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March 28, 1973

Frank HAIR

Flannery, District Judge.

The opinion of the court was delivered by: FLANNERY

FLANNERY, District Judge.

 Officer Blackburn then secured a new color television which he gave to the informer with instructions to sell it to the defendant and to advise the defendant that it was a stolen set. The informer proceeded to follow the Officer's directions and sold the television set to the defendant at his grocery store, advising him that it had been stolen.

 The police then applied for a search warrant for the defendant's grocery store known as the 24-hour Store, located at 1642 Vermont Avenue, N.W., and in an affidavit accompanying the application for the search warrant related the background information which the informer had furnished to them concerning the defendant's illegal activities, and relating that the informer within the past 48 hours had sold the color television set to the defendant and had represented to the defendant that the set had been illegally purchased. A Judge of the Superior Court for the District of Columbia then issued a search warrant for the premises of 1642 Vermont Avenue, N.W. on the grounds that the affidavit established probable cause to believe that "certain electronic equipment, including a television set, which is attempted stolen property in violation of D.C. Code 2205" was located within the premises.

 Thereafter, the police executed the search warrant and seized a substantial amount of stolen property in addition to the aforesaid color television set. A second search warrant based on essentially the same information contained in the first affidavit plus information obtained from the Officer's observation after gaining access to the premises, resulted in further seizures of stolen property. The core question in this case is whether the defendant committed a crime when he received the color television set from the informer with intent to defraud, believing the property to be stolen, when, in fact, the property had not been stolen. The government contends that the defendant had committed the crime of attempted receiving stolen property and that the applicable statutes, 22 D.C. Code §§ 22-103 *fn1" and 22-2205 *fn2" permit the construction that an attempt to receive stolen property is a crime even though the property is not stolen. The defendant on the other hand asserts the defense of impossibility, maintaining that the act of attempted or actual receipt of property which was not, in fact, stolen is not a crime in the District of Columbia.

 There is no statutory or case law in the District of Columbia dealing with this question, but the subject has been discussed in other jurisdictions. In People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906), the Court of Appeals for New York, held that where the property was not stolen, there can be no attempted receipt of stolen property. In Jaffe a clerk stole goods from his employer under an agreement to sell them to the accused, but before delivery of the goods, the theft was discovered and the goods were recovered. Later, the employer redelivered the goods to the clerk to sell to the accused who purchased them for about half of their value believing them to be stolen. The court held that the goods had lost their character as stolen goods at the time the defendant had purchased them and that his criminal intent was insufficient to sustain a conviction for an attempt to receive stolen property knowing it to have been stolen. In People v. Rollino, 37 Misc. 2d 14, 233 N.Y.S. 2d 580 (1962), the Supreme Court of New York followed the holding in the Jaffe case and found that an unsuccessful attempt to do that which is not a crime, when effectuated, cannot be held to be an attempt to commit the crime specified. Since the completed act did not and could not, as a matter of law, constitute larceny, the court held that it was legally impossible for the defendant to be guilty of attempted larceny. The rationale of the Jaffe case has been followed in other jurisdictions. In the case of Booth v. State, 398 P. 2d 863 (Okla. App. 1965), the Court of Criminal Appeals of Oklahoma elected to follow the New York rule. See also State v. Taylor, 345 Mo. 325, 133 S.W. 2d 336 (1939); State v. Porter, 125 Mont. 503, 242 P. 2d 984 (1952).

 The California courts have held that there may be the crime of attempt to receive stolen property even though the property is not stolen. See e.g., People v. Parker, 217 Cal. App. 2d 422, 31 Cal. Rptr. 716 (1963); People v. Meyers, 213 Cal. App. 2d 518, 28 Cal. Rptr. 753 (1963); People v. Rojas, 55 Cal. 2d 252, 10 Cal. Rptr. 465, 358 P. 2d 921 (1961); People v. Camodeca, 52 Cal. 2d 142, 338 P. 2d 903 (1959); Faustina v. Superior Court, 174 Cal. App. 2d 830, 345 P. 2d 543 (1959); People v. Siu, 126 Cal. App. 2d 41, 271 P. 2d 575 (1954). In Parker the defendant was charged with attempted receipt of stolen confidential phone directories from the Pacific Telephone & Telegraph Company. Defendant argued that since the directories were delivered by the company's special agent to the district attorney's investigator who delivered them to the defendant, the directories were not stolen and consequently there could be no attempted receipt of stolen property. The court relied on People v. Siu, *fn3" supra, and held that where a person formulates the intent to commit a crime and then proceeds to do something more which in the usual course of natural events will result in the commission of the crime, the attempt to commit that crime is complete even though the intended crime itself could not have been completed due to some extrinsic fact unknown to the person who intended it.

 In Rojas and Faustina, supra, stolen goods were recovered by police, unknown to the defendants, whereupon the police delivered them to defendants who received them believing them to be stolen. Both cases rejected Jaffe, distinguishing between what a person actually does and what he intends to do. The courts found that the fact that a person is mistaken regarding the external realities does not alter his intention, but simply makes it impossible to effectuate that intention. The court in Meyers, supra, echoed the findings in Rojas and Faustina, holding that a person will not be guilty of an attempt to commit a crime only when the results intended by the person, if they happened as he envisioned, would still not be a crime.

 Other jurisdictions adhere to the California position that a person be charged with attempt to commit a crime even though the crime itself cannot be fully consummated due to an extrinsic fact unbeknown to that person. See, e.g., State v. Moretti, 52 N.J. 182, 244 A. 2d 499 (1968); People v. Huff, 339 Ill. 328, 171 N.E. 261 (1930). (Both cases held that a man could be convicted of attempted abortion even though the woman, an undercover officer, was not pregnant -- pregnancy being a required element for the substantive crime of abortion).

 Added to the lack of uniformity among other jurisdictions on this issue is the morass of commentary surrounding the defense of impossibility in attempt crimes. Many courts compartmentalize fact patterns into the category of "factual impossibility" and legal impossibility. See, e.g., cases summarized in Rollino, supra, 37 Misc. 2d 214, 233 N.Y.S. at 582. See also Wechesler, Jones and Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the A.L.I.: Attempt, Solicitation, and Conspiracy, 61 Colum. L. Rev. 571, 578-85 (1961). This court agrees with the position taken by the court in Moretti, supra, that the defense is "so fraught with intricacies and artificial distinctions that [it] has little value as an analytical method for reaching substantial justice". However, this court respectfully disagrees with the Moretti court's position that the place to remedy the problem is in the courts. Rather, this court believes that the issue must be resolved through legislation. See Rollino, supra. The American Law Institute has proposed a statute to cure a situation like the one presented in this case. Its Model Penal Code § 5.01 (proposed official draft, May 4, 1962) provides:

"(1) Definition of attempt. 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, he:
"(a) purposely engages in conduct which 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 ...

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