determining the exact nature of the necessary act. Article 80 describes the act as one which goes beyond
preparatory steps, is a direct movement toward the commission of the offense, and need not be the last
act essential to the consummation of the offense. Part IV, MCM, 1984, Article 80, para c(2). This
question is one of fact which must be determined in each case.
In United States v. Sampson, 7 MJ 513 (ACMR 1979), the acts of breaking and entering the
victim's quarters while nude, approaching the nude female occupant, and reaching in the direction of the
victim's neck and shoulder were held to be sufficient acts for attempted rape.
In U.S. v. St. Fort, 26 MJ 764 (ACMR 1988), a husband "returned home unexpectedly one
night to discover his wife clad only in a bathrobe and appellant hiding naked in a closet. The appellant
fled into the street." The court held that he "intended to engage in sexual intercourse with a woman not
his wife and that he had taken substantial steps beyond mere preparation towards accomplishing this
offense." He was, then, guilty of attempted adultery.
The basic difficulty in determining whether there has been an attempted crime is determining
whether there has been an act sufficient to satisfy the MCM requirement that the act needs to go beyond
"mere preparation." Therefore, it is necessary to examine this point more closely.
QUESTION: WHAT IS "MERE PREPARATION?"
ANSWER: IT "CONSISTS OF DEVISING OR ARRANGING THE MEANS OR MEASURES
NECESSARY FOR THE COMMISSION OF THE OFFENSE." PART IV, MCM 1984, PARA 4(c) (2).
THE PURPOSE OF THIS REQUIREMENT OF AN ACT BEYOND MERE PREPARATION IS SO
THAT THERE IS NO QUESTION THAT THE INDIVIDUAL, IN FACT, INTENDED TO CARRY
OUT THE ATTEMPTED CRIME. WITH THIS IN MIND, THE ACT SHOULD BE ONE WHICH
CLEARLY SHOWS THE PERPETRATOR'S INTENT TO COMMIT THE CRIME, BUT IT NEED
NOT BE THE LAST ACT PRIOR TO THE SUCCESSFUL COMMISSION OF THE PLANNED
OFFENSE. THAT IS, THE INDIVIDUAL NEED NOT PULL THE TRIGGER IN ORDER TO BE
GUILTY OF ATTEMPTED MURDER. HE CAN BE GUILTY BY POINTING A LOADED PISTOL
WITH THE REQUISITE INTENT.
QUESTION: WE RECEIVE AN INFORMANT'S TIP THAT SPC TORCH PLANS TO BURN DOWN
THE PX. THE MP FOLLOW TORCH TO A GROCERY STORE WHERE HE BUYS A PACK OF
MATCHES. CAN WE APPREHEND SPC TORCH FOR ATTEMPTED ARSON?
ANSWER: NO. THIS IS MERE PREPARATION.
QUESTION: SPC TORCH WALKS UP TO THE PX AND TOUCHES A BURNING MATCH TO
THE CORNER OF THE STRUCTURE. IS THIS AN ATTEMPTED ARSON?
ANSWER: YES. SPC TORCH HAS GONE BEYOND MERE PREPARATION EVEN IF NO FIRE
RESULTS.
QUESTION: CAN ONE BE CONVICTED OF AN ATTEMPT EVEN THOUGH IT WAS
PHYSICALLY IMPOSSIBLE FOR THE CRIME TO BE COMMITTED? FOR EXAMPLE, THE
ACCUSED POINTS A
MP1019
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