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This question inspired by an episode of a certain popular TV detective show.

Mr Smith hates Mr Jones, and plots to kill him. Smith enters Jones' house, and shoots him in bed, while also setting up an alibi for himself. The clever detective quickly breaks the alibi. Then he receives the autopsy. Jones was already dead, having been poisoned by a third party. Detective has to release Smith, saying "You can't murder a dead man."

When I saw that I thought: but surely he's guilty of attempted murder, at least. And then I thought again: can you legally be held responsible for attempted murder if the intended victim is already dead? Would the defense of impossibility apply? [source, The Illustrated Guide to Law, a layman's guide to legal principles, written by a lawyer]

If it matters, the show was set in LA. Would it make a difference if it was set in, e.g. New York, or London, or Canberra?

And by the way:

In the episode, it turned out that Smith was also the poisoner. He gave himself a double alibi. But for the purposes of this question, please assume that the poisoner was a third party

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    which country? There is the charge of desecration of a corpse in some jurisdictions
    – Trish
    Jan 29 at 11:12
  • It wouldn’t be attempted murder if he knew that Jones was dead. If he didn’t know then it would be attempted murder.
    – gnasher729
    Jan 29 at 11:33
  • 2
    Since this is a hypothetical question, and the answer may vary by location, I prefer not to restrict the jurisdiction.
    – Pete
    Jan 29 at 12:36
  • Is the question focused on "attempted murder" or would discussion of other charges such as "desecration of a corpse", "wanton endangerment", "firearms discharge", or "unlawful entry" be germane to what OP is trying to ask?
    – Freiheit
    Jan 29 at 21:16
  • mainly the attempted murder part.
    – Pete
    Jan 29 at 21:30
55

Not only is this possible, it has been done. At least in Canada.

On July 27th 2013 Sammy Yatim was on board a Toronto Transit bus and began brandishing a knife and threatening passengers. Constable James Forcillo of Toronto Police Service responded, and when Yatim ignored warnings and advanced towards police, Forcillo fired three shots, which felled Yatim, followed by another six shots when he was on the ground. An autopsy revealed that the first volley of three shots had killed Yatim almost instantly.

At his trial Forcillo was found not guilty of murder, since the first three shots were deemed justified. But the second volley were deemed not justified. Since Yatim was already dead, Forcillo was not guilty of murder but found guilty of attempted murder.

2
  • Also Amadou Diallo. The officers concerned were tried for 2nd-degree murder, so the prosecutors clearly considered there was a case to answer. And whilst the officers were acquitted, this was highly controversial.
    – Graham
    Feb 1 at 15:17
  • @Graham I don't believe anyone was charged with attempted murder in that case, and that there was no clear case of shooting someone already dead. Feb 1 at 15:50
31

Can you legally be held responsible for attempted murder if the intended victim is already dead?

In the circumstances described in the OP within Yes

The offence may be found at s.1 of the Criminal Attempts Act 1981

(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence

[...]

(2( A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible

[...]

The leading case law is R v Shivpuri [1986] 2 All ER 334.  He was convicted for Criminal Attempt relating to drug trafficking despite the "drugs" actually being an innocent substance (mainly snuff) not subject to any Customs controls and perfectly lawful to possess or import.

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    There is a distinction between what is lawfully impossible and what is factually impossible. For example, if someone honestly believes that importing snuff in to the UK is illegal and thus tries to avoid Customs controls, he would not be guilty of a Criminal Attempt as what he was attempting to do is not a crime.
    – Rock Ape
    Jan 29 at 12:36
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    If he imported snuff successfully, that is if he succeeded with exactly what he wanted to do, that wouldn't be a crime. Therefore if he fails because he is caught, or loses his packet of snuff somewhere in the airport, it isn't an attempted crime. If he imported heroin that would be a crime. If the attempt failed because his supplier sold him snuff then it is an attempted crime.
    – gnasher729
    Jan 29 at 15:17
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    This is the correct answer. A shame it wasn't accepted. Jan 31 at 0:34
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    It's certainly a helpful and informative answer, which I upvoted, but I think the post that cited an actual real life precedent was a little bit better.
    – Pete
    Feb 1 at 14:55
15

You can attempt to murder a dead man

Or conspire to murder them for that matter.

The precedents in Australia relate to receipt of stolen property that was not, in fact, stolen or drug offences that didn’t actually involve drugs but the principle is the same.

However, the law in Australia depends on whether it would be “fair” in the circumstances to prosecute (see Conspiring to do the Impossible The Queen v Barbouttis Commentary on an appeal to be heard against a judgment of the NSW Court of Criminal Appeal (reported in (1995) 37 NSWLR 256)). For the person you describe, it would definitely be fair.

3

Germany

Even though you are not asking about Germany I looked it up, being curious. In German law, too, you can be punished for what's called untauglicher Versuch (perhaps translatable as unsuitable attempt). Attempted murder of a dead body is explicitly listed as a punishable example. The reasoning draws from par. 23 (3) StGB) which stipulates that an unsuitable attempt owed to a "gross lack of judgment" can lead to a penalty reduction or waiver. The implication is that any unsuitable attempt (stupid or not) is considered a crime by this law.

General discussion

The English Wikipedia lists that under "Impossibility defense" and states that "factual impossibility is rarely an adequate defense at common law", similar to the German situation.

I find this legal situation systematically unsatisfactory. It is logically problematic to punish the attempt of a logically impossible act (kill a dead body): Try as they might, they could not have committed any crime, and there is no damaged party. The rationale is surely that the perpetrator did something morally bad and poses a threat to society just the same as somebody who performed a proper attempt.

The dissatisfaction arises because typically, a legal impossibility (somebody thinks they are committing a crime, but they misread the law) prevents punishment for systematic reason: No crime was factually attempted. But we do punish "even more" impossible factually impossible attempts.

