C.58e - Brick case

I. Two phases can be distinguished in these events. First: David picks up a brick and throws it at Jorge without hitting him. Second: David, instead of fetching a second brick, throws a bottle offered to him by Estela at Jorge, but Jorge moves and the bottle hits Susana in the face, causing her some serious injuries. Apart from this, the previous argument between David and Jorge is not relevant for these purposes.

II. On these facts, and without modifying them, the following can be said about the criminal liability of David and Estela (we will barely refer to Jorge, as we understand that his conduct does not present problems of liability; nor to Susana, the victim, of whom nothing more is said in the facts to have been done).

II.1 . First of all, we ask ourselves whether David and the others engage in human behaviour. At all times David makes several choices (brick, throw, aim, second brick, accept the bottle, throw again...), as does Estela (who sees him, and offers him the bottle), so we can see self-control in them. Moreover, there is nothing in the facts to doubt that, by irresistible force, reflex movement or unconsciousness. At final, we have to conclude that David and Estela carry out human behaviour. Let us now see whether they are typical.

II.2. For David, the first throw (brick: A) and the second throw (bottle: B) must be separated.

A) With regard to the throwing of a brick at a person, we can understand that this factor represents ex ante: i) a risk of mistreatment, given that we do not usually treat each other with blows and by throwing bricks (art. 147.3); this also constitutes ii) a risk of injury as it is a suitable instrument for causing bruises, wounds and even fractures (art. 147.1); furthermore, iii) the brick can be seen as a dangerous instrument, so that we are dealing with a risk of injury with dangerous means (art. 148.1). I understand that this is not a typically relevant risk of homicide, as a single throw, without further details, is hardly seen as lethal, although it is seen as seriously injurious. Considered ex post, we see that i) the risk of ill-treatment is consummated directly with the mere conduct, without a separate result ; and that ii) the risk of basic injury is not realised in the result, as David misses the shot; likewise, iii) the risk of injury with dangerous means is also left without result for the same reason. Of the three conducts, it can be understood that they are carried out with malice, as any minimally enlightened adult knows that objects like this are blunt, that they have edges that can cause serious injuries, and even cuts. This is because every adult has experience of such objects in everyday life. The fact that the risks were not realised on result does not detract from the fact that there is an attempt. But it would be excessive to consider three offences, so that attempt (iii) of injury by dangerous means could already include the risks of ill-treatment (i: by consumption) and of basic injury (ii: by specialization program). At final, we can state that David's conduct is objectively and subjectively typical of attempted GBH.

B) Regarding the throwing of the bottle at a person, we can affirm, as in A), and for the same or similar reasons, that it constitutes risks of ill-treatment (art. 147.3), basic injuries (art. 147.1) and injuries with dangerous means (art. 148.1). Here, too, we do not see a risk of homicide. As far as Jorge is concerned, these risks are not consummated, but remain an attempt; and they are imputable as intentional, for the same reason as we have seen in A). As far as Susana is concerned, on the other hand, all three are realised: that of ill-treatment is consummated from the beginning, and the other two are consummated with the production of result. However, a problem arises in his subjective imputation: the launch fails and impacts on Susana: error in obiecto vel in persona, or aberratio ictus? Of course he gets the victim wrong (Susana, instead of Jorge), but even before that there is an error in the aim or trajectory of the blow. In fact, his representation is that the projectile follows a line from his hand to Jorge's person, and this does not occur because Jorge moves and ducks, so that the bottle passes by, and reaches Susana, who is hit in the head. I understand that, since David does not represent the full pathway of the projectile, it is an error in the trajectory or aberratio ictus. And this requires giving entrance to two risks: on the one hand, the throw against Jorge, which remains an attempt; and on the other, the throw against Susana, which had not been represented. The fact that it was not represented prevents it from being charged as intentional, but leaves open the possibility of it being considered reckless, based on the fact that throwing a bottle in a commercial place, in which there are several people, means creating new risks, also for these people. If he did not represent it to himself, but it was up to him to represent it to himself and it was possible to overcome the error, we can affirm that it is of a forgivable nature and that it falls on an element of subject; this error is also foreseen for basic injuries (art. 152.1.º, for 147.1), so that these injuries would be imputable as negligent. But it is a single throw, so we can see it as an action that deploys two different typical risks at the same time, one for Jorge and the other for Susana. We will come back to this later.

II.3. As for Estela, we focus on the fact that she provides the object of the second throw (bottle) to the person who was already determined to throw an object at his victim. This contribution is relatively relevant to the risk created by David in the second phase; and it is also malicious. Its malicious character is apparent from the fact that she herself spoke and provided a blunt means right after the throwing of a brick, all of which is evidence that David's risk and her own risk are represented as being added together. It is arguable whether her malicious contribution also covers the effect of the second throw on Susanna: it is not excluded that, like David, she too is in error about the possibility of failing and creating new risks. Her conduct can be qualified as an intervention in the main event, that of David. But with a qualitatively lesser character in entity: she cooperates in a non-essential or non-necessary way. I am inclined to think that it is a contribution of complicity (art. 29) in David's conduct.

II.4. As to whether the conduct of one or the other is justified, the previous discussion is not an aggression that justifies the subsequent conduct, so the conduct of both cannot be seen as legitimate self-defence: it is unlawful. There is nothing in the facts that leads to doubt their guilt, as they are imputable, know the rule in subject as obvious as the prohibition of hitting someone, and are not found in status extreme that makes it unenforceable. Therefore, David is guilty of the typically unlawful conduct of injury; and Estela is guilty of his complicit conduct.

II.5. David's conduct is carried out at degree scroll individually, without him having agreement with anyone as to how to carry out the aggression, not even in the second throw. In this second launch he has Estela's financial aid , but it is not a contribution on which there is mutual agreement and that she enters into the realisation of the subject with distribution of tasks. As mentioned above, this would be a case of complicity in David's crimes.

II.6 . There are no perceived factors that condition the punishability of their actions, so that David and Estela's conduct is punishable. It is now time to see how to punish everything that has been done. With regard to the first phase, David would be liable for the crime of attempted assault and battery with dangerous means. To these is added, in real concurrence, in the second phase, an attempted assault and battery with dangerous means, in ideal concurrence with reckless injury.

III. In final, David must answer for the crime of attempted dangerous injuries, plus intentional injuries in ideal competition with reckless injuries. And Estela would be liable as an accomplice to David's crime in the second phase. Both should also face civil liability for the effects caused by their conduct.