C.72 - Case of the gesture

I. Gonzalo and Fernando argue. Gonzalo makes a move that Fernando misinterprets as aggression, and gives him a shove that knocks him down. The blow of his head against the ground eventually leads to Gonzalo's death.

II. On the basis of these intangible facts, the following can be stated.

II.1. The existence of an argument and Gonzalo's bending down to the ground show the existence of human conduct, and not a mere act of man. Fernando is engaging in human conduct.
II.2 . In order to analyse the criminality of Fernando's conduct, it is necessary to distinguish between what refers to a prohibitive rule (homicide, injuries...), and that of an optional or permissive rule (legitimate self-defence...). With regard to the possible prohibitive rule , and the respective types of commission, it can be affirmed that the push to Gonzalo is causal of death, as mentally suppressed there are reasons to seriously doubt the production of the result of death. But a push from a person who is not perceived as helpless, weak or vulnerable does not seem to constitute a risk of death. Otherwise, the multiple pushes received in sport, transport... would have to be considered as homicidal, which is not the case. It does not seem that the push creates a risk of death of the kind that subject of homicide aims to avoid. In other words: the precept that punishes homicide does not aim to prevent all deaths, even from third parties, but only those that create a risk of a certain relevance. But it is not an innocuous risk either, but one that is relevant for the purposes of other offences (injury, for example). Indeed, pushing and knocking someone down can cause at least some injury, which the respective subject (Art. 147) aims to prevent. And such a risk (pushing) is indeed realised in the result (head injury), so that the objective facet of the subject of injury can be affirmed.
In its subjective facet, the injuries can be attributed to degree scroll of malice, because Fernando is aware, as we are told in the facts, that he pushes Gonzalo, precisely when Gonzalo ducks. There is sufficient risk knowledge for us to be able to speak of intentional injuries, at least with malice aforethought, subject to what can be said about possible causes of justification.
II.3. As for the possibility of the existence of an optional rule (cause of justification), the following can be stated: Fernando has injured, and injured with malice aforethought, but his conduct, for the purposes of the analysis of typicality is not complete if one does not also take into account that of a subject of a cause of justification. In this case, Gonzalo's movement gives Fernando cause to reject him, so we can deal with a possible legitimate self-defence. In its objective facet, the subject of this cause of justification requires the presence of an illegitimate aggression. It seems that Fernando had reason to believe this, to believe he had been attacked, due to the previous argument. But this aggression was imagined and not real, so he reacts by representing the previous aggression, he reacts by believing that his blows are constitutive, not of an injury, ill-treatment or any offence, but of a "defence". It can thus be seen that Fernando is mistaken about the factual elements (illegitimate aggression, in this case) that would give rise to a justification of legitimate self-defence. This error is a divergence between his representation of the status ex ante, and the reality ex post of that status, and results in result that the subjective remains below the goal: in effect, he does not represent what was really happening, that Gonzalo was bending down perhaps because he was sitting down, or because he was going to tie his shoes, or for whatever reason - and certainly not because he was going to attack him. That is, Fernando does not represent the aggressive nature of his behaviour, but represents it as a defensive behaviour. This status gives rise to an error regarding an element of the subject of a justification cause (the existence of an unlawful aggression), and will therefore give rise to an error regarding these elements. Specifically, it would be treated as an error of subject (of the respective subject that was initially given, before taking into account a possible cause of justification), and will give rise to the regime of such errors. Thus, if the error is overridable (which will have to be decided on the basis of what any person in his status, and what he, with the background he had, would have represented to himself) and, as the reckless modality of the injuries is foreseen (art. 152), it would be possible to punish Fernando's conduct as reckless injuries. In conclusion, the injuries caused by Fernando constitute the offence of reckless assault and battery.
II.4. Nothing is said in the facts to deny culpability.
II.5. There are no grounds for non-punishability in these cases. Therefore, Fernando is guilty of the offence of reckless assault and battery, which is punishable.

III. At final, Fernando is manager for the crime of reckless injury (art. 152). It is not possible, as stated above, to objectively charge the death as manslaughter.

Cf. C.51.