Attempt and Solicitation–Criminal Law Notes

Law school criminal law class notes and casebriefs.

Attempt, Solicitation, etc.
ss. 720 5/8-1
Solicitation- A person commits solicitation when with intent that an offense be committed, other than 2st degree murder, s/he commands, encourages, or requests another to commit that offense.
ss. 720 5/8-2
Conspiracy- A person commits conspiracy when with intent to commit an offense, s/he agrees with another to the commission of that offense.
-Some act must have taken place in furtherance of the criminal offense.
Co-conspirators- It is not a defense to conspiracy that the co-conspirator has not been prosecuted or convicted, is convicted of a different offense, is not amenable to justice, has been acquitted, or lacked capacity to commit the offense.
ss. 720 5/8-4
Attempt- A person commits attempt when, with intent to commit a specific offense, s/he does any act which constitutes a substantial step toward the commission of that offense.
-Impossibility- it is not a defense to attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense.
In-class notes regarding Attempt
The Offenses of Attempt
In ILL, up to 1961-Generally common law requires the specific intent, present ability, took a step toward the commission of that offense, and in the case of a felony, that the actor failed.
Common law of merger- the included misdemeanor would merge and disappear into the inclusive felony (not another misdemeanor).
-Today, attempts can be a felony, typically categorized a ¡§notch¡¨ below the actual offense.
Current statutes do not require that the proof of failure. The present ability element also has been modified.
Factual Impossibility is not a defense anywhere, it is just a historical term used to differentiate with legal impossibility. (I.e.- threatening another with a gun, when in fact there are no bullets.)
Legal Impossibility- not a defense in attempt in IL, but it is in Federal Court.
*there just doesn¡¦t seem to be a general principle for there ¡§impossibilities.¡¨
-IL statutes today include two main elements- Intent along with a Substantial Step (a dangerous proximity to success).
-Proximate facts determine whether a substantial step was taken.
Hypo- If D says ¡§I¡¦m going to kill you,¡¨ fires but misses his target, there is a sure case of attempt.
-Where does the attempt occur in cases when the facts aren¡¦t that outward? It depends on the facts, evidence and circumstances of the act. Is there an attempt when carrying a gun with intent or pulling or pointing the gun with intent? The less remote the act the closer you get to the attempt.
Hypo- The tylenol killer- putting poison in tylenol commits the attempt when he sets the contaminated container back down on the shelf for anyone in the public to take.
-What if the actor, after placing the container on the shelf later returns to take the container, abandoning this deadly intent. In IL, abandonment is not a defense.
- Mistake of fact can be a defense if it negates the specific intent element
ATTEMPT
-there is no general attempt statute
-specific intent crime
-D must intend the particular with which he is charged on intending to commit
-There is no such crime as attempt, solicitation, and conspiracy
They are inchoate crimes- cannot stand alone
-There are crimes that cannot be the object of intent:
-Attempted assault b/c they would not allow a prosecution where a DEF was attempting to attempt to make a battery
-Can attempt to place someone in reasonable apprehension of danger
-Attempted involuntary manslaughter: someone attempting to commit deadly violence is inconsistent w/ the crime of involuntary manslaughter b/c there is no intent
Attempted Felony Murder: some states say yes, some no
ƒÏƒnIL holds there is no such crime as felony murder
ƒÏƒnNeeds to prove dangerousness proximity to success
attempts are specific intent crimes
if you do something knowingly you¡¦ve done it intentionally.
at defenses of legal impossibility (sometimes age requirements, such as not allowing prosecution of a specific crime to a minor) and factual impossibility (shooting at another with an unloaded gun).
Transport of goods in and out of jail is with knowledge AND consent of the warden.
Factual v. Legal-when a old man attempts a rape but cannot do it because of impotency.
-The man as a matter of fact cannot commit rape but is going to be charged with attempt.
Development of attempted assault in law being an attempted form of battery.
You cannot be charged with an attempt to attempt a crime. Not all crimes have an attempt status. In IL, no attempted manslaughter but the state of mind is inconsistent with the charge. No attempted felony murder or even attempted forgery. You either commit the crime or act or you do not.
Moffett v. State, Supreme Court of Nevada, 1980
Judicial History
convicted of attempted murder and burglary, felonies.
entered apartment with a 14 year old accomplice.
began to tie up victim in her sleep.
victim awoke, D ordered he to write a suicide note.
Victim escaped after a struggle.
Whether the facts of the case constitute attempted murder?
Holding: Yes
prove an attempt to commit a crime the prosecution must establish 1) the intent to commit a crime, 2) performance of some act toward completion of the crime, and 3) failure to consummate its commission.
preparation for a crime consists in ¡§devising or arranging the means or measures necessary for commission of the offense; the attempt is the direct movement towards the commission after the preparations are made.
direct but ineffectual act toward the commission of the crime is the required actus reus for an attempted crime.
