Thanks, it's something no one should ever have to experience.

lauradav, I'm sorry about your friend :( Hope things work out.

In the hypothetical situation that was laid out, I guess it depends on specific state laws, what the guy could be charged with. I'd think/hope he could be charged with something... what he thought he saw, was his wife's lover lying asleep in their bed, and he acted "accordingly" - whether the victim was already dead should be irrelevant - he wanted to kill him. He might be given a lighter sentence since the victim (being already dead) didn't suffer, but he still should not be allowed to just walk away.

I know nothing about the law when it comes to this particular insident, so I'm going to just go with my gut reaction which is this...
Yes he could be jailed or whatever for intent to harm.
However he could also file for divorce and get most everything because he caught his wife cheating on him...now if he is tried and convicted (if that's what CAN happen), then I don't think he is entitled to his claims. OH WHAT A MESS!!!! I'm confusing myself.

Ask me something about libel and slander! LOL:p

In California, the man took a substantial step towards committing the murder. He had the proper mens rea (latin for the state of mind, if I remember correctly). But in CA, he would be charged with attempted voluntary manslaughter, because this would be considered a crime of passion.

i'm not studying to be a lawyer, but a similar scenario was presented in a criminal justice classi just happened to be taking. i honestly don't remember the answer and reasoning the professor gave to the class. however, my opinion was and still is that the husband can't murder something that's already dead. attempted murder is totally different, but not actual murder.

where's judge judy, judge milian or any of those other judges when you need them?

I believe...that while he could not be charged with murder itself...he COULD be charged with attempted murder, or an intent to do bodily harm, because he DID grab his gun, aim..and shoot, not just once, but four times. If that's not an intent to kill, I don't know what is.


Jess

First of all, everyone who said he committed an attempt...You're right.

"Attempt" of a crime requires two things...

1. Mens rea (the evil thought): To be convicted of attempt of a particular substantive crime (like murder here), the defendant must have had the intent to commit that crime.

Here, the guy had the intent to kill the man - shooting the victim 4 times that closely - it's highly likely that a jury would find that to be intent to murder.

2. Actus reus (the evil deed): The traditional view has been that the defendant cannot be convicted of an attempt to commit a substantive crime unless he performed acts which came very close to commission of the substantive crime itself. But the modern view is that almost any sort of overt act that represents a substantial step towards the offense, and that is strongly corroborative of the defendant's intent to commit the substantive crime, will suffice.

Again, shooting the guy four times is definitely a "substantial step" in committing the murder. Under another commonly used test, our unlucky defendant here has also committed the "last act" possible before he could withdraw. For example, if he had just put bullets in the gun, or even pulled it out, he could still "stop" before actually killing anyone. But once those bullets have been fired and have hit someone, he can't take them back.

Regarding impossibility, the real issue is not whether the deed is actually possible, it's whether it was possible from the viewpoint of the defendant.

Following the Model Penal Code (an example of criminal law statutes on which many states base their laws) approach:

Model Penal Code Section 5.01 Attempt

1) Definitions of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; OR

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; OR

(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

Also, since this was not a "premeditated" murder - i.e. he didn't have time to stop and think about it and plan the murder - it's most likely not first degree murder. In People v. Anderson (1968), the California Sup. Ct. listed three elements tending to show the requisite deliberation for first degree murder:
A) planning activity, occurring prior to the killing;
B) evidence of motive; and
C) a manner of killing “so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

So then we're left with either second degree murder or voluntary manslaughter. To successfully plead manslaughter in this case, the defendant must successfully claim he acted in the "heat of passion." Under the common law, he must meet these four objective and subjective (personal to the defendant's circumstances) tests:

1) he acts in response to a provocation that would be sufficient to cause a reasonable man to lose his self-control; (objective)
2) he in fact acts in a heat of passion; (subjective)
3) the lapse of time between the provocation and the killing is not great enough that a reasonable man would have “cooled off” (objective); and,
4) he had not in fact cooled off by the time he kills. (subjective)

A spouse walking in on a scene of adultery is commonly accepted as providing the requisite "provocation" sufficient to cause a loss of control.

So basically our guy is liable for attempted voluntary manslaughter, barring other circumstances.

A better defense would be for the defendant to try and argue that he ALREADY KNEW the guy was dead and he was just taking out his frustrations. Then he's only liable for violating firearms laws (i.e. firing a gun inside a residence, etc.) and mutilating a body (gross, I know, sorry).

G8Ralphaxi
...guess who booked her Crim Law exam???? :D

Hee hee, I was right! Old girl's still got it! ;)

Damn, who is this masked man?:)

I bet he is the legal advisor on a TV legal show!!!!!!:D

If I could have written that good Dr. Riely would have given me a better grade in Law Class.
But he always said if HE graded on B S, He would have given me an A :D

I would say he could not be convicted as he lacks the necessary actus reus for murder. He could be charged with having messed with a dead corpse though.

I'm a law student too.

I could see him being put on trial for 'desacration' or something akin to that.(if there is even a law dealing with that kind of thing)

As a general rule though, if someone gets caught cheating and the cheaters' lover is killed....well, we all know the consequences of our actions so Not Guilty.

We all know that if you go messing with another guys girlfriend, you're risking an ass beating. You sleep with someone's wife...well, better be prepared for the worst case senerio of her husband coming home and committing a crime of passion.

possible
 

I would try to get the bitch on involuntary manslaughter, she put him at risk with the sex, and failed to act. in CL i could nail her easily for negligence but I think I cold even get her for reckless in the MPC. For the dude if he had a good defense they might be able to get away with a legal impossibility, but I would claim it to be a factual impossibility and get him for attempted murder. It
but he could argue something about catching your wife in bed bullshit making some kind of heat of passion killing, or that he suffers from extreme emotional disturbance from all the relationship problems, so he would probably only get attempted voluntary manslaughter. one would think

Glad I'm not a lawyer. I am way too naive and idealistic. And I would miss a lot of details. I do like to present arguments and debate, but not at that level. I could never be a defendant.

What if the guy had just tried to punch the man lying on the bed, or to stab him, but upon grabbing or punching or stabbing he would have immediately noticed the guy was dead? Would a method requiring contact result in a different verdict than a gunshot that could be fired at a distance?

Holy bump, Batman!

Seven years!

I've only been in law school for 2 whole weeks so bear with me!

I think this is a trick question. As we all know there are two factions of law in America, civil and criminal courts. The main difference I would say is the type of standard of proof that they use to decide their cases.

In Criminal law, as we all know from movies and Law & Order, the PROSECUTOR must prove beyond a reasonable doubt that a person is GUILTY. In Civil law the PLAINTIFF'S council must only win by the preponderance of evidence showing that the defendant is LIABLE.

Lets look at the question again, shall we? " The question is this. Will John be held liable for attempted murder and violent assault even though the body was already dead?"

I believe the answer is NO, because a person will not be held liable for a criminal matter just the same way that someone is not going to be found guilty for a civil one. That's the best I could after 3 Torts classes since I haven't taken Crim Law yet... :D