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Scenario 1: Bob points a gun at Joe's head, says "I'll kill you", pulls the trigger, and misses Joe by 1 inch. Joe is fine physically.

Scenario 2: Bob points a gun at Joe's head, says "I'll kill you", pulls the trigger, and shoots him as intended. Doctors just barely save Joe from death.

Are these both attempted murder? Is this the same offense with the same penalty?

N00b101
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    It would be almost impossible to know how much Bob missed by. – Strawberry Feb 09 '21 at 12:28
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    Missing the point their @Strawberry - suppose it was a harpoon gun that would embed in a nearby wall, thus jutting out not one inch from where what's-his-name stands. – Alec Teal Feb 09 '21 at 13:45
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    It's always struck me as odd that being incompetent in attempting a murder somehow makes it less serious. Why is a person with bad aim/luck subject to less consequence? – ScottS Feb 09 '21 at 17:41
  • In which country? – Stilez Feb 09 '21 at 19:06
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    @ScottS very interesting indeed. I suppose that in general, punishment would and should be the same for the attempt, but in the second case, you also have to pay for damages, so to speak. – magma Feb 09 '21 at 19:30
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    @ScottS : perhaps because there are multiple goals of punishment: one to lock dangerous individuals away from people they could hurt, another to make future troublemakers know that such acts carry consequences, and another to give retribution for damages caused. The first two don't depend on the luck of the culprit, but the third one does. – vsz Feb 09 '21 at 19:36
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    @ScottS: Would you also argue that involuntary manslaughter (murder minus intent) shouldn't be a crime? – ruakh Feb 09 '21 at 22:23
  • @Strawberry : but you can know very much the distinction between uninjured, injured, and grievously injured. – The_Sympathizer Feb 10 '21 at 03:13
  • @ruakh sometimes, I think. Right? Surely there are some examples where a persons decisions led to the death of another person, but there's no way the first person could have known that it would, and most reasonable people would probably agree in many of those scenarios at least that there's no value in punishing the 'murderer' as a criminal. – TKoL Feb 10 '21 at 13:29
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    Another question: Would it matter how close the attempt murder came to a success? For example, if the gun didn't fire and an expert witness tells the court that the chance of the gun not firing is one in thousand, vs. a case where the accused acted in a way that had very little chance of success? – gnasher729 Feb 10 '21 at 16:39
  • @TKoL: I should clarify that "involuntary manslaughter" requires more than just accidentally causing someone's death; IANAL, but roughly speaking, you need to have caused it either by doing things that no halfway-reasonable person would do, or by not doing things that you have a duty to do, or by doing things that are already illegal (but potentially very minor crimes), or the like. But it lacks the intention to kill someone, and I think most people -- rightly -- view it much more seriously than a similar act that in fact does not kill anyone. – ruakh Feb 10 '21 at 18:48
  • I sort of understand the distinction for damages caused. But assuming death is the maximum damage that can be caused (vs say a lifetime of severe disability). Then I still feel that the intent to cause maximum damage is equivalent to actually causing maximum damage. Once you conclude there was an attempt to murder someone, I don't see room for distinction based on the outcome. – ScottS Feb 10 '21 at 20:51
  • @ruakh I think involuntary manslaughter should be a crime. If someone takes an action that can reasonably foreseen to be dangerous, but with no intention of causing any harm, and that action also will most likely result in no harm, then consequences aligned to actual damages seems very reasonable. But when the intent is maximum harm, failure to create that level of harm does not seem like a mitigating factor to me. – ScottS Feb 10 '21 at 20:59
  • @ScottS For crimes of degree like that you have to look at the marginal effect. If attempted murder and murder are treated identically then people that screw up are going to try to make sure their target dies. If they are punished identically whether the target lives or dies why wouldn't they make sure they die? – gormadoc Feb 11 '21 at 21:36
  • @gormadoc I can see your point for something like battery or theft. But attempted murder implies that the murderer already had the intent of causing death. It seems improbable to me that anyone is making half hearted efforts to murder people so that they might receive lesser consequence in case their attempt fails. – ScottS Feb 13 '21 at 23:01
  • @ScottS not necessarily a half-hearted attempt but it could be easily met in other circumstances. Assailant beats someone, intending to kill them, but the beating isn't quite sufficient to do so. At that point they get a choice: kill them or consider the matter settled with some good maiming? This was the thought process for my neighbor so it's not a hypothetical situation. – gormadoc Feb 15 '21 at 15:18

3 Answers3

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He'd be looking at ~6+ more years in prison in the second scenario

In the United States, this would be attempted murder in both cases, though in the case of actual physical harm, the prosecutor could charge related offenses such as battery, which is "an intentional offensive or harmful touching of another person that is done without his or her consent."

Note that though most attempted murders would likely be state crimes, I'm going to answer the rest of this from the perspective of a federal prosecution for attempted murder. The result would likely be similar for states, though the exact mechanism would be different.

