State v. Nulf, 15 Kan. 404, was made with-, light of the history of the legislation of this out attention having been called to this pow-state concerning bribery, the omission from er of the attorney general. The court was the statute may well be regarded as conclunot then considering, and did not pretend to decide, the question now under discussion. Certainly it was not the intention of the court to nullify, by that decision, the statute which gives the attorney general the right to prosecute whenever required by the governor or either branch of the legislature to do so.

Time has abated nothing from the strength of purpose indicated by the words of the statute under consideration. Indeed, the power of the attorney general in our political system has subsequently been enlarged, and he may now, upon his own motion, undertake the enforcement of the prohibitory liquor law in any county of the state, if the county attorney is unable or neglects to do so, and to that end may perform any act which the county attorney may perform. What, if any, common-law powers he may possess, it is not necessary, in view of the statute, to determine.

The indictment was signed by an attorney who was by law authorized to sign indictments in Wyandotte county, and it should not have been quashed upon any one of the first three grounds stated in the motion to quash.

sive. The subject is an old one. When the aged Samuel was testifying his integrity, he said: "Whose ox have I taken? or whose ass have I taken? or whom have I defrauded? whom have I oppressed? or of whose hand have I received any bribe to blind mine eyes therewith? and I will restore it you." Isaiah accorded the privileges of the godly to him "that shaketh his hands from holding of bribes," and David sang of a separation of life and soul from those whose "right hand is full of bribes." The governments of all the civilized peoples which have arisen since those ancient days have struggled with the problem. Previous to the year 1869 receiving a bribe was a crime in this state. By chapter 43, p. 128, of the Laws of that year the legislature repealed all sections of the bribery statute then in force, so far as they related to bribe takers. For a period of twenty six years following this repeal, officers who received rewards for official conduct were not amenable to criminal punishment at all for their corrupt acts. In 1895 the matter again became the subject of legislative cognizance, and the present law was enacted, providing as follows: "Any officer of the state or of any county, city, district, or township, after his election or appointment, and either before or after he shall have qualified, or entered upon his official duties, who shall accept or receive any money, or the loan of any money, or any real or personal property or any pecuniary or other personal advantage, present or prospective, under any agreement or understanding that his vote, opinion, judgment, or action shall be thereby influenced, or as a reward for having given or withheld any vote, opinion, or judgment, in any matter before him in his official capacity, or having wrongfully done or omitted to do any official act, shall be punished by a fine of not less than $200 nor more than $1,000, or by imprisonment for not less than one year nor more than seven years in the penitentiary at hard labor, or by both such fine and imprisonment, at the discretion of the court." Gen. Stat. 1901, § 2212. The statutes of many states by express provision punish the solicitation of bribes. The statute of this state in force in 1895 relating to the giving of bribes devoted a separate section to offering or attempting to bribe. The act charged against the defendant in The appearance in the new law of an analothe body of the indictment is the solicita-gous section relating to soliciting or attion of a bribe. The legislature has not seen fit to make the solicitation of a bribe punishable in express terms, and the question is if the same end may be reached through the statute relating to attempts. In the

In the brief for the defendant it is urged that the indictment was insufficient because the authority of the attorney general to sign it was not stated. The motion to quash does not raise this question, but the attorney gen eral argues it as if it were a matter in dispute before the district court. Therefore, it is proper to say that the signature was sufficient. The district court was obliged to take judicial notice of the official character and identity of the attorney general, and of the executive requirement upon him to appear and prosecute. The action of the governor was a matter of court cognizance, and not a matter for the indictment to express. The attorney general was no more required to indicate that he was acting under an executive order than the county attorney is required to refer to the fact of his election, the taking of his oath, and the filing of his bond. Having authority to sign the indictment, the attorney general did all the statute requires when he signed it. State v. Nulf, 15 Kan. 404; State v. Tannahill, 4 Kan. 117; State v. Kinney, 81 Mo. 101; Choen v. State, 85 Ind. 209; 10 Enc. Pl. & Pr. p. 448.

tempting to secure a bribe might well have been anticipated, but nothing of the kind was inserted. Presumably the legislature expressed itself fully, and did not intend to punish a solicitor unless he actually received

