A Proposed Revision to the Model Penal Code

The Obviously Impossible Attempt: A Proposed Revision to the Model Penal Code

KYLE S. BRODIE*

This article discusses the treatment of obviously impossible attempts under the Model Penal Code. Part I discusses the traditional common law distinctions between types of impossible attempts, as well as the Model Penal Code decision to eliminate the impossibility defense altogether. Part II considers the reasons for punishing attempt, and Part III concludes that the impossibility defense should be eliminated under both the subjectivist and objectivist views. Part IV raises the theoretical and pragmatic problems raised by punishing obviously impossible' attempts, as well as the Model Penal Code's attempts to solve those problems. Part V proposes that an element of "reasonableness" should be added to the Model Penal Code's definition of attempt, and points out other areas of criminal law which have included some element of reasonableness in their definition of attempt crimes.

I. THE IMPOSSIBILITY DEFENSE The impossibility defense to attempt crimes applies to those instances where a defendant's actions could not possibly result in the. commission of the underlying crime.2 The crime is not prevented by some intervening event, such as detection by the authorities, nor is it prevented only by some accident, such as firing a gun at the intended victim but missing.3 Impossibility is raised as a defense when the crime is not committed because, given the factual or legal context, it was impossible for the action

* Deputy Attorney General, State of California; B.A., University of California at Riverside; J.D., Southwestern University School of Law. This article represents the ideas and opinions of the author. It does not represent the opinions of the Attorney General of the State of California. 1. 4 CHARLES E. TORCIER, WHARTON'S CRIMINAL LAW, § 746 (14th ed. 1981) (hereinafter WHARTON'S CRIMINAL LAW). 2. See generally Christopher Bello, Annotation, Constructionand Application of State Statute Governing Impossibility of Consummation as a Defense to Prosecutionfor Attempt to Commit Crime, 41 A.L.R.4th 588 (1985). 3. LEO KATZ, BAD ACTS AND GUILTY MINDS: CONUNDRUMS OF THE CRIMINAL LAW 280 (1987). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 15 to have resulted in the commission of the principal crime.4 For example, when a person tries to steal goods that are in fact his, it is impossible for that action to constitute larceny.5 Whether that impossibility precludes a prosecution for attempted larceny, however, is an entirely different matter.6

A. THE COMMON LAW DISTINCTIONS The debate surrounding the impossibility defense was in large part instigated by the confusion and frustration surrounding the common law history of impossibility.7 Therefore, that history needs to be understood in order to provide a context for the current debate. The common law offense of attempt was first established in England in 1784. 8 In 1846, the impossibility defense was considered for the first time.9 The common law courts soon developed a distinction between two types of impossibility: legal and factual. Legal impossibility occurs when the attemptor's intended act could not be a crime even if that act was completed." Factual impossibility occurs where the crime cannot be committed because of some physical circumstance unknown to the actor." Legal impossibility was generally a defense to an attempt charge, but factual impossibility was not. 2 Therefore, the dispositive question in an impossible attempt case was whether the attempt was factually or legally impossible. Certain actions could be easily classified as legally or factually impossible. For example, if a person were to hold an illicit poker game in a Las Vegas apartment, thinking and intending to break a law against gambling, no attempt has been committed, because it is impossible to gamble illegally in Las Vegas. This is often called "pure" legal impossibility. 3 If, however, a person were to

4. JOHN KAPLAN & ROBERT WEISBERG, CRIMINAL LAw 543-566 (1991). 5. People v. Jaffe, 78 N.E. 169 (N.Y. 1906). 6. Id.; cf People v. Gardner, 38 N.E. 1003 (N.Y. 1894); contra State v. Tropiano, 381 A.2d 828 (N.J. Super. Ct. Law Div. 1977). 7. See generally Jerome Hall, Criminal Attempt, 49 YALE L.J. 789, 836 (1940) (explaining the history behind the common law of attempt and the origins of the impossibility defense). 8. Rex v. Scofield, Cald. Mag. Cas. 397 (K.B. 1784). 9. Regina v. Goodchild, 175 Eng. Rep. 121 (N.P. 1864). 10. See generally PAUL H. ROBINSON, FUNDAMENTALS OF CRIMINAL LAW 491-511 (1988). 11. See generally J.C. Smith, Two Problems in Criminal Attempts, 70 HARv. L. REV. 422 (1956). There is some disagreement about the precise difference between legal and factual impossibility. However, for the purposes of this article, the above working definitions are sufficient. 12. See Booth v. State, 398 P.2d 863 (Okla. 1964) (listing examples of legal and factual impossibility). 13. Properly understood, legal impossibility would be restricted to cases of pure legal 1995] THE OBVIOUSLY IMPOSSIBLE ATTEMPT possess a package which he believed to be narcotics, but was in fact talcum powder, then the attempt to possess narcotics would be only factually impossible. 14 Therefore the impossibility of the attempt would be no defense. In most cases, however, courts could not clearly determine whether the defendant's attempt was legally or factually impossible. The distinction was so ineffective that different courts often found the nearly identical action either factually or legally impossible. For example, a person who shoots a stuffed deer, thinking it to be alive, is not guilty of an attempt to shoot a deer out of season. 5 But a person who shoots into an empty bed, believing that it is occupied, is. guilty of attempted murder. 6 Despite the different results, these two cases are logically indistinguishable. In both instances the attemptor has fired a gun at a target, but has been mistaken about what that target represented. In the first instance the hunter thought the deer was alive, while in the second the actor thought the bed was occupied. Other cases contradict each other even more directly. For example, an attempt to illegally smuggle mail out of prison without the warden's knowledge, when the warden actually does know of the attempt to smuggle, has been called both legally impossible 7 and factually impossible. 18 Commentators have been equally 'unable to find a clear or consistent dividing line between legal and factual impossibility.' 9 impossibility. The other cases of legal impossibility are in fact only factual impossibility. Although a full development of the argument is outside the scope of this paper, a great deal of the confusion between legal and factual impossibility stems from a misapplication of the legal impossibility doctrine. Another example of pure legal impossibility is the person who commits sodomy, intending to break the law, in a jurisdiction which has decriminalized sodomy. That person cannot be prosecuted for attempted sodomy, because the principal crime, sodomy in this example, must be proscribed by the relevant penal code. There must be some underlying crime to attempt. See GEORGE FLETCHER, RETHINKING CRIMINAL LAW 177 (1978) ("Even if we were inclined on theoretical grounds to punish this willingness to flout the law, we would not know what to call the offense or how to phrase the indictment. The actor cannot be charged with attempted homosexual activity, for attempts are parasitic on a punishable offense-in-chief."). 14. People v. Siu, 271 P.2d 575 (Cal. Ct. App. 1954). This view is almost universally accepted in the United States. See United States v. Everett, 700 F.2d 900, 904, n.8 (3d Cir. 1983) and the cases cited therein. 15. State v. Guffey, 262 S.W.2d 152 (Mo. Ct. App. 1953). 16. State v. Mitchell, 71 S.W. 175 (Mo. 1902). 17. United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973). 18. United States v. Craft, 419 F. Supp. 1264 (M.D. Pa. 1976), affd, 556 F.2d 569 (3d Cir.), cert. denied, 434 U.S. 863 (1977). 19. The list of articles which struggle with the distinction between legal and factual impossibility is quite formidable. See, e.g., Graham Hughes, One Further Footnote on 240 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW (Vol. 15

