People v. Miller

2 Cal. 2d 527, 42 P.2d 308 (1935)



Where the crime remains unfinished and the defendant is charged with attempt, two important elements are essential: A specific intent to commit the crime and a direct ineffectual act done towards its commission. Mere intention to commit a specified crime does not amount to an attempt. Preparation alone is not sufficient. Something more is required than mere menaces, preparation or planning. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. Therefore, the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. There must be some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter. If the preparation is not of itself indictable, or will not of itself, if uninterrupted extraneously, result in crime.


Defendant threatened to kill a man he claimed was annoying his wife. Defendant complained that the constable offered no help. Later that day, defendant entered a field where the victim was working. Defendant held a loaded rifle. He walked toward the victim as well as the constable. The victim fled. Defendant never raised the rifle. The constable approached defendant and took the weapon without any resistance. The information stated that on a specified date defendant attempted to murder the victim. Defendant was convicted in the Superior Court of Mendocino County (California) of attempt to commit murder. The trial court denied defendant's motion for a new trial. Defendant appealed. The court reversed the conviction.


Did the acts of the defendant legally constitute the offense of attempt to commit murder?




The court noted that attempted murder required a specific intent and an overt act towards its commission. The court held that the information provided the notice required by Cal. Penal Code § 952. The court found no evidence of an overt act. Up to the time the rifle was taken, it was uncertain whether defendant sought to kill the victim or demand the constable arrest the victim. The jury charge that guilty intent could have been presumed from an unlawful act was prejudicial error where intent was an element that had to have been proved. Likewise, it was error to charge the jury that intent was proven if an act was begun that would have resulted in murder if not stopped.

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