dissenting in part, concurring in part.
While I appreciate the care with which the majority opinion treats the question of criminal attempt, I must respectfully dissent on this issue. My research in the area of criminal attempt leads me to the conclusion that Braham is guilty of solicitation, rather than of attempted murder.
Unquestionably Braham’s conduct was reprehensible in the extreme. Short of killing itself, there can be few acts so malevolent and deserving of society’s condemnation as planning the destruction of a human being in a calculated manner, using another human intermediary as the hired killer. But the question presented in this case is whether what was done amounts to an attempt or merely a solicitation, i. e., whether Braham’s acts amount to an attempt under positive law.
Traditionally the law has required a close connection between the acts constituting attempt and the likelihood that the ultimate crime will be completed. While some theoreticians argue that the graver the contemplated crime, the further back in the series of preparatory acts one can reach to impose liability for attempt, that thesis is not supported by the case law on which this theory appears to rest.1
*650Only one aspect of attempt law requires discussion in this appeal: the distinction between mere preparation and acts of perpetration. More particularly, we are dealing with the solicitation of an agent to perform a killing. We must decide what acts are required to take the situation beyond mere preparation and become a culpable attempt. We cannot reach a solution by merely manipulating the language in which general doctrine is expressed. What is required is a critical examination of the case law in light of the facts on which those cases have turned. For criminal attempt is an area of law in which the actual holdings of courts, on particular facts, provide far more valuable guidance than do the verbal formulae offered to explain those holdings.
Such an examination will reveal that there must be a tight connection between the acts done and the probability of successful perpetration of the criminal objective. I find such a nexus lacking under the facts of this case.
Although there are a few cases in which courts have said that “slight acts” will suffice for the more serious ultimate objectives, such as murder, the reasoning supporting these opinions is flawed in several ways. In many instance^ the statement by the court is broader than the facts require. In other cases, and these are not numerous, the holding and the statement of the governing principle are based upon a misunderstanding of earlier holdings, or are simply at variance with established law, or both.
The close connecting link which has usually been required between the acts constituting attempt and the ultimate crime is frequently referred to as the “proximity” requirement. Acts of mere preparation — of setting the stage for the commission of an offense — do not amount to an attempt.2 As the author of the majority opinion recognizes, what is required for criminal culpability is the formation of criminal intent, a preparation to commit the crime, and a direct unequivocal act towards its perpetration. Although I agree with the majority that this is the proper test, my application of it to the particular facts of this case requires me to arrive at a result different from that reached by the majority.
Mr. Justice Holmes recognized in Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770, 771 (1897), that this general rule cannot be reduced to a mechanical test to determine the point at which a defendant’s conduct passes over the line of mere preparation and becomes punishable as a direct act towards the commission of the ultimate offense:
“As the aim of the law is not to punish sin, but is to prevent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it. . ”
But words of general meaning such as “pretty near” can only be stretched a certain amount before the meaning of the statutory prohibition becomes warped beyond the recognizable intentions of the lawmaker. To make sense out of attempt doctrine we must look to decide cases, paying close attention to the facts.
A classic definition of attempt is found in Commonwealth v. Eagen, 190 Pa. 10, 42 A. 374, 377 (1899):
“An attempt . . . is an overt act, done in pursuance of an intent to do a specific thing; tending to the end but falling short of complete accomplishment of it. In law, the definition must have this further qualification, — that the overt *651act 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.”
Many courts have held that where one solicits or hires another to kill, but himself does no act, directly or indirectly, toward the consummation of the intended crime, the act of hiring the killer amounts to no more than solicitation or preparation. For example, in State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (1928), the defendant and the wife of the proposed victim plotted to kill the husband, to collect the life insurance proceeds, and then to live together. They sought the help of an ex-convict to carry out their plan. A police officer, posing as the ex-convict, met with defendant several times. In the course of these meetings, defendant' gave the undercover officer a map showing where the husband could be found, as well as two photographs of the intended victim. The defendant promised to pay the agent $600, and later did pay that sum. He also arranged matters so that the murder would appear to have been committed in the course of a robbery. The plot was foiled by police intervention. Because the agent employed to commit the murder did no act toward the consummation of the intended crime, the court held that defendant’s acts amounted to no more than solicitation or preparation.
In Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024 (Va.1889), the defendant solicited an agent, with a promise of reward, to administer strychnine to the intended victim. The defendant also purchased the strychnine and gave it to the agent with instructions to place it in the victim’s coffee. It was held that these acts, without more, were only preparatory measures for the commission of the crime, and not an attempt.
This line of authority was followed in People v. Adami, 36 Cal.App.3d 452, 111 Cal.Rptr. 544 (1973). There the defendant told an undercover agent that he wanted his wife killed. He was introduced to a second undercover agent, to whom the defendant gave $500, a photograph, and a written description of his wife, with instructions to kill her. The appellate court, per Molinari, P. J., held that the defendant’s conduct amounted solely to solicitation or mere preparation. The court found it significant that the defendant did not supply or employ any instrument or other means to procure his wife’s death. Additionally, the agent, who had only simulated his agreement to kill, had performed no act toward the commission of the crime.
Turning now to the cases on which the majority opinion relies, it is my opinion that some of them are distinguishable from the case at bar, while others are at best poorly reasoned.
In my view, State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954) was wrongly decided. In that case, a woman tried to hire an agent to kill her husband. She drove the agent past her husband’s house, and showed him a place where the body could be disposed of after the crime. She had several meetings with the hired killer, including one on the day appointed for the murder. She also gave the killer a down payment. In holding that these acts amounted to an attempt, the Mandel court seems to reason that had it not been for a police subterfuge, the victim would have been murdered. Yet nothing in the facts of Mandel shows that either the defendant or her “agent” did anything beyond merely setting the stage for the consummation of the crime. The first direct act toward that consummation was never commenced. Or, to put it another way, no appreciable fragment of the crime charged was accomplished.
In criticism of Mandel, the court in People v. Adami, supra, said:
“In sum, the contemplated murder would not have resulted in the usual course of natural events since neither the ‘agent’ nor the solicitor did any unequivocal overt act which can be said to be a commencement of the commission of the intended crime.” 111 Cal.Rptr. at 548.
*652The Mandel case ignores the problem of “proximity,” or the remoteness of the defendant’s acts from the consummation of the target offense. The court states merely that there must be evidence that the defendant intended that the crime be committed and took some steps or did some act toward its conclusion. At another point the court says, “When an intent is clearly shown, slight acts in furtherance thereof will constitute an attempt.” 278 P.2d, at 415.
What is truly revealing in Mandel is its reliance upon, and quotation from, Stokes v. State, 92 Miss. 415, 46 So. 627 (1908), in which the Mississippi court said that “slight acts” may constitute attempt. Speaking of the distinction between preparation and consummation, the court in Stokes complained that
“[t]oo many subtle distinctions have been drawn along these lines for practical purposes. Too many loopholes have been made whereby parties are enabled to escape punishment for that which is known to be criminal in its worse [sic] sense.” 46 So., at 629.
In short, the court in Stokes says that we can do away with traditional criteria of culpability, and punish for bad intentions and “slight acts” if we find the intentions of the defendant to be malevolent. This amounts to a reversion to the discredited doctrine of voluntas reputabitur pro facto.3 The Stokes holding is contrary to the principles underlying the law of attempt as exemplified by the decisions which adhere to the classical requisites of criminal liability.
Stokes, on which State v. Mandel, supra, rests, is distinguishable from the case at bar in a number of respects. In Stokes there was a plot between Stokes and Cora Lane to kill Wallace Lane, Cora’s husband. They hired one Robertson to perform the killing on a particular night when Wallace Lane would be returning from a lodge meeting. Robertson, however, told certain police officers about the plot. On the evening in question, Stokes procured a loaded gun and went with Robertson to the place where the killing was to be done. As Stokes was in the act of handing the gun to Robertson, he was arrested by the police officers, who had been surveilling them.
