C.58d - Caso Preto

I. In the proven facts we can distinguish up to 6 events relevant to the solution: 1. the argument between José Manuel and Manuel and the insult from the former to the latter; 2. the first kick, to José Manuel; 3. the second kick, to M.ª Luz; 4. the fight between José Manuel (who "gets into a fight") and Manuel; 5. the two shots; 6. the non-provision of financial aid by Manuel to M.ª Luz. Based on these facts, and without modifying them, we will focus on the possible criminal liability of Manuel and José Manuel, and not on that of Mª Luz (who does not appear to have carried out any unlawful conduct and whose possible criminal liability is extinguished by the death).
In the first place, there is nothing in the facts that could lead us to doubt the existence of human conduct in Manuel and José Manuel: they are not subject to factors that exclude self-control, and they demonstrate this in the various processes in which they are involved: they argue, they hit, they express themselves, they stand up, they confront each other. Even with regard to the non-provision of financial aid to Mª Luz, we can speak of an inactivity that is susceptible to self-control. There is human behaviour, therefore, in both subjects during all the phases of the case.

II. Secondly, in order to analyse the criminality of these conducts, let us look at each phase separately. The argument is atypical, as long as it does not cease to be an argument and enters the realm of physical aggression: even José Manuel's insult to Manuel can be understood as atypical in quantitative terms, due to the fact that Criminal Law should not enter into these disagreements. On the other hand, in phases 2, 3 and 4 (both kicks to both persons and the subsequent fight), we can speak of a typically relevant risk of the offence of minor vexations (misdemeanour of art. 617 PC). As it is a mere activity, it is not necessary to establish result , but only the carrying out of the described conduct. It is not possible to consider such conduct as socially appropriate (it is not tolerated in social life for someone to go around hitting or fighting with others), nor does it pose an insignificant risk, as the legislator himself has foreseen some minor risks as a misdemeanour of vexation. Manuel therefore engages in three conducts that are objectively typical for the purposes of the misdemeanour of minor vexation. At the same time, there is data to also subjectively impute these same conducts, as Manuel represents in all of them the risk he is deploying (as can be seen by knowing that he is involved in the course of an argument and uses fighting, insults and kicks as weapons to defeat his adversary, which requires the adoption of rules of experience regarding the effect of his own blows, words and gestures): his conducts are thus subjectively imputable. As they are (minor) aggressions against very personal legal assets, it is not appropriate to group them all together in a single offence, as this would mean failing to provide the protection that the legislator intended to give to such relevant assets (thus avoiding disproportion by default). However, as we shall see below, as much more serious conduct is also committed, the disvalue of the latter can absorb that of the minor ones.

III. Thirdly, let us analyse what makes reference letter phase 5 (the two shots). The use of the firearm is a condicio sine qua non of the results produced; specifically, of the death of M.ª Luz, as well as of the danger in which it places Manuel (as we are not told of the damage to property caused to the walls of the premises, for example, we do not go into these). Objectively speaking, this causal factor displays a typically relevant risk for the purposes of the crime of homicide (art. 138 PC), because the legislator wants to prevent deaths caused by aggressive behaviour without ruling out at all those carried out with weapons such as a revolver. As they are two different shots, they are two different risks against the property at which they are aimed. Another thing is that each of these two risks follows a different course: the first shot is not fired at the result of someone's death, so it would be an attempt (with respect to Manuel); while the second shot is fired at the result (with respect to M.ª Luz), as the wounds as described lead to instant death. We are therefore talking about two separate types of crime (concurrence in fact): one, attempted murder; and the other, completed murder.

