About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

53 Minn. L. Rev 665 (1968-1969)
Impossibility in Criminal Attempts--Legality and the Legal Process

handle is hein.journals/mnlr53 and id is 681 raw text is: Impossibility in Criminal Attempts- Legality and the Legal Process Arnold N. Enker* Problems of criminal attempts have exerted a fascination for legal scholars far beyond their significance in terms of the number of litigated cases which actually pose difficult issues. Probably the largest volume of legal writing has dealt with what seems to be the most intractable problem of all, namely, impossibility, factual and legal.1 Perhaps one reason we have not yet laid the dragon to rest is that we have used the wrong analytic weapons. Attempt, together with legal and factual impossibility, too often have been viewed solely as problems of mens rea.2 The major thesis of this article is that when the issue of impossibility is approached as an aspect of the broader problem of understanding the role of the criminal act in the statutory definition of substantive crime, the doctrine of impos- sibility becomes a useful tool in forwarding legal analysis. I. INTRODUCTION Some words of definition are necessary. For convenience of usage the following terms shall be used as indicated: Act-the defendant's physical bodily movements; Circumstances or attend- ant circumstances-the external, objective situation which the substantive law may require be present in addition to the de- fendant's act before he can be convicted of the substantive crime; Conduct-the act combined with the circumstances regarded by the substantive law as relevant; Consequences or result-an additional occurrence caused by the defendant's act.3 A few examples of the application of such terminology will be helpful. The crime of possession of stolen goods contains among its elements an act, namely, possession of goods. It also * Professor, University of Minnesota Law School. 1. Two recent revivals of the issue are Elkind, Impossibility in Criminal Attempts: A Theorist's Headache, 54 VA. L. REv. 20 (1968), and Hughes, One Further Footnote on Attempting the Impossible, 42 N.Y.U.L. REv. 1005 (1967). Professor Hughes' effort is a more significant con- tribution than its title suggests. 2. But see Smith, Two Problems in Criminal Attempts, 70 HARv. L. REv. 422, 447-48 (1957); Smith, Two Problems in Criminal Attempts Re-Examined-lI, 1962 Cam. L. REv. (Eng.) 212. 3. The terminology is not original. See Smith, supra note 2; MODEL PENAL CODE § 2.02, comment at 124 (Tent. Draft No. 4, 1955).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most