Criminal Law, Pages 475–476

State v. Smith

Superior Court of New Jersey, Appellate Division, 1993


Defendant, a county jail inmate, had HIV and often threatened to kill the correction officers by biting or spitting at them. He then finally did bite a correction officer's hand and was charged for trying to give him HIV to kill him.

Procedural History:

Defendant was convicted of attempted murder.


Did defendant's bite constitute attempted murder if it could not actually transmit HIV?

Defendant's Argument:

A bite cannot spread HIV, and defendant totally knew this when he bit the victim.



The jury found that defendant did believe he was giving the victim HIV. Even if this was actually impossible for him to do, since defendant's subjective belief is all that is required for attempted murder, the jury could have properly found defendant guilty of attempted murder.


Yes, defendant committed attempted murder. Affirmed.

See Also:

State v. Smith (Proximate Cause)