Attempting to murder someone that is already dead

This came from an old movie. I won’t say which unless requested, so no spoilers.

Man, an old lover, is blackmailing a woman. Woman gets a gun and goes to kill the man. He is lying on a bed, eyes open, not moving or responding. Eventually she figures out that he’s likely dead, fires the gun anyway and misses. She and her current lover get rid of the body to be done with the issue. Body is eventually found and traced back to the scene of the crime. Police inspect, the bullet that killed the man is a different caliber. Turns out a different spurned old lover of the man killed him and is under arrest.

Notwithstanding any issues with the body disposal, has a crime been committed? Especially since there was an actual murder and perpetrator?

They can be yes. Whether they will be or not depends on various things, including obviously the jurisdiction. Here is an answer from a California lawyer.

Reading that, it’s interesting. In this case the man had his bed in what appeared to be an office building, at night, so there may not have been anyone else in the building at the time. So the woman wasn’t endangering anyone else. The police wouldn’t know this, but she kind of fires the gun into the wall in a fit of upset, she doesn’t come that close to hitting him.

I think it would be more likely that tampering with evidence could be charged. HOWEVER, since they already have in custody a perp, it would be a question if the police bringing to light the interference of parties not involved in the murder would be helpful to the defense in casting doubt. So the authorities may be incentivized to look the other way.

It would appear that they’re both guilty of conspiracy. They agreed to commit an illegal act (murder) together, and at least one of them committed an overt act (breaking and entering, securing a firearm, etc) in pursuit of the crime.

As an analogue, think about stings against child predators. A cop poses as a child in a chat room to lure a predator out. The fact that the child doesn’t exist isn’t relevant. A crime is still committed when the predator goes out to meet the fictional person.

What is described in the link above conforms with the law as related by Erle Stanley Gardner in his Perry Mason novels. In this case tampering with evidence is clearly a crime they can pursue. If you decide not to murder somebody because somebody else did it first don’t hide the body. Do we need PSAs to inform people about that?

I asked the same question on a legal forum a while back.

I accepted an answer that cited a specific real-life case of a person convicted of attempted murder, when the victim was already dead. Other answers cite relevant laws and cases.

Her current partner didn’t really participate in the murder attempt, just followed her there and helped out with the body disposal afterwards.

The plot of the movie is this. The murder victim fathered a child out of wedlock with the woman that attempted the murder. He kicked her out and gave her train fare to go across the country to be with his new woman, the one that actually murdered him when he spurned her as well.

On the train she meets a newly married couple. They are en route to meet the groom’s parents, and the parents have never met the bride. The woman tries on the wedding ring of the bride. Then there is a train wreck and the couple are killed. The woman is mistaken in the hospital for the bride of this couple. The family is wealthy and takes her in, and she has a place to raise her baby.

The brother of the groom that was killed takes a romantic interest in the woman. At this time the father of her child shows up and blackmails her that he will blow up her new life. She pays him money, then marries him. He doesn’t want her, he just wants to be in line to inherit money from this elderly couple that have taken her in. That’s what causes her to do the murder attempt.

At the end, the mother in law has a deathbead “confession” that she herself murdered this man to protect her daughter in law, which meant they had accepted the woman as their own regardless of her identity assumption. The mother in law didn’t actually do the murder, the other girlfriend did.

So given that the woman is a single mom, was that is because the brother married her, the victim is a deadbeat criminal creep and the prosecution has a nice juicy murder trial/confession with a less sympathetic defendant… any prosecution is going to put a kid who will be well raised into an orphanage for the sake of a scumbag who was already dead anyway. I’m guessing probation at best if not completely looking the other way.

There’s that old standby, abuse of a corpse, the definition of which varies by state.

In Texas it can be characterized as treating a human corpse in"an offensive manner, which one supposes might include preserving and dressing it up to keep in one’s run-down motel or using it for target practice.

Her defense against the charge of attempted murder hinges pn her clsim that she knew he was dead when she fired near him. A prosecutor might find that so implausible that he would argue that she thought she was intending to fire at a msn she thought was alive - and a jury might agree.

Sounds like one of the movies based on I Married a Dead Man.
I saw the one with Ricki Lake, although I didn’t remember all that much the pregnant women in a train crash gives it away.

I can’t speak to the hypothetical in the movie or the cited TV show, but there was an interesting real-life example here in Canada a few years ago. A police officer shot and killed someone who was trying to attack him with a knife. He fired several shots that killed the man, then fired another volley. Big mistake. The first shots were found to be justifiable self-defense, the following shots were found to be excessive use of force against someone who was already down and posed no threat. He was convicted of attempted murder for the second offense.

Here’s another scenario. Suppose instead of shooting the victim, the murderer decided to kill them with a car bomb. They break into their garage at night and install a bomb in their car that will explode when the ignition is turned in the morning. (Let’s assume for simplicity’s sake that nobody else uses the car.)

Unbeknownst to the murder, their intended victim had a heart attack and died in their bed several hours before the bomb was installed.

If all the facts of what happened came to light, I don’t think you’d have any difficulty in indicting and convicting them of attempted murder.

Now that we’ve got a few factual responses, I thought you might enjoy this clip. You can never tell how dead someone is; they might be able to CATCH THIS!

Not exactly the same but related. Someone was convicted for attempting to blackmail a dead man here in New Zealand.

Just to put a label on the overall doctrine in question, what is being discussed is one of two variations on an impossibility defense. There are legal impossibilities (even if everything occurred as alleged, it doesn’t satisfy the elements of the crime charged) and there are factual impossibilities. The latter encompasses the scenario posed by the OP. IANAL, but AIUI, most jurisdictions will not (though some may have in the past) allow an impossibility defense hinging on a factual impossibility. So the would-be murderer would be guilty of attempted murder.

IIRC the issue was that the man was still alive but lying on the ground. The prosecution could not prove that the unjustified second set of shots were what killed him or whether it was the justified initial volley, so the actual case of murder would not be provable. However, since the officer did fire to kill with no valid reason once he was down, it was attempted murder for sure.

I’m struggling with how to distinguish mens rea from actus reus in attempted murder. If factual impossibility is not a defense, that seems to imply that the intent behind the act (the guilty mind) is what makes it a guilty act. Perhaps my mistake is in supposing that mens rea and actus reus must both be independently present, whereas in reality they can be intertwined.

I believe you’re exactly correct. For attempted murder, the key is intent. Let me see if I, a not-lawyer, have this straight.

Attempted murder = intent.
Homicide = success.

If I shoot a dead body, mistakenly thinking it’s alive, I can be convinced of the former but not the latter.

An alternate scenario. Bob sneaks into your house. He sneaks upstairs and carefully opens the door to your bedroom. He sees you sleeping in bed and shoots you multiple times. But, surprise! You knew he was coming and he actually shot up a bunch of pillows cleverly hidden under the comforter to look like a body.

Double surprise, the police are there! They saw the whole thing! Take him away, boys.

Killing you was a factual impossibility since you were not actually in bed. But Bob is clearly, obviously guilty of attempted murder.

Slight hijack — or maybe it isn’t? — but I’m reminded of an aside by Smullyan: ‘At a desert oasis, A and B decide independently to murder C. A poisons C’s canteen, and later B punches a hole in it. C dies of thirst. Who killed him?

‘A argues that C never drank the poison. B claims that he only deprived C of poisoned water. They’re both right, but still C is dead. Who’s guilty?’


Alternatively - based on this thread, prosecute them both for attempted murder? Then “the other guy did it” is not a defense, since they can both be guilty.