Quick answer

When a person attacks another with intent to kill but the victim does not die, the crime is not consummated homicide but either frustrated or attempted homicide, and distinguishing the two turns on the stages of a felony. A felony is consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence, but which nevertheless do not produce it by reason of causes independent of the will of the perpetrator. It is attempted when the offender commences the commission of the felony directly by overt acts but does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than their own spontaneous desistance. Applied to homicide: if the accused inflicted a wound that was fatal or mortal, one that would have caused death without timely medical intervention, and the victim survived only because of that intervention, the crime is frustrated homicide, because the offender performed all the acts that would have produced death. If the wound inflicted was not fatal, or the offender did not complete the acts that would produce death, the crime is attempted homicide. In both, the intent to kill (animus interficendi) must be present and is inferred from factors such as the weapon used, the location and severity of the wounds, and the manner of the attack; without intent to kill, the crime may only be physical injuries. Frustrated homicide carries a heavier penalty than attempted homicide. So the survival of the victim, the fatal or non-fatal nature of the wound, and the completeness of the acts of execution determine whether the crime is frustrated or attempted homicide.

The Stages of a Felony

The Fatal-Wound Test

If the wound was fatal/mortal and the victim survived only due to timely medical intervention, it is frustrated homicide. If the wound was not fatal or the acts were incomplete, it is attempted homicide.

Intent to Kill Is Essential

In both, the intent to kill must be present, inferred from the weapon, location and severity of wounds, and manner of attack. Without intent to kill, the crime may be only physical injuries. Frustrated homicide is penalized more heavily than attempted.

Practical Takeaways

Frequently Asked Questions

What is the difference between frustrated and attempted homicide? In frustrated homicide, the offender performed all the acts of execution and inflicted a fatal wound, but the victim survived due to timely medical intervention. In attempted homicide, the wound was not fatal or the acts of execution were not completed.

How do courts decide if a wound was fatal? By medical evidence on whether the wound would have caused death without timely medical intervention. A mortal wound that the victim survived only because of treatment supports frustrated homicide.

Is intent to kill required? Yes. In both frustrated and attempted homicide, the intent to kill must be present, inferred from the weapon used, the location and severity of the wounds, and the manner of attack. Without it, the crime may be only physical injuries.

Which is punished more severely? Frustrated homicide carries a heavier penalty than attempted homicide, because the offender came closer to accomplishing the killing by performing all the acts of execution.

This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.

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