Section 11 Impossibility 349 and a lock of hair (which was taken from a detective on the case). After photographing the transaction, undercover officers from the Highway Patrol arrest Leroy. They later learn that the suitcase contained only $100; Leroy makes no attempt to explain why he is $400 short. Both men are charged with planning feloniously and with malice aforethought to kill and murder Judge Gardner. Figure 40 Judge Gardner (Lee County Court) 1. Relying only on your own intuitions of justice, what liability and punishment, if any, does John Henry Ivy deserve? N 0 1 2 3 4 5 6 7 8 9 10 11 no liability liability but no 1 day 2 wks 2 mo 6 mo 1 yr 3 yrs 7 yrs 15 yrs 30 yrs life imprisonment death punishment 2. What liability, if any, under the then-existing statutes? 3. What liability, if any, under the Model Penal Code? THE LAW Mississippi Code Annotated (1988) Section 97-3-19. Homicide; Murder Defined; Capital Murder (1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being;
350 Part IV Inchoate Liability (b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual; (c) When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felonies. (2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: (a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman. For purposes of this paragraph, the term peace officer means sheriffs of counties and their deputies, constables, marshals, and policemen of cities and towns, game wardens, parole officers, a judge, prosecuting attorney or any other court official, agents of the Alcoholic Beverage Control Division of the State Tax Commission, agents of the Bureau of Narcotics, personnel of the Mississippi Highway Patrol, and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary; (b) Murder which is perpetrated by a person who is under sentence of life imprisonment; (c) Murder which is perpetrated by use or detonation of a bomb or explosive device; (d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals; (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies; (f) When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony; (g) Murder which is perpetrated by the killing of any elected official of a county, municipal, state or federal government with knowledge that the victim was such public official.
Section 11 Impossibility 351 Section 1-3-4. Capital Case, Capital Offense, Capital Crime, and Capital Murder The terms capital case, capital cases, capital offense, capital offenses, and capital crime when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term capital murder when used in any statute shall denote criminal cases, offenses and crimes punishable by death, or imprisonment for life in the state penitentiary. Section 97-1-7. Attempt to Commit Offense; Punishment Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted. Section 97-1-9. Attempt to Commit Offense; No Conviction If Offense Completed A person shall not be convicted of an assault with intent to commit a crime, or of any other attempt to commit an offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt. Section 97-1-1. Conspiracy If two (2) or more persons conspire either: (a) To commit a crime; or (b) Falsely and maliciously to indict another for a crime, or to procure to be complained of or arrested for a crime; or (c) Falsely to institute or maintain an action or suit of any kind; or (d) To cheat and defraud another out of property by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property or thing by false pretense; or (e) To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering
352 Part IV Inchoate Liability or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use of employment thereof; or (f) To commit any act injurious to the public health, to public morals, trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws; or (g) To overthrow or violate the laws of this state through force, violence, threats, intimidation, or otherwise; or (h) To accomplish any unlawful purpose, or a lawful purpose by any unlawful means; such persons, and each of them, shall be guilty of a felony and upon conviction may be punished by a fine of not more than five thousand dollars ($ 5,000.00) or by imprisonment for not more than five (5) years, or by both. Provided, that where the crime conspired to be committed is capital murder..., the offense shall be punishable by a fine of not more than five hundred thousand dollars ($ 500,000.00) or by imprisonment for not more than twenty (20) years, or by both. Provided, that where the crime conspired to be committed is a misdemeanor, then upon conviction said crime shall be punished as a misdemeanor as provided by law. William Stokes v. State of Mississippi Supreme Court of Mississippi 92 Miss. 415, 46 So. 627, 1908 Miss. LEXIS 245 (1908) Will Stokes and Cora Lane, who were having an affair, hired Shorty Robertson to kill Lane s husband, Wallace Lane, for the proceeds of life insurance policies. They promised Robertson $1,000 and agreed that he would lay in wait for the husband on a particular night at a particular place to surprise the husband as he returned from a Lodge meeting. But Robertson reported his conversations to the police, who planned to hide themselves at the appointed place and time. The agreed upon night was rainy. Robertson went to Lane s house, where he found Stokes, and together they went to the planned location. Stokes produced a loaded gun and showed Robertson where he should wait. As Stokes was handing the gun to Robertson, the police intervened and arrested him. No money ever changed hands. In fact, the husband did not plan on taking his usual route home that night. Stokes was convicted of attempt to murder Wallace Lane. He appealed on the basis that the facts did not constitute an attempt....all the authorities hold, that, in order to constitute an attempt, the act attempted must be a possibility; and counsel for appellant argue from this that the appellant could not have committed this crime at the time he was arrested, because Lane was not even there, and therefore, they say, no conviction could be had. It was no fault of Stokes that the crime was not committed. He had the gun, and the testimony warrants the conclusion that it had been taken for the purpose of killing Lane. It only became impossible by reason of the extraneous circumstance that
Section 11 Impossibility 353 Lane did not go that way, and, further, that defendant was arrested and prevented from committing the murder. [The impossibility defense] has application only to a case where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short, it has no application to the case when the impossibility grows out of extraneous facts not within the control of the party.......[t]he defendant s conviction of attempt to kill and murder Wallace Lane is affirmed. Model Penal Code (Official Draft 1962) Section 5.01. Criminal Attempt (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 with 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.... Section 5.05.... ; Mitigation in Cases of Lesser Danger;... (1)... (2) Mitigation. If the particular conduct charged to constitute a criminal attempt, solicitation or conspiracy 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 judgment and impose sentence for a crime of lower grade or degree or, in extreme cases, may dismiss the prosecution....