# murder and attempted murder **URL:** \ **Category:** Great Debates\ **Created:** [November 29, 2000, 3:27pm UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197 "2000-11-29T15:27:23Z")\ **Posts on this page:** 12\ **Page:** 3
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [November 30, 2000, 10:40pm UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/41 "2000-11-30T22:40:39Z")
> [@](#): > > \*\* > Until, I check, I will leave you and **Zev** with this hypo. You hate someone, want to kill him, and sneak into his bedroom with a gun. You pop him several times, then sneak out. Unbeknownst to you, the guy had a heart attack before you arrived, and was already dead. Under U.S. law, you can’t be charged with murder (abusing a corpse, maybe, but not murder). Do you agree or disagree with U.S. law? > > Sua \*\* I would say not guilty in this case. The reason is because, in the end, the assailant did no harm. It’s the same as if he intended to kill him, but decided to change his mind. No harm done. No crime committed. (He may be guilty of doing something illegal with a corpse, but that’s a seperate issue). Zev Steinhardt ---
**Author:** ![Spiny\_Norman](https://avatars.discourse-cdn.com/v4/letter/s/9de0a6/32.png) [@Spiny\_Norman](https://boards.straightdope.com/u/Spiny_Norman)\ **Post date:** [November 30, 2000, 11:01pm UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/42 "2000-11-30T23:01:17Z")
Mr. Sponte: > [@](#): > > Mr. Norman, you have addressed the issues of legal and factual impossibility. - cool! Not only does Sua call me “Mr.”, something I choose to belive is a positive development, but I have addressed something I had no idea existed. 🙂 As for shooting the corpse: IMHO, I’m certainly guilty of attack with a deadly weapon or something along those lines - I’m in deeper trouble than “just” abusing a corpse. It can be argued that **I** must have been convinced that I was committing a crime. So I guess I disagree with US law there. I suppose a good defense lawyer will point out that there’s no way of knowing my exact intent - I might have just wanted to maim the victim a bit, not kill him - and so I might be able to escape being on trial for murder. In practice, I can certainly see the usefulness of looking at the outcome first and intent second. But sometimes one is completely out of proportion to the other, and I guess another practice is needed then. Or perhaps I’m just set in my ways ? S. Norman ---
**Author:** ![manhattan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manhattan/32/7_2.png) [@manhattan](https://boards.straightdope.com/u/manhattan)\ **Post date:** [November 30, 2000, 11:43pm UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/43 "2000-11-30T23:43:22Z")
I think all the factual elements of the OP have been played out at this point. For further discussion, I’m sending this thread to Great Debates. ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [December 1, 2000, 12:18am UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/44 "2000-12-01T00:18:13Z")
> [@](#): > > \*Originally posted by manhattan \* > \*\*I think all the factual elements of the OP have been played out at this point. > > For further discussion, I’m sending this thread to Great Debates. \*\* I thought it might extend to GD. Thanks for the move **manhattan**. Zev Steinhardt ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 1, 2000, 12:22am UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/45 "2000-12-01T00:22:24Z")
> [@](#): > > \*Originally posted by manhattan \* > \*\*I think all the factual elements of the OP have been played out at this point. > > For further discussion, I’m sending this thread to Great Debates. \*\* Noooooo, **Manny**!! I feel safe and warm and cozy in GQ. Now were in cold, harsh GDland, run by those meanies \*\* David B. and Gaudere\*\*. I just know they’re gonna taunt me. Sua ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [December 1, 2000, 12:28am UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/46 "2000-12-01T00:28:00Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\*What if you are angry at someone, want to kill them, but take an action against them that is extremely unlikely to kill them? You can kill someone by pushing them, but the odds are heavily against that happening. Should that carry the same weight as actually killing them? Or even the same weight as shooting them and injuring them, but not killing them due to a doctor’s intervention? \*\* That could then be left up to the discretion of the prosecutor to decide what to charge a person with; just as now a prosecutor usually has some leeway to decide between murder 1, murder 2 or manslaughter. However, without the act, it is, admittedly, hard to judge the intent. You usually do not try to kill someone by pushing them (unless it’s off a cliff), so I would say it would be hard to prove intent. Shooting someone, however, is usually done with intent to kill. > [@](#): > > \*\* > One benefit of the consequences = crime, with intent modifying severity of the crime is that it takes a lot of guesswork out of prosecuting someone. You can start with the facts - “this is what happened”, then modify the charge by trying to figure out “why”. Your approach puts the why question first, and that gets difficult. > Finally, please explain why under your system changing your aim so as to avoid killing your victim should be punished as severely as intending to kill someone and failing. \*\* Because once you pull the trigger, IMHO, you must accept responsibility for what happens afterwards. Therefore, even if you “change your aim” at the last minute, you’d still