Despite the inability of courts and commentators to consistently determine whether a case was one of factual or legal impossibility, the decision was usually dispositive. If the case were one of legal impossibility, the accused had an absolute defense; factual impossibility was irrelevant.20

B. THE MODEL PENAL CODE RESPONSE The drafters of the Model Penal Code 2' examined the case law surrounding the impossibility defense and decided to abolish the impossibility defense altogether.22 In doing so, they embodied an increasing tendency to question the continuing validity of the impossibility defense. 23 The Model Penal Code defines attempt in section 5.01.24 Under Model Penal Code section 5.01, impossibility, factual or legal, is not a defense to attempt crimes. 21 The Model Penal Code generally adopts a subjectivist viewpoint, and

Attempting the Impossible, 42 N.Y.U. L. REV. 1005 (1967); John S. Strahorn, Jr., The Effect of Impossibility on Criminal Attempts, 78 U. PA. L. REV. 962 (1930); John W. Curran, Criminal and Non-Criminal Attempts (pts. 1 & 2), 19 GEO. L.J. 185, 316 (1931); Edwin R. Keedy, Criminal Attempts at Common Law, 102 U. PA. L. REV. 464 (1954). 20. See generally Booth v. State, 398 P.2d 863 (Okla. 1964). 21. MODEL PENAL CODE (1980). 22. MODEL PENAL CODE § 5.05, commentary at 490-91 (1985) (impossibility defense is rejected because liability is "focused upon the circumstances as the actor believes them to be rather than as they actually exist"). 23. See, e.g., Osborn v. United States, 385 U.S. 323, 333 (1966). 24. Section 5.01 reads as follows: (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or the belief that it will cause such result without further conduct on his part; or (c) 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. MODEL PENAL CODE § 5.01 (1985). 25. The Model Penal Code does retain a pure form of legal impossibility. MODEL PENAL CODE § 5.01, commentary at 307 (Proposed Official Draft 1962) (conviction for attempt would be improper where "the result desired or intended is not a crime .... even though [the actor] firmly believes that his goal is criminal."). So, the defense of legal impossibility, in its purest form, still exists. See supra note 13 and accompanying text. See also Hughes, supra note 19, 1006-07. 1995] THE OBVIOUSLY IMPOSSIBLE ATTEMPT

section 5.01 is no exception.26 From this viewpoint, the only relevant consideration is the actor's subjective perception of the attendant circumstances, and not the objective reality of those circumstances. Fortunately, this approach rarely results in an anomalous outcome. Usually, a person's subjective intent is reflected in a dangerous act, thus allowing a conviction for the attempted crime under both the subjectivist and objectivist views. Unfortunately, in cases of obviously impossible attempts, section 5.01 is inadequate. 27 However, in order to understand the deficiencies in section 5.01, it is first necessary to examine the underlying reasons for punishing attempt crimes.

II. WHY ATTEMPTS ARE PUNISHED The views of courts and commentators divide into two main schools of thought regarding attempt crimes. Those two schools are subjectivist and objectivist. The subjectivist school seeks to punish the individual because of his culpable mental state. The objectivist is more concerned with the external manifestations of that criminal mental state. Because each of these views holds a great deal of respect in the criminal law2" any proposed revision to the definition of attempt crimes must work under both a subjectivist and objectivist model.29

26. The subjectivist viewpoint, at its simplest level, punishes people primarily because of their criminal intent. Subjectivists require an act for punishment in order to corroborate the actor's intent. However, the punishment is matched to the culpability of the actor. See infra notes 30-33 and accompanying text. 27. While the Model Penal Code tries to compensate for this inadequacy by allowing a prosecution to be dismissed in cases of inherent unlikeliness (MODEL PENAL CODE § -5.05(2) (1985); see infra notes 53-61 and accompanying text) or de mininis harm (MODEL PENAL CODE § 2.12 (1985); see infra notes 62-68 and accompanying text), neither of these factors is an adequate defense to criminal attempt. 28. The objectivist school, sometimes called manifest criminality, expressed the general rule of criminal liability up until the eighteenth century, when subjective models of criminality began to emerge as a significant alternative viewpoint. See generally FLETCHER, supra note 13, at 115 (1978). 29. This paper deliberately eliminates any discussion of normative theories of criminal liability. Normative theories assert that criminal liability depends only on the moral culpability of the actor. See generally HYMAN GROSS, A THEORY OF CRIMINAL JUSTICE 13-33 (1979) (describing and criticizing normative theories); Sanford H. Kadish, The Decline ofInnocence, 26 CAMBRIDGE L.J. 273, 275-82 (1968). The majority of normative theorists consider attempted and completed crimes to be equivalent. See Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the CriminalLaw, 122 U. PA. L. REV. 1497, 1516 (1974). Therefore, a normative perspective on a proposed redefinition of attempt crimes is less instructive than the objectivist and subjectivist descriptive theories. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW (Vol. 15

