LESSONS
L.12 - Authorship
STRUCTURE
I. The concept of authorship.
II. Individual authorship.
III. Co-authorship.
IV. Perpetration-by-means.
V. Acting in the place of another and Article 31 of the Criminal Code.
VI. Authorship in crimes committed through printing.
Who was it (I)?
So far we have been able to determine various aspects of the case we are dealing with: the person who has been found lying on the ground. Everything discussed so far (conduct, objective imputation, subjective imputation...) all concur in a subject whom we consider to be the agent. If this subject is the only one involved, there is no problem in determining who did it, in other words, in determining who is the perpetrator. This is because that person is the sole agent, and therefore performs the actions that are considered typical. The problems begin when, alongside this subject, others enter the scene. For example: someone provided him with a weapon, or information, or grabbed the victim while he was stabbing him... How does someone who makes such contributions respond? In everyday language, we usually speak of accomplices. But it is important to distinguish and clarify, because complicity is a technical concept that differs somewhat from what is colloquially understood as such. In this lesson, we will deal with the various forms of perpetration, and in L.13 we will deal with the so-called "participation". Let us start with authorship.
Since in cases of a single actor the subject is the agent, executor, perpetrator..., it is easy to identify perpetration with execution. This is only correct in cases of a single actor. Perpetration - like all legal categories in crime theory - is not determined by such "naturalistic" criteria (in commission crimes, of course), but requires a criterion of evaluation of reality. Specifically, and after many years of doctrinal discussion, it is generally accepted, with various nuances, that the perpetrator is the one who dominates the act. Control of the act is the value criterion by virtue of which reality is contemplated (someone has plunged a dagger into the victim's chest). Control of the act will exist when the subject controls whether to initiate or interrupt the action, to choose between one modality or the other. This assessment criterion is not very different from those offered in objective imputation (creation of a typically relevant risk, realisation of this risk in the result); what is more, control will be determined to a large extent by whoever has deployed the typically relevant risk. That person will be the one who controls at least the origin of the risk. If he also has control over the development of the action, we will say that he is in control of the act.
Thus, in cases where there is a single agent, if he dominates the act, he will be the perpetrator. In cases of plurality of participants, dominion can exist in a shared manner. That is, all the participants have dominion, but it is distributed among them (for example, one performs a partial act, the other contributes in a relevant way to the act of the first one while the latter performs it, and a third one watches how the other two operate and is there in case it is necessary to intervene to ensure success). If so, it could be said that the three co-dominate the deed in that all three are linked by a mutual agreement and with a functional distribution of tasks. Such a agreement may be express, but may emerge tacitly during implementation by virtue of the information at hand. Note how in C.121 "not all the participants do everything", but divide up their functions. Are they bound by a mutual agreement?
C.124 - Alcobendas Treasure Case
work "On 14 September 2001, Alberto, while working as an employed farmer for Pedro M.S., owner of the farm "La coma", located in the municipality of Alcobendas, discovered a chest measuring 30 cm. x 60 cm. x 90 cm. of medieval origin, made of wood and ivory, in a good state of preservation. In view of this finding, he decided to keep the chest buried in the place where it was seen, without moving it. On 5 October 2001, Alberto went to Luis L.R., a law student living in Alcobendas, and asked him who owned the finding, whether it belonged to him as the discoverer or to Pedro as the owner of the field. Luis replied that it sounded as if it belonged to the discoverer, but he was not sure. In view of this, Alberto turned to Manuel S.H., a lawyer from Madrid, who - despite knowing what was established in the Civil Law about the finds, and with the aim of obtaining illicit profit - told him that the finds belonged to whoever found them, and that he himself was offering to manage the sale on the international art market, which could bring him some 25,000 €, of which Manuel would receive a part for the management. management In view of this response, Alberto, believing in Manuel's professional capacity as an expert lawyer, commissioned him to manage the sale, for which, with the help of his brother-in-law, León, he dug up the chest and transported it from Alcobendas to Madrid on 28 October 2001, where it was delivered to Manuel. On 15 December 2001, the police detected the possible sale of the object in an establishment for the illicit sale of works of art, and proceeded to seize it. All the aforementioned are of legal age and have no criminal record" (alleged scholar).
AA.12
In common law, the perpetrator (perpetrator or principal in the first degree) is the person who carries out the act with the mens rea required by the offence.
Anglo-American law also provides for the possibility of plurality of perpetrators (joint perpetrators), in two cases: i) if there are two or more persons who commit the offence through a series of acts carried out jointly; ii) each one, with the necessary mens rea, carries out different acts, but together they constitute an act sufficient to complete the actus reus of an offence (functional distribution of roles at the global level). The joint perpetrators are not necessarily liable for the same offence: the liability of each of them depends on the extent of their mens rea.
Finally, Criminal Law contemplates the figure of the innocent agent. This is a person who carries out the actus reus of a crime, but who lacks responsibility, either because of some defence (remember, among others: infancy or insanity), or because he or she does not carry it out with mens rea. If a person makes use of an innocent agent to ensure the commission of a crime, the perpetrator will be that person (and not the innocent agent).
On the Principal in the First Degree: State v. Bailey (63 W. Va. 668, 60 S. E. 785) 1908. On joint perpetrators and the importance of the mens rea of each: People v. McCoy (25 Cal. 4th 1111, 108 Cal. Rptr. 2d 188) 2001.
VOCABULARY
- Perpetrator
- Principal in the first degree
- Joint perpetrators
- Innocent agent
To get started: Jescheck/Weigend, Treatise, §§ 61-63; spanish medical residency program Puig, Criminal LawLessons 14-15.
Monograph: Díaz y García Conlledo, La autoría en Criminal Law, Barcelona, 1991; Gimbernat Ordeig, Autor y cómplice en Criminal Law, Madrid, 1966.
N.121 The concept of authorship.
N.122 Individual authorship.
N.123 Joint authorship
N.124 Perpetration-by-means.- N.125
N.125 Acting in the place of another and article 31 of the Criminal Code.
N.126 Special cases: Perpetration of offences committed through printing.
SYNOPSIS
