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Spring 2000


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13. Hot Property.
Suppose Alice takes away an umbrella from a an umbrella stand in a restaurant with the intent to steal it, believing it belongs to someone else, but it turns out to be her own. Surely Alice cannot be convicted of stealing, but can Alice be convicted of attempting to steal?



Commentary. Applying the same reasoning used by the New York Court of Appeals in People v. Dlugash and the reasoning of Dr. Wharton would require us to convict Alice of a criminal attempt. But this seems overly harsh. What do you think? Would you convict Alice of attempting to steal? Then consider the following case and apply the Appeals Court reasoning to it.

Victor Sticks It to "Esmeralda"
Victor is unhappily married to Esmeralda. Indeed, Victor so dislikes Esmeralda that he has on more than one occasion thought of killing her. Victor was raised on a small Caribbean Island and, as a young boy, was initiated into the black-magic cults of the native peoples. Victor still believes in the power of voodoo. One day, when he feels he can stand his wife no longer, he retires to his basement workshop, where he has, over the years, collected the accoutrements of the black arts. Carefully he prepares a tiny doll-like replica of Esmeralda. When the doll is finished, Victor takes a deep breath and, with shaking hands and a look of hatred and determination, viciously and repeatedly stabs the doll with a set of "magic" needles. Exhausted by his work, Victor collapses. When he wakes up, he is overcome with remorse. He is disgusted by what he has done. He leaves his workshop and rushes to the local police station, where he turns himself in, believing with all sincerity that he has murdered Esmeralda. The police send someone to the house where Esmeralda is discovered in bed with what appears to be severe stomach cramps. Esmeralda recovers in a few days. Clearly, Victor has not murdered her, but is he guilty of attempted murder? Attempting the Impossible.

These defendants, Alice with her umbrella and Victor with his pins and doll, are more pathetic than dangerous and their conviction would appear to be as absurd as their actions. What do you think? Should Alice and Victor be found guilty of attempt and, if not, what's missing from the Appeals Court formulation?

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