The offence of attempt is one of the inchoate offences in law. Last week, we discussed another form of inchoate offences [Conspiracy] which can be accessed here. The offence of attempt is provided for in section 4 of the Criminal code and section 95 of the penal code.
An Attempt is an endeavour to do an act, carried beyond mere preparation, but short of execution. According to the Black’s Law Dictionary, Sixth Edition, an ‘Attempt’ ordinarily means an intent combined with an act falling short of the things intended.
In Jegede v. The State (2001) 14 NWLR (Pt.733) 264 at 275, G – 1-1, Belgore, JSC (as he then was) restates the definition of the offence of attempt to commit an offence thus – “Then what is the offence of attempts under our Law? If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction is said to commit the attempt of the offence intended.”
The crux of the matter is that can one be guilty of attempting the impossibility? Factual impossibility means that the defendant could not complete the crime attempted because the facts are not as he or she believes them to be. For instance, if A intending to kill B while he is asleep in bed, shoots the latter through the head, but B had in fact died of a heart attack about 30 minutes earlier. Can A be held guilty of attempted murder?
Yes, he can. By virtue of section 4(3) of the Criminal Code, ‘it is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence’. The principle is that as long as the accused has a blameworthy intention, liability will be imposed irrespective of whether unknown to him, it is impossible to carry such an act.
In Nigeria, there are no case laws to this principle. In foreign jurisdictions, however, some cases reiterated this principle. In R v Ring 17 Cox CC. 491, 66 L.T. (NS) 306 (1892), the accused put his hand in the victim’s pocket to steal, but the pocket was empty, he was still guilty of attempted larceny(stealing) even though there was nothing to steal.
In R v White [1910] 2 KB 124, the defendant put some poison in his mother’s milk with the intention of killing her. The mother took a few sips and went to sleep and never woke up. Medical reports revealed that she died from a heart attack and not the poison. The defendant was not liable for her murder as his act of poisoning the milk was not the cause of death but he was liable for attempted murder.
The punishment for Attempt varies depending on the substantial offence attempted. For instance, the punishment for the offence of attempted murder is 7 years.
In conclusion, it is immaterial that the facts are not what they seem to be in the accused’s perspective. As long as he has the mens rea( intention) to commit an offence, liability will be imposed.
Thank you for reading. See you next week❤
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