Brief Fact Summary. Defendants were charged with attempted larceny after being arrested in the house of the intended victim. Several pieces of jewelry were found hidden in the vicinity of Defendants after they were arrested.
Synopsis of Rule of Law. The function of the overt act element of the crime of attempt is to demonstrate that Defendant has converted thought to action in furtherance of the crime.
Issue. Whether, after Defendants entered Gatzmeyer’s house, there was an overt act that would support a conviction for attempted larceny.
Held. Reversed and remanded for a new trial.
The mere entry into the house did not constitute an overt act under the circumstances because Defendants were rightfully in the house by permission of the home owner.
The function of the overt act is to demonstrate that Defendant has converted thought and resolution to action in furtherance of the crime.
The overt act is not ambiguous in nature or equivocal, it must go beyond this.
Discussion. The Court ruled that the jury received incorrect instructions. However, the opinion focused on the entry of Defendants into the home of the alleged victim. The Court noted that Defendants had on several occasions entered Gatzmeyer’s home to do repair work at her request. Therefore, the Court noted, Defendants had not committed to the crime, they still had time to decide not to commit the crime, even if they had entered her home with the intent to do so. The act of entering the home was ambiguous; it was the acts after entering the home that would have to be examined, but which there is not finding from the jury on.