be guilty of murder. > [@](#): > > \*\* > There are two competing doctrines underlying criminal jurisprudence - retribution (“eye for an eye”) and deterrence. Retribution leans heavily towards treating attempted murder the same as murder - it holds that you should be punished in proportion to your illegal action and the damage it causes. > So, and this is very important (and an issue that hasn’t been raised yet) does deterrence. Deterrence is not only intended to deter people from crime, but from committing worse crimes. Say you intend to kill somebody, shoot him, and only injure him. If we punish attempted murder the same as murder, you have no incentive to change your mind at that point. You’re going to be punished the same degree, and the injured person lying on the ground is the primary witness against you. You might as well finish him off. > How many people would this save in a year? 1, 2, 500? I have no idea. But, criminal law asserts that the hypothetical people saved is worth reducing the sentence by a few years. > > Sua \*\* Well, you could make the same argument about third-strike laws as well. You could say that a guy with two strikes holding up a pizza store might as well kill off the workers because if he’s caught he’s going to jail for life anyway. Your points on deterrence are well-taken. I need to think for a while to come up with a rejoinder to this. It is a valid point. Zev Steinhardt ---
**Author:** ![manhattan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manhattan/32/7_2.png) [@manhattan](https://boards.straightdope.com/u/manhattan)\ **Post date:** [December 1, 2000, 12:50am UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/47 "2000-12-01T00:50:35Z")
> [@](#): > > _Originally posted by SuaSponte \* > \*\* I feel safe and warm and cozy in GQ. Now were in cold, harsh GDland, run by those meanies \*\* David B. and Gaudere_\*. I just know they’re gonna taunt me. > > Sua \*\* Naw, **David B** and **Gaudere** are just fine. But they’re very religious, remember, so you will want to have a prayer ready for them. Try this one – I’m sure it will work. The Mods are thy Shepherds, thou shall not want. They maketh you to post threads in correct forums: They leadeth you beside the double posts. They restoreth your VB code: They leadeth you in the paths of righteousness for thy fellow members’ sake. Yea, though you walk through the valley of the BBQ Pit, Ye will fear no personal insults; for They art with you: Their rod and their staff, they shall comfort you. They preparest a thread before you in the presence of thine enemies; They annointest your good points in praise; your post count runneth over. Surely goodness and mercy shall follow you throughout the Board, and you will dwell in the House of Cecil forever. ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [December 1, 2000, 3:03pm UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/48 "2000-12-01T15:03:25Z")
Where does the case of Charles Rothenberg fit it. He poured kerosene over his 6 year old son and set him on fire, causing third degree burns over 95% of his body, and then just left him in the hotel room alone. Because the child didn’t die, this father (retch) got 11 years in prison. I think he should have fried! ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [December 1, 2000, 3:08pm UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/49 "2000-12-01T15:08:49Z")
> [@](#): > > \*Originally posted by Annie-Xmas \* > \*\*Where does the case of Charles Rothenberg fit it. He poured kerosene over his 6 year old son and set him on fire, causing third degree burns over 95% of his body, and then just left him in the hotel room alone. Because the child didn’t die, this father (retch) got 11 years in prison. > > I think he should have fried! \*\* I would agree with you, **Annie-Xmas**. Zev Steinhardt ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [December 2, 2000, 3:25pm UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/50 "2000-12-02T15:25:32Z")
> [@](#): > > \*Originally posted by pweetman \* > \*\*Great question **zev** one that I’ve thought about for a long time ever since I read about the case I’ll describe below. _Without my remembering the names or dates of this case, it is hard for me to provide sites, if anybody recognizes this case and has some details or sites you can provide, it would be much appreciated._ > > **warning** disturbing details below > > A woman is kidnapped, beaten, and raped by a man. After this severe attack, he takes a hatchet a hacks off her forearms and leaves her bleeding in a ditch. By some miracle, she manages to survive . The man is caught and tried. However, since she didn’t die, he is not guilty of murder. Eventually, after a number of years in prison he is released, the woman lives in fear of his return, but not long after his release, he murders a different woman and is caught and sentenced to death. > > I think I understand the difficulty of convicting a person based on intent, but to me and I would think to the courts, this monster’s intent and callous disregard of humanity is quite clear from the first victom. The fact that she had the incredible strength to survive should not work in his favour. > \*\* This man did not commit a crime against a woman, but a 12 year old GIRL! He also denied doing the crime and filed a lawsuit against the child for lying about him in court, false imprisonment, harassment, and a few other things. He should have had his arms cut off. And his genitals too. ---
