Attempted Murder Limits

Attempted Murder Limits

Intent to inflict great bodily injury makes a killing murder, because once a death has occurred the law treats a purpose to injure gravely as malice.¹ That mental state does not carry over to a charge of attempted murder when the victim survives, and the reason lies in what attempt requires. Attempt is a specific-intent crime, meaning that the defendant must have aimed at the prohibited result rather than merely risked it. The Illinois statute applied in People v. Harris defines attempt as doing an act that is a substantial step toward a specific offense, with intent to commit that offense.² The same code defines murder through several alternative mental states, among them intent to kill or do great bodily harm, knowledge that the acts create a strong probability of death or great bodily harm, and the commission of a forcible felony.³ Placing the two definitions side by side exposes the difficulty: murder is defined by its result, the death of another, so an intent to commit murder is an intent to bring about that death, which is narrower than the list of states that suffice once a death has occurred.⁴

The asymmetry follows from what each offense punishes. A completed murder has a result, a dead person, and the law asks how culpable the choice was that produced it, so intent to injure, knowing disregard of a high risk to life, and a felonious purpose can each qualify as a culpable choice that ended fatally. An attempt has no result to anchor it, so liability rests on what the defendant was trying to achieve, and a defendant who tried only to injure was not trying to kill. Convicting that defendant of attempted murder would punish a purpose the defendant never held. The alternative also proves too much, because a view that let attempt rest on whatever mental state suffices for the completed crime would make every robber guilty of attempted felony murder.⁵

Harris arose from two consolidated appeals in which the jury instructions had blurred the line between murder and attempted murder. The instruction challenged in Harris told the jury that a person is guilty of murder if, in performing the acts that cause the death, he intends to kill or do great bodily harm to that individual, and it was given in a prosecution for attempted murder.⁶ The court held the instruction defective because it let the jury convict on evidence that the defendant intended only great bodily harm short of death, and it stated the governing rule directly: an instruction must make it clear that to convict for attempted murder "nothing less than a criminal intent to kill must be shown."⁷ The judgment in Harris was reversed and the case remanded for a new trial.⁸

The decision also closed the knowledge route. Earlier, in People v. Trinkle, the court had held defective instructions that allowed a conviction for attempted murder on a finding that the defendant knew the acts created a strong probability of great bodily harm, even without evidence of an intent to kill, and Harris overruled the part of People v. Muir that had approved that approach.⁹ Together the decisions mean that neither intent to injure nor awareness of a high probability of death or great bodily harm satisfies the mental element of attempted murder.

The partial concurrence and dissent shows how the defect operated and where the disagreement lay. It agreed with the majority that, in framing an attempted murder charge under the intent-to-injure branch of the murder statute and in instructing the jury on it, the words "or do great bodily harm" must be excised from the definition of murder.¹⁰ Its reasoning was that the instructions on attempt told the jury the defendant needed a specific intent to take a life, while the murder definition told the jury that intent to do great bodily harm was enough, so the jury could convict by following the weaker standard.¹¹ The separate writer parted from the majority only over Shields, the companion appeal, believing that the instructions read as a whole already required proof of intent to commit murder.¹²

Other courts reach the same rule by their own routes. In People v. Swain, which rejected conspiracy to commit murder on an implied-malice theory, California's highest court explained that implied malice is derived in part, through hindsight, from the intent to do an act dangerous to life and the fact that a killing resulted, so a crime that is complete before any killing cannot rest on it; the court added that it had reached similar conclusions about assault with intent to commit murder and attempted murder.¹³ The California instruction on assault with intent to commit murder reviewed in People v. Hood required a specific, preconceived intent to kill a human being.¹⁴ That requirement carried weight there because the evidence of a gun discharged during a scuffle could be reconciled with an intent to kill, an intent to inflict only bodily injury, or no intent to fire at all, and conflicting instructions on how intoxication bore on specific intent required reversal.¹⁵ Assault with intent to commit murder follows attempt in this respect, so a defendant who deliberately shoots a victim within an inch of the heart, without intending death, is not guilty of it.¹⁶

The two scenes share the weapon, the wound, and the survivor, and differ in one variable, the object of the defendant's purpose. A concurring opinion in Commonwealth v. Brown approaches the point from the other side, observing that a defendant who kills an intended target and one who shoots and misses may share the same intent to kill even though they differ in blameworthiness.¹⁹ What the two share is the intent to kill, and that intent is what the attempt charge measures. Students lose this issue when they carry the murder mental state straight over to the attempt charge, reasoning that an attack that would have been murder had the victim died must be attempted murder because the victim lived.²⁰ The prosecution can still reach attempted murder by proving intent to kill, and that proof comes from circumstances: conduct that is merely very risky is weak evidence of a purpose to kill, while a defendant's own words announcing that purpose are strong evidence even when the act carries little chance of success.²¹

The rule still leaves the attacker who intended injury answerable for what was intended. Assault and battery can be aggravated by the means used, such as a deadly weapon, by the resulting harm, such as serious bodily injury, by the status of the victim, and by an intent to commit a more serious crime, and the grounds based on means and resulting harm require no intent to kill.²² California courts, for instance, have treated assault with a deadly weapon as not requiring specific intent, and the statute reaches an assault by means likely to produce great bodily injury without mentioning an intent to injure.²³ The charging structure therefore tracks the mental states: the injury the defendant meant is punished as aggravated assault or battery, and the heavier charge of attempted murder is reserved for the defendant whose purpose was death.

With attempt marking the outer edge of the intent-to-injure theory, this chapter's work on the subject is complete. The Review that follows gathers its rules in the order they were taught.