# What crime was committed? **URL:** \ **Category:** Factual Questions\ **Created:** [June 28, 2005, 12:37am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121 "2005-06-28T00:37:26Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [June 28, 2005, 12:37am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/1 "2005-06-28T00:37:26Z")
[AP News Story:](http://ap.lancasteronline.com/4/sleeping_suspect) > [@](#): > > QUINCY, Mass. (AP) - It’s never good to fall asleep on the job, but when you’re a robber the consequences can be severe. Police arrived at a CVS pharmacy early Tuesday morning to find Steven Jakaitis, 42, sleeping in his idling car with a nylon stocking over his head and a cap pistol in his pocket. > > By his side was a note that read: “I have a Gun DO NOT Press any Alarms or let Custermors (sic) know Empty the All the register.” > > A customer called police after seeing Jakaitis, who was also wearing a black wig and a scarf. On the back seat of his car, officers found a plastic bag containing 36 unused hypodermic needles. He spoke incoherently after the officers woke him, Capt. Anthony DiBona said. > > He never actually went into the store, police said. > > At his arraignment Tuesday, Jakaitis pleaded innocent to attempted armed robbery, possession of a hypodermic syringe and receiving a stolen car. He was ordered held on $1,000 bail and ordered to appear for a pretrial conference on April 12. So possession of a note is now a crime? (Let’s leave the allegedly stolen car and the syringes and the suspect’s alleged incoherent speech out of this discussion: they just make it messier.) Is it attempted robbery to sit in a car (asleep, no less!) with a holdup note and wearing a stocking and a wig on your head? Obviously, it’s very suspicious. It seems as if the suspect might have intended to rob the store. But he didn’t even get out of the car. What law did he break? So tell me, Doper lawyers: Is this case going to be thrown out? Would you defend him? Or are thought crimes (which this seems to be, absent any overt action) now prosecutable? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [June 28, 2005, 12:44am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/2 "2005-06-28T00:44:49Z")
Ooooh this is a good one! \ Okay, GO! \ 😃 Bo ---
**Author:** ![rfgdxm](https://avatars.discourse-cdn.com/v4/letter/r/c0e974/32.png) [@rfgdxm](https://boards.straightdope.com/u/rfgdxm)\ **Post date:** [June 28, 2005, 12:47am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/3 "2005-06-28T00:47:56Z")
> [@commasense](#): > > Is it attempted robbery to sit in a car (asleep, no less!) with a holdup note and wearing a stocking and a wig on your head? Obviously, it’s very suspicious. It seems as if the suspect might have intended to rob the store. But he didn’t even get out of the car. What law did he break? > > So tell me, Doper lawyers: Is this case going to be thrown out? Would you defend him? Or are thought crimes (which this seems to be, absent any overt action) now prosecutable? I’d argue no. While the evidence supports that he contemplated robbing the store, he never actually made the attempt. ---
**Author:** ![Ike\_Witt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ike_witt/32/283_2.png) [@Ike\_Witt](https://boards.straightdope.com/u/Ike_Witt)\ **Post date:** [June 28, 2005, 12:50am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/4 "2005-06-28T00:50:13Z")
What good is intent without the act? ---
**Author:** ![Yeah](https://avatars.discourse-cdn.com/v4/letter/y/dbc845/32.png) [@Yeah](https://boards.straightdope.com/u/Yeah)\ **Post date:** [June 28, 2005, 1:00am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/5 "2005-06-28T01:00:15Z")
> [@adam yax](#): > > What good is intent without the act? Quite a bit, e.g., attempted murder. Had he had someone with him, he would have a hard time beating a conspiracy charge (which only requires a conspiracy, not “the act”). ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [June 28, 2005, 1:08am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/6 "2005-06-28T01:08:01Z")
Why does nobody ever ask questions about _forum non conveniens_ or standards for summary judgment? That stuff, I know! Ok. We’re in Massachusetts. The [attempt statute](http://www.mass.gov/legis/laws/mgl/274-6.htm) reads, in relevant part: "Whoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration . . . " shall be punished, etc. [Robbery](http://www.mass.gov/legis/laws/mgl/265-17.htm) is defined in relevant part as: > [@](#): > > Whoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property which may be the subject of larceny shall be punished by imprisonment in the state prison for life or for any term of years; provided, however, that any person who commits any offence described herein while masked or disguised or while having his features artificially distorted shall, for the first offence be sentenced to imprisonment for not less than five years and for any subsequent offence for not less than ten years. So (armed) robbery requires: (i) being armed; (ii) with a dangerous weapon; (iii)assaulting another; (iv) robbing, stealing, or taking from another; (v) money