C.73 - Joe & Jack case
"Joe and Jack, who hate each other, meet in a saloon in a Far West town. Joe decides to shoot Jack dead without his knowing it. In turn, Jack has decided to kill Joe, unbeknownst to Joe. Jack shoots. Joe falls dead, at which point it is realised that he was aiming the gun at Jack. He would have succeeded in killing him had he not been shot first".
(Doctrinal case, described in Silva Sánchez/Baldó Lavilla/Corcoy Bidasolo, Casos, p. 209, b-4).
What relevance does it have that Jack is unaware that he is being targeted?
I. It deals with the facts of a well-known academic case, in which we ask ourselves about the responsibility of the survivor, Jack, for having decided to kill Joe, having aimed and shot him with his revolver, which results in his death. It later transpired that Joe was about to kill Jack, of which Jack was unaware.
II. On the basis of these facts, and focusing above all on the goal-subjective problem of justification, the following can be said about Jack's responsibility.
II.1. There can be no doubt about the existence of human conduct on the part of Jack. Furthermore, his shooting constitutes a risk inherent to the crime of homicide (art. 138), or murder (art. 139) since he shoots by surprise (malice aforethought), which is carried out at result. There is malice aforethought on his part, because any cowboy knows the harmful potential of a revolver, and he also knows Joe's position, who he is aiming at.
II.2 . From here, a problem arises. Although Jack does not know it, a serious danger was looming over him: Joe was aiming at him, and was going to shoot him moments later. Therefore, although Jack does not know it, he is in a statusthat would give rise to self-defence, had he known it. This statusmust have an influence on Jack's responsibility, as being a murderer (art. 139) is not the same as killing someone when he was aiming a gun and was going to shoot a moment later.
If we pay attention to the idea that the agent mentally draws up, we can see that Jack is representing a conduct of killing by surprise (ex ante), although in the extramental reality (ex post), this statusdoes not occur, as this conduct would be justified by legitimate self-defence. There is therefore a divergence statusbetween what is represented and the external reality. All this with the peculiarity that it is a permissive rule(legitimate self-defence).
II.3. This divergence is highlighted by the lack of representation of the typical nature of self-defence: Jack does not realise the "defensive" nature of his shot. He represents himself as committing a murder, even though the law would grant him a Schoolto act in self-defence, so that his conduct would abandon the typicity of murder and would be that of the subjectof self-defence. The structure that arises is parallel to that of the attempt in terms of prohibitive and prescriptive rules: in these, what the agent represents himself to be killing, although he misses the shot and does not succeed; and Jack represents himself to be committing murder, although his representation on the statusfails as he does not realise the aggression he is suffering, so it would not be murder. Ignorance of the factual status(a different case from C.72, of erroneous supposition of the factual assumptions: not to be confused!) gives rise to what is typical of a structure we already know, that of "attempt".
This is what is typical of the latter: disvalue of the conduct ex ante, but without disvalue of the conduct ex post. As such an attempt (arts. 16.1 and 62), it would give rise to a mitigation of the penalty for murder by a reduction of one or two points Degrees.
But how is it possible to affirm attempted murder if it is obvious that there is a corpse, a dead person? To understand this, we must remember once again that the subjectis an abstract description of a conduct valued by the legal system. It is not a mere description of a variation in reality, but a evaluationthat the order makes of that variation. Joe's death "escapes", so to speak, the subjectof Jack's murder, because it does not represent what would make that shooting a plenary session of the Executive Councilmurder, consummated: the absence of causes of justification.
II.4. There is no datato cast doubt on his guilt, nor on the punishability of the conduct.
III. In conclusion, Jack is managerfor the conduct of attempted murder Degree.
In final, we can define the causes of justification as situations of crisis for legal goods which, existing ex anteare confirmed ex postand that the legal system decides in favour of the overriding interest. Determining when the interest is overriding is the subject of the next lesson (see below).L.8), which deals with the study of causes of justification in particular.