Impossibility Defense - Factual Impossibility

Factual Impossibility

An impossibility occurs when, at the time of the attempt, the facts make the intended crime impossible to commit although the defendant is unaware of this when the attempt is made. In People v. Lee Kong, 95 Cal. 666, 30 P. 800 (1892), the defendant was found guilty for attempted murder for shooting at a hole in the roof, believing his victim to be there, and indeed, where his victim had been only moments before but was not at the time of the shooting. Another case involving the defense of factual impossibility is Commonwealth v. Johnson, in which a wife intended to put arsenic in her husband's coffee but by mistake added the customary sugar instead. Later she felt repentant and confessed her acts to the police. She was arrested, tried, and convicted of attempted murder. In United States v. Thomas the court held that men who believed they were raping a drunken, unconscious woman were guilty of attempted rape, even though the woman was actually dead at the time sexual intercourse took place.