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How to Define a Case as Attempted Murder


The circumstances under which a person can be charged with attempted murder tend to differ in various countries. In Britain for instance, a person can only be charged with attempted murder when there is evidence of intention to kill, which is motive and prove of premeditated acts of the murder. In United States which is the country that we shall base the circumstances of the case scenario, a charge of attempted murder must involve physical attempts on one’s life. In this paper, our discussion will be limited to the circumstances of the case scenario and I will seek to determine whether Jack’s actions constitute attempted murder.

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Issues involved

The issue that the court should have attempted to address before dismissing the attempted murder charge that was filed against Jack was whether the misfire of the gun was circumstances that would exempt him from facing the mentioned charges. Another issue that the court should have determined is whether the circumstances of the case as was described would fit the conditions under which a person would be legally found guilty of attempted murder. To determine this, the following legal principles should be applied.

Legal Principles

One of the universal principles that are applied in determination of attempted murder is referred as Proof of mens rea; it simply states that “there must be more than merely preparatory acts” such as intent before attempted murder charges can be preferred (Fletcher, 1998). Another related legal principle that should be applied to determine the circumstances of the case is actus reus which means “guilty act” (Fletcher, 1998). This principle of actus rea is applied together with mens rea and attempts to describe the “physical elements of committing a crime” (Fletcher, 1998). Finally for state to prove that attempted murder occurred under the circumstances, two important conditions must be certified. One, that there was clear and unmistakable intent to cause death by the accused and two, that the accused acted or omitted to act for purposes of enabling the death of another person, which is described as purposeful acts (Bears, 1992).

Application of Legal Principle

The principle of mens rea would prove that Jack had clear and express intentions to kill Bert. Even without any clear motive for committing the crime, Jack is guilty of intent to kill by the virtue of holding a loaded gun in Bert head, which he went ahead and fired. This is because the principle of mens rea is based on the logic that the accused knew that what he was planning on undertaking was wrong and which was designed to cause the death of Bert in this case (Fletcher, 1998). Hence, carrying a loaded gun and trying to discharge it when pointing at Bert with intention to kill certifies this legal principle only because Jack made serious use of the gun. However, the court needs more than proof of mens rea to convict on charges of attempted murder.

This brings us to the second principle of actus reus which will help us determine Jack’s verdict. The physical element of carrying out the crime was indeed present because Jack did fire the gun supposedly at Bert but missed on this occasion killing someone else in the process, and then pressed the trigger again with intention to kill Bert for the second time.

There is no doubt that the causation element was there which would have changed all the circumstances of the outcome were it not for the intervention of unpredictable event that caused the gun to misfire. This is what the law calls an extraneous circumstance that prevents completion of a crime but which the defendant was not aware of its existence (Hasnas, 2002). All other factors being constant, there is enough evidence to charge Jack with attempted murder on two counts based on the two attempts that he made at Bert’s life. Besides, both of these circumstances certify the two principles of mens rea and actus rea, notwithstanding the defense of factual impossibility which should not even be admissible in the court under the circumstances.

Let us determine if the first count would have stuck independent of the second attempt at Bert life based on legal precedents of similar cases. In the case of People v. Lee Kong, the defendant was convicted of attempted murder despite the element of the “mistakes of fact” in the attempt, which refers to the defense of factual impossibility (Hasnas, 2002). During the trial it come out that Mr. Lee had aimed and shot at the roof, believing that the person that he wanted to kill was at that particular spot on the roof. However, the plaintiff was not at that spot by that time since he had moved just moments before shooting. Even though the facts at the time made it impossible for Mr. Lee to kill the plaintiff, the conviction of attempted murder was handed down all the same since the defendant was unaware of this fact at the time which makes it an extraneous circumstance (Hasnas, 2002). So on the first instance when Jack tried to fire the gun and killed Pratt instead, there is enough to convict him of attempted murder independent of consequent actions that led to the misfire of the gun on the second time.

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Nevertheless, let us determine if the second attempt that Jack made on Bert’s life also constitutes attempted murder. In the case of Commonwealth v. Johnson the accused, Mrs. Clarissa was convicted of attempted murder based on her confession in a plan that would have killed her husband; instead of putting the arsenic poison in the cup of coffee as she had intended, she put sugar instead (Hasnas, 2002). Later after realizing that she almost killed her husband, she goes to the police confesses her actions where she is arrested and convicted of attempted murder. Her conviction by the court was based on the fact that the law does not allow the impossibility of a crime to be admissible in court as defense in cases that involve attempted murder or for any other attempt of committing a crime in general (Gorr and Harwood, 1992).

However, it does allow legal impossibility to be used as defense by an accused person, but since the concepts of legal impossibility are very similar to factual impossibility one must be aware of whether the circumstances of the crime can offer defense on the grounds of legal impossibility. The concept of legal impossibility when applied in law refers to acts that would not have resulted to a crime even if they were carried out to the last step by the person intending to commit the crime (Fletcher, 1998). For this reason the circumstances of the crime under which Jack is being accused cannot allow him to use legal impossibility as his defense.


Based on the facts of the case, the court would not have dismissed the charges against attempted murder that were filed against Jack for two reasons. The circumstances of the crime indicated intent to kill and deliberations of the crime in what constitutes premeditation; this is because Jack must have obtained the gun for that purpose and followed his target until he had the opportunity to carry out the crime. The second is an ethical reason, all law principles aside it is also clear that Jack intended to kill Bert was it not for the jamming of the gun; unfortunately the law has no room for moral or ethical principles since this is the only way that it can be effective. From the time that the law was invented, the cardinal rule has always been that the law should free ten guilty people rather than convict wrongly even just one person. This is perhaps one of the noblest ideologies that exist in legal arena and which also indicate that the law perhaps has room for ethical principles.


Bears, J. (1992). Attempted Murder: Final Report of the New Jersey Criminal Law Revision Commission. Web.

Fletcher, G. (1998). Basic Concepts of Criminal Law. London: Oxford University Press.

Gorr, M. & Harwood, S. (1992). Controversies in Criminal Law. New York: Westview Press.

Hasnas, J. (2002). Once More unto the Bench: The Inherent Liberalism of the Criminal Law and Liability of Attempting the Impossible. Hastings Law Journal, 54(2): 132- 162.

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Learn More (2009). What is Premeditated Murder? Web.

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