§ 27.02 General Principles
[A] Historical Background
Although language favoring punishment of inchoate conduct can be found in judicial opinions as early as the middle of the fourteenth century, the general offense of attempt was not recognized until 1784.5 Until then, "in those forthright days, a miss was as good as a mile."6
Early on, a common law attempt was a misdemeanor, regardless of the nature or seriousness of the offense that the person sought to commit (i.e., the "target" or "substantive" offense).
[B] Definition of "Attempt"
Until the Model Penal Code was drafted, most states punished, but did not expressly define, criminal attempts.7 However, subject to substantial clarification in this chapter, a criminal attempt occurs when a person, with the intent to commit an offense, performs "some act done towards carrying out the intent."8 Not just any act will do, however. The action must constitute a substantial step, beyond mere preparation, toward commission of the offense.9 The term "substantial step" is a term of art in the Model Penal Code10 rather than the common law, but for current purposes, the "substantial step" required for a criminal attempt is, simply, any conduct that has reached the fifth stage of criminality described in Section 27.01, i.e., conduct that has passed the preparatory stage and has moved to the point of perpetration of the target offense.
In common law parlance, attempt is a specific-intent crime.
[C] Punishment of Attempts
As noted in subsection [A], a criminal attempt was a misdemeanor at common law, even when the target offense was a felony. Thus, an attempt to commit a felony was punished less severely than the target crime.
Today, an attempt to commit a felony is graded as a felony, but typically is treated as a lesser offense than the substantive crime.11 Almost always, the penalty for an attempt to commit a capital crime or an offense for which the penalty is life imprisonment is set at a specific term of years of imprisonment. An attempt to commit a less serious felony is frequently punished at one-half of the maximum allowed for the target crime or by some similar formula.
[D] Relationship of an Attempt to the Target Offense
A criminal attempt is "an adjunct crime; it cannot exist by itself, but only in connection with another crime,"12 i.e., the so-called "target" or "substantive" offense.
Most jurisdictions provide in some form that a "person is guilty of a criminal attempt when, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime whether or not his intention is accomplished."13 The implication of this quote is that, with crimes of intent, the successful commission of the target crime logically includes an attempt to commit it.
This point is significant for two reasons: (1) in a prosecution for a crime of intent (e.g., rape), assuming appropriate facts, a jury may instead return a guilty verdict for the lesser offense of an attempt to commit the substantive crime (e.g., attempted rape); and (2) in every case where an attempt is charged, proof of the commission of the target offense establishes the attempt.14 However, if a person commits the target offense, she will not be convicted of both it and the criminal attempt.15 If she was charged with the target offense, and the jury convicts her of this offense, the criminal attempt "merges" with the substantive crime; the lesser offense of attempt is absorbed by the greater one.
In contrast to the preceding analysis, a few statutes and court opinions provide that failure to consummate the target offense is an essential element of a criminal attempt.16 The implication of this statement is that a criminal attempt and the substantive offense are mutually exclusive crimes. A wrongdoer may commit the target offense or, perhaps, unsuccessfully attempt to commit it, but she can never do both.
[E] "Assault": "Attempt" in Different Clothing
[1] "Assault" versus "Attempt"
In the early common law, a criminal assault was defined as an "attempted battery."17 Today, states have typically broadened the offense to include the tort version of assault, i.e., intentionally placing another in reasonable apprehension of an imminent battery.18 Thus, today an assault ordinarily is proved if D attempts to batter V or, even if she does not attempt to strike V, if she intentionally places V in apprehension of an imminent battery. Today, as at common law, a simple assault typically is a misdemeanor. Aggravated assaults, e.g., "assault with the intent to kill" and "assault with the intent to rape," are felonies.
Although a common law assault is an attempted...
To continue reading
Request your trial