State v. Bereman, 39549
| Decision Date | 13 November 1954 |
| Docket Number | No. 39549,39549 |
| Citation | 276 P.2d 364,177 Kan. 141 |
| Parties | The STATE of Kansas, Appellant, v. Kenneth E. BEREMAN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The record examined in a criminal action where the defendant was placed on trial for an attempt to commit the offense denounced by G.S.1949, 21-907, and held that the trial court did not err in sustaining defendant's motion for his discharge at the close of the state's evidence.
G. Tom Crossan, County Atty., Independence, argued the cause, and Harold R. Fatzer, Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., and Glen Tongier, Asst. County Atty., Coffeyville, were with him on the briefs for appellant.
Frank W. Liebert, Coffeyville, argued the cause, and T. Richard Liebert, Coffeyville, was with him on the briefs for appellee.
Defendant was placed on trial charged with the offense of an attempt under G.S.1949, 21-101, to commit the crime denounced in G.S.1949, 21-907. At the conclusion of the state's evidence, defendant moved for his discharge on the ground the evidence failed to prove a prima facie case of attempt to commit the crime charged. The motion was sustained by the trial court and the defendant was discharged. The trial court in sustaining the defendant's motion stated, among other reasons, that the testimony offered by the state developed only some acts of solicitation, and that no overt act toward the commission of the offense charged was shown.
This is an appeal by the state on a question reserved by it, G.S.1949, 62-1703 upon the ruling of the trial court sustaining defendant's motion for discharge.
The question involved is whether the state's evidence was sufficient to prove an attempt to commit the crime within the meaning of the attempt statute.
G.S.1949, 21-101, provides in pertinent part:
'Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction * * * shall, * * * be punished * * *.'
It may be generally stated that an attempt to commit a crime consists of three elements: (1) the intent to commit the crime; (2) performance of some act toward the commission of the crime, and (3) the failure to consummate its commission.
In order that there may be an attempt to commit a crime, whether statutory or at common law, there must be some overt act in part execution of the intent to commit the crime. The act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory, and it need not be the last proximate act to the consummation of the offense attempted to be perpetrated. However, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement toward the commission of the offense after the preparation or solicitation is made. Slight acts done in furtherance of that design will constitute an attempt. No definite rule can be laid down by which an act might be characterized as overt in any particular case. The general principle of law concerning attempts must be applied in...
To continue reading
Request your trial
-
State v. Otto
...People v. Woods, 24 Ill.2d 154, 180 N.E.2d 475 (1962) cert. den. 371 U.S. 819, 83 S.Ct. 34, 9 L.Ed.2d 59 (1962); State v. Bereman, 177 Kan. 141, 276 P.2d 364 (1954); People v. Gallardo, 41 Cal.2d 57, 257 P.2d 29 (1953); State v. Schirmer, 70 Idaho 83, 211 P.2d 762 (1949); 3 State v. Ainswor......
-
Lightfoot v. State
...(1911); 22 C.J.S. Criminal Law § 75(1) (1961).In some jurisdictions, this is the result of statutory provisions. See State v. Bereman, 177 Kan. 141, 276 P.2d 364 (1954); People v. Rappaport, 207 Misc. 604, 142 N.Y.S.2d 125 (1955); State v. Maresch, 75 N.D. 229, 27 N.W.2d 1 (1947); State v. ......
-
U.S. v. American Airlines, Inc.
...(Fla.Dist.Ct.App.1975) (attempted murder); Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963) (attempted murder); State v. Bereman, 177 Kan. 141, 276 P.2d 364 (1954) (attempted sodomy); Cole v. State, 14 Okl.Cr. 18, 166 P. 1115 (Okla.Crim.App.1917) (attempted adultery); State v. Lampe, 1......
-
State v. Green
...it can with a view to substantial justice." State v. Lopez, 81 N.M. 107, 108, 464 P.2d 23, 24 (Ct.App.1969) (quoting State v. Bereman, 177 Kan. 141, 276 P.2d 364, 365 (1954)), cert. denied, 81 N.M. 140, 464 P.2d 559 In the instant case, the overt act in furtherance of the goal crime of traf......