C.37b Case Truckers

I. The proven facts narrate how three persons (A., B. and C.) agree to seize money: A. goes ahead and gives the signal to act; C., accompanied by B., carries a shotgun, both enter a shop and, pointing a gun at Landelino, its owner, demand that he hand over the money, who reacts "instinctively trying to push the gun away and close the door", which provokes a sudden reaction, "equally instinctive", from C., who shoots the gun and causes the instant death of the owner.

II. We consider the criminal liability of A., B. and C.

II.1. Devising a plan, going to agreement, choosing an instrument such as the shotgun, waiting for the right moment, going in and talking..., all of this shows that the three participants act with volition, with self-control over the course of events, so that we can affirm that there is human conduct. The statement contained in the facts about the instinctive nature of C.'s reaction is problematic: faced with the demand for the money and the shotgun, Landelino reacts in an "instinctive way, trying to push the gun away and close the door", which provokes "an equally instinctive reaction from C., who, holding the shotgun, pulled the trigger, so that he fired the gun, hitting Landelino in the face". We are not so much interested here in the defensive reaction of the deceased Landelino as in that of C., who acted suddenly and fired the lethal weapon. If instinctive reaction means that it is a purely animal or reflex movement, the very requirement of self-control which we demand for human behaviour to exist would disappear. For that we require that the movement be the effect of a physical or mechanical factor, transmitted subcortically, without the interposition of consciousness. It is not out of the question that a shotgun could be fired as the effect of a reflex movement (a cramp, a twitch, for example), but that is not what seems to have happened here. In the facts it is narrated how the three interveners have control over the processes in which they are immersed, and only the shotgun blast seems to escape. All in all, I think that C. maintains the minimum volition or self-control sufficient to be able to speak of human conduct. And this is because the rapidity and promptness of his reaction does not exclude a minimum of control, educable and susceptible to training, which already distinguishes these phenomena from reflex movements, in which not even training can make the subject operate differently. Therefore, C.'s self-control does not disappear at that moment. Let us also consider whether these behaviours are typical.
II.2. As regards goal, the mere entrance on the premises is not typical in the sense of goal, as it is still open to the public. On the other hand, the entrance of three people (or two, depending on where A. was at the time), at that time of night, in an establishment where there are no customers left, showing a gun, demanding money..., is objectively typical for the purposes of the offence of robbery by intimidation with weapons (art. 242.3): in this context, it is a serious, credible and frightening message; however, we are not told that this typically relevant risk factor takes place at the result (there is no mention of taking the money). The shot from the shotgun is another factor to be analysed: as well as being causal (because, mentally suppressed, it makes the harmful result disappear), it also poses a risk in the sense of both the types of injury and homicide. Of injury (art. 148), because a shot from a firearm is a highly dangerous factor for physical integrity; of homicide (art. 138), because the shot is fired in the face and head of the victim, which makes the aggression to physical integrity greater, vital. Both typically relevant risks are realised in the result: injuries and homicide, both consummated. Since the injuries are in progression with respect to the homicide, we will focus from now on only on this offence. Let us see whether these risks are covered by the agent's intent.

