Instruction 4.120, Criminal Model Jury Instructions for Use in the District Court

ATTEMPT

G.L. c. 274, § 6

In this Commonwealth, an attempt to commit a crime is itself a

crime. The essence of the crime of attempt is that a person has a

specific intent to commit a crime and takes a specific step (or steps)

toward committing that crime.

The defendant is charged with (attempted) (an attempt to)

_________. If the offense of ______ was completed, the

Commonwealth would have to prove __ elements to obtain a

conviction. They are:

[List the elements of the attempted offense.]

Here, because the defendant is only charged with (attempting)

(having attempted) to commit the offense, the Commonwealth must

prove two things beyond a reasonable doubt:

First: That the defendant had a specific intent to commit

_________; and

Second: That the defendant took an overt act toward

committing that crime and came reasonably close to actually carrying

out the crime.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant specifically intended to

commit the crime of ___________. A person’s intent is their purpose

or objective. This requires you to make a decision about the

defendant’s state of mind at that time. You may examine any actions

or words of the defendant, and all of the surrounding circumstances,

to help you determine what the defendant’s intent was at that time.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant took an overt act

toward committing that crime and came reasonably close to actually

carrying out the crime. An overt act is some actual, outward, physical

action, as opposed to mere talk or planning. It is not enough that

someone just intends to commit a crime or talks about doing so. The

overt act must also be a real step toward carrying out that crime.

Preliminary preparations to commit a crime are not enough.

If the Commonwealth has proved both elements of the offense

beyond a reasonable doubt, you should find the defendant guilty. If

the Commonwealth has failed to prove one or more of the elements

beyond a reasonable doubt, you must find the defendant not guilty.

SUPPLEMENTAL INSTRUCTION

Additional instruction on the meaning of an overt act.

The overt act has to be more of a step toward actually

committing the crime, after all the preparations have been made. It

must be the sort of act that you could reasonably expect to trigger a

natural chain of events that will result in the commission of the crime,

unless some outside factor intervenes.

The act does not have to make completion of the crime

inevitable. For example, (a pickpocket can be guilty of attempted

larceny for putting his hand in another person’s pocket with the intent

to steal, even if it turns out that there is no money in that pocket) (a

person can be guilty of attempted murder even if they did not know

the pistol was unloaded when they shot it at someone). But the overt

act must be closely linked with actually accomplishing the intended

crime. It has to be an act that is not too remote, and that is

reasonably expected to bring about the crime. This is a question of

fact that you must determine from all the evidence in the case.