Scenario 1: Bob points a gun at Joe's head, says "I'll kill you", pulls the trigger, and misses Joe by 1 inch. Joe is fine physically.

Scenario 2: Bob points a gun at Joe's head, says "I'll kill you", pulls the trigger, and shoots him as intended. Doctors just barely save Joe from death.

Are these both attempted murder? Is this the same offense with the same penalty?

  • 5
    Missing the point their @Strawberry - suppose it was a harpoon gun that would embed in a nearby wall, thus jutting out not one inch from where what's-his-name stands.
    – Alec Teal
    Feb 9, 2021 at 13:45
  • 5
    It's always struck me as odd that being incompetent in attempting a murder somehow makes it less serious. Why is a person with bad aim/luck subject to less consequence?
    – ScottS
    Feb 9, 2021 at 17:41
  • 2
    @ScottS very interesting indeed. I suppose that in general, punishment would and should be the same for the attempt, but in the second case, you also have to pay for damages, so to speak.
    – magma
    Feb 9, 2021 at 19:30
  • 5
    @ScottS : perhaps because there are multiple goals of punishment: one to lock dangerous individuals away from people they could hurt, another to make future troublemakers know that such acts carry consequences, and another to give retribution for damages caused. The first two don't depend on the luck of the culprit, but the third one does.
    – vsz
    Feb 9, 2021 at 19:36
  • 2
    @ScottS: Would you also argue that involuntary manslaughter (murder minus intent) shouldn't be a crime?
    – ruakh
    Feb 9, 2021 at 22:23

3 Answers 3


He'd be looking at ~6+ more years in prison in the second scenario

In the United States, this would be attempted murder in both cases, though in the case of actual physical harm, the prosecutor could charge related offenses such as battery, which is "an intentional offensive or harmful touching of another person that is done without his or her consent."

Note that though most attempted murders would likely be state crimes, I'm going to answer the rest of this from the perspective of a federal prosecution for attempted murder. The result would likely be similar for states, though the exact mechanism would be different.

Sentencing for people convicted of serious federal crimes is guided by the United States Federal Sentencing Guidelines. An "offense level" is determined, then combined with the offender's criminal history and checked against the sentencing table to determine a suggested sentencing range for the judge.

Specifically, for Assault with Intent to Commit Murder; Attempted Murder, §2A2.1. states that:

(a) Base Offense Level:

       (1) 33, if the object of the offense would have constituted first degree murder; or

       (2) 27, otherwise.

(b) Specific Offense Characteristics

       (1) If (A) the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) the victim sustained serious bodily injury, increase by 2 levels; or (C) the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.

       (2) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder, increase by 4 levels.

So in this case, it sounds like Joe suffered a life-threatening injury in the scenario where he got shot. Let's assume that this is Bob's first offense, and that it would have constituted first degree murder.

If Bob missed, he'd be looking at 135-168 months (11.25-14 years) in prison. If he shot Joe successfully, he'd be instead looking at 210-262 months (17.5-21.83 years) in prison.

  • 4
    Worth noting that a judge can deviate from the sentencing guidelines (up or down) under some circumstances, that deviations aren't that uncommon (far more often downward than upward, however) and that the maximum sentence if fixed by the offense of conviction and not the guidelines. The maximum sentence is the same with or without injury.
    – ohwilleke
    Feb 9, 2021 at 1:27
  • 2
    Reading this answer and @ohwilleke 's comment, I remember hearing of a case on the radio several years ago, that iirc, went like this: An individual was convicted in the US of robbery or of something similar, and the judge was apparently feeling quite merciful in this situation. The judge only gave them a single year's sentence. However the convict was ungrateful and spat at the judge. At that point the sentence became 20 years. (The original sentence had just been pronounced and wasn't official yet.) This was likely in a state court, but the judge was all over the place on the sentencing. Feb 10, 2021 at 1:15
  • Prosecutors would be more likely to include "assault with a deadly weapon" than "battery" here, though it's also not unlikely they would pursue both in addition to the attempted murder charge.
    – TylerH
    Feb 11, 2021 at 15:55
  • @TylerH assault with a deadly weapon could be charged in either case; actually hitting the intended target with the bullet is not required. You can think of battery as the "completion" of the harm threatened or attempted in an assault.
    – Ryan M
    Feb 12, 2021 at 0:30
  • @RyanM Sorry, I was not suggesting that assault with a deadly weapon had the same conditions as battery, only that the prosecutor would opt for the former and not the latter, regardless of whether the victim was actually hit.
    – TylerH
    Feb 12, 2021 at 14:06

Both scenarios have the same mens rea (intent to kill) and actus reus (firing the gun) so in they are both attempted murder - plus the potential for host of other off topic offences.

The difference will come at sentencing if Bob is found guilty. The Sentencing Council's guidelines provide a sliding scale for judges depending on the...

...seriousness of the offence, harm caused to the victim, the offender’s level of blame, their criminal record, their personal circumstances and whether they have pleaded guilty.

  • 2
    Presumably they could also charge battery or similar for the "actually shot him" case, but not in the "missed" case, correct?
    – Ryan M
    Feb 8, 2021 at 22:48
  • 3
    Yes, probably GBH and assault for both. But I was thinking more along the lines of possession with intent or kindred firearms offences
    – Rick
    Feb 8, 2021 at 22:53
  • In England and Wales sentences are usually concurrent, so the longest sentence is the one served. Other offences that were not tried may, on request, be "taken into consideration" (formerly "taken into account"), in certain circumstance, affecting the sentencing. (sentencingcouncil.org.uk/overarching-guides/magistrates-court/…) Feb 11, 2021 at 13:44

It is common to file both aggravated assault charges and attempted murder charges in cases where an attempted murder results in serious injuries. The attempted murder charge typically requires a stronger showing of ill intent so it is harder to prove and typically carries a longer sentence (subject to the discretion of the sentencing judge who typically has more freedom at the state level than in the federal courts).

If there is not injury, one has to go forward only on the attempted murder charges and not the aggravated assault charges, which can be harder to prove but authorizes the same maximum sentence if there is a conviction. Sometimes there would be a lesser included charge of menacing (i.e. trying to scare someone with a firearm unlawfully) in an attempted murder charge which would carry a felony sentence if there was no attempted murder conviction, but a less serious potential sentence than an aggravated assault conviction.

  • 4
    As a matter of evidence: If my bullet hits the victim's ear, that's good evidence for attempted murder. If my bullet hits the victim's leg, from a close distance, that may be evidence against attempted murder.
    – gnasher729
    Feb 9, 2021 at 11:45
  • @gnasher729 Likely only if you have formal/extensive firearms training. Otherwise it could easily be argued you simply have bad aim or are unfamiliar with shooting guns, the victim was moving, there was a scuffle, etc. The exclamation of "I'll kill you" would also do a number on that argument.
    – TylerH
    Feb 11, 2021 at 15:57

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