Introduction

Attempt Merging Into Completion

Introduction

A defendant sets out to commit a crime, goes far enough to be guilty of attempting it, and then finishes the job. The prosecutor, holding proof of both stages, charges the attempt and the completed offense together. The question is whether a jury may convict of both or whether the completed crime swallows the attempt. Criminal law calls that swallowing merger, meaning the absorption of a lesser offense into a more serious one when the defendant is charged with both, so that only the more serious offense supports a conviction.¹ The same word names a different limit in homicide law, where it keeps certain predicate felonies from supporting a felony-murder charge, and it describes a smaller contract, estate, or claim being absorbed into a larger one in civil law, so neither of those meanings governs here.²

The idea began at common law, which sorted offenses by grade. Solicitation, attempt, and conspiracy were misdemeanors in their preliminary form, and if the defendant or another actor completed the principal offense, the law treated the completed crime as the felony and regarded the inchoate conduct as merged into it.³ The logic follows from what a preliminary offense is: an early stage of the same course of conduct that the completed crime finishes. Once the whole course of conduct is proved, the early stage adds nothing that the felony does not already cover, and convicting of both would count a single wrong twice. In the common-law version, the doctrine worked by comparing the grade of the two offenses, with the misdemeanor yielding to the felony.

Modern American law keeps the result for attempt on a different footing. A defendant who completes a crime after attempting it generally cannot be convicted of both, because every element of the attempt is contained in the completed offense, which makes the attempt a lesser included offense of the crime attempted.⁴ Conspiracy is the contrast, since in most jurisdictions it does not merge with the completed crime and a defendant can be convicted of both.⁵ This chapter follows that development: the common-law rule and its felony and misdemeanor logic, the reasons the rule wore away, the narrow bar that survives for attempt, and the comparison with the other inchoate offenses. The elements of attempt are taken as established in the attempts unit, so the analysis here begins once an attempt has been proved and the target crime was also completed. The first section takes up the common-law doctrine, where the idea started.