# Can you murder a corpse? **URL:** \ **Category:** Factual Questions\ **Created:** [November 1, 2000, 7:37pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287 "2000-11-01T19:37:42Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![matt](https://avatars.discourse-cdn.com/v4/letter/m/a6a055/32.png) [@matt](https://boards.straightdope.com/u/matt)\ **Post date:** [November 1, 2000, 7:37pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/1 "2000-11-01T19:37:42Z")
Here’s the scenario: I set out to kill someone. I arm myself in advance, break into their home and fire several shots into their sleeping body. I carelessly leave evidence all over the place. I am arrested but it transpires that my victim had in fact died of a heart attack a few hours before I shot him. Can I be charged with murder? Can I be charged with attempted murder? ---
**Author:** ![Montfort](https://avatars.discourse-cdn.com/v4/letter/m/d6d6ee/32.png) [@Montfort](https://boards.straightdope.com/u/Montfort)\ **Post date:** [November 1, 2000, 7:40pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/2 "2000-11-01T19:40:26Z")
I ain’t a lawyer, but let me add a few possible crimes you theoretically committed: Illegally firing a firearm. Destruction of property. Breaking and entering. Obstruction of justice. Good luck beating that rap. ---
**Author:** ![Arjuna34](https://avatars.discourse-cdn.com/v4/letter/a/eb8c5e/32.png) [@Arjuna34](https://boards.straightdope.com/u/Arjuna34)\ **Post date:** [November 1, 2000, 7:41pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/3 "2000-11-01T19:41:56Z")
Don’t forget using a firearm to commit a felony. Arjuna34 ---
**Author:** ![neutron\_star](https://avatars.discourse-cdn.com/v4/letter/n/51bf81/32.png) [@neutron\_star](https://boards.straightdope.com/u/neutron_star)\ **Post date:** [November 1, 2000, 7:43pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/4 "2000-11-01T19:43:59Z")
This isn’t exactly the same as your scenario, but close. About 10 years ago, a driver for the company I work for ran his tractor trailer over what he though was a deer. He stopped just to make sure, and found out it was a person. Autopsies confirmed that fact that the person was actually lying dead on the road when the truck hit him. The family of the deceased sued my company and won several million dollars. A couple months ago, that verdict was overturned. The guy was never prosecuted criminally, though. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [November 1, 2000, 7:52pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/5 "2000-11-01T19:52:18Z")
No. The definition of “murder” in all cases covers “the unlawful _killing_ of a human being by another” (though the wording might vary, as might the other elements of the crime). Therefore, by definition, you cannot “murder” a person who is already dead, because you cannot kill him or her. (It is axiomatic in the law that if you cannot fulfill every element of a particular crime, you cannot be found guilty of that crime. There is no ‘almost did it’.) You could, however, be charged with attempted murder, since you did _intend_ to kill the person and you did _try_ to kill the person. As far as the other guesses . . . “Illegally firing a firearm” presumes the firing of a firearm is in fact illegal under the circumstances. Maybe, maybe not. “Destruction of property” is probably not applicable since the body likely does not “belong” to anyone, and since shooting it probably doesn’t equal destroying it. “Breaking and entering” is presumed from the facts as given, but is a crime independent of shooting the body, and has nothing to do with that. “Obstruction of justice” is not applicable because at the time the crime (or attempted crime) is commited, there hasn’t been any “justice” (i.e., police or state action) to obstruct. “Use of firearm in the commission of a felony” again assumes that a crime has been commited and further assumes that the crime is a felony. The more logical charges are burglary (the unauthorized entry into the property of another, with the intent to commit a felony therein) and attempted murder. ---
**Author:** ![peace](https://avatars.discourse-cdn.com/v4/letter/p/c68b51/32.png) [@peace](https://boards.straightdope.com/u/peace)\ **Post date:** [November 1, 2000, 7:58pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/6 "2000-11-01T19:58:04Z")
Matt, murder - no, attempted murder - yes. After all you did attempt to kill him, didn’t you? Neutron, I think that company had a lousy attorney. What the company was sued for? And what the award was for? ---
