United States v. Thomas

13 U.S.C.M.A. 278 (1962)

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Nature of the Case

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Facts

Thomas (D) was twenty years of age, and McClellan only nineteen, at the time of the instant offenses. There were on a 'bar hopping' spree. They were accompanied by an eighteen-year-old companion, Abruzzese, who, like both accused, held the grade of airman in the Navy. The latter was a co-actor in these offenses, but was granted immunity from prosecution for his criminality in the incidents, and testified as a witness for the Government. The trio entered a tavern known as 'Taylor's Place' where McClellan began dancing with a girl. Almost at once she collapsed in McClellan's arms. Thereafter, he, with his two companions, volunteered to take her home. They placed her in McClellan's car and left. Abruzzese was seated beside McClellan, who drove; D was in the left rear seat next to the girl. Before they had proceeded very far McClellan, in frank, expressive language, suggested that this was a good chance for sexual intercourse believing the woman was drunk and would never know the difference. Each of the three subsequently did or attempted to consummate this act and then started their return to town. The three became concerned as the woman had not regained consciousness. After dropping off Abruzzese, they eventually stopped at a service station seeking help. The attendant called the police who determined she was dead. An ambulance was called, and she was taken to a hospital for further examination. She died of 'acute interstitial myocarditis.' In general, terms this is a weakening of the heart muscles with edema and inflammation which occurs more in young people without its presence being suspected. Her death probably occurred at the time she collapsed on the dance floor at Taylor's Place or very shortly thereafter. Abruzzese was granted immunity. He implicated himself and both accused in his testimony. D discussed the alleged incident with this same Office of Naval Intelligence agent, but no statement by D was introduced into evidence. Numerous other witnesses testified, including medical experts, and the record of trial and exhibits, in this case, are voluminous. D vigorously urged that the offenses of attempt and conspiracy could not be found validly if the victim's death occurred prior to the commission of the alleged acts, but the law officer ruled otherwise. He instructed the court that to find the accused guilty of rape, or of assault, assault, and battery, assault with intent to commit rape, or indecent assault as lesser included offenses thereto, it must be shown beyond a reasonable doubt that the victim was alive at the time of the alleged acts. Otherwise, he admonished the court members, the accused must be acquitted of those offenses. The law officer then continued and instructed the court on the elements of attempt as an included lesser crime to rape. However, unlike the instructions given as to rape and the other lesser offenses previously mentioned, the law officer did not instruct that being alive was essential to a finding of attempt. The court-martial was not required to find that the alleged victim was alive in order to find the accused guilty of conspiracy. Before the board of review, D contended that the law officer erred in his instructions to the court on the attempt and conspiracy offenses. D argued that where circumstances beyond the accused's control make it legally impossible to commit a crime, as distinguished from factual impossibility to do so, there can be no attempt nor can there be a conspiracy to commit the substantive offense. The board of review held that an attempt to commit a crime must be directed to an object on which it is possible to commit the crime. Reasoning that a corpse is not a person, the board of review determined that the law officer erred in his instruction that there was no requirement that the victim be alive before the accused could be convicted of attempted rape. The board of review set aside both accused's convictions for attempt to commit rape and for conspiracy to commit rape. P appealed.