I concur in the conclusion reached in the opinion of DAVIS, C., and in the reasoning by which he reaches it. However, a principle of law, not referred to in the argument or the briefs, I think is decisive of the case.
Defendant was charged with an attempt to commit murder as accessory before the fact, under Section 3687,Accessory Revised Statutes 1919. He did not attempt to commitbefore Fact. the crime himself, but hired Dill to do it. He might have been charged directly, but the proof would have been the same.
I. The principle of law is this: Where one hires or incites another person to do a criminal act, he is responsible only for what the other person does. The principle thus applicable is thus stated in 16 Corpus Juris, at page 134:
"There are several things that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense; (2) that he was not present when the offense was committed; (3) that the principal committed the crime."
And again (pp. 134-5):
"To constitute one an accessory before the fact, it is ofcourse essential that the felony shall have been in factcommitted by the person whom the accused is alleged to haveincited or counseled, etc., and under such circumstances as to render him guilty. In other words, although the offense of the accessory is distinct from that of the principal, yet it is in judgment of law connected with it and cannot subsist without someone being guilty as principal. This principle, which is embodied in the maxim, Accessorius sequitur naturam suiprincipalis, appears at every point in the common-law rules regulating the indictment and trial of accessories."
A few cases illustrative of that doctrine would show the extent to which it is applied. Ray v. State, 102 Ark. 594, is where a defendant *Page 1232 was charged as accessory before the fact in commission of murder. The court said, at page 596:
"The accessory cannot be guilty if the principal is not guilty; and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. . . .
"The guilt of the accessory before the fact is based and dependent upon the guilt of the principal; and if the principal has committed no crime, then the accessory is free from guilt. To charge an offense against the accessory, it is necessary to also charge an offense against the principal" (citing Wharton on Criminal Law, and other authorities).
In Harper v. State of Mississippi, 83 Miss. 402, defendant was charged with aiding and abetting a crime of murder. An instruction authorized the finding of defendant guilty if he was present at the time of the aiding and abetting the principal in killing the deceased. The court said:
"The error in this instruction is glaring and manifest. . . . It omits all mention of the intention, malice or premeditation of McCormick [the principal] in killing deceased."
The court goes on to reason that the person who actually did the killing might have acted in self-defense or killed by accident, or been guilty of manslaughter; that although the defendant, accomplice, aided and abetted the act, he could not be guilty unless the principal was guilty to the same extent.
In the case of Stoops v. Commonwealth, 10 Am. Dec. (Pa.) 482, the plaintiffs in error were indicted as accessories before the fact for the crime of burglary. The court said, at page 483:
"The offense of the accessory, though different from that of the principal, is yet, in judgment of law, connected with it,and cannot subsist without it."
In Gene Hall v. State, 52 Tex. Crim. 250, defendant was charged as being an accomplice in the crime of burglary. The court said (l.c. 253):
"It is not a violation of the law with reference to the conviction of an accomplice that he simply furnished the means, advised or aided; there would be no offense unless the offense in contemplation was subsequently committed."
In Brooks v. State, 103 Ga. 50, one was charged as accessory before the fact with murder. The court said (l.c. 52):
"It is therefore necessary, before one can be found guilty as accessory before the fact, that someone must not only be charged with having perpetrated the crime, but the guilt of that personmust be established."
In State v. Hickam, 95 Mo. 322, four defendants were jointly charged with an attempt to kill, and were convicted, Hickam as *Page 1233 principal, and the other three as aiders and abettors. The judgment was reversed. The court said (l.c. 332):
"Neither of these defendants (other than Hickam), however, could properly be convicted of the offense charged in the indictment, unless the jury found, either that there was a common purpose in the minds of Sam Hickam and such defendant to kill Davenport, and the shooting was done in the attempted accomplishment of such common purpose, or that such shooting wasdone by Sam Hickam in the attempted accomplishment of a purposein his mind to kill Davenport of which such defendant hadknowledge, and that she did some act in furtherance of the attempted accomplishment of such purpose, and a proper instruction on this branch of the case ought to have been given."
