Criminal Law, Pages 518–521

People v. Breton

Appellate Court of Illinois, 1992


Defendant sold cocaine to Wehrmeister over 20 times over a period of nine years. He then agreed to testify against defendant. While defendant was imprisoned, B, a fellow inmate, learned that defendant was looking for a hit man to hire and told the State's Attorney's office. It then had an undercover investigator pose as a hit man. B gave defendant the undercover agents' number, and defendant called one, Callahan, and asked the undercover investigator to take out Wehrmeister within five days so he could not testify against him. He agreed to pay Callahan $5,000 for this. He had his wife pay half up front and gave Callahan Wehrmeister's address, habits, and living arrangements to help Callahan kill him.

Procedural History:

Defendant was convicted of solicitation of murder for hire and sentenced to 30 years' imprisonment.


Does solicitation require actual agreement?

Defendant's Argument:

Defendant did not really intend to have Callahan kill Wehrmeister. He knew he was a phony and went along with it knowing that an undercover investigator would not actually kill anyone.

There was not an agreement to kill Wehrmeister because Callahan was undercover and only feigning agreement. Like in conspiracy, the two parties must actually reach an agreement to satisfy the agreement element of the solicitation of murder for hire statute.


Defendant is correct that conspiracy does require actual agreement in Illinois based on the bilateral theory. An agreement with an undercover government agent does not satisfy this requirement. However, there are fundamental differences between solicitation and conspiracy. Solicitation is like attempted conspiracy. It requires a command, encouragement, or request of another to commit a crime. Conspiracy requires an agreement. One is not a lesser offense of the other; they each have a different actus reus.

Solicitation does not require a bilateral agreement. It basically includes every situation in which one could be convicted of conspiracy under the unilateral theory. If bilateral agreement was required, the elements of conspiracy would be satisfied.


Solicitation does not require actual agreement.