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Law School Case Brief

United States v. Thomas - 32 C.M.R. 278 (U.S. C.M.A. 1962)


The Uniform Code of Military Justice, 10 U.S.C.S. § 800 defines attempts as follows: (a) An act, done with specific intent to commit an offense amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense. The elements of the offense denounced are: (1) an overt act, (2) specific intent, (3) more than mere preparation, (4) tending to effect the commission of the offense, and (5) failure to effect its commission.


At a bar, a woman collapsed in one of appellee's arms. Appellees took the woman home and raped or attempted to rape her. After the woman did not regain consciousness, appellees sought help. It was determined the woman died of acute interstitial myocarditis at the time she collapsed at the bar. Appellees were charged with conspiracy to commit rape, rape, and lewd and lascivious conduct. Appellees were tried by a court-martial. Each appellee was acquitted of rape, but found guilty of attempted rape, conspiracy to commit rape, and lewd and lascivious conduct. The military board of review set aside the guilty findings of attempted rape and conspiracy on the basis that an attempt had to be directed to an object on which it was possible to commit the crime. On appeal, the court reversed and remanded the board’s decision.


Was the fact that the woman was already dead at the time of the commission of the offense a bar to defendants’ conviction for attempted rape?





The court was unable to find any instance where the issue of impossibility, factual or legal, had been an impediment to conviction of criminal attempt in the military system. If it was proven beyond a reasonable doubt that appellees intended to commit rape and committed rape, the fact that the woman was already dead at the time of commission was not a bar to the conviction for attempted rape.

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