<1> The "attempt" provision in the West Virginia Code establishes that attempts to commit criminal offenses will be punishable. The statute does not purport to offer any explanation or definition of what constitues an "attempt." Dressler notes that: "Until the Model Penal Code was drafted, most states punished, but did not define, criminal attempts." Joshua Dressler, Understanding Criminal Law 374 (Lexis Publishing, 3rd ed., 2001)

<2> The West Virginia Supreme Court, in an attempt case, requires: "(1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime." State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978).

But as we can see from the Tennessee case, State v. Reeves (assigned case), that the "overt act" requirement can be read broadly or narrowly.

In Starkey, the defendant was convicted for attempted second degree murder for shooting at the victim, Blakely Sower, with a shotgun, while the victim was driving away in his pickup truck after arguing with the defendant. The pellets from the defendant's shotgun struck the truck, but did not injure Mr. Sower. The court found sufficient evidence from which the jury could have found beyond a reasonable doubt that the defendant's act of firing at Blakely Sower was done with the requisite criminal intent to sustain a conviction of second degree murder.

Notwithstanding the caution required in using the "plain meaning" (and definitions of words found in a dictionary) in criminal law--e.g. Schrader (the West Virginia premeditation case)--you might want to school yourself in the ordinary meaning of a term like "overt." My Webster's Seventh New Collegiate defines "overt" as: open to view; manifest. The term "manifest" means: "to make evident or certain by showing or displaying." [I continue to find, at yard sales, Salvation Army and Good Will stores, copies of Webster's Seventh New Collegiate. This edition of the old classic is sufficiently good that I buy every copy I find.]

As a reading of attempted murder cases will make abundantly clear, the "overt act" requirement provides nothing that comes close to a "test" that allows one to determine whether an attempt should be charged or not. (In Collier v. State of Indiana, an assigned case, the court cites a prior Indiana case to the effect that the court finds "it is impossible to lay down any general rule to determine what acts are too remote to constitute an attempt." The court states it "will not try to formulate a bright-line test to be used to determine whether a defendant's conduct constitutes a 'substantial step' for purposes of the Indiana's attempt statute.")

<3> In State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991), the West Virginia Supreme Court establishes two requirements for the crime of attempt: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime. However, the court in Burd goes on to note that where "formation of criminal intent is accompanied by preparation to commit the act of murder and a direct, overt and substantial act toward its perpetration, it constitutes the offense of attempted murder." In Burd, the court equivocates but seems to read the "overt act" requirement as embracing the "substantial act" test.

In its "overt act" analysis of the attempts requirement the court cites, with approval, a New Hampshire solicitation to murder case that uses the "substantial step" language. The court cites, again with approval, an Alaska case that defines the act necessary for an attempt as "a direct unequivocal act toward [the] perpetration." (The court does not discuss how an equivocation test as set forth in Miller (the assigned case in the Dressler casebook) can serve as a rather significant restriction on the "substantial step" test for an attempt.)

The court in Burd upholds a conviction for attempted murder when the defendant, Burd, who was having an affair with Robert Stone, solicits the murder of Stone's wife and in conversations with the selected hit-man, gave him $150 to purchase a weapon and a $500 down payment for the anticipated murder, with promises to pay another $550 on completion of the crime. The defendant gave the hit-man a sketch of the crime scene and a description of the victim, instructed him on where to inflict the gun shots, and physically showed him where the intended victim lived.

In its covert modification of the 'overt act' requirement, to require that the overt act be a "substantial act," the West Virginia court seems to adopt the general rule presented by Dressler: "[A] criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense." Joshua Dressler, Understanding Criminal Law 374 (Lexis Publishing, 3rd ed., 2001)(Dressler goes on to note that: "The term 'substantial step' is a term of art in the Model Penal Code . . . .")

<4> State v. Wright, 200 W. Va. 549; 490 S.E.2d 636 (1997). Facts as stated by the court:

On the evening of May 10, 1995, Mr. Wright shot and wounded Paul Grigg, an acquaintance of Mr. Wright. The victim was shot with a .38 caliber derringer outside the victim's residence in the town of Romney, the county seat of Hampshire County. The circumstances leading to the shooting were disputed.

Mr. Wright maintains that he went to the victim's home in order to give the victim, who was his friend, a gun as a wedding present. Apparently Mr. Grigg was engaged to marry a former girlfriend of Mr. Wright. Mr. Wright testified that he had no problem with the new couple, and the victim testified that until the day of the shooting, he was unaware of any problem. According to Mr. Wright, as he pulled the gun from his front pants' pocket to show to the victim, the gun accidentally discharged injuring the victim.

According to the victim, he first met Mr. Wright several weeks earlier at the local American Legion Post. The victim testified that on May 10, 1995, Mr. Wright telephoned him and said, "This is Jack. I'm ready for a piece of your a--. I'm over at the Legion. Come on over." About an hour after the telephone call, Mr. Wright appeared at the victim's residence. The victim stepped outside his home, and the two men walked about 15 to 25 feet toward Mr. Wright's car. The victim testified that Mr. Wright was angry with him and gave the following description of the conversation leading to the shooting: "And then he [Mr. Wright] proceeded to say . . .'When I get mad, I'm mad.' And said . . . 'I don't f---- around,' is what he said. . . . Just real shortly, then, the gun, hands went up, and a gun went off, and I was shot."

The victim testified that he thought Mr. Wright was trying to kill him. Mr. Wright testified that the shot went off when "I was pulling the gun out to give it to the man. I had no beef against Mr. Grigg [the victim]." Mr. Wright thought the gun malfunctioned and accidentally discharged when his "finger brushed against the trigger" while the gun was in the half-cocked safety position.

Clarence Lane, the State's firearm expert, testified that the gun was in good working order and that "this particular gun won't go off in a half-cocked position."

The defendant was convicted of malicious assault, attempted murder, and wanton endangerment with a firearm. There were various challenges to the conviction on appeal; only the challenge to the sufficiency of the evidence to support the convictions is relevant here. There was no discussion of the requirement of acts necessary to constitute an attempt.

<5> West Virginia Attempts Statutory Provision

(1) If the offense attempted be punishable with life imprisonment, the person making such attempt shall be guilty of a felony, and, upon conviction, shall be imprisoned in the penitentiary not less than one nor more than five years.

(2) If the offense attempted be punishable by imprisonment in the penitentiary for a term less than life, such person shall be guilty of a felony, and, upon conviction, shall, in the discretion of the court, either be imprisoned in the penitentiary for not less than one nor more than three years, or be confined in jail not less than six nor more than twelve months, and fined not exceeding five hundred dollars.

(3) If the offense attempted be punishable by confinement in jail, such person shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than six months, or fined not exceeding one hundred dollars.

assault which is by nature an attempt crime and is so defined in the statute [§61-2-9]. In §61-2-10, an assault during the commission of or attempt to commit a felony is a statutory felony. "If any person in the commission of, or attempt to commit a felony, unlawfully shoot, stab, cut or wound another person, he shall be guilty of a felony and, upon conviction, shall, in the discretion of the court, either be confined in the penitentiary not less than two nor more than ten years . . . ."

attempted robbery--§61-2-11 defines attempted robbery so as to make it punishable equally with a completed robbery.

attempted arson is defined in a separate code provision. §61-3-4.

ahe attempted use of a fraudulent or forged credit card is defined, and in some instances, treated as a felony. §61-3-24a.

.