88:

“For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.”

And see Sneed v. United States, 298 F. 911, 912-913; Banghart v. United States, 148 F. 2d 521.

Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, p. 913, “If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it.” The agreement to do an unlawful act is even then distinct from the doing of the act.4

*645It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained,5 although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.6

*646Daniel relies on United States v. Sall, supra. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.

We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U. S. 347, 369. As stated in that case, “Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence.” Id., p.369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that “an overt act of one partner may be the act of all without *647any new agreement specifically directed to that act.” United States v. Kissel, 218 U. S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U. S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F. 2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F. 2d 462, 464; Baker v. United States, 115 F. 2d 533, 540; Blue v. United States, 138 F. 2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F. 2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U. S. C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.

A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the *648scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.

Affirmed.

Mr. Justice Jackson took no part in the consideration or decision of this case.

Mr. Justice Rutledge,

dissenting in part.

The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.

Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter’s crimes were done.

There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel’s criminal agreement with Walter and the latter’s overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.

*649I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses;1 (2) aiding, abetting or counseling another to commit them;2 and (3) conspiracy to commit them.3 Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another’s crime or punishes the man convicted twice for the same offense.

The three types of offense are not identical. Bollenbach v. United States, 326 U. S. 607, 611; United States v. Sall, 116 F. 2d 745. Nor are their differences merely verbal. Ibid. The gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense.

These general differences are well understood. But when conspiracy has ripened into completed crime, or has advanced to the stage of aiding and abetting, it becomes easy to disregard their differences and loosely to treat one as identical with the other, that is, for every purpose except the most vital one of imposing sentence. And *650thus the substance, if not the technical effect, of double jeopardy or multiple punishment may be accomplished. Thus also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another.

The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved, the almost unlimited scope of vicarious responsibility for others’ acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court’s supervisory power over the modes of conducting federal criminal prosecutions within the rule of McNabb v. United States, 318 U. S. 332.

I think that power should be exercised in this case with respect to Daniel’s conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and for the reasons stated.4 It should be *651followed here. Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.

The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.

Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. See Sen. Rep. No. 163, 72d Cong., 1st Sess., 20. Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so. The effect of Daniel's conviction in this case, to *652repeat, is either to attribute to him Walter’s guilt or to punish him twice for the same offense, namely, agreeing with Walter to engage in crime. Without the agreement Daniel was guilty of no crime on this record. With it and no more, so far as his own conduct is concerned, he was guilty of two.

In another aspect of the case, this effect is thrown into even clearer light. The indictment here was filed after a prior one for conspiracy alone had been dismissed. This in turn came after petitioners had been tried, convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 145 F. 2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of double jeopardy on this account (which the trial court overruled on demurrer), that the two indictments were for different conspiracies since the first one charged a different period of time as covered by the conspiracy; charged 16 as compared with 19 overt acts in the second; and an additional object was added in the latter, that is, intent to violate another section of the revenue act. In other words, there were two different conspiracies by virtue of these minute differences in the detail of the allegations. Hence, there was no double jeopardy by the second indictment.

But later, in support of the conviction here, relative to the bearing of the various statutes of limitations upon proof of the overt acts, charged also as substantive offenses, the Government points out that the earlier indictment was framed on the assumption that a three-year statute of limitations applied to the conspiracy as first charged; and the convictions were reversed for failure of the trial court to instruct the jury on that basis. Then the District Attorney discovered the decision in Braverman v. United States, 317 U. S. 49, 54-55, and decided to revamp the *653indictment to include details making the six-year period applicable. He did so, and added the substantive counts because, so it is said, in the view that a six-year period applied he felt there were enough substantive offenses within that time which he could successfully prove to justify including them.

It would seem, from this history, that to sustain this conviction as against the plea of former jeopardy by virtue of the earlier indictment and what followed, the Government stands, and must stand, upon the idea that two separate and distinct conspiracies were charged, one by the first and one by the later indictment. See United States v. Oppenheimer, 242 U. S. 85, 87-88. But to sustain Daniel’s conviction for the substantive offenses, via the conspiracy route, there was only a single continuing conspiracy extending over the longer period, in the course of which Walter committed crimes, which were also overt acts, some of them running back of the period charged in the former indictment, others being the same but later acts which it had charged as overt acts against both.

For these now Daniel is held responsible, not merely as a conspirator, as the prior indictment charged, but as both a conspirator and a substantive offender.

