
    The People of the State of New York, Plaintiff, v. George E. Mills, Defendant.
    (Supreme Court, New York Special Term,
    July, 1903.)
    Crimes — Who are principals — Attempt to commit a crime — Solicitation of another— Penal Code, §§ 29, 34.
    Where it appears, upon the trial of indictments for an attempt to commit the crime of unlawfully removing public records and also for an attempt to commit grand larceny in the second degree by attempting to steal indictments, that the removing or taking of them which the defendant counseled never occurred and that the only taking or removing of them was done by the district attorney, not an accomplice and actuated by a different motive, who took them for his own purposes, the defendant is not a principal, within Penal Code, § 29, in removing or stealing the indictments as the act of the district attorney cannot be imputed to the defendant.
    
      The mere solicitation of another, a detective, to commit a crime, with intent to commit the crime, is, however, within Penal Code, § 34, “An act done with intent to commit a crime and tending * * * to effect its commission,” and upon proof of such solicitation by the defendant he may properly be convicted of an attempt to commit that crime and a certificate of reasonable doubt as to whether the judgment of his conviction should stand must be refused.
    A-ppT.TftATTOTv for a certificate of reasonable doubt.
    William Travers Jerome, District Attorney (Robert C. Taylor, Assistant District Attorney, of counsel), for People.
    John R. Dos Passos, John T. Little and Howe & Hummel, for defendant Mills.
   Dugro, J. Mills,

the defendant, was accused by an indictment framed under sections 34, 94 and 531 of the Penal Oode, and which contained two counts: “ Eirst. Of the crime of an attempt to commit the crime of willfully and unlawfully removing * * * records * * * deposited in a public office *. Second. Of the crime of an attempt to commit the crime of grand larceny in the second degree committed by the felonious attempt to steal six indictments.” Section 34 reads: “An act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” It is contended that the evidence warranted a conclusion that the crimes charged as having been attempted were committed, and that a conviction upon an accusation of an attempt to commit the crime was, therefore, warranted under section 685 of the Penal Oode, and this contention rests upon a claim that defendant, through counseling the removing and the taking of the indictments, became a principal by virtue of section 29 of the Penal Oode, which reads as follows: “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids or abets in its commission, and .whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.” It seems that whatever was done in the way of removing or taking was not done under the counsel or inducement of the defendant, but by the district attorney, who was prompted to do the removing by his desire to use the papers for entrapping purposes and between whom and the defendant there was a want of community of motive. The taking which it is claimed defendant counseled never took place, the taking which did take place was by the district attorney, was solely for his personal purposes and independent of any counsel or inducement on the part of the defendant, and in taking the indictments the district attorney was not an accomplice. As there was nothing in common between the motives of the district attorney and those of the defendant, the act of the district attorney was not imputable to defendant. The claim that defendant was a principal in a removing and stealing of the indictments is, therefore, untenable. But there was evidence from which the jury may have justly inferred that the detective, Brindley, was solicited by the defendant to remove the indictments from the office of the clerk and to steal them, and this was sufficient to sustain the verdict, for a mere solicitation to commit a crime with intent to commit the crime is an act done with intent to commit a crime, and tending * * * to effect its commission,” within the meaning of these words as used in section 34 of the Code (King v. Higgins, 2 East, 5, 1 Russ. on Cr. 196 [ed. of 1896], People v. Bush, 4 Hill, 135), and even though the words used by the defendant did not amount to a solicitation, I believe that they constituted such an act as is referred to in section 34. I have given due consideration to all the questions referred to in the briefs presented in behalf of the applicant and am unable to say that in my opinion there is reasonable doubt whether the judgment should stand and will, therefore, deny the application for a certificate;

Application denied.  