On error to the Bergen County Court of Quarter Sessions.
For the plaintiff in error, Walter P. Back and Albert S. Gross.
For the state, Walter G. Winne, Prosecutor of the Pleas, and Wallace S. DePuy, Assistant Prosecutor of the Pleas.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
HEHER, J. Plaintiff in error challenges what is said to be a judgment of conviction upon an indictment charging that on October 11th, 1944, he did "counsel" one George Polos to set fire to a certain dwelling house in the City of Hackensack, with intent to prejudice and defraud the insurers thereof against loss or damage by fire, in contravention of R.S. 2:109-4, which provides that one who shall, with that intent, "willfully or maliciously set fire to, or burn, or aid, counsel, procure or consent to the setting fire to or burning, of any" such insured building or chattels shall be guilty of a high misdemeanor. The case was tried to a jury; and there was a verdict of guilty. The indictment is not printed in the state of the case; and there is no showing therein of the entry of a judgment of conviction. This latter deficiency renders the writ of error dismissible; and this should be our course were it not for the state's failure to make a point of the omission and its seeming concession that the return made to the writ of error reveals the entry of a judgment upon the verdict. The entire record of the proceedings had upon the trial has been included in the return, pursuant to R.S. 2:195-16.
Although we have but a meager description of the content of the indictment, it would seem, as said, that it accuses plaintiff in error merely of counseling another to set fire to the dwelling house; and it is urged at the outset that such is not an offense denounced by the cited statute unless the wrongful act thus counseled is done, and the insured property is actually burned. We do not so read the statute. It plainly classifies as a high misdemeanor the counseling or solicitation of another to set fire to or burn any insured building, ship or vessel, or goods, wares, merchandise or other chattels, with intent to prejudice or defraud the insurer; and in this regard the statute is primarily declaratory of the common law.
At common law, it is a misdemeanor for one to counsel, incite or solicit another to commit either a felony or a misdemeanor, certainly so if the misdemeanor is of an aggravated character, even though the solicitation is of no effect, and the crime counseled is not in fact committed. The gist of the offense is the solicitation. It is not requisite that some act should be laid to have been done in pursuance of the incitement. While the bare intention to commit evil is not indictable, without an act done, the solicitation, itself, is an act done toward the execution of the evil intent and therefore indictable. An act done with a criminal intent is punishable by indictment. It was said by an eminent common law judge (Lawrence, J., in Rex v. Higgins, infra) that under the common law all offenses of a public nature, i.e., "all such acts or attempts as tend to the prejudice of the community," are indictable; and it goes without saying that an attempt to incite another to commit arson or a kindred offense is prejudicial to the community and public in its nature. Rex v. Higgins, 2 East 5; Rex v. Scofield, Cald. 397; Rex v. Plympton, 2 Ld. Raym. 1377; Rex v. Vaughn, 4 Burr. 2494; Rex v. Philipps, 6 East 464; Regina v. Gregory, 1 L.R.C.C. 75; State v. Quinlan, 86 N.J.L. 120; State v. Boyd, 86 Id. 75; affirmed, 87 Id. 328; Commonwealth v. Flagg, 135 Mass. 545; State v. Schleifer, 99 Conn. 432; 121 A. 805; 35 A.L.R. 952; Commonwealth v. Randolph, 146 Pa. 83; 23 A. 388; State v. Bowers, 35 S.C. 262; 14 S.E. Rep. 488; 15 L.R.A. 199. In the case of State v. Brand, 76 N.J.L. 267; affirmed, 77 Id. 486, this court construed the statute as denouncing two separate and distinct offenses, i.e., the willful or malicious setting fire to or burning of insured property, with intent to prejudice the underwriter, and aiding, counseling, procuring or consenting to the setting fire to or burning of such property; but our court of last resort found it unnecessary to consider the question, for there the indictment used the statutory terms in the conjunctive and thus charged that the merchandise was in fact burned.
The solicitation constitutes a substantive crime in itself, and not an abortive attempt to perpetrate the crime solicited. It falls short of an attempt, in the legal sense, to commit
the offense solicited. An attempt to commit a crime consists of a direct ineffectual overt act toward the consummation of the crime, done with an intent to commit the crime. Neither intention alone nor acts in mere preparation will suffice. There must be an overt act directly moving toward the commission of the designed offense -- such as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself. State v. Schwarzbach, 84 N.J.L. 268; Marley v. State, 58 Id. 207.
Of course, at common law one who counsels, incites or solicits another to commit a felony, is indictable as a principal or an accessory before the fact, if the designed felony is accomplished, depending upon his presence and participation or absence ...