The Actus reus for Attempt - Preparation vs.

Attempt

Case: People v. Rizzo (1927) [pp. 676-679]

Facts: Δs planned to rob this guy who was carrying $1200 in pay roll. 2 of the Δs carried firearms. Δs
drove around looking for the guy to rob - they drove by the bank and other places where the guy was
supposed to be. They were being watched and followed by police, and they were arrested before they
could commit the robbery, and before they even found the guy they were supposed to rob (who wasn’t
around).

Holding:
o The statute says "An act, done with intent to commit a crime, and tending but failing to effect its
commission, is "an attempt to commit that crime." Any act in preparation to commit a crime may
be said to have a tendency towards its accomplishment. However, the court notes that many acts
in the way of preparation are too remote to constitute attempt.
• So, the Court says it must consider those acts only as tending to the commission of the
crime that are so near to its accomplishment that in all reasonable probability the crime
itself would have been committed, but for timely interference.
• Court holds that since the Δs had not found or reached the presence of the person
they intended to rob, they are not guilty of attempt.

Class Notes

• Court uses last step test - focus not that rizzo drove around looking for victim, it was mere preparation.
o Under MPC, this would be sufficient to find him guilty
• A jury should decide whether or not there is a substantial step that is strongly
corroborative. Then gives examples that "shall not be held insufficient as a matter of law"
• We want police to interfere before crime has been committed, so we do need a test like the MPC to get
them ahead of time.
• Before you even look at attempt, first by looking at substantive definition of the offense - if a theft
statute says "concealing property of another with intent to keep it," and someone puts a sweater in their
bag, but gets caught at the door, this is not attempt, but theft. On the other hand, if theft defined as
"taking someone else'e property," then this would only be an attempt.