Question

Y makes an attempt to steal some jewels by breaking open a box and finds, after opening the box, that there is no jewel in it. Choose the appropriate answer.

• A. Y is not guilty of attempt to theft because the box was empty.
• B. Y is guilty of attempt to commit theft.
• C. Y is guilty of trespass.
• D. Y is not guilty of any offence.

Hint:

Failure is built into every attempt, so it cannot be a defence. Ask only about Y's intention and whether his act went past mere preparation.

Answer 1

The Correct Option is B

Test Y against the two building blocks of an attempt. First, did he mean to commit the offence? Second, did he do something towards it that crossed the line from preparation into execution? If both boxes tick, the attempt is made out, and the question of whether he actually got the jewels never arises. Success is what turns an attempt into the completed offence, so failure is a normal feature of an attempt charge, not a defence to it.

1. Y is not guilty of attempt to theft because the box was empty: This makes impossibility into an excuse, which the law refuses to do. Y behaved exactly as a thief behaves and was stopped only by a fact he had no idea about. If this option were right, a pickpocket would be innocent whenever he happened to pick a poor man's pocket, which is an absurd result.
2. Y is guilty of attempt to commit theft: Both blocks are in place. His intention was to steal the jewels, stated on the face of the facts. His act, breaking open the box, is an overt step aimed directly at the theft and is the last act he could perform before taking the jewels. The Penal Code even carries an illustration on exactly this point, of a man who reaches into an empty pocket meaning to steal and is held guilty of attempting theft.
3. Y is guilty of trespass: Nothing in the facts says Y entered anyone's property unlawfully or with intent to insult or annoy. Breaking open a box is not trespass, and reaching for a different offence when the fitting one is available is not sound reasoning.
4. Y is not guilty of any offence: This treats Y as though he were still at the thinking stage. He was not. Bare intention and even preparation may go unpunished, but Y went further and broke the box open, which is execution.

So option (B) is the answer. The rule worth carrying away is that the criminality of an attempt is measured by the accused's intention and conduct, not by the luck of what he found waiting for him.

Let's summarize:

• An attempt needs a guilty intention plus an act that goes beyond mere preparation.
• Failure is inherent in an attempt, so it can never be a defence to the charge.
• An attempt at something factually impossible, such as stealing from an empty container, is still punishable.

Y meant to steal and broke the box open in doing so, which makes him guilty of attempt to commit theft under option (B).