Under § 5.01 of the 1962 Proposed Official Draft of the ALI Model Penal Code, a person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, a person: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
Defendant was charged with attempted knowingly and maliciously to dissuade a police officer from giving testimony before a grand jury after defendant cased the officer's home and was found in possession of a can of gasoline; a rag; matches; an aluminum baseball bat; a wire coat hanger that had been stretched out so that it could be used to open a car door; and a note that implied he was getting even with the officer. On appeal, the court afforded defendant an opportunity to present his abandonment defense to the trial judge within ten days of the filing of the court's opinion. If this evidentiary hearing was not commenced within 10 days of the filing date of this opinion, an order would be entered that affirmed the judgment of conviction.
Did defendant's conduct constitute a criminal attempt?
The court initially reviewed the evolution of the law of criminal attempt, and then adopted § 5.01 of the ALI's Model Penal Code, Proposed Official Draft 1962, as the court's test to distinguish between preparation and attempt of a criminal offense. The court then determined that the evidence supported that defendant was guilty of attempt because he had taken substantial steps to effectuate his effort to intimidate the officer. However, the court determined that the trial judge improperly rejected defendant's abandonment defense because § 5.01 allowed such a defense.