132. Solicitation to Commit a Misdemeanor.

Whether solicitation to commit a misdemeanor is indictable is not so clear. Some of the courts have made a distinction in this respect between felonies and misdemeanors, and

solicitations to commit crimes are independently indictable, says: "They certainly are * when they in themselves involve a breach of the public peace, as is the case with challenges to fight and seditious addresses. They are also indictable when their object is interference with public justice, as where a resistance to the execution of a judicial writ is counseled; or perjury is advised; or the escape of a prisoner is encouraged; or the corruption of a public officer or a witness is sought, or invited by the officer himself. They are indictable, also, when they are in themselves offenses against public decency, as is the case with solicitations to commit sodomy; and they are indictable, also, when they constitute accessaryship before the fact. But * the better

opinion is that, where the solicitation is not in itself a substantive offense, or (and) where there has been no progress made towards the consummation of the independent offense attempted, the question whether the solicitation is, by itself, the subject of penal prosecution, must be answered in the negative." 1 Whart. Crim. Law (10th Ed.) § 179.

This statement was approved by the supreme court of Illinois in Cox v. People, 81 Ill. 191. The indictment in this case, however, was for assault

have held that solicitation to commit a misdemeanor is not indictable at all,79 though they hold that it is an offense to solicit the commission of a felony.80 There is no more reason, however, for such a distinction in the case of solicitation, than there would be for holding an attempt to commit a misdemeanor not to be indictable; and there are many cases in which an indictment for solicitation

with intent to commit a felony (incest), and not merely for solicitation. Several other cases, sometimes cited as holding that solicitation to commit a felony is not indictable, do not so hold at all, but merely hold that solicitation is not indictable as an attempt, which, as we have seen, is very generally conceded. Ante, § 125, McDade v. People, 29 Mich. 50; State v. Harney, 101 Mo. 470; State v. Butler, 8 Wash. 194.

79 Thus, in Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686, it was held not to be an indictable offense to solicit a woman to commit adultery, since, by the laws of Pennsylvania, adultery was merely a misdemeanor. The court distinguished State v. Avery, 7 Conn. 266, 18 Am. Dec. 105 (supra, note 76), on the ground that, in Connecticut, adultery was a felony.

In Com. v. Willard, 22 Pick. (Mass.) 476, it was held, in effect, that solicitation to sell liquor in violation of law was not an indictable offense.

80 See the cases cited in the notes to the section preceding.

to commit a misdemeanor has been sustained. Thus, indictments have been sustained for solicitation to commit embracery,81 for soliciting a person who has been summoned as a witness for the state in a criminal prosecution to absent himself,82 and for solicitation to accept a bribe,83 or to pay a bribe.84

133. Solicitation not Indictable as an Attempt.

As was shown in a former section, some of the cases in which solicitation to commit a crime has been held to be an indictable offense proceed on the theory that mere solicitation is sufficiently an act done-"a step in the direction of the crime"-to constitute an attempt. But this view is not supported by the weight of authority. Solicitation is not an attempt. It is not an act done with intent to commit a crime, and which would apparently result in the commission of the contemplated crime unless frustrated by extraneous circumstances. If punishable at all, it is punishable as a distinct misdemeanor.85

81 State v. Bonds, 2 Nev. 265.

82 State v. Keyes, 8 Vt. 57.

83 Rex v. Vaughan, 4 Burrows, 2494; Rex v. Plympton, 2 Ld. Raym. 1377; post, § 432.

84 Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128; post, § 432.

* See ante, § 125, and cases there cited.

IV. CRIMINAL CONSPIRACY.

134. In General.-It is a misdemeanor at com. mon law, known as "conspiracy," for two or more persons to conspire or combine, either

1. To accomplish a criminal or unlawful pur pose;

2. Or to accomplish a purpose not in itself criminal or unlawful by criminal or unlawful means.

It is the unlawful combination or agreement that constitutes the offense, and no overt act is necessary.

As to Definition or Description of Offense. -The courts have found it difficult to frame a definition of the crime of conspiracy sufficiently accurate to include all agreements or combinations that are punishable, and at the same time avoid including some that are not punishable. Perhaps it cannot be done. The definition or description, rather—given above has been adopted by some of the most eminent judges, and is sufficiently accurate as a definition. It was said by Chief Justice Shaw in a leading Massachusetts case: "Without attempting to review and reconcile all the cases, we are of opinion that as a general description, though perhaps not a precise and accurate definition, a conspiracy

must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means." 86

In punishing a conspiracy the law does not punish mere intention. There is something more than this. There is an unlawful agreement or combination, and this is what constitutes the offense.

135. Overt Act Not Necessary.

The conspiring is a distinct offense, and to make it indictable nothing whatever need be done in execution of it. No overt act is necessary. If two men meet, and agree to commit a crime, they are guilty of a criminal conspiracy, and liable to indictment, though the very next moment they may change their minds and determine not to do so.87

86 Com. v. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346, Beale's Cas. 821. And see post, § 135.

87 Poulterers' Case, 9 Coke, 55b, Beale's Cas. 801; Rex v. Edwards, 8 Mod. 320, Beale's Cas. 804; Com. v. Judd, 2 Mass. 329, 3 Am. Dec. 54; People v. Richards, 1 Mich. 216, 51 Am. Dec. 75, 80; People v. Mather, 4 Wend. (N. Y.) 229, 263, 21 Am. Dec. 122, 151; State v. Ripley, 31 Me. 386; State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534; State v. Younger, 1 Dev. (N. C.) 357, 17