Aside from these considerations, the court is of the opinion that the solicitation of a bribe is not an attempt to accept or receive a bribe within the meaning of the statute relating to attempts. That statute reads: "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows." Gen. Stat. 1901, § 2284.

the bribe. The spectacle of a public officer | much of the uncertainty relating to the law soliciting his own purchase is so disgusting of attempt in this country. In his work on that the subject scarcely could have escaped Criminal Law, Mr. Bishop has evidently the legislative attention. But many prac seized upon the words most favorable to his tical considerations are involved in the de- purpose in this and other similar cases, in tection and punishment of bribery. Ordina- an effort, supported, however, by some aurily, disclosure must come from one or the thority, to establish the doctrine that soliciother of the participants in the despicable tation is an attempt. The case of Heselton business. Solicitation, however, is extreme- v. Lister, Cooke C. P. 88, is cited. The entire ly rare compared with offers to corrupt, and report of that case is here given, because the same policy which so long exempted the it is apparently referred to as deciding bribe taker altogether may have been deemed that solicitation is an attempt in a bribwisest in regard to solicitation. In any event, ery case. "A motion to justify bail upon this court should not be called upon to out- examination of the bail in court. The plainstrip the legislature and by construction tiff's attorney showed to the court that the invent a crime which, with many precedents same persons were bail in another cause, before them the law-makers might have and represented that he verily believed they delineated in a few words while engaged in were very insufficient, for the defendant the work of remodeling the bribery law. himself had told him they were not worth a groat. He likewise informed the court that one Dewell, a sheriff's officer, had just then been with him, and told him if he would go out of court the defendant would give him half a guinea. Dewell was likewise examined upon oath, and declared the same. Upon this the court all agreed that this was an attempt in the defendant to pervert justice, and a notorious contempt of the court, and committed him to the Fleet till farther order." A number of American cases used as authority for the proposition of the same text throw no more light on the subject than King v. Higgins. The reporter of the case of United States v. Worrall, 2 Dall. 384, 1 L. ed. 426, Fed. Cas. No. 16,766, says the defendant in that proceeding was charged with an attempt to bribe. The indictment uses no such language, and the only legal question argued and determined was if the courts of the United States had jurisdiction of common law offenses, and that question was decided wrong. In the case of State v. Avery, 7 Conn. 267, 18 Am. Dec. 105, the sole question was if the solici tation of another to commit adultery was a high crime and misdemeanor cognizable by the superior court, and not if an attempt could be made out from mere solicitation. In the case of Com. v. Harrington, 3 Pick. 26, the headnote is accurate, and reads: "Exciting, encouraging, and aiding a person to commit a misdemeanor is of itself a misdemeanor." The same is true of the case of Com. v. Flagg, 135 Mass. 545, where it is said: "It is an indictable offense at common law for one to counsel and solicit another to commit a felony, although the solicitation is of no effect, and the crime counseled is not in fact committed." The citation of the case of Com. v. M' Gill, Addison (Pa.) 21, to prove that solicitation is equivalent to attempt, is astonishing. The report is of an occurrence in the county court of Allegheny county, and reads thus:

In determining whether certain conduct was punishable criminally at common law, English judges have frequently made the statement that soliciting is an act done which in itself is sufficient, when coupled with wrongful intent, to constitute a crime. In discussing the subject, the word "solicit" has been used in the same connection with words like "incite," "endeavor," and "attempt," but the purpose in view has been to show that solicitation in itself embodied the elements of an independent crime, and not to discriminate it as an ineffectual attempt to commit another crime in the sense of our statute. This is plain from a critical reading of the leading case of King v. Higgins, 2 East, 5. The headnote accurately expresses the conclusion of the judges, as follows: "To solicit a servant to steal his master's goods is a misdemeanor, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the soliciting and inciting. And such offense is indictable at the sessions, having a tendency to a breach of the peace." Lord Kenyon, Ch. J., and Le Blanc, J., were able to express themselves without confusing attempt and solicitation. Justices Grose and Lawrence were more discursive, and by their language opened the way to

