The Common-Law Rule

The Common-Law Rule

Once an attempt exists, the traditional common-law answer to a later change of heart is short: abandonment is no defense. Under the majority rule, when a defendant acting with the required intent has crossed from preparation into an overt act that constitutes an attempt, stopping afterward does not excuse the attempt.¹ The rule is indifferent to why the defendant stopped. A stricken conscience, fear of the police, and a simple change of plans all receive the same treatment, because the only question is whether the acts had reached the stage of an attempt, and once they have, there can be no exculpatory abandonment.² The rule therefore operates only after the threshold covered in the previous section is met, and before that point motive plays no role in it. On an exam, the common error is to weigh the defendant's reason for stopping, which the common-law rule treats as irrelevant.

The reasoning is structural. An attempt is itself a complete offense, so the moment its two elements are satisfied the crime has been committed, and nothing that happens afterward changes what has already occurred. A person who has carried a criminal effort to the point of punishability can no more wipe out guilt by abandoning the plan than a thief can obliterate a larceny by handing back the stolen item.³ A second reason is practical. A defendant who has been caught has every incentive to claim a sudden repentance, and a defense built on repentance would require the factfinder to decide whether the stopping was sincere, a question on which the only direct evidence is usually the defendant's own account. A flat rule removes that inquiry. Remorse and restitution are not wholly ignored, since they may affect the sentence, but they do not erase liability once the elements are complete.⁴

The Nevada Supreme Court applied the rule in Stewart v. State. Stewart approached a service station operator, brandished a loaded pistol, and demanded all of the operator's money. When two police officers drove into the station, he had the operator hand over two cans of oil as though in a sale, put the pistol in the operator's desk drawer, and tried to leave.⁵ He argued that putting down the gun and walking away showed he had abandoned the crime. The court held that the attempted robbery was complete when he produced the pistol and demanded the money, and it relied on the principle that once intent and overt acts exist, the defendant is guilty of an attempt "whether he abandoned that attempt because of the approach of other persons or because of a change in his intentions due to a stricken conscience."⁶ The reasoning matches that of Staples, where the court inferred that the defendant stopped because his plan had been discovered, yet added that the voluntary or involuntary character of the stopping was not controlling.⁷ Neither defendant had a clean change of heart on the facts, since an outside event lay behind each stopping, so the statements about conscience go beyond what the courts had to decide. Those statements nonetheless define the rule that later courts and exam answers repeat.

How much room a defendant has to stop depends partly on where the jurisdiction draws the attempt line. If attempt requires the defendant to come very close to completion, little time remains in which to abandon: a defendant who becomes guilty only after pulling the trigger, the last act within his control, has a nanosecond in which to change course.⁸ That feature softens the rule, because stricter tests keep attempt liability from attaching until the defendant is nearly finished. The rule also bites less often than its sweeping statements suggest. Many of the decisions that deny the defense in broad terms are assault cases, in which something in the way of a completed offense had already occurred, and others involve defendants who stopped only because something outside their control interrupted them.⁹

The rule has critics, and courts acknowledge a real divergence of opinion on the question. The Maryland decision in Wiley v. State, which treats voluntary abandonment after an overt act as no defense because the crime has already been committed, represents one side of that divergence.¹⁰ Critics respond that a genuine change of heart suggests the actor is not dangerous and that a defense would encourage people who have gone too far to stop, while defenders of the traditional rule worry that a defense might embolden people to take first steps, a risk the critics regard as slight.¹¹ The next section takes up the Model Penal Code's answer to that debate. Statutory wording does not alter the common-law result on its own. Many attempt statutes describe a defendant who fails or is "prevented or intercepted in the perpetration" of the crime, language that might be read to protect someone who stops voluntarily, since no outside force intercepts that person. Staples nonetheless denied any abandonment defense under a California statute containing that language.¹² A Wisconsin decision, State v. Stewart, reached the same result by reasoning that if the legislature had intended voluntary abandonment to be a defense, it would have expressly said so.¹³