People v. Jackson

10 Citing cases

  1. State v. Gutierrez

    285 Kan. 332 (Kan. 2007)   Cited 47 times
    Holding that attempted voluntary manslaughter is a specific intent crime

    We note that New York has reached the same conclusion under its statutes. See People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922 (1964), overruled on other grounds People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); see also People v. Martinez, 81 N.Y.2d 810, 811-12, 595 N.Y.S.2d 376, 611 N.E.2d 277 (1993) (settled law that attempted manslaughter in the first degree is non-existent crime); but see People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200 (1967) (no reversal required where defendant pleaded guilty to attempted manslaughter in compromise with prosecution). Alabama, Massachusetts, Maine, Nevada, and Wisconsin have done likewise.

  2. State v. Holbron

    80 Haw. 27 (Haw. 1995)   Cited 119 times
    Holding that the trial court's erroneous instruction on the nonexistent included offense of "attempted reckless manslaughter" was "harmless beyond a reasonable doubt" where the jury reached a unanimous guilty verdict as to the charged offense of attempted murder in the second degree

    " (Internal quotation marks and brackets omitted.)); State v. Johnson, 103 N.M. 364, 707 P.2d 1174, 1178-79 (N.M.Ct.App. 1985) (holding that crime of attempted "depraved mind" murder — analogous to attempted "reckless" manslaughter as described in HRS § 707-702(1)(a) — does not exist); People v. Martinez, 81 N.Y.2d 810, 595 N YS.2d 376, 377, 611 N.E.2d 277 (1993); People v. McDavis, 97 A.D.2d 302, 469 N.Y.S.2d 508, 510 (1983) ("[T]here can be no attempt to commit a crime that does not involve a specific intent, such as manslaughter in the second degree, a crime predicated upon a reckless act."); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739, 740 (1975) (same proposition); People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 605, 225 N.E.2d 200 (1967); State v. Carson, 292 Or. 451, 640 P.2d 586, 593 (1982); Commonwealth v. Griffin, 310 Pa. Super. 39, 456 A.2d 171, 177 (1983); Hull v. State, 553 S.W.2d 90, 94 (Tenn. Crim. App. 1977); and State v. Norman, 580 P.2d 237, 239-40 (Utah 1978) ("[I]f there was reckless conduct done with intent to commit manslaughter, it would be attempted murder and not merely attempted manslaughter. We hold that there cannot be an attempt to commit manslaughter under [the statute].

  3. Harris v. State

    642 So. 2d 1325 (Miss. 1994)   Cited 19 times
    In Harris, just as with today's case, there was undisputed evidence that Harris did hit a police officer; however, there was disputed evidence as to whether Harris did so intentionally. Faced with this conflict in the evidence, this Court stated that the evidence adduced was such that fair-minded jurors might reach different conclusions as to the issue of intent.

    Many courts have recognized "`intentional' and `reckless' are inconsistent terms." Stennett v. State, 564 So.2d 95, 96 (Ala. Crim. App. 1990), citing People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127, 128 (1974); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1975); State v. Johnson, 103 N.M. 364, 707 P.2d 1174, 1178 (N.M.App. 1985); Commonwealth v. Hebert, 373 Mass. 535, 368 N.E.2d 1204, 1206 (1977); Rhode v. State, 181 Ind. App. 265, 391 N.E.2d 666, 669 (1979); State v. Melvin, 49 Wis.2d 246, 181 N.W.2d 490, 492 (1970); Hull v. State, 553 S.W.2d 90, 94 (Tenn. App. 1977); Bailey v. State, 100 Nev. 562, 688 P.2d 320, 321 (1984); State v. Howard, 405 A.2d 206, 212 (Me. 1979); Gonzales v. State, 532 S.W.2d 343, 345 (Tex. App. 1976); State v. Almeda, 189 Conn. 303, 455 A.2d 1326 (1983); People v. Hernandez, 44 Colo. App. 161, 614 P.2d 900 (1980); People v. Broussard, 76 Cal.App.3d 193, 142 Cal.Rptr. 664 (1977); Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395 (1935); Commonwealth v. Griffin, 310 Pa. Super. 39, 456 A.2d 171 (1983); State v. Zupetz, 322 N.W.2d 730 (Minn. 1982); and Smith, Two Problems in Criminal Attempts, 70 Harv.L.Rev. 422, 434 (1957).

  4. Weidler v. State

    624 So. 2d 1090 (Ala. Crim. App. 1993)   Cited 6 times
    Disapproving a broad reading of a previous decision which would inappropriately render complicity inconsistent with recklessness

    One may not intentionally attempt to cause the death of another human being by a reckless act.'); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1964) ('There must be an intent to commit a specific crime in order to constitute an attempt. An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and, accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant.'); . . .

