[146] Code Pénal, art. 2: “Toute tentative de crime qui aura été manifestée par un commencement d’exécution, si elle n’a été suspendue ou si elle n’a manqué son effet que par des circonstances indépendantes de la volonté de son auteur, est considérée comme le crime même.”
[147] Chauveau and Hélie, Théorie du Code Pénal, i. 347 sq.
[148] Ibid. i. 337 sq.
Besides the provision of the Code Pénal concerning attempt, there are a few other exceptions, of an earlier date, to the general rule. The Romans seemed to have followed the principle “dolus pro facto accipitur,”[149] at least if the crime attempted was a serious one.[150] A somewhat similar line was adopted by ancient Irish law. The general impression produced by the rules in the commentary to the Book of Aicill is, that the attempt to commit an injurious act was treated as equivalent to its commission, unless the result was very insignificant. Thus, if an attempt was made to slay, or to inflict an injury which would endure for life, and blood was shed, the fine was the same as if the attempt had succeeded; 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 French[156] and German[157] 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.