LESSONS

C.11 "Chiclana" case

C.12 "Braking" case

C.13 The "gatekeeper" case

C.14

"In the early hours of 31-1-1994, when the defendant, Antonio E.O., of legal age and with no criminal record, was with his mother, Maria Antonia O.L., aged 78, inside the house located in calle Nuestra Sra. de los Angeles nº 3, Creixel, whose door and windows were all protected by bars that isolated it from the outside, for reasons that have not been determined, a fire started in the dining room of the house that spread rapidly through the aforementioned room; in such a way that, when the inhabitants became aware of it, it was impossible for them to access the outside, which led them to take refuge in the room furthest away from the fire. At status, as the defendant believed that they were both going to be burnt to death, in a state of panic, and in order to spare his mother further suffering, he hit her hard on the floor, where she was left unconscious, and then tried to crush her by throwing the bed and a wardrobe on top of her. Shortly afterwards, alerted by the smoke and the cries for help, a patrol of the Municipal Police and several neighbours arrived at the scene who, after breaking the bars of entrance, were able to put out the fire; rescuing the old woman in a coma, with severe cranio-encephalic trauma, while Antonio E. left the house on his own feet, in a state of great nervous excitement". (SAP Tarragona, 3rd Section, 4th October 1995; pte. Aparicio Mateo; ARP 1995\991).

C.15

"On 27 July 1997, at around 9.15 a.m., the accused Gonzalo A.P. was driving the car Seat Córdoba enrollment C-...-BG, when as a result of the accumulated tiredness due to not having slept at all the previous car, he lost control of the car, which completely invaded the opposite lane, delimited by a continuous line, where the car Ford Fiesta enrollment C-...-BK, driven by its owner Mrs. Josefa Francisca S., was driving on the right-hand side of the road, who died as a result of the heavy impact". (STS 8 May 2001; pte. Julián Sánchez Melgar; RJ 2001\7044).

C.16a

"At around 6.15 p.m. on 17 October 2000, the accused Romeo, of legal age and with no criminal record, a local policeman with the Colmenar Viejo Town Council, was on duty in Corazón de María Street, accompanied by officer issue no. .... At that time, he went to Alejandro, asking him to accompany him to the police station for a traffic fine and for the purpose of identification. Once at the police station, Alejandro was taken to a room, where he was waiting, together with Romeo, for a relative to arrive with his documents staff and that of the moped he was driving: Minutes later, Alejandro's brother, Vicente, arrived at the police station. After being asked to remain in the reception and waiting area, and having heard his brother shouting in a room located at the end of a corridor, he rushed there, followed by the local police officer issue no. ..., until he burst into the room violently, opening the door with a bang. When the accused saw Vicente enter, he grabbed him by the shoulders and sat him down on a bench there, telling him to stay still and calm down. At the same moment, Alejandro approached the accused, which prompted officer No. ... to shout to his colleague to be careful. Hearing this, the accused, believing that he was going to be assaulted, punched Alejandro hard in the face as he turned around, causing him injuries. Alejandro suffered, as a result of the blow, the fracture of the bones of his nose [...]" (STS 17 September 2004; pte. Colmenero Menéndez de Luarca; RJ 2004/5746).

