GENOCIDE 04. THE MURDER Article 103 defines the murder as "one who kills another person" doctrine agree that, etymologically, the word becomes the Latin homicidium murder, that is, homo (man) and from caedere cidium (kill), where we clearly get idea that the killing must be understood as killing a man.
Carrara defined it as "the death of a man unjustly committed by another man, who has given definition is in step with modernity, which considers it unnecessary to include the item" unfair ", since this is budget any violation of criminal law. Nevertheless, homicide is one of those "crimes natural "as opposed to" legal crimes ", and that murder is a crime aimed at one of the natural law rights granted to man, not a crime" created "by human law, in other words that, in the case of murder, state law is merely repeating a natural ban, define the legal character of the offense and add a penalty to complete the primitive law and effectively protect the right.
The legal order has become clear, is life. This object of law, be protected from birth without any discrimination, and, being the legally supreme excellence affects the individual interests of its owner, the state and society.
The material object is the person on whom the action lies. It specifically the legally protected. Matches in the person-taxable because it is the person on whom the action is exercised and is itself the owner of the right that is violated in this action.
general rule states that "charge" of misconduct can be any "person," the latter term understood in the terms does Article 74 of the CC, according to which "all individuals are people of the human species whatever their age, sex, race or status, "but the previous statement, that is, generally the taxpayer's murder is any person, is an exception in the case of kinship and public servants more exceptions discuss later, when we speak of aggravated murder as set out in Article 104.
In principle, and generally, the active subject in the homicide is undetermined. Any natural person may be an agent of the crime of murder, though, and will be explained later, in the case of infanticide enshrined in Article 108, the author has a special qualification: it must be the mother.
The legal order in this offense, that is, the interest protected by the acriminación of this behavior, is none other than life, is that what the legislature intended to admonish the behavior with the threat of penalty is to protect life, understood this, as we explained in the inaugural lecture, as the current life outside the womb, so that they are excluded from the murder itself acriminación enshrined in Article 103, but not criminal law the destruction of the fetus to intrauterine level, which would result in an abortion, as well as the conduct intended to end the life of a person who is already dead, the famous doctrinal discussion of the "death of a corpse, "conduct that would be atypical of murder and only in some cases could bring, the more the behavior as described in Article 204 which establishes the lack of respect for cadavers.
The object in the killing is personal, as it falls on a person, unlike the real material object, which makes its appearance when the conduct executed falls on one, as in the case of falsifying documents or theft, as examples.
doctrine Traditionally, when analyzing the object of the offense, has come to consider what is meant by "the another ", as it believes that explaining what is meant by the term" another ", when one's behavior is murder, will explain the subject material.
doctrine adopts the concept of "crime aberrant" explaining the concept of another in the killing. Is that in the case of murder, the other is not only that individual who wants to kill, which was directed against executive action of the murder itself, but, well, a person may be different from that to which they wanted killing, which is killed by mistake, let us briefly what the doctrine called "aberratio stroke", "aberratio delicti "and" aberratio causae. "
The "aberratio stroke" occurs when the result sought has materialized, but falls to a person other than the one against which he applied, originally, the action, as when A gun fires a shot against B and death occurs instead of C, passing through the vicinity.
The initial solution, that would be a murder attempt on the designated victim and wrongful death on the actually dead, is not accepted by ANTOLISEI, as this treatise considers culpable homicide is not which continues be intentional, as it would be for the person designated if the shot had given the latter.