**Author:** ![Gazoo](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Gazoo](https://boards.straightdope.com/u/Gazoo)\ **Post date:** [November 1, 2000, 8:01pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/7 "2000-11-01T20:01:34Z")
> [@](#): > > \*Originally posted by matt \* > \*\*Can I be charged with murder? Can I be charged with attempted murder? \*\* Well, yeah, they can _charge_ you all they want, I think your question is, am I _guilty_ of murder or attempted murder? Murder - No. Murder is the unlawful killing of another human being. You didn’t kill them, you have the mens rea but not the actus reus (the actual homocide is the actus reus for murder). Attempted Murder - I say no. You can’t attempt to kill that which is already dead. Although, like **Jodi** said, you had the intent, and you made an attempt. I think if you can prove he was already dead, you get off on that charge though. As mentioned above, there are several other crimes you may be guilty of. ---
**Author:** ![stuyguy](https://avatars.discourse-cdn.com/v4/letter/s/ec9cab/32.png) [@stuyguy](https://boards.straightdope.com/u/stuyguy)\ **Post date:** [November 1, 2000, 8:04pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/8 "2000-11-01T20:04:52Z")
**Jodi** and **peace** , you both hold out the possibility that the perp could be charged with attempted murder. I say no way. (Of course I’m no lawyer, but I can still type, can’t I?) Attemped murder of who? The guy was dead, so there was no one to kill, thus no attemp. It’s like me saying I’m going to kill George Washington. ---
**Author:** ![stuyguy](https://avatars.discourse-cdn.com/v4/letter/s/ec9cab/32.png) [@stuyguy](https://boards.straightdope.com/u/stuyguy)\ **Post date:** [November 1, 2000, 8:06pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/9 "2000-11-01T20:06:51Z")
Hey **Gazoo** , you may have typed it first, but I _thought_ of it first. (Smilie here.) ---
**Author:** ![Gazoo](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Gazoo](https://boards.straightdope.com/u/Gazoo)\ **Post date:** [November 1, 2000, 8:12pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/10 "2000-11-01T20:12:04Z")
> [@](#): > > \*Originally posted by Jodi \* > \*\*As far as the other guesses . . . > “Destruction of property” is probably not applicable since the body likely does not “belong” to anyone, and since shooting it probably doesn’t equal destroying it. \*\* I’m thinking the bullet and bodily fluids may cause some damage here. > [@](#): > > \*\*“Use of firearm in the commission of a felony” again assumes that a crime has been commited and further assumes that the crime is a felony. \*\* I think we can assume burglary has taken place, and a hand gun has been used. And the more I think about it, there’s no way a charge of attempted murder of a now inatimate object could stick. I’m with ya here **stuyguy**! ---
**Author:** ![msbrown](https://avatars.discourse-cdn.com/v4/letter/m/8e7dd6/32.png) [@msbrown](https://boards.straightdope.com/u/msbrown)\ **Post date:** [November 1, 2000, 8:40pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/11 "2000-11-01T20:40:04Z")
This sounds like a bar exam question… No you haven’t committed murder or attempted murder. Although, it can be proven you had the necessary intent to commit great bodily injury against an individual, your actions like - breaking and entering, - shooting, etc. was not the immediate cause of death. You may be charged with mutilating a corspe however. ---
**Author:** ![Irishman](https://avatars.discourse-cdn.com/v4/letter/i/b487fb/32.png) [@Irishman](https://boards.straightdope.com/u/Irishman)\ **Post date:** [November 1, 2000, 8:45pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/12 "2000-11-01T20:45:11Z")
Non-lawyer checking in with a vote that attempted murder would stick. After all, you didn’t know at the time he was already dead, so you were trying to kill him. For defense, you would have to prove that you knew he was dead already. ---
**Author:** ![Zumba\_The\_Cat](https://avatars.discourse-cdn.com/v4/letter/z/779978/32.png) [@Zumba\_The\_Cat](https://boards.straightdope.com/u/Zumba_The_Cat)\ **Post date:** [November 1, 2000, 9:09pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/13 "2000-11-01T21:09:06Z")
I am with msbrown on this one. I don’t think that you can be charged with murder or attempted murder on this one. However there are laws (which are very severe in some states) against mutilating corpses you could be charged with in addition to the burglary charges. ---