Reasoning: The Court held that D clearly took sufficient steps toward the commission of a crime. It is illogical to hold that because D did not begin the act of murder but only the set of acts that would result in murder that D should be let off. Court held that the preparation occurred during the two days before the act when D began preparing the plan.
Affirmed
v. Rizzo, NY Appeals, 1927
Judicial History
convicted of attempted 1st degree Robbery.
two accomplices had the intention to rob a payroll holder of ULC (a company).
three D were in a car trying to find a victim payroll holder to rob.
followed the car and when D got out and ran into a building, police arrested the three men.
potential victim was in the building when the arrests were made.
Do the facts presented support a conviction fo attempted robbery?
Holding: No
act, done with intent to commit a crime and tending but failing to effect its commission, is an attempt to commit that crime.
Tending means to exert activity in a particular direction.
act(s) must come or advance very near to the accomplishment of the intended crime.
Felonious intent is not sufficient to support the crime of attempt; there must be an overt act shown in order to establish an attempt.
overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.
Reasoning- The Court held that the facts did not establish cause. D¡¦s intent is not of quaestion, established clearly as criminal. But the crime of robbery calls for the taking of another¡¦s property by force… which requires that the victim be present to have his/her property taken. So, with no victim present, no robbery could be effectuated. D¡¦s conduct did not constitute an attempted robbery.
Reversed
v. State, MD Appeals, 1985
Judicial History
convicted by jury for two crimes; on of which is attempted armed robbery.
drove around looking at banks.
conduct caught the attention of a police officer and the officer followed him with probable cause.
wore a police scanner, had a loaded, concealed gun, wore a jacket with the collar up, wore surgical gloves, an eye patch and a knit skull cap.
parked his car behind a Bank, got out, approached the bank and pushed the door to open.
door was locked; the bank was closed.
apprehended when as he fled.
Did D¡¦s actions constitute a substantial step toward the completion of armed robbery?
Holding: Yes
person¡¦s conduct has not progressed beyond mere preparation and there has been no overt act, s/he would not be culpable for attempt.
ss 5.01- a person is guilty of attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
Reasoning: Maryland took the MPC¡¦s definition of ¡§attempt¡¨ and applied it to the case at bar. Court held that the preparation line was crossed when D walked up to the bank¡¦s door and put his hand on it to open it. That was the substantial step or overt action making D¡¦s conduct an attempted armed robbery. The Court decided earlier in the opinion that D¡¦s intent was quite clear by his preparations and actions prior to the arrest.
Affirmed
Harper, US Appeals, 9th Circuit, 1994
Judicial History
found guilty of attempted robbery, conspiracy and carrying a fire arm in relation to a crime.
appeals all three charges.
two others were in a car in a Bank parking lot.
in the possession of bullets, a ski mask, gloves, etc.
used an ATM card to cause a bill trap so that ATM personnel would have to open the safe, at which point the three would commit the robbery.
guns were found 6 feet away from the car under a bush.
there) were apprehended while waiting for the ATM service to preform.
Did D¡¦s actions constitute the three crimes that D¡¦s were found guilty of?
Holding: No, the attempted robbery charge was in err.
only addressing the attempted robbery
obtain a conviction for attempted bank robbery the prosecution must prove 1) culpable intent and 2) conduct constituting a substantial step toward the commission of the crime.
preparation does not constitute an attempt.
taking of a substantial step (an overt act) does constitute an attempt.
toward the commission of the crime of such substantiality that, unless frustrated, the crime would have occurred.
Reasoning: Court held that the D did not take a step toward the completion of the crime. D were apprehended before the potential victims arrived. In that, the Court held that D had not taken a substantial step that, unless frustrated, the crime would not have occurred. Alternatively, had the D approached the ATM service persons (presuming the ATM people arrived) a substantial step would have likely been found.
Reversed in part, Remanded in Part for sentencing
Mitchell, Supreme Court of MI, Div. 2, 1902
Judicial History
information charged D with attempted murder and D was convicted of attempted murder.
went to the home of his intended victim.
went the window of the room D thought the victim would be sleeping in and shot into it.
Victim was not in the room when D fired the gun into the room.
Is the impossibility of committing an crime a defense against attempting that crime?
Holding: No
person who shall attempt to commit an offense prohibited by law, and in such an attempt shall do any act toward the commission of such an offense, but shall fail in the perpetration thereof, or be intercepted or prevented shall be punished (for the attempt).
Reasoning- Court held that the fact the victim was not in the bed did not provide a defense for D¡¦s conduct. D acted intentionally to kill, preformed the act to kill, and failed. The Court held that impossibility did not stand as a valid defense.
