Some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, intent to complete it renders the crime so probable that the act will be a misdemeanor although there is still a locus penitentioe in the need of a further exertion of the will to complete the crime. The degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite.
Defendant prepared flammables so that, when lighted, a building and its contents would burn. Defendant offered to pay an employee to ignite defendant's contraption while defendant was outside the vicinity. The employee refused. Defendant and employee later drove to the building together, but defendant changed his mind before they reached the premises. Defendant was indicted for the attempted burning with intent to injure the insurers of the building and its contents. The court granted defendant's directed verdict motion, holding that preparation acts without present intent to commit the substantive arson offense were not punishable under the attempt statute and that solicitation was not able to be raised as an overt act at trial because it was not alleged in the indictment.
Can a defendant be held guilty of attempt without a present intention to complete the crime?
The court granted defendant's directed verdict motion, holding that based on the indictment's allegations, defendant's acts were not close enough to the accomplishment of the substantive offense of arson for punishment under the attempt statute. The court held that defendant's mere acts of preparation without the present intent to set the fire were too remote, and that by failing to allege in the indictment that the solicitation was an overt act, such an allegation could not be raised at trial.