C.49a - Trachea Case

I. Sebastian and Damiana argue. He takes out a knife with which he cuts her in the neck ("incised-puncture wound in the anterior cervical region, in the suprasternal hollow, about 2 or 3 cm deep, perforating the subcutaneous cellular tissue, fasciomuscular planes, thyroid gland, reaching the anterior wall of the trachea at the level of the 2nd ring, causing a subcutaneous emphysema... , injuries that took ninety days to heal...").injuries that took ninety-two days to heal"), and then collaborating in seeking help and surrendering to the Guardia Civil. Two phases can be distinguished in these events. First: at framework of the argument, the cut with the knife. And the second: to stop the aggression and seek help for her.

II. Without altering these established facts, the following can be said about Sebastian's possible criminal liability.

II.1. First of all, we ask ourselves whether Sebastian engages in human behaviour in both phases. In the first phase, Sebastian argues (he speaks, raises his voice, imposes himself...), verbs that show self-control; and he also takes out a knife, opens it, applies it with precision to the victim's neck, whom he has to reach and hold: all this shows that there is a choice of means and ways of acting. Furthermore, in the second phase, as soon as he becomes aware of the wound he has inflicted, he modifies his action, and goes on to seek help for Damiana: once again, there is self-control, as he shows that he has choices and exercises them. In addition, there is no evidence of irresistible force (not even a serious outburst, which would not make self-control disappear), reflex movements or unconsciousness. Let us now consider its typical relevance.

II.2. Secondly, let us analyse whether they are typical in the sense of goal. We leave aside the discussion, which does not seem to fall within the scope of the prohibited risk. On the other hand, the action of cutting the neck with a knife is not a permitted risk. Let us see. The application of the knife is a sine qua non condition for the cut suffered; furthermore, i) this cut is ex ante a typical risk of ill-treatment (art. 147.3) as it is not the way people relate to each other on the basis of mutual respect and recognition; this subject, as a mere activity, would be consummated from the first moment of the aggression with the knife. This cut is also (ii) typical ex ante for the purposes of the crime of basic injuries (art. 147.1), as it creates an incision in the skin of a certain depth (although the extent is not stated, it is said to be between 2 and 3 cm deep); if there is no external factor, neither from the victim himself, nor from third parties between the action and the result, it will be necessary to consider the ex post imputation of the result of injuries to the action of cutting. In addition, dangerous injuries must be assessed ex ante, both due to the means (as a knife of these dimensions was used: art. 148.1), and the quality of the victim (she was his wife: art. 148.4), and the result produced is assessable ex post as a product of this cut and not of any other factor. Finally, this cut constitutes ex ante a risk of homicide (art. 138), as it affected the neck to a certain depth where there are vital organs (jugular vein) or which could become vital if help is not avoided; and this is what took place: ex post, the aggression is interrupted by the perpetrator himself, and the victim is rescued and moved. This makes it possible to say that the risk is not embodied in the result of death, so it will be necessary to look at the attempted homicide. Therefore, the conduct would be objectively typical of ill-treatment, basic injuries, dangerous injuries (all of them, consummated), and homicide (attempted). Due to their specificity and priority character, the basic injuries are included in the dangerous injuries, and these absorb the disvalue of the ill-treatment. Sebastian's conduct is objectively typical of assault and battery by means of a dangerous instrument and attempted manslaughter.

II.3. Thirdly, as to whether these objectively typical conducts are also subjectively typical, we ask ourselves whether Sebastian had rules of experience about the dangerousness of the means and the way of using it to be able to imagine what was going to happen. It can be understood that any adult with a minimum of experience in the use of a knife (we use them to eat) or razor (it was his), in how cutting instruments operate (scissors, blades...), and in the sensitivity of the neck and the presence of veins, glands and relevant muscles inside it. If knowing this, as well as the fact that he had Damiana in front of him, to whom he applied the blade to her neck, and continued to act, it must be concluded that he knew the risk of cutting a relevant part of the body. His conduct is subjectively typical, therefore, as far as murder and injury are concerned.

II.4. Fourthly, we must ask ourselves about the relevance of the conduct of ceasing his aggression and contributing to Damiana's rescue. Specifically, the facts state that, "faced with the screams and blood flowing from the wound, they both left the house asking for help from the neighbours, who called the ambulance and the Guardia Civil, who arrived immediately, taking Damiana to the Hospital, and the defendant gave himself up to the Guardia Civil, handing over the knife and acknowledging that he was the perpetrator of the attack". We wonder whether this conduct could constitute a case of voluntary abandonment of the attempt that would earn him impunity (art. 16.2). Objectively, his conduct must counteract the risk he himself created, as he did here, because having produced the first cut, he does not continue, but also "retreats", as financial aid to help Damiana. If we understand that the attempt is finished (he had nothing more to do) his action must be objectively an active action that stops the entrance of result; and it can be argued that this was the case, in view of the wound and the part of the body (if it were understood that it was an unfinished attempt, it would be enough to do nothing, and leave the status, but then he would very possibly have bled to death, and it does not seem that this deserves to go unpunished). This conduct of active desistance must also be subjectively imputable to Sebastián, and this requires acting "voluntarily", in accordance with what is required by the letter of the precept of the penal code that defines desistance from the attempt (art. 16.2). I understand that nothing is said that his actions were opportunistic or aimed at avoiding the most serious penalty once he had been discovered, as we are told that both he and she left asking for financial aid. It can therefore be understood that he himself has revealed his actions and that he is going to be arrested, and that from then on he will try to get help for the victim. As an effect of the voluntary desistance, he remains unpunished for the crime that has been desisted from, but this does not apply to other possible crimes that have already been committed. This is what happens with completed injuries, which should be punishable, without being affected by the desistance.

II.5. There is nothing in the account of proven facts that allows us to doubt the unlawfulness of the conduct of injury, nor Sebastian's culpability for it, since he is imputable (normality), he knows the unlawfulness of his conduct (that injury is unlawful) and he is not in an extreme status situation that would lead to excuse his conduct (he was not threatened by Damiana). Therefore, Sebastian is guilty of his conduct of dangerous injury. We are left to analyse the punishability, and in this we could take into account his confession ("he gave himself up to the Guardia Civil, handing over the knife and acknowledging that he was the perpetrator of the aggression"), as an attenuating circumstance of responsibility. Given that it is a different conduct and subsequent to that of helping Damiana, it is not the same status that we have already taken into account in assessing the desistance. 

III. At final, Sebastian is charged with one count of aggravated grievous bodily harm, with the mitigating factor of confession.