or other property. There’s also a sentence enhancement for wearing a mask in the commission of the crime. Attempt requires taking “any act toward [the crime’s] commission.” Our protagonist took several steps toward the commission of the crime: mask, cap gun, and a nicely prepared note announcing his intention. See, for example, [_Commonwealth v. Caze_](http://www.malawyersweekly.com/signup/opinion.cfm?recID=12704): > [@](#): > > The facts relevant to this appeal are essentially as follows. Derrick Jones, a friend of the defendant, testified that on or about January 28, 1993, the defendant told him that he spoke with Demetrius Salley about committing “an act of crime towards” a McDonald’s restaurant located on Route 1A in Walpole. The defendant also mentioned to his then girl friend, Kiet Chandler, that he was thinking of robbing the McDonald’s restaurant. > > The defendant applied for a job at the McDonald’s in May 1993, began working the closing shift on May 19, and quit on May 21. While he was employed there, he learned where the safe was located and how to gain access to the building from the rear. The clean-up and closing employees would routinely prop open the back door while they took out the trash at night. > > A few days after the defendant quit his job at McDonald’s, he spoke to Elizaire Dennis. Dennis knew both the defendant and Salley from high school. The defendant told Dennis that he was going to rob McDonald’s because he needed money. He also told Dennis that he and Salley planned to enter late at night, after closing, wearing masks. He also told Dennis that he would have a gun. > > Late in the evening on May 31, the victim propped open the back door and took the trash out. The defendant and Salley, both wearing masks, were hiding in the area. Salley, who was armed with a gun, grabbed the victim. After a brief struggle, Salley shot the victim in the shoulder. After hearing the shots, the defendant claimed that he turned, jumped over a fence, and ran home. The victim bled to death within one hour. Caze was found guilty of attempted robbery: he cased the joint, put a mask on, and waited outside. Now, I would distinguish _Caze_ by saying that the attempt went much further: there’s no evidence that our defendant cased the joint, and he didn’t bring a buddy, or talk about his plan (that we know of). But our guy has a mask, a gun, and a robbery note, and he’s waiting outside a store for it to open. I think he should hope he gets a good lawyer. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 28, 2005, 1:11am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/7 "2005-06-28T01:11:52Z")
Campion is right on the money. On the record presented in the story, a reasonable fact-finder could convict on attempted armed robbery. And note, Dear Readers, how Campion doesn’t simply guess, but rather correctly identifies the law concerning attempt, and the elements of the crime of armed robbery. That, folks, is an A+ GQ answer. ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [June 28, 2005, 2:22am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/8 "2005-06-28T02:22:28Z")
> [@Bricker](#): > > And note, Dear Readers, how Campion doesn’t simply guess, but rather correctly identifies the law concerning attempt, and the elements of the crime of armed robbery. That, folks, is an A+ GQ answer. Would that we could multiply Campion. 🙂 ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [June 28, 2005, 2:28am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/9 "2005-06-28T02:28:52Z")
IANAL, but looking at “Whoever attempts to commit a crime by doing any act toward its commission, but **fails** in its perpetration, or is **intercepted or prevented** in its **perpetration** ,” my thought is: he didn’t **try** and fail, he wasn’t intercepted or prevented in the **attempt,** because, except for possessing the note and wearing the wig and stocking in the vicinity of a business establishment, he didn’t **do** anything. The Caze case doesn’t strike me as very similar since that defendant was idiotic enough to tell practically everyone he knew that he was going to rob the McDonald’s. I grant that saying you’re going to commit a crime, and then being caught in the act of doing it, or being about to do it, are reasonable grounds for arrest. Now, for all we know, Mr. Jakaitis will be found to have told a bunch of people his plans, too. He seems dumb enough to have done so. But for the sake of our discussion, let’s assume there is no evidence of such a statement. Absent that, it seems to me that he had an idea, and may have made preliminary steps to executing it, but didn’t carry it out, and none of the preliminary steps can reasonably considered crimes in and of themselves. If I sit here in my house and write a holdup note, pull a stocking over my head, put on a wig, and fall asleep, and then my neighbor and friend the cop walks in to borrow a cup of sugar, am I going to be charged with attempted robbery? Can’t I just say I was joking? Isn’t writing a note a freedom of speech issue? BTW, did you notice that the gun was a cap pistol, not a real gun? Does that make a difference with respect to that “dangerous weapon” bit? ---
