§702-209  Conditional intent.  When a
particular intent is necessary to establish an element of an offense, it is
immaterial that such intent was conditional unless the condition negatives the
harm or evil sought to be prevented by the law prohibiting the offense. [L
1972, c 9, pt of §1]



 



COMMENTARY ON §702-209



 



  This section provides that when the law requires that a
particular intent is necessary to establish an element of an offense, that
intent is established notwithstanding its conditional nature, unless the
condition negatives the harm or evil sought to be prevented.  The section
provides for a common sense result, and the cases in which the condition
negatives the harm or evil sought to be prevented will not be many;
nevertheless the distinction should be stated.



  The section can best be illustrated by example.  A person
accused of burglary would not be excused because the person intended to steal
only if no one else was in the building, whereas a person charged with
attempted rape, predicated on a preliminary assault, would be excused of that
offense if the person intended to effect sexual intercourse only if the mature
victim consented.  In the latter case, however, the person would, most likely,
be guilty of an assault.