whereas, if the injury did not amount to the shedding of blood, the fine was reduced one-half.151 And if a man went to kill one person and killed another by mistake, a fine for the intention, in addition to the fine due to the friends of the murdered man, was due to him whose death was intended, even though no injury was actually done to him.152 In England, at the end of the Middle Ages, the will was taken for the deed in cases of obvious attempts to murder; but this rule appears to have been considered too severe—even in an age when death was the common punishment for felony—and to have fallen into disuse several centuries ago.153
149 Digesta, xlviii. 8. 7.
150 Seeger, Versuch der Verbrechen nach römischcm Recht, pp. 1, 2, 49. Idem, Versuch der Verbrechen in der Wissenschaft des Mittelalters, p. 9. Mommsen, Römisches Strafrecht, p. 97 sq. Apuleius, Florida, iv. 20:—“In maleficiis etiam cogitata scelera non perfecta adhuc vindicantur, cruenta mente, pura manu. Ergo sicut ad poenam sufficit meditari punienda.”
151 Ancient Laws of Ireland, iii. pp. cviii. sq. 139.
152 Cherry, Growth of Criminal Law in Ancient Communities, p. 32.
153 Stephen, op. cit. ii. 222 sq. Thomas Smith, Common-wealth of England, p. 194 sq.
The question, which attempts should be punished, and even the elementary question, what constitutes an attempt, have been answered differently by different jurists and legislators.154 In England all attempts whatever to commit indictable offences, whether felonies or misdemeanours, are punishable by law.155 The French156 and German157 codes, on the other hand, do not punish, except in a few particular cases, attempts to commit délits or Verbrechen, that is, what the English jurists would describe as misdemeanours.
154 See Cohn, Zur Lehre vom versuchten und unvollendeten Verbrechen, i. 6 sqq.
155 Stephen, op. cit. ii. 224.
156 Code Pénal art. 3.
157 Strafgesetzbuch, art. 43.
Again, should a person be punished for attempting to commit a crime in a manner in which success is physically impossible, as if he attempts to steal from a pocket which is empty, or puts into a cup pounded sugar which he believes to be arsenic? This question has given rise to a whole literature. Seneca’s statement that “he who mixes a sleeping draught, believing it to be poison, is a poisoner,”158 seems to have had the support of Roman law.159 In England, some time ago, the man who attempted to pick an empty pocket, was not held liable for an attempt to steal;160 but this case has been overruled, and it appears now to be the law that an indictment would lie for such an attempt.161 According to the French162 and Italian163 codes, it would not be punished, according to some German law-books, it would;164 whilst the Strafgesetzbuch contains no special provisions for attempts of a similar character.
158 Seneca, De beneficiis, v. 13. Cf. Idem, Ad Serenum, 7.
159 Seeger, Versuch nach römischem Recht, p. 30.
160 Stephen, op. cit. ii. 225.
161 Harris, Principles of the Criminal Law, p. 209 n. c.
162 Stephen, op. cit. ii. 225.
163 Alimena, in Le droit criminel des états européens, ed. by von Liszt, p. 123.
164 von Feuerbach-Mittermaier, op. cit. p. 76. Cohn, op. cit. i. 14.
Finally there are different rules as to the stage at which an attempt begins to be criminal, or as to the distinction between attempts and acts of preparation. The Romans, it is supposed, drew no such distinction.165 The French law regards as permissible acts of preparation many things which in England would be punished as attempts.166 In England lighting a match with intent to set fire to a haystack has been held to amount to a criminal attempt to burn it, although the defendant blew out the match on seeing that he was watched. But it was said in the same case that, if he had gone no further than to buy a box of matches for the purpose, he would not have been liable, the act being too remote from the offence to be criminal.167 “Liability will not begin until the offender has done some act which not only manifests his mens rea but also goes some way towards carrying it out.”168
165 Seeger, Versuch nach römischem Recht, p. 49.
166 Chauveau and Hélie, op. cit. i. 357 sqq. Stephen, op. cit. ii. 226.
167 Holmes, Common Law. p. 67 sq.
168 Kenny, op. cit. p. 79.
If we go a step further, we come to designs unaccompanied by any attempt whatever to realise them. The laws of all countries agree as to the principle that an outward event is requisite for the infliction of punishment. “Cogitationis pœnam nemo patitur.”169
169 Digesta, xlviii. 19. 18.
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