A. THE SUBJECTIVIST VIEW Subjectivists punish attempt crimes to neutralize dangerous actors, not to deter dangerous acts.3° Although a subjectivist does not punish a person only because of his mental state,3' in punishing attempt crimes that mental state is primarily at issue, and not his objective actions. While a subjectivist still requires an act before punishing an attempt, that act is only required to corroborate the defendant's mental state;32 the act need not be dangerous to support an attempt conviction.33

B. THE OBJECTIVIST VIEW The objectivist model takes a different view of attempts. For an objectivist, attempting is not just an internal event.34 Attempt crimes are punished to condemn dangerous acts, not just to neutralize dangerous actors. An attempted crime therefore requires a dangerous act, 35 such as firing a gun into an empty bed, thinking that the bed is occupied.36 Objectivists are concerned primarily with intent to act, and secondarily with intent to break the law.37 Once the intent to act is established, the actor's criminal intent can be inferred by examining his actions. Therefore, while the inchoate criminal must have a criminal mental state, that mental state must be reflected in an objectively ascertainable dangerous act. That act is necessary not only for evidentiary purposes, as with the subjectivist, but because the act itself is a substantive element of criminal liability.38

30. See MODEL PENAL CODE § 5.01, commentary at 41 (Tent. Draft No. 10, 1960); 4 WHARTON'S CRIMINAL LAW, § 747 (14th ed. 1981). 31. See PAUL H. ROBINSON, FUNDAMENTALS OF CRIMINAL LAW 116-151 (1988); Abraham S. Goldstein, Conspiracy to Defraud the United States, 68 YALE L.J. 405, 405 n. 1 (1959); GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART (2d ed. 1961). 32. See, e.g., Jonathan C. Carlson, The Act Requirement and the Foundations of the Entrapment Defense, 73 VA. L. REV. 1011, 1041-43 (1987) (discussing the nature of the act requirement in the entrapment context). 33. Daniel M. Mandil, Note, Chance, Freedom, and CriminalLiability, 87 COLUM. L. REV. 125, 133 (1987). 34. FLETCHER, supra note 13, at 149. 35. See generally Andrew Von Hirsch, Prediction of Criminal Conduct and Preventative Confinement of Convicted Persons, 21 BUFF. L. REV. 717 (1972). 36. State v. Mitchell, 71 S.W. 175 (Mo. 1902). 37. United States v. Oviedo, 525 F.2d 881, 884 (5th Cir. 1976) ("[T]he intent to perform a physical act is to be distinguished from the motive, desire or expectation to violate the law."). Id. 38. OLIVER WENDELL HOLMES, THE COMMON LAW 110 (1881) ("[The law] is wholly indifferent to the internal phenomena of conscience."). THE OBVIOUSLY IMPOSSIBLE ATTEMPT

III. WHY THE IMPOSSIBILITY DEFENSE SHOULD BE ELIMINATED UNDER BOTH THE SUBJECTIVIST AND OBJECTIVIST VIEWS The impossibility defense is being increasingly abandoned in many states.39 Although the reasons for eliminating the impossibility defense are numerous and varied, both the subjectivist and objectivist views of the criminal law support its elimination. For subjectivists, impossibility should not be a defense because the culpability of actors is not primarily determined by the ultimate consequences of their actions. For objectivists, however, impossibility must be rejected because it gives otherwise culpable actors a windfall.

A. THE SUBJECTIVIST VIEW If, as the subjectivists claim, attempt crimes are punished to specifically deter dangerous individuals, and not their dangerous acts, the impossibility defense should not be available to defendants. The impossibility defense is based on the premise that when a person has attempted the impossible, there is no risk of harm actually occurring, and so his conduct is not criminal. For example, if a person attempts to shoot another with an unloaded gun, not knowing that the gun had been secretly unloaded by another, it is impossible for him to commit murder, no matter how many times he pulls the trigger. To the subjectivist, however, this objective lack of risk is irrelevant. Such a person is subjectively dangerous, and should therefore be punished as an attempted murderer. The fact that the gun was later discovered to be unloaded does not mitigate the dangerousness of firing it without that knowledge. Indeed, few people would consider pointing a gun at another and pulling the trigger to be safe, even if we thought the gun was empty. The subjectivist ascertains the danger from the actor's perspective,

39. Some 20 states have specifically eliminated impossibility as a defense to attempt crimes. These states are Alabama (ALA. CODE § 13A-4-2 (1982)), Alaska (Alaska Stat. § 11.31.100 (1989)), Arizona (ARIz. REV. STAT. ANN. § 13-1001 (1989)), Colorado (COLO. REV. STAT. ANN. § 18-2-101 (West 1990)), Connecticut (CONN. GEN. STAT. ANN. § 53a-49 (West 1985)), Georgia (GA. CODE ANN. § 16-4-4 (1992)), Hawaii (HAW. REV. STAT. § 705- 501 (1985)), Illinois (ILL. ANN. STAT. ch. 720, para. 5/8-4 (Smith-Hurd 1993)), Indiana (IND. CODE ANN. § 35-41-5-1 (Burns 1985)), Kansas (KAN. STAT. ANN. § 21-3301 (1988)), Maine (ME. REV. STAT. ANN. tit. 17-A, § 152 (West 1983)), Missouri (Mo. STAT. § 564.011 (Vernon 1979)), Montana (MONT. CODE ANN. § 45-4-103 (1991)), New York (N.Y. PENAL LAW § 110.10 (McKinney 1992)), North Dakota (N.D. CENT. CODE § 12.1-06-01 (1985)), Ohio (OHIO REV. CODE ANN. § 2923.02 (Anderson 1993)), Oregon (OR. REV. STAT. § 161.425 (1990)), Pennsylvania (18 PA. CONS. STAT. ANN. § 901 (1983)), Tennessee (TENN. CODE ANN. § 39-12-101 (1991)), and Washington (WASH. REV. CODE ANN. § 9A.28.020 (West 1988)). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 15

not from the objective reality.4 ° The impossibility of committing the underlying crime is only a windfall to the intended victim and to society; it should not also be windfall to the criminal. He should be punished because he acted on his criminal mental state.

