                                             No.    88-295

                I N THE SUPREME COURT O T E STATE O F MONTANA
                                       F H

                                                   1988




STATE O F MONTANA,

                   P l a i n t i f f and A p p e l l a n t ,
         -vs-

JAMES ROBERT H O U C H I N ,

                   D e f e n d a n t and R e s p o n d e n t .




APPEAL FROM:       D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
                   I n and f o r t h e County o f L i n c o l n ,
                   The H o n o r a b l e R . D . M c P h i l l i p s , J u d g e p r e s i d i n g .

COUNSEL OF RECORD:

         For Appellant:

                   S u s a n Loehn, County A t t o r n e y , L i b b y , Montana
                   S c o t t B. S p e n c e r , Deputy, County A t t o r n e y
                   Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana

         For Respondent:

                   David       W.   Harman, L i b b y , Montana




                                                   S u b m i t t e d on B r i e f s :   Oct.   6 , 1988
                                                      Decided:          December 1 5 , 1988




                   --
                                                   Clerk
Mr. Justice R.   C. McDonough delivered the Opinion of the
Court.

     This appeal involves alleged conspiracy to commit
deliberate homicide, a felony. The State of Montana appeal-s
from the order of the Nineteenth Judicial District, Lincoln
County, denying the State's motion to file an information
direct against James Robert Houchin (Houchin). We reverse.
     The State presents one issue on appeal: whether the
defense of impossibility exists in conspiracy cases.
     During the course of an undercover fish and game
investigation, a man named Kenneth DeBoer told an undercover
agent he could arrange to have a person killed if the agent
so desired.   The agent investigated this statement and found
that DeBoer could arrange for the services of a "hit man" to
do a requested killing. The agent later told DeBoer he did
in fact wish to have a man killed, and arranged a meeting
with DeBoer and the hit man.
     The agent, DeBoer and Houchin were present at the
meeting. The agent surmised from what was said and done that
Houchin was the hit man.   The agent gave DeBoer a photograph
and description of a man he said he wanted killed. The State
and Houchin agree that the man to be killed was fictitious.
Upon reaching agreement that the killing would be done, the
agent gave DeBoer $5,000 for the "job". DeBoer and Houchin
were arrested shortly after the meeting.
     Houchin was charged by complaint with conspiracy to
commit deliberate homicide, a felony. The State asked the
District Court for leave to file an information direct
against Houchin and filed an affidavit in support of its
request. The court denied the State's request, holding that
because the man to be killed was fictitious, the defense of
impossibility applied. This appeal followed.
     Conspiracy is defined in Montana by      45-4-102, MCA:

