Notes of Use

This instruction must be given in every prosecution for soliciting another to commit murder in the first degree.

Committee Comments

The general concepts of common law solicitation are that one must request another to commit a particular crime, such as murder in the first degree. If the person asked refuses the request, the defendant is guilty of criminal solicitation. The asking or request is the only actus reus necessary for the crime. However, if the person asked commits the murder, both the perpetrator and the defendant are guilty of murder in the first degree. The defendant would be a principal under 21 O.S. 1991, § 172. Of course, both could also be guilty of conspiracy. See OUJI-CR 2-16 through OUJI-CR 2-22. Be aware that the crime of solicitation merges into the crime of conspiracy, and solicitation would no longer be a proper charge. It could, however, be a lesser included offense. The defendant could not be convicted of both conspiracy and solicitation.

If the person asked agrees, and attempts to commit the murder and fails, the proper charges would be assault with intent to kill and conspiracy. However, if the person asked agrees to kill the intended victim and only completes a preparatory act toward the killing, the only proper charge against the perpetrator and the defendant would be conspiracy.

The solicitation may be made through a writing as well as orally. It also is not necessary that the solicitation be to a particular individual. It may be a request made to a specific group of persons on one occasion, i.e., during a speech. See W. LaFave & A. Scott, Criminal Law § 58, 419-20.

It is further generally recognized that there may be an attempted solicitation, such as in the case of a written request which never reached the addressee.

The Oklahoma Court of Criminal Appeals held in Martin v. State, 1988 OK CR 241, ¶ 9, 763 P.2d 711, 713, that a person could be prosecuted under 21 O.S. § 701.16 if the solicitation occurred in Oklahoma, even though the murder was to take place outside of Oklahoma. See also Martin v. Kaiser, 907 F.2d 931, 934 (10th Cir. 1990) (affirming denial of petition for writ of habeas corpus).