We think this case should be analyzed according to the theory of error and things, the solution to this hypothesis, in our view, will depend on the possibility of providing or not the death of the second subject. If the case is a proposed A sniper in a nearby building with a weapon with a telescopic sight, and B is a candidate on the campaign in the public square, the possibility of killing C (a journalist, a fellow party member, an escort a simple passer ...) is too broad. If you had the possibility, and did not anticipate, inferred liability could reach by way of guilt, if anticipated, but hoped to avoid the outcome, we think that may be deducted from any criminal liability for fraud, but if you did not foresee any possibility of that eventuality, we believe there may be deducted from any criminal liability to have broken the chain of causation, in which case we would be a fortuitous event. It is hard to think of the grandson who wants to kill his grandmother with a poisoned cake sure the elderly do not visit anyone or seen anyone for over two decades and also, such is the meanness of the old, not would be willing to share a piece of cake or his cat. If our case he ends up dead for having eaten the cake is a beggar who came to the secluded home of the grandmother and moved to the point of delivering the cake, no doubt we're in the presence of a fortuitous event. We must therefore conclude that the answer to such situations in practice depends on an accurate assessment of the objective-subjective circumstances surrounding the offense agent. In conclusion, if in accordance with Article 32 paragraphs 10, 11 and 12, are in the presence of an error or invincible beatable type or prohibition.
The "aberratio delicti" operates when a different result than desired while hunting and when a person shoots a bush, thinking that there was the prey, when a person really was, we think the solution is similar to the previous case, that is, to be considered the objective-subjective particular circumstances surrounding the tort agent, to determine in this way if the error is relevant or irrelevant, in the first case exonerating him of responsibility and the second decreases it when the law provides for the type culpably.
Finally, the doctrine recognizes "aberratio causae, which operates when the causal process has unfolded differently the one who had provided the agent tort, complete with the desired result and sought has been finally, the example would be when thrown into the river A to B to drown, but the latter does not die by drowning, but because hitting his head against a rock. In such cases we think that A must answer for murder, and that the cause of death is also essential, we think it is irrelevant for the purposes of homicide, death occurs in one way or another, imagined, then, in our opinion, a concrete application of the theory of conditional intent. If A wants to kill B, and when he is pointing to the head with the gun, B suffers a heart attack and dies, A responds for the murder of B, according to the theory of causae aberratio.
In connection with the killing, the behavior is simply described in Article 103, basically reducing the verb "kill", free from all conditions. Can be both positive and negative, that is, by act or omission.
That can kill a person for action is something that no major difficulties in understanding, here is a positive act of tort agent, the problem arises when a person kills another by default, no have done, for not acting.
Explaining the issue of crimes of omission, Professor Fernando Velásquez, quoted by us in the course of Penal General, said that the relevant criminally negligent conduct is regulated in three ways:
First says, there is a group of provisions which punishes violation of a duty to act or not followed by an outcome, which are called "own failure rates," so called for their commitment expressed in the law, which would the case of consecrated as "abuse of authority by failure to report" (art. 417), "delay in the delivery of documents related to a vote "(art. 393)," absence food "(art.233)," abandonment of minors and helpless persons "(arts.127 and 128).
Secondly, there are events which are penalized in the same statutory provision as an act of generalization of a result, as the failure to prevent it, giving rise to a mixed set, are called "commission rates "thus enshrining a ban as a mandate, as in" default prevarication "(art. 414)," failing to support "(art. 424)," including failure to report "(art.441) "Omission of measures to protect the civilian population (art. 161)," failure to control money laundering (art. 325), "omission of the withholding agent or tax collector" (art. 402).
Finally, there is a large number of terms not expressly sanctioned by law, whose transgression is punished according to law framework in the rates of commission, being the so-called "types of improper omission" or "commission omission ", an example of which are fire (art. 350), torture (art. 178), murder (art. 103) and personal injury (section 111 et seq), and these behaviors may be performed by default. Suffice one instance, to understand the crimes of improper omission or commission by omission: the mother who allows your child to play in the crib with a razor blade, or allow your minor child burn gunpowder in the December holiday , criminally liable for injuries caused to the child as if she was the would have occurred, since the position of guaranteeing that she has for her children will conclude that you have a legal duty to prevent a result, in accordance with Article 25 of the Code Criminal.
With the things we can conclude that, while not set in relation with murder, "omission own", it is true that such harmful result can be reached by way of a "failure improper" or "commission by omission." However, in this case we start here with the assumption that the agent has a special tort and specific as guarantor in relation to the victim, whose failure to precisely follow the harmful result. If this morning at the gates of the university an old beggar a coin to satisfy their hunger, and two hours later died of homicide Can speak the default for all those who went before him and did not give a dime? Some consider yes, the position of guarantor is given in Article 95 of our Constitution, which codifies the duties of man and citizen the principle of social solidarity. Others, however, argue that the guarantor should be special and specific, two qualifiers will be only for duties that are assumed when it assumes the protection of helpless people, like firefighters, rescue, swimming teachers, doctors and nurses guides, climbers, etc., or family relationships, or when we are in a dangerous community, Vg. a plane crash.