IV. When we look at the subjective imputation to Manuel of both types of crime, we find an additional problem. In effect, just as the first shot (which remains an attempt) is malicious because Manuel uses rules of experience that any adult has about the use of firearms, their harmfulness, lethal capacity even at long distances, etc., in the second shot there is a divergence or error. The second shot was aimed, using the same rules of experience, at Manuel, but it ended up hitting another person (Mª Luz). Here there is a divergence between what is represented (risk to Manuel) and what is produced in extramental reality (the death of Mª Luz). In turn, we can reproach Manuel for having fired even though there were people in that place whom he could have hit "by ricochet" or "by missing the shot". In the behaviour of the second shot there is therefore an error or divergence between what is represented and what is realised; but at the same time there is a divergence between what was represented and what is achieved: a risk is represented for José Manuel, and he misses. In the second shot, the conduct involves two typical risks: one of homicide that remains an attempt (note then that with respect to José Manuel there are two successive attempts, one for each shot), and another that hits a different target by mistake. This error can be considered as overdue insofar as his own error is imputed to him (not his bad aim, but having fired in an environment where there were people), which opens up the possibility of making him manager for the death of Mª Luz as reckless homicide (art. 142, and not art. 621.2, as it seems to me that serious recklessness is defensible, when shooting where there are people nearby). It is not defensible, in my opinion, to argue that the whole can be punished with a single typical conduct of intentional homicide (if what Manuel was looking for was to kill, he has achieved it: intentional homicide), as this would leave all the conducts carried out without adequate punishment: this would mean proceeding like the old figure of dolus generalis, which grouped everything together in a single conduct, which would be disproportionate by default. Nor can it be argued that the death of Mª Luz should be punished as intentional murder and leave the attempted death of José Manuel unpunished, as this would also be disproportionate by default. This would be correct if it were an irrelevant error in persona (two subjects equally protected by the law), but the case in question is more of an error in the trajectory: her second shot is going to hit a different target because the trajectory or the blow is deflected (it is a case that responds to the model of aberratio ictus). In order to punish him appropriately, it is necessary to assess both what refers to the death of Mª Luz (reckless homicide), and what refers to the attempt to kill Manuel (attempted homicide). Both conducts, objectively and subjectively typical, are considered to be in ideal competition.

V. With regard to this competition, the penalty to be applied is that corresponding to the most serious aggravated offence: the attempted murder (lower penalty of Degree, as it is completed: imprisonment of five to ten years less one day) in its upper half (imprisonment of seven and a half years to ten years less one day); but always up to the limit of the penalty of both offences punished separately. Thus, if the judge considers that, due to the seriousness of the act and the culpability of the offender, only the minimum sentence (two years' imprisonment) is deserved, and that of the attempted murder was also the minimum possible for the same criteria (five years), the sum of the two would be seven years. As it is less than that corresponding to the aggravation of the most serious penalty (imprisonment of seven and a half to ten years minus one day), the penal code provides for the "breaking of the competition" and setting the penalties separately (art. 77.2). At the same time, it should be noted that it enters into real competition with the responsibility for the first attempt, the shooting of Manuel, which was also unsuccessful (again, the penalty is lower by Degree, as it was completed: imprisonment of five to ten years, minus one day). He will have to answer for attempted murder (arts. 138 and 16 PC), in real competition with an attempt in ideal competition with reckless homicide (arts. 138, 16 and 142 PC). The initial vexations would, in any case, be absorbed by the disvalue of the conduct of homicide and its penalties.

VI. Fourthly, a reference letter on Manuel's failure to provide assistance to M.ª Luz. It could be argued that, if she had died instantly, as is stated in the facts, she was no longer in status of helplessness which makes it necessary to provide help. Even if this is not accepted, there would not be a crime of omission of assistance either, because the perpetrator of a previous fraudulent risk becomes manager for this fraudulent course, in active commission, and not for failing to provide a subsequent conduct. The latter would be displaced by the previous intentional commission. We know that the interference that gives rise to a position of guarantor is imprudent or fortuitous; and not intentional, which gives rise to liability for the respective previous intentional commission subject .

VII. data There is no reason to doubt the unlawfulness of Manuel's conduct (it is not possible to speak of justification by legitimate self-defence, due to the enormous difference in the means employee to repel an aggression), nor of his guilt and punishability. In final, Manuel would have to answer for an attempted murder in real competition with a second attempted murder in ideal competition with reckless homicide. For the resulting penalties, I refer to what has been discussed above.