C.16b

"On 3 December 2000, at around 1.54 a.m., the Guardia Civil headquarters informed patrols in the area, notice , of the sighting of a boat suspected of illegal transport of immigrants and/or drugs that was heading towards the area known as "el tolmo" in the municipality of Tarifa (Cádiz). A total of twenty undocumented immigrants of Moroccan origin were on board. The immigrants, once they had disembarked on the coast of Tarifa, began to walk away from the coast, unaware that they were heading towards an area where several civil guards had immediately arrived after receiving the notice from the headquarters. Among these officers was the accused, the civil guard D. Gregorio, of legal age and without a criminal record. Once the officers, with the help of a night vision device, were able to see the arrival of a large group of people, group , the officers dispersed. After hearing the shout of "stop the Civil Guard", a chase began in the course of which one of the immigrants, Romeo, in his solitary flight, was pursued by the accused, Gregorio, who at the time was carrying a torch. In the course of this pursuit, as Romeo continued to run without heeding the officer's stop orders, Gregorio took out his service weapon and fired an intimidating shot into the air, which brought the immigrant to a halt in front of an embankment. At that precise moment, Gregorio approached from behind with the gun in one hand and his finger on the trigger, without having set the safety catch on any subject and the gun being in a fit condition to fire, and a torch in the other, and grabbed Romeo by one of his arms. Romeo turned at that moment and Gregorio lost his balance as a result of the slippery and wet ground and the slope of the site. During his fall to the ground, Gregorio reflexively pulled the trigger and the gun went off. As a result of this shot, a bullet hit Romeo in the posterior axillary area, at the height of the 5th rib, after grazing his left arm. This caused a hypovolemic-hemorrhagic shock, as a result of which he died". (STS 26 October 2009; pte. Jorge Barreiro; RJ 2009, 5755).

C.17a

"At around 9 a.m. on 20 July 1996, the accused Cándido G. M., of legal age and with no criminal record, when he was in Outeiro, Doniños, judicial district of Ferrol, having his Schools of knowledge and will completely and utterly disturbed as a consequence of an epileptic seizure, an illness that was diagnosed after these events, grabbed his wife Verania G.S. by the hair, hitting her on the head with several blows with his hands, After pulling her out of the caravan they were in, he hit her on the head with an iron mallet, causing her to suffer a 3 by 4 centimetre bruise on the lower right occipital area, with no skin lesions, and she fell head first against a car door, causing a 2 by 4 centimetre bruise on the right front of the head. As a consequence of these events, she was admitted the same day to the residency program She was diagnosed with cerebral oedema secondary to cranial encephalic traumatism, requiring treatment for cerebral oedema, which took 20 days to heal, with medical care at attendance during the same period, and with no sequelae". (SAP La Coruña, 25 November 1998; pte. Mosquera Rodríguez; ARP 1998/4297).

C.17b

"The Provincial Court of Malaga tried V.L. accused of killing his wife and mother-in-law and of trying to kill his two children when he thought he was being attacked by ostriches. The Public Prosecutor's Office is asking for 10 years of internment in a suitable centre, considering that that night V.L. was under the effects of a sleep disorder called parasomnia. The family, acting as private prosecution, asked for 20 years imprisonment for each murder offence and 15 years for each offence in Degree of attempt. The trial began in the First Section of the Audiencia in October 2003, although it was suspended after apply for both the private prosecution and the Public Prosecutor's Office asked the accused to undergo new specific tests on the sleeping sickness he allegedly suffers from. The events took place in the early hours of 11 January 2001. V.L., "believing himself to be attacked by ostriches", got an axe and a hammer and attacked his wife and his mother-in-law; although, according to the prosecutor's provisional conclusions, "with the awareness that he was hitting the attacking birds". He also hit his daughter, whom he did not manage to kill "despite his intention to do so", as he directed his blows at vital areas. The injuries took 210 days to heal and required surgery. He also assaulted his son with the intention of killing him, although he only hit him in one ear. Subsequently, V.L. tried to commit suicide by jumping into a car. For the public prosecutor, it is a question of two crimes of murder and two other attempts and he asks for a compensation of 24,500 euros for the daughter and 600 euros for the son; as well as 73,000 euros for the heirs of the two deceased". source: MalagaDiario.com Wednesday, 31 January 2007.

