C.37a Incognito Case

I. From the account of the facts, the following can be highlighted: At the exit of a discotheque, José Ángel shouted and insulted the doormen, and Guillermo, an officer of the National Police Corps, who was off duty and in civilian clothes, intervened. José Ángel and Guillermo argue, but Guillermo does not appear to identify himself and show his badge. José Ángel pulls out a knife with a 9 cm blade and unexpectedly stabs Guillermo in the belly above the navel and in the upper part of the left hemithorax. Guillermo suffers injuries that require exploratory and restorative surgery, which healed after sixty days.

II. An analysis of the criminal liability of José Ángel is requested. Assuming that the proven facts are as they are and without the possibility of modifying them, the following can be stated.

II.1. We are in the presence of a human process susceptible to self-control. Indeed, going to a discotheque, getting involved in an argument, taking out a knife, sticking the knife in twice... require behavioural patterns that reflect choices and self-control on the part of the subject: it can be said that José Ángel has different alternatives for action. At the same time, there is no evidence that José Ángel was in a state of unconsciousness, irresistible force or that his behaviour was the product of reflex movements. Therefore, it can be affirmed that the accused is engaged in human conduct. Let us now consider whether José Ángel's conduct constitutes the subjectgoal of a crime.

II.2. On the one hand, as regards objective criminality, if we mentally suppress José Ángel's conduct (at least that of inflicting two stab wounds), the injury suffered by Guillermo disappears. Although the defendant's conduct is a causal factor in the injuries suffered by Guillermo, it is not sufficient to say that he has committed a crime. We must, in addition to causation, ask ourselves whether José Ángel's conduct creates any typically relevant risk, in the sense of those that the legislator wanted to avoid by defining a crime. We can affirm i) that taking out a knife in the frameworkof an argument constitutes a typical risk of the crime of threats (art. 620.1.º), as it significantly conditions the will of the person against whom it is wielded; as this subjectis a mere activity, we can say that the quantitative and qualitative aspect that the risk requires is fulfilled: consequently, his conduct is objectively typical for these purposes. ii) Furthermore, for the purposes of the crime of injury with dangerous means (art. 148.1), we consider that stabbing a person twice in the abdomen-hemithorax with this weapon constitutes a qualitatively and quantitatively relevant risk of the crime of dangerous injury, not conceptualisable as sampleof social appropriateness or permitted risk; which, given that no other risk factor is involved, is carried out at result. iii) In turn, stabbing twice, specifically in the stomach and in the upper part of the left hemithorax with a 9 cm long knife blade constitutes a typical risk of homicide (art. 138), since introducing a knife with a sharp blade, such as a knife, into that area of the body of another person is clearly serious for the lives of people; furthermore, it does not belong to the groupof socially permitted or adequate risks, nor can it be considered as an insignificant risk in comparison with the consequence that it can cause. And, finally, iv) the fact that the victim belonged to the National Police Corps also means that the aggressive conduct also has the character of a criminally relevant risk from the point of view of the crime of attacking an authority (art. 552.1.ª); and as it is a mere activity, the goalaspect of said subject is also fulfilled. Therefore, from the point of view of goal, José Ángel's conduct constitutes the subjectgoal of the crimes of threats (art. 620.1.º) consummated, injuries with dangerous means (art. 148.1), also consummated, attempt against authority (art. 552.1.ª) consummated, and a crime of homicide (art. 138) in Degreeof attempt.

II.3. We must now consider whether, in addition to subjectgoal , the conduct fulfils the subjective subjectof such offences. We must argue that he acted with intent in respect of all of them. The question to be answered now is whether José Ángel knew ex ante the risk posed by his conduct(s). We can affirm that, by virtue of the rules of experience acquired through the daily learning process, the accused knows that the knife is an instrument that conditions the will of others and even more so in the frameworkof an argument; furthermore, that it cuts and that it is Passto hurt another (every adult has employeeknives). This assertion is reinforced by the fact that the knife is his, that he did not find it on the ground at the time of the argument with the victim, which means that he knows the qualities of this element, and at least minimally has experienced that it is a cutting and potentially lethal element, which also has to be opened, as the knife that it is, with a manipulation, which presupposes knowing the mechanism, however simple it may be. He also knows that taking out an instrument Passto harm in the frameworkof an argument is more likely to be used against another than when one takes it out to show or lend it. He also knows that the larger the blade of the knife, the greater the potential for harm. At the same time, he knows, as an adult, that there are organs that are vital for life and that their damage can lead to death, and therefore, inserting a 9 cm blade into the belly and then into the upper left side of a person, where several vital organs are located, can be fatal. It can therefore be stated that the defendant's conduct fulfils the subjective subjectof the crimes of threat, injury and murder. In these three cases, the accused is aware of the means he is using and the virtuality of using it as he does. We can affirm that these conducts are intentional. This is not the case for the offence of assault, because as Guillermo was "incognito" (as can be deduced from the fact that the facts state that he was "off duty and in civilian clothes"), an essential element for the subjectin question (attack on authority) is unknown, which therefore prevents the conduct from being imputed as intentional. In fact, with regard to the crime of attacking an authority with a dangerous weapon, it can be argued that according to the account of proven facts, the victim was dressed in civilian clothes, i.e. he was not wearing the regulation uniform which would imply the externalisation of his status as an agent of the law, and neither has his identification as such been accredited, so it can be stated that the accused was not aware ex ante of his status as an agent of authority as required by subjectof art. 522.1.ª. Under these circumstances, the general rule of error of subjectforeseen by art. 14 should be applied, as the lack of knowledgewith respect to this essential element excludes the possibility of imputing the perpetrator's conduct as malicious, and as the reckless commission of subjectof art. 552.1.1. is not possible, the error (whether it can be overcome or invincible) made by José Ángel excludes his criminal responsibility. In final, José Ángel's conduct fulfils the subjective types of the crimes of threats, injury with dangerous means and attempted murder.

II.4. From the account of the proven facts, there is no datawhich casts doubt on either the unlawfulness or the guilt of the accused, so that his conduct is typical (objectively and subjectively) for the purposes of threats, dangerous injury and murder (attempted murder), and is also unlawful and culpable.

II.5. With regard to punishability, we can understand that threats, given their lesser seriousness, their lower penalty and the fact that they are part of a broader aggression, would be absorbed by the offences of dangerous injury and/or homicide. In the offence of dangerous injury and attempted homicide there is a certain progression and common elements (one begins to kill by injuring with dangerous means), so punishing both offences would mean punishing twice (disproportionately), so it is appropriate to punish for only one of the offences, the one that includes more elements and also covers the seriousness of the conduct. I am inclined towards the option of applying only the subjectof attempted murder (arts. 138 and 16.1), bearing in mind that, as it is a completed attempt, the penalty should not be reduced by two Degrees, but only by one: the prison sentence could therefore range from 5 to 10 years minus one day.

III. In conclusion, José Ángel is criminally liable managerfor the crime of attempted murder Degree, without the concurrence of circumstances modifying liability. In addition, he will be civilly liable for the damages caused.