[78 Ariz. 227] Jack I. Podret and Scruggs & Rucker, Tucson, for appellant.
Ross F. Jones, Atty. Gen., and John R. Elliott, Asst. to Atty. Gen., for appellee.
The appellant Perle Mandel, hereinafter designated defendant, by information was charged with the crime of attempt to murder her husband in violation of section 43-6109, A.C.A.1939. After trial and conviction, she was sentenced to imprisonment for a term of not less than two and one-half nor more than four years. Defendant appeals, presenting eight assignments of error which essentially present for solution two legal problems: (1) Whether the evidence is such that warrants a finding that the defendant committed an overt act as one of the essentials of the commission of the crime of attempted murder, and (2) whether the statute creating the crime provides no method of punishment and is for this reason indefinite and uncertain to the extent it is unenforceable.
The evidence would allow the jury to find substantially that the defendant conveyed to one Marion Budek the desire that her husband be killed with the suggestion that he perform the act. Upon his refusal she suggested that he might find some 'gangster' for the purpose. Budek made
no promise that he would or would not attempt to secure another to help carry out the scheme, but upon arrival at the Davis-Monthan Air Base where he was in service, [78 Ariz. 228] he reported the matter to Steve Porovich who was then in charge of the criminal investigation department at the Air Base. Budek then by telephone advised defendant he had a 'gangster' who would do anything for money, and at her request Budek and Porovich met Mrs. Mandel at 9:30 that evening. After introduction they went riding in her car and a deal was made whereby Porovich was to kill her husband and receive therefor the sum of $5,000, $100 of which was paid as a retainer. She took Porovich in her car and showed him her husband's home and car and an arroyo where he could possibly dispose of the body. It was planned the husband, Dr. Mandel, was to be enticed to a motel on the pretense of visiting a patient, where the crime was to be completed. At subsequent meetings defendant and Porovich discussed plans concerning the completion of the murder, including a meeting on Sunday, the day the crime was to be committed, wherein it was arranged between them that Porovich was to be at defendant's home in the evening when she knew the doctor would be there. The Tucson police had been advised by Porovich of the scheme. Sunday after the contact by Porovich with the doctor, the police arrived and arrested the defendant.
The position of the defendant is that under the foregoing circumstances the crime of attempted murder has not been committed for the reason that the defendant committed no overt act towards the commission of the completed crime but at most it amounted to mere solicitation or preparation. The general rule is that solicitation alone or mere preparation is not sufficient to sustain a conviction for an attempt to commit a crime. 22 C.J.S., Criminal Law, § 73; Cole v. State, 14 Okl.Cr. 18, 166 P. 1115, L.R.A.1918A, 94. There must be evidence that would warrant the conclusion that the defendant (1) intended the crime be committed and (2) took some steps or did some act towards the commission thereof. State v. Crawford, 21 Ariz. 501, 190 P. 422.
In the instant case there is no question the jury could well find the defendant intended that through her solicitation her husband be murdered. The question is whether under the foregoing circumstances the defendant committed an overt act, took steps or did things that if not interrupted would have resulted in the commission of the crime. In answering this question we must bear in mind that the act or acts leading to or intended to accomplish the crime to come within the category of an overt act need not be the last possible act to the consummation thereof. When an intent is clearly shown, slight acts in furtherance thereof will constitute an attempt. People v. Fiegelman, 33 Cal.App.2d 100, 91 P.2d 156; Stokes v. State, 92 Miss. 415, 46 So. 627, 629, 21 L.R.A.,N.S., 898. The courts should not and this court will not indulge in intricate subtleties to accurately define the distinction between solicitation or preparation and an act done [78 Ariz. 229] towards the commission of the crime. To do so would merely defeat the practical and common sense administration of the law. What overt acts are sufficient hs been the source of much discussion by legal authorities and the courts are not entirely in harmony, but legal principles should be applied with a view to working substantial justice. These principles are well stated in the case of Stokes v. State, supra, wherein the court used this language:
'* * * whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt, and this court will not destroy the practical and common-sense administration of the law with sub(t)leties as to what constitutes preparation and what an act done toward the commission of a crime. Too 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 sense.'
The fundamental reason back of the requirement of an overt act is that until
such act occurs, there is too much uncertainty that a design is to be apparently carried out. Until that time the situation is equivocal; there is not sufficient certainty that the design will, if not interrupted, be fully completed. When by reason of the conduct of defendant the situation becomes unequivocal and it appears the design will be carried into effect if not interrupted, we have a condition that meets the test of overt acts intended to accomplish the purpose. People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913. When the commission of a crime is intended and this intention is manifested by an outward act in or towards the commission of the offense, the crime of attempt has been committed.
We think the circumstances in this case put the defendant beyond the sphere of mere solicitation or preparation. She not only solicited, she consummated the contract to that end and partly executed the same by payment of a portion of the consideration; she identified for the intended assassin the home and the car of the intended victim, pointed out a possible site for disposition of the body and advised the place and time when and where contact could be made for the consummation of the murder. She did everything she was supposed to do to accomplish the purpose. Had it not been for the subterfuge, the intended victim would have been murdered. Under such circumstances she cannot escape by reason of clever, elusive distinctions between preparation, solicitation and acts committed in furtherance of the design.
The fact that the intended accomplices were feigned does not relieve the defendant. It is not necessary that the contemplated murder be factually possible. It is sufficient if it was apparently possible [78 Ariz. 230] to the defendant. People v. Siu, Cal.App., 271 P.2d 575; People v. Parrish, 87 Cal.App.2d 853, 197 P.2d 804; People v. Lanzit, 70 Cal.App. 498, 233 P. 816; People v. Grant, 105 Cal.App.2d 347, 233 P.2d 660.
It is suggested that the crime was intercepted and became impossible prior to much of the conduct of the defendant which is used herein to constitute overt acts and that such subsequent acts in cooperation with feigned accomplices would not tend to establish the attempt. There is no merit to this contention. The fact that the crime is impossible in fact, although though by the defendant to be possible, does not relieve the ...