The charge against the defendant was based upon the following statute, so far as the same is definitory of the offense: "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any *Page 1237 act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall in cases where no provision is made by law for the punishment of such attempt, be punished as follows:" (this is followed by the punishment prescribed, part of Section 3683, Revised Statutes 1919).
"An attempt," as this court said in construing this statute, "is a deliberate crime which is begun, but through circumstances independent of the will the action is left unfinished. It is such an intentional, preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by causes outside of the actor's will, in a deliberate crime. If the means are adapted to the end and there is an apparent physical ability to complete the attempt on the part of the attempter, then the case may be fairly made out." [State v. Bobbitt, 228 Mo. l.c. 264; State v. Mitchell, 170 Mo. 633; State v. Montgomery, 63 Mo. l.c. 298.] The presence of the essentials necessary to constitute the crime are threefold: (1) the intent; (2) the doing of acts towards the commission of the crime; and (3) the failure of their consummation. [State v. Fraker, 148 Mo. l.c. 162.] An intent may be inferred from all of the facts and circumstances in a given case. This rule finds its genesis in the fact that intent involves the purpose with which an act is done and requires an exercise of the will. [State v. Santino, 186 S.W. (Mo.) 976.] Intent, therefore, may be inferred from all of the facts and circumstances in evidence; and a sane man may be held to intend the usual and necessary consequences of his acts; and when he acts in a manner so as to produce a result prohibited by law, his thus acting may be regarded as proof of his unlawful intent in the absence of evidence to the contrary. Thus the first essential may be said to be established.
In determining whether there is proof of the crime we are authorized in considering the defendant's conduct throughout, from his first proven effort to the moment of his failure — due to no cause of his.
Proof of preparations alone to commit the crime will not, of course, constitute a violation of our statute. Its language renders the distinction clear between mere preparations and acts in attempts to commit crime. The first are but introductory and do not form a part of the offense; the second are constitutive and when shown to have been committed render the accused amenable to the statute. The language of the latter, after prohibiting attempts to commit a crime generally, adds: "or to do any act toward the commission of an offense prohibited by law but shall fail in the perpetration thereof, and shall be prevented in the execution of the same upon conviction, shall be punished," etc. *Page 1238
Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein. He solicited the detective, Dill, to do the killing. In so doing he was guilty of a constitutive act within the terms of the statute. Thus defined the act became overt. [People v. Mills, 178 N.Y. 274, 67 L.R.A. 131.] Despite the contrariety of rulings elsewhere it is the recognized law in this State that the solicitation of another to commit a felony is an act towards its commission, without any other act being done, to warrant a conviction. [State v. Hayes, 78 Mo. l.c. 316.] The evil intent in the mind of the defendant — the existence of which is shown by all of his acts, imparts to the solicitations their criminality. Incidentally it may be said in this connection, that the party solicited may not have acquiesced or intended to share in the crime will not exonerate the defendant. [State v. Hayes, supra.]
I find that our statute was copied from that of New York, where it was held in People v. Bush, 4 Hill, 133, where an accused solicited another to commit the crime of arson and gave him some material for the purpose, that this was sufficient to sustain a conviction, although the person solicited did not intend to commit the offense. A like ruling was made by the Supreme Court of Georgia, whose statute was also modeled upon that of New York, in the case of Griffin v. State, 26 Ga. 493, in which it was said, citing with approval the New York case of People v. Bush, supra, that the fact that the person hired had no intention to commit the crime made no difference with the criminality of the accused. The intent of the hired could not lessen the crime of the hirer.
In Commonwealth v. Jacobs, 9 Allen (Mass.), 274, Judge GRAY said: "Whenever the law makes one step toward the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking the step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some act unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance." In the Jacobs case the defendant was charged with soliciting another to leave the state and enlist elsewhere in military service when the person solicited was not fit to become a soldier.
Recurring to rulings in this jurisdiction construing this statute (Sec. 3683), we find in State v. Sullivan, 110 Mo. App. l.c. 87, a very terse discussion by ELLISON, J., of the construction to be given to solicitations in a case as at bar. It there said:
"It has been at times suggested that to merely solicit the unlawful offense was not doing an act, and that the law could not notice a mere *Page 1239 desire unaccompanied by an act. But, manifestly, soliciting is an act. It is a step in the direction of an offense. [State v. Hayes, 78 Mo. l.c. 316; King v. Higgins, 2 East. 5; State v. Avery, 7 Conn. 267; 1 Bishop's Crim. Law, sec. 767.] And so it may also be said that some of the foregoing cases are for attempts to commit an offense and that they therefore do not apply to a case where there has only been a solicitation; it being contended that a solicitation is not an attempt. But it is. For the act of soliciting is an attempt to have the offense committed. Indeed, the case of King v. Higgins, supra, and several others, were cases of solicitation.
"Text-writers have laid down the law that to solicit the commission of an offense was indictable, without noticing any distinction whether the offense solicited was a felony or misdemeanor. [Bishop on Crim. Law, supra; Wharton on Crim. Law, secs. 179, 1857, 1858; 1 Russell on Crim. Law, 193, 194.] These writers look only to the character of the offense in its evil tendency and not to its technical designation. And so in a case from the Supreme Court of Illinois, much like the present, . . . it was held that, though there was no statute on the subject in that State, yet it was an indictable misdemeanor for an officer to propose to receive a bribe. The court said: `According to the well-established principles of the common law, the proposal to receive the bribe was an act which tended to the prejudice of the community; greatly outraged public decency; was in the highest degree injurious to the public morals; was a gross breach of official duty, and must therefore be regarded as a misdemeanor, for which the party is liable to indictment. It is an offense more serious and corrupting in its tendencies than an ineffectual attempt to bribe. In the one case, the officer spurns the temptation, and maintains his purity and integrity; in the other, he manifests a depravity and dishonesty existing in himself, which, when developed by the proposal to take a bribe, if done with a corrupt intent, should be punished; and it would be a slander upon the law to suppose that such conduct cannot be checked, by appropriate punishment. [Walsh v. The People,65 Ill. 58.]'"
The proof of defendant's guilt in the instant case is not limited to solicitations. He and his paramour, the wife of the intended victim, planned and directed with particularity, the time, manner and place of the proposed taking off of her husband. A trip to Chicago was even in contemplation to effect that end when the husband returned home unexpectedly and the scene of the proposed tragedy was shifted to Kansas City. When it was to occur the defendant had it understood that he was to remain at his home so as to afford a basis for a plea of alibi. There he waited expectantly for news of the murder. His paramour — but she is not on trial and the vocabulary of scorn and contempt need not be wasted on her connection with the contemplated murder of her husband. *Page 1240
The chain of proven facts and properly deducible circumstances cannot be otherwise construed than as conclusive of the defendant's guilt. Of what more avail would it have been as proof of his intent or purpose, to have shown that he furnished the detective with the weapon he was to use or the poison or other instrumentality he might employ in committing the murder. The limits of human fancy know no horizon; but it is difficult to conceive what more the defendant could have done, than he did do, towards the attempt to commit the proposed murder without actually participating in its commission.
Ample proof of the presence of those essentials required by our rulings, having been adduced to sustain a conviction, the judgment of the trial court should be affirmed.