Copyright 1965, American Law Institute
§ 23 TERMINATION OF ATTEMPT AFTER OTHER'S KNOWLEDGE
If the actor has so acted as to put another in apprehension of
an immediate and harmful or offensive contact, he is subject to liability
for an assault although he thereafter terminates his attempt or it is frustrated.
COMMENTS & ILLUSTRATIONS: Comment:
a. If the acts done by the actor amount to an attempt to inflict an immediate contact as stated in § 21, it is immaterial in what way the attempt is prevented from accomplishment. The fact that the actor repents and refrains from taking the further steps necessary to accomplish his purpose is immaterial. So too, of course, is the fact that his purpose is defeated through the ineffectiveness of the means adopted to carry it out, or by the intervention of a third person.
1. A points a pistol at B and threatens to shoot him. B is aware of the threat. A changes his mind and lowers the pistol without shooting. A is subject to liability to B.
2. A points a pistol at B intending and threatening to shoot him, and B is aware of the threat. Before A can shoot, a bystander strikes the pistol from his hand. A is subject to liability to B.
3. A, to B's knowledge, points a pistol at B, intending to shoot him,
and B is aware of it. A has forgotten to load the gun. He snaps the trigger
but the gun does not fire. A is subject to liability to B.
REPORTERS NOTES: The title of this Section has been changed from the first Restatement, and its language has been broadened to include any termination of the attempt. No significant change in substance is intended.
Illustration 1 is based on Holdorf v. Holdorf, 185 Iowa 839, 169 N.W. 737 (1918).
Illustration 2 is based on Stephens v. Myers, 4 C. & P. 349, 172 Eng. Rep. 735 (1830).