Committee Comments

The degree of confusion engendered by the defense of impossibility in criminal attempt law is virtually unmatched in substantive criminal law. The traditional viewpoint held that a "legal" impossibility constituted a valid defense to a criminal attempt prosecution, whereas a "factual" impossibility did not. W. LaFave & A. Scott, Criminal Law § 60, at 438-53 (1972). Technically., the distinction between a "legal" and a "factual" impossibility is articulated with facility. A "factual" impossibility exists where facts present at the time of the attempt, but unknown to the actor, render the consummation of the intended substantive crime impossible. Booth v. State, 398 P.2d 863 (Okl. Cr. 1964). Common examples of this variety of impossibility include: attempting to perform an abortion on a woman who is not pregnant, People v. Huff, 339 Ill. 328, 171 N.E. 261 (1930); bludgeoning an empty bed with the intent to murder its customary occupant, State v. Mitchell, 170 Mo. 633, 71 S.W. 175 (1902); or dipping into an empty pocket with an intent to pilfer, People v. Moran, 123 N.Y. 254, 25 N.E. 412 (1890). "Factual" impossibility has never been accepted as a valid defense.

An attempt is deemed to be a "legal" impossibility when the attemptor has completed all of his intended acts, but the sum of his acts fails to fulfill all the elements of a substantive crime. Booth v. State, 398 P.2d 863 (Okl. Cr. 1964). "Attempting to do what is not a crime," opines Professor Perkins, "is not attempting to commit a crime." R. Perkins, Criminal Law 570 (2d ed. 1969). Commonplace examples of a "legal" impossibility include: "bribing" a person assumed to be a juror who is not, State v. Taylor, 345 Mo. 325, 133 S.W.2d 336 (1939); receiving "stolen" goods which are, in fact, not "stolen," People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906); cf. People v. Rojas, 55 Cal. 2d 252, 358 P.2d 921 (1961).

This dichotomy in the concept of impossibility reflects the struggle of the judiciary to reconcile apparently conflicting considerations: the concern for affording protection to societal interests from obvious manifestations of dangerousness, and the principle of legality which decrees that an individual can be convicted only for criminal acts specifically proscribed by law. However, this factual/legal dichotomy engendered numerous difficulties for the courts. The rules, simple enough in articulation, proved extraordinarily difficult in application. W. LaFave & A. Scott, Criminal Law § 60, at 438 (1972).

Dissatisfaction with the factual/legal distinction led the drafters of the Model Penal Code to a position of total abandonment of the defense of impossibility. Section 5.01(1) of the Code (Tent. Draft No. 10, 1960) provides:

While this section does not explicitly mention impossibility, the commentary accompanying Tentative Draft No. 10 of the Code states in unequivocal terms that "the approach of the Code is to eliminate the defense of impossibility in all situations." And again, in referring specifically to subsection 1(a) of section 5.01, the drafters comment that "[t]he purpose of this paragraph is to reverse the results in cases where attempt convictions have been set aside on the ground that it was legally impossible for the actor to have committed the crime contemplated."

Most jurisdictions have now abolished the defense of legal impossibility to a charge of attempt either by statute or case law. See State v. Curtis, 603 A.2d 356, 358-59 (Vt. 1991), and authorities cited therein.

The history of impossibility as a defense in Oklahoma involves a tale of two cases. Oklahoma's main case in support of the defense is Nemecek v. State, 72 Okl. Cr. 195, 114 P.2d 492 (1941), overruled on other grounds, Broadway v. State, 818 P.2d 1253, 1255 (Okl.Cr. 1991). In that case, the defendant was convicted of attempting to obtain under false pretenses reimbursement from his insurer for fire loss. The defendant's policy was valued at $600.00, and he had claimed that his total loss amounted to $1,591.47. In doing so, he intentionally claimed items had been destroyed, when, in fact, these items were not damaged by the blaze. Even without falsely listing items, however, the defendant's genuine loss still exceeded $600.00. The Court of Criminal Appeals reversed the conviction, holding that, despite the fact that the defendant had done all he intended to do, no substantive crime was committed.