Following the national doctrine, would to say that a person stop doing something, by which it causes the death of a person, will result in one of two ways punitive, or a manslaughter, or of a failure emergency (art. 131): first in the event that the causal link has been triggered by the agent of the violation, and second if that did not causation. The dividing line between them then available, that will indicate when it should be applied to one or the other will not only be marked by the agent's intention (if acted with intent or by mistake), but by the position of guarantor on have given time for the case.
The causal link is understood as cause and effect relationship that should exist between action and outcome. What it means for the murder that the death has been to cause the agent's conduct. It is an objective, which you can see the result as a consequence of the conduct, whether by action or omission that, as stated above.
The causal link can be readily appreciated in many cases, such as for example, clearly states that the victim inflicted shot in the head is the cause of death. However, the determination of this element is complicated when there are other causes, other than the agent's conduct, that they may or move or go with her to produce the result.
An example of the former is as follows: A hurts B with intent to kill. B is carried in a vehicle to the hospital, going on the way an accident resulting in death. The autopsy, we prove that B died from injuries sustained in the accident, and that the wound caused by A character being mortal, was not what caused his death.
The cause of death was traffic accidents, which may well be an act of God, or obey the fault of the ambulance driver or a third party. A's conduct was not the cause, since although the result was death dear for him, this was due to accident moved to that cause (the behavior of A).
Had it not been for the accident, the death of B had been produced by the action of A. however, occurred, stopping the causal process already initiated, leading to another self, did conclude that the result sought by A. then there is no necessary causal link between the behavior of A and the result, so not the type structure, the fact remains at the level of effort (here the doctrine speaks of causality in advance.)
The second event
complicating the causal link we can illustrate with calls CONCAUSA circumstances or events that are independent of the action to concur in it to produce the result, see:
A B wounds resulting in a nonfatal injury. B by healing itself, but doing so without proper asepsis infection occurs and then death.
In this case the death has caused both the wound and the infection so that both are entitled to as causes. The wound itself had not caused, and the infection would not have occurred in the absence of that. We can therefore say that A's action has added an extraneous factor that has attended with her to the causation of the outcome death.
The activity of the victim contributed to his death. While the new PC does not explicitly refer to the phenomenon of concausalidad, nor the 1980 Code, the Code of 1936 did when it enshrined in Article 336 of the killing concausal subsequent relieving the contributory causes, depending on the activity the victim or a third characteristic of a particular set of mitigated homicide. He said the provision:
"If the agent there of the purpose of killing, death has not taken place but for the assistance of a subsequent fact depending on the activity of the victim or a third, the penalty may be reduced even in the third. "
This does not mean that the problem has disappeared concausalidad, as the contributory causes are facts that are still present, having settled case law and doctrine at each case.
As previously said, we can infer that in any case, the deductibility of a liability trial a person, by the fact that he behaved "murderer" is necessary between acting agent and in particular harmful result occurred in the outside world, mediates a specific "causal link" because otherwise we can not say that a person is punishable by the death of another.
Homicide "casual", as its name implies, is one that occurs without an specific material link between the agent's conduct and the resulting death occurred in the outside world, this would be the case who fervently desires the death of another and, coincidentally, there is the desire of the latter by a heart attack. In a scenario like the one just described, much as the first subject has loved, desired, and even sought the death of the latter, while there, while not involving a causal link between their actions and the harmful outcome (death ) we can not proceed or access to penalize the former, avid account the apparent absence of a causal link between the two circumstances.
