Nonsense. The fact that he thought it was real is entirely relevant. From his viewpoint, he was attempting to kill a real moose. You could also attempt to photograph a ghost, regardless of the reality of a ghost.
From Merriam Webster:
Except that it may be against the law to even make the attempt.
From the Nova Scotia Wildlife Act
Bolding mine.
sigh
What is “attempt”?
Criminal liability exists when the actor has a guilty state of mind (mens rea) and commits a guilty act (actus reus).
Attempt occurs when the actor starts but fails to complete the actus reus but has the requisite mens rea.
This case raises the defense of impossibility. At common law, there is a distinction between legal impossibility and factual impossibility.
Legal impossibility:
[ul]
[li]When the events the actor sets in motion, even if completed exactly as he desires, do not constitute a crime [/li][li]Example: Failing to report a $5,000 gift as income on your taxes. You may believe you’re committing tax evasion, but the law permits you to have up to a $10,000 gift with no tax liability[/li][li]A complete defense against the crime of attempt[/li][/ul]
Factual impossibility:
[ul]
[li]The ultimate goal of the actor is forbidden by criminal law, but a circumstance unknown to the actor prevents him from completing that goal[/li][li]Example: pickpocket tries to steal a wallet from a pocket, but there is no wallet present[/li][li]Not a defense against the crime of attempt[/li][/ul]
Hybrid impossibility:
[ul]
[li]The ultimate goal of the actor is forbidden by criminal law, but a factual mistake exists as to the state of of affairs[/li][li]Example: shooting a corpse is attempted murder if the shooter believed his intended victim was simply asleep [/li][li]Not a defense against the crime of attempt[/li][/ul]
The example we’re discussing is an example of “hybrid impossibility.” The mere fact that the hunter was mistaken about the factual nature of the robot moose certainly means he has a defense against the completed crime of killing an endangered animal, but he has no defense against the crime of ATTEMPT.
As Professor LaFave notes:
Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 11.5(a)(2), at 233 (2d ed. 2003).
I’m not sure what sort of “proof” you want for this proposition.
In Virginia, Parham v. Commonwealth, 2 Va. App. 633, 636, 347 S.E.2d 172,
173-74 (1986) (citing United States v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976)) makes this point very clearly. Unfortunately, I don’t think it’s on-line.
Here is a good discussion of the issue from Oklahoma’s jury instructions. Not available on-line is Attempt and the Impossibility Defense - Hasnas, Once More Unto the Breach: The Inherent Liberalism of the Criminal Law and the Liability for Attempting the Impossible Hastings Law Journal, Vol. 54, No. 1 (2002).
Do you need additional proof?
I’m not disputing the actual fact that the guy attempted to kill a real moose. I’m questioning the LEGAL facet of it. I personally don’t think it is within the realm of law to prosecute someone for a crime simply because the person who did something was stupid, and though he was doing something else. I’m sorry. A man who attacks a mannequin should not be charged with assault of a human being. He didn’t commit assault, he hit a mannequin!
This case is very similar to attempted murder.
Now, I’m not a lawyer, so if a lawyer can correct me here, fine. I do believe in attempted murder there has to be a reasonable chance for murder to have occurred in the attempt. Otherwise it’s assault. Let’s say I’m a moron who thinks that a great way to kill someone is to hook up a AA battery and put two wires to someone’s head. Obviously, that has no chance whatsoever of actually killing the person, but me as the moron thinks it will…so I sneak up from behind, grab someone’s arms, and push the wires onto their head. Did I just commit attempted murder? UM…no.
In this case, while the guy may have had every intention of actually killing a moose, the fact is, there was absolutely no danger to any moose, at any time during the mans actions. As such, I don’t believe he is guilty of attempting to kill a moose. There is no reasonable expectation of moose death from the circumstances that occurred. You’re missing the key component: a live moose to kill. The guy is guilty of firearms violations, and of being an idiot. Unless there is a special provision in the law that ‘shooting things that look like endangered species is punishable the same as if it were a real animal’ I refuse to believe that he is guilty under THAT LAW. Other laws, yes, but not that one. I believe a good lawyer would have won that case and at least had the charges changed to something that he DID commit.
Thank you, Bricker…you’ve given me the lawyer speak I requested in my previous post. I acknowledge that legal precedent is there. I disagree with it from a personal perspective, and think it should be a different crime, but I acknowledge your argument as correct.
Absolutely. He is unquestionably guilty of the attempted killing of an endangered species. The *fact * of the matter is, that this would clearly be illegal according to the Nova Scotia Wildlife Act, and probably in a lot of other places too. The difficulty in this case would be establishing whether or not he thought he was shooting an endangered species - it would hinge on his own admission, unlike the case of the robot moose. And I have to seriously question your understanding of the legal system.
The thing is, *actually *killing an endangered species is against the law, and *attempting *to kill an endangered species is *also *against the law. So if you killed a Red-billed Duck thinking it was a Mallard you would be guilty; and you also would be guilty if you killed a Mallard thinking it was a Red-billed Duck (if that could be proved).
No, I’m pretty sure you’re going to do time for that.
