C.33 - Scare case

I.The following is relevant from the account of the proven facts: in order to scare a pedestrian who was hitchhiking with others, C. drove his vehicle "in a careless and thoughtless manner" so close to the hard shoulder where the pedestrians were standing that he could not avoid hitting one of them, who died three days later.

II.We are asked to analyse the criminal liability of the driver C. for these facts. Assuming that the proven facts are as described in the account, the following could be stated:

II.1.C. drives a vehicle, which in itself requires the assumption of the existence of human conduct as a human process capable of self-control. There is no problem in stating this. Nor does his proposal to scare pedestrians, as this plan shows how he had alternatives to his actions (stop giving scares, do not go so close to the hard shoulder...), especially when he goes from what he said (proposal) to what he did (giving the scare).

II.2.Let's see if such conduct makes the subject goal of any crime. We are obviously talking about the crime of homicide, since the death of a pedestrian has occurred.

However, we should first ask ourselves about other possible, lesser types of offences. I am referring specifically to subject of minor coercion (art. 172.3). It is doubtful whether "playing a practical joke", "giving a scare", can be considered typical, due to how little substance the conduct seems to contain. Another thing is what happens once C., ready to give a scare, accelerates, approaches the hard shoulder and approaches pedestrians. But this already involves referring to subject for manslaughter.

With regard to the possibility of the result of death being imputable as subject of homicide, it should be noted: the approach and approach of the vehicle to the hard shoulder is a causal factor for the pedestrian being hit. This is proven by the mental suppression of this factor. In addition, C. creates with this conduct a typical risk of homicide, as car traffic creates such risks class; which is why control and prevention measures are taken (separation between the road and the hard shoulder...). I also understand that it is this risk that is realised in the result, and not any other risk, nor that of third parties, as no relevant risk from third parties appears on the scene (the passengers in the vehicle are not driving, and nothing is said that they provoked or instigated C.). result As for a possible risk on the part of the victim, it is worth asking whether the victim, by standing on the right-hand hard shoulder to hitchhike, creates a sufficient risk to be able to impute the death to her (note: "impute the death to her", i.e. it would be impossible to impute the death to the driver). But, despite being a prohibited risk (a pedestrian on the road must walk on the left, while for hitchhiking he would walk on the right), it does not seem to be such a risk as to interrupt the relationship of objective imputation of the result to the conduct of the driver. This would be the case if the victim throws himself on the wheels of the vehicle, or if he unexpectedly enters the area of the cars. None of this is said, but it is stated how he remained on the hard shoulder, and as a hard shoulder, this means staying out of the vehicle lane. Therefore, his conduct, although prohibited by the highway code, does not create a risk of sufficient importance to interrupt the objective imputation relationship of result of death to the driver's conduct. The subject goal of homicide (arts. 138 and 142) is fulfilled. It is, therefore, a typical conduct of objectively imputable manslaughter.

However, it is debatable whether this subject goal is also subjectively imputable. In particular, it is questionable whether C. acted with malice aforethought. We are dealing with a case in which the agent C. excludes running over the victim from his wishes: it is clear from this that his aim was only to give a fright, which seems to be contrary to "getting into trouble" by running over someone: from agreement with the thesis of consent or approval, according to which there is malice (eventual) and not recklessness (conscious fault) if the agent is at least satisfied with the production of a typical result , there would be no malice here. According to another differentiating thesis between intention and recklessness, the thesis of the probability, here the possibility, evaluated ex ante, of running over a pedestrian who - precisely because it is a question of giving a good scare - is "almost grazed", so to speak, is very high; therefore, we would be dealing with a case of intention. According to another differentiating thesis , that of the feeling or contempt for fundamental legal rights, in this case, it is not easy to affirm malice, since giving a fright in these circumstances is still a game at the limit of what is socially tolerable (remember how we said that giving a fright is not typical for the purposes of the misdemeanour of slight vexation), so it is not possible to affirm C.'s contempt for the life of others; we would therefore be looking at a case of recklessness. On the other hand, note how the differentiating thesis of probability, the only one of the three that allowed for the affirmation of malice (the second of the three), cannot overlook the fact that C. is in error - a miscalculation - as he is unaware of the very high possibility in concrete terms. Rather, it seems that C. loses control of the vehicle to some extent, because, as he gets so close to the hard shoulder, there comes a point at which it is no longer possible to correct his course: he has lost, so to speak, control of the vehicle's trajectory. And this was his mistake. But if it is an error, there is no malice. At the most, we would be faced with a case of possible negligence if it is a case of an overriding error on an element of subject (the causal process of killing someone), since negligence is a case of an overriding error on elements of subject. Therefore, two of the differentiating thesis end up affirming C.'s recklessness, while one would affirm malice.

Despite these solutions that deny malice, and the decision of the Supreme Court, it seems to me that it is possible to affirm (eventual) malice in C.'s conduct, which I will explain below, but on a different basis to that of probability thesis . Fraud and error are conceptually mutually exclusive: where there is fraud there is no error, and where there is error there cannot be fraud. There are no cases of malice and mistake - at the same time and on the same aspect - as this would be a contradiction. However, there may be cases in which the subject involved in the status is mistaken and knows that he is mistaken; that is to say, he is mistaken about some relevant element of the subject and is aware of his defect knowledge. This is what can happen in this case: C. is mistaken about his own ability to avoid running over the victim, as he still thinks he is capable of giving a scare without hitting the pedestrian. Awareness of one's own error, and continuing to act in spite of this, merits consideration of the act as intentional. This is because he possesses the minimum knowledge for malice: the knowledge on the elements of subject of homicide (the causal course of death), without being a subject endowed with a special capacity to act that makes it reasonable in an intersubjective context to trust that he will avoid the result. On this last point, it is worth making an aside: special capacities to act in the agent that are recognised by all (in the intersubjective context) make it reasonable to trust that nothing will happen. In other words: it is not the same for anyone to give a scare as it is for a recognised expert in driving to give a scare. And in our case, C. is no expert, but a normal driver - at the very least - so there is nothing to expect that he would be able to avoid a result such as the one that occurred. Therefore, I understand that C.'s conduct can be imputed as wilful misconduct (with malice aforethought).

II.3.As regards the possible unlawfulness of his conduct, it is only necessary to point out that there is no indication that there are any grounds for justification, permissive rules, so that his homicide is both typical (objectively and subjectively) and unlawful.

Although the aphorism Culpa lata dolo aequiparatur (Ulpianus, Digest, 11.6.1.1) did not apply in cases of homicide (thus Decius, consilium 9, no. 1), sample how there can be cases of intolerable errors that are attributed as malicious. Cf. Dominic, Principles of Global Law, 2006, Nm 234.

II.4.There is no reason to doubt his guilt, so that C. is guilty of a typically unlawful act of murder. Moreover, there is nothing to prevent him from being punishable.

III.In conclusion, it can be said that C. will have to answer for the crime of intentional manslaughter, with a prison sentence of between 10 and 15 years. Since the eventual malice aforethought may merit a lesser penalty than in other cases of malice, the penalty could be set at 10 years. But it should be noted that there is no express legislative provision for mitigation below the criminal framework in cases of malice aforethought. Apart, of course, from the civil liability derived from the homicide, in favour of the injured parties, the victim's relatives.

Cf. C.21, C.23 and C.112.

At final, at this stage of the legal theory of crime, we proceed to assess ("measure") human conduct from the point of view of rule, of a specific criminal rule . If the process of evaluation concludes positively, we affirm: "the conduct is typical". This requires ascertaining both the goal and the subjective aspects of the conduct in accordance with subject.