concausal Murder is different from manslaughter. In this we are in the presence of a homicide that apparently has had the opportunity for the combination of the performance of two or more causes, to resolve the problem of the doctrine concausalidad considered pertinent to offer the following general solution: if the conduct was in itself, capable of producing death the end result, however much it has brokered a strange factor additional to the patenting of the latter must be at the assessment should of the criminal offense within the typical framework of the murder. But if executive behavior, as such, was not quite suitable for the production side of the murder itself, be distinguished as follows: if it was absolutely inidónea for such purpose, shall preach the unusualness of the behavior for any causal link . Returning to the example of the ambulance. If the lesion produced by B is only a scratch on his leg and yet it is carried in the ambulance to hospital, ambulance suffering the accident where he dies, there will be preached as the solution hypothesis of no causal link, because as said in the General Penal course in Colombia premium theory Causation of the relevance or sufficient cause we can not conclude to impute liability to him that it produced no scratch on the leg, B would not go in the ambulance and therefore would not suffer the fatal accident, as this would lead to end the theory of causality.
To conclude these general methods of solution posed by the doctrine, say that if the conduct was relatively inidónea (and not quite inidónea) may be reached under certain conditions (which are none other than those set forth in Article 27 ) to the configuration of an attempted murder.
We said that in connection with the killing enshrined in Article 103 of the CP, the behavior can speak of this offense as a type of act or omission of overt behavior and results.
is said that murder is a type of conduct "open", for the simple reason that it requires certain conditions of time, manner or place, with regard to its implementation.
that murder is a crime of results, means that it is necessary to produce a particular harmful result in the phenomenal world, apart from the behavior observed by the agent itself delict. Put another way, that is not enough punishment for the proper conduct of the murder, the materialization of some external events by the actor, it is essential that these trigger events, originating and finally determined, the specific production of a harmful result in the outside world that is none other than the death of the victim. With the above and on the assumption that murder is a criminal type of result, which requires the production of death for its consummation result, we can say that this is one of those crimes that support the imperfect form of the attempt at terms and conditions in the respective legal consequences, which contains Article 27 of the CP.
Not all criminal types support the imperfect result of the attempt, but the homicide Article 103 itself supports it. The question is how to differentiate an attempted homicide of a personal injury?, Since such a framework is provided, typically allowed to speak to the conduct of punitive treatment than their author, not only the quantum of sentence from the judge but to know in each case.
In this regard, and quite rightly in our opinion, the doctrine has held that to solve this problem must address not only the intent of the agent, but to circumstances such as the kind of weapon, direction due to shock, how the attack took place, the importance of injuries, the existence of past grievances, threats made before and even the words that denote the guilty indulgence of evil. In this regard we recommend analyzing the decision of the Supreme Court of Justice in Criminal Cassation of 25 November 2002 with presentation by Dr. Edgar Saavedra Rojas, wherein the Court embracing these doctrinal criteria, said "what in any case must be absolutely clear is that such criteria do not stop being ambiguous and highly subjective, left to the intimate conviction of the judge. "
review what hitherto said, making an outline for the crime of manslaughter as set out in Article 103 of the Act 599 of 2000, with five words are: "he who kills another" five words which may be subject to the following reflections.
THE LEGAL RIGHT. In the simplest form we can say that the killing protects the lives of individuals, understood as "the survival of its organic functioning."
Life is criminally protected legal interest, but if life and dignity are inseparable, and this reflects the man as autonomous and responsible, there is also clear from these crimes protect self-determination of the individual.
Accordingly, it is that murder is a criminal offense pluriofensivo. The highlight of this is that, as an attack on self-determination of people, this criterion plays an important role in defining the participation of third parties in the action to take his own life and sustainable manu euthanasia .
object type.
SUBJECT: The subject asset is obviously a human being. Offense is unspecified active subject while not required qualification.
also
monosubjetivo is a criminal offense, as the active subject is simple, unitary. Just one person to run the homicide.