**Author:** ![Mr.Blue\_Sky](https://avatars.discourse-cdn.com/v4/letter/m/d26b3c/32.png) [@Mr.Blue\_Sky](https://boards.straightdope.com/u/Mr.Blue_Sky)\ **Post date:** [June 28, 2005, 2:33am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/10 "2005-06-28T02:33:05Z")
> [@alleged robber](#): > > Empty the All the register It’s a shame when videogame translators get laid off. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [June 28, 2005, 2:53am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/11 "2005-06-28T02:53:09Z")
**commasense** , you’ve distinguished _Caze_ rationally: our defendant did not get nearly as far as the estimable Mr. Caze in the crime. You’ve also hit on the philosophical difficulty we often have with attempt crimes: how much is enough? Most states require “substantial steps” toward the commission of the crime, or at least some steps beyond “mere preparation.” It then becomes a matter of the common law (i.e., distinguishing and analogizing other cases) as to whether that particular defendant took enough steps toward the commission of a crime that we ought to hold him responsible. Here, our defendant armed himself with a cap gun (I’ll come back to that), put a nylon stocking on his head, put a black wig on over the nylon stocking, put a scarf on, wrote out his note ahead of time, and drove to a CVS pharmacy. At an absolute minimum, I think that the last step – driving to a pharmacy – goes beyond mere preparation and into the attempt. And that’s what distinguishes it from your living room example: there, you could argue, he only got as far as mere preparation. When you add the driving to everything else (particularly the nylong stocking with the wig over it), I think we’re in a place where a jury could reasonably find attempted armed robbery. As to the cap gun: I cited only to the armed robbery statute on the theory that he’s charged with armed robbery, so the cap gun would be considered a dangerous weapon. (Hey, it’s got gun in the name, right? But then, so does [Gunnar Nelson](http://www.thenelsonbrothers.com/) and he’s hardly a threat to the free world.) There is also a robbery statute for [unarmed robbery](http://www.mass.gov/legis/laws/mgl/265-19.htm). Now, here’s where **Bricker** takes away my A+: the following research issues are still open. (1) Whether a cap gun constitutes a “dangerous weapon,” as that term is used in Mass. Gen’l Law Ch. 265, S. 17. (2) Whether our defendant took sufficient steps to constitute attempted armed robbery. I cited _Caze_ but did not shepardize it, and did not determine whether there is another case more on point. Nevertheless, _Caze_ is instructive because it demonstrates that you don’t even have to get to the door of the store to be charged with attempted armed robbery. > [@samclem](#): > > Would that we could multiply Campion. 🙂 Will this go in my Permanent File? ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [June 28, 2005, 2:53am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/12 "2005-06-28T02:53:33Z")
> [@Mr. Blue Sky](#): > > It’s a shame when videogame translators get laid off. _All your Register belong to us_ [sub]Assuming I go through with the stickup[/sub] ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [June 28, 2005, 3:36am UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/13 "2005-06-28T03:36:34Z")
> [@Campion](#): > > **commasense** , you’ve distinguished _Caze_ rationally That’s the nicest thing anyone’s said to me in years. (Sadly.) > [@](#): > > At an absolute minimum, I think that the last step – driving to a pharmacy – goes beyond mere preparation and into the attempt. And that’s what distinguishes it from your living room example: there, you could argue, he only got as far as mere preparation. When you add the driving to everything else (particularly the nylon stocking with the wig over it), I think we’re in a place where a jury could reasonably find attempted armed robbery. Whence the assumption that the pharmacy was his target? He might have been planning on holding up a bank across town, and got lost. He might have been planning on robbing a sperm bank. We don’t know what he was thinking, but we think we do, and that’s what troubles me about the whole situation. The circumstances are suspicious, and I have little doubt this jerk was up to no good. It seems like common sense that he should have been arrested. But in my non-legal opinion his **actions** just don’t seem to have crossed the line into the criminal. And if he can be convicted on the evidence presented, it seems to me that we are now going after thought crimes. This makes me very uneasy. **Campion** (or any other resident attorney): Since I’m just a well meaning but untrained amateur, would you care to switch sides and present the best case for the defense? ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [June 28, 2005, 2:26pm UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/14 "2005-06-28T14:26:37Z")
