United States v. Thomas
13 C.M.A. 278, 13 U.S.C.M.A. 278 (1962)
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Rule of Law:
Under the Uniform Code of Military Justice (UCMJ), legal impossibility is not a defense to a charge of attempt. A conviction for attempt is proper if the accused possesses the specific intent to commit the offense and takes an overt act that tends to effect its commission, even if the crime is impossible to complete due to circumstances unknown to the accused.
Facts:
- Navy airmen Thomas, McClellan, and their companion Abruzzese were at a tavern.
- A woman McClellan was dancing with suddenly collapsed in his arms.
- Believing the woman was merely drunk and unconscious, the three men volunteered to take her home and placed her in McClellan's car.
- While driving, McClellan suggested they have sexual intercourse with the woman, stating she would not know the difference.
- Each of the three men then performed or attempted to perform sexual acts upon the woman.
- Becoming concerned when the woman did not regain consciousness, Thomas and McClellan stopped at a service station for help.
- Police were called and determined the woman was dead.
- An autopsy later revealed the woman had died from a heart condition, likely at the moment she collapsed on the dance floor, before any of the sexual acts occurred.
Procedural Posture:
- Thomas and McClellan were tried by a general court-martial.
- The court-martial acquitted both men of rape but convicted them of attempted rape, conspiracy to commit rape, and lewd and lascivious conduct.
- The officer exercising general court-martial jurisdiction approved the findings and sentences.
- On appeal, a board of review set aside the findings of guilty of attempted rape and conspiracy for both accused, approving only a modified lewd and lascivious conduct charge.
- The Acting Judge Advocate General of the Navy certified two questions to the United States Court of Military Appeals regarding the correctness of the board of review's decision to set aside the attempt and conspiracy convictions.
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Issue:
Does the legal impossibility of completing a crime, such as raping a person who is already dead, preclude a conviction for attempting to commit that crime under the Uniform Code of Military Justice?
Opinions:
Majority - Judge Kilday
No. The legal impossibility of completing a crime does not preclude a conviction for an attempt to commit that crime. Under Article 80 of the UCMJ, the offense of attempt requires only an overt act done with the specific intent to commit an offense. The court explicitly rejects the confusing and antiquated civilian law distinction between 'factual impossibility' and 'legal impossibility.' The statute's plain language and the legislative history indicate Congress intended to adopt a modern approach focusing on the accused's criminal purpose and overt acts, rather than on fortuitous circumstances that prevent the crime's consummation. Since the accused intended to commit rape and took substantial steps toward that goal, the fact that their victim was already dead—a circumstance unknown to them—is not a valid defense to the charge of attempted rape or conspiracy to commit rape.
Concurring in part and dissenting in part - Judge Ferguson
Yes, as to the attempted rape charge. Legal impossibility should preclude a conviction for attempted rape because the law should not punish for an attempt to do something that is not, in fact, a crime. The majority's opinion adopts a novel approach not intended by Congress when it enacted the UCMJ, effectively punishing evil thoughts rather than criminal acts. Rape can only be committed on a living person; therefore, attempting to have intercourse with a corpse cannot constitute attempted rape, as the intended act, if completed, would not have been the crime charged. However, the conviction for conspiracy should stand, as legal impossibility is not a defense to conspiracy, which is complete upon the agreement and an overt act.
Analysis:
This decision solidifies a modern, subjective approach to the law of criminal attempts within military jurisprudence, explicitly rejecting the confusing common-law distinction between 'factual' and 'legal' impossibility. By focusing on the accused's intent and overt acts, the court aligned military law with the principles later articulated in the Model Penal Code. This precedent simplifies the law of attempts for military courts, making it easier to secure convictions against individuals who have demonstrated a clear criminal purpose, regardless of external circumstances that may have made the substantive crime impossible to complete.
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