When two people have agreed to a common criminal purpose and one deliberately departs from the common criminal purpose, the person who departed from it negates his complicity in the criminal partnership.
Two men agreed to a common purpose of committing a robbery. They chose the house they were going to rob; they watched the house to make sure the house was empty. They planned how they will enter the house and escape after the robbery and how they will dispose of the stolen items.
On the night of the robbery, the two drove up to the house. They succeeded in entering the house without causing a commotion. But as they were taking things of value from the house, one of the robbers saw an oxygen cylinder next to a hospital-type bed in a young child’s room. Thinking of his own son, he left the items of value on the floor, walked out the door and left the other robber. The other robber left the house with all the stolen items, disposed of them and benefitted from the robbery all on his own.
In this case, the first robber departed deliberately from the criminal purpose. He may be charged with breaking and entering but he cannot be charged with criminal complicity as a principal or as an accessory in the robbery. He can be charged with attempting a robbery but he cannot be charged with the robbery itself.
This defence comprehends a deliberate departure from the criminal purpose: a voluntary decision on the part of the person to desist from further commission of the crime. His desistance must have occurred prior to committing the acts constituting the elements of the crime. The robber in the example had entered the house but he totally stopped before committing all the physical acts constituting the crime of robbery. He had removed things of value but he did not take possession of them. He left them in the house.
Robbery is not committed unless there is a taking of things of value such that the owner is deprived of its possession without his knowledge or consent. Here, the acts committed by the robber did not constitute all the physical acts of the crime of robbery. He has deliberately departed from the criminal purpose.
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