as follows: "Whoever attempts to commit an offense prohibited by law, and does any act toward it, but fails, or is intercepted or prevented in its execution, where no express provision is made by law for the punishment of such attempt, shall be punished." In construing this statute, the supreme court of that state said: "The words 'whosoever attempts to commit any offense prohibited by law, and does any act towards it,' must be construed, in cases like the present, to mean a physical act, as contradistinguished from a verbal declaration; that is, it must be a step taken towards the actual commission of the offense, and not a mere effort, by persuasion, to produce the condition of mind essential to the commission of the offense." Cox v. People, 82 Ill. 191, 193. In the case of State v. Harney, 101 Mo. 470, 14 S. W. 657, the opinion reads: "For a man to have sexual intercourse with a female child under the age of twelve years is for that man to be guilty of rape. Rev. Stat. 1879, § 1253. And the law declares that 'every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, shall be punished,' etc. Rev. Stat. 1879, § 1645. The only charge that can be evolved from the verbose reiterations of this indictment is that the defendant by verbal solicitations tried to obtain the consent of a child under the age of twelve years to have sexual intercourse with him, and failed. However despicable and deserving of punishment such conduct may be, it falls short of the criminal offense attempted to be charged, to constitute which there must be an actual attempt to have intercourse with such child. So long as the evil purpose dwells in contemplation only, it is beyond the grasp of these provisions of the law." And in the case of Hicks v. Com. 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024, it is said: "The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first, or some subsequent, step in a direct movement towards the commission of the offense after the preparations are made." This court has virtually adopted the restricted meaning of the word "attempt" indicated by these decisions.

"Indictment for a misdemeanor. Boggs persuaded M'Gill to steal, and deliver to him, a conveyance, for 100 acres of land, executed by Henry Shaver to his son and daughter. This land was part of a larger tract of which Shaver had been possessed under a location of a Virginia certificate. He intended this 100 acres as a provision for his two children, and, having sold the rest to Boggs, he conveyed the location or certificate to him that he might take a patent for the whole in his name, and took an article or bond on Boggs to convey this 100 acres to his children after he obtained the patent for the whole. They were convicted. The court suggested that it might be useful if Boggs, having the title to this land, should before sentence execute a conveyance to the son and daughter of Shaver. He did so, and judgment was given." The case of People v. Bush, 4 Hill, 133, is the strongest authority cited in support of the text referred to. Concerning that case, however, it might be argued that the conduct proceeded beyond solicitation. The prisoner, besides soliciting to arson, furnished materials to accomplish the burning, and was held guilty of an attempt under a statute similar to that of this state. The doctrine of People v. Bush is repudiated by the supreme court of West Virginia in an able and exhaustive opinion in the case of State v. Baller, 26 W. Va. 90, 53 Am. Rep. 66, and contrary to State v. Avery, the supreme court of Washington, in a recent carefully reasoned case, holds that "mere solicitation to commit adultery is not an attempt to commit the crime." State v. Butler, 8 Wash. 194, 25 L. R. A. 434, 40 Am. St. Rep. 900, 35 Pac. 1093. Appended to the reprint of this decision in 25 L. R. A. 434, is an editorial note relating to the criminality of solicitation to crime which is not consummated, in which many cases are analyzed and classified. Upon the branch of the subject now under consideration the following conclusion is reached: "The authorities are not so uniform upon the question how far solicitation is an attempt. But the weight of authority is in accord with State v. Butler, that it is not an attempt. The very definition of attempt precludes the possibility of its including a mere solicitation." Likewise, in 12 Cyc. Law & Proc. p. 183, where numerous authorities are collated, it is said: "Some of the courts have treated solicitation to commit a crime as an attempt. By the weight of authority, however, it is not a sufficient overt act to be indictable as an attempt, but must be indicted as a distinct offense." In the state of In the case of Re Lloyd, 51 Kan. 501, 502, Illinois a statute (Hurd's Rev. Stat. 1903, 33 Pac. 307, the position is taken that an chap. 38, § 273, p. 670,) was enacted reading | attempt must involve an overt act beyond

