Commentary. If we follow the same reasoning used by Dr. Wharton in the hypothetical case of "Lady Eldon's French Lace," we would find Alice guilty of a criminal attempt. The circumstances of this puzzler seem so bizarre, it would be natural to assume that it is made up, but there was a case in 1977 that came before the New York Court of Appeals and that presented the court with the same sort of dilemma as Alice's attempted murder of a corpse. Alan Dershowitz took the case on appeal, and the case is now studied in law schools throughout the country:
People v. Dlugash (1977)
A few days before Christmas, Joe Bush, Mike Geller, and Melvin Dlugash went out for drinks. Mel and Joe were friends. Joe had been staying at Mike's New York apartment and Mike asked him, several times during the course of the evening for $100 that he said Joe owed in back rent. Joe did not comply with Mike's request. Indeed at one point he turned to Mike and said "You better shut up, or you're going to get a bullet." Around midnight all three went to Mike's apartment where they continued their drinking until approximately 3:30 in the morning. When Mike asked again for his rent money, Joe pulled out a .38 caliber pistol and shot Mike three times. Two of the bullets hit Mike squarely in the chest, piercing his heart. A few minutes later Joe told Mel to fire some extra bullets into Mike's body. Mel took out his own .25 caliber pistol, walked over to Mike, who was lying on the floor, and fired five bullets into his head and face. Later, Mel said that by the time he fired the shots "it looked like Mike Geller was already dead." An autopsy later revealed that Mike was almost certainly dead when he was shot by Mel. Surely, Mel is not guilty of murder if Mike Geller was dead when he shot him, but is Mel guilty of attempted murder?
Dershowitz writes about this case in his book, THE BEST DEFENSE, in a Chapter he titles "Whatever Else It May Be, It is Not Murder to Shoot a Dead Body: Man Dies But Once." But most of us would agree. You cannot murder a corpse. Dlugash presented the Court with the further, much tougher, question: "Can you attempt to murder a man who is already dead?" The Court decided against Dlugash and offered an analysis similar to Dr. Wharton's reasoning in Lady Eldon's case. The Court focused on what Mel intended or believed, not on what actually happened. If Mel believed Geller to be alive at the moment that he shot him, the Court opined, he was guilty of attempted murder, even if Geller was in fact dead at the time.
The Court's reasoning went more or less as follows: The mere fact that an act would not constitute a crime under the actual circumstances, will not save the defendant from an attempt conviction, if the defendant believed the circumstances were otherwise, and had the defendant's belief been correct, what the defendant set out to do would constitute a crime. Or as Alan Dershowitz put it, summarizing the Appeals Court's opinion in Dlugash, a person can be found guilty of an attempt "so long as the Ścrime' that was attempted Ścould have been committed had the attendant circumstances been as [the defendant] believed them to be.'" What do you think? Are you happy with the Court's reasoning? Then look at the next puzzler and apply the same reasoning to it.
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