B. THE OBJECTIVIST VIEW If, however, the objectivists are right, and attempt is punished because of the dangerousness of the acts, then the impossibility defense should still be eliminated. Objectivists believe that attempt crimes are designed to punish dangerous individuals, not dangerous acts. The fact that a given crime ends up being impossible, given the defendant's actions, does not necessarily mitigate the dangerousness of the given actions. As a means of defining what constitutes a dangerous act, one commentator has posed the question in terms of frequency: "If this attempt were repeated 1000 times in such and such fashion would it result in the concrete harm intended by the agent at least once?"'" Further, "[t]he 'such and such fashion' is the observer's description of the act, as derived from the observation."42 It is dangerous to drive 100 miles per hour on a crowded freeway; the fact that no harm actually occurs does not diminish the dangerousness of the acts. Danger only indicates an elevated risk of harm, not actually occurring harm. Society wants to minimize risk, and consequently deters those acts which it considers dangerous.

IV. THE PROBLEM OF OBVIOUS IMPOSSIBILITY However, certain situations, both hypothetical and real, lead to incongruous results without the use of an impossibility defense. Those examples are often referred to as cases of "obvious impossibility" or "inherently unlikely" attempts.43 These situations arise when the attempt- or's actions are so absurd or patently ineffective that the completion of the crime would always be impossible under the same set of circumstances." Typical examples of obvious impossibility include attempts to kill by

40. See, e.g., Sheldon Glueck, Principles of a Rational Penal Code, 41 HARV. L. REV. 453, 469 n.20 (1928) (determining dangerousness not from the acts intended, but from the actor's personality, and his perspective on those acts). 41. Lawrence Crocker, Justice in Criminal Liability: Decriminalizing Harmless Attempts, 53 OHIO ST. L.J. 1057, 1099 (emphasis added). Id. 42. Id. 43. MODEL PENAL CODE § 5.05(2) (1985). 44. Of course, there will always be some remote, theoretical possibility that a given action will eventually result in a completed crime. However, at some point, that possibility becomes remote enough to disregard it altogether. See supra note 41 and accompanying text. 19951 THE OBVIOUSLY IMPOSSIBLE ATTEMPT witchcraft,45 steal from a statue, 6 or kill by throwing red pepper in the eyes of another. 7 There are two reasons to acquit an individual in a case of obvious impossibility. One is theoretical; society does not necessarily view the person who attempts murder by magic as dangerous. If an aspiring assassin used a gun loaded with cotton, but nevertheless believed that the cotton had a supernatural power to kill when pointed at a person, he seems far less dangerous to many than the person who was surprised to learn that the gun was empty.48 The other is pragmatic; even if we think he might be dangerous, his conduct does not indicate this with enough reliability to allow criminal punishment.

A. THEORETICAL DIFFICULTIES The patently safe activity which constitutes an inherently unlikely attempt is not the goal of punishment for objectivists. By definition, the actor could continue to, for example, practice witchcraft indefinitely and never cause any harm. Therefore, these actions are not criminal. The reason to treat obviously impossible attempts differently than standard impossibility is that while a standard impossibility case also does not cause any harm, the obviously impossible attempt does not even risk harm. The impossible attempt-the person shooting at an empty bed-still creates a risk that some harm might occur. The obviously impossible attempt, however-the person casting a spell on another-does not. Where the act constituting the attempt does not invoke criminal sanction, the actor is being punished only for his dangerous mental state. 9

45. Commonwealth v. Johnson, 167 A. 344, 348 (Pa. 1933) (Maxey, J., dissenting) ("'[H]exing' with lethal intent, belongs to the category of 'trifles,' with which 'the law is not concerned.' Even though a 'voodoo doctor' just arrived here from Haiti actually believed that his malediction would surely bring death to the person on whom he was invoking it, I cannot conceive of an American court upholding a conviction of such a maledicting 'doctor' for attempted murder or even attempted assault and battery."). Id. 46. Trent v. Commonwealth, 156 S.E. 567, 569 (Va. 1931) ("For our purpose it is sufficient to say that if the instrumentalities adopted were apparently suitable for the consummation of the crime, that is enough. If they were manifestly insufficient, then this prosecution is at an end."). Id. 47. Dahlberg v. People, 80 N.E. 310, 311 (111. 1907) ("The indictment can be sustained when the means are apparently adapted to the end. The offense is complete if the means employed appeared both to the assailant and to the assailed as adequate; but, if the means are both absolutely and apparently inadequate, then the attempt does not exist."). Id. 48. State v. Swails, 8 Ind. 524 (Ind. 1857); see also People v. Morgan, 568 N.Y.S.2d 788 (N.Y. Sup. Ct. 1991) (holding that the use of voodoo is not a justification for self-defense). 49. See Powell v. Texas, 392 U.S. 514, 543 (1968) (Black, J., concurring) ("Punish- ment for status is particularly obnoxious ... because it involves punishment for a mere NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 15

Subjectivists punish attempts at least in part because an attemptor will eventually be successful, given enough opportunities to try to commit the crime. And, at a purely theoretical level, some subjectivists might draw no50 distinction between obviously impossibility and ordinary impossibility. Even the most ardent subjectivist, however, would acknowledge that convictions for obviously impossible attempts pose serious pragmatic problems.

