C.32 - CASE LEFT, RIGHT AND CENTRE
The disputants had shortly before "had an incident in a local discotheque, and when they met again at cafeteriaand the accused [A.C.] was asked to "leave alone and not to bother" the sister of one of the members of the opposing party, an argument ensued.] to "leave in peace and not to bother" the sister of one of the members of the opposing group, an argument ensued and in his developmentthe accused - with lowered inhibitions caused by the influence of his state of inebriation - pulled out an automatic knife with a blade eleven centimetres long and indiscriminately slashing left and right, hitting one of the members of the opposing with it, indiscriminately, he struck one of his opponents with it, causing a wound in the left hemithorax which went through the diaphragm, affecting the pericardium and heart and causing instant death, to another he caused wounds to the dorsal face of the left forearm, right shoulder and armpit on the same side, which healed after forty days, to the girl an incised wound in the forearm of a slight nature, and to a fourth subject an incised-contuse wound, with marked local haematoma at the base of the left hemithorax which caused the loss of the spleen, and ninety days of healing process".
STS 12 July 1984; pte. Moyna Méndez; RJ 1984, 4042.
Did he or did he not want to stab?
I.From the facts described, the following should be noted: A.C., with reduced inhibitions due to alcohol intake and drunkenness, indiscriminately stabbed four people indiscriminately in the course of an argument. One of these four persons died. The other three were injured to varying degrees.
Art. 368 PC: "Those who carry out acts of cultivation, processing or trafficking, or otherwise promote, encourage or facilitate the illegal consumption of toxic drugs, narcotic drugs or psychotropic substances, or possess them for those purposes, shall be punished...".
II.We are asked to analyse the criminal liability of A.C. If the account of the facts was as reported, the following can be stated:
II.1. Travelling by plane, carrying a suitcase, can only be understood as human conduct. It is unimaginable that in the absence of action (irresistible force...) a subject can present himself at an airport and travel. All this requires self-control at multiple points in time. The basic element of human conduct is therefore present.
II.2. We now consider whether such conduct is typical (subjectgoal) for the purposes of a drug trafficking offence. This is a dangerous subject(Art. 368 ff. PC) for the legal good "public health". This means that the conduct creates a series of factors which, although they do not harm a tangible and appreciable good, do subject it to a high probability of being affected. In crimes of endangerment, a distinction is usually made between those of mere activity ( abstract endangerment) and those of resultendangerment ( concrete endangerment). In this case, it is a crime of mere (abstract) dangerous activity: the legal essayrequires only carrying out a conduct, without also being required to submit to a high probability of affecting health, such as result. As such, the mere dangerous activity would fulfil the subjectgoal . Does his conduct create a typically relevant risk within the meaning of Art. 368? To the extent that the substance (cocaine) was intended for sale on the illegal market and subsequent consumption, it can be said that it does, as it would lack the necessary health controls to guarantee its medical use, being instead a use for the uncontrolled self-consumption of a multitude (almost 1.5 kg.) of consumers (sale price: sixteen million pesetas). The risk is therefore typical. It is not necessary to establish that this dangerous activity, as a typically relevant risk, is carried out on result, as the offence is one of mere activity (abstract danger). If these quantities of drugs are introduced into the uncontrolled market, they enter via distribution channels that will provide the drugs to consumers, whose health will be damaged by the possible consumption. However, it cannot be overlooked that they have not reached contactwith a plurality of consumers due to the intervention of a third party (the police) that interrupts the course of risk: it would be Degreeof attempt. However, the doctrine also argues that this crime is one of anticipated consummation (just read the multiple verbs that define the typical conduct in Art. 368), which means that it would have been consummated before reaching Spanish territory (in addition, it could be argued whether the quantity and quality of the drug increase the risk of affecting public health sufficiently to defend that the aggravated subjectof Art. 369.5.ª is also objectively realised). In conclusion, the conduct is in accordance with subjectgoal of the crime of drug trafficking.
According to art. 2.2.b) of LO 12/1995, of 12 December 1995, on the Repression of Smuggling: "Smuggling offences are committed by ... [those who] import, export ... of stagnant or prohibited goods...".
II.3.The unlawfulness of A.C.'s conduct is not excluded by the presence of self-defence. Indeed, although he acts in the frameworkof an argument that could lead one to believe that he is defending himself, there are plenty of facts datato deny the legitimacy of such a defence. Firstly, that he is previously reproached for having disturbed a person, so that the illegitimate aggressor, if anything, is him; secondly, that nothing is said of an illegitimate attack on him by the other four, but of a "drawing attention to his behaviour", which is legitimate, by the way; thirdly, if it is understood that he was attacked, it was in the context of an argument, framework, which could cast doubt on the lack of provocation on the part of the person defending himself, which is a requirement for legitimate self-defence. The conduct is therefore unlawful.
II.4. Drunkenness could lead to doubts as to the agent's imputability, if it has diminished his Schoolsto the point of making it impossible to govern himself, i.e. to act in accordance with the rulewhich prohibits killing. A distinction should be made here. Firstly, A.C. shows signs of being aware of the ruleprohibiting killing. I deduce this from the fact that he uses the knife in the frameworkof an argument: if the argument turns into a fight with a knife, it seems to be because he is aware that it is the best way to win the "argument" against his opponent (to kill him), and if he does not use it first, it is because he is aware of the seriousness of this means, that is, that he can kill, and that killing is not irrelevant conduct, but is forbidden. Secondly, on the other hand, it could be argued that his Schoolsability to act in accordance with the perceived ruleis diminished, insofar as his ability to motivate through rule appears to be diminished. This capacity does not disappear, it is only diminished ("lowering of inhibitions caused by the influence of his state of intoxication"). In fact, it does not appear that drunkenness has caused his capacity to act in accordance with rule to disappear (it is not "full intoxication", as required by Article 20.2.º). This is because he is capable of arguing, of distinguishing who he is talking to, of handling a knife, of targeting the living people in front of him. His drunkenness, although it reduces his capacity for inhibition and sufficient motivation by means of rules, does not make it disappear. A.C. is therefore guilty. The statusof drunkenness could be taken into account, if at all, as an incomplete exonerating circumstance, or as a mitigating circumstance.
III.Conclusion: A.C. is managerof a crime of consummated homicide and three of injuries, also consummated. The influence of drunkenness could be taken into account as an incomplete exonerating circumstance, so that the sentence would be reduced by one Degree(or even two, depending on the influence of alcohol).
This penalty is compatible with the imposition of a security measure (Art. 102), which would be carried out according to procedure: first the measure and then, if necessary, the penalty (Art. 104).
Cf., however, the provisions of art. 369.1.10.ª, until the reform by LO 5/2010, of 22 June.
Just as in C.32 the agent minimally but sufficiently represents the risk of stabbing left and right in a place where several people are present (and can therefore be imputed), in the following case we have serious doubts as to whether the subject is aware of the risk. And therefore about the imputability of what has been done. This is a borderline case between malice and error. Cases such as C.33 present the so-called "malice aforethought".