State v. Keen ( 1975 )

214 S.E.2d 242 (1975) 25 N.C. App. 567

STATE of North Carolina
v.
Patrick Alan KEEN.

No. 7428SC965.

Court of Appeals of North Carolina.

May 7, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

McGuire, Wood, Erwin & Crow by James P. Erwin, Jr., Asheville, for defendant-appellant.

VAUGHN, Judge.

In support of his contention that the court should have granted his motion for judgment of nonsuit, defendant argues that the State's own evidence shows that:

". . . the defendant was (1) entrapped and (2) that there was the interposition of a resisting will thereby making the commission of a crime impossible."

We hold that defendant's contentions on entrapment were properly submitted to the jury with instructions from the court which were correct in law and manifestly fair to defendant.

Defendant argues that there could have been no completion of the crime since all parties with whom he spoke were connected with law enforcement. The answer is that the interposition of a resisting will, by a law enforcement officer or anyone else, between the solicitation and the proposed felony is of no consequence. This is so "because the solicitation was complete before the resisting will of another had refused its assent and cooperation." State v. Hampton, 210 N.C. 283, 285, 186 S.E. 251, 252 (1936). Defendant was not charged with the crime of conspiracy, a crime which was not completed because of the failure of Bacon, in fact, to concur in defendant's scheme to murder defendant's wife. The crime of solicitation to commit a felony is complete with the solicitation even though there could never have been an acquiescence in the scheme by the one solicited.

Defendant also contends that his conviction of solicitation to commit murder cannot be punished by imprisonment for more than two years. We concede that the applicable statute G.S. § 14-3(b) and the reported cases leave some lack of certainty as to what crimes may be designated and punished as "infamous." See State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949); Note, 28 N.C.L.Rev. 103 (1949). It appears, nevertheless, to be settled that conspiracy to murder is an infamous offense and punishable as a felony. State v. Alston, 264 N.C. 398, 141 S.E.2d 793 (1965).

The crime of which defendant was convicted is but one step away from conspiracy to murder—and that step is not one defendant could have taken. If Bacon had concurred in defendant's scheme to murder the latter's wife, the conspiracy would have been complete. Bacon's rejection of defendant's atrocious scheme does not render defendant's conduct any less "infamous" than it would have been if his offer had been accepted. We hold that the punishment imposed does not exceed that authorized by law.

We have considered the other contentions made in defendant's brief and find them to be without merit.

No error.

MARTIN and ARNOLD, JJ., concur.