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How can I be guilty if I didn’t commit the crime?

Contact Attorney Jason Chan

Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235


Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

 Lets say someone wants to commit the crime of robbery. They have it all planned out in their mind on when and how to rob the local convenient store. They hide a gun in their jacket, walk into the convenient store, pull out the gun, but are stopped by a police officer in the store before they can reach the clerk, and effectively rob the store. In this scenario the would be robber did not actually complete the crime of robbery since they were not able to take the money by force. However, they are still guilty of attempted robbery. (picture of store taken by rexbogg)

storeAttempt is an offense where one can be found guilty simply by their personal intentions. In order to be found guilty of attempt for any crime one must have 1) the specific intent to commit a crime (any crime); 2) an overt act; 3) non-achievement of the crime.

The 1st and 3rd elements are really self-explanatory. In line with the example above, the accused had the intent to rob the store as shown by his actions of getting a gun, and walking to the store. He was unable to complete the crime because he was stopped and arrested as soon as the police officer saw the gun. Those elements are easy to grasp and easy for the State to prove in the prosecution.

The hardest element for the State to prove, and in fact to understand, for the crime of attempt is the overt act element. An overt act is defined as some actual, outward, physical action, as opposed to mere talk or plans. In other words the accused must have taken actual steps beyond planning and talking about the crime in order to be found guilty of attempt. In the above example with the attempted robbery, if the the would-be robber had only talked about robbing the store and planned on buying a gun, and then was turned in by someone who overheard the plan, the State would have a real hard time convicting that person of attempted robbery. This is because all that person has done was just talk and plan the robbery, they didn’t take any steps beyond planning that the State would define as an overt act. The State must prove that the accused came reasonably close to actually carrying out the crime.

Now that we know what an overt act isn’t it should be a little clearer on what an overt act is, granted this is all subjective on the crime and the actions taken by the accused. However it is safe to say that in the above example, when the would be robber acquired the gun, and actually walked into the convenient store, the State would be able to prove that those actions were an act beyond mere preparations and planning and therefore constitute an overt act towards committing the crime.

The crime of attempt is one of the few crimes where one can be found guilty by not actually carrying out a crime. It may sound weird and a little confusing to hear it like that but hopefully this entry has made sense of a crime that happens more often than the crimes the defendants were going to commit.


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