C.18a

"In the early hours of the morning of 20 February 1997, the accused, José Antonio S. S., who works as a professional civil guard, in group Rural Security No. 5, based at the Civil Guard Barracks in Casetas, while on duty from 11 p.m. on the 19th until 6 a.m. the following day, before going on duty, drank a glass of pacharán after dinner. At the start of the watch, he went to the classroom where he usually works on standby duty, at which time his fellow civil guard, Antonio M. R., was resting inside the classroom . At approximately 4 a.m., with the area half-darkened but with sufficient visibility to be seen, he was seated on the sofa M. R., and at a short distance and diagonally across the room from him on the sofa. and a short distance away and diagonally, the accused was resting in the chair, who, being in a dreamlike reverie or nocturnal terror, mounted the gun, inserted the cartridge in the chamber and fired, hitting his partner M. in the right thigh and in the abdominal region. The injuries caused were to the root of the right thigh and the abdominal region, which took time to heal with surgical treatment, 2 days of hospitalisation and 42 days of medical treatment at attendance with stabilisation of the injury and total incapacity". (SAP Zaragoza, 7 July 1999; pte. Cucala Campillo; ARP 1999\2816).

C.18b

Academic assumption: "during the visit to a exhibition of valuable Chinese vases, A. pushes B., who falls irremissibly on an exposed piece, which breaks into pieces".

C.18c

"John is driving his car down a street with a steep slope and wet pavement. Suddenly, when he tries to brake, the braking mechanism does not respond. The handbrake proved insufficient to stop the vehicle, so he performed an emergency manoeuvre, resulting in the death of one person. The expert report report reveals that the mechanical failure was due to an unforeseeable loss of brake fluid". (STS 31 May 1982; pte. Castro Pérez; RJ 1982\2743).

C.19a

"On 29 December 1994, Carlos C.T. carried out a real estate transaction, obtaining 82,500,000 pts. from the sale of a plot of land he owned, an amount that was not declared in its entirety in the 1994 Personal Income Tax return, in which only 40,000,000 pts. was declared accredited specialization for this concept. Likewise, during the 1994 personal income tax year, the accused subscribed to a total of 106,100 units of the so-called Multivalor Investment Funds that Bankpyme put on the market, for a subscription value of 118,500,000 pesetas. which he finally exchanged for 1,061 bearer securities on 28-1-1995. These amounts do not appear in the ordinary Personal Income Tax and Extraordinary Wealth Tax returns for 1994 and 1995", so that it is estimated that he failed to pay amounts totalling 37,559,082 pts. and 41,949,031 pts. for Personal Income Tax and IEPPF, respectively, for said procedure ". (STS 29 September 2000; pte. García Ancos; RJ 9251/2000).

C.19b

"It is declared proven that the accused María del Valle J. E., of legal age and without criminal record, in the years 1999 and 2000 occupied the position of administrator of "Hormigones Villacañas, SL" and "Hormigones Olmo Jara, SL"; and on March 30, 2000 the also mercantile "Estación de Servicio Tarays Gastarays S.L", filed an executive lawsuit against "Hormigones Villacañas, SL", documenting the debt in a promissory note for the amount of 3,758,926 pesetas against Caja de Castilla-La Mancha, with maturity on December 23, 1999, which was unpaid before the Court of 1st written request No. 1 of Quintanar de la Orden. In addition, the lawsuit requested the seizure of several vehicles in the foreclosed company, among them the Volvo Tractor, M-....EV, which was registered in the name of said company, and in order to avoid the impending seizure, knowing of the non-payment and the existence of the debt and with the purpose of not being able to seize the vehicle to the detriment of the executor, she changed the ownership of the vehicle to the company "Hormigones Olmo Jara, SL" of which she was also a partner and administrator, frustrating the seizure and the possibility of collection". (SAP Toledo, 2nd Section, October 28, 2002; pte. Gutiérrez Sánchez-Caro; JUR/2003/42141).

