C.28d - Black Gipsy Case

I. Three phases can be distinguished in the proven facts. In the first phase, Marcial and Constantino entered contact at purpose for non-payment of the drink. Then, in a second phase, Marcial verbally rebukes Constantino, hits him in the face with his fist and knocks him down, and, once on the ground, kicks him "several times in the head" "with the intention of ending Constantino's life". Finally, in a third phase, Constantino refuses twice to receive attendance health care. 12 hours after the blows, Constantino died. Had he been medically treated, it is said that the fatal outcome could have been avoided.

II. The first phase is not relevant for these purposes, and we will focus on the other two phases (the beating and the refusal of medical attention). We will not consider Hernán's conduct, as he did something that was due (attempt) according to the rule which obliges to render assistance; and we will focus on the possible criminal liability of Marcial.

II.1. Martial shows signs of having self-control over status: he speaks, argues, argues, berates, hits, kicks..., all of which require the exercise of choices in order to achieve effects. Moreover, nothing is said about him suffering from irresistible force, being prey to a reflex movement or suffering from unconsciousness. Let us see whether his conduct is typical.
II.2 . In the aspect goal the conduct of Martial that may be relevant is that of hitting and kicking Constantine. On the other hand, it seems to me that berating another person does not yet display a sufficient typical risk to be able to start talking about ill-treatment. On the other hand, hitting someone with a fist, and kicking him, are causal factors for the health impairment that follows, and also display a typical risk. Specifically, it would be ex ante a risk of ill-treatment, because it involves impairing his freedom and status peacefully, and is not something consented to; as a crime of mere activity, it does not require an analysis of whether this risk is present in result (art. 147.3). If he also kicks in the head repeatedly, we can understand that the risk is ex ante also of injury (arts. 147-148: kicking) and homicide (art. 138: repeatedly in the head). Just as the risk of injury is realised ex post in the result, insofar as the blow is followed by an immediate impairment that prevents the interposition of an extraneous risk (in particular, average hardly any time between blow and bruise), it is problematic to answer the question of whether the risk of death is realised in the result actually produced ex post. This is because the initial blows were followed by the victim's refusal to receive attendance health care. This factor introduced by Constantino is a new conduct, omissive but voluntary ("his refusal to be transferred", and "preventing the injured person from any medical attendance subject "), which increases the risk created by Marcial (an internal haemorrhage: "subdural haematoma in the left cranial fossae"), insofar as the initial injury becomes more serious and relevant due to the effect of the time without receiving treatment. Constantino's conduct would be malicious in terms of not going to the doctor or refusing treatment, but it is also plausible that there was a mistake regarding the specific result of death (he did not realise that it was much more serious than he thought, and that he had an internal head injury); such a mistake would support the consideration of recklessness. In any case, it is relevant because it influences the pathway that goes from the risk to the result, to the point that it prevents the latter from being connected to the initial risk: more specifically, it interrupts the objective imputation relationship between result and the risk initially created, so that Marcial would not be liable for the consummated homicide. In fact, we cannot make him manager for a factor that is imputed to the victim. On the other hand, we can answer for ill-treatment, injuries and attempted murder. The ill-treatment would be consummated in any of the other two much more serious crimes, and the injury would be subsidiary to the attempted murder, so I will focus on this one below. I consider this attempt to be finished, in that the agent has carried out all the acts required for the subject of homicide, and all that remains is for the initial blows to continue their course, without having to carry out any more.
II.3 . As to whether, in addition, Marcial's conduct is subjectively typical, it can be argued that there are sufficient grounds to conclude that he knows, like any adult in his circumstances, how a punch in the face is injurious, that the face and head are weak parts; and, furthermore, as he would perceive over and over again that his blows were effective (they knock him down, make him suffer pain...), we cannot speak of him being unaware of the injurious effects. As a normal adult citizen, he will have acquired rules of experience in the daily learning process that help him to anticipate the consequences of his actions. If, in spite of all this, he continues his action, we must be in favour of the charge of attempted murder as intentional. The fact that it is stated in the facts that "he kicked him several times in the head", "with the intention of ending Constantino's life" is not enough to affirm the malice of the conduct, but we must argue it on the basis of the evidence that the case offers us.
II.4 . There is no reason to doubt the unlawfulness of Marcial's conduct. Nor is there any doubt as to guilt or punishability.

III. In final, Marcial has to answer for the crime of attempted homicide: sentence reduced by one Degree, as it is an attempt, that is, from a prison sentence of ten to fifteen years it would be reduced to a prison sentence of between five years and ten years less one day.