Inchoate offense: Wikis


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An inchoate offense, inchoate offence, or inchoate crime is the crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is conspiracy. "Inchoate offense" has been defined as "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."[1][2]



Every inchoate crime or offense must have the mens rea of intent. Absent a specific law, an inchoate offense requires that the defendant have the specific intent to commit the underlying crime. For example, for a defendant to be guilty of the inchoate crime of solicitation of murder, they must intend a person to die.

Intent may be distinguished from recklessness and criminal negligence as a higher mens rea.

Proof of intent

Specific intent may be inferred from circumstances.[3] It may be proven by the doctrines of res ipsa loquitur or "dangerous proximity".

Merger doctrine

A true inchoate offense occurs when the intended crime is not perpetrated, since the Doctrine of Merger prohibits charging both, except for conspiracy.


There are a number of possible defenses to the charge of an inchoate offense, depending on the jurisdiction and the nature of the offense.


Impossibility is no defense to the crime of attempt where the conditions creating the impossibility are unknown to the actor.

Originally at common law, impossibility was a complete defense;[4] as it was under French Law at one point.[5] Indeed, the ruling in Collins's Case L. and C. 471 was that an offender cannot be guilty of an attempt to steal his own umbrella when he mistakenly believes that it belongs to another. Although the "moral guilt" for the attempt and the actual crime were the same, there was a distinction between the harm caused by a theft and the harmlessness of an impossible act.[6] This principle was directly overruled in England with the rulings Reg. v. Ring and Reg. v. Brown[7] The example from Reg. v. Brown of an attempt to steal from an empty pocket is now a classic example of illustrating the point that impossibility is no defense to the crime of attempt when the conditions creating the impossibility are unknown to the actor. This principle has been codified in the Model Penal Code:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime he: purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be. MPC § 5.01 (1)(a) (emphasis added).

Consequently, the principle is universal in the United States either in Model Penal Code jurisdictions (40 states) or those remaining common law jurisdictions influenced by the reasoning in Reg. v. Brown.

Other cases that illustrate the case law for impossibility defenses are People v. Lee Kong (1892), State v. Mitchell (1902) and United States v. Thomas (1962).


A defendant may plead and prove, as an affirmative defense, that he:

  1. Stopped all actions in furtherence of the crime or conspiracy
  2. Tried to stop the crime as it was ongoing
  3. Tried to convince the co-conspirators to halt such actions, or to reported the crime to the police or other authorities

As Mae West once famously said:

It ain't no sin if you crack a few laws now and then, just so long as you don't break any.
Mae West, Every Day's a Holiday (1937 film)[8][9]


Examples of inchoate offenses include conspiracy, solicitation, facilitation, misprision of felony (and misprision generally), organized crime, Racketeer Influenced and Corrupt Organizations Act (RICO), and attempt, as well as some public health crimes; see the list below.[2]

Burglaries as inchoate crimes

There is some scholarly treatment of burglaries in American law as inchoate crimes, but this is in dispute. According to scholar Frank Schmalleger, burglaries "are actually inchoate crimes in disguise."[10]

Other scholars warn about the consequences of such a theory:

Burglary, as a preliminary step to another crime, can been seen as an inchoate, or incomplete, offense. As it disrupts the security of persons in their homes and in regard to their personal property, however, it is complete as soon as the intrusion is made. This dual nature is at the heart of a debate about whether the crime of burglary ought to be abolished, leaving its elements to be covered by attempt or as aggravating circumstances to other crimes, or retained and the grading schemes reformed to reflect the seriousness of the individual offense.
McCord and McCord.[11]

Certainly, possession of burglary tools, in those jusridictions that criminalize that activity, creates an inchoate crime.[12] It is clear that:

In effect piling an inchoate crime onto an inchoate crime, the possession of burglary tools with the intent to use them in a burglary is a serious offense, a felony in some jurisdictions. Gloves that a defendant was trying to shake off as he ran from the site of a burglary were identified as burglar's tools in Green v. State (Fla. App. 1991).
McCord and McCord.[11]

List of inchoate offenses

See also


  1. ^ Larry K. Gaines, Roger LeRoy Miller (2006). Criminal Justice in Action: The Core. Thomson-Wadsworth Publishing.  
  2. ^ a b See lists and chapters of texts at McCord and McCord, Infra, pp. 185-213, and Schmalleger, Infra, pp. 105-161, 404.
  3. ^ See People v. Murphy, 235 A.D. 933, 654 N.Y.S. 2d 187 (N.Y. 3d Dep't 1997).
  4. ^ See James Fitzjames Stephen, A History of the Criminal Law of England, Vol. II, 225 (1883)
  5. ^ See Adolphe Chauveau, Faustin Hélie, Théorie du Code Pénal 382-3 (1843)
  6. ^ James Stephen at 225.
  7. ^ 66 L.T. (N.S) 300, and 24 Q.B.D. 357.
  8. ^ website. Retrieved October 2, 2008.
  9. ^ McCord, p. 192
  10. ^ Frank Schmalleger, Criminal Law Today: An Introduction with Capstone Cases, p. 110, (Upper Saddle River: Pearson Prentice Hall, 2006) ISBN 0-13-170287-4, citing Joshua Dressler, Understanding Criminal Law, 2nd ed., (Boston:Matthew Bender, 1995), p. 351.
  11. ^ a b James W.H. McCord and Sandra L. McCord, Criminal Law and Procedure: A Systems Approach, 3rd ed. (Clifton Park, New York: Thomson Delmar Learning - West Legal Studies, 2006), p. 127. ISBN 978-1-4018-6564-1.
  12. ^ See Schmalleger, Supra, p. 404.

External links

  • O'Connor, T. (November 3, 2006). In Part of web cited (INCOMPLETE (INCHOATE) CRIMES), MegaLinks in Criminal Justice. Retrieved from APSU website.

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