Washington and Lee Law Review Volume 1 | Issue 1 Article 2 Fall 9-1-1939 Preparation for Crime as a Criminal Attempt John S. Strahorn, Jr. Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Criminal Law Commons Recommended Citation John S. Strahorn, Jr., Preparation for Crime as a Criminal Attempt, 1 Wash. & Lee L. Rev. 1 (1939), https://scholarlycommons.law.wlu.edu/wlulr/vol1/iss1/2 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Washington and Lee Law Review Volume I FALL, 1939 Number i PREPARATION FOR CRIME AS A CRIMINAL ATTEMPT By JOHN S. STRAHOP.N, JR.* Both as fascinating and as fruitless as the alchemists' quest for the philosopher's stone has been the search, by judges and writers, for a valid, single statement of doctrine to express when, under the law of guilt, preparation to commit a crime becomes a criminal attempt thereat. Some judges, concerned with deciding and rationalizing spe- cific fact situations relating to separate defined crimes, have enunciated statements of doctrine purporting to be valid for all possible situations under all crimes. Some writers, visualizing a greater variety of situations and crimes, have essayed to lay down general rules. Other judges and writers have denied the capacity of the field for valid generalization. It is not the purpose of this article to assert that any one of the ex- tant statements of doctrine in the matter is necessarily valid, nor to at- tempt to propound any new one claimed to be an improvement on earlier ones. Rather the scope of inquiry will be merely to investigate the extent to which a unitary statement reflecting the law and the pol- icy of the topic can be worked out which may, at least, be helpful in understanding the subject even though it will not always give the an- swer with mechanical perfection. The approach will be to discuss the facts of some of the leading cases, together with the statements of doctrine therein announced, against the background of the social policy and philosophy of the law of attempts. Particularly to be emphasized will be the matter of which one of the conflicting theories of the purpose of punishment has been and should be adhered to and emphasized in adjudicating and ration- alizing attempt problems. This article serves as a somewhat belated sequel to one1 published by the writer practically a decade earlier in which earlier article one particular phase only of the attempt problem was treated. It is planned now to deal principally with the remaining definite area in which there is dispute as to criminality. The earlier article dealt with the cases *Professor of Law, University of Maryland School of Law. "The Effect of Impossibility on Criminal Attempts (1930) 78 U. Pa. L. Rev..962. WASHINGTON AND LEE LAW REVIEW [Vol. I where the attempt had failed because of the impossibility of success. This one will treat of the problem of when the preparation to commit a crime (the possibility of success assumed, or immaterial) has gone far enough to constitute a criminal attempt.2 Implicit in the statement of the problem is the idea that the time of the accruing of criminality as for an attempt is at some moment prior to when guilt as for the major crime would attach and, at the same time, is normally at some moment subsequent to that of the formation of the intent and the doing of the first act peculiarly concerned with the execution of that intent. It was seen, in the impossibility area,3 that the doing of an act expected-by the actor to be completely successful could, as circumstances varied, involve complete crime, criminal at- tempt, or non-criminal attempt. There is a similar trichotomy in the preparation field, i.e., complete crime, criminal attempt thereat, or not- yet-criminal attempt. THE SOCIAL POLICY AND PHILOSOPHY OF THE TOPIC In spelling out the social policy and philosophy underlying the so- lution of the problem of distinguishing between not-yet-criminal at- tempts (hereafter called non-criminal attempts) and criminal ones, two things are important to be considered. One is the legal technique for ,distinguishing between that which is, adniittedly, a criminal attempt and the major crime attempted. The other is the policy and philosophy of making that distinction itself. For the view is here accepted that the task of distinguishing between non-criminal and criminal attempts is but a reflection of the similar task of distinguishing between criminal attempts and the major crimes attempted, and that the same considerations of policy and philosophy are applicable. In developing these points the elements of a typical crime and the conflicting theories of the purpose of punishment must be considered.4 The three elements of a typical crime are, respectively, the criminal result or corpus delicti; the defendant's conduct or causa- 2Because of the inter-relation of the two subjects, because of the need for treating the intervening cases and literature, and because subsequent reflection indicates some slight change in views and in terminology, considerable reference herein to the earlier paper may be necessary. For this a blanket apology is now offered. 3Supra n. i,at 962. 'The writer has earlier developed the point of the inter-relation between the ele- ments of guilt and the theories of punishment, with reference to attempts in the ar- ticle cited supra n. 1, at 966-971, and with reference to crimes in general in another article, Criminology and the Law'of Guilt (1936) 84 U. Pa. L. Rev. 491, 6oo. 1939] PREPARATION FOR CRIME tion; and the criminal intent or mens rea.5 The three conflicting theo- ries of the purpose of punishment are, respectively, the vengeance theory of punishing so as to compensate for the result which has already oc- curred; the dterrence theory of punishing so as to discourage the fu- ture happening of socially dangerous conduct from men generally; and the recidivism theory of punishing as a means of coping with the im- mediate offender's own personal dangerousness to society if he be left unpunished. Each of the three elements of criminality is correlated to one of the three theories of punishment. That of the corpus delicti or criminal re- sult relates, historically, to the vengeance theory. The rules concerned with the requirement of causative conduct from the defendant exem- plify the deterrence theory. The element of the mens rea or criminal in- tent purports to implement the recidivism theory of applying or with- holding punishment according to whether that is necessary in order to protect society against a possible recurrence of the defendant's danger- ous conduct. When we analyze the distinction between completed crimes and ad- mittedly criminal attempts, with a view to ascertaining just which ele- ment of criminality is involved, and which theory of punishment is ap- plicable, it is disclosed that the difference is taken according to the ex- tent of the corpus delicti, in pursuance of the vengeance theory of pun- ishing according to the relative amount of the social harm already caused by the defendant's conduct. This is so because the second factor of the defendant's actual conduct may6 be the same for complete crime, criminal attempt, and non-criminal attempt. So too, with the thiixd fac- tor. There may be as much criminal intent for mere attempts (criminal or non-criminal) as for the complete crime. In fact, less intent will some- times suffice for guilt of the complete crime than is usually required for a criminal attempt3 The two elements of conduct and intent are, 'See, as dividing attempt crimes into the intent, the overt act, and the societal harm, Curran, Criminal and Non-Criminal Attempts (1931) 19 Geo. L. T. 185, 189. 316. 'Thus if one, with intent to steal, picks up an umbrella and moves it, he will be guilty of larceny if it be that of another and not chained down; of attempted larceny if it be chained to the wall; and of no crime if, unknown to him, it was his own umbrella. 7 It is not planned herein to go into any extensive discussion of the intent element. By the orthodox rule :here can be no guilt of an attempt without a specific intent to accomplish the major crime, although some courts will permit a mere intent to frighten to suffice for the assault type of attempt. Then, too, if a complete battery occurs, many courts will permit less than a specific intent, including gross negligence, intent merely to frighten, or violation of another criminal prohibition to suffice. On this, see Tulin, The Role of Penalties in the Criminal Law (1928) 37 Yale L. J. 1048. If WASHINGTON AND LEE LAW REVIEW [Vol.I thus, constant, and no explanation of the difference between major crime and criminal attempt, nor of that between criminal attempt and mere preparation, may be made on either basis. So, from the standpoint of the theories of the purpose of punish- ment, there would be no differences taken under the deterrence and re- cidivism theories. There is just as much need of deterring the unsuccess- ful conduct causing a criminal attempt as that which is completely suc- cessful because, from the standpoint of the one to be deterred, that con- duct is the same.