**Author:** ![Gazoo](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Gazoo](https://boards.straightdope.com/u/Gazoo)\ **Post date:** [November 1, 2000, 9:23pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/14 "2000-11-01T21:23:09Z")
> [@](#): > > \*Originally posted by Irishman \* > \*\*After all, you didn’t know at the time he was already dead, so you were trying to kill him. For defense, you would have to prove that you knew he was dead already. \*\* Okay, let’s say there is a very lifelike mannequin, which I think is a living person, and I shoot it with intent to kill. Am I guilty of attempted murder? Clearly no. So, why would I be guilty of attempted murder when I sneak up on a corpse and shoot it? ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [November 1, 2000, 9:36pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/15 "2000-11-01T21:36:06Z")
\>\> Okay, let’s say there is a very lifelike mannequin, which I think is a living person, and I shoot it with intent to kill. Am I guilty of attempted murder? Clearly no Clearly? Clearly to who? To me the contrary is quite clear. Your intention, _clearly_, is to commit murder. Your lawyer’s job would be to keep me and people like me off the jury. ---
**Author:** ![Gazoo](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Gazoo](https://boards.straightdope.com/u/Gazoo)\ **Post date:** [November 1, 2000, 10:16pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/16 "2000-11-01T22:16:21Z")
:rolleyes: I hope you’re kidding. I went out of my way to make an extreme example and you think this qualifies as attempted murder?? ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [November 1, 2000, 10:33pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/17 "2000-11-01T22:33:37Z")
GAZOO says: > [@](#): > > Attempted Murder - I say no. You can’t attempt to kill that which is already dead. STUYGUY says: > [@](#): > > Jodi and peace, you both hold out the possibility that the perp could be charged with attempted murder. I say no way. (Of course I’m no lawyer, but I can still type, can’t I?) Attemped murder of who? The guy was dead, so there was no one to kill, thus no attemp. It’s like me saying I’m going to kill George Washington. MSBROWN says: > [@](#): > > No you haven’t committed murder or attempted murder. ZUMBA says: > [@](#): > > I don’t think that you can be charged with murder or attempted murder on this one. Guys, keep in mind the difference between _trying_ to do something and actually doing it. The fact that the oven is off may prevent me from _actually_ baking a pie, but if I don’t know it’s off, I can still _try_ to bake it. The offense in “attempted murder” is not “murder” but “attempt.” _Trying_ to do the act is a crime itself – and a different crime than murder. So, yes, you can certainly _try_ to kill someone who is already dead, so long as you do not _know_ the person is dead (because if you know, you’re obviously not really trying to kill him.) Black’s Law Dictionary says “the requisite elements of an ‘attempt’ to commit a crime are: (1) an intent to commit it; (2) an overt act toward its commission; (3) failure of consummation; and (4) the **apparent** possibility of commission.” Black’s at 127 (citing _State v. Stewart_, Mo.App., 537 S.W.2d 579, 581) (emphasis added). None of these elements are excluded if the intended victim is dead. In my jurisdiction, the law specifically says “It shall not be a defense to a charge of attempt that becasue of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.” Translation: Yes, you can try to murder someone you didn’t know was dead. > [@](#): > > Okay, let’s say there is a very lifelike mannequin, which I think is a living person, and I shoot it with intent to kill. Am I guilty of attempted murder? Clearly no. So, why would I be guilty of attempted murder when I sneak up on a corpse and shoot it? “Clearly no”? Arguably yes. Although you are not likely to be so charged because the authorities would have difficulty proving that you did, in fact, intend to kill a particular living person. But the charge is still possible. In _The Adventure of the Empty House_ by A. Conan Doyle, Colonel Sebastian Moran attempts to shoot Sherlock Holmes but, because Holmes knows about the attempt and sets the scene, only succeeds in shooting a life-like wax bust of Holmes through Holmes’s open window. What charge did the police intend to press against him? Attempted murder. ---
