People v. Lee Kong 95 Cal. 666, (1892) is a case in which the defendant claimed the "impossibility" defense

Impossibility defense

An Impossibility defense is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit. Factual impossibility is rarely an adequate defense at common law. In the United States,...

 to charges of assault, on the basis of a mistake in fact. The ultimate issue

Ultimate issue (law)

An ultimate issue in criminal law is a legal issue at stake in the prosecution of a crime for which an expert witness is providing testimony.-Example:...

 in this case is whether the defendant's actions and intent warrant criminal sanctions even though he failed to achieve a criminal act because the act itself was factually impossible to commit.

Circumstances

A policeman cut a hole through the roof of Lee Kong's building in order to observe Kong gamble. Kong, knowing of the hole, fired his gun through the hole in the roof at the spot where he thought a policeman was located. Because the officer had moved from that spot to another, the shot did not hit him. Kong claimed that since he was mistaken in fact, it was impossible for him to commit the crime. Kong was convicted and appealed to the California Supreme Court.

Decision

The California Supreme Court stated that the exact location of the policeman, as long as he was is in range of being shot by the defendant "does not go to the question of present ability.” Since the defendant had the intention and present ability to commit the assault, the fact that he was mistaken as to the location of the intended victim affords no defense for his act. Therefore Kong's conviction was upheld.

Significance

This is one of the first in a series of cases that imposed liability for an attempted felony even though the crime was impossible to commit because the Defendant was mistaken in fact. It was reinforced by decisions that followed such as that used later in State v. Mitchell

State v. Mitchell

State v. Mitchell, 170 Mo. 633, 71 S.W. 175 , is a precedent-setting decision of the Supreme Court of Missouri which is part of the body of case law involving the prosecution of failed attempts to commit a crime...

 and United States v. Thomas

United States v. Thomas

United States v. Thomas 13 U.S.C.M.A. 278 is a famous case of a military court-martial involving a failed attempt to commit a crime, in this case, rape and the use of the "impossibility" defense.-Circumstances:...

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External links

• Ruling Case Law Developed Established Decisions