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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.
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).

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