Was watching a police drama (a classic "Taggart" episode) where this was a plotline.

A wife shot her husband while he was "sleeping", and subsequently confessed to his murder. Yet (this being Taggart) it turned out that the husband had actually been dead at the time she shot him, having previously been stabbed by another party.

If this situation were to occur in real life (exceptionally unlikely as this might be), what, if any, crime would the wife have committed? And what punishment would she face? Presumably, she presents as much danger to society as someone who had actually killed their husband would do (since she has proven that she is prepared to kill someone, even if she actually didn't), so if part of the purpose of sending criminals to prison is to remove dangerous people from society, logically there is no more or less of a reason to lock her up than there would be if the husband had been alive when she "killed" him. On the other hand, the other purpose of sending criminals to prison is to get justice for the victims of crime, and in this case, she has not actually committed the crime.

Taggart is set in Scotland, where Scots Law applies, but answers from different legal jurisdictions would be welcome.

  • 3
    Attempted murder, I suppose. – phoog Dec 7 '17 at 0:19
  • Indignities to a dead body? – DJohnM Dec 8 '17 at 0:24

In the U.S., this would be attempted murder. While Scotland and the U.S. have laws that differ in many respects, this is not an issue upon which I would anticipate that there would be difference between Scottish law and U.S. law.

And what punishment would she face?

According to Wikipedia:

Attempted murder is a crime at common law in Scotland. Attempted murder is the same as the offence of murder in Scottish law with the only difference being that the victim has not died. The offence of murder was defined in Drury v HM Advocate:

“[M]urder is constituted by any wilful act causing the destruction of life, by which the perpetrator either wickedly intends to kill or displays wicked recklessness as to whether the victim lives or dies.”

Intention can be inferred from the circumstances of the case. Wicked recklessness is determined objectively and is "recklessness so gross that it indicates a state of mind which falls to be treated as wicked and depraved as the state of mind of a deliberate killer." As with all common law offences in Scotland, the maximum punishment available is life imprisonment.

Despite the maximum punishment available, I suspect that the Scottish courts would be more lenient than U.S. Courts in similar circumstances, on average. Sentencing judges have broad discretion and that would be informed by the circumstances and reasoning involved.

Under U.S. law, in most states, crimes are typically graded into various classes of felonies and lesser crimes (Colorado, for example, has five grades of felonies, and three grades of lesser offenses, with a variety of special enhancements and reductions for particular crimes.) And, attempts are typically one grade lower than the crime attempted, although some U.S. states follow the Scottish rule and treat attempts and the crimes themselves as of the same grade.

What you describe would be desecration of a corpse; the BBC says this is actually a crime in Scotland, but the Good Funeral Guide thinks otherwise. Since my knowledge of the relevant Scottish law is no more recent than Burke and Hare, I will leave it as an exercise for the ghoulish student.

There is no crime. Attempted murder is, by definition, only against someone who is alive.

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    See en.wikipedia.org/wiki/People_v._Dlugash , where someone did get convicted for attempted murder as a result of shooting a dead body. For murder, the victim must be alive, but not for attempted murder. – gnasher729 Dec 11 '17 at 0:13
  • @gnasher729 That is just an error of the court. Courts (and juries) make mistakes and unjust rulings all the time. The fact that 13 idiots in the state of New York decided that it was possible to commit attempted murder against a corpse, does not make it a point of law in Scotland. – Cicero Dec 11 '17 at 0:45
  • @Cicero: Any sources, perhaps? – chirlu Dec 11 '17 at 4:16
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    @Cicero: US law used to have very subtle distinctions between "factual impossibility" and "legal impossibility", where a case could go either way. This seems to have gone away, and the intent of murder plus acting on that intent makes it attempted murder. That case was not a mistake; there are several similar examples in the USA (and a jury decides on the facts, not on the law, so this would have not been the decision of the jury. The jury would decide whether or not someone shot a dead body, not if this would be attempted murder). ... – gnasher729 Dec 11 '17 at 21:16
  • 1
    ... so if you want to make statements about Scotish laws, you really need to support this with some source. And I'll just state the obvious: Shooting a living person is murder. Trying to shoot a living person, and it doesn't work for any reason, that's attempted murder. The reason may be a faulty gun, being a bad shot, police stopping them just in time, or the intended victim just having died - it's all the same, it's attempted murder. – gnasher729 Dec 11 '17 at 21:17

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