The problem before the court in Stokes was whether the defendant’s acts went beyond mere preparation, the defense being that because Wallace Lane did not appear at the scene, an overt act was not shown. It was in this context that the court uttered the language about “slight acts” and “loopholes,” seized upon later by the court in Mandel. In comparison with other cases the holding in Stokes extends liability on quite a broad basis. Yet the facts of Stokes show a much greater “proximity” to the target offense than the facts in Mandel.
United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cited in the majority opinion, concerns an unusual fact situation, specifically an attempt to deliver national defense secrets to a foreign agent. At the time of her arrest, Coplon was walking on the streets of New York City with the foreign agent. The national defense information was in her handbag and had not yet been passed to the agent. Other circumstances in the case demonstrated Coplon’s intent to pass the information to her companion. Speaking through Learned Hand, J., the court held that Coplon’s conduct amounted to an attempt.
The gist of the opinion in Coplon is that acts short of the very instant of consummation of a crime can constitute an attempt, as distinguished from preparation. The court relied upon the opinion of Mr. Justice Holmes in Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55 (1901), to the effect that preparation which comes very near to the accomplishment of the act, coupled with the intent to complete it, renders the commission of the crime so probable that liabili*653ty will attach for an attempt. But it certainly cannot be said that the Coplon case represents any new departure in this area of law. Nor does it support any theory about “remote” acts, coupled with an intention to commit a serious crime, being an adequate basis for imposing liability for criminal attempt. Judge Hand’s main focus of interest in Coplon is on whether one may pass beyond mere preparation even though he has not taken the last of his intended steps, “in short that he has passed beyond any locus poenitentiae.” 185 F.2d 633. He answers that question in the affirmative.4
United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974), is a case of attempted distribution of heroin. In addition to its facts being highly distinguishable from the case at bar, its legal holding is questionable. No showing was made in Mandujano that the defendant at any relevant time had access to or possession of any heroin to distribute. The conviction rested solely on the receipt of money, which the court artificially termed a substantial step toward the commission of the target offense.
State v. Gay, 4 Wash.App. 834, 486 P.2d 341 (1971), holds that an attempt was committed where the defendant forged an assignment of her husband’s insurance policy, paid the premiums, and then hired an assassin (feigned) to kill her husband. For the most part the case follows State v. Mandel, supra, and provides no helpful analysis of the law of attempt.
I now turn to two opinions of Mr. Justice Holmes which have, perhaps unintentionally, created much confusion in the law of criminal attempt. Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770 (1897), was a case of attempted murder by means of poison. The defendant was charged with having placed rat poison, containing arsenic, on the underside of the crossbar of the mustache cup of the victim, Learoyd, with the intent that Learoyd should drink from the cup and swallow the poison. The indictment was challenged on appeal in part because it failed to allege that the amount of rat poison placed in Learoyd’s cup was sufficient to kill. In holding the indictment sufficient, Mr. Justice Holmes noted that the unlawful administration of poison is an act which, in common apprehension, is likely to cause death. In this connection he noted that liability for attempted murder could attach even though the amount of poison was not shown with certainty to be lethal. He then stated:
“[A]nd the gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension, coupled with the great harm likely to result from poison, even if not enough to kill, would warrant holding the liability for an attempt to begin at a point more remote from the possibility of accomplishing what is expected than might be the case with lighter crimes.” 48 N.E., at 771.
He then referred to cases holding that impossibility of achievement is not necessarily a defense, citing cases in which an attempt was found even though the acts done would not result in the ultimate offense unless they were followed by other criminal acts.5 Commonwealth v. Kennedy is significant in that the facts themselves show a high degree of “proximity” between the placing of the poison in the victim’s cup and the target offense of murder by poison. The doctrinal statement of Mr. Justice Holmes must be read in that factual context.
Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55 (1901), was a case of attempted arson. The defendant arranged combusti*654bles in a building so that if they were lit by a candle, the building would be burned. He then offered to pay a younger man in his employment to go to the building, several miles away, and carry out the plan. The employee refused, but later drove with defendant towards the building. When they were within a quarter of a mile of their target, the defendant said that he had changed his mind. He then drove away.