The part I put in italics states the principle applicable. One cannot be convicted as aider and abettor without a guilty principal.
In State v. Baker, 297 Mo. 249, the defendant was charged with secretly burying a child to conceal the birth thereof, contrary to statute. The court said (l.c. 252):
"If appellant be punished under the facts in this case, it must be because her offense is within the the scope of Section 3687, Revised Statutes 1919, as accessory before the fact. . . . To convict one as an accessory, you must have a principal; conversely, without principal, there is no accessory."
That was concurred in by all of the judges of Division Two.
The case of State v. Hayes, 105 Mo. 76, is where the defendant proposed to one Hill the burglary of a store house. Hill consented, but notified the authorities. The two went together to the building, defendant raised the window and assisted Hill in getting into the building. Hill handed out a piece of bacon. This court said (l.c. 80):
"The trial court told the jury in this instruction that defendant was guilty of burglary, if he, with a felonious intent, assisted and aided Hill to enter the building, notwithstanding Hill himself may have had no such intent. In this we think the court erred. One cannot read this record without being convinced beyond a reasonable doubt that Hill did not enter the warehouse with intent to steal."
And at page 81:
"The act of Hill, however, was by the instruction of the court imputed to defendant. This act, according to the theory of the instructions, so far as Hill was concerned, was not a criminal act, but when it was imputed to defendant it became criminal, because of the latter's felonious intent. This would probably be true if Hill had acted under the control and compulsion of defendant, and as his passive and submissive agent. But he was not a passive agent in this transaction. He was an active one. He acted of his own volition. He *Page 1234 did not raise the window and enter the buiding with intent to commit crime, but simply to entrap defendant in the commission of crime, and have him captured."
Quoting from a Kansas case, the court added:
"`The act of a detective may, perhaps, be not imputable to the defendant, as there is a want of community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime.'"
The court then cites authorities and reasons at length upon the principle, too long to quote here.
The effect of the above authorities is that, in order to convict one as accessory before the fact of any crime, the criminal intent must be in the minds of both the accessory and the principal, and followed by the overt act in the commission or attempted commission of the crime.
II. But it is argued that the acts done by the defendant Davis, in this case, were of themselves an attempt to commit murder, independent of any act or intent on the part of Dill, his supposed agent. Counsel for the State in his argument suggests that it is an indictable offense at common law toAttempt. counsel and solicit another to commit a felony, and that, under the statute, becomes an attempt to commit the felony. True enough that is an offense at common law. [16 C.J. 117.] It is also an offense at common law to attempt to commit a crime. [16 C.J. 111-113.] Likewise it is an offense at common law to become accessory before the fact to the commission of a crime. [16 C.J. 119.] The common law recognizes these three distinct offenses. The Attorney-General cites the case of Commonwealth v. Randolph, 146 Pa. 83, in support of his position. The defendant in that case was convicted of soliciting another to commit murder. That was charged as a distinct offense in itself. The court cites numerous cases in support of the position that soliciting another to commit a crime is of itself a crime. It is not classed as an attempt to commit a crime at all. The opinion cites, among others, the case of Stabler v. Commonwealth, 95 Pa. 318, reported in 40 Am. Rep. 653. The indictment there was in six counts, on two of which defendant was tried, the first and the sixth. The first charged a feloniousattempt to poison one Waring with intent to commit the crime of murder. The sixth charged that the defendant wickedly solicited one Neyer to administer the poison to Waring. The evidence shows that the defendant solicited Neyer to put poison in Waring's spring, so that the latter and his family would be poisoned, and offered him a reward for so doing. He handed Neyer the poison and directed him how to place it. Neyer, however, refused to carry out the scheme. The defendant was convicted on *Page 1235 both counts. On appeal it was held that he was not guilty on the first count of attempt to murder, but he was rightly convicted on the sixth count for soliciting another to commit the murder. The court says, in speaking of the statute on the subject (l.c. 654):
"The act recognized and distinguished between intent and attempt. The former indicates the purpose existing in the mind, and the latter an act to be committed."
