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10/28/77 COMMONWEALTH v. LAURENCE R. HEBERT

October 28, 1977

COMMONWEALTH
v.
LAURENCE R. HEBERT



Berkshire. Indictment found and returned in the Superior Court on April 8, 1975. The case was tried before Tisdale, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Wilkins, JJ. Quirico, J., Concurring in the result.

SYLLABUS BY THE COURT

Attempt. Homicide.

The opinion of the court was delivered by: Braucher

There is no such crime as attempted involuntary manslaughter. [537]

Discussion of whether there is such a crime as attempted voluntary manslaughter. [537-539]

In view of the duplication which would arise if this court recognized as crimes both assault with intent to kill under G. L. c. 265, § 29, and attempted manslaughter under G. L. c. 274, § 6, it declined to read the latter statute as extending to manslaughter. [539-540] Quirico, J., Concurring in the result.

The defendant appealed his conviction of "attempted manslaughter," and we allowed his application for direct appellate review. We hold that there is no such crime, and reverse.

The defendant was indicted for attempted murder, rape, assault with intent to murder, and assault and battery, all arising out of an incident on February 22, 1975. After trial in May, 1975, he was acquitted of rape and assault with intent to murder and convicted of assault and battery and attempted manslaughter. He was sentenced to two and one-half years in a house of correction on the charge of assault and battery, and to two and one-half years from and after that sentence on the attempted manslaughter charge. The latter sentence was suspended, and the defendant was placed on probation for five years on condition that he take psychiatric treatment. He appealed only from the conviction of attempted manslaughter, and is now on parole from the conviction of assault and battery.

The victim testified that the defendant had sexual intercourse with her without her consent. Afterward, she said, he strangled her until she passed out; when she revived he threatened to kill her. He also struck her. The defendant testified that he had consensual intercourse with the victim, that in frustration with himself he struck her, and that she did not answer when he asked whether she was all right. He denied the strangling. There was no evidence of provocation.

On the indictment for assault with intent to murder, the Judge instructed the jury as to murder, voluntary manslaughter, and involuntary manslaughter, and instructed them that they could find the defendant guilty of assault with intent to commit murder, or guilty of assault with intent to commit manslaughter, or not guilty. He then instructed them as to attempted murder: "if a person is engaged in the accomplishment of an unlawful purpose and has gone far enough in accomplishing the purpose so that it is reasonably probable the purpose would have been accomplished if it had not been frustrated by the intervention of another or by other causes, the evidence is sufficient to show an attempt to commit the crime charged." They would have to determine whether it was attempted murder; if not, "then would it be manslaughter?" Finally, they could find the defendant not guilty. The defendant took exception "to all of that part of the charge which referred to the lesser included offense of manslaughter."

1. Attempted involuntary manslaughter. Attempted murder is punishable under G. L. c. 265, § 16, if committed by poisoning, drowning or strangling or by means not constituting an assault with intent to commit murder; any attempt to commit a crime is punishable under G. L. c. 274, § 6. The Commonwealth concedes that there is no such crime as attempted involuntary manslaughter. An attempt to commit a crime necessarily involves an intent to commit that crime. Commonwealth v. McLaughlin, 105 Mass. 460, 463 (1870). See Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974). Involuntary manslaughter is homicide unintentionally caused. Commonwealth v. McCauley, 355 Mass. 554, 560 (1969), and cases cited. Hence an attempt to commit involuntary manslaughter is logically impossible. People v. Genes, 58 Mich. App. 108, 110 (1975). People v. Foster, 19 N.Y.2d 150, 152-153 (1967) (statute defined manslaughter as homicide "without a design to effect death"). Gonzales v. State, 532 S.W.2d 343, 345 (Tex. Crim. App. 1976). See Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 575-577 (1961).

2. Attempted voluntary manslaughter. We have not had occasion to decide whether there is a crime of attempted voluntary manslaughter. Authority elsewhere is sparse and inconclusive. Compare People v. Weeks, 86 Ill. App. 2d 480, 485 (1967) (no such crime), with State v. Harper, 205 La. 228, 230-231 (1944) (affirming conviction), and People v. Genes, 58 Mich. App. 108, 110 (1975) (dictum). See Smith, Two Problems in Criminal Attempts, 70 Harv. L. Rev. 422, 434 (1957); R. Perkins, 575 n.11 (2d ed. 1969).

We think an attempt to commit voluntary manslaughter is logically possible. An intent to kill "may exist when one intends only such killing as amounts to manslaughter." Commonwealth v. Demboski, 283 Mass. 315, 322 (1933). In the Demboski case we held that a defendant indicted for assault with intent to murder under G. L. c. 265, § 15, could be convicted of the lesser included crime of assault with intent to kill under G. L. c. 265, § 29. We treated the latter crime as assault with intent to commit manslaughter. We stand by that decision, which has been applied more recently. Commonwealth v. Martin, 369 Mass. 640, 641 n.1 (1976). Commonwealth v. Jervis, 368 Mass. 638 (1975). We ...


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