Smallwood(Md. 1996):

Facts: D was convicted of assault with intent to murder his rape victim by having sex without a condom when he knew that he was HIV positive.

Issue: what legal inferences may be drawn when an individual infected with the HIV virus knowingly exposes another to the risk of HIV infection and the resulting risk of death by AIDS

Reasoning：

∙ D argued that the evidence is insufficient to infer an intent to kill and can only infer recklessness.

∙ Rule: the required intent in the crimes of assault with intent to murder and attempted murder is the specific intent to murder.

∙ An intent to kill can be inferred by circumstantial evidence, such as "the accused's acts, conduct and words".

∙ Cite Raines(Md. 1992): under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body.

∙ Distinguish Raines: The magnitude of the risk to which the victim is knowingly exposed: no evidence from which it can reasonably be concluded that death by AIDS is a probable result of D's actions to the same extent that death is the probable result of firing a deadly weapon at a vital part of someone's body

∙ Additional evidence to infer an intent to kill:

1. Hinkhouse(Or. 1996): D actively concealed his HIV-positive status, lied by stating the he was not HIV-positive, refused to use condoms, told his partner "if he were HIV-positive, he would spread the virus to other people". The court held that this evidence was sufficient to infer an intent to kill.

2. Caine(La. 1995): D jabbed a used syringe into a victim's arm while shouting "I'll give you AIDS." conviction of attempted second-degree murder.

∙ In our case, no additional evidence. So the conviction for attempted murder and assault with intent to murder was reversed.

Jones(Ind. 1997):

Facts: D shot at a house full of people, wounding several and killing one. He was convicted of murder of the person he killed but acquitted of attempted murder of those he wounded.

Holding: Attempted murder requires a specific intent to kill, but it is sufficient for murder that D engages in conduct knowing of a high probability that in doing so he will kill someone.

Note: Every attempt requires specific intent to commit the target crime even if the completed crime does not require specific intent.

Why specific intent?

1. Linguistic: To attempt something is to try to accomplish it, and one cannot be said to try if one does not intent to succeed.

2. Moral: One who intends to commit a criminal harm does a greater moral wrong than one who does so recklessly or negligently.

3. Utilitarian: The importance of the intent is not to show that the act was wicked but that it was likely to be followed by hurtful consequences.

Note: Hard to deter something that is not intended

Thacker(Va. 1922):

Facts: D, a drunk, angered by the refusal of a woman who was camping in a tent to admit him, shot at the light shining through the canvas. The bullet missed the woman.

The court held, D, lacking intent to kill, cannot be convicted of attempted murder.

Thomas(Colo. 1986):

Convicted of attempted reckless manslaughter

Go against the general rule

Too broad: Every time when a motorist substantially exceeds the speed limit, he would be convicted of attempted negligent homicide.

Most states have rejected the concept of attempted felony-murder.

Holborn(Haw. 1995):

D , acting under extreme provocation, shoots at his provoker, trying to kill him.

Problem: is D attempting to commit a murder or manslaughter?

Provocation defense is allowed. So attempted voluntary manslaughter.

美国刑法8.Attempt-Mens rea