In harmony with what is undoubtedly the modern trend of the law, this court is constrained to hold that, so long as the will of the person solicited is opposed to the corrupt conduct, there can be no attempt, in the legal sense, to accept or receive a bribe. After a willingness of mind on the part of both participants has been established, the matter of giving and receiving the bribe money or other pecuniary or personal advantage must still be accomplished. That transaction may be very simple or very complex, and the room for attempt may be very wide or very narrow, but until it is finally undertaken and some act done, the stage of attempt has not been entered upon. The remarks of the supreme court of Maryland in an opinion denying that solicitation constitutes an attempt are pertinent to this case: "Certainly it would be a great public calamity to invent crimes by subtle, ingenious, and astute deduction. In all free countries the criminal law ought to be plain, perspicuous, and easily apprehended by the common intelligence of the community. It is the essence of cruelty and injustice to punish men for acts which can be construed to be crimes only by the application of artificial principles according to a mode of disquisition unknown in the ordinary business and pursuits of life. The legislature, with ample power over the whole subject, determined what offenses should be punished. If it had desired that other actions of a cognate character should become penal, it would have so enacted. It is the duty of the courts to interpret and administer the legislative will, but in cases of criminal cognizance they must resolutely determine never to exceed it. The law would not be a practical system if it did not define with precision the nature and circumstances of the attempts which are criminal, and determine what acts are necessary to make the attempt a substantive offense. In our judgment it has done so, and not left us to grope after results under the guidance of vague general expressions." Lamb State, 67 Md. 524, 10 Atl. 208, 298.

solicitation, and in the case of Re Schurman, | not an offense punishable as a crime under 40 Kan. 533, 542, 20 Pac. 277, 282, it is the law." There are no common-law ofsaid: "If what was charged would naturally fenses in this state, and there can be no conhave resulted in inducing the company to victions in this state except for such crimes part with its money, such attempt would as are defined by statute. State v. Young, 55 probably be an offense; 'but when between Kan. 349, 40 Pac. 659. the attempt and the execution is interposed the volition of an independent moral agent, then, by stress of the definition just given, an indictable attempt is not made out.' 1 Wharton, Crim. Law, §§ 177, 178." In a very recent case the supreme court of Michigan admitted the principle announced by Dr.Wharton to be applicable to the crime of bribery, and held the solicitation of a bribe to be punishable, not as an attempt, but as an independent common-law crime. "It is strenuously contended that the indictment charges no offense known to the laws of this state. It is conceded by the learned counsel for the state that there is no statute defining the offense set out in the indictment, but it is contended that the case falls with in the statute (3 Comp. Laws, § 11,795) providing for the punishment of offenses indictable at the common law. In other words, it is claimed that the indictment sets out an offense at the common law. Respondent's counsel assert that solicitation to commit a crime is not indictable when there is interposed between the solicitation on the one hand and the proposed illegal act on the other the resisting will of another person, which other person refuses assent and cooperation; citing, among other cases, McDade v. People, 29 Mich. 50, and Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686. It may be accurate to say that what is treated in the law as an attempt to commit a crime is not complete where there is interposed between the solicitor and the consummation of the completed offense the resisting will of the one whom the solicitor seeks to employ as the active agent. But to say that a solicitation may not amount to an offense under these circumstances is to deny that a solicitation to commit a felony is punishable at the common law as a substantive and completed offense." People v. Hammond, 132 Mich. 422, 93 N. W. 1084. The inference from this decision is that soliciting a bribe would not be punishable in Michigan, except for the statute recognizing common-law offenses. That it is not punishable in Texas appears from the case of Hutchinson v. State, 36 Tex. 293, in which it is said: "The indictment was drawn under article 1870, Paschal's Digest, and the pleader attempted to charge the defendant with accepting a bribe; but the indictment wholly fails to make any such charge specifically, and only charges him with offering to receive a bribe. This is

V.

The indictment was properly quashed upon the last ground stated in the motion, and the judgment of the District Court is affirmed.

All the Justices concur.

A statute permitting the use of a vot-rately by ballot, prevents mistakes, and ining machine which assures secrecy, free choice of candidates, a correct record of the vote, and a correct record and announcement of the total vote given for each candidate, does not contravene a constitutional requirement that all votes at elections shall be given by ballot.

NOTE. For other cases in this series as to right to use voting machine under constitutional provisions providing for voting by ballot, see Opinion of Justices, 36 L. R. A. 547, and Reiting with the election officers some material thing, usually, in modern times, a paper