II.3. As for the offence of attempted robbery, the three subjects represent the risk they are taking. It is clearly stated that all three plan the action, agree on the location, wait, lie in wait, lie in wait, enter, know that they are carrying a shotgun, know the message they are sending to Landelino..., data all of them know how reality works and how people behave when intimidating messages are sent to them. Therefore, it can be affirmed that the three of them acted with malice aforethought with regard to the offence of robbery by intimidation. Then, in the appropriate place, which is authorship and participation, we will analyse whether the three are equally responsible for this offence. As for the second of the crimes, homicide, we start from the assumption that every adult citizen knows the damaging potential of a loaded shotgun, knows what happens if the trigger is pulled, also knows the highly damaging effectiveness of a shot and specifically the one aimed at a person's head; given that the shotgun was carried by them (and not suddenly found there), we must infer that they know that it is loaded. Therefore, there is malice aforethought in respect of the offence of (attempted) murder. Note that the suddenness of the shot does not preclude the presence of malice, since for malice it is sufficient to know the risk of the conduct of shooting, and this is present. Nor is the speed of the shot an obstacle, as it would then have to be admitted that any hunter who shoots quickly would be acting without malice, when speed is part of the hunter's skill . Another thing is that in the specific case, C. squeezes the trigger as a consequence of a sudden movement (he would pull his arm back, thus propelling his hand and index finger, which should be on the trigger). Therefore, there seems to be a moment of error on C.'s part as to the timing and timing of the shot: it is not that the shotgun fired by itself, but that he has created a series of danger factors (he is carrying a loaded shotgun, quite possibly with his finger on the trigger...) of which he loses control due to the presence of a foreign factor coming from a third party (Landelino's sudden reaction). For this reason, I understand that the shooting is not covered by the malice of the agent C., but carried out in error. As it is a mistake about an essential element of the subject (the course of risk to life, the means of killing) of homicide, such a mistake would make the subjective imputation disappear were it not for the fact that we can reproach the subject for having fallen into this mistake: specifically, it is he who has chosen such a harmful means, and it is incumbent on him to assume a specific burden of care with regard to the shots; furthermore, for the gun to go off it must be mounted, which must be the work of someone who has inserted a cartridge in the chamber... For all these reasons, I understand that his error is overcome, as far as reproachable, and he can be imputed, by extraordinary means, the risk of the crime of homicide, but imprudent (art. 142). Whether this conclusion can also be attributed to A. and B. as perpetrators and participants will be examined later.
II.4 . There are no factors that eliminate the unlawfulness of the conduct of attempted robbery and manslaughter. If it were argued that C. reacted to avoid an aggression by Landelino, it would have to be replied that Landelino acted in defence against the robbers, since his conduct would already be justified and would not constitute an unlawful aggression against which C. could legitimately defend himself. With regard to the culpability of the three agents, we see no factors that would eliminate or diminish it: not even the sudden reaction could be taken as the result of a transitory mental disorder, as it has already been taken into account in the subjective imputation, where it gave way to reckless homicide.

II.5 . In terms of authorship and participation, we must distinguish between the three (A., B. and C.) in order to establish what each of them is responsible for. As for the crime of robbery, we can say that all three are equally responsible, and this despite the fact that A. does not seem to carry out any act of robbery, but only "gives them the way out", as we are told in the facts that they were "previously placed at agreement, they went... the three defendants went to the place on a moped subject Scooter, agreeing that A. while the other two defendants waited in the vicinity of the premises until A. gave them the appropriate signal... signalling to the other defendants to go to cafeteria ...". Such an intervention by A. would rather be an indication that the roles in the execution plan have been divided. Therefore, if the three of them are all working together at agreement and with the distribution of roles in the joint plan, all three are co-perpetrators of the crime of attempted robbery. Moreover, it should be noted that A. remains nearby (he could not have had time to leave after B. and C. began to intervene), while the others operate, so I am inclined to say that he is not a necessary co-operator, but a co-perpetrator with the other two. The same cannot be said with regard to the reckless homicide. In fact, the shooting is due to an overdue error attributable to C. and not to the other two, so that what one does cannot be attributed reciprocally to the other. It would be possible to "impute everything to everyone" if the joint plan included the use of the gun to shoot, but not to intimidate, but to kill, as it seems it could be here (it is loaded). But do not forget that C. does not fire the gun to ensure the execution of the robbery plan, but as a result of his inexperience with the use of the gun in the face of a sudden movement ("when he grabbed the shotgun he pulled the trigger, so that he fired the gun"). Therefore, only C. would be liable as an individual perpetrator for the crime of reckless homicide. In other words, the co-perpetrators are mutually liable up to the limit of their mutual liability agreement, and not for the excesses.
II.6. Degree As regards the punishability of the conduct, A., B. and C. are liable as co-perpetrators of the crime of attempted robbery (penalty mitigated by one year and 9 months to 3 years and 6 months). And C., in addition, of this crime in ideal concurrence with the crime of reckless homicide. This ideal concurrence would mean punishing the more serious offence in its upper half. And reckless homicide (art. 142) is more serious because of the penalty (from 1 to 4 years) and the protected legal interest (life), whose penalty would be exasperated (upper half: from 2 years and 6 months to 4 years).

III. In final, A., B. and C. are charged as co-perpetrators of the crime of attempted robbery, and C. as perpetrators of the same robbery in ideal concurrence with the crime of reckless homicide.