3. Trying To Figure Out A Legal Problem: When Does “Commission of a Felony” occur?

Jimmy’s withdrawal from our plan to murder Albie complicates things a little bit. Roger and I discuss it. We decide to go on. We figure we can still do the job but Roger has to pick up where Jimmy left off so he can get familiar with Alby’s move. Roger suggests we wait a week or so and I agree .

At this stage we are beyond the agreement stage. We have started actively planning the murder and taken steps toward its commission. We are legally known as accessories before the fact and are to be punished in the same manner as the person who commits the offense. You could say we aided, counseled, hired, or procured the other to commit the murder. As  one statute reads who does that is a principal and “may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.”

A few questions remain though: Has the crime of attempted murder or murder  been committed at this stage?

It would seem obviously the murder has not been committed. Alby is still very much alive. We’ve been talking to him off and on.

What about the attempt? We’ve planned it but have not done anything to move forward toward its commission. So it is unlikely any attempt has been made. If along with Jimmy we decided to call the venture off would there be any crime beyond conspiracy?  Is Spike part of the conspiracy? Can Jimmy withdraw from the conspiracy? Or is it once having agreed there is no way one can disentangle oneself?

True the murder has not been committed but if it is committed have these acts up to this time been done during the commission of the murder? Even before the attempt has been undertaken, are acts in preparation of the murder acts committed during the commission of the murder? Is murder a continuing offense that occurs when it is first suggested no matter where the suggestion is made or how long before it occurred?

A week later Roger and I meet in Roger’s car outside the boys club. Spike and Jimmy are out of the picture. Roger has made himself familiar with Alby’s routine. We put our head together and figure it is going to be difficult to shoot  him and get away with it. He seems to have protected himself pretty well. All the time he is out he is with people who know us and will quickly finger us.

Roger who always carries takes out his gun and gives it to me. He says, “let’s go for a walk. Put the gun in this lunch bag and see how it feels.” I walk with the gun hidden inside the brown bag as we walk up toward the cemetery and back. I tell him it seemed easy to carry it like that. He said that’s how we’d probably carry them. We act as if we are going to work. I said it sounds good but I really don’t see any way we can do it.

Roger said: “You know walking up the street – do you remember Stippo Rakes – well I thought of how he was offed. You remember?” Of course I did, some guy slipped potassium cyanide into his ice coffee. Roger went on: “That’s how we can do it. You know how he has coffee at the diner – let’s run into him there and poison him.” We went back and forth deciding the best was to do it without getting caught. We’d leave the guns behind not wanting to be stopped by some cop interested in doing a pat down. No use bothering you with the rest – we managed to do it and Albie ended up dead by our hands. Three weeks after Spike brought the matter up Albie was dead.

(continued tomorrow)