     A person commits the offense of conspiracy when,
     with the purpose that an offense be committed, he
     agrees with another to the commission of that
     offense. No person may be convicted of conspiracy
     to commit an offense unless an act in furtherance
     of such agreement has been committed by him or bv a
     coconspirator.
The State points out in its brief that the defense of
impossibility as it relates to this statute has not been
addressed in Montana case law.  Houchin's argument to the
District Court was based largely on statutory language.
Houchin argued, and the court agreed, that he could not have
conspired to commit deliberate homicide because 5 45-5-103,
MCA, defines deliberate homicide in terms of causing the
death of a human being.   A human being is defined in S
45-2-101(27), MCA, as a person who has been born and is
alive. Because the man to be killed was fictitious, Houchin
concluded, he did not come within the definition of a human
being, which precluded a conspiracy to make him the victim of
deliberate homicide. We disagree.
     The crime of conspiracy as defined above requires the
presence of two elements: (1) a knowing and purposeful
agreement to commit an offense, and (2) an act in furtherance
of the agreement. The actual commission of the offense that
is the object of the conspiracy is not required. See, e.g.,
Iannelli v. U.S. (U.S. 1975), 420 U.S. 770, 95 S.Ct. 1284
(the essence of conspiracy is an agreement to commit an
unlawful act); 16 ArnJur Conspiracy 5 3 (in conspiracy law,
the focus is primarily on the purpose of the conspirators);
Comment, Conditional Objectives of Conspiracy (1985), 94 Yale
L.J. 895, (the function of conspiracy law is not to punish
offenders for what they do, but for what they agree to do).
     Moreover, the State notes that Montana's conspiracy
statute is derived from Illinois law, and Illinois cases can
be used as a guide to its interpretation.         Cases from
Illinois hold conspiracy to be a crime separate and distinct
from the act that is the object of the conspiracy.       Its
gravamen is an agreement to accomplish an unlawful purpose.
People v. Brouilette (111.App. 1968), 236 N.E.2d 12; People
v. Peppas (Ill. 1962), 182 N.E.2d 228.      The focus of our
inquiry is thus the agreement to do the act.
     The defense of impossibility can take two forms: legal
and   factual.     Legal   impossibility exists when     the
contemplated act, if committed, would not be an offense.
Factual impossibility exists when the contemplated act is an
offense, but it cannot be carried out due to facts unknown to
the conspirators. The majority rule is that impossibility of
either kind is no defense to conspiracy. See, W. LaFave & A.
Scott, Substantive Criminal Law (1986), 5 6.5 at 90-93.
     However, the language of Montana's conspiracv statue
appears to contemplate the defense of Legal impossibility by
requiring that the plan be for the purpose of committing an
"offense."    The Criminal Law Commission comments to 5
45-4-102, MCA, state that a defense would he available to
conspira-cy if the act that was the object of the conspiracy
was not an offense.     If the contemplated act were not an
offense, then the first element of conspiracy would be
missinq; the conspirators' agreement would not he for the
purpose of committing an offense.
     While legal impossibility is contemplated by S 45-4-102,
MCA, factual impossibility is inconsistent with the statute.
As we stated above, the focus of conspiracy law is the
agreement.     The actual commission of the offense is
immaterial if the elements of conspiracy are present.      Fe
                                                            7
therefore hold   that   legal   impossibility is a defense to
conspiracy, hut factual impossibility is not.
     This is a case of factual impossibility.       While the
intended victim of the deliberate homicide was fictitious,
there appears to be a basis for proving the elements of
conspiracy.   Based on the undercover agent's observations,
Houchin arguably participated in a knowing and purposeful
agreement to commit deliberate homicide. He was present at
the meeting where the agreement was reached, and indications
were that he was the hit man.      When DeBoer accepted the
$5,000 payment, an overt act in furtherance of the agreement
was committed.      The fact that the homicide could not have
been carried out is immaterial.
     We hold the District Court was incorrect in denying the
State's request on the basis of impossibility.    We reverse,
and remand with instructions to the court to allow the State
to file an information direct against Houchin.                  /




         Justices
Mr. Justice William E. Hunt, Sr., dissenting.




      I dissent. There are some disturbing things about this
case including the majority's reliance on formalistic dis-
tinctions between legal and factual impossibilities--dis-
tinctions that should have been thrown out of our
jurisprudence long ago.   I find just as disturbing the fact
that a Fish and Game undercover agent, investigating poaching
and trafficking in parts of illegally-taken game, learns
about a "hit man" in the area.      The Fish and Game agent
arranges for the hit man to eliminate a tax man who is
apparently causing some tax problems for the agent.      Pure
fiction!
      But aside from all of that., the District Judge
correctly distinguished the Montana "attempt" statute from
the "conspiracy" statute. The attempt statute provides that
an accused may be convicted of a crime even though the crime
is impossible to commit.     The conspiracy statute, on the
other hand, provides that an accused must act with "the
purpose that an offense be committed." Section 45-4-102 (I),
MCA.   The conspiracy statute thus requires that the crime
conspired to must be possible to commit.
      Montana statute § 45-5-102, MCA, states that deliberate
homicide is the causing of the death of a human being.      A
human being is defined as a person who has been born and is
alive. It is impossible to kill a person who does not exist,
or is already dead.    It is also impossible to conspire to
kill a non-person.
      In this case, the victim of the alleged conspiracy did
not exist.   Therefore, no offense has been    committed.   I
would affirm the District Court Judge.
                                    ,-
I concur in the foregoing dissent.




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