# If you were charged with first degree murder... **URL:** \ **Category:** Factual Questions\ **Created:** [November 27, 2015, 1:13pm UTC](https://boards.straightdope.com/t/if-you-were-charged-with-first-degree-murder/738702 "2015-11-27T13:13:12Z")\ **Posts on this page:** 6\ **Page:** 2
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 1, 2015, 12:33am UTC](https://boards.straightdope.com/t/if-you-were-charged-with-first-degree-murder/738702/21 "2015-12-01T00:33:14Z")
> [@Atamasama](#): > > 2 men argue on a public street, first guy tells second guy, “I’m going to kill you!” The first guy reaches into his coat and the second runs away in fear. First guy pursues. Second guy is found dead of multiple stab wounds. > > Plenty of witnesses to the assault, but nobody actually saw the murder happen or even saw if the assailant was actually armed. With no witnesses and weak physical evidence, prosecution may not get a murder conviction but the assault is easy to prove. > > That’s how I imagine assault being a lesser to murder, since the assault definitely made the assailant a suspect and showed motive (anger over an argument) and witnesses might have thought the assailant was armed. Or would the assault and murder be separate events if they happened in two different locations? And then you have assault and murder as separate but related charges. This fails test #1 mentioned above. Since it is possible to commit a murder without committing an assault (regardless of the facts of the individual case at issue) then it is not proper to include assault as a lesser included offense of murder. Suppose you sicced a tiger on a person and killed him. Possession of wild animals within the city limits is still not a lesser included offense. That’s not to say that there could not be a two count indictment: one for murder and the other for wild animal possession; the second just cannot under the law be held to be part and parcel of the greater offense. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 1, 2015, 1:17am UTC](https://boards.straightdope.com/t/if-you-were-charged-with-first-degree-murder/738702/22 "2015-12-01T01:17:30Z")
> [@UltraVires](#): > > Don’t you all up north follow the same olde English common law that we do in the States? Same basic origins, but with over two centuries of local divergence. I don’t think either of my examples would qualify as assaults here, especially since we have a specific poisoning offence: “administering a noxious thing.” ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 1, 2015, 12:56pm UTC](https://boards.straightdope.com/t/if-you-were-charged-with-first-degree-murder/738702/23 "2015-12-01T12:56:49Z")
hmm. Went back to [Blackstone](http://avalon.law.yale.edu/18th_century/blackstone_bk3ch8.asp), and his definition of “battery” seems to be limited to physical contact: [QUOTE=Blackstone] 3. By battery ; which is the unlawful beating of another. The leaft touching of another’s perfon wilfully, or in anger, is a battery ; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the firft and loweft ftage of it [/QUOTE] If poisoning/tampering with mechanical devices is a battery in your jurisdiction, **Ultra Vires** , is it because of the common law, or because of statutory developments? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 2, 2015, 2:01am UTC](https://boards.straightdope.com/t/if-you-were-charged-with-first-degree-murder/738702/24 "2015-12-02T02:01:09Z")
> [@Northern\_Piper](#): > > hmm. Went back to [Blackstone](http://avalon.law.yale.edu/18th_century/blackstone_bk3ch8.asp), and his definition of “battery” seems to be limited to physical contact: > > If poisoning/tampering with mechanical devices is a battery in your jurisdiction, **Ultra Vires** , is it because of the common law, or because of statutory developments? Both. The relevant criminal code has modified the common law: [QUOTE=W.Va. Code 61-2-9 (c)] Battery. – Any person who unlawfully and intentionally makes physical contact with force capable of causing physical pain or injury to the person of another **or unlawfully and intentionally causes physical pain or injury** to another person, he or she is guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than twelve months, or fined not more than $500, or both fined and confined. [/QUOTE] (emphasis added). It is also supported by common law torts. The case we all learned in first year law school was Garratt v. Dailey [Garratt v. Dailey - Wikipedia](https://en.wikipedia.org/wiki/Garratt_v._Dailey) Little snotnose pulls the chair out from under his aunt as she was sitting down. Although the case deals mainly with intentional torts and young children, it also discusses battery in the context of doing an act “substantially certain” to cause a harmful or offensive touching. It cites Prosser et al. ETA: “substantial certainty” ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 2, 2015, 3:35am UTC](https://boards.straightdope.com/t/if-you-were-charged-with-first-degree-murder/738702/25 "2015-12-02T03:35:36Z")
We also have that offense: > [@](#): > > §61-2-7. Attempt to kill or injure by poison; penalty. > If any person administer, or attempt to administer, any poison or other destructive thing in food, drink, medicine or otherwise, or poison any spring, well, reservoir, conduit or pipe of water, with intent to kill or injure another person, he shall be guilty of a felony, and upon conviction, shall be confined in the penitentiary not less than three nor more than eighteen years. But battery would be a lesser included. Perhaps in some bar exam hypo there was a debate over whether the substance was somehow less than “poison” or “destructive” but nonetheless “capable of causing physical pain or injury.” Battery would indeed be a lesser included under those hypos that drives law students insane. 🙂 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 2, 2015, 5:57am UTC](https://boards.straightdope.com/t/if-you-were-charged-with-first-degree-murder/738702/26 "2015-12-02T05:57:35Z")
[QUOTE=W.Va. Code 61-2-9 (c)] Battery. – Any person who unlawfully and intentionally makes physical contact with force capable of causing physical pain or injury to the person of another **or unlawfully and intentionally causes physical pain or injury to another person** , he or she is guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than twelve months, or fined not more than $500, or both fined and confined. [/QUOTE] Hmm, that bolded part is not part of our definition of assault, hence my comments about cutting the brake lines or poison: [QUOTE=Criminal Code (Canada)] **Assault** **265**. (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [/QUOTE] So I don’t think assault would be a lesser included for murder in our system, because it is possible to commit murder without committing an assault. Whereas it may be a lesser included in yours. Overall, this discussion demonstrates that the concept of “lesser included” can get quite technical and depends heavily on the precise statutory definition of offences. [Previous page](https://boards.straightdope.com/t/if-you-were-charged-with-first-degree-murder/738702.md?page=1)