D. Attempt

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

D. Attempt

1. Introduction

According to the common law, one may be found guilty of an attempt to commit a crime if (1) with the specific intent to engage in conduct or achieve a result proscribed by that criminal offense he (2) commits an act in furtherance of that intent, which act goes beyond mere preparation. It is an endeavor to accomplish a crime which goes beyond mere preparation but which falls short of ultimate execution. See LaFave, 622-23 (5th ed. 2010). While most jurisdictions now have general statutes proscribing attempted criminal conduct, e.g., Ga. Code Ann. § 16-4-1 (2000), and N.C. Gen. Stat. § 15-170 (2000), South Carolina does not and relies on the common law offense.

As a part of the Crime Classiication Act of 1993, South Carolina requires, as of January 1, 1994, that one convicted of common law attempt be punished as for the principal offense. S.C. Code Ann. § 16-1-80 (2003). Because the new section explicitly applies to common law attempts, presumably it does not apply to statutory offenses with which it is inconsistent in regard to penalty. For example, there are a number of specialized statutes, such as armed robbery and attempted armed robbery, that provide for lesser sentences for attempt than for the completed offense. S.C. Code Ann. § 16-11-330 (2003).

The original controlled substance attempt statute provides for a penalty of one-half the penalty for the completed offense. S.C. Code Ann § 44-53-420 (Supp. 2012). Amendments to the controlled substances law provide the same penalty for attempt as for the completed offense. S.C. Code Ann. §§ 44-53-370 and 375 (Supp. 2012) (controlled substances and crack cocaine respectively). The earlier statute was not repealed and might have been seen as providing a sentencing alternative, perhaps pursued through plea negotiations. A standard canon of statutory interpretation however, is that a subsequent specific provision takes precedence over an earlier, general provision. The Court of Appeals resolved any ambiguity here by concluding that one convicted for conspiracy under section 370 was subject to the same penalty as for the completed offense instead of the more lenient conspiracy sentencing provision of section 420. State v. Castineira, 341 S.C. 619, 535 S.E.2d 449 (Ct. App. 2000). Presumably, the same result would be obtained in regards to attempt.

Recidivist legislation, popularly known as "two strikes" or "three strikes," provides for a sentence of life imprisonment without parole for a second conviction of a "most serious offense" or a third conviction of a "serious offense." S.C. Code § 17-25-45 (Supp. 2012) (effective Jan. 1, 1996). Included in the lists of "most serious offenses" and "serious offenses" are attempt and accessory for any listed offense." Section (C)(1) and (2).

Unless specifically provided for by statute, e.g., S.C. Code Ann. § 44-53-370(b)(3) and (4) (Supp. 2012) (attempt to commit certain misdemeanor drug offenses), an attempt to commit a misdemeanor is not a crime in South Carolina. This limitation stems from a divided court's one paragraph opinion in State v. Redmon, 121 S.C. 139, 113 S.E. 467 (1922).

The charge in this case is an attempt to obtain goods under false pretenses. The statute makes obtaining goods under false pretenses, irrespective of the amount involved, a misdemeanor. It is elementary law that an attempt to commit a misdemeanor is not an indictable offense.

Id. (emphasis added). The emphasized statement is decidedly incorrect today in the vast majority of jurisdictions and was certainly questionable in 1922, as demonstrated in the dissent of Justice Cothran who would have proscribed as criminal attempts to commit misdemeanors which are malum in se as opposed to attempts to commit those regulatory type malum prohibitum misdemeanors. Id. at 140, 113 S.E. at 467 (Cothran, J., dissenting). A brief explanation of the rationale of South Carolina's position had appeared about a decade before Redmon, although it was not cited in that case.

In misdemeanors, where an attempt is not an indictable offense, the law recognizes the existence of the point of repentance; and hence, unless the statute expressly makes the attempt or the engaging in the process of manufacturing liquors a crime, one is not guilty of violating the law until the manufacture is completed, because he could repent at any moment, short of completing the process, stop and save himself from the penalty of the law.

State v. Ravan, 91 S.C. 265, 269, 74 S.E. 500, 502 (1912) (Hydrick, J., dissenting).

Apparently the justification for limiting criminal attempts to felonies and a few specified misdemeanors is that in all other misdemeanors the actor, even though he had the requisite intent and had taken steps beyond preparation, may be encouraged to abandon his enterprise. While such a rationale may appear somewhat far fetched, it is not without its adherents. Indeed the Georgia statute recognizes a defense of voluntary abandonment of any attempt even though the requisite act and intent already exist, if the abandonment is voluntary in the sense of a total withdrawal not motivated by the apprehension of being caught. Ga. Code Ann. § 16-4-5 (2000). This defense reflects the law of a number of jurisdictions and is the position of Model Penal Code § 5.01(4) (1962).

Another interesting limitation on the law of attempt in South Carolina is that there is no offense of attempted murder. The Supreme Court of South Carolina declined to recognize such a common law offense, concluding that the common law offenses of assault and battery with intent to kill and assault with intent to kill adequately cover the conduct which would be proscribed by attempted murder. State v. Sutton, 340 S.C. 393, 532 S.E.2d 283 (2000), affirming as modified 333 S.C. 192, 508 S.E.2d 41 (Ct. App. 1998). The Court's decision is well within its proper role regarding the evolution of the common law. See Chapter I.C.2. Common Law and Statutory Offenses, supra. The decision is consistent with prior law, the Court of Appeals having noted that it had been unable to find a single reported case of attempted murder. 333 S.C. at 195, 508 S.E.2d at 43.

There are no reported South Carolina cases recognizing a defense of abandonment of attempt. Yet, as noted above, in South Carolina, absent specific statutory prohibition, it is not a crime to attempt a misdemeanor. See also State v. Totherow, 263 S.C. 275, 210 S.E.2d 228 (1974), in which in dictum the Court expressed "grave doubt as to whether an unsuccessful attempt to commit petty larceny, a misdemeanor, constitutes a penal offense in this jurisdiction, in the absence...