**Author:** ![stuyguy](https://avatars.discourse-cdn.com/v4/letter/s/ec9cab/32.png) [@stuyguy](https://boards.straightdope.com/u/stuyguy)\ **Post date:** [November 1, 2000, 10:48pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/18 "2000-11-01T22:48:27Z")
**Jodi,** given your cites, I would suggest that your argument breaks down at the definition of “murder,” which you conveniently did not include. We are not arguing that an “attempt” wasn’t made; we are arguing that “murder” wasn’t attempted. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [November 1, 2000, 11:16pm UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/19 "2000-11-01T23:16:36Z")
STUYGUY says: > [@](#): > > Jodi, given your cites, I would suggest that your argument breaks down at the definition of “murder,” which you conveniently did not include. We are not arguing that an “attempt” wasn’t made; we are arguing that “murder” wasn’t attempted. First of all, do not accuse me of “conveniently” omitting to include anything, as if, at the end of the day, I truly care whether or not you understand the concept of attempted murder, and as if I would omit crucial information in order to pretend the definition is something it in fact is not. I am not given to committing acts of intellectual dishonesty and, on a message board, why would I bother? But, since you asked . . . Murder is defined at the common law as “the unlawful killing of a human being by another with malice aforethought, either express or implied.” Black’s Law Dictionary at 1019. In my jurisdiction, homocide (a/k/a murder) is more simply defined as “to purposely or knowing cause the death of another human being.” If you sneak up on a corpse, thinking the man is asleep, and shoot him, what, precisely, do you think you are attempting to do? You are attempting to “kill another human being” or to “purposely cause the death of another human being.” The fact that you cannot _actually_ do so (because he is dead) does not in the least change what you are _trying_ to do. A that’s attempted murder. If you grant that an attempt was made (and you have), I ask you: an attempt at what, if not murder? Frankly, I don’t see what’s so hard about this. ---
**Author:** ![Gazoo](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Gazoo](https://boards.straightdope.com/u/Gazoo)\ **Post date:** [November 2, 2000, 12:00am UTC](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287/20 "2000-11-02T00:00:07Z")
Having now had the time to look through some case books left over from law school (apparenlty the _are_ good for something other than doorstops!), here’s what I have unearthed (a good word considering the amount of dust on this baby): One of the main issues here is impossibility. I think we can all agree that it is impossible to kill a dead man (or a mannequin for that matter, and if someone brings up that stupid movie…). Impossibility breaks down into two categories, **legal impossibility** and **impossibility in fact**. Cases which fall under _legal_ impossiblity generally hold that it was legally impossible for the accused to have committed the crime contemplated. Like I said, I think we can all agree it is impossible to commit murder on a dead man or a mannequin. (See for example, State v. Guffey, 262 S.W.2d 152 (Mo.)(1953). Which held that a hunter who shot a stuffed deer believing it to be alive had not attempted to take a deer out of season.) Contrast that with cases of impossiblity in _fact_, though and we get a different result. This occurs where, if but for a mistake in the alleged’s beliefs of the facts as they exist, the alleged _would_ have sucessfully committed a crime. (See for example, State v. Mitchell, 173 Mo. 633, 71 S.W. 172 (1902). Holding that it _is_ attempted murder to shoot into the intended victim’s bed believing he is there asleep when in fact he is some place else.) The difference is a little ticky-tacky, but seems clear none the less. It is _possible_ to kill a man who is still alive. It is _not possible_ to kill a man who is already dead, or to kill a mannequin. Having now gone through all of this, I must note that the Model Penal Code abolishes the impossibility defense. So, while under the common law it seems to me that you could have beat the attempted murder charge under a theory of legal impossibility, that defense, as noted by **Jodi** ’s reference to her state statute, is no longer available to you. I bow to **Jodi** and **sailor** as they _clearly_ nailed this one. I will commence the eating of the humble pie. [Next page](https://boards.straightdope.com/t/can-you-murder-a-corpse/39287.md?page=2)