2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 4 - Criminal Attempt, Conspiracy, and Solicitation
§ 16-4-4. Impossibility as a Defense

Universal Citation: GA Code § 16-4-4 (2020)

It is no defense to a charge of criminal attempt that the crime the accused is charged with attempting was, under the attendant circumstances, factually or legally impossible of commission if such crime could have been committed had the attendant circumstances been as the accused believed them to be.

(Code 1933, § 26-1002, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U. L. Rev. 537 (1993).

JUDICIAL DECISIONS

Predicate act sufficiently set forth in indictment.

- Indictment clearly specified the predicate acts alleged against the defendants by count one specifying that the pattern of racketeering activity was unlawfully obtaining oxycodone, and it incorporated as predicate acts the remaining counts of the indictment charging the defendants with unlawfully obtaining oxycodone. Kimbrough v. State, 336 Ga. App. 381, 785 S.E.2d 54 (2016).

Trafficking imitation cocaine.

- The fact that the defendant attempted to traffic imitation cocaine does not relieve defendant of culpability absent evidence that defendant knew the substance was not cocaine. Durfee v. State, 221 Ga. App. 211, 471 S.E.2d 32 (1996).

Aggravated assault with intent to rape.

- Defendant's belief that the victim was a female and defendant's actions taken towards the victim were sufficient to establish defendant's intent to rape; fact that the victim turned out to be a male rendering an actual rape impossible did not affect defendant's culpability. Gordon v. State, 252 Ga. App. 133, 555 S.E.2d 793 (2001).

Participation and relationship sufficiently set forth in indictment.

- Indictment, when read as a whole, was sufficient to withstand the special demurrer on the grounds that it did not sufficiently allege the manner in which the defendants participated in the enterprise and the enterprise's relationship to the alleged racketeering activity because it specified in the counts alleging predicate acts the acts that amounted to the defendants' participation in the enterprise. Kimbrough v. State, 336 Ga. App. 381, 785 S.E.2d 54 (2016).

Evidence sufficient to satisfy defense.

- Defendant's actual inability to complete drug purchase because defendant had no money with the defendant falls within the definition of impossibility set forth in O.C.G.A. § 16-4-4. Guzman v. State, 206 Ga. App. 170, 424 S.E.2d 849 (1992).

Defense not supported by the evidence.

- Evidence that a defendant gave a detective checks for $7,000 to kill the defendant's uncle and described the defendant's uncle's location was sufficient to support the defendant's convictions for criminal attempt to commit murder and solicitation of murder. Impossibility was not a defense, although the uncle was through airport security and there were no funds in the defendant's account, because the defendant believed that the hit could take place and that the checks would persuade the supposed hit man to commit the murder. Rana v. State, 304 Ga. App. 750, 697 S.E.2d 867, cert. denied, No. S10C1764, 2010 Ga. LEXIS 922 (Ga.), cert. denied, U.S. , 131 S. Ct. 156, 178 L. Ed. 2d 93 (2010).

Cited in Williams v. State, 123 Ga. App. 9, 179 S.E.2d 351 (1970); Riddle v. State, 145 Ga. App. 328, 243 S.E.2d 607 (1978); Hibbert v. State, 146 Ga. App. 887, 247 S.E.2d 554 (1978); Logan v. State, 309 Ga. App. 95, 709 S.E.2d 302 (2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 151.

ALR.

- Criminal responsibility of one co-operating in offense which he is incapable of committing personally, 74 A.L.R. 1110; 131 A.L.R. 1322.

Attempts to receive stolen property, 85 A.L.R.2d 259.

What constitutes attempted murder, 54 A.L.R.3d 612.

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime, 41 A.L.R.4th 588.

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