Can You be Charged With Attempted Murder if the “Victim” was Already Dead?

Last Updated on May 15, 2025

Murder is the taking of another person’s life, so naturally, attempted murder is the attempt to take someone’s life. So would it be murder if someone attempts to take the life of someone who it turns out has already died? It’s an interesting legal question that has appeared not only in law schools and detective shows (most recently the hilariously brilliant Only Murders In the Building), but also been tried and tested multiple times in the real world.

Can You Face Attempted Murder Charges if the Victim is Already Dead?

Yes, depending on the jurisdiction of the crime and the specifics of the incident. In California, murder is considered the killing of a human being with malice, but someone already dead may be considered a corpse, not a human being, so prosecutors may be hesitant to file charges even if the person who made the attempt actually intended to kill a human being.

When it comes to the circumstances, one of the biggest factors would be the timing. As an example, if someone watched their intended victim get shot and then shot the victim two minutes later, thinking they were finishing the job, the prosecution would likely still file charges, even if the coroner determined the victim had died within two minutes of the first shooting.

On the other hand, it’s possible to imagine a situation where a burglar breaks into a pitch black house and is surprised when they saw someone sitting on the couch. Worried they’ll get caught (and just surprised to see someone sitting up in the dark), they shoot the man on the couch -who is later found to have been dead for two weeks before the shooting. While the intent was the same as that of a person who was present when the victim was killed, the fact that the defendant never saw the “victim” alive could play a major role in whether or not the prosecutor decided to file charges.

And, of course, in both cases, if charges are filed, the outcome of the case would ultimately depend on the judge and jury assigned to the case. Plus, in cases this controversial, anyone found guilty would likely appeal the case, meaning an appellate court could also play an important role in the ultimate outcome.

But even if attempted murder charges aren’t filed when someone tries to kill a person who is already dead, that doesn’t mean the attempted killer will still get away with their crimes. There are plenty of other charges that may be filed in these cases.

What About a Zombie?

An interesting hypothetical question involves whether it would be legal to kill a zombie since they are technically already dead but still able to move of their own free will. Ultimately, the question depends on what kinds of zombies they are. If they can talk and think, you could only kill them in self-defense, but if they are entirely brain-dead, it would most likely be legal.

Desecration of a Corpse

One of the most obvious options for charging someone who attempts to murder a corpse is the desecration of a corpse, which is charged under California Health and Safety Code sections 7050.5 and 7052 (HSC). Interestingly though, these codes require the corpse be knowingly or willfully mutilated, so it’s possible that someone accused of desecrating a corpse they believed to be alive could actually argue that they did not knowingly or willfully harm a corpse —though the fact that they were acting intentionally, regardless of the status of the body, means they would likely still be convicted under these charges, which could be filed as a misdemeanor or felony.

Concealing an Accidental Death

If someone tried to hide a body that died before they attempted to kill it, they could be charged with concealing an accidental death. This offense is a misdemeanor punishable by up to one year in jail and $1,000 in fines. Note that this offense does not make it a crime to fail to report a body —only to hide it.

Tampering with or Destroying Evidence

Under California law, tampering with evidence is illegal, meaning it is against the law to alter, modify, plant, place, manufacture, conceal or move evidence under Penal Code section 141 (PC). But, it’s important to notice that these actions are only crimes if the person acted with the intent of getting someone charged with a crime.  So unless the prosecution shows the defendant tried to make it look like someone else committed the crime, altering or modifying a dead body would not be a crime.

Alternatively, the charge of destroying evidence could apply, if someone willfully destroys, erases or conceals something that could be used as evidence. But again, this would only apply if they tried to hide their “murder” after the fact. Damaging a corpse that you thought was alive could not be considered willfully destroying the evidence -particularly if the individual died of natural causes first.

Both tampering and destroying evidence are misdemeanor charges punishable by no more than six months in jail though, so even if someone was convicted of both of these crimes, the penalties would still be much shorter than the potential life sentence they could get for a first-degree attempted murder charge.

Burglary

One of the more serious charges a person could face for attempting to kill someone who was already dead at the time would actually be burglary. But this charge would only apply if the person actually entered another property with the intent to commit a felony. While the intent to kill someone would naturally qualify as felony intent, the crime would only apply when someone entered the property of another person. In other words, if the offense took place on the street or if the would-be killer shot someone through the window of their home, then it wouldn’t be a burglary offense regardless of the defendant’s intent.

Burglaries may be filed as a misdemeanor or felony, punishable up to 3 years in prison. But, if the burglary took place in a residential setting, then the offense is punishable by up to 6 years in prison.

Illegal Discharge of a Firearm

Again, not all attempted killings involve a gun, so these charges would only apply in select cases. That being said, if the would-be murder involved shooting into someone’s home or into an occupied building or vehicle, they could be charged under California Penal Code 246 (PC). Interestingly, if the dead body was the only one inside of a non-residential building or vehicle, the charges wouldn’t apply since these structures need to be “occupied” by a living person.

This is a serious felony that could result in a penalty of up to 7 years in prison, even if no one living was injured.

Call a Lawyer

If you have been accused of any crime, even a questionable crime such as attempting to murder someone who died previously, it is critical you remember to call an attorney as soon as possible. Lawyer Peter M. Liss can help you no matter what the case against you, even in very complex cases like these. Please call (760) 643-4050 to schedule a free consultation.

Related article: Can you be charged with murder if the body is never found?