C.67a - Zalba case

In the facts presented to us as proven, we can identify the following structure: A group of hunters began a wild boar hunt in a snowy area, using shotguns loaded with shotgun pellets. In the course of this hunt, José Manuel shot a wild boar which he hit and wounded his father in the head and neck with the impact of the shotgun pellets. After this episode, José Manuel fled the scene, without giving financial aid to his father, who died 40 minutes after the shot.

We will focus on the behavior displayed by José Manuel: the rest of the hunters would incur, at most, in a management assistant infraction for hunting when it has snowed and for using shotguns loaded with buckshot (both behaviors are prohibited by the foral hunting legislation). Hunters who try to revive Manuel when they find him wounded will not be the object of our analysis either.

We must first analyze whether shooting in these circumstances constitutes conduct in the criminal-legal sense or not. Since it is not a purely physiological act (shooting is not an act of man: in which case, common parlance would speak of "the gun went off"), it must be conceptualized as human conduct. It is also external, since it does not remain in the subject's thoughts (in his internal regional law ), but manifests itself externally. Moreover, it is susceptible to self-control: it enjoys alternatives when it comes to acting. There is no element that makes us think that there was irresistible force, reflex movements or unconsciousness at the time of acting: on the contrary, to load the shotgun, sight the prey, aim and shoot requires a quite considerable Degree attention. Therefore, we conclude that the judgment of the conduct is positive: there is conduct in the criminal-legal sense.

Secondly, we will rule on objective imputation. Applying the heuristic formula of condicio sine qua non, we observe that, if we mentally suppress the conduct of shooting, the result would not occur. This is a first step, necessary, but not sufficient: the same could be deduced if we mentally suppress the behavior of going hunting, etc. We therefore move on to the analysis of the typically relevant risks that are deployed and their realization (or not) in the result.
The fact that it is forbidden to hunt in snow makes us wonder whether it is possible to relate in a legal sense (i.e., whether it constitutes a typically relevant risk of homicide, injury, etc.) hunting when it has snowed and hunting with buckshot. What is the purpose of the rule management assistant prohibiting hunting then? In other words, what is the purpose of protection of this rule? It seems that the aim is not to protect human life, but rather to respect game species: logically, they become more vulnerable in such conditions. But the rule prohibiting hunting with shotgun pellets does intend, albeit indirectly, to protect human life: the relevant risks to human life and integrity are increased when using this type of ammunition in a hunt. However, we are dealing with administrative regulations (whose infringement would entail a sanction in that order, which is not appropriate to analyze in this case). In other words, we are dealing with a peripheral protection of personal legal property, which is also intended to be achieved through the types of homicide, injuries....
With the shooting (in addition to violating the aforementioned administrative regulations), the following typically relevant risks are being created: homicide, since shooting with a shotgun with a pellet can generate this risk, if a person is nearby (arts. 142 and 621.3 PC); serious injury (in the event that the risk of homicide is not realized, someone could be injured; arts. 152 and 621.3 PC); and property damage and harassment (subsidiarily; arts. 267 and 620.2 PC).
We see that, in the result, the aforementioned risks are realized: at first, serious injuries are caused and, later, Manuel's death. Given the seriousness of these offenses, we can argue that the subsidiary types (vexation and property damage) would be absorbed by the disvalue of the most serious conducts and will not be subject to further analysis. Therefore, in this case, we observe that, objectively, José Manuel can be charged with a crime of serious injury and even a crime of homicide. The risk of homicide, carried out in the result, would also absorb the risk of injury, which is a progressive infraction in the homicide as a whole. Therefore, it would not be necessary to separately punish the injuries, but it would be sufficient to punish the homicide.

Third, let us now analyze whether the subjective imputation of these crimes to José Manuel is appropriate. In this case, we see that it seems risky to assert that there is malice on the part of José Manuel in the conduct of shooting at his father. We see that what the subject represents to himself is to shoot at a piece of game (as, in fact, he succeeds in doing). Considering, then, that there is a clear divergence between what the subject represents ex ante (hunting a wild boar) and the reality ex post (wounded boar; father wounded in the head and neck), we can affirm that we are faced with an incongruent subject . It would be necessary to analyze, therefore, what kind class error we are facing. It is not an error in objecto: the subject intends to hunt a wild boar, which has been sighted, and is in the crosshairs, and so it happens. But, because of a deviation of the shot (due to the ammunition that has been employee), an error has occurred in the hit or in the trajectory of the shot (i.e., aberratio ictus). In other words: he is not mistaken as to the identification of the object, but as to the trajectory of the shot.
The shot is fired knowing that it is fired at a wild boar (it is, therefore, malicious); it is not, on the other hand, malicious to shoot at a person, whom, due to a defect in the trajectory, he has not considered as a possible victim of the shot. Regarding the fact that the shot reaches a person, it is in error. In order for the conduct carried out in error to be imputable, we know that the error must be of an overdue nature. Let us move on to study the expirability of the error. It seems appropriate to recall here that we are dealing with a group of more or less experienced hunters (otherwise, they would not have employee hunting posts). Another fact to take into account is the age of the active subject (30 years old) and, above all, that of the victim (almost 70 years old, an experienced hunter). With all this, we can see that José Manuel should be aware of the risks that his conduct of using hunting stakes may entail. The risk is created in a reckless manner, since there is a violation of the rules of care, coupled with an error in the shot. Thus, we see that, subjectively, a reckless homicide would be imputable to him (art. 142 PC).
In the final, the shooting involves the following risks: those of the respective administrative infractions of hunting (risk covered by the intent of the agent), the risk of homicide (risk not covered by intent, but by recklessness). And it is a single action (shooting) that deploys these two typical risks, one consummated with malice (hunting infraction) and the other also consummated with recklessness (wounding a person).

