C.38b - Wall case

I. Four phases can be distinguished. First, J.L.'s approach to Aurelio. Second, the beating. Third, the transfer to Manacor hospital. Fourth, the transfer to Son Dureta hospital. Leaving aside the first phase, we will focus on the second (beatings) and group the third and fourth into one.

II. On the basis of those proven facts, and without altering them, the following can be said about the criminal liability of J.L.

II.1. Since we read how J.L. approached a person, engaged in conversation, took advantage of an oversight, initiated blows, and struck repeatedly, bent down and even then continued to strike..., it must be affirmed that all this was done with self-control, since it denotes various choices, an exercise of volition in each case. And, furthermore, there is nothing to suggest that it was the result of a reflex movement, unconsciousness or irresistible force. J.L. is therefore engaging in human conduct. We then ask ourselves whether it is typical.

II.2 . The blows inflicted in the second phase are undoubtedly a causal factor in Aurelio's injuries and subsequent death: mentally suppressed, the various results disappear. But causation is not enough. These causal factors can also be qualified as risks for the purposes of various types of crime. On the one hand, i) of the offence of ill-treatment (Art. 147.3), because hitting someone and doing so in a surprising manner is not the proper way of relating to and respecting each other, and there is no factor (consent, for example) in such a attention; as it is a crime of mere activity, it is not necessary to ask any more about the objective criminality of this first risk. On the other hand, (ii) of the offence of basic injury (Art. 147.1) in that ex ante he directs his fist several times against his head and this against the wall, which is sufficient in quantitative terms to produce an injury that requires medical care, and is not socially accepted or permitted for legitimate self-defence, for example, and therefore its typical nature must be affirmed in the sense of goal; and ex post, due to the immediate effect produced, the resultof injury cannot be attributed to a factor other than J.L.'s punches and blows with his fist and against the wall. Moreover, iii) these blows are also assessable ex ante as a risk of homicide, and this is because they are directed at the head and with the wall, the forcefulness and repetition of which directed against the skull can be seen as a life-threatening factor, in view of the delicate nature of the skull, which in addition there was neither self-endangerment of the victim, nor previous aggression on his part that would have allowed J.L. to defend himself. to defend himself; assessed ex post, however, we are told how the hospital did not perceive brain damage despite radiological tests, which led to his readmission and transfer to another hospital, where in the ICU (five days after the blows) it was found that he suffered from "subdural haematoma and a traumatic subarachnoid haemorrhage", i.e. a haematoma inside the skull in the most superficial part of the brain, as a result of a head injury, which was then aggravated by a sudden haemorrhage in the somewhat deeper area, between the brain and the meninges. This time lapse raises the question of whether the resultof death (15 October) is attributable to the blows inflicted by J.L. or whether a new risk was introduced which led to the result. In concrete terms, it could be an act contrary to medical practice, however, nothing is said that the doctors were careless or failed to practice any testcore topic , but rather that they applied the diagnostic means that seem appropriate. We could ask ourselves if the constitution of age and relative weakness of health supposes a new risk that interrupts the objective imputation of resultof death to the blows; but this is not correct, as these are not unusual conditions in people (age, normal medical treatment); moreover, otherwise, elderly people with pathologies should be considered as risk factors against themselves that would relieve the unconscionable aggressors of responsibility, which would be absurd. Therefore, the death resultis attributable to the blows inflicted by J.L. At final, J.L.'s conduct is objectively typical as a crime of ill-treatment, injury and homicide. Let us now see whether it is also subjectively typical.

II.3. Since malice requires a representation of the risk of the conduct itself, it must be asked whether J.L. represented the risk of the three conducts. J.L. is a normal adult who would possess the information that any person has about the effectiveness of blows with his fist (he would have previous experience, and confirmed it when he started to hit Aurelio), about the forcefulness of a solid wall (who has not been hit in the head and felt pain for that very reason?), and about the relative fragility of the skull (we wear helmets, we protect our heads instinctively against the risk of being hit...). If you have this information drawn from your own rules of everyday experience, you can anticipate consequences of what will happen if you continue to hit a person. Therefore, he knows the risk he is deploying: his conduct is subjectively typical for all three offences (ill-treatment, injury and homicide). However, with regard to homicide, the question arises as to whether or not he represented himself as having the potential to harm life; in fact, we are told that he struck "without intending to cause death, nor did he perceive such an eventuality as possible". All this leads me to wonder whether he acted with malice aforethought. Beyond whether he inwardly approved this result(consent or approval theory), or whether he represented the high risk of death (probability theory), or whether he moved with disregard for people (sentiment theory), the core topicis to detect whether he represented the full risk or whether there was some error. On this point, some ignorance or error is perceived in that he failed to realise the high risk of his blows (without perceiving as possible the possibility of killing him), but this error does not interrupt the subjective imputation, since it is intolerable for him to hit a person on the head without representing this danger; in other words, even if there is some degree of error, it cannot be taken as relevant to stop his actions from being considered fraudulent. Rather, it would be a case in which his error is not acceptable.

II.4 . We would continue the analysis of the case by considering the unlawfulness of his conduct (clear, as there is nothing to suggest legitimate self-defence or other grounds for justification), his guilt (nothing is said that this was affected), and punishability. In terms of punishability, it could be argued that of the three crimes committed by J.L., the intentional homicide takes precedence over the injuries, and the latter would absorb the disvalue of the ill-treatment. Therefore, manslaughter is the offence for which J.L. would be liable.

III. At final, J.L. will answer for the crime of intentional murder.