What this lacks by way of being put twice in jeopardy for the same offense, I am unable to understand. For not only has Daniel been convicted for conspiracy for the same overt acts, and illegal ends, as the first indictment charged. He has had those acts converted into substantive offenses. I do not think the prosecutor’s technical, and it would seem insubstantial, variations in the details of the indictment should be permitted to achieve so much.5

*654This, of course, should not relieve Walter of the conviction for the substantive offenses. . But his sentence for conspiracy should be annulled. So also should Daniel’s sentence on all counts.

Mr. Justice Frankfurter, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.

SHEPARD, J.

Defendants were charged with others by indictment with the crime of conspiracy “to cheat and defraud by criminal means, and to obtain money and property by false pretenses and by false promises with intent not to perform such promises, in violation of section 182, subdivision 4 of the Penal Code. ...”

The cause was tried before the court sitting without a jury. Defendants Moran, Berry, Zareone, Hubbard and Jackson were found guilty as charged. Probation was granted to all *412of the convicted defendants for a period of three years on condition that they spend the first eight months in the sheriff’s custody, that they pay certain fines, and that they perform certain restitution in amounts fixed by the court in the judgment. An appeal was taken by Zareone, Hubbard and Jackson from the order denying a new trial, but Zareone has abandoned his appeal so that the appeal of only Hubbard and Jackson is before the court at this time.

The first specification of error is that there was no sufficient evidence from which the court could lawfully find that the appellants intentionally entered into a conspiracy with any persons to cheat and defraud as indicated by the indictment.

The cause was in trial for approximately one and a half months, 57 witnesses were examined, and the transcript covers nearly 3,500 pages.

A review of the evidence shows that defendants Moran and Zareone started a used-car business in San Diego in the fall of 1956, which was moved to another location with an additional partner (not here charged) in February, 1957, and that this business continued at least until the month of May thereafter. To outward appearance this was a legitimate business.

However, the evidence shows that by a systematic use of false advertising, with full knowledge of its falsity and intent to use it falsely, they induced customers to come to the used-car lot with the idea that they could purchase a car with a $5.00 down payment. This intent was made clear not only by the pattern of conduct shown through dozens of transactions produced in evidence, but was also directly testified to by a salesman who worked on the lot with these defendants and who heard instructions given at sales meetings. A fair interpretation of the evidence shows that the trial court was fully justified in believing that the advertisement was pure “come-on,” with no intent of performance or truth, and that both of these defendants over many weeks of daily work in the business were fully aware of that fact.

The evidence further shows that once in the clutches of the salesman the prospective buyer was systematically and intentionally fed false and misleading information, both of existing facts and of intended future conduct by the firm which the salesman knew was never intended to be performed. This consisted of many different types of representation, including what could or would be done in refinancing, as to what amounts ears would be sold for, and by obtaining customers’ *413signatures on blank contracts and later filling in amounts far different than those orally discussed. Space does not here permit the recounting in even sketch form all of the many transactions, details of which were received in evidence. However, the recounting of two will give a sufficient indication of the general pattern of conduct which marked them all.

George Vogel, a baker, saw the advertisement, responded, located a car on the lot marked $495, had the price confirmed by a salesman, and was transferred to the tender ministrations of Jackson. Jackson put a price of $785 on the purchase order and when Vogel noticed it and objected, Jackson said the salesman was a new man and just didn’t know. He allowed Vogel $300 in trade on Vogel’s Studebaker. Vogel told Jackson he could only pay $30 per month, and Jackson said his firm would carry the financing. He persuaded Vogel to borrow $400 from another source, which Vogel paid to Jackson. The same afternoon Jackson again phoned Vogel and demanded $184 more. Finally, Vogel examined his purchase order and discovered that the ear he originally thought he was buying for $495 had been sold to him at the price of $1,385, and instead of $30 a month his total payments, including the payments on the $400 he had borrowed, were $53.87.

Manuel Anthony Zaragoza, a Navy truck driver, saw the “$5 down” signs, came to the lot, met a salesman, told him he could pay only $70 per month, selected a car at a purchase price of $2,195, and Jackson was introduced as credit manager. Jackson said “I am a loan Company” and would loan Zaragoza sufficient for a down payment. Jackson induced Zaragoza to sign a check for $584.80 although Zaragoza stated he had no money in the bank. He was then induced to sign a blank contract. He paid Jackson $100. Later, he borrowed $585 from a loan company and paid it to Jackson but had trouble getting back the $584.80 check. Jackson assured Zaragoza the payments on the balance of $1,600 would be $50 per month but Zaragoza later discovered the payment had been written in at $70.94 per month. He returned the car for repairs. Returning for it, he found it out for sale and an argument ensued. Zaragoza’s total monthly payments ended up at $103 per month, counting the payments to the loan company.