B. PRAGMATIC DIFFICULTIES Aside from the theoretical problems with the strict elimination of impossibility, its elimination also poses serious pragmatic concerns. There is always some variance between a person's intent and their action; if this were not so, then an evaluation of the actus reus element of a crime would also solve any mens rea problems. Both subjectivists and objectivists punish attempts to deter dangerous activities and individuals. To determine whether an actor is physically dangerous, we can look at the actor's mental state. Indeed, the Model Penal Code suggests that an actor's mind is "the best proving ground of his dangerousness." The Model Penal Code assumes, necessarily, that the actor's mental state can be understood by his actions. However, we must assume that there can be some variance between a person's intent and his action.5' When the person's actions are only tenuously linked to his mental state, then those actions are not a reliable guide to the actor's mens rea. Courts therefore run an increased risk of punishing people who are not in fact guilty, because they lacked the requisite intent. For example, it is difficult to be sure that the person using aspirin to kill actually wanted the victim to die; if he did, why did he use such objectively ineffective means? 52 In determining the actor's intent, we start with his actions, and

propensity, a desire to commit an offense; the mental element is not simply one part of the crime but may constitute all of it. This is a situation universally sought to be avoided in our criminal law .... ). Id. 50. See MODEL PENAL CODE § 5.01, commentary at 315-20 (Proposed Official Draft 1962); GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART § 207(b) (2d ed. 1961) ("[T]here is danger to the public in leaving uncorrected a man who is bent on murder.") and § 207(0 ("[F]or one who administers salt thinking salt to be poisonous is somewhat dangerous; when he fails with salt he may hit on weedkiller."). But see JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 591-94 (2d ed. 1960) (arguing that cases of obvious impossibility pose no "objective risk" and therefore require acquittal). 51. See generally Arnold N. Enker, Impossibility in Criminal Attempts--Legality and the Legal Process, 53 MINN. L. REV. 665 (1969). 52. United States v. Oviedo, 525 F.2d 881, 885 (5th Cir. 1976) ("Thus, we demand that in order for a defendant to be guilty of a criminal attempt, the objective acts performed, 1995] THE OBVIOUSLY IMPOSSIBLE ATTEMPT then swing across a canyon of inference, landing at his probable intent; if the actions are absurd, then the gap between action and intent becomes too wide to cross.

C. THE MODEL PENAL CODE PROVISIONS REGARDING OBVIOUS IMPOSSIBILITY The drafters of the Model Penal Code apparently realized the problems that a strict elimination of the impossibility defense could generate. They consequently added two provisions to try to ameliorate the anomalous results which arise in cases of obvious impossibility. Those two sections, however, are inadequate responses.

1. Model Penal Code Section 5.05(2)--Mitigation The Model Penal Code anticipates the problem of inherently unlikely attempts in section 5.05(2)." Section 5.05(2) has only been adopted by some three states,54 but on its face seems to be an effective means of solving the problem. Upon closer examination, however, section 5.05(2) is not sufficiently clear to answer the problem of obvious impossibility. The commentaries to Model Penal Code section 5.05(2) do not attempt to define what constitutes an "inherently unlikely" attempt. Instead, the accompanying commentaries only restate the rule: "In 'extreme cases' under Section 5.05(2), the court is authorized to 'dismiss the prosecution.""' One pragmatic danger in leaving the standard vague is that courts may descend into precisely the same morass that has characterized the impossibility defense. Perhaps because of the unpredictable definition of "inherently unlikely" attempts, courts prefer to address questions of

without any reliance on the accompanying mens rea, mark the defendant's conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law."). Id. 53. Model Penal Code section 5.05(2) states: If the particular conduct charged to constitute a criminal attempt ... is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of such offense under this section, the Court shall exercise its power under Section 6.12 to enter judgement and impose a sentence for a crime of lower grade or degree, or in extreme cases, may dismiss the prosecution. MODEL PENAL CODE § 5.05(2) (1985). 54. ARK. CODE ANN. § 5-3-101 (Michie 1987) (Arkansas); N.J. STAT. ANN. § 2C:5-4 (West 1982 & Supp. 1993) (New Jersey); 18 PA. CONS. STAT. ANN. § 905 (1983 & Supp. 1993) (Pennsylvania). Colorado also allows a dismissal of prosecutions when there is an inherently unlikely attempt, but limits this dismissal to attempted conspiracy charges. COLO. REv. STAT. ANN. § 18-2-206 (1986 & Supp. 1993). 55. MODEL PENAL CODE § 5.05(2), cmt. 3 (1985). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 15 inherently unlikely attempts under the framework of de minimis harm. Pennsylvania and New Jersey, the two states which have adopted both Section 5.05(2) and section 2.12 have generally addressed the questions of inherently unlikely attempts under the provision allowing dismissal of prosecutions if there is a de minimis harm done. Therefore, the practical utility of section 5.05(2) may be fairly limited. However, in those cases which have addressed the meaning of section 5.05(2), the results have often been absurd. For example, in one New Jersey case, an HIV-positive inmate was convicted of attempted murder for biting a correctional officer.56 It was clear at trial that it was inherently unlikely to transmit HIV by biting. The court, in upholding the conviction, focused on the distress caused to the officer, but that distress is irrelevant. The reaction of the victim does not determine the likelihood of an attempt. The inherent unlikeliness of an attempt necessarily represents an objective standard. 7 That objective standard cannot be determined by examining the subjective reaction of the intended victim. Section 5.05(2) also suffers from theoretical inconsistencies with both objectivist and subjectivist perspectives. From an objectivist view, section 5.05(2) fails as a response to obvious impossibility because it only serves to conserve judicial resources, not redefine what actually constitutes a crime. 58 The defendant is still considered to be potentially guilty of a crime, but the court declines to try the case out of prudential concerns. And yet, for an objectivist, an inherently unlikely attempt should not be a crime at all. The obviously impossible attempt does not, and by definition cannot, result in any harm. To the objectivist, such an act does not invoke criminal liability, and therefore should not come within the definition of attempt. The mitigation approach fails for subjectivists because it looks at the external circumstances surrounding the attempt and not at the actor's mental state. The inherent unlikeliness of an attempt is determined by looking at the objective factual context, not at the reasonableness of the defendant's perception of that context. Under a subjectivist view, therefore, the defendants could still be found not guilty, even if it was only discovered