But if the cop doesn’t have any drugs, how can you have solicited their sale? Same thing with the OP. He’s not charged with killing an endangered animal, he’s charged with attempting to kill an endangerd animal.
Again, the same thing: no actual minor is involved, so, by your standard, how can he be charged with soliciting a minor, when he never actually spoke to a minor?
And the attempt to kill an endangered animal is also against the law, which is what this guy’s been charged with.
It is a different law. There’s actually killing a moose, and there’s trying to kill a moose. This guy is guilty of the second crime.
I have acknowledge that I was wrong on the legal precedent on ‘attempt.’ I humbly bow.
Two things. On the underage sex thing: I should have worded it differently. Soliciting someone for underage sex is illegal. You are expecting an act by an underage person, and are soliciting that. If you ask a woman “how old are you?” and she says “15” but she’s really 18…I guess by the legal definition Bricker stated, you’d be guilty. I do not believe you would (or at the very least SHOULD) be guilty if you assumed she was 15, but she was really 18, and then she had sex with you. That just makes you a bad guesser of age (and a bit sick and stupid).
I have no doubt that breaking into your house when no one is there, and shooting a pumpkin on the table would put you in jail. You’ve got breaking and entering, shooting a firearm, etc. However, I think it would be nearly impossible to convict someone of attempted murder in that case unless they flat out said “I shot the pumpkin thinking it was your head.” If no one was in the house, there would be no witnesses to it.
But, anyway, I was wrong…
I do think it’s silly to have different crimes where the only differentiation between the two crimes (or crime and no crime) is what the perpetrator was thinking at the time. I am strongly against hate crime legislation. If you beat someone up, the penalties should be stiff regardless of your reasons for doing it…I think hate crimes make it actually seem the opposite of what they intend…they make some ‘reasons for assault / rape / etc’ more valid than others. In my mind, there are no valid reasons for those crimes, and they all should be punished the same. The only time, in my opinion, where the mental state of the perpetrator should be taken into account is in cases of mental illness.
In general, the attempt to commit any crime is also a crime.
In Virgina, to take an example in a jurisdiction in which I’m licensed to practice:
[ul]
[li]An attempt to commit any offense which is punishable with death is a Class 2 felony[/li][li]An attempt to commit any crime punishable by life imprisonment or a term of years in excess of twenty years is a Class 4 felony[/li][li]An attempt to commit any crime punishable by twenty years’ imprisonment is a a Class 5 felony[/li][li]An attempt to commit any crime punishable by less than twenty years’ imprisonment is a Class 6 felony[/li][li]An attempt to commit an offense which is a misdemeanor is punishable by the same punishment prescribed for the offense the commission of which was the object of the attempt[/li][/ul]
Bricker, that was an interesting post and I accept what you say. But I don’t fully understand the distinction between factual and hybrid impossibility, given that you explain the moose scenario as hybrid. You gave the following as an example of factual impossibility:
Couldn’t one say that the man tried to shoot a moose, but there was no moose present?
Why not? You know the guy wants to commit a crime. You know he’s tried to commit a crime. Why not arrest him now, when you know he wants to break the law but hasn’t been succesful, instead of waiting until he succesfully porks a little girl?
Okay, let’s make it a little less ridiculous. You want to kill me, so you drive up to my house and empty a gun at it, then drive away. Turns out, I wasn’t even home. Attempted murder, or not? There was no one in the building, and (for the sake of this argument) no neighbors close enough to have been shot by mistake. Attempted murder, or not?
So, you think intent should not factor into criminal prosecution? If I run you over in my car and kill you, I should be punished the same if I did it deliberately as I would if I just didn’t see you crossing the street?
That’s an entirely unrelated debate. Let’s not get into that here, it’s been done to death already in other threads.
Three men, Abe, Bill, and Chuck point a gun and fire. In each case, a bullet leaves the gun and strikes a man in the head, killing him.
Abe plays a cop on the TV series True Justice. He was shooting a scene in which his character fires a gun at a fleeing suspect. Due to an alcoholic prop man’s negligence, a real bullet instead of a blank round is placed in Abe’s gun just before the scene is filmed.
Bill was aiming his gun at his next-door neighbor, who he has long suspected of having an affair with his wife. Unfortunately, his aim is terrible, and he hits the next-door neighbor’s visiting brother by accident.
Chuck and his daughter was being robbed at gunpoint when the robber announced that he was taking Chuck’s daughter away “for a little fun.” Chuck drew his own gun and shot the robber to defend his daughter.
Since we should not consider what anyone is thinking to determine the crime at hand, I assume you’re OK with punishing Abe, Bill, and Chuck equally?
After the tanker truck that he blew up (after the shooting) burned all the flesh off, the moose looked like this!
And it’s unstoppable.
And it’s still out there.
Subspecies. Thanks for the point of clarification. And your statement which I quoted is reflective of what the information given ot me by the guide (Randy) from the Tuckmore Lodge in Mainbrook, Newfoundland. He told me that the moose were non-native and the first eight or so introduced were thought to have died off. It was only after another type of moose had been introduced and thrived, that a few members of the original kind were found. If I remember correctly, he said the original imports were uniformly brown; the moose of the second introduction had a black face, or a black band on it. Or the other way 'round. Something like that.
