Jack, Bert and Pratt
Murder is an unlawful killing. The criminal act of murder is categorized into different gradations of severity depending on the intent of the actor. For example, murder in the first degree, second degree and third degree. The American Jurisdiction defines attempted murder as where someone physically deliberately tries to kill another. For instance, like in this case Jack did not commit attempted murder on Bert as he did not actually shoot him but was pointing the gun on him but in the case of Pratt, there is attempted murder (Robinson, 2008).
Bert’s attorney has a case against Jack for malice. Malice is a case where a party has intention to do harm or deliberately intent to take the life of another party. Malice can either be implied or expressed. In this case, it was an express malice. However, malice has to be evident in order to convict jack. The criminal law generally proscribes objectionable actions. Thus, evidence of a criminal act requires proof of some guilty act. Strict liability offences for instance modern regulatory offences require on more.
The factual impossibility takes place when, at the occasion of attempting the murder, the evidence makes the intended crime unable to execute, even though the accused is unaware of the situation at the time of the attempt. In this case, jack did not know the fact that his gun was malfunction. In this case, there is a mistake of facts so jack can institute a defense of factual impossibility. Jack can also put a defense on legal impossibility. An act is said to be legally impossible to commit where the accused has accomplished all his illegal intentions, but those offences fail to fulfill the required elements of a criminal act. The justification of this is that attempting to commit a crime is not attempting to do what is not a crime (Jefferson, 2007)
All criminal acts have specific elements. Unless a court of law can prove the relevance of these elements, it cannot convict a defendant. These features are, first, actus reus is a Latin word for guilty act. This is the physical characteristic of committing a crime. It may be committed through an action, a threat of offence, or may be by an omission to act. In this case, jack is guilty of threatening to kill Bert. When a guilty act is an omission to act the plaintiff must prove that he owed the defendant a legal duty of care. Legal duty can arise by a contract, or an agreement. An actus reus may be invalidated in the case of the absence of causation or provocation. Causation can be compromised by an intervening act of a third party or occurrence of an uncertain event but cannot be broken due to the vulnerability of the victim.
The second element is mens rea literally means ‘guilty mind’. A guilty mind is an intention or deliberation to commit a wrongful act. A motive in criminal law is not necessarily an intention to commit crime. It must be proven that the defendant is aware of the offence and danger he poses when he or she is committing the crime but decides to commit it with impunity. Although, the requisite that one has to be aware of the danger is tantamount to undermine intent as an element. Wrongfulness of intent may vary with the significance of the crime. In the case, of a transferred malice where a party intended to harm another but accidentally harmed a third party, mens rea is transferred from the intended target to the harmed person.
A third element is strict liability. It is the liability for injury caused by the accused, in spite of mens rea or actus reus. Not all cases require intent there can be motive and the requirements of a mens rea can greatly be reduced. In the case of strict absolute liability, it may not be a requirement to prove that the offence was deliberate. Generally, all crimes must prove a criminal intent and act in order to discover a crime took place (Elliot, 2008).
In Jack’s situation, his lawyer can argue that the crime was an assault rather than an intentional act to kill Bert since he only shot once not severally and in fact, he did not shoot him. Bert also has strong argument for malice against Jack.
Elliot, C. (2008). Criminal law: The Elliott and Quinn Series. Phoenix, AZ: Pearson Longman Publisher
Jefferson, M. (2007). Criminal law: Foundation studies in law series. New York, N: Pearson Longman
Robinson, H. (2008). Criminal law: case studies & controversies. New York. NY: Aspen Publishers