| Court: | Wisconsin Court of Appeals |
| Facts: | Damms was estranged from his wife, who was in turn estranged from her mom. In an effort to effect reconciliation, he brought her to her mother's house, drove her around, threatened her, brought her back to her mother's house, drove her out of town, and stopped at a diner. She got out and started escaping, at which point, he wrestled her to the ground, and aimed an unloaded gun at her head, pulling the trigger. |
| Posture: | Guilty at trial. Appealed. |
| Issue: | Two issues. Did the fact that the gun was unloaded preclude the possibility of attempt? If not, was there sufficient evidence? |
| Holding: | No, if he thought it was loaded. Yes, if he thought it was loaded. |
| Rule: | If the crime would have succeeded except for some extraneous factor, there was an attempt. |
| Reasoning: | Clearly if the gun had been loaded, there would have been a murder. The point at which it becomes an attempt is the locus poenitentiae, the last moment at which he could repent and withdraw. We got past that. |
| Dicta: | |