The actual holding in Peaslee is that the indictment was insufficient because it did not allege defendant’s solicitation of his employee as an overt act. The court clearly holds that the defendant’s own acts, if taken alone, would be merely acts of preparation. The implication is that defendant’s solicitation of his employee could amount to an overt act. But it is not clear that this is a definite holding of the court, because such a holding would have been unnecessary to decision. Therefore, the statements of Mr. Justice Holmes in this case about the relativity of attempt doctrine must be considered obiter dictum. The Peaslee case cannot be taken as either establishing or supporting a broad form of criminal liability for “slight” or “remote” acts in the preparation or execution of a criminal design. If anything, it shows that Mr. Justice Holmes’ doctrinal formulation in terms of “remoteness” or “degree” must be read within severe practical limits.6
If there is any doubt about the limited nature of the Kennedy and Peaslee holdings, and about their fragility as sources of doctrinal change, it is dispelled by the later utterances of their author.
In Hyde v. United States, 225 U.S. 347, 32 5.Ct. 793, 56 L.Ed. 1114 (1912), Mr. Justice Holmes, in dissent, sheds light on what he meant in his earlier Massachusetts opinions. In drawing a distinction between conspiracy and attempt, he said:
“An attempt, in the strictest sense, is an act expected to bring about a substantive wrong by the forces of nature. With it is classed the kindred offense where the act and the natural conditions present or supposed to be present are not enough to do the harm without a further act, but where it is so near to the result that, if coupled with an intent to produce that result, the danger is very great. .
But combination, intention, and overt act may all be present without.amounting to a criminal attempt, — as if all that were done should be an agreement to murder a man 50 miles away, and the purchase of a pistol for the purpose. There must be dangerous proximity to success. But when that exists the overt act is the essence of the offense.” 225 U.S., at 387-88, 32 S.Ct., at 810.
Thus it is plain that even when Mr. Justice Holmes spoke in the Kennedy and Peaslee cases about gravity of the offense, remoteness, and degree, he still meant those terms to be understood only in light of existing case law. And the case law at that time did not support any broad, general theory of culpability, as has so often been attributed to Holmes’ language.7
Where does all this discussion lead us?
It appears that very little case law supports an application of broad attempt principles to the case at bar. There are, of course, State v. Mandel, supra, and State v. Gay, supra. Analysis reveals that these cases present weakly reasoned, questionable holdings. Against them stands an overwhelming mass of case law, accumulated over centuries. Mandel and Gay cannot be defended on conventional principles of the law of criminal attempt. They amount to an abrogation of both the traditional law *655and the distinction between attempt and solicitation. Plainly and simply, they represent bad law.
Solicitation alone cannot constitute an attempt to commit murder. To call solicitation an attempt is to do away with the necessary element of an overt act. At the stage of merely planning a crime, and of soliciting another to kill, there are still too many contingencies, including the willingness of the solicitee to kill, to say that the die is cast and that an overt act has occurred. To merge solicitation and attempt only bastardizes the two concepts and engenders confusion in an area of law already quite, though unnecessarily, confused.8
No doubt it can be argued in the abstract that in any solicitation or inducement to commit crime, but for the failure of the solicitee to carry it out, the crime might have been committed, and that this risk justifies punishing the defendant’s inducements as an attempt. But the law, with the exception of such aberrations as Mandel and Gay, has never gone so far. To do so renders the crime of solicitation obsolete, and substitutes for it a vastly expanded form of criminal offense not requiring a direct unequivocal act toward the consummation of the solicited crime.9 Surely such a conversion of solicitation into attempt is quite contrary to what the legislature had in mind when it set up the distinct categories of solicitation and attempt.
