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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.

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  • 9
    Attempted murder, I suppose.
    – phoog
    Commented Dec 7, 2017 at 0:19
  • 6
    Indignities to a dead body?
    – DJohnM
    Commented Dec 8, 2017 at 0:24
  • I recall a Perry Mason novel with this same plot device, in which it was suggested that it might be a misdemeanor offense of "mutilating a corpse" or might be attempted murder. The point was not settled in that book. Commented Oct 1, 2019 at 18:09
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    @DavidSiegel Interestingly, if the mens rea requirement of "mutilating a corpse" is interpreted as requiring knowledge that it is a corpse, then "I thought the body I shot was still alive" could be a defense to the charge. Commented Oct 1, 2019 at 20:50
  • Well who mentioned attempted murder here? If the victim is dead, then we should be looking at crimes against corpses. The crime would probably be the desecration of the corpse or its equivalent, even if the person thought that the corpse was living. That last interpretation might change in the states, however. Commented Jan 2, 2020 at 6:12

3 Answers 3

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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.

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  • "three grades of lesser offenses" Are you referring only to misdemeanors, and not including violations? Commented Oct 1, 2019 at 20:52
  • @Acccumulation In the Colorado case, I am referring to matters that have the status of "crimes" in the penal code, the "lesser offenses" that I reference are Misdemeanor 1, Misdemeanor 2 and Petty Offense, all of which are punishable by a fine and/or some period of incarceration (disregarding limitations on how sentencing discretion can be exercised, for example, prohibiting less than a mid-point sentence within the allowed range for some crimes and limiting "good time" for some crimes). There are also non-criminal punitive traffic offenses, civil fines & local government ordinance violations.
    – ohwilleke
    Commented Oct 2, 2019 at 19:09
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    The Wikipedia article claims "same as murder ... except the victim has not died". Here the victim has died, except not because of the (attempted?) murder action.
    – gnasher729
    Commented Jan 4, 2020 at 0:26
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    @gnasher729 Fair enough, but a distinction without a difference in this fact pattern. Wikipedia is just being a little sloppy in its wording because it is not thinking about this fact pattern.
    – ohwilleke
    Commented Jan 8, 2020 at 0:21
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In at least some US states (I suspect most or all of them) this would be attempted murder. This page from US legal quotes the law from Illinois as typical:

§ 720 ILCS 5/8-4. Attempt

Sec. 8-4. Attempt. (a) Elements of the Offense. A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.

(b) Impossibility. It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.

(c) Sentence. A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted ... [There are cases where the sentence is limited, which I omit.]

That law would make it attempted murder, but only if the person had intended to commit murder, which means that the person must have thought that the victim was alive, as suggested in the comment by user supercat.

I would be surprised if the law in Scotland was very different from this, but I cannot say for sure.

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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.

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