It is understandable that occurrences of this kind might happen once in a great while through misunderstanding, but with dozens of this kind of transactions occurring over a *414period of a few weeks and with the pattern similar in each of them; with these defendants working together on the same lot with an agreement between them to split their commissions, plus other evidence from within the organization itself in which the whole plan of operation was loosely outlined by glib instructions on how to lie and what steps to take to enmesh a customer; with conferences going on back and forth on purchases of this kind; with this kind of a pattern between these defendants and the owners and other salesmen on the lot, it was not unreasonable for the trier of fact to be convinced beyond a reasonable doubt that those within the organization were conspiring together to cheat and defraud in the manner described in the indictment. Defense counsel say “One cannot condone the acts of Appellants,” but primarily contend against the sufficiency of the evidence to show conspiracy.

A criminal conspiracy is an agreement to commit any crime or do any other act denounced by the statute. The gist of the offense is the unlawful agreement between the conspirators to do an act contrary to law, accompanied by an overt act to at least start to carry the conspiracy into effect. (Pen. Code, § 182; People v. Curtis, 106 Cal.App.2d 321, 325 [235 P.2d 51].)

It comes into existence in the form punishable by law only when some overt act is committed tending to carry the common purpose into effect. It is not necessary to prove that the parties entered into a concrete written agreement or even that all the parties gathered together at one time for a mutual and immediate discussion and agreement. It can happen that the agreement be arrived at in piecemeal fashion. It is sufficient if by either direct or circumstantial evidence, or both, the trier of fact is convinced beyond a reasonable doubt that the unlawful agreement did, in fact, come into existence and that while it was still in existence an overt act pursuant to the unlawful conspiracy purpose was committed. (People v. Goldberg, 152 Cal.App.2d 562, 568 [314 P.2d 151]; People v. Curtis, supra; People v. Jones, 136 Cal.App. 722, 726 [29 P.2d 902]; People v. Fratianno, 132 Cal.App.2d 610, 624, 625 [282 P.2d 1002].)

“As a general rule, a conspiracy can only be established by circumstantial evidence ‘for, as the courts have said, it is not often that the direct fact of an unlawful design which is the essence of a conspiracy can be proved otherwise than by *415the establishment of independent facts, bearing more or less closely or remotely upon the common design (5 Cal.Jur. 521) ; and it is not necessary to show that the parties met and actually agreed to undertake the performance of the unlawful acts (citing authority), nor that they had previously arranged a detailed plan . . . for the execution of the conspiracy’.” (People v. Steccone, 36 Cal.2d 234, 238 [223 P.2d 17].)

Jackson contends he only came in after the commencement of the conspiracy and that, therefore, he was only guilty of independent unlawful acts. The evidence sufficiently supports the implied finding of the court that Jackson did act with other members of the conspiracy in furtherance of its purposes and with knowledge of the existence of the conspiracy. Where a conspiracy has already been formed and at a later date a stranger to the original conspiracy associates himself with the conspirators, and with knowledge of the conspiracy joins with the others in committing overt acts in furtherance of the unlawful purpose, he is guilty as a member of the conspiracy.

“It is of course true that mere association with the perpetrator of a crime is not sufficient to prove a criminal conspiracy. (Dong Haw v. Superior Court, 81 Cal.App.2d 153 [183 P.2d 724].) An entirely different situation may arise, however, when it is shown that a conspiracy is already in existence and that acts are being committed in furtherance thereof.” (People v. Griffin, 98 Cal.App.2d 1, 39 [17] [219 P.2d 519].)

Jackson also contends that he withdrew from the conspiracy and therefore should be exculpated from responsibility therefor. The evidence shows that Jackson was actively identified with at least 14 of the transactions detailed in the testimony, and the evidence is also sufficient to support the finding that he was fully aware of the existence of the conspiracy during most of those transactions. There was no conclusive proof that Jackson ever withdrew from the conspiracy at any time but, even if he had withdrawn, he had already committed acts from which the jury were entitled to conclude that he was actively participating in the conspiracy with knowledge of its purposes.

“. . . [0]ne who has joined a criminal conspiracy can only effectively withdraw therefrom by some affirmative act bringing home the fact of his withdrawal to his confederates. ‘Some affirmative act bringing home the withdrawal to the knowledge of his confederates is necessary, otherwise the conspiracy once established will be presumed to continue until the ends are accomplished or its abandonment established. ’ (Cit*416ing cases.) ” (Loser v. Superior Court, 78 Cal.App.2d 30, 32 [1] [177 P.2d 320].)

The order denying the motion for new trial is affirmed.

Griffin, P. J., and Mussell, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied February 11, 1959.