The man on the bottom, whose head had been slammed into the concrete sidewalk, whose nose was broken by the fists of the man on top, had no gun.  The man on top continued the assault.  He continued it after the man on the bottom lost consciousness.  He continued it and the man on the bottom sustained brain damage.  The man on the bottom died.

At the trial, the man on the top, seen by eyewitnesses, would be convicted of murder or, if you prefer, depending on intent and other factors, manslaughter.  Would that be expected?  Would that be fair, provided the evidence was presented at trial?  Use your imagination.

Or, imagine the man on the bottom did not die, but just had the head injuries described and no brain damage, just the unfortunate victim of assault.  It probably happens every day somewhere.

Does it matter if the man on…