56. State v. Smith, 621 A.2d 493 (N.J. Super. Ct. App. Div. 1993); accord State v. Haines, 545 N.E.2d 834 (Ind. Ct. App. 1989) (impossibility of transmission of HIV by spitting deemed irrelevant under attempted murder prosecution). 57. Indeed, if inherent unlikeliness were a subjective standard, it would add nothing to the Model Penal Code, because the definition of attempt in section 5.01 is already subjective. It would be meaningless to place a subjective limitation on a subjective definition. 58. See generally Paul H. Robinson, Hybrid Principalsfor the Distributionof Criminal Sanctions, 82 Nw. U. L. REV. 19 (1987). 19951 THE OBVIOUSLY IMPOSSIBLE ATTEMPT later that the attempt was inherently unlikely. The key question for a 59 subjectivist is: what was in the actor's mind at the time of his action? Under section 5.05(2), the defendant could act with the necessary intent, and be saved from an attempt charge because his actions were inherently unlikely to produce the intended result. Consider, for example, a person who drops two aspirin in another person's coffee with the intent to kill that person. Under section 5.05(2), he would quite likely be spared from an attempted murder charge, because aspirin is inherently unlikely to kill another person. This would be true even if he had just read in a medical journal that certain people have an extreme allergic reaction to aspirin when mixed with coffee, and that even two tablets would be enough to kill certain people. If the article in that medical journal was later retracted, so that by the time of trial it was absolutely certain that two tablets of aspirin could not kill a human being, then the attempt would have been inherently unlikely. And, at the time of trial, its inherent unlikeliness would be undisputed. At the time of the action, however, there was every indication that the actor was making a very likely attempt. Not only did he think it was likely, but many people, including the editors of the medical journal, would have agreed with him. Nevertheless, it was later discovered that the method used was in fact inherently unlikely. Therefore, under section 5.05(2), the defendant would be entitled to have his prosecution dismissed. The subjectivist would convict in the above hypothetical, because the actor's conduct strongly corroborates his criminal intent, with enough specificity to allow for conviction. However, section 5.05(2) is an entirely objective standard. It makes no reference to the actor's mental state whatsoever. For the subjectivist, however, that mental state is the touch- stone of criminal liability.

2. Model Penal Code Section 2.12--The De Minimis Risk of Harm Although impossibility is no defense, the actor whose attempt only works a de minimis risk of harm might be protected under Model Penal Code section 2.12.6 While only four states have actually adopted this de

59. See generally Jeffrey S. Parker, The Economics of Mens Rea, 79 VA. L. REv. 741 (1993). Subjectivists only focus on the actor's awareness, not whether the actor was specifically conscious of any wrongdoing. See ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAw 826-27 (3d ed. 1982). 60. MODEL PENAL CODE § 2.12 states, in relevant part: The Court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct: NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 15 minimis provision, 1 those states. could theoretically dismiss cases of "obvious impossibility" because they cause or risk only de minimis harm. However, this section suffers from the same pragmatic and theoretical defects that make section 5.05(2) inadequate. Section 2.12 is as vague as the impossibility standard that the Model Penal Code sought to replace. States which have adopted this provision have not been able to reach uniform results within their own jurisdictions, much less between them. New Jersey, for example, has been unable to formulate consistent definitions of "harm." A defendant charged with shoplifting by stealing three pieces of bubble gum had his prosecution dismissed as a de minimis infraction.62 Although the fact that the defendant in Smith was a juvenile was an important fact, another juvenile was convicted of possessing .08 grams of marijuana residue, which, the court held, did not constitute a de minimis infraction.63 However, when a minor consumed small amounts of alcohol, that consumption was held to be a de minimis infraction. 64 In Zarrilli, the court emphasized that the alcohol "did not turn Zarrilli into a menacing person, endangering others" and that "[n]o violence or weapons were involved. 65 Although those statements are also

(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or (3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense. MODEL PENAL CODE § 2.12 (1985). This section is only a broader statement of section 5.05(2), as acknowledged by the comments to section 2.12. However, because it theoretically encompasses a broader range of prosecutions than section 5.05(2), it merits a separate analysis. 61. Section 2.12 has been adopted by Hawaii, HAW. REV. STAT. § 702-236 (1985), Maine, ME. REV. STAT. ANN. tit. 17-A, § 12 (West 1964 & Supp. 1992), New Jersey, N.J. STAT. ANN. § 2C:2-11 (West 1982 & Supp. 1993), and Pennsylvania, 18 PA. CONS. STAT. ANN. § 312 (West 1983 & Supp. 1993). Washington has enacted a similar provision which explicitly allows the state to refuse to bring a prosecution when the violation is de minimis. WASH. REV. CODE ANN. §9.94A.440 (West 1988 & Supp. 1993). 62. State v. Smith, 480 A.2d 236, 236 (N.J. Super. Ct. Law Div. 1984). But see Commonwealth v. Campbell, 417 A.2d 712 (Pa. Super. Ct. 1980) (stealing merchandise worth only $1.59 is not a de ininimis infraction, and argument that it is a de mininlis infraction is considered meritless). 63. State v. Ziegler, 544 A.2d 914, 914-15 (N.J. Super. Ct. Law Div. 1988). But see State v. Vance, 602 P.2d 933 (Haw. 1979) (possessing of trace amounts of narcotics probably constitutes a de minjinis violation). 64. State v. Zarrilli, 523 A.2d 284, 284 (N.J. Super. Ct. Law Div. 1987), aff'd, 532 A.2d 1131 (N.J. Super. Ct. App. Div. 1987) (per curiam). 65. Zarrilli, 523 A.2d at 288. 1995] THE OBVIOUSLY IMPOSSIBLE ATTEMPT probably true of a person who possesses .08 grams of marijuana residue, Ziegler was nevertheless convicted. The protection given by a statute authorizing the dismissal of de minimis prosecutions is at best irregular and unpredictable. And, as with section 5.05(2), it does not redefine the crime of attempt, but only acts as a prudential safeguard.'