I agree that the line isn’t always crystal clear. It’s not critical, however, since both factual and hybrid impossibility are no defense to the charge of attempt.
But let’s see if I can show you the distinction. In factual impossibility, the intended goal is criminal, but some circumstance unknown to the accused prevents him from completing the goal. No wallet present where the pickpocket tried to reach into a pocket and get it. This is different from a situation in which he tried to lift the wallet and the wallet’s owner felt the pickpocket’s hand and moved away. When the goal could possibly have ocurred, but doesn’t, that’s a classic attempt - no impossibility exists. When the goal doesn’t occur because some circumstance unknown to the accused prevents it from possibly happening, it’s factual impossibility.
In hybrid impossibility, what prevents the crime from happening is not an event or circumstance, but a mistake of fact, a wrong belief, by the accused. Again, the classic example is the man who shoots a corpse, believing the corpse to be a sleeping victim.
Now, you could look at those cases and say, “Why isn’t the wallet a hybrid case? The mistake of fact was that there was no wallet in the pocket.”
No, and here’s an illustration of the difference: consider the thief that steals a fake Rolex. Now, this is certainly a completed crime – it’s a crime to steal anything, even though it’s something of minimal value. So he’s guilty of the completed crime of theft. Theft of something of such little value is a misdemeanor, let’s say. But he ATTEMPTED to steal something of great value, and that might make this crime into a felony. The mistake was one of fact: there was a watch there; he just misjudged its value. If there was no watch there at all, then what stops the felony crime is a CIRCUMSTANCE. If the watch is there, but fake, what stops the felony crime is a MISTAKE OF FACT.
Maybe the robotic moose asked for it.
Dressing up in high heels and a low cut blouse.
The tart.
I, for one, welcome our Robotic Moose Overlords.
You guys are slackers.
You folks can hammer and tweak the finer points all you like, but here in Indiana, everybody who tried to kill the DNR’s fake deer lost in court. If the hunter knew it was a fake, then he knew there were rangers watching him. Why on earth would he leap onto the meat hook, knowing that?
With a moose? Could be a bit risky.
A friend of mine and his brother were chased for an afternoon down the length of a long lake in Quetico by a swimming amorous moose. Fortunately, the moose eventually gave up.
I have a question, and I hope I am not getting too far from the subject matter.
A man calls 911 and reports that his wife has been shot. Police arrives and he declares that he showed up from work and his wife had been shot and that she told him that a man dressed in a ninja custome shot her.
The autopsy reveals that the wife had died of a massive heart attack *before *having been shot. Which also goes against the husband’s statement that a ninja shot her. Further investigation proves that the guy had good reasons to wish her death and that he was actuall the one that shot her. What is he accused of? Murder or attemted murder?
And most importantly, has Law and Order already have an episode like this?
I’m not saying there shouldn’t be differences in punishment…I’m saying there shouldn’t be different classifications of a crime if the physical circumstances are the same. A jury should ALWAYS be free to take any extenuating circumstances (self defense, crime of passion, etc) into account. I also don’t have a problem with laws and punishment based on intent (ie, they wanted to cause harm or not).
I DO have a problem with this scenario:
Person beats the crap out of a man. Prosecution believes it’s because the man is a racist. Therefore, the mandatory jail term is between 10 and 30 years.
Same situation, but the thug beat up the other man because the other man called him a jerk. Therefore, mandatory jail term is between 3 and 5 years.
It’s a slippery slope when punishment differs greatly simply because you think you know what the perp ‘thought’ at the time. I’m talking in cases where intent to harm is clear, but the punishment differs because of the REASON there is intent to harm. Again, any extenuating circumstances and leeway on punishment is the job for each and every jury. I’m agains the mandatory difference in the severity of a crime or punishment because of motivation. However, this is a matter for great debates.
Obviously, there is physical evidence for the scenarios you encountered, and there is a big difference between shooting a man accidentally because a real bullet instead of a blank was put in your gun, and someone actively trying to kill someone. In one, the shooter commits a crime, in another the person who put the real bullet in committed the crime. Same with self-defense: if it can be proven, no crime was committed, so it’s not an issue. There is a difference between this and intent to commit murder.
And no, as much as I’d like to see the pervert who wants underage sex locked away, I don’t think he should be arrested and put in jail just because he wishes his latest conquest was younger. I think that flies in the face of our entire justice system.
Also - on the drive by shooting scenario…look I am not questioning your pumkin scenario as fact that the guy would be attempting to kill someone. I’m saying it would never hold up in court, because there’s no evidence that he tried to kill you. He could have originally gone in thinking he wanted to kill you…changed his mind, then got so mad he fired into a pumpkin to let out his rage rather than shoot at a person. With the driveby, there’s plenty of physical evidence that the man pulled the trigger in an attempt to kill someone. As noted several posts ago, I have admitted being wrong about the way ‘attempt’ is handled legally.
