C.27b- Digital Case
"The accused Rodolfo, ... on 18 December 1998 was in the company of several friends of his in the entertainment establishment cafeteria "Digital" in this city and at 3.30 am on the said day, the accused had an argument inside the said establishment with the said Diego, who hit the accused Rodolfo with his closed hand on the thorax, the latter leaving the establishment and finding himself in the street near the said cafeteria Digital, waited for the aforementioned Diego to leave the closed place and once he had him within his reach, the accused Rodolfo hit the aforementioned Diego on the head with the glass bottle he was carrying, and the latter suffered injuries, consisting of wounds, as well as the aggravation of a previous injury of recurrent dislocation of the right shoulder, which required surgery, which he healed after 92 days....".
(STS 28 September 2004; pte. Bacigalupo Zapater; RJ 2004, 6291).
The facts show that, in the framework of an argument between Rodolfo (accused) and Diego (victim), inside a shop at night, the latter hit the former with his fist (moment 1); later, outside, Rodolfo hit Diego on the head with a glass bottle (moment 2), causing him injuries. In addition, Diego experiences a dislocated shoulder from a previous injury (moment 3).
On the basis that these are the facts considered proven, and without modifying them, we will argue the possible liability of Diego and Rodolfo.
Firstly, it is necessary to affirm that there is human behaviour in both. This can be argued if we take into account that both have control over the processes in which they are immersed, without any factor being taken as irresistible force, reflex movements or unconsciousness. The discussion, the waiting, the repeated knocking, the walking out...: all these data support the existence of self-control in both subjects.
Secondly, let us see whether the conduct of each of them, separately, is typical. As far as the initial discussion is concerned, there is nothing to question, since an argument between people does not involve a risk that the law wishes to prevent; in other words, it is atypical and does not constitute a crime. The same is not true of the blow that Diego strikes Rodolfo. This blow to the chest with a closed hand could constitute a risk typical of the subject of minor vexations (art. 617.2 PC), a minor offence, no doubt, but a typically relevant risk for the purposes we are dealing with here. Moreover, as it is not an offence of result, but of mere activity, it would be objectively realised with the simple action, without any separate effect being required. There is nothing to cast doubt on the intentional nature of this conduct, as it requires the adoption of rules of experience that Diego possesses and which he, like any adult, uses. Thus, making a fist and swinging one's arm at another cannot but be the product of rules of experience and data that any person has. Therefore, if Diego is a normal person, he must know that he is hitting, and if he continues to do so, we can only affirm that he is acting with the intention of abusing Rodolfo.
As regards the blows to Diego's head by Rodolfo, the following can be said. Objectively, they constitute a risk of injury as envisaged by the legislator, at least for the purposes of Art. 148. Of course, they also constitute vexation, but the minimal seriousness of the vexation in comparison with the injuries means that, if it exists, it is absorbed by the disvalue of the injuries. I will therefore focus my analysis on the injuries. That the blows are the cause of the injuries suffered is made clear by the condicio sine qua non formula, since without the blows with the bottle there is no injury at all.
This causal factor is also constitutive of a typical risk of injury, because it affects health in a relevant way: it is blunt, it is repeated (at least two blows: "both blows"), they are to the head (even if the bottle does not break, it is a blunt object); and this risk is a risk of injury with a dangerous means, given that the bottle as a hard object increases the capacity for injury. I do not think it is possible to say that this is a typically relevant risk of homicide, and this is because a bottle applied only to the head does not have sufficient capacity for injury to affect life (and not for cutting veins, for example). The risk is therefore one of dangerous injury (art. 148 PC). This risk is realised at result, as nothing is said about a new factor or conduct of the victim or a third party posing a new risk. The only question is whether the recurrence (or relapse) of a previous injury is objectively attributable to the blows with the bottle. I am inclined to think that they are not imputable, already at the level of goal, because they are produced in a different place to the one where Rodolfo struck, which is the head. It is not that imputability is excluded because he is unaware of this fact, but that it is not objectively imputable even beforehand because it is a risk totally unrelated to that created by Rodolfo with the bottle. It is a question of a previous ailment of the victim: attributing responsibility to Rodolfo for this aggravation or recurrence would mean making him manager for something he did not do.
Thirdly, it must be examined whether Rodolfo's conduct is also subjectively imputable to him. To this end, it must be argued that he acted with malice aforethought. Since, like everyone else, he has acquired knowledge of the blunt force capacity of hard objects and knows that the head is particularly sensitive to blows, he cannot be unaware that hitting and repeatedly hitting the head with such an object is a course of risk. Therefore, he represents the risk of his own conduct, which is what is required as malice. Furthermore, he cannot be unaware (because of its weight, because he is carrying it in his hand, because of the repeated blows), that he has in his possession the dangerous means of the offence of injury to which we refer (art. 148 CP). His conduct of dangerous injury is therefore objectively and subjectively typical.
This being the case, and in the absence of analysing other categories of the theory of the offence, Diego will answer for a misdemeanour of minor vexation and Rodolfo for a misdemeanour of dangerous injury.