State v. Davis

319 Mo. 1222, 6 S.W.2d 609 (1928)



Mo. Rev. Stat. § 3683 (1919) in proscribing an attempt to commit an offense prohibited by law, is to be interpreted as providing that the doing of any act toward the commission of such offense shall constitute an attempt. The statute follows and coincides with common law in that respect. There must be an overt act before an attempt exists and the overt act must move directly in consummation of the crime, in other words, toward the commission of the offense.


A man entered into an agreement with an undercover police officer for the murder of his lover's spouse. He personally selected the undercover officer to kill the sposue, that he delivered a drawing and two photographs of the spouse to the officer, and he paid the officer a portion of the agreed consideration. The spouse however was not killed and a case was filed against the mastermind instead. A Circuit Court in Missouri convicted the mastermind of attempted murder in the first degree. The case was appealed to the Supreme Court of Missouri.


Was a conviction for attempted murder proper?




The supreme court reversed the conviction holding that although defendant had the intent to commit the crime and failed to consummate its commission, he did not perform an overt act toward the commission of the crime. Thus all of the elements of the crime of attempt were not established. At trial, it was established that all the acts of the mastermind were mere acts of preparation and failed to lead directly or proximately to the consummation of the intended crime, defendant did not commit an overt act necessary to properly support a conviction for attempted murder.

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