Keeping in mind that we truly _don’t_ know all of the facts in the case, I’m another one in the not substantial enough camp given only the limited facts that we do have. It’s pretty obvious that this jerk was up to no good, but what if it were me and not some drug addled fool? Maybe I’m only trying to express some type of free speech by hanging out in the parking lot like that. Sure, the evidence points to me going to rob the store, but I have the express desire not to do so. I’m not trying to argue point here, but rather segue into a much broader question: where do we draw the line on anything? I always feel sympathy for those kids that get arrested and found guilty for things in their journals, like death lists. Again, I can imagine myself maintaining a death list and maybe inventing ways to accomplish those deaths. I would get quite detailed, too. Despite that, I’d have no intention of executing those plans. Additionally I’ve planned bank robberies (really) in the past. It was an excercise in fun because despite all of our best laid plans, I can make more money working and stay out of jail. But we had maps, plans, hours, movement patterns, something that really would have worked (probably). At what point did I cross the line into being a criminal? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 28, 2005, 3:45pm UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/15 "2005-06-28T15:45:34Z")
Note well what I said: > [@](#): > > On the record presented in the story, a reasonable fact-finder could convict on attempted armed robbery. A reasonable fact-finder could also acquit, finding that his actions didn’t constitute anything beyond preparation. But an appellate court, looking at the record, would not overturn a finding of guilty based on insufficient evidence. ---
**Author:** ![Jayrot](https://avatars.discourse-cdn.com/v4/letter/j/3ec8ea/32.png) [@Jayrot](https://boards.straightdope.com/u/Jayrot)\ **Post date:** [June 28, 2005, 5:56pm UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/16 "2005-06-28T17:56:09Z")
> [@samclem](#): > > _All your Register belong to us_ > > [sub]Assuming I go through with the stickup[/sub] Someone set up us the robbery. ---
**Author:** ![amliden](https://avatars.discourse-cdn.com/v4/letter/a/7ab992/32.png) [@amliden](https://boards.straightdope.com/u/amliden)\ **Post date:** [June 28, 2005, 6:32pm UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/17 "2005-06-28T18:32:38Z")
> [@Bricker](#): > > Campion is right on the money. On the record presented in the story, a reasonable fact-finder could convict on attempted armed robbery. > > And note, Dear Readers, how Campion doesn’t simply guess, but rather correctly identifies the law concerning attempt, and the elements of the crime of armed robbery. That, folks, is an A+ GQ answer. Settle down, cowboy. ---
**Author:** ![amliden](https://avatars.discourse-cdn.com/v4/letter/a/7ab992/32.png) [@amliden](https://boards.straightdope.com/u/amliden)\ **Post date:** [June 28, 2005, 6:54pm UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/18 "2005-06-28T18:54:15Z")
> [@Bricker](#): > > Note well what I said: > A reasonable fact-finder could also acquit, finding that his actions didn’t constitute anything beyond preparation. > > But an appellate court, looking at the record, would not overturn a finding of guilty based on insufficient evidence. Are you parsing your response for a reason? ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [June 28, 2005, 7:12pm UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/19 "2005-06-28T19:12:01Z")
**amliden** , I’ve often found it helpful to read a thread before responding to a post in isolation. Context is often key. For example: in [this post](http://boards.straightdope.com/sdmb/showpost.php?p=6307794&postcount=13), **commasense asked** : > [@commasense](#): > > Since I’m just a well meaning but untrained amateur, would you care to switch sides and present the best case for the defense? **Bricker** [then responded](http://boards.straightdope.com/sdmb/showpost.php?p=6309260&postcount=15): > [@Bricker](#): > > A reasonable fact-finder could also acquit, finding that his actions didn’t constitute anything beyond preparation. > > But an appellate court, looking at the record, would not overturn a finding of guilty based on insufficient evidence. Thus, to answer your question: > [@amliden](#): > > Are you parsing your response for a reason? Yes. **Bricker** ’s post is responsive to **commasense** ’s request that both sides of the issue be argued. In sum, **Bricker** points out that this is a close case, and that a good defense would be that his actions never went beyond mere preparation, and that such a finding by a jury would likely be reasonable. I hope this helps. Sincerely, **Campion** Teacher’s Pet ---
**Author:** ![The\_Controvert](https://avatars.discourse-cdn.com/v4/letter/t/dec6dc/32.png) [@The\_Controvert](https://boards.straightdope.com/u/The_Controvert)\ **Post date:** [June 28, 2005, 7:47pm UTC](https://boards.straightdope.com/t/what-crime-was-committed/310121/20 "2005-06-28T19:47:16Z")
Would a better defense be that some mystery person wanted to frame the defendant for robbery and set him up with a lot of incriminating evidence? [Next page](https://boards.straightdope.com/t/what-crime-was-committed/310121.md?page=2)