C.44 - Gamboa case

From the facts described above, it should be noted that the defendant Francisco Javier at 3:45 a.m. tried to force the metal shutter of a closed shop with a fixed key, but stopped in his attempt when he realised that a passer-by was approaching. When he retreated to an adjoining street to avoid detection, he was stopped by the police. No damage was caused.

Without altering these facts, the following can be said about the possible responsibility of Francisco Javier.

As to whether the defendant engages in conduct (in the stage from when he goes to the shutter of the premises until he is arrested): there is no doubt that there is human behaviour, because in this case the person is acting as a rational being. Precisely because of this, he takes the opportunity to pick the lock late at night, he tries to avoid being seen, he uses a tool, which shows human rationality in order to achieve goals (we use instruments to achieve goals that are beyond what we achieve with our hands). Self-control is shown precisely by having made use of rules of utility (use of tool, avoiding being seen, seeking out the hours of the night...). Moreover, nothing can be argued against the external nature of this behaviour. For all these reasons, we affirm that there is human conduct.

As to whether such conduct (at that time stage) is typical, let us first distinguish in its aspect goal: applying a metal toolseems to be a factor that would cause the owner's established protective defences to give way. If this factor is mentally removed, a possible breakage of the lock would disappear (although it did not occur here). But the essential question is whether this factor (application of toolmetal to a lock set up by the owner to protect his property) constitutes a typically relevant risk within the meaning of the offence of burglary (arts. 237-241). I think the answer is yes: precisely because the owner adopts security measures for his property (locks, for example) he is making access and opening difficult if not with the key. Using unusual means, such as crowbars, heavy tools, etc., is clearly an undesirable means for the owner to gain access to the property. And this is precisely what the legislator intends to prevent by prohibiting the theft of other people's movable property by breaking locks, etc. Therefore, Francisco Javier's conduct involves a typically relevant risk in the sense of burglary. However, we know that he was caught during the application of this risk and therefore left the scene of the crime. Undoubtedly, this factor means that the risk is not realised on result, by the express will of the agent, who thus interrupts the course of risk. It must therefore be said that his conduct remains incomplete, in attempt. As to whether the conduct is also objectively typical in terms of the offence of damage (arts. 263 and 625), this must be denied, but not because "no damage was caused", as the account of proven facts states, but because the conduct does not even seem to me to be capable of causing damage, insofar as the tooldoes not necessarily cause damage to the locks, doors or supports (at least, there is not sufficient evidence that damage was caused). As far as damage is concerned, we therefore consider that the conduct does not constitute a risk within the meaning of subject.

That this is also subjectively typical requires arguing that the agent acted with knowledgeof the risk he was deploying (in this case, of the risk of breaking a metal shutter which in principle prevents access). Fraudulent intent can be evidenced by the use of a toollike the one used, in addition to the fact that he ceased his activity on perceiving the arrival of other people. Thus, in this case, the fact of perpetrating the robbery in the early hours of the morning (3:45 a.m.) and taking a fixed key out of the bag to force the metal shutter when he believed that he was not seen by anyone, demonstrates unequivocally that Francisco Javier represented the risk by the rules of experience acquired in the daily learning process and that he was updating them at that moment. Otherwise, he would not have stopped in the operation, or retreated to an adjacent street, as he did when he realised that a passer-by was approaching. This supports the conclusion that his action is typical also in subjective terms.

For the rest, there is no reason to doubt the unlawfulness of the conduct, which cannot be covered by any ground of justification. Nothing is said against the existence of a perfect and normal mental condition. On the contrary, he seems to be capable of knowing rule, can be guided by it and is in a normal statuscondition. There is no reason to doubt that he can be required to act in accordance with rule. He is therefore guilty of the crime of attempted burglary Degree.

However, the specific harmfulness (and punishability) of the conduct can be discussed in view of the fact that resultintended by the agent was not achieved. In fact, Francisco Javier abandoned what he was doing at a time when he had not even managed to gain access to the place where some of the stolen movable property could be found. We know that he abandoned his purposewhen he noticed the arrival of a passer-by. This factor causes him to cease his attempt. We have already argued that the conduct is therefore attempted. We now add that it is an unfinished attempt, given that there were still several acts that the agent had to carry out to complete the subjectby completing the typical result. That Francisco desisted is clear ("stopping the operation when he realised that a passer-by was approaching"), but that is not what is definitive for the harmfulness and specific punishability of his conduct. What is decisive is whether this desistance deserves the exemptionpenalty. Art. 16.2 stipulates that voluntary desistance from committing the offence gives rise to impunity (except for the marginal punishment of what has already been done by another degree scroll: cfr. art. 16.2, in fine). In this context, "voluntary" cannot mean what it means in the theory of crime to act "voluntarily", because all human action is voluntary, as a matter of principle. Voluntariness, voluntarily, now means something more than just acting willingly; it means that one's action removes the need for punishment (teleological argument, based on the meaning and purpose of impunity by desistance). Only if the need for punishment ceases, can the system coherently cease to punish. And that need will disappear if the agent ceases to act for reasons that clearly make punishment superfluous. It does not seem to me that his ceasing to act involves a return to the law, to legality, but rather, the employmentof the rules of utility that he had been using from the beginning: the clandestinity of his action ("around 3.45am") would be prevented if he continued to act when a passer-by arrives, so it is precisely his arrival that prevents him from achieving the objectives sought. There is therefore no reason why the need to punish should disappear. Punishment is appropriate for the attempted crime of burglary in Degreeof attempt (unfinished): penalty lower by two Degreesfrom the minimum foreseen in art. 240.