The defendant, Ralph Damms, was charged by information with the offense of attempt to commit murder in the first degree. The jury found the defendant guilty as charged, and the defendant was sentenced to imprisonment in the state prison at Waupun for a term of not more than ten years. Damms appealed to the Wisconsin Supreme Court. The Supreme Court affirmed the conviction. CURRIE, J.

The alleged crime occurred on April 6, 1959, near Menomonee Falls in Waukesha County. Prior to that date Marjory Damms, wife of the defendant, had instituted an action for divorce against him and the parties lived apart. She was 39 years old and he 33 years of age. Marjory Damms was also estranged from her mother, Mrs. Laura Grant.

That morning, a little before eight o’clock, Damms drove his automobile to the vicinity in Milwaukee where he knew Mrs. Damms would take the bus to go to work. He saw her walking along the sidewalk, stopped, and induced her to enter the car by falsely stating that Mrs. Grant was ill and dying. They drove to Mrs. Grant’s home. Mrs. Damms then discovered that her mother was up and about and not seriously ill. Nevertheless, the two Damms remained there nearly two hours conversing and drinking coffee. Apparently, it was the intention of Damms to induce a reconciliation between mother and daughter, hoping it would result in one between himself and his wife, but not much progress was achieved in such direction. 

At the conclusion of the conversation, Mrs. Damms expressed the wish to phone for a taxicab to take her to work. Damms insisted on her getting into his car, and said he would drive her to work. They again entered his car, but instead of driving south toward her place of employment, he drove in the opposite direction. Some conversation was had in which he stated that it was possible for a person to die quickly and not be able to make amends for anything done in the past, and he referred to the possibility of “judgment day” occurring suddenly.  

QUESTIONS 

1. List all the facts relevant to deciding whether Ralph Damms intended to murder Marjory Damms. 

2. List all the facts relevant to deciding whether Damms had taken enough steps to attempt to murder Marjory Damms according to the Wisconsin statute.

3. Summarize the majority’s arguments that the unloaded gun was an extraneous factor, a stroke of luck Damms shouldn’t benefit from. 

4. Summarize the dissent’s arguments that the unloaded gun was not an extraneous factor but an impossibility that prevents Damms from attempting to murder Marjorie Damms. 

5. In your opinion, is the majority or dissent right? Explain your answer in terms of what effect impossibility should have on liability for criminal attempt. 

6. Should it matter why the gun was unloaded? Explain your answer. 

7. What if Damms knew the gun was unloaded? Should he still be guilty of attempted murder? Explain your answer. 

8. Is the Wisconsin rule punishing attempts that are about half the actions needed to complete the crime a good idea? 

9. Some states punish attempts at the same level as completed crimes because people bent on committing crimes shouldn’t benefit at all from a stroke of luck. Do you agree? Defend your answer with arguments from the case excerpt and the text.