Affirmed
v. Rojas, Supreme Court CA, 1961 (In Bank)
Judicial History
found guilty of receiving stolen property.
stole $4500 worth of electrical conduit, put in an a truck and parked it at a previously agreed upon location.
was arrested and made calls from the police station to let D know where to pick up the truck.
Defendant drove the truck to a location near his work later that night and was arrested by when D began to unload the stolen property.
Did the police¡¦s involvement with the goods condition the goods as not stolen (anymore)?
Holding: No.
which an accused person intends to do would if done constitute no crime it cannot be a crime to attempt to do with the same purpose a part of the thing intended.
-This rule has received some criticism.
Reasoning: Court held that the stolen property was not known to D as anything but stolen. Regardless of the police¡¦s involvement, the stolen property was left in the truck over night and maintain its stolen condition.
Affirmed
v. State, Criminal Appeals, OK, 1964
Judicial History
charged with and convicted of attempt to purchase stolen property.
steals a coat for the purpose of selling it to D.
the theft, the man is apprehended and admits his guilt to the police.
police identify the coat and it¡¦s true owner
allow criminal man to continue with the plan (to sell to D).
buys the coat and is arrested for attempting to purchase stolen property; D is convicted and appeals.
Does the legal impossibility not allow the charge of attempt to purchase stolen property?
Holding: Yes.
may not be convicted for receiving stolen property if property is no longer in category of stolen property when D receives it.
accused cannot be convicted of an attempt to commit a crime unless he could have been convicted of the crime itself if his attempt had been successful; where the act, if accomplished, would not constitute the crime intended, there is no indictable attempt.
the difference in legal and factual impossibilities.
Factual impossibilities are no defense, but legal impossibilities do hold as a valid defense
-Either punishing criminal intent without regard to the acts (factual) or punishing the act without regard to the intent (legal).
Reasoning: The Court held that the coat lost its stolen character when the police took possession and identified the true owner. The criminal intent is of no matter on its own; the criminal intent must be followed with some overt act. The legal impossibility defense holds that the ¡§un-stolen¡¨ coat, if purchased, would otherwise be legally bought by D. Court upheld the fundamental law that a person is not punished for having criminal intent absent some act toward that intent.
Revered and order for dismissal
Oviedo, US Appeals, 5th Circuit, 1976
Judicial History
Charged and convicted of Attempted sale of heroine (narcotics).
Undercover agent contacts D to purchase heroine.
Undercover agent meets with D and the sale is preformed.
field test reveals that the heroine is a controlled substance and D is arrested.
results indicate that the substance is in fact procaine, a non-controlled substance.
Whether a criminal can be charged with a crime when criminal intent is the basis of the offence?
Holding: No
impossibility occurs when the actions which the defendant preforms or sets into motion, even if fully carried out as s/he desires, would not constitute a crime.
Factual impossibility occurs when the objective of the D is proscribed by criminal law but a circumstance unknown to the actor prevents him/her from bringing about that objective.
Attempting to do that which is not a crime is not attempting to commit a crime.
legal impossibility exists when there is an intention to perform a physical act, the intended physical act is preformed, but the consequence resulting from the intended act does not amount to a crime.
Reasoning: Court was faced with the decision to apply the factual or legal impossibility test. Because of the public policy implications from applying the factual impossibility test, namely that persons would be punished for criminal intent alone, the court chose to apply the factual impossibility test. With that, the fact that the substance was not heroine, disregarding intent completely, the sale of that substance is not criminal and therefore there is no criminal attempt.
Reversed
v. Commonwealth, Supreme Court of Appeals VA, 1946
Judicial History
charged with and convicted of attempted rape.
seized a girl with the intent to rape.
unable to penetrate and did not commit a rape.
Does the factual impossibility of impotency, that prevents a man from committing rape, be used as defense against attempted rape?
Holding: No
Law Review Opinion (not law, but followed by the Court). Think Factual Impossibility
a D, with rape in mind, and with the expectation of accomplishing penetration seizes his female victim in order to achieve his intention and finds penetration impossible because of impotency, there is agreement that he is guilty of a real criminal attempt to rape (his impotency having no bearing on the case).
too drunk to preform the act of rape may be guilty of an assault with intent to commit rape.
-If D is impotent and knows it the charge of ¡§assault with intent to commit rape¡¨ may be jeopardized; attempted rape hold regardless of the factual impossibility.
Reasoning: In a sense, the factual impossibility of the achieving the crime does not negate the charge of attempting the crime. Here, the impotency does not negate the attempt to rape.
Affirmed
v. Guerra, Supreme Court CA, 1985
Judicial History
found D guilty of robbery, murder, attempted murder and kin-napping.
appeals but only the attempted murder charge is addressed.
worked with the two victims.
forced the two into the car, and drove off with an accomplice.
accidentally shot one of the men, killing him.
struggled with the other man, who overcame D and escaped.
