C.51 - Wild boar case

I.On the basis of the facts set out above, the following can be said about R.A.'s responsibility for the death of J.J., another hunter.

II.

II.1. R.A., in firing the five cartridges from his shotgun, is engaging in humane and self-controlled conduct. There is no detail that could indicate otherwise, since it cannot be said that someone is hunting an animal such as a wild boar without engaging in human behaviour. Hunting implies developing self-control, having alternatives, because you have to move, look for the game, aim, shoot... Without human behaviour there is no hunting.
II.2. The cartridges fired by the shotgun finally reach J.J., who is killed. After mentally suppressing the execution by R.A. (pulling the trigger), that cartridge would obviously not have reached J.J., and therefore he would not have been result killed. The heuristic formula of the condicio sine qua non sample thus tells us that, once the shot has been removed, J.J.'s death disappears. However, this formula can often be misleading, especially in situations where a third party is involved. For this reason, we must take into account, as a criterion in the analysis of subject goal , objective imputation. Thus, we first analyse whether R.A.'s conduct is a typically relevant risk, in our case, of homicide (arts. 138 and 142). As typified in these articles, it is a crime which is consummated with the production of result, by many possible means: what is called a crime "of indeterminate means"; and a shot is one of those possible means. Firing a shotgun loaded with cartridges of a certain calibre presents a high risk, because it is used to kill a wild boar and therefore also a human being, depending on where it is hit. In addition to being a high risk of death, it is this risk, and no other, which is realised in the result, as nothing is said about the possible intervention of third parties. Nor of the victim himself, who certainly intervenes in the trajectory; but this does not constitute a risk of such an entity or quality that it interrupts the imputation to the agent, because nothing is expressed in the facts in terms of the victim being aware of his imminent death, but rather that he has been surprised by the shots fired by R.A. In final, the conduct of R.A. is objectively typical for the purposes of the crime of homicide.
However, at this point it is worth noting that the shooting took place in peculiar circumstances: they were hunting. As the facts detail, both hunters were beating a wild boar in the vicinity. When R.A. saw some bushes moving, he assumed that it was the wild boar (which he "saw appear and disappear in the bushes on two or three occasions") and therefore fired. It can be seen how there is a divergence between what R.A. represents himself: before shooting, before realising the typically relevant risk(ex ante), the conduct was represented as killing a wild boar that was moving through the bushes, but what happens afterwards(ex post) is something different. This divergence constitutes an error (disparity between the subject's representation and what happens in extramental reality) about an element required by the subject (in the case of homicide, about the object of the conduct of killing, the "other", which includes the subject of the homicide, described in arts. 138 and 142). Since it refers to an element of the subject, this divergence constitutes an error of subject, i.e. R.A. errs on an element required by the legal description of the offence of murder: on the object(error in objecto). Given that there is an error on an element of the subject, his conduct is not intentional on that point: he does not know that the typical risk he is taking is the death of a human being. R.A. knows, believes, that his risk is the death of an animal, but not of the other hunter, J.J. In fact, the error about the element(object) of the crime is about a relevant object: it is not a mere mistake about the identity of the victim (he represents himself as killing Peter, and actually kills John), but an error about something essential, relevant: just as killing a wild boar is irrelevant for these purposes, killing a person is not.

One of the oldest texts dealing with the treatment of subject error is ARISTOTHELS' Nicomachean Ethics (384-322 B.C.), from which this passage is taken (1111a 8-19): "...one can ignore what he does, for example, when someone says that he missed a word or that he did not know it was a secret, like Aeschylus with the mysteries, or that, wanting only to show how it worked, he was shot, like the one with the catapult. One could also believe that one's own son is an enemy, like Mérope; or that the iron point of the spear had a button; or that any stone was a pumice stone; or giving someone a drink to save him, kill him on the contrary; or wanting to give him a pat, knock him out as in pugilism. Since one can be ignorant of all these things in which the action is involved, he who is ignorant of any of them, especially the most important ones, is thought to have acted involuntarily" (trans. Pallí).

On the other hand, it does not seem that shooting without being sure of the game on the framework of a hunt is irrelevant behaviour. Although he was shooting at (what was represented to be) a wild boar, we can impute his error to him. Note: it is imputed to him despite the fact that there is no malice, that there is a mistake. He is precisely accused of having fired in error, because he did not know what he should have known. It is obvious that he should have known before shooting, because carrying a firearm is a highly dangerous element that, as anyone can imagine, can cause the death of human beings. Moreover, among hunters, anyone is required to spot the game before shooting. It is, in final, an error about elements of the subject, and of a reversible nature. Such an overdue error on an element of subject is punishable as a reckless offence (art. 14.1), where the legislator has provided for such reckless offences(numerus clausus): art. 142, specifically. At final, R.A. would be subjectively imputable for his own error: reckless conduct.
II.3. In the rest of the facts, we do not see any exclusion of unlawfulness. Thus, the act is typically unlawful.
II.4. As far as criminal punishability is concerned, there is nothing in the facts to cast doubt on R.A.'s guilt or punishability.

III.R.A. is liable for a typically unlawful act guilty of reckless homicide (art. 142).

We already know that in the case of recklessness, the agent's own error (error of subject) is (extraordinarily) imputed to the agent. This is what is meant here by error beatable at subject. Determining whether or not the error can be overcome is a task for the analysis of subjective imputation in reckless crimes. It is not merely a psychological question (remember how, in the end, every error is a psychological one). always is avoidable), but of a value judgement - again the distinction between empirical judgements and judgements of evaluation- on the conduct of the subject. update These are errors based on (i) the lack of rules of experience in a certain sector, or (ii) the non-existence of certain rules of experience that do exist, or (iii) a defect in calculation. In this respect, however, it should be noted that the errors that it is the subject's responsibility to avoid will depend on the profession, position, time, etc. It is important not to fall into the automatism of imputing liability on the basis of any previous infringement. We will see this in C.53. First, let's look at C.52 a peculiar modality error subject.