What would happen in a situation like this?

A person has served his time for killing somebody. After his release he finds out that the person he went to jail for murdering is not dead. If he kills him now, does he go to prison for murdering him agian?

Update:

If he can't be charged again, can he just kill the guy and walk away?

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  • Randy
    Lv 7
    1 decade ago
    Favorite Answer

    It would seem that double jeopardy would apply as stated in Black’s Law Dictionary, “Common-law and constitutional (Fifth Amendment) prohibition against a second prosecution after a first trial for the same offense.” (re: People v. Wheeler) “The evil sought to be avoided is double trial and double conviction, not necessarily double punishment.” (re: Breed et al v. Jones)

    However, making such assumptions can sometimes result in an incorrect conclusion. In part the Fifth Amendment states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life of limb;” The court’s interpretation(s) are interesting:

    Brantley v. Georgia [1910] “This clause also is a limitation upon the powers of the Federal Government, and is not a limitation on the States.”

    United States v. Oppenheimer [1916] “It was not intended to do away with the rule that judgment of acquittal on the ground of the bar of statute of limitations is a protection against a second trial.”

    The cases most akin to the question asked are:

    Burton v. United State [1906] referring precedent to United States v. Randenbush [1834]; “A plea of former acquittal must be upon a prosecution for the same identical offense.”

    And,

    Morgan v. Devine [1915]; “The test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of the one transaction does not make a single offense where two are defined by statutes.”

    I suggest that the conviction for the first crime, although in error, was on presentment of different evidence than that for the second crime and therefore results in no “double jeopardy.” I believe that the individual could be charged and legally convicted of the second killing simply because they are two different offenses.

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  • 1 decade ago

    lol, "see the movie" Please do not garner your world view or beliefs from The Movies. However, double Jeopardy is a fact. If someone is not convicted of murdering someone they may not be tried again even if new evidence surfaces. The fifth amendment to the constitution. Your answer is probably no, unless it can be proved that since the man was not dead before then since he was murdered now then it is a new crime.

    Source(s): Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.' U.S. v. Halper, 490 U.S. 435, 440
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  • 1 decade ago

    I anxiously await the court date and CNN's coverage.

    My guess! Guilty! and then he would have 25 years in prison to win a wrongful conviction lawsuit on the first charge. And then about 10 years of life left to spend the 10% of his 10 million dollar award, which would remain after the lawyers have their dinner.

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  • Anonymous
    1 decade ago

    Free man, Double Jeporady... I discussed this issue in law class back in 86, we tried every way to find out a way to charge the suspect. No murder wrap would stick, But he may beable to get an assult charge. I am looking forward to some more answers from smart people.

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  • ?
    Lv 6
    1 decade ago

    I'm thinking not, but before your pal loads a 12 gauge and goes all Bruce Willis on someone's @ss consider dragging said "victim" into the authorities to prove his miraculous existence. The $$ he'd get from a wrongful conviction suit would be pretty sweet :o))))) (and it makes the supposed dead dude look like an @ss clown)

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  • 1 decade ago

    It's the Double Jeopardy clause....you can't be charged with the same crime twice. So no, you could not go to jail for murdering the same person twice.....but they could put you in jail on a lesser charge....

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  • 1 decade ago

    No he could not go to jail again. Its called Double Jepordy. You can't be charged for the same crime twice. So technically he could kill him and get away with it.

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  • 1 decade ago

    No.. The convicted murderer has the responsiblity to clear his name by turning in the supposedly dead person to authorities. That to me would be the sweetest revenge possible.

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  • 1 decade ago

    according to the constitution, no he cannot legally be tried in a court of law again for a crime he was already tried -- and charged -- for, but i think it would be better for him to just like..knock that guy out and drag him to the police station or whatever and clear his name and record..they should give him some sort of compensation..if not he could just go to the press (:<

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  • Anonymous
    1 decade ago

    Good one! I'd try to get the live person to serve the same time!

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