O.C.G.A. § 16-4-7 (2019)

Statute text

(a) A person commits the offense of criminal solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.

(b) A person convicted of the offense of criminal solicitation to commit a felony shall be punished by imprisonment for not less than one nor more than three years. A person convicted of the offense of criminal solicitation to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one nor more than five years.

(c) It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited.

(d) The provisions of subsections (a) through (c) of this Code section are cumulative and shall not supersede any other penal law of this state.

History

(Code 1933, §§ 26-1007, 26-1008, 26-1009, enacted by Ga. L. 1978, p. 903, § 1.)

Annotations

Law reviews. - For article surveying developments in Georgia constitutional law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 51 (1981).

JUDICIAL DECISIONS

Section is not overbroad as encompassing protected speech. - Former Code 1933, § 26-1007 prohibits only such language as creates a clear and present danger of a felony being committed and is therefore not overbroad as encompassing protected speech. State v. Davis, 246 Ga. 761, 272 S.E.2d 721 (1980) (see O.C.G.A. § 16-4-7).

Clear and present danger of perpetration of felony by person solicited. - Phrase "or otherwise attempts to cause such other person to engage in such conduct" is construed as meaning or otherwise creates a clear and present danger of such other person perpetrating a felony. State v. Davis, 246 Ga. 761, 272 S.E.2d 721 (1980).

Nature of statement constituting solicitation. - Only a relatively overt statement or request intended to bring about action on part of another person will bring defendant within statute. State v. Davis, 246 Ga. 761, 272 S.E.2d 721 (1980).

Words alone, regardless of degree of their insulting nature, will not in any case justify excitement of passion so as to reduce crime for murder to manslaughter where killing is done solely on account of the indignation aroused by use of opprobrious words. Brooks v. State, 249 Ga. 583, 292 S.E.2d 694 (1982).

Drug trafficking. - Defendant's exercise of control over an attempted sale of drugs to police sufficiently supported defendant's conviction for criminal solicitation to commit trafficking. Forrester v. State, 255 Ga. App. 456, 565 S.E.2d 825 (2002).

Solicitation to commit murder. - Evidence that a defendant gave a detective checks for $7,000 to kill the defendant's uncle and described the defendant's uncle's location was sufficient to support the defendant's convictions for criminal attempt to commit murder and solicitation of murder. Impossibility was not a defense, although the uncle was through airport security and there were no funds in the defendant's account, because the defendant believed that the hit could take place and that the checks would persuade the supposed hit man to commit the murder. Rana v. State, 304 Ga. App. 750, 697 S.E.2d 867, cert. denied, No. S10C1764, 2010 Ga. LEXIS 922 (Ga.), cert. denied, U.S. , 131 S. Ct. 156, 178 L. Ed. 2d 93 (2010).

Solicitation is not a lesser included offense of trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e), as the facts necessary to prove each offense are different. Dimas v. State, 276 Ga. App. 245, 622 S.E.2d 914 (2005).

Trial court properly denied defendant's motion for a directed verdict of acquittal on all of the charges relating to solicitation to commit two murders and solicitation to conceal the death of one of the purported murder victims as the testimony of a witness established that defendant sought that witness's aide in murdering two game wardens who had charged defendant with various hunting violations, that the witness was equipped with a tape device to record defendant's plans and those tapes were presented at trial, which detailed defendant going over the gun to be used and the manner in which the death of one victim was to be concealed. English v. State, 290 Ga. App. 378, 659 S.E.2d 783 (2008).

Jury instructions. - Evidence did not warrant a charge on criminal solicitation as a lesser included offense within charge of criminal attempt to commit murder where the evidence established without dispute that to the extent the defendant may have attempted to induce another person to commit a crime, defendant went well beyond the mere use of language and paid defendant for that purpose. Norris v. State, 176 Ga. App. 164, 335 S.E.2d 611 (1985).

Trial court did not err in denying defendant's requested charge on criminal solicitation because it was not a lesser included offense in the crime of trafficking in cocaine as a matter of law or fact. Adams v. State, 229 Ga. App. 381, 494 S.E.2d 92 (1997).

Trial court did not err in refusing to charge on criminal attempt to solicit murder since that charge was not supported in law or fact. McTaggart v. State, 225 Ga. App. 359, 483 S.E.2d 898 (1997).

Defendant's convictions on two counts of criminal solicitation to commit a felony (murder) were reversed for a new trial as the trial court erred in failing to instruct the jury on the definitions of the words "felony" and "murder" as essential elements of the crime charged. Essuon v. State, 286 Ga. App. 869, 650 S.E.2d 409 (2007).

Trial court properly charged the jury with the entire solicitation statute, pursuant to O.C.G.A. § 16-4-7, despite the state only alleging that defendant violated the statute in one manner in the indictment as there was no reasonable probability existing that the jury convicted defendant for committing the offense in a manner not charged in the indictment. The trial court did not submit the case to the jury upon a theory entirely different from that claimed in the indictment; the indictment used the words "solicit" and "request," as did the trial court in the court's charge to the jury; the trial court's charge to the jury, which also included "commands, urges or otherwise attempts," did not permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment; and the trial court instructed the jury that the state must prove the acts were completed as alleged in the indictment, and that the state bore the burden of proving every material allegation of the indictment beyond a reasonable doubt. English v. State, 290 Ga. App. 378, 659 S.E.2d 783 (2008).

After the defendant delivered a package containing drugs to an informant's love interest who was working with police, and there was no evidence that the defendant asked the love interest to engage in anything or that the defendant used language indicating a clear and present danger that a felony would be committed, the defendant was not entitled to a jury charge on criminal solicitation in violation of O.C.G.A. § 16-4-7(a). Dimas v. State, 276 Ga. App. 245, 622 S.E.2d 914 (2005).

Cited in Williams v. State, 123 Ga. App. 9, 179 S.E.2d 351 (1970); Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981); Washington v. State, 268 Ga. 598, 492 S.E.2d 197 (1997); Lindsey v. State, 282 Ga. 447, 651 S.E.2d 66 (2007).

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 153 et seq.

C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, §§ 151, 161 et seq.

ALR. - Solicitation to crime as substantive common-law offense, 35 A.L.R. 961.

Criminal responsibility of one cooperating in offense which he is incapable of committing personally, 131 A.L.R. 1322.

Construction and effect of statutes making solicitation to commit crime a substantive offense, 51 A.L.R.2d 953.

Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness, or assignation - modern cases, 77 A.L.R.3d 519.

Solicitation to commit crime against more than one person or property, made in single conversation, as single or multiple crimes, 24 A.L.R.4th 1324.