State v. Workman

584 P.2d 382 (1978)

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Nature of the Case

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Facts

D and D1 spent the evening drinking and dancing with their wives in State Line, Idaho. On the way home Ds decided to commit a robbery. They chose a Fill-em' Fast Gas Station as their target. They parked their car in an alley behind the station. Leaving their wives asleep, they took a .22 caliber rifle from the trunk of the car and loaded it. They also took a gunny sack with holes punched in it for eyeholes, and a stocking cap, both intended for use as masks. Then they walked up the alley to a fence behind the station and waited. This was normally a busy time at the station. After about 15-minutes they moved to a hiding place just behind the pay booth, where they waited again. The attendant took a short walk to get some fresh air and saw Ds, unmasked, behind the pay booth. He called the police. D later appeared at the window without a mask or gun and asked for a cigarette and match. The attendant refused, and D rejoined D1. An unmarked police car took up a position across the street from the station. The police officer could see Ds and a second police car, which had turned into the alley behind the station. The first car then pulled into the station. Ds had decided not to go through with their plans and started walking away from the station. They had not seen the police before they decided to leave. They were stopped and arrested in the alley behind the station. D1 was found to have the sawed-off rifle concealed under his clothes. At separate trials, both asked for an abandonment instruction for attempt. Both courts rejected the request and Ds were found guilty. This appeal resulted. Both orders granting a new trial were based in part on the belief of the trial judge that Ds were entitled to an instruction on the defense of abandonment.