In the case at bar, all of Braham’s acts were in the nature of solicitation or inducement. At all relevant times it was Bra-ham’s manifest intention that Koelzer perform the acts of perpetration. Although requested to, Braham did not furnish to Koelzer a weapon with which to perform the killing. Braham did give instructions to Koelzer several days in advance of the contemplated killing of how the plan should be effectuated. But no acts were ever committed by either Braham or Koelzer which put them in dangerous proximity, geographic or temporal, to actually killing Peterson.10
In summary, I believe the majority opinion applies the law of criminal attempt in a demonstrably erroneous manner. Because there was no direct, unequivocal act toward the commission of the target crime, which placed the actors in a dangerous proximity to the killing of the intended victim, I would reverse the conviction.11
. That theory is normally supported by reference to Mr. Justice Holmes. See Holmes, The Common Law 68-70 (1881); Commonwealth v. *650Peaslee, 177 Mass. 267, 59 N.E. 55, 56 (1901) (Holmes, J.); Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770, 771 (1897) (Holmes, J.). These cases will be discussed later in this opinion. It will be seen that when tested against the cases, Holmes’ doctrinal statement is far too broad.
. Thus, procuring poison and delivering it to another to place in the victim’s well or drink has been held insufficient as an attempt. Stabler v. Commonwealth, 95 Pa. 318 (1880); Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1094 (1889). And merely meeting a confederate at an appointed place, on the way to commit a burglary, and the purchase of extra cartridges and chloroform to be used in the burglary, was held not to amount to an attempt in People v. Youngs, 122 Mich. 292, 81 N.W. 114 (1899).
. The maxim, which can hardly be called a doctrine, of voluntas reputabitur pro facto —that the intention shall be taken for the deed — if it ever had any validity in the early common law, rested upon judicial dicta and misunderstanding of precedent. In the law of criminal attempt it represented at best a weak rationalization which has long been abandoned. See, F. Sayre, “Criminal Attempts,” 41 Harv.L. Rev. 821, 822-37 (1928).
. I agree that an attempt can be committed even though there remains a locus poenitenti-ae. My point is that the Coplon case, on its facts and on the legal questions presented, bears little resemblance to the case at bar.
. As to the latter, Mr. Justice Holmes cited Lewis v. State, 35 Ala. 380 (1860), in which a black man chased a white woman for more than a mile. Although he had not come within ten steps of the woman, and there was no other manifestation of his intent, his conviction for attempted rape was affirmed. It is submitted that the provenance of the case, and the race of the defendant, make it a weak base upon which to support a general theory.
. Time does not permit an extended discussion of the case law cited in the Peaslee and Kennedy opinions. But a critical examination of that case law will show that for the most part either it falls within the traditional requirement of a tight “proximity” between overt act and ultimate crime, or it illustrates an entirely different type of offense, i. e., one in which the substantive offense is in itself an attempt.
. Professor Jerome Hall, in criticizing the theory that the graver the target offense, the less immediate the conduct need be to constitute a criminal attempt, agrees that this broad formulation based on Holmes’ decisions will not bear careful scrutiny. J. Hall, General Principles of Criminal Law (2d ed. 1960) at 579-80.
. Accord, Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963); R. Perkins, “Criminal Attempt and Related Problems,” 2 U.C.L.A.L.Rev. 319, 349-53 (1955).
. Professor Perkins goes so far as to argue that,
“solicitation of another to commit a crime is an attempt to commit that crime if, but only if, it takes the form of urging the other to join with the solicitor in perpetrating that offense, —not at some future time or distant place, but here and now, and the crime is such that it cannot be committed by one without the cooperation or submission of another, such as bribery or buggery.” R. M. Perkins, Criminal Law (1957) at 519.
Under the Perkins analysis, Braham’s acts presumably would not constitute attempt on both grounds; the killing urged by Braham was to be perpetrated at a future time and distant place, and was to be committed by Koelzer alone.
. As the court did in State v. Lourie, 12 S.W.2d 43 (Mo. 1928), I would hold that where one hires or incites another to do a criminal act, he is, apart from his own acts, responsible only for what the other person actually does pursuant to the incitation.
. Like the majority I would strongly urge that the legislature consider enacting a statute which separately penalizes arrangements to kill for hire. But the absence of such a statute does not justify us in penalizing solicitation as attempt. It should be noted that solicitations such as Braham’s are punishable by up to three years imprisonment. See AS 11.10.070.