And further:
"In the present case it is contended that putting the poison into the pocket of the witness was an act sufficient to constitute the attempt, if Stabler expected and believed it would be used as he had requested."
And further commenting on the facts, the court said (l.c. 655):
"If, however, it was actually delivered with that intent, we do not think it constituted an attempt to murder under the eighty-second section of the Act of March 31, 1860."
That section, similar to ours, defined an attempt to commit a crime. The court then cites cases showing the distinction between an attempt to commit a crime and soliciting another to do it. Thus, the Pennsylvania courts, upon which the State relies, destroy the State's position.
Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. 891, is where the accused, charged with attempt to murder, purchased poison and solicited one L to put it in the "Old Man's coffee," the old man being the intended victim. L had no intention to administer the poison. It was held that it was not an attempt to murder; that mere preparation did not constitute an attempt. The court said (l.c. 896):
"`Merely soliciting someone to do an act is not an attempt to do that act' (citing an old case).
"`In that case the agent was actually given money for his services, and immediately proceeded with the poison to the house of the intended victim; but upon his arrival there, he gave up the poison to them, and told them all about it. The prisoners were convicted, but at the ensuing term the case was considered by the fifteen judges, who held the conviction wrong.'"
And further:
"Here, undoubtedly, there was an intent to commit murder; but the acts done do not amount to anything more than the mere arrangement of the proposed measures for its commission."
That case and this are as like as two peas.
In the case of Hall v. State, 52 Tex.Crim. l.c. 253, the appellant was charged as an accomplice in a burglary, and the court said:
"It is not a violation of the law with reference to the conviction of an accomplice that he simply furnish the means, advised and aided; it would be no offense unless the offense in contemplation was subsequently committed." *Page 1236
Not a case has been cited, nor can one be found, I think, which would support the conviction in this case.
State v. Mitchell, 170 Mo. 633, is cited as one in point. There the defendant actually fired the shot with intent to kill, at the spot where he thought the victim lay. That was an overt act in pursuance of the attempt by the defendant himself.
In the argument we were directed to the heinous nature of the crime, where one, who is too cowardly to commit the act himself, employs someone else to do it. That is a serious offense, and no doubt many a crime is committed by a hired agent, but the master minds in the criminal world from whom that danger comes never make mistakes such as Davis made. They know their men and they employ real killers. Davis was not only a coward, but a fool. The entire plan and preparation showed the want of judgment and discretion. He has no criminal record, and he is not a dangerous criminal. If every person who, at some time in his or her life, entertained a criminal impulse, was put in jail, a small minority of us would be at large.
It is said further that the defendant in this case did all he could do in furtherance of the plan to have this murder committed. This is incorrect. He failed of many things he might have done — things absolutely necessary for the commission of the crime or its attempt. He might have used the weapon himself. He might have used sense enough to solicit a real criminal to commit the deed. He might have taken precaution to find out who the man was that he employed for the purpose. But blindly he picked up the first man who offered his services.
The upshot of the matter is this: The defendant had no intention to kill; that is, to commit the murder himself. Dill had no intention to kill. There can be no crime without a criminal intent, and neither the defendant nor his agent entertained an intent to do the deed. The defendant intended that Dill should do it, but that intent cannot be connected with an act of another which was neither done nor contemplated by the other. The intent to commit the crime must be in the mind of the man who is to commit the crime.
Of course, the defendant was guilty of soliciting another to commit the murder; a serious crime, but he was not charged with that nor convicted of that offense. We must determine cases upon the law as it is written, and as it has been adjudged for generations.
The judgment is properly reversed.