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24 Am. J. Comp. L. 694 (1976)
Attempted Crimes

handle is hein.journals/amcomp24 and id is 702 raw text is: DIETRICH OEHLER Attempted Crimes An attempt is an act which, although intended to be completed, remains uncompleted. The attempted commission of a felony is al- ways punishable; a misdemeanor, only if punishment is expressly pro- vided for by statute (§ 23, 1 StGB). In any case, punishment for an attempt may be milder than for a completed offense. The law classifies as felonies illegal acts, punishable by confinement for at least one year or more (§ 12, 1) and as misdemeanors, illegal acts, punishable by confinement for a shorter minimum period or by a fine (§ 12, 2). Evidently the legislature considers an attempted offense as less serious than the completed one, i.e. it is primarily the offense which deserves punishment rather than the perpetrator's conduct and his intention to carry out the act. According to recent statistics, about 8% of felonies and misde- meanors are attempts. That amounts to about 200,000 of a total 2,500,000.1 The percent of uncompleted offenses differs for different crimes. For murder, manslaughter and extortion it is about 70%, strikingly high, though for criminal mischief (property damage) it is only 0.5%, for petty larceny just under 2% and for grand larceny about 16%.2 Consequently, attempted crimes are by no means a side issue, especially in the field of serious criminality. How define the attempt to commit a crime? The definition al- ready given characterizes attempt as an act which, though intended to be completed, remains uncompleted. This definition shows pre- cisely the essence of attempted in comparison to completed crime. First, it emphasizes that the perpetrator's intention decides the kind of crime that was to be committed. However the definition does not answer the question under which circumstances the intended offense is to be judged uncompleted. To constitute an attempt to commit a specific crime, certainly more is necessary than the mere intention to do so. FACTUAL OR INTENTIONAL TEST? Two questions have occupied scholars, courts and the legislature ever since the belief that attempts should be punished was accepted: 1. Bundeskriminalamt, Criminal Statistics, appendix of tables, table 1. (The Bundeskriminalamt is the German FBI.) 2. Criminal Statistics, supra n. 1; for international comparisons, see Meyer, 75 ZStW 598 (1963).

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