V. ADDING THE ELEMENT OF REASONABLENESS Sections 5.05(2) and 2.12 are both inadequate responses to the problem of obvious impossibility. However, the impossibility defense does not need to be revived in order to avoid inconsistent results. The solution instead must involve a redefinition of what actually constitutes an attempt crime. Specifically, an element of reasonableness should be added to the Model Penal Code's definition of criminal attempt. Section 5.01 should accordingly be modified to read as follows: (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he reasonably believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or the reasonable belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything which, under the circumstances as he reasonably 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." The addition of this element of reasonableness gives courts a way to avoid incompatible results while avoiding a return to the unworkable impossibility defense. Instead, the defendant must argue that his perception of the attendant circumstances was unreasonable, so that he does not theoretically present a danger to society, and the court in any case cannot pragmatically infer his dangerousness from his actions.

66. See Robinson, supra note 58 and accompanying text. 67. MODEL PENAL CODE § 5.01 (1985) (emphasis added). NORTHERN ILLNOIS UNIVERSITY LAW REVIEW (Vol. 15

A. REASONABLENESS APPLIED TO INTRINSIC AND EXTRINSIC IMPOSSIBILITY The proposed reasonableness requirement applies in a case of either intrinsic or extrinsic possibility. The historical division of factual impossibility into extrinsic and intrinsic impossibility has largely fallen into 6 disuse. ' However, such a clarification might be necessary in the future, as at least one court has found it necessary to imply such language being present in the Model Penal Code.69

1. Intrinsic Impossibility Intrinsic impossibility refers to those situations in which the crime cannot be committed because the means used by the actor cannot possibly effect his desired end.70 The aspiring murderer who uses a voodoo doll or a defective gun is prevented from completing the crime because the means he chose were ineffective. His attempt was intrinsically impossible. The modified definition of attempt turns on the reasonableness of the defendant's perception of the effectiveness of those means. If a reasonable person would not have believed his chosen means to be effective, then there has been no criminal attempt.

2. Extrinsic Impossibility Extrinsic impossibility could also invoke the reasonableness requirement. Extrinsic impossibility refers to those situations in which the actor is mistaken about the circumstances extrinsic to his own actions.71 For example, the defendant in Dlugash,72 who fired a gun into a corpse, believing the body to be alive, has found post facto his attempt to be extrinsically impossible. The defendant has done all that he could to effectively commit the crime, and the means used (a gun) would normally be effective, but due to some external circumstance beyond his knowledge and control he has found completion of the crime impossible. Again, if the defendant made an unreasonable assessment of the extrinsic circumstances, there has been no criminal attempt. The case would therefore turn on the specific facts surrounding the attempt. The finder of fact would consider

68. See Thurman W. Arnold, Criminal Attempts--The Rise and Fall of an Abstraction, 40 YALE L.J. 53, 71 (1930) ("The distinctions are ingenious, but ... they lead us either to absurd results or else to no results at all ... "). 69. Commonwealth v. Henley, 459 A.2d 365, 367-69 (Pa. Super. Ct. 1983), afftd, 474 A.2d 1115 (Pa. 1984). 70. United States v. Thomas, 32 C.M.R. 278 (C.M.A. 1962). 71. See generally JOHN KAPLAN & ROBERT WEISBERG, CRIMINAL LAW (1991). 72. People v. Dlugash, 363 N.E.2d 1155 (N.Y. 1977). 1995] THE OBVIOUSLY IMPOSSIBLE ATTEMPT evidence about the likely scenario in which the attempt occurred, and then determine whether the defendant made a reasonable determination about the scenario. The Model Penal Code could therefore be further modified to read "[i]f the intrinsic or extrinsic circumstances, were as the defendant reasonably believed them to be." Admittedly, such an addition would be in one sense extraneous, because it would only emphasize that defendant must reasonably ascertain all of the circumstances surrounding his attempt before it can be made criminal. Nevertheless, it could help to clarify the Code section for those few courts which still recognize the distinction between extrinsic and intrinsic impossibility.

B. THE REASONABLENESS REQUIREMENT IN OTHER AREAS OF CRIMINAL LAW One possible objection to the suggested addition of a reasonableness element is that the term will be impossible to define consistently. Given the difficulty courts and commentators have in describing the law of attempt, juries might be utterly unable to follow an attempt law with this added element. However, the proposed addition of reasonableness to the crime of attempt is not entirely unprecedented. There are several models which can guide a definition of reasonableness. For example, in determining whether a given belief is reasonable, we can use definitions found elsewhere in the Model Penal Code. Section 210.3 says, in the manslaughter context, that reasonableness of the defendant's belief shall be determined "from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be." Alternatively, courts can look to the law of those states which already include a reasonableness element in their definition of attempt crimes.73 It would even be theoretically possible to import civil definitions of reasonableness. 74 The most instructive models, however, are the other areas of the criminal which require a finding of reasonableness as a prerequisite to conviction. Antitrust law, income tax evasion, and environmental law all require some element of reasonableness before criminal liability attaches to an attempt.

73. See, e.g., MINN. STAT. ANN. § 609.17 (West 1987 & Supp. 1993) (allowing an impossibility defense if the impossibility "would have been clearly evident to a person of normal understanding"); IOWA CODE § 707.11 (1993) (impossibility not a defense unless the actor's expectations were "unreasonable in light of the facts known to the actor.") 74. See, e.g., George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537, 556-64 (1972). 254 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 15

1. Antitrust Law Antitrust law requires, as an element of attempted monopolization, that an attempt must be at least reasonably likely to succeed.75 The Sherman Act prohibits monopolization, including attempted monopolization.7 6 In defining what is punishable as an attempt, the Supreme Court requires that the defendant's conduct had a "dangerous probability of success."77 Such a showing is analogous to a reasonableness requirement being appended to the Model Penal Code definition of attempt. The "dangerous probability" standard of antitrust law emphasizes the need to consider the odds of success in order to avoid anomalous results. The owner of the comer market is not deemed dangerous if he attempts to monopolize the national soft drink market, because there is no meaningful likelihood that he will succeed. Put another way, his attempt to monopolize the market will be impossible. Therefore, he is not, as an attempted monopolist, dangerous. It does not matter how the owner of the comer market attempts to commit the crime of monopolization, because he is absolutely powerless to do so.