Then, José Manuel, faced with what has happened, decides to abandon his wounded father and to run towards the road. The analysis, in the first place, of the behavior offers no problems: it is a human act (therefore, it is not an act of man), external (it is not a thought, but an action that, having its origin in the fear of being blamed for the death of his father, manifests itself in an external event) and susceptible to self-control (he could have acted in another way, e.g., helping his father to get out of the status in which he has involved him).

Secondly, as regards objective criminality, since it is an omissive subject , it is not necessary to analyze the condicio sine qua non: there is no conduct to be mentally suppressed (since the non-doing has no cause). If anything, it would be necessary to resort to a condicio cum qua (a condition that mentally provided makes the result disappear), if I may use the expression.
What we cannot dispense with is the analysis of objective imputation, which requires: A) a typical status from which a duty to act arises: in principle, the conduct of leaving a person abandoned after having caused an accident, could fit into the essay del subject of art. 195.3 CP. But it is also necessary to consider whether, moreover, it is a position of guarantor that, in certain cases, justifies liability for the result produced, in commission by omission. In our case, it can be justified that we are not dealing with a mere pure omission, because the hunter has created a risk that intrudes into the legal sphere of the victim, and is obliged, in addition to interrupting it (which would not make sense here), to act on behalf of others to lessen the harm, to help, etc. But it is doubtful that this is a position of guarantor that justifies liability for the result, in commission by omission. Note: "a position of guarantor founding liability for the result", because either because of the parental relationship (father-son), or because of the community of danger (hunting party), or because of the interference (shooting with shotgun pellets), it can be said that there is a position of guarantor, that is, that the hunter is above the citizen outside the conflict, he is in a privileged position to help. But this does not establish liability for commission by omission result in death. The mere position of guarantor does not suffice for this identity (which, let us not forget, allows punishment with the same penalty as if it had been actively caused). The reason is that, in order to reach this identity (which gives rise to the penalty for active commission) a more intense guarantor position is required: this is what is meant to be expressed by the idea of commitment. Specifically: a position of guarantor gives rise to liability for the result not avoided in commission by omission, when there was erga omnes a specific and effective commitment on the part of the guarantor to act, as a risk containment barrier, to protect or insure third parties. And here it seems difficult to affirm such a commitment. This does not mean denying that there is a guarantor position, but that it is not of such intensity: it would then give rise to a crime of pure omission (in which the manager is the mere omission, and not the result) of guarantor, of intermediate gravity between simple pure omissions and commission by omission.
To the previous requirement must be added, B) the omission of the due action, of protection or assurance, which in this case does not raise doubts. And C) the individual capacity to carry out the omitted action of protection or securing, which José Manuel could have perfectly carried out (it is not an obstacle that by doing so he would be incriminating himself of having shot his father, since he could have left the place but first demanded help from others: art. 195.2).
In conclusion, it can be argued that his flight from the scene constitutes a pure omission of guarantor of the duty to assist (or pure qualified omission): art. 195.3 PC.

As to whether this omission is subjectively imputable, thirdly, I believe that there is little difficulty in understanding that we are dealing with a fraudulent omission on the part of the agent. There is no divergence between the representation that the subject has (not in vain, he thinks that his father may die as a result of the gunshot) and what actually happens. The omission is fraudulent.

In short, we would be faced with a real concurrence (since we are dealing with two separate events in time) between the following crimes: a crime of reckless homicide (art. 142 PC) which, in turn, would enter into a sort of ideal concurrence with the administrative infractions derived from the use of posts and hunting with snow (but note that this solution is merely structural, since crime and management assistant infraction are not punished in concurrence). In addition, a crime of omission of the duty to assist (art. 195.3 PC), which could be aggravated by the concurrence of kinship (art. 23 PC).