In contrast to the two opinions above, Prof Moeljatno expressed an alternative opinion, namely that Van Hammel and Simons' opinion regarding the existence of two attempts should be considered. This is because the consequence prohibited by law is the death of a person, in which A's intent, both dolus directus maupun dolus eventualis becomes the causative factor.

However, intent cannot be equated with intent because there needs to be an act necessary to commit a crime before there is intent. If not, then the intent is only a state of mind or mens rea so that in relation to the attempted murder of a member of family B, it is necessary to further elaborate explicitly and separately whether A's actions fulfill the elements of ordinary murder with intent dolus eventualis.

The existence of the beginning of execution

Beginning of execution or begin van uitvoering is one of the elements in the experiment. Basically, this element is proven by the actions taken by the perpetrator. However, the problem that arises is determining the difference between determining preparatory acts and implementing acts. This distinction is necessary because when the implementing act has been carried out, the offense is considered complete. The following will describe several legal scholars' opinions regarding the beginning of execution.

According to Van Hammel, the act of execution can be viewed from the certainty of intent to commit a crime. In that opinion, the benchmark is the evil inner attitude of the perpetrator to commit the offense. This opinion departs with the foundation of subjective theory.

The second opinion comes from Simons who divides the act of execution into two, namely for formal offenses and material offenses. For formal offenses, the act of execution occurs when the act as intended in the offense has begun, while for material offenses the act of execution occurs when the act begins which by its nature can directly cause consequences prohibited by law.

On the other hand, Duynstee argues that the act of execution is if an act committed includes one act which is a series of acts as prohibited in the formulation of the offense. According to Duynstee, what is prohibited is not only the end of the offense, but the entirety of the offense. Thus, if one of the series of offenses has been committed, there has been a violation of the law even though the prohibited consequence has not appeared.

The fourth opinion is the opinion of Prof. Moeljatno who states that an act of execution must meet three conditions, namely containing the potential to realize the offense, the intention is indeed aimed at the realization of the offense, and the act is against the law. Regarding the four opinions above, it can be used as a touchstone in the case position as follows.

A wants to burn down B's house. A's action is to enter B's house and prepare clothes and cloth that have been doused with gasoline in each room and all of them are interconnected. It turned out that the series was also connected to a gas stove that would explode when shot.

Not only that, A also pointed a gun at the gas stove and tied the trigger puller from outside the house in the hope that someone would trip over it so that the house could catch fire. However, A's hopes were dashed because the pungent smell of gasoline and A's movements encouraged local residents to report so that A was finally arrested.

The first level court decision stated that A's actions were acts of execution so that the completed offense was imposed. On this ruling, A filed a cassation. Hoge Raad Arrest decided that the act was a preparatory act so that A was declared onslag van rechtvervolging.

If the two decisions are linked to the four opinions above, then Hoge Raad Arrest in line with Simons' opinion. This is because Hoge Raad assessed that there was evil intent in the series of actions, but the prohibited consequences have not arisen. On the other hand, the first level decision is in line with the opinions of Van Hammel and Duynstee. Regarding Prof. Moejatno's opinion, it can be reviewed by matching the existing legal facts with the conditions of an act of execution.

For the first condition, of course it has been fulfilled because A's actions directed a gun at the gas stove and tied the trigger puller from outside the house in the hope that someone would trip over it causing the destruction of the house (vide Article 200 of the Criminal Code). Regarding the second condition, it has also been fulfilled because A really intends to burn down B's house. Furthermore, the third condition has also been fulfilled because the house to be burned down does not belong to A so the act is against the law. Thus, Prof. Moeljatno's opinion is linear with the first level decision.

The execution is not finished because of one's own will

This element is divided into three aspects, including the existence of a physical barrier, the potential for a physical barrier, or the presence of a barrier in the form of specific factors. However, if the perpetrator voluntarily withdraws or takes actions of remorse, they will not be penalized for poging.

In addition to the description of the elements above, there is also a division of attempts in criminal law into two, namely capable attempts and incapable attempts. A capable attempt is any type of attempt as described above. According to Simons, a capable attempt is an act that uses a tool that can endanger a person or an object.

In addition, Van Hattum argues that a capable attempt is when there is an adequate causal relationship between the attempted act and the consequences prohibited by law. On the other hand, in line with the impression theory, Prof. Moeljatno argues that a capable attempt is when the act is close to the completion of the intended crime.

Another type is an incapable attempt, which is an attempt that has been carried out by the perpetrator, but the intended crime is not completed or the prohibited consequence does not occur. An incapable attempt is divided into two, including the inability of the object and the inability of the tool.

Regarding the inability of the object, for example, A kills B who has died or a mother who tries to abort a pregnancy that has turned out to be dead before. According to Memorie van Toelichting, an incapable attempt due to the inability of the object is impossible because an attempt requires a tool.

On the other hand, the inability of the tool can be exemplified as A's attempt to poison B with a liquid that is thought to be poison, but it turns out to be ordinary sugar water. By Memorie van Toelichting, the inability of the tool is further divided into two, namely absolute inability and relative inability.

Regarding absolute inability, it is the use of sugar water as described previously, while relative inability is that through the tool, no consequences arise because there is something specific when the act is carried out. For example, A wants to kill B using soda water with a high sugar content because A thinks B has diabetes, but it turns out not to be the case.

Regarding relative inability, Memorie van Toelichting again divides it into two aspects, namely viewed from the specific circumstances of the tool or the specific circumstances of the person being targeted. For specific circumstances of the tool, it is seen as a separate type or its concrete circumstances. For example, sugar can be a deadly tool for certain people.

However, for the specific circumstances of the person being targeted, it is viewed abstractly for the average person or viewed from their concrete circumstances. For example, a person with diabetes can be killed with sugar.