Punishment

“Quando si abbia la morte d’un uomo volontariamente prodotta dal fatto d’un altro, l’errore sulla persona uccisa non toglie la volontarietà dell’omicidio: vi fu nel delinquente il proposito di uccidere: in fatto, si ebbe una uccisione: quindi il concorso si tutti gli estremi del reato”401 .

Even in Roman Law, the "Lex Cornelia de Sicariis" declared, that it was not enacted for the protection of the life of this or that particular individual, but for the protection of all men "ipsam humanitatem tuetur"402 .

But, as we shall see more fully later on, when by mistake or accident, the person killed is other than the person intended, the agent shall nevertheless benefit of any excuse which would have decreased the punishment for the crime if it had been committed on the person against whom the act was intended (Section 248, Criminal Code). Similarly in English law, “if a man fires at ‘A’ in such circumstances as would make the killing of ‘A’ manslaughter, and by accident hits and kills ’B’ whom he never intended to kill at all, he is guilty of manslaughter”403. Likewise, under the Italian Code of 1889. Indeed, art. 52 of that Code made a general provision applicable to all crimes and not only to the crime of wilful homicide (and bodily harms) to the effect that, where by mistake or through any other accident a crime is committed to the prejudice of the person different from that against whom the agent had directed his action, all circumstances which would have diminished his punishment for the crime if he had committed it to the prejudice of the person against whom his act was directed shall avail him.

Although this provision of the Italian Code, like Section 248 of our Code above-quoted, mentions only circumstances or excuses which would have diminished the punishment, there is no doubt that the same applies also in respect of circumstances which would exclude punishment altogether404 .

Punishment

The punishment for wilful homicide is death. But if the person convicted of such a crime is a woman who at the time of conviction is pregnant, the sentence to be passed

401 Maino, op. cit., art. 254, para 1575 402 Cfr. Arabia, op. cit., p. 256 403 Archbold, op. cit., p. 908; Kenny, op. cit., p. 154 note 404 V. Maino, op. cit., Art. 52, para 243; Arabia op. cit., P. Ill, Art. 348 - 356, p. 257