**Author:** ![Nurlman](https://avatars.discourse-cdn.com/v4/letter/n/5f9b8f/32.png) [@Nurlman](https://boards.straightdope.com/u/Nurlman)\ **Post date:** [December 2, 2000, 4:13pm UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/51 "2000-12-02T16:13:11Z")
**Zev** , your proposals are essentially what is reflected in typical American criminal law. > [@](#): > > \*\*(By Zev)\*\*There should be a charge for intent to murder followed by an act that attempts to fulfill that attempt (whether or not the murder was sucessful). This would include any direct action that would cause death (including shooting, stabbing, etc.) In other words, if you shoot someone without a damn good reason (self defense, etc.) you’re charged. This is the standard doctrine of “attempt.” As far as I am aware, most states have a general “attempt” statute that makes it a crime to attempt to commit some other crime; there are not separate statutorily-defined crimes like “attempted murder” or “attempted arson.” For example, here is New York’s general attempt statute: > [@](#): > > **N.Y. Penal Law s. 110.00: Attempt to commit a crime** > A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of the crime. Pretty simple. Most jurisdictions punish an attempted crime with the same sentencing range that would apply if the crime were completed. See N.Y. Penal L. s. 110.05. Thus, a person who intends a murder and acts to bring it about is subject to the same punishment regardless of whether he was successful or not. For non-class A felonies in N.Y. (that is, non-violent felonies), punishment for the attempt is one lower class of crime-- _e.g._ atttempting a Class C felony warrants the punishment set forth for a Class D felony. The rationale is that “the drafters apparently believed that since the consequences of an attempt were generally less serious that those of the consummated crime, the attempt deserved a less serious penalty. Subsequent legislation, premised on the belief that **certain attempts** were as serious as the consummated crime, classified five attempts at the same classification as the consummated crime.” _Commentaries to N.Y. Penal L. s. 110.05_ (Emphasis added). > [@](#): > > \*\*(by Zev)\*\*There should be another charge for indirectly causing a death without intention to murder (excluding, of course, complete accidents). O.k., how about “Manslaughter in the Second Degree”: > [@](#): > > **N.Y. Penal L. s. 125.15(1): Manslaughter in the Second Degree:** > A person is guilty of manslaughter in the second degree when . . . he recklessly causes the death of another person. “Recklessness,” in legal terms, means that you lacked specific intent to cause harm, but did something that you knew posed a serious risk of injury to another and that you consciously disregarded that risk. In the statutory commentaries on Man2, it states “For manslaughter, there must exist a substantial and unjustified risk that death will result; the risk must constitute a grosss deviation from the standard of care that a reasonable person would observe in the situation.” The street sign theives are a crystal-clear example of an appropriate Man2 prosecution: they did not intend to harm anyone, but knew that removing the sign posed a serious risk of injury to others. > [@](#): > > **By SupSponte** : > You hate someone, want to kill him, and sneak into his bedroom with a gun. You pop him several times, then sneak out. Unbeknownst to you, the guy had a heart attack before you arrived, and was already dead. Under U.S. law, you can’t be charged with murder (abusing a corpse, maybe, but not murder). Do you agree or disagree with U.S. law? Not quite correct. Here’s > [@](#): > > **N.Y. Penal L. s. 110.10: Attempt to commit a crime, no defense** > If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charge to have been attempted was, under the attendant circumstances, factually or legall impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be. Even better, here’s the commentary on the section: > [@](#): > > (2) If a defendant, believing the victim to be alive, shoots that victim with intent to kill, it is no defense to attempted murder that the victim was in fact dead before the defendant fired. _People v. Dlugash_, 41 N.Y.2d 725 (1977) . Here’s an excerpt from the _Dlugash_ decision: > [@](#): > > Bush drew his .38 caliber pistol, aimed it at Geller and fired three times. Geller fell to the floor. After the passage of a few minutes, perhaps two, perhaps as much as five, defendant walked over to the fallen Geller, drew his .25 caliber pistol, and fired approximately five shots in the victim’s head and face. Defendant contended that, by the time he fired the shots, “it looked like Mike Geller was already dead”… The jury convicted the defendant of murder. Necessarily, they found that defendant intended to kill a live human being. Subsumed within this finding is the conclusion that defendant acted in the belief that Geller was alive. Thus, there is no need for additional fact findings by a jury. Although it was not established beyond a reasonable doubt that Geller was, in fact, alive, such is no defense to attempted murder since a murder would have been committed “had the attendant circumstances been as [defendant] believed them to be.” ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [December 3, 2000, 5:42am UTC](https://boards.straightdope.com/t/murder-and-attempted-murder/43197/52 "2000-12-03T05:42:29Z")
Thank you **Nurlman** for the legal analysis. That being said, my point is that attempted murder should be the top charge and face the top penalty (possibly death in death penalty states, or whatever the top charge is in non-DP states). Zev Steinhardt [Previous page](https://boards.straightdope.com/t/murder-and-attempted-murder/43197.md?page=2)