Can a intent crime such as attempted murder be rightfully charged absent proof of the intent?
Holding: No
Absent evidence of a specific intent, attempted murder cannot be charged.
Reasoning: Court held that the lower court wrongfully instructed the jury as to the intent element regarding attempted murder. Evidence of D¡¦s intent not to kill the man he struggled with was not addressed by the jury. This Court held that it is in err to support a charge of attempted murder abset the intent to murder.
Affirmed in part; Reversed regarding attempted murder charge.
Wilson, Supreme Court of OR., 1959
Judicial History
found guilty of attempted assault with a deadly weapon.
confronted and threatened his estranged wife.
and returned with a gun he had in his car.
unable to reach his wife as she was behind locked doors.
Is there such a crime as attempted assault (an attempt of an attempt)?
Holding: According to OR law, Yes
person who is armed with a dangerous weapon and assaults another with such weapon may be guilty of assault with a dangerous weapon. OR Law.
person who attempts to commit a crime and in the attempt does any act toward the commission of the crime but fails or is prevented or intercepted in the perpetration thereof, shall be punished upon conviction when no other provision is made by law for the punishment of such attempt.
assault is an intentional attempt by one person by force or violence to do an injury to the person of another, coupled with present ability to carry the intention into effect.
Reasoning: Court was faced with determining whether an attempt of an attempt of a criminal act is in itself criminal. The court reasoned that the crime of assault and that of battery were separate crimes (assault typically being the attempted battery). Here the court held that D had acted far beyond the stage of preparation and it is reasonable to treat his conduct as an attempt to carry out an assault, even though the targeted victim was behind locked doors.
Affirmed
Blechman, NJ Supreme Court, 1946
Judicial History
indicted and convicted on the charge of solicitation.
counseled another to set fire to the dwelling of another.
Can the counseling of another to do a felony constitute a crime in itself when the crime discussed is not actuated?
Holding: Yes- Solicitation
Statute- It is a high misdemeanor to counsel or solicit another to set fire to or burn any insured building, ship or vessel, goods or wares, merchandise or other chattel with intent to prejudice or defraud the insurer.
Common law- It is a misdemeanor for one to counsel, incite or solicit another to commit either a felony or a misdemeanor (certainly so if the misdemeanor is of an aggravated character). Even though the solicitation has no effect and the crime committed is not preformed.
Solicitation is an act done toward the execution of the evil intent and therefore indictable.
-An act done with criminal intent is indictable.
Solicitation falls short of attempt but does constitute an act done with evil intent.)
Reasoning- Court here held that the D violated the common law of solicitation by counseling another to set fire to another¡¦s dwelling house. The Court determined that solicitation itself, absent the performance of the acted solicited, is an indictable act. The Court further held that its holding was consistent with the legislative intent behind NJ¡¦s statute against solicitations (above).
Affirmed
Blechman- the offense never happened. The court held that it didn¡¦t matter.
Changing one¡¦s mind and telling that to the solicitor who has yet to commit the crime is not a defense.
-Abandonment is a defense for attempt in some areas so long as the abandonment is purely conscious. IL doesn¡¦t not allow for the abandonment defense.
Abandonment)
Stewart v. State, Supreme Court of NV, 1969
Judicial History
charged and convicted of attempted robbery.
entered a gas station armed with a gun.
ordered the victim to give D the contents of the safe and victim¡¦s wallet.
arrived at the scene and witnessed the drawn gun.
the gun down and left the store; D was apprehended immediately.
Do D¡¦s actions constitute an abandonment?
Holding: No
intent to commit a crime has been formed and overt acts toward the commission of that crime have been committed by D, D is guilty of attempt.
Abandonment is not a defense to the commission of a crime, including attempt.
Reasoning: Court held that the overt act of attempt had occurred and the completion of the crime was interrupted when the police officers entered the scene. Abandonment was not a defense available to D because D had already acted overtly in the process of committing the crime of robbery.
Affirmed
Peterson, Supreme Court of MN, 1942
Judicial History
Indictment charged D with burning her own dwelling house down.
an accomplice, August Anderson (Anderson).
withdrew prior to the fire being set and told Anderson to leave the premises.
Anderson set the fire and the dwelling was burned.
Do D¡¦s actions constitute sufficient abandonment of the plot to burn the house?
Holding: Yes
who has procured, counseled or commanded another to commit a crime may withdraw before the act is done and avoid criminal responsibility by communicating the fact of his/her withdrawal to the party who is to commit the crime.
Notice the distinction drawn that no overt act toward commission of the crime can be committed to apply abandonment as a defense.)
Reasoning: Court held that D had sufficiently abandoned the plan to commit the crime when she told her accomplice to leave and not burn the house. D was clear and Anderson was charged with knowing her intention to abandon the criminal plan. D had taken no overt act (attempt) to hold her criminally liable.
Reversed.