Facts
The Cantonal Court of the Canton of Lucerne sentenced Frank to two and a half years of imprisonment and three years of deprivation of civil rights for uncompleted attempted murder and abandonment of an injured person. Frank had attacked Hammer without reason after the closing of an establishment, had brutally struck him with his fists and feet, had thrown him to the ground, and finally left him injured and unconscious on the cold and rainy winter road. The Court of Cassation admitted Frank's appeal against the judgment of the Cantonal Court, insofar as he requested acquittal of the charge of abandonment of an injured person.Considerations
The Cantonal Court had convicted the appellant not only for uncompleted attempted murder, but also for abandonment of an injured person, on the grounds that at the moment when he left the unconscious victim lying without assistance on the road, he had renounced his intention to kill.
However, the fact that the abandonment of the injured person followed the attempted murder does not necessarily mean that the two offences are in real concurrence. What is decisive is whether the penalty imposed for the attempted murder also covers the failure to provide assistance. This is the case, contrary to the view of the Cantonal Court. Indeed, one who wants to kill and carries out his criminal act to the end cannot simultaneously have the will to save the victim from death. The intention to kill necessarily excludes the failure to provide assistance, whether the perpetrator abandons the victim after the facts or not. The penalty imposed for the executed will to kill therefore also covers the abandonment.
What applies to the completed attempted murder must also apply to the uncompleted attempt, where the perpetrator renounces his intention to kill at a certain stage of the execution. The content of his decision of…