Sentencing for people convicted of serious federal crimes is guided by the United States Federal Sentencing Guidelines. An "offense level" is determined, then combined with the offender's criminal history and checked against the sentencing table to determine a suggested sentencing range for the judge.

Specifically, for Assault with Intent to Commit Murder; Attempted Murder, §2A2.1. states that:

(a) Base Offense Level:

       (1) 33, if the object of the offense would have constituted first degree murder; or

       (2) 27, otherwise.

(b) Specific Offense Characteristics

       (1) If (A) the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) the victim sustained serious bodily injury, increase by 2 levels; or (C) the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.

       (2) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder, increase by 4 levels.

So in this case, it sounds like Joe suffered a life-threatening injury in the scenario where he got shot. Let's assume that this is Bob's first offense, and that it would have constituted first degree murder.

If Bob missed, he'd be looking at 135-168 months (11.25-14 years) in prison. If he shot Joe successfully, he'd be instead looking at 210-262 months (17.5-21.83 years) in prison.

Ryan M
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    Worth noting that a judge can deviate from the sentencing guidelines (up or down) under some circumstances, that deviations aren't that uncommon (far more often downward than upward, however) and that the maximum sentence if fixed by the offense of conviction and not the guidelines. The maximum sentence is the same with or without injury. – ohwilleke Feb 09 '21 at 01:27
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    Reading this answer and @ohwilleke 's comment, I remember hearing of a case on the radio several years ago, that iirc, went like this: An individual was convicted in the US of robbery or of something similar, and the judge was apparently feeling quite merciful in this situation. The judge only gave them a single year's sentence. However the convict was ungrateful and spat at the judge. At that point the sentence became 20 years. (The original sentence had just been pronounced and wasn't official yet.) This was likely in a state court, but the judge was all over the place on the sentencing. –  Feb 10 '21 at 01:15
  • Prosecutors would be more likely to include "assault with a deadly weapon" than "battery" here, though it's also not unlikely they would pursue both in addition to the attempted murder charge. – TylerH Feb 11 '21 at 15:55
  • @TylerH assault with a deadly weapon could be charged in either case; actually hitting the intended target with the bullet is not required. You can think of battery as the "completion" of the harm threatened or attempted in an assault. – Ryan M Feb 12 '21 at 00:30
  • @RyanM Sorry, I was not suggesting that assault with a deadly weapon had the same conditions as battery, only that the prosecutor would opt for the former and not the latter, regardless of whether the victim was actually hit. – TylerH Feb 12 '21 at 14:06
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Both scenarios have the same mens rea (intent to kill) and actus reus (firing the gun) so in they are both attempted murder - plus the potential for host of other off topic offences.

The difference will come at sentencing if Bob is found guilty. The Sentencing Council's guidelines provide a sliding scale for judges depending on the...

...seriousness of the offence, harm caused to the victim, the offender’s level of blame, their criminal record, their personal circumstances and whether they have pleaded guilty.

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    Presumably they could also charge battery or similar for the "actually shot him" case, but not in the "missed" case, correct? – Ryan M Feb 08 '21 at 22:48
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    Yes, probably GBH and assault for both. But I was thinking more along the lines of possession with intent or kindred firearms offences –  Feb 08 '21 at 22:53
  • In England and Wales sentences are usually concurrent, so the longest sentence is the one served. Other offences that were not tried may, on request, be "taken into consideration" (formerly "taken into account"), in certain circumstance, affecting the sentencing. (https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/offences-taken-into-consideration/) – Rich Farmbrough Feb 11 '21 at 13:44
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It is common to file both aggravated assault charges and attempted murder charges in cases where an attempted murder results in serious injuries. The attempted murder charge typically requires a stronger showing of ill intent so it is harder to prove and typically carries a longer sentence (subject to the discretion of the sentencing judge who typically has more freedom at the state level than in the federal courts).

If there is not injury, one has to go forward only on the attempted murder charges and not the aggravated assault charges, which can be harder to prove but authorizes the same maximum sentence if there is a conviction. Sometimes there would be a lesser included charge of menacing (i.e. trying to scare someone with a firearm unlawfully) in an attempted murder charge which would carry a felony sentence if there was no attempted murder conviction, but a less serious potential sentence than an aggravated assault conviction.

ohwilleke
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    As a matter of evidence: If my bullet hits the victim's ear, that's good evidence for attempted murder. If my bullet hits the victim's leg, from a close distance, that may be evidence against attempted murder. – gnasher729 Feb 09 '21 at 11:45
  • @gnasher729 Likely only if you have formal/extensive firearms training. Otherwise it could easily be argued you simply have bad aim or are unfamiliar with shooting guns, the victim was moving, there was a scuffle, etc. The exclamation of "I'll kill you" would also do a number on that argument. – TylerH Feb 11 '21 at 15:57