In 1964, the Court of Criminal Appeals decided the case of Booth v. State, 398 P.2d 863 (Okl. Cr. 1964), a decision generally looked upon as a pivotal point in Oklahoma attempt law. The defendant had made arrangements with a thief to buy a stolen coat. Prior to delivery the thief was apprehended by police and the coat was recovered. The thief agreed to cooperate with the police by making the transfer as scheduled. The exchange was made under police surveillance, and Booth was subsequently arrested for receiving stolen goods. The trial court instructed the jury that, because the coat in question had been recovered, and thus was no longer "stolen" property, it could only consider Booth's guilt as to the lesser included crime of attempt to receive stolen goods. The jury convicted, and the Court of Criminal Appeals reversed, on the ground that "a legal impossibility precluded defendant from being prosecuted for the crime of knowingly receiving stolen property." Id. at 871. (This was in reality only a factual impossibility. See R. Perkins, Criminal Law 570-71 (2d ed. 1969).)

The court, bound by the statutory law and precedent of Oklahoma, reversed the conviction, yet articulated substantial misgivings. The court permitted itself to "earnestly suggest" that the Oklahoma legislature revise the State's attempt law in accordance with the Model Penal Code's definition of attempt, section 5.01. It then quoted that section in its totality. 398 P.2d, at 872. In 1965, less than a year after the decision, the legislature substantially responded to the court's wishes and adopted Model Penal Code language in 21 O.S. 1991, § 44.

The wording of section 44 is almost identical to that of the Code, the only variance occurring after the word "does" in subsection (b). The Code language adds "or omits to do" here. Subsection (c) of the Code, which deals with substantial steps toward commission of a crime, was omitted in its totality. This may have been done because the wording of the old general attempt statute, 21 O.S. 1961, § 42, appears to cover the same area.

Courts of other jurisdictions have cited Booth and section 44 as standing for the proposition that Oklahoma has abolished the defense of impossibility in criminal attempt prosecutions. See, e.g., Darr v. People, 193 Colo. 445, 568 P.2d 32, 34 (1977). However, the Court of Criminal Appeals has not ruled squarely on the issue of legal impossibility since the enactment of the new attempt law. Cf. Reeves v. State, 535 P.2d 706 (Okl. Cr. 1975), cert. denied, 434 U.S. 1046 (1978) (section 44 contains appropriate language for jury instructions).

The court has intimated in one subsequent case that the legal-impossibility defense has survived in Oklahoma. In Weimer v. State, 556 P.2d 1020 (Okl. Cr. 1976), the defendant raised the impossibility issue on appeal, as a defense to the charge of attempt to manufacture a controlled dangerous substance. In addressing the defendant's assertion, the court declared, "It is no defense that the attendant circumstances are not as the defendant believes them to be and they thereby render commission of the crime factually impossible." Id. at 1025.

Despite the absence of decisive judicial pronouncement, the Commission has concluded that the language of section 44(a) is facially clear in its derogation of the impossibility defense to an attempt prosecution. This conclusion is buttressed by reference to the Model Penal Code and commentary. Nevertheless, the Commission recognizes that counterarguments exist supporting the view that section 44(a) does not constitute a legislative rejection of the defense of legal impossibility. First, the statutory language does not specifically mention any form of impossibility. It simply states that a defendant is guilty of an attempt if he has performed sufficient acts "which would constitute the crime if the attendant circumstances were as he believes them to be." Second, this language, if literally construed, would convict a defendant no matter how absurd the situation or unlikely the success of the attempt. For example, the legally sane but mentally defective individual who truly believes he can effect the death of an enemy by utilizing voodoo magic, so long as the belief in the adequacy of these means is demonstrated, could be convicted of attempted murder, regardless of whether the voodoo rites were practiced hundreds of miles from the location of the intended victim. Note, The Status of Impossibility in Oklahoma Criminal Attempt Law, 31 Okla. L. Rev. 422 (1978).