2. Criminal Tax Evasion Criminal tax evasion also invokes a reasonableness standard in its definition of attempt crime. In charges of tax evasion, courts almost universally recognize a "no tax due" defense.78 Although no courts have explicitly linked the no tax due defense and the common law defense of impossibility,79 the two defenses are logically indistinguishable. If a defendant does not, in fact, owe any back taxes, then the charge of attempted income tax evasion cannot stand.8" Impossibility, therefore, is

75. See generally James F. Ponsoldt, Clarifying the Attempt to Monopolize Offense As an Alternative to Protectionist Legislation: The Conditional Relevance of 'Dangerous Probability of Success', 61 NOTRE DAME L. REV. 1109 (1986) (discussing the relationship of the "dangerous probability of success" requirement to the traditional and Model Penal Code elements of attempt crimes). 76. 15 U.S.C. § 2 (1988). 77. Swift v. United States, 196 U.S. 375, 396 (1905). 78. See, e.g., United States v. Petti, 448 F.2d 1257, 1258 (3d Cir. 1971); United States v. Wilkins, 385 F.2d 465, 468 (4th Cir. 1967), cert. denied., 390 U.S. 951 (1968); Koontz v. United States, 277 F.2d 53, 55 (5th Cir. 1960). 79. Ronald H. Jensen, Reflections on United States v. Leona Helmsley: Should 'Impossibility' be a Defense to Attempted Income Tax Evasion?, 12 VA. TAX REV. 335, 339 (1993). 80. See, e.g., United States v. Helmsley, 941 F.2d 71 (2d Cir. 1991), cert. denied., 502 U.S. 1091 (1992). 19951 THE OBVIOUSLY IMPOSSIBLE A7TEMPT a defense to criminal tax evasion, although it is expressed as the no tax due defense. Another element of attempted criminal tax evasion is that the person accused of criminal tax evasion have the specific intent to defraud the government.8' A good faith, subjectively reasonable misunderstanding, however, negates this willfulness element. 82 Because a reasonable misunderstanding works as a complete defense, the prosecution must prove that the defendant acted unreasonably. If a person makes a reasonable assump- tion about the factual context surrounding the alleged evasion, then 8 3 he is not guilty of criminal conduct. The "unreasonableness" requirement is in effect the mirror image of the proposed modification to Model Penal Code section 5.01. The Model Penal Code should require that a person reasonably believe that he is breaking the law before he is convicted. The tax code requires that a person unreasonably believe that he is obeying the law before he is convicted. The person who reasonably believes he is breaking the law (the proposed definition of attempt) and the person who unreasonably believes he is obeying the law (the standard under the tax code) are logically equally culpable.

3. Environmental Crimes Environmental law also employs a reasonableness limitation to avoid unjust prosecutions for attempt. The California Water Code, for example, excuses liability for a discharge into public waters if the discharger has used reasonable precautions to prevent the discharge. 4 If a person commits an environmental violation, but no objective harm actually results, then that person may be guilty of reckless endangerment 85 or even, if the violation were serious enough, attempted murder.8 6 But, the reckless endangerment

81. Jensen, supra note 79. 82. United States v. Cheek, 498 U.S. 192, 206 (1991); see also United States v. Kraeger, 711 F.2d 6, 7 (2d Cir. 1983); Cooley v. United States, 501 F.2d 1249, 1253 n.4 (9th Cir. 1974), cert. denied, 419 U.S. 1123 (1975). 83. See generally Francis Funaro, Case Comment, Tax Law--Assessing Willfulness in Criminal Tax Cases: Supreme Court Rejects Objective Reasonableness Standard--Cheek v. United States, 111 S. Ct. 604 (1991), 25 SUFFOLK U. L. REV. 904 (1991). 84. CAL. WATER CODE § 13350(b)-(c)(5) (West 1992). But see 33 U.S.C. §§ 1251-1376 (1988); Robert F. Blomquist, Rethinking the Citizen as Prosecutor Model of Environmental Enforcement Under the Clean Water Act: Some Overlooked Problems of Outcome-Independent Values, 22 GA. L. REV. 337 (1988) (stating that a discharger is responsible for Clean Water Act violations despite its exercise of due care). 85. 42 U.S.C. § 6928(e) (1988). 86. Steven L. Humphreys, Comment, An Enemy of the People: Prosecuting the CorporatePolluter as a Common Law Criminal, 39 AM. U. L. REV. 311, 337 n.159 (1990). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 15 standard still requires that the defendant know that his conduct is reasonably likely to cause an increased risk of serious bodily injury.87 The defendant must have a reasonable belief that the waste they are discharging is hazardous.8 8 This reasonableness limitation in environmental law performs a similar function to the proposed reasonableness limitation in the Model Penal Code.

VI. CONCLUSION The inchoate criminal presents a peculiar problem for the law. The concept of attempt crimes force us to sharpen our understanding of why we punish attempts at all. And, in examining our motives, we realize that the American law tends to sway back and forth between subjectivist and objectivist viewpoints. As a result, we can never be entirely satisfied with a complete surrender to one viewpoint over the other. Nevertheless, by imposing a reasonableness element into attempt crimes, we can keep an objective check on the increasingly influential subjective model of criminality. The obviously impossible attempt has been called a case from 89 "never-never land." By amending the Model Penal Code's definition of attempt, we can ensure that obviously impossible attempts are never, never punished.

87. United States v. Protex Industries, Inc., 874 F.2d 740, 744 (10th Cir. 1989). This same standard also applies to inchoate crimes. See, e.g., United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990) (stating that the same analysis is used for charges of completed violations and conspiracy to violate Resource Conservation and Recovery Act). 88. United States v. Johnson & Towers, Inc., 741 F.2d 662, 668 (3d Cir. 1984), cert. denied, 469 U.S. 1208 (1985). 89. JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 593-94 (2d ed. 1960).