In Re Appeal No. 568, Term 1974

Morton, J., delivered the opinion of the Court. The appellant, a male child fourteen years of age, 1 was adjudged to be a delinquent by the Division of Juvenile Causes in the Circuit Court of Baltimore City (Hammerman, J., presiding) and committed to the Department of Juvenile Services. In this appeal it is contended that “[tjhere was no proof of ownership of the property the appellant allegedly attempted to take and therefore the evidence is insufficient to sustain the conviction.” A uniformed Baltimore City police officer testified at the hearing below that about 4 p.m. in the afternoon of April 30, 1974, he and a fellow officer “were working a purse snatch, pickpocket detail in the downtown area * * *.” According to the officer, they were standing in the display window of a department store at the corner of Howard and Lexington Streets when he observed “a white female, approximately thirty-five years of age, approach the intersection * * * followed closely by two black male youths. * * * I observed one of the youths [whom he identified as appellant] reach over with his right hand and lift up a flap to her purse which was hanging from her left shoulder, reach inside of her ²²⁰ purse.” He “notified my partner” and as they left the store, “I observed another black male that was in company of the first male reach over and place his hand in the purse at which time he saw myself and the other officer entering the scene.” Both youths “broke and ran” in opposite directions. They were pursued by the officers and both were apprehended.

The intended victim, who was apparently unaware of what had been taking place, disappeared into the crowd and has never been located. The appellant did not testify. In this factual posture, appellant contends that the evidence before the juvenile judge was legally insufficient to establish an attempted larceny because the State failed to produce the intended victim as a witness and failed to prove what her pocketbook contained. To establish the crime of larceny, the appellant contends, it is necessary to prove “ownership of the property alleged to have been stolen * * citing Wersten v. State, 228 Md. 226, 228 , and Lee v. State, 238 Md. 224 .

From this, he argues that “the attempt is, in this case, no different from the completed offense” and since “[n]ot a single word in the case at bar was offered to show that the ‘unknown female’ had any legal interest in the property the Appellant allegedly attempted to take,” a finding that he was guilty of attempted larceny and, therefore, a delinquent must fall. While we do not quarrel with appellant’s premise that proof of ownership, or at least a possessory interest in the property attempted to be stolen, is an essential ingredient to a conviction of larceny, Santoni v. State, 5 Md. App. 609, 622 , we cannot subscribe to his proposition that there is no difference between the legal requisites to establish the crime of larceny and the legal requisites to establish the crime of attempted larceny. The appellant, in effect, argues that without the testimony of the victim there was no proof that her purse contained anything of value. This being so, he asserts that “the instant case is a classic legal impossibility situation.” It is certainly true that “[ljegal impossibility to commit the ²²¹ intended crime may be a valid defense and where the impossibility arises by operation of law the accused cannot be convicted of an attempt.” Waters v. State, 2 Md. App. 216, 226 .

On the other hand, the cases and text authorities delineate a distinction between a “legal impossibility” to commit the intended crime and what has been termed “factual impossibility” to commit the crime. While the distinction may be clear or cloudy, depending upon the factual circumstances in which the issue arises, there nevertheless is a distinction. Thus, “legal impossibility” may excuse the attempt to commit an intended crime but “factual impossibility” will never serve as a valid defense to such conduct. In Waters, supra, it was pointed out that at common law a boy under 14 years of age could not be found guilty of rape and, therefore, it was legally impossible for him to be found guilty of attempted rape.

On the other hand, “[p]hysical incapacity to commit a crime does not affect the capacity of one to be guilty of an attempt. Thus a man who is physically impotent may be guilty of an attempt to commit rape.” Focusing the distinction somewhat closer to the factual situation presented in the case before us, it is stated in Clark and Marshall, A Treatise on the Law of Crimes, 7th ed., § 4.10: “According to the decided weight of authority, both in England and in this country, an apparent possibility to commit the intended crime is sufficient. The fact that conditions exist which render the actual consummation of the crime impossible does not prevent the party from being guilty of an attempt, if the conditions are not known to him. Thus, it has