Criminal Law

Brief

People v. Dlugash

Procedural History:

• Lower court convicted the defendant of murder.
• Appealed.
• Affirmed.

Facts:

• December 21, 1973 – He, Bush and Geller had been out drinking.
• Bush had been staying at Geller’s apartment and during the course of the evening Geller had demanded $100 from Bush for rent.
• Bush rejected the demands and told Geller he better shut up or he is going to get a bullet.
• Geller demanded the money once more and Bush pulled out a .38 caliber pistol and shot him three times.
• After a few minutes, defendant walked over to Geller, drew his .25 caliber pistol, and fired approximately five shots in the victims head and face.
• Defendant contends that by the time he fired, Geller was already dead.
• Both physicians testified that the shots from Bush would have killed the defendant without prompt medical attention.
• Also, the victim would have remained alive for 5 to 10 minutes after being shot.
• Neither expert could testify with medical certainty that the victim was still alive when defendant fired the bullets into the victims head.
  • Therefore, the defendant could not be guilty of murder.
• The court then addressed whether he could be found guilty of attempted murder.

Issue:

• Whether the defendant is guilty of attempted murder?

Holding:

• Yes. Affirmed.

Reasoning:

• The general rule in most American jurisdictions is that legal impossibility is a good defense but factual impossibility is not.
• A person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such a crime.
• Therefore, if the defendant believed the victim to be alive at the time of the shooting, it is no defense to the charge of attempted murder that the victim may have been dead.