Question IV: Whether an attempted homicide, and other attempted crimes, are to be punished with the same penalty as the crime committed

IT IS PRESUPPOSED by the Holy Doctor, cap. 5. of the Confessionale, part 38., that there are some sins whose attempt is not to be punished as if the effect had followed, and he derives it from l. 1. ubi Doctores, ff. de extraord. criminibus.

AS TO the more atrocious crimes, it is the opinion of many that the attempt and the effect are to be punished with the same penalty: Thus the Jurisperiti commonly, l. si quis alicui, C. ad l. Iulia Maiest. Felinus on cap. 1. de off. deleg. Covarruvias Clem. si furiosus, fol. 276. Boërius de sedit. praesupp. 7. num. 42. Igneus l. 1. §. si occisor num. 41. ff. ad Syll. See Fagundez l. 5. cap. 1. num. 43.

The second opinion is that this ought to be done by law; but that by the custom of the whole world one does not proceed so severely: Thus very many teach, cited by Fagundez: Afflictus 3. p. rubr. 24. the Speculator in tit. de accusat. §. 1. Alexander consil. 15. and 140. Corsetus in the repertory of the Abbot, word affectus, Jason on l. 1. §. final, ff. quod quisque iuris. Boërius decis. 316. Carretto in practice, fol. 186. Baldus consil. 361. Angelus l. 1. §. Final, ff. quod quisque iuris, and consil. 143. where he says this custom is received throughout the whole world. Maranta in the speculum, fol. 26. Fulgosius consil. 149. Julius Clarus §. Final, question 91. Bertrandus consil. 228.

THE SERAPHIC DOCTOR, cap. 5. of the Confessionale, part 38., says there are other cases in which one is bound by guilt of blood, even if he does not kill: namely one who has done something to a man or woman, or given them something to drink, so that they cannot generate, or conceive, or the offspring be born.

THOSE indeed giving poisons to kill one who drinks, or the offspring, are punished with the penalty of death, l. 1. and 3. at the beginning, ff. de sicariis si mors sequatur; but the effect not having followed, the Doctors commonly establish an extraordinary, discretionary penalty. Thus Carrerius in practice, fol. 281. Conradus practice, fol. 338. Julius Clarus l. 5. sent. §. Homicid. num. 13. Fagundez num. 45., who conclude that customs and the laws of one's country are to be kept in these cases.