The key word is "element" of the crime. See post #10. You won't be charged with 1st
and 2nd degree murder. It will be one or the other, because they describe the same element of crime. They can, however, tack on assault, if that was part of the incident that resulted in death.
For example, if I go out to the local tavern and get blotto, then take a pool cue and brain the local cop (who comes to take me to the drunk tank) to death with it, I will be charged with: public drunkeness, assault, battery, assaulting a peace officer, possibly battery on a peace officer (if that's a seperate statute), resisting arrest, destruction of private property, and whatever else the local DA can tack on. All different criminal elements arising from the same incident. Read your Sunday morning police blotter, you'll see it all the time.
I understand that different charges arising from the same incident happen - I'm not that lame. I obviously didn't word my question well - how about this hypothetical I proposed in my last post:
What if this victim had died immediately at the time? Could the prosecutor have prosecuted an assault charge, and then after the perp served his sentence, the prosecutor then prosecutes a second-degree murder charge?
Is this kosher?