Facts
- Lincoln B. Peaslee owned a building and its contents, which were insured at a high valuation.
- Combustible materials were arranged inside the building so they were ready to be ignited; the plan required placing and lighting a candle positioned nearby to start the fire.
- Peaslee offered to pay an employee to go to the building and place and light the candle; the employee refused.
- Peaslee later drove with the employee toward the building but, when within about a quarter mile, said he had changed his mind and drove away.
- No fire was set, and Peaslee did not enter the building or take the final ignition step.
Issues
- Whether the proved conduct (preparation, solicitation, and approach followed by abandonment) constituted an “attempt” to set fire to the building with intent to injure the insurers under the attempt statute.
- Whether the conviction could stand when the prosecution relied on solicitation as the “act towards the commission” of the offense but the indictment did not allege solicitation as an overt act.
Decision
- The Supreme Judicial Court sustained the defendant’s exceptions and set aside the conviction.
- The court indicated the evidence could support conviction for an indictable inchoate offense if properly charged (attempt or solicitation), but the indictment as framed was insufficient.
- Because the prosecution’s theory depended on solicitation as a key overt act, and solicitation was not alleged in the indictment, it could not be used to satisfy the statutory requirement of an act toward commission.
- The remaining alleged conduct (arranging combustibles) was inadequate, on this indictment, to sustain an attempt conviction.
Legal Principles
- Attempt requires more than preparation; the prosecution must prove an act sufficiently directed toward completing the substantive crime.
- Conduct that would complete the crime but for an unanticipated interruption can qualify as an attempt, depending on how immediate the act is to completion.
- Solicitation, especially when combined with preparation of the means, may be treated as an act toward commission for attempt purposes in an appropriate case.
- When the prosecution relies on a particular overt act to satisfy the attempt statute, that act must be specifically alleged in the indictment; an unalleged overt act cannot be supplied solely by proof at trial.
Conclusion
The court reversed the attempt conviction because the indictment failed to plead solicitation as an overt act, preventing the Commonwealth from using that solicitation to supply the “act towards the commission” required for attempt, even though the evidence might have supported liability under a properly drafted charge.