Nature of the Case
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Facts
Thomas (D) and McClellan (D), were on a 'bar hopping' spree. They were accompanied by Abruzzese who 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. They went to 'Taylor's Place' where McClellan began dancing with a girl. Almost at once she collapsed in McClellan's arms. He, with his two companions, volunteered to take her home. They placed the apparently unconscious female in McClellan's car and left. Before they had proceeded very far, McClellan suggested that this was a good chance for sexual intercourse as apparently this woman was just 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. Ds dropped Abruzzese off at the USO. Ds stopped at a service station seeking help. The attendant called the police who, upon arriving at the service station, examined the girl and determined she was dead. She apparently died of 'acute interstitial myocarditis.' It was the general undisputed opinion that her death probably occurred at the time she collapsed on the dance floor at Taylor's Place or very shortly thereafter. Ds were unaware of the fact she was dead. Abruzzese was granted immunity. Ds claimed 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. The law officer 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 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. Ds were convicted and appealed. Ds contend that the law officer erred in his instructions to the court on the attempt and conspiracy offenses. They argued that when it was a 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. Reasoning that a corpse is not a person, the board of review determined that the law officer erred. 'Legally under the facts and law before us the offense of rape and the lesser included offenses including attempts were impossible of commission.' The board of review set aside both accused's convictions for attempt to commit rape and for conspiracy to commit rape. The Government submitted certified questions.
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