GUN AT THE VICTIM AND DELIBERATELY PULLS THE TRIGGER. THE ACCUSED DID NOT
KNOW THE GUN HAD NO FIRING PIN AND WOULD NOT FIRE. IS THIS AN ATTEMPT?
ANSWER: YES. THE PERPETRATOR INTENDED TO COMMIT THE CRIME WITH A WEAPON
HE BELIEVED WOULD FIRE AND WENT BEYOND MERE PREPARATION. AN ATTEMPT IS
A FRUSTRATED EFFORT TO COMMIT A CRIME WHICH TENDS, EVEN THOUGH FAILING,
TO EFFECT ITS COMMISSION. U.S. V. POWELL, 24 MJ 603 (AFCMR 1987).
QUESTION: SUPPOSE THE ACCUSED CONSCIOUSLY AND INTENTIONALLY POSSESSED A
SUBSTANCE HE BELIEVED TO BE LSD, BUT IT WAS NOT. HAS HE COMMITTED A CRIME?
ANSWER: ATTEMPTED POSSESSION OF LSD. U.S. V. LAFONTANT, 16 MJ 236 (CMA 1983).
QUESTION: WHAT IF HE USES IT, THINKING IT IS LSD?
ANSWER: THE CRIME IS ATTEMPTED USE. THIS CRIME IS NOT DEPENDENT UPON
WHETHER OR NOT THE SUBSTANCE REALLY IS LSD; RATHER, IT DEPENDS UPON
WHETHER HE "BELIEVED THE SUBSTANCE HE CONSUMED WAS LSD." U.S. V.
HENDERSON, 20 MJ 87 (CMA 1985).
QUESTION: WHAT IF HE SELLS THE SUBSTANCE, BELIEVING IT TO BE LSD?
ANSWER: THE CRIME IS ATTEMPTED DISTRIBUTION. U.S. V. JACKSON, 12 MJ 905
(NMCMR, 1982). IT IS HIS INTENT TO TRANSFER WHICH IS IMPORTANT, EVEN IF THE
SUBSTANCE TURNS OUT TO BE DIET PILLS. U.S. V. NEWAK, 15 MJ 541 (AFCMR 1982). IN
OTHER WORDS, DID THE ACCUSED BELIEVE HE WAS DISTRIBUTING LSD? U.S. V.
MADLEY, 14 MJ 651 (ACMR 1982).
QUESTION: WHAT IF THE ACCUSED SELLS A SUBSTANCE WHICH HE CLAIMS TO BE
HEROIN, BUT KNOWS IT IS ONLY SUGAR?
ANSWER: THERE IS NO INTENT TO COMMIT THE DISTRIBUTION OF HEROIN. SO, THERE
IS NO ATTEMPT HERE. U.S. V. COLLIER, 3 MJ 932 (ACMR 1977).
QUESTION: WHAT CRIME IS THIS?
ANSWER: LARCENY BY FRAUD OF THE MONEY PAID FOR THE HEROIN WHICH TURNS
OUT TO BE SUGAR U.S. V. ASKEW, 23 MJ 818 (NMCMR 1986).
QUESTION: WHAT IF A PERSON REACHES INTO SOMEONE'S POCKET OR A CASH
DRAWER IN ORDER TO STEAL MONEY. HOWEVER, THE POCKET OR DRAWER TURNS
OUT TO BE EMPTY? IS THIS A CRIME?
ANSWER: YES. THIS IS ATTEMPTED LARCENY. THE MERE FACT THAT THE CRIMINAL
EFFORT IS DESTINED TO FAIL BECAUSE OF SOME REASON UNKNOWN TO THE
PERPETRATOR AT THE TIME DOES NOT PREVENT A FINDING OF CRIMINAL LIABILITY
FOR ATTEMPT.
In the case of United States v. Thomas, 32 CMR 278 (CMA 1962) the accused and two of his
companions committed sexual intercourse with a female, whom they believed to be unconscious, under
circumstances amounting to rape. In
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