Committee Comments

Criminal attempt is a relatively recent development of the common law, traceable to the 1784 decision of the King's Bench in the case of Rex v. Scofield, Cald. 397 (1784). The defendant in that case was tried for arson. The defendant had placed a lighted candle and combustible material in a house in which he was a tenant, with the intent to set fire to it. However, no proof of burning was adduced. The court determined that completion of the criminal act was not required to constitute criminality if the attempt was committed with the necessary intent.

The motivating purpose for criminalizing attempts is not to deter the proliferation of completed offenses, but rather to subject to criminal sanctions those individuals who have, by their conduct, sufficiently manifested their dangerousness to society. W. LaFave & A. Scott, Criminal Law § 59, at 423-38 (1972).

In Oklahoma, it is settled beyond argument that an attempt, as defined by section 42, requires proof of three elements: (1) intent to commit a crime; (2) performance of some perpetrating act toward the commission of the crime; and, (3) failure to consummate its commission. Weimer v. State, 556 P.2d 1020 (Okl. Cr. 1976); Kidd v. State, 462 P.2d 281 (Okl. Cr. 1969); Ervin v. State, 351 P.2d 401 (Okl. Cr. 1960); Place v. State, 300 P.2d 666 (Okl. Cr. 1956); State v. Thomason, 23 Okl. Cr. 104, 212 P. 1026 (1923).

The requisite intent implies a specific purpose to accomplish the consummation of the crime, and must be alleged and proved by the State. Carter v. State, 309 P.2d 737 (Okl. Cr. 1957); Vandiver v. State, 97 Okl. Cr. 217, 261 P.2d 617 (1953), overruled on other grounds, Parker v. State, 917 P.2d 980, 986 n.4 (Okl.Cr. 1996); Turman v. State, 75 Okl. Cr. 405, 132 P.2d 347 (1942); Dunbar v. State, 75 Okl. Cr. 275, 131 P.2d 116 (1942), overruled on other grounds, Parker v. State, 917 P.2d 980, 986 n.4 (Okl.Cr. 1996); Temple v. State, 71 Okl. Cr. 301, 111 P.2d 524 (1941). The requisite specific intent may be inferred from circumstances surrounding the defendant's conduct. Weimer v. State, 556 P.2d 1020 (Okl. Cr. 1976); Place v. State, 300 P.2d 666 (Okl. Cr. 1956).

Evil, socially undesirable thoughts alone, however, do not constitute a criminal offense; criminalization occurs only when the reprehensible mens rea of the defendant is coupled with discernible behavior. The Court of Criminal Appeals addressed the issue of the nature of the act necessary in order to suffice as fulfillment of the actus reus in an early case, Ex parte Turner, 3 Okl. Cr. 168, 104 P. 1071 (1909). The court defined preparation to engage in criminal conduct in the language set forth in the instruction submitted, and distinguished a perpetrating act performed in "commencement of the consummation" of the intended crime, id. at 173, 104 P., at 1074, as follows:

Id. at 172, 104 P. at 1071 (1909). See also Weimer v. State, 556 P.2d 1020 (Okl. Cr. 1976) (mixing chemicals sufficient to constitute a perpetrating act in prosecution of attempt to manufacture controlled dangerous substance); Turman v. State, 75 Okl. Cr. 405, 132 P.2d 347 (1942) (breaking and removing glass of a store window sufficient to sustain a conviction for attempted burglary in the second degree); State v. Thomason, 23 Okl. Cr. 104, 212 P. 1026 (1923) (acquiring a boiler and stove, as well as manufacturing 40 gallons of mash, which was ready to be distilled into whiskey, sufficient to constitute a perpetrating act in prosecution for attempt to manufacture whiskey).