State v. Davis
6 S.W.2d 609, 319 Mo. 1222 (1995)
Rule of Law:
Mere solicitation or acts of preparation, such as planning a crime and hiring an agent to commit it, do not constitute the necessary overt act for the crime of attempt if the hired agent takes no steps toward the consummation of the crime.
Facts:
- Defendant and Alberdina Lourie, who were romantically involved, conspired to have Alberdina's husband, Edmon Lourie, murdered to collect on his $60,000 life insurance policy.
- Defendant, through an intermediary named Earl Leverton, arranged to hire a supposed ex-convict to carry out the murder.
- Leverton informed police officer Joel L. Dill of the plot, and Dill agreed to pose as the hired killer.
- Defendant met with Dill several times, outlining the plan, providing photographs and a map of Edmon Lourie's location, and agreeing to pay $600 for the murder.
- The initial plan was for Dill to kill Lourie in Chicago, but it was changed to Kansas City when Lourie unexpectedly returned home.
- Defendant paid Dill the $600 and finalized the plan for Dill to shoot Lourie during a staged robbery, during which Alberdina would feign being a victim.
- On the appointed night, Alberdina and Edmon Lourie were dressed and ready to leave their home as planned.
- Defendant stayed at his own home to establish an alibi for the time of the planned murder.
Procedural Posture:
- The Defendant was indicted for attempt to commit murder in the first degree in the trial court for Jackson County, Missouri.
- Following a jury trial, the Defendant was convicted on May 29, 1926, and the jury fixed his punishment at eight years in prison.
- The trial court subsequently reduced the sentence to five years and entered judgment.
- The Defendant appealed the judgment to the Supreme Court of Missouri.
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Issue:
Do acts of solicitation and preparation, such as hiring and paying an undercover police officer to commit murder, constitute a sufficient overt act to support a conviction for attempted murder when the officer never intended to carry out the crime?
Opinions:
Majority - Davis, C.
No. The defendant's acts of soliciting, planning, and paying an agent to commit murder amount only to mere preparation and do not constitute the necessary overt act for an attempt, because the hired agent never took any step toward the crime's consummation. An attempt requires three elements: intent, failure to consummate, and an overt act toward the commission of the crime. Here, the overt act is missing. The court distinguishes between preparation, which consists of devising or arranging the means for the offense, and the attempt itself, which is a direct movement toward the commission after preparations are made. The defendant's actions—soliciting Dill, paying him, and providing photos—were all preparatory. Because Dill was a police officer with no intention of carrying out the murder and performed no act that moved directly toward its commission, the defendant's actions never progressed beyond the preparation stage.
Dissenting - Unnamed
Yes. The defendant's acts of solicitation and detailed planning constitute a sufficient overt act to sustain a conviction for attempt under the governing statute. The statute punishes anyone who does 'any act toward the commission of such offense.' The dissent argues that under Missouri precedent, soliciting another to commit a felony is, by itself, an act towards its commission. The defendant did everything within his power to effect the murder, short of committing it himself. The fact that the person he solicited never intended to carry out the crime is irrelevant to the defendant's own criminal intent and the actions he took in furtherance of that intent.
Concurring - White, J.
No. The defendant cannot be guilty of an attempt because his liability arises as an accessory before the fact, and an accessory cannot be guilty if the principal agent is not guilty. The legal principle 'Accessorius sequitur naturam sui principalis' (the accessory follows the nature of his principal) dictates that an accessory's guilt is dependent upon the principal's. In this case, the hired agent, Dill, was the principal. Since Dill had no criminal intent and did not commit or attempt to commit a crime, he is not guilty. Therefore, the defendant, as the accessory who procured him, cannot be guilty of the crime either.
Analysis:
This decision establishes a strict distinction between 'mere preparation' and a criminal 'attempt,' requiring an overt act that moves directly toward the consummation of the crime. It significantly impacts attempt liability by creating a defense where a defendant's plan is thwarted by the fact that their chosen accomplice is an undercover officer. By focusing on the lack of a guilty act by the agent (the police officer), the court makes it difficult to prosecute for attempt in sting operations where the authorities control the final steps. This holding represents a narrower view of attempt liability compared to jurisdictions that find solicitation itself to be a sufficient overt act.
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