The subjective side is identical: The perpetrator wanted to perform a criminal act. If we think this is punishable we should do so in all instances.

4
  • Thank you for the informative answer. I wasn't restricting the location, in fact I tried to make it open to any place. Someone else added the location tags.
    – Pete
    Feb 1 at 14:50
  • This answer would be better if it referenced the law, especially §23 StGB (gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0154), which makes attempted crimes punishable (1), but allows the court to waive penalties (3) if the attempt could not have succeeded (the "impossibility defence").
    – Polygnome
    Feb 1 at 15:11
  • 1
    @Polygnome I see what you said: section (3) makes a special stipulation for stupidity leading to an unsuitable attempt. which implies that it is generally forbidden. Added that. Feb 1 at 15:55
  • The logic of punishing a doomed attempt at a crime depends on your theory of justice. There's no cause for retribution, but there may be a public interest in rehabilitation, or even deterrence.
    – Sneftel
    Jul 7 at 15:05
-2

It's not attempted murder in the United States, but it could rise to a full murder charge depending on what the prosecution is willing to charge. This gets tricky as murder in the United States is usually defined as "unjustified homicide" (as it is in the other countries) but it also looks at the circumstances. Smith shot Jones in the face after the poison was administered. Whether Smith delivered the fatal blow to Jones or not does not actually matter, as Smith intended to kill Jones and certainly wouldn't have helped Jones to live had he known about the poison.

Another argument is that Smith unlawfully entered Jones' home, which is a felony, and thus the Felony Murder rule might apply.

The likely scenario is that Smith might get offered a plea deal for Attempted Murder charges and the prosection won't take the case before a jury. However, if Smith refuses, the prosecution can try him for both Murder and Attempted Murder (since you can charge lesser and included sentances but not convict for lesser and include, which means the Jury can hear the whole case and decide if he's guilty of "First Degree Murder," and if the answer is no, can try "Second Degree Murder" then "Attempted Murder," "Manslaughter," and finally "Improper disposal of a Body" or related charges) and let the jury sort it out. They have Smith Dead to Rights on Breaking and Entering, and any charges related to improper disposal of a body or failure to notify authirities, so he has some jail time to look forward too.

As a general rule, the fact that the guy was already dead wouldn't matter because the autopsy rarely can determin how accurate the time line was when two traumatic events occured. Suppose Jones was not dead at the time Smith shot him, but was pretty darn close. One could argue for murder because shooting someone in the face is generally not advised as treatment for poison... or any fatal injury for that matter. Thus, there was a slim chance that Jones could have survived long enough that he coudl be rushed to the hospital and survived OR even that the poison wasn't used in enough quantitity to kill him... but never the less, it was going to cause injury. But for Smith shooting the man, Jones might have survived.

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    You certainly can determine the cause of death. For example, shooting a corpse produces far less blood spray than shooting a live body (the blood is no longer pressurized).
    – Mark
    Jan 29 at 22:34
  • 1
    Also, a "slim chance" is a far cry from the level of proof required to criminally convict someone.
    – D M
    Jan 29 at 23:43
  • 4
    -1 Van you cite law or caselaw to shoe that "it's not attempted murder in the United States" please? Also this answer seems to assume that the death from poison was close enough in time that one cannot be sure which actually caused death, but the question assumes otherwise, and that is not implausible, so this does not answer the question. Jan 30 at 3:38
  • 4
    The facts are as stated in the OP ...he receives the autopsy. Jones was already dead, having been poisoned by a third party.
    – Rock Ape
    Jan 30 at 23:27
  • 1
    Where in the United States and what laws are you citing? The biggest mistake you can make about US law is assuming the US is a homogenous country with a single set of laws. Every state and the federal government has different laws pertaining to murder.
    – PC Luddite
    Jan 31 at 0:06
-2

An offence of "attempted" whatever is a separate offence from the act (as is conspiracy to do something; with sexual offences, the act of travelling to a locus with the aim of committing the offence is punishable, even if you don't even clap eyes on the "victim" - e.g. sex tourism) and an attempted offence is distinguished from the act itself by the mere fact that it did not succeed in its aim. (There is no offence of attempted assault, since any act that falls short of assault falls outside the definition, even if attempted; anything that oversteps that mark is then simply assault, which needn't be actual bodily harm, but say making to smack someone or throw an object at them.) One response here talks to the ability or otherwise of a coroner to determine the succession of events that, at least cumulatively, led to death. The accused charged with the later crime will want him to establish that the other accused was first in succeeding because he can then plead novus actus interveniens - that a new act intervened that caused the result complained of, thus precluding him from having done it. Where the coroner cannot make such a determination, the prosecution will adopt a blunderbuss approach and attack both accused as being equally liable beyond a reasonable doubt of having perpetrated the offence, even if the conviction of one would by definition exculpate the other, especially where the guilt of the one or the other cannot be determined (a similar approach is taken in, say, gang killings: someone among you did it, so you all did it). However, if the novus actus interveniens is indeed established, the party charged with the first crime will be convicted; the second will get off scot free. In one actual case, three individuals were accused of "culpable omission" for failing to call on aid for a man who by all appearances was dead. The charges led to conviction even though the prosecution failed (and was not indeed challenged) to prove that the man wasn't already dead when found by the three men (or even when he actually did die), simply on the ground they had failed to summon an ambulance.

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    Could you clarify: If A poisons X with a poison that takes 24 hours to kill, with no rescue possible, and B shoots X one hour later, B would be guilty of murder and A guilty of attempted murder?
    – gnasher729
    Jan 31 at 23:34
  • You really need to reference sources or judgments for this one.
    – Polygnome
    Feb 2 at 8:37

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