It just occurred to me that the only thing I ever could have imagining aforethought is malice.
Murder in the Crimes Act (1900) NSW s18 (Australia, New South Wales) is about the same - act or omission, intent or reckless indifference, causing death or GBH, or death or GBH that occurs during the comission of a crime punishable by more than 25 years (so felony murder, in other words.) We don’t require malice, just intent (Lavender, as I remember, is the case.)
If the dude isn’t dead, you have intent but no murder. You have an attempted murder. In NSW attempted murder attracts the same penalites as murder - s27 Crimes Act which says you need intent + attempt to inflict murder or grevious bodily harm (GBH).
So I’d argue attempted murder.
The problem here is mens rea - what was the intent. I’d argue for the prosecution that when he did the act he intended to murder, and only changed his mind afterwards, when the act was complete.
If I was arguing for the defence, I’d probably argue there was never an intent to murder, merely an intent to harm, hoping for a lesser sentence than 25 years. Depends on the amount of GBH, of course. Intent to cause GBH can also get you 25 years. (s33). Reckless GBH only gets you 14 years (s35) and GBH with no intent gets you 2 years (s54).
So in my jurisdiction, I’d be arguing like hell on defence for not intending to kill the guy or hurt him. Maybe just say my client wanted to see if he could revive him? You’d still get jail time of course, just less.
No use arguing if he was dead or came back or what. There’s case law in my notes at home that addresses resuscitation and pretty much it concludes death is a permanent state - I want to say the case is Mzaz, but I might be wrong.
Sounds like attempted murder to me too, or possibly if you can make a case that the death was unintended, assault. The revival does give you a little extra leeway in terms of plea bargaining and possibly taking the victim’s wishes into account with regards to pressing charges, but neither is guaranteed.
Who certified that the victim was “legally” dead? The killer (5th Amendment right against self-incrimination)? A witness? A doctor? The coroner or a medical examiner qualified by the state to investigate deaths under unusual or suspicious circumstances and determine the cause of death?
If the coroner didn’t certify that the victim was, in fact, dead, how would the prosecutor prove to a judge/jury that the victim was dead? He was dead but he got better?
A jury found a person to be guilty of a capital crime and a judge sentenced them to death by whatever means the state uses to carry out the sentence. Hung by the neck until dead, death by electrocution, death by lethal injection, etc. Keyword being “death” or “die”. The convicted criminal (not “victim”) has been sentenced to death, not “attempted death” or “as close to death as possible” or “the State will make 1 (one) attempt to take your life for the horrendous crimes you have commited”.
The govenor of the State could commute the sentence. The defense lawyer could file some kind of “cruel and inhumane” brief???
Sometimes judges can be rather eloquent in their sentencing -
*Jose Manuel Miguel Gonzales, in a few short weeks it will be spring. The snows of winter will flow away, the ice will vanish, the air will become soft and balmy. The annual miricle of the years will awaken and come to pass. The rivulet will run its soaring course to the sea. The timid desert flowers will put fourth their tender shoots. The glorious valleys of this imperial domain will blossom as the rose. From every tree top, some wild songster will carol his mating song. Butterflies will sport in th sunshine.
But you will not be there to enjoy it. Because I command the sheriff of the county to lead you away to some remote spot, swing you by the neck from a knotting bough of some sturdy oak and let you hang until dead. And then Jose Manuel Miguel Gonzales, I further command that such officers retire quickly from your dangling corpse, that vultures may descend from the heavens upon your filthy body until nothing is left but the bare, bleached bones of a cold-blooded, blood-thirsty, throat-cutting, mudering S.O.B*
- attributed to Judge Roy Bean
Thanks for the good reply.
But I made a classic error in dangling antecedent-sans-modifier. I meant:
What happens to the legal record if the victim-of-the-accused/sentenced-“murderer” revives after the accused/sentenced-“murderer” has been executed?
This relates specifically to a comment above (which I can’t locate quickly) but is a propos.
“Suicide” has been, and is for most people, an either/or term. One commits it or attempts it. That is, she “does it” or “doesn’t” do it.
I have seen some psychotherapists in the field preferring to verbally emphasize that suicide is always a “did it,” positive act. Hence, you see “he committed an incomplete suicide” or “a completed” one.
Doesn’t fall off the tongue right, but it’s worth a shot, I think.
In the U.S., before a death sentence can be carried out, there are manditory appeals which could take years, if not decades, to complete. The dead guy would have to remain “dead” for a really, really long time. Hopefully, someone will notice that the deceased isn’t decaying and wonder why.
Considering the length of time it would take to arrest, try, and sentence the killer, let alone carry out sentence, the victim would suffer such massive brain damage from lack of circulating oxygen it would IMO be pretty moot.
Then there’s that whole dehydration and starvation thing if the victim is not taking in any water or food for months or years.
Well, if the victim was only merely dead, probably just attempted murder.
But if she’s really, most sincerely dead, well that’s a whole different legal ballpark.
Probably doesn’t matter much if they get charged with Murder or GBH.
If they get charged with Murder, they get a light sentence on the range available.
If they committed GBH so bad the victim died, and was revived, they get a heavy sentence on the range available.
I’m guessing it comes to about the same thing.
Depends on the area - in some US states - the sentence is life without parole.
Heh. Concerning the last, you’ve read your John Varley? 
A short story (“The Phantom of Kansas”) is set in the near future where human cloning and unlimited sex changing is possible. The narrator is the latest of a line of licensed clones to have been created after their predecessors were all murdered, and of course, being a some-time-prior-to-murder back-up she has no idea what happened or why. She eventually manages to trap the murderer, who is an unlicensed male clone of herself and liable to summary execution just for existing. The pair become reconciled and flee the Moon colony for Pluto, where the licensing laws don’t apply and the clone will be allowed to live.
But the definition of ‘dead’ --legally and medically – includes ‘didn’t come back’. Now (leaving aside ‘brain dead’ issues) the medical profession has adopted some more-or-less agreed upon indicators that someone is not coming back, and doctors use these to declare someone dead, but if the person is then resuscitated after such a declaration, that just means that the doctor made a mistake and the person wasn’t actually dead. It’s like if a body is misidentified so that Sarah is declared dead (when the body was actually Jane’s), that doesn’t mean that Sarah is actually dead, just that a mistake was made in declaring her dead.
It’s theoretically possible that prosecutors mistakenly think a victim is dead, and charge the perpetrator with murder, and even get a conviction. But in that case, once the victim is known to be alive, the defendant would in most cases have some legal method of challenging his conviction, based on new extremely relevant facts not known at the time of the trial. And there are most likely also legal methods for the prosecutors to re-charge the defendant with attempted murder.