C.19c

"The accused, Antonio, Mayor of the Concello de ... at the time of the facts, habitually managed with his neighbours the presentation of applications for subsidies from the so-called Plan de Cooperación con las Comunidades Vecinales de la Diputación Provincial de ... The aforementioned Plan, according to the information provided by the aforementioned provincial body, is specially designed to improve the rural environment of this province and allows the financing of various works to be carried out in Neighbourhood Communities and up to the limit of .... Such communities, however, do not have any regulation, nor do they appear registered in any public or private body, being simply a list of neighbours who sign the standardised official forms that are provided for apply for the subsidy and without any verification of the effective residency program of the signatories or of their belonging to one or another community. The provincial body, when it had determined the amount to be allocated to certain interested parties in the Council, informed the defendant so that he could make the corresponding requests. As he was aware of the previous system of aid, the defendant Antonio came to apply for as a neighbourhood representative of two different communities, for a total of four subsidies included, respectively, in the Plans corresponding to the years 2009, 2010, 2011 and 2012, with amounts exceeding €120,000 in each one of them. Once the grants were awarded, the accused cashed several cheques for a total amount of €500,000. The use to which the accused put these amounts has not been established. (Facts based on those of STS 1308/2003, of 7 January; pte. Giménez García; RJ 2004\1834).

C.19d

"The accused Rogelio, of legal age and with no criminal record, in his capacity as sole administrator of the company group Boca de Restauración Integral SL, leased to GEASA the business premises at 61 General Pardinas Street, with access to Juan Bravo Street in Madrid, by virtue of a contract entered into on 29 April 2009. Given the non-payment of rents, the landlady filed a lawsuit for Verbal Trial 2256/10 before the Court of First Instance written request nº 82 of Madrid, and on 9 March 2011, a sentence was handed down by virtue of which the lease contract was terminated, a fact known to the accused. After seeing the complainants advertised on portal Idealista.com the lease of the aforementioned premises with a transfer price of 135,000, several interviews and negotiations took place, and on 26 June 2011, the accused in his capacity as sole administrator of the company group Boca de Restauración Integral SL, acting for illicit profit, and pretending to be the lessee of the business premises located at Calle Juan Bravo 29 in Madrid, received from Estela and Alexander a cheque for 80.000 euros plus 14,000 euros VAT for the transfer of the aforementioned business premises without the transferor having any School of disposal or use over the same" (STS 514/2015 of 2 Sep. 2015).

C.14 "Fire" case

C.15 "Córdoba" case

C.17a "Mallet" case

C.18b "Elephant in a china shop" case

C.18c "Car without brakes" case

AA.1

As in continental law, a minimum degree of freedom is required in order to be able to assess the existence of an action (or omission). This does not apply if any of the general defences or grounds for exclusion of liability are present. The defences include reflex movements (reflex), unconsciousness (automatism) and irresistible force (duress), but in addition, general defences are also what in continental law are called causes of justification and causes of exclusion of guilt (which we will deal with in L7-L.11). Finally, Criminal Law provides for an extraordinary form of imputation, the

On the necessity of actus reus: Proctor v. State (Criminal Court of Appeals Oklahoma 176 P. 771) 1918; on the necessity of volition and general defenses: Peopple v. Grant (App. Court of Illinois, Fourth District 360 N. E. 2d. 809) 1977; on Anticipating Involuntariness: People v. Decina, (2 NY 2d. 133, 139-40, 138 NE 2d 799, 803-4) 1956.

VOCABULARY

• Actus Reus
• Anticipating Automatism
• Common Law
• Duress
• General defenses
• Involuntariness
• Mens rea
• Model Penal Code
• Reflex
• Volition

For starters: spanish medical residency program Puig, Criminal Law. General Part (various editions), Lessons 7 and 8.

For further information: Silva Sánchez, "La función negativa del concepto de acción. Algunos supuestos problemáticos (movimientos reflexos, actos en cortocircuito, reacciones automatizadas)", ADPCP 1986, pp. 905-933; Silva Sánchez, "Sobre los movimientos impulsivos y el concepto jurídico-penal de acción", ADPCP 1991, pp. 1-23.

Monograph: Joshi Jubert, La doctrina de la "actio libera in causa", Barcelona, 1992.

N.11 Human conduct as an element of crime.
N.12 Functions of the concept of action.
N.13 The subject of the action: the problem of criminal liability of legal persons.
N.14 Causes of absence of action.
N.15 Extraordinary liability in the absence of action (actio libera in causa).

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