criminal-law
&quot;attempted murder&quot; of a dead man?
<p>This question inspired by an episode of a certain popular TV detective show.</p>
<p>Mr Smith hates Mr Jones, and plots to kill him. Smith enters Jones' house, and shoots him in bed, while also setting up an alibi for himself. The clever detective quickly breaks the alibi. Then he receives the autopsy. Jones was already dead, having been poisoned by a third party. Detective has to release Smith, saying &quot;You can't murder a dead man.&quot;</p>
<p>When I saw that I thought: but surely he's guilty of attempted murder, at least. And then I thought again: can you legally be held responsible for attempted murder if the intended victim is already dead?  Would the <a href="https://lawcomic.net/guide/?p=416" rel="noreferrer">defense of impossibility</a> apply? [source, The Illustrated Guide to Law, a layman's guide to legal principles, written by a lawyer]</p>
<p>If it matters, the show was set in LA. Would it make a difference if it was set in, e.g. New York, or London, or Canberra?</p>
<p>And by the way:</p>
<blockquote class="spoiler">
<p> In the episode, it turned out that Smith was also the poisoner. He gave himself a double alibi. But for the purposes of this question, please assume that the poisoner was a third party</p>
</blockquote>

<p><strong>Not only is this possible, it has been done.</strong> At least in Canada.</p>
<p>On July 27th 2013 <a href="https://en.wikipedia.org/wiki/Shooting_of_Sammy_Yatim" rel="noreferrer">Sammy Yatim was on board a Toronto Transit bus and began brandishing a knife and threatening passengers.</a> Constable James Forcillo of Toronto Police Service responded, and when Yatim ignored warnings and advanced towards police, Forcillo fired three shots, which felled Yatim, followed by another six shots when he was on the ground. An autopsy revealed that the first volley of three shots had killed Yatim almost instantly.</p>
<p>At his trial Forcillo was found not guilty of murder, since the first three shots were deemed justified. But the second volley were deemed not justified. Since Yatim was already dead, Forcillo was not guilty of murder but found guilty of attempted murder.</p>

<p><strong>Can you legally be held responsible for attempted murder if the intended victim is already dead?</strong></p>
<p>In the circumstances described in the OP within <a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a> <strong>Yes</strong></p>
<p>The offence may be found at s.1 of the <a href="https://www.legislation.gov.uk/ukpga/1981/47/section/1?timeline=false" rel="noreferrer">Criminal Attempts Act 1981</a></p>
<blockquote>
<p>(1) If, with intent to commit an offence to which this section
applies, a person does an act which is more than merely preparatory to
the commission of the offence, he is guilty of attempting to commit
the offence</p>
<p>[...]</p>
<p>(2( A person may be guilty of attempting to commit an offence to which
this section applies <strong>even though the facts are such that the
commission of the offence is impossible</strong></p>
<p>[...]</p>
</blockquote>
<p>The leading case law is <a href="https://en.m.wikipedia.org/wiki/R_v_Shivpuri" rel="noreferrer">R v Shivpuri [1986] 2 All ER 334</a>.  He was convicted for Criminal Attempt relating to drug trafficking despite the &quot;drugs&quot; actually being an innocent substance (mainly snuff) not subject to any Customs controls and perfectly lawful to possess or import.</p>

<h2>You can attempt to murder a dead man</h2>
<p>Or conspire to murder them for that matter.</p>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a></p>
<p>The precedents in Australia relate to receipt of stolen property that was not, in fact, stolen or drug offences that didn’t actually involve drugs but the principle is the same.</p>
<p>However, the law in Australia depends on whether it would be “fair” in the circumstances to prosecute (see <a href="http://classic.austlii.edu.au/au/journals/HCRev/1996/8.html" rel="noreferrer">Conspiring to do the Impossible
The Queen v Barbouttis
Commentary on an appeal to be heard against a judgment of the NSW Court of Criminal Appeal (reported in (1995) 37 NSWLR 256)</a>). For the person you describe, it would definitely be fair.</p>

<h2>Germany</h2>
<p>Even though you are not asking about Germany I looked it up, being curious. In German law, too, you can be punished for what's called <a href="https://de.wikipedia.org/wiki/Untauglicher_Versuch" rel="nofollow noreferrer"><em>untauglicher Versuch</em></a> (perhaps translatable as <em>unsuitable attempt</em>). Attempted murder of a dead body is explicitly listed as a punishable example. The reasoning draws from <a href="https://www.gesetze-im-internet.de/stgb/__23.html" rel="nofollow noreferrer">par. 23 (3) StGB</a>) which stipulates that an unsuitable attempt owed to a &quot;gross lack of judgment&quot; can lead to a penalty reduction or waiver. The implication is that <em>any</em> unsuitable attempt (stupid or not) is considered a crime by this law.</p>
<h2>General discussion</h2>
<p>The English Wikipedia lists that under <a href="https://en.wikipedia.org/wiki/Impossibility_defense" rel="nofollow noreferrer">&quot;Impossibility defense&quot;</a> and states that &quot;factual impossibility is rarely an adequate defense at common law&quot;, similar to the German situation.</p>
<p>I find this legal situation systematically unsatisfactory. It is logically problematic to punish the attempt of a logically impossible act (kill a dead body): Try as they might, they could not have committed any crime, and there is no damaged party. The rationale is surely that the perpetrator did something morally bad and poses a threat to society just the same as somebody who performed a proper attempt.</p>
<p>The dissatisfaction arises because typically, a <em>legal impossibility</em> (somebody thinks they are committing a crime, but they misread the law) prevents punishment for systematic reason: No crime was factually attempted. But we <em>do</em> punish &quot;even more&quot; impossible <em>factually impossible</em> attempts.</p>
<p>The subjective side is identical: The perpetrator wanted to perform a criminal act. If we think this is punishable we should do so in all instances.</p>