  5. People v. Martinez

    179 A.D.2d 935 (N.Y. App. Div. 1992)   Cited 1 times

    To conclude otherwise is "logically repugnant" (People v. Brown, 21 A.D.2d 738, 739; see, People v. Foster, supra, at 152-153; see also, People v. Zimmerman, 46 A.D.2d 725). Accordingly, we would affirm the judgment finding defendant guilty of criminal possession of a weapon in the third degree and, as a matter of discretion in the interest of justice, reverse the judgment for attempted manslaughter in the first degree (see, People v. Jackson, 49 A.D.2d 680). Mahoney, J., concurs.

  6. Stennet v. State

    564 So. 2d 95 (Ala. Crim. App. 1990)   Cited 18 times
    Holding that it is impossible to intend to recklessly cause the death of another because “intentional” and “reckless” are inconsistent terms

    See People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127, 128 (1974) ("An attempt is an intentional act. Manslaughter . . . is a reckless act. One may not intentionally attempt to cause the death of another human being by a reckless act."); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1975) ("There must be an intent to commit a specific crime in order to constitute an attempt. An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and, accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant.

  7. State v. Tagaro

    7 Haw. App. 291 (Haw. Ct. App. 1987)   Cited 9 times
    In State v. Tagaro, 7 Haw. App. 291, 757 P.2d 1175, cert. granted, 69 Haw. 678, ___ P.2d ___ (1987), cert. dismissed, 70 Haw. 666, 796 P.2d 502 (1988), the Intermediate Court of Appeals (ICA) held, inter alia, that "a person charged with attempted murder, an intentional crime, may be found guilty of attempted manslaughter[,]" pursuant to HRS §§ 705-500 and 707-702(1)(a), "if the person acted intentionally or knowingly under mitigating circumstances that do not constitute [a] complete justification."

    Because recklessness is a lower degree of culpability than the intentional state of mind required for an attempt, some courts have held that attempted manslaughter is not an included offense of attempted murder. See e.g., State v. Howard, 405 A.2d 206 (Me. 1979) (attempted manslaughter is a "logical impossibility"); People v. McDavis, 97 A.D.2d 302, 469 N.Y.S.2d 508 (1983) (one cannot attempt a crime predicated upon a reckless act); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975) (one cannot intentionally attempt to cause death by a reckless act). Other courts, however, have held the opposite with regard to situations where, as in voluntary manslaughter, the state of mind is the same as in murder.

  8. Cox v. State

    69 Md. App. 396 (Md. Ct. Spec. App. 1987)   Cited 5 times

    In support of his position, appellant cites several decisions of the courts of other states that have held there is no such crime as attempted voluntary manslaughter. See People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1964); overruled on other grounds, People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Reagan, 111 Ill. App.3d 945, 67 Ill.Dec. 506, 444 N.E.2d 742, 744 (1982), aff'd, 99 Ill.2d 238, 75 Ill.Dec. 701, 457 N.E.2d 1260 (1983); People v. Weeks, 86 Ill. App.2d 480, 230 N.E.2d 12, 14 (1967). These decisions have been severely criticized by commentators as failing to recognize that voluntary manslaughter — homicide mitigated downward from murder as a result of serious, legally adequate provocation — can be committed with an intent to kill.

  9. People v. Perez

    108 Misc. 2d 65 (N.Y. Sup. Ct. 1981)   Cited 2 times

    However, murder in the second degree under subdivision 2 of section 125.25 Penal of the Penal Law involves no intent but instead requires a culpable mental state of recklessness. One may not intentionally attempt to cause the death of another by a reckless act (People v. Acevedo, 32 N.Y.2d 807; People v. Foster, 19 N.Y.2d 150; People v. Jackson, 49 A.D.2d 680; People v. Zimmerman, 46 A.D.2d 725; People v. Williams, 40 A.D.2d 1023; People v. Brown, 21 A.D.2d 738). For these reasons, count two of this indictment is dismissed (CPL 210.20, subd. 1, par [a]; 210.25, 200.50, subd. 4).

  10. Matter of Peabody

    86 Misc. 2d 520 (N.Y. Fam. Ct. 1976)   Cited 3 times
    In Matter of Peabody (86 Misc.2d 520), the Family Court (Queens County) dismissed a petition where a juvenile possessed a sawed-off shotgun 22 1/4 inches long. Citing Palermo and Roberts, the court stated (supra, p 524) that "There is considerable case authority to the effect that a sawed-off shotgun of more than 18 inches in length is not a concealed weapon as defined in subdivision 3 of section 265.00 Penal of the Penal Law."

    The possession of a shotgun without a certificate is not "necessarily included" in the crime of possession of a "firearm" as defined in the Penal Law, which were the only acts charged in the instant petition. (CPL 1.20, subd [37]; People v Jackson, 49 A.D.2d 680, 681.) The petition is dismissed.