LESSONS
L.4 - Incongruent types
(I. The attempt)
STRUCTURE
I. Attempt.
II. Consummation. Exhaustion.
III. Inidoneous attempt ("impossible offence"). Unrealistic attempt.
IV. Voluntary desistance.
V. Relevance of the result in criminal liability (referral L.14).
What do you mean, thank goodness?
We have assumed that a person has been found lying on the ground with a dagger in his chest. But it is also possible to consider that this stab was preceded by one or more attempts to reach the victim. Suppose that in the course of a fight, the person carrying a dagger attempts to stab his opponent. If the stab does not reach the opponent, but is on the verge of reaching him (it grazes, we would say), does it therefore cease to constitute a typically relevant risk of homicide? What is clear is that what was done demonstrates the existence of intention on the part of the subject (he was looking for that purpose), but at the same time it is not effective, it does not have the success that could be expected from that action. Above all, it does not achieve the success sought by the agent. Again: does the fact that the act is incomplete affect the unlawfulness of the conduct? If the intention was that, but it was the victim's conduct that deflected the dagger (the victim moved), or it was a gust of wind that deflected the thrown projectile, would we not be benefiting the agent if we say that the act is not a homicide? In other words: to consider that what was done is less unlawful because of the fact that result did not take place is something that benefits the subject without him deserving it, as he has done nothing to achieve it.
On the other hand, in these cases of "realisation" of a subject without the result occurring, there is no lack of malice, the representation that a course of danger is going to produce a specific effect (the death of someone, the breaking of a window...). But the extramental reality falls short of the agent's representation. The agent has 'killed with thought': he thinks he is killing when in fact he is setting in motion a course of danger that does not reach result. The status can be described as a divergence between the objective and the subjective part: the represented reaches beyond what is actually produced. A status that is the inverse of the cases of the agent's error about his conduct: recklessness (L.5). In this case, the agent is unaware that he is deploying a course of harmful risk: he is unaware of something, unaware of the danger deployed. Also now, in the attempt, we can speak of a status of divergence between what is represented and what is produced. So much for the similarities. The differences begin now: imprudence is distinguished from cases of attempt in that in the former the risk that is deployed is unknown, while in attempt it is assumed to exist, it is taken for granted, that which in reality is not achieved. What is lacking in imprudence (knowledge of the risk), is present in attempt. And vice versa: what is not found in the attempt (the result), is produced in the imprudence.
This is what is meant by the statement that the attempt is an incongruent subject , because of the divergence average between the subject's representation and what is produced in extramental reality. Let us see it in C.41, which should be compared with the case of the wild boar(C.51).
C.44 - Gamboa case
"The accused Francisco Javier D. de la I., of legal age and with no criminal record, on 25 July 1997 at around 3.45 a.m., was walking along Cantín y Gamboa street in this city when, on reaching the height of 35 of the aforementioned road, he stopped and, believing himself to be in the street.45 hours he was walking along Cantín y Gamboa street in this city, when on reaching the height of issue35 of the aforementioned street, he stopped and believing he was not being seen, he took out a fixed key from a bag he was carrying and with this tooltried to force the metal shutter that was closing a shop at the aforementioned issue, He stopped the operation when he realised that a passer-by was approaching, and then moved a little away towards Asalto Street where he was arrested by National Police officers who had discovered his actions. In the bag that the accused was carrying, in addition to the key that he used to try to break the shutter, another larger one from the same subjectwas also found. No damage was caused".
(SAP Zaragoza, Sección 1.ª, 23/1999, 19 January; pte. Cantero Aríztegui; ARP 1999, 117).
AA.4
Until the end of the 18th century, the Criminal Law did not punish attempt. But since Rex v. Scofield (397 Cald. 1784), attempt has been punished as a crime of attempt, with its own elements. As regards the actus reus or goal element of this offence, the typically unlawful conduct consists of an act directed towards the commission of a specific offence. There are different "tests" that try to determine the actus reus of the crime of attempt: the proximity approach, the probable desistance approach, the equivocality approach and the MPC approach (or substantial step approach). As far as the mens rea or subjective element is concerned, the intention to commit another crime is required. But here, the term intention has to be understood in a broad sense, as recklessness and negligence could be punished as an attempted crime, if the intended criminal subject includes these states of mens rea in its wording.
In most common law states, attempt is punished by reducing the penalty for the intended offence by Degree . But in the few states that follow the MPC approach, the attempted crime is punishable by the same penalty as the intended crime; with the only exception of the most serious crimes, which would be punishable as second degree felonies (MPC § 5.05). Attempt is not punishable if there is legal impossibility (i.e. the conduct is not foreseen as an offence) or if there is voluntary abandonment (equivalent to voluntary desistance).
On the crime of attempt: State v. Lyerla (Supreme Court of South Dakota 424 N.W. 2d 908) 1988.
VOCABULARY
- Attempt
- Completed crime
- Impossibility
- Abandonment
For a start: Jescheck/Weigend, Treatise, §§ 49-51.
For further information: Silva Sánchez, "La regulación del iter criminis (artículos 16-18)", in El nuevo código penal. Cinco cuestiones fundamentales, Barcelona, 1997, pp. 121-157.
Monographic: Sola Reche, La llamada "tentativa inidónea" de delito. Aspectos básicos, Granada, 1996; Alcácer Guirao, La tentativa inidónea. Fundamento de punición y configuración del injusto, Granada, 2000.
N.41 Attempt, completion and exhaustion of the offence.
N.42 Adequate and Ineffective Attempt. Unrealistic attempt.
N.43 Voluntary desistance.
N.44 Relevance of result in criminal liability.
SYNOPSIS