The offense is by authoring material. Perpetrator who is himself performing the typical behavior, as provided in Article 29 paragraph one of the Penal Code. This is the case when Peter killed John giving him two blows in the abdomen.
is not necessary, but can occur, a convergence of various persons in the commission of the crime. They can do by the conduct described in the type, in which case materials will be co-authors themselves, the wording of the provision. Case of the five members of the gang that brutally RXN beaten with sticks in the head of a poor fan of Nacional.
competition can also generate a distribution of criminal work, in which case all does not perform properly the type but part of the behavioral description, an event in which talk of co inappropriate materials (second paragraph of that provision .) When Peter runs the motorcycle from which Michael made several shots on the humanity of John.
is clearly the possibility of command responsibility, that is, the use of another person and instrument. Work man back as when Peter gives a gun to a child of ten years and indicates that shoot a tiger behind the bush, knowing that behind the bush there is a tiger are his enemy John (and Peter knew that).
the active subject is another person. Not require any quality. Even humans without apparent figure such, physiologically viable, dying, or useless life deserve protection.
The taxpayer also monosubjetivo: until the death of one person for the type of crime.
THE SUBJECT MATERIAL: It is personal in nature. Is the subject as such, the human body, individual, man alive physically considered. In previous classes we said that person is who is born, in the light of Article 108 of the CP, that is, since he is born until it dies.
If after the onset of labor, for example, once contractions have occurred, is an attack against the creature still in the womb, the crime is murder. The legal order is independent of human life.
THE LEGAL SUBJECT: human life is independent.
CONDUCT AND RESULTS: The main verb is killing. Or what is the miso, still life to aperson, remove the condition of organic vital living person, which has manifestation through the cardiorespiratory system.
is suppression of human life. However, given the technological and scientific advances, we must understand that the act of killing, in strictly legal terms, is the shortening of life is the action directed to temporary anticipation of death by destroying life. This is because, someone off a ventilator, someone who does not have the slightest chance of survival without the ventilator, a diagnosis prior serious and well founded, does not mean shortening of life, but neither is connected to it in such conditions.
is that, let us say at once, killing the conduct of an open nature. Is not subject to weather conditions, manner or place, allowing even the typical embodiment of killing by means of a moral nature (the so helpful example of the doctrine to provide a shock to a weak person knowing it.)
is a crime of instant behavior, ie the typical description is performed without the occurrence of a specified time between action and outcome: the person may die immediately, but it may be that death product occurs long after the serious injury inflicted earlier, if proven causation.
In the latter case, inasmuch as the act of killing the time and space detached from the death of the person should be given a trial of complaint: I think it must be shown to be against another risk legally prohibited and the same materialized resulting in the deaths, the wording of the ninth article of the CP this mean that you must prove the causal link between the act of killing and result in death, which is achieved through material causation, ie the theory equivalence of the conditions sufficiently exposed in the course of general criminal.
An example brought by sufficiently explain the doctrine that said, let's see: a motorcycle with a motorcycle speeding noisy and closed the door to an elderly driver who the psychological impression of the danger it causes untimely death from a heart attack. The rider is charged the result naturalistically death but not legally, explain. Despite having broken a duty of care objective (suddenly close the road to another is conduct prohibited by the rules of the road traffic) death of the person is not within the scope of provision of the rule infringed, taking into account that the standard does not protect citizens who suffer from heart but trying to avoid traffic accidents and not stroke production.
is a crime of action: usually kills conducting active behaviors that make the description of the type.
We can not forget that the murder rate admits the improper omission. The commission by omission is when he has a legal duty to prevent a result, finding themselves in a position to guarantee a particular legal right or control of a source of risk for the legal right by virtue of a special relationship which emanates from a social role connected with the principle of social solidarity or because of the role of the state against the legal another is compelled to interfere to stop the risk or reduce it, on pain of inactivity in particular to stop following the course of causality attributable to legally produce a result. Two recent examples illustrate this: The drunk driver gas delivery truck that collides the vehicle on a house and flees, producing the minutes an explosion that ends the life of the inhabitants of the house, the driver pull-down driving through an area prohibited for these types of vehicles colliding with a school bus killing twenty minors.
THE ATTEMPT: There is an attempt when pursued despite (or wanting to be desired) not achieve the effect wanted for reasons beyond the control of the agent. In other words, when death occurs despite use other appropriate means as appropriate.
probation
There is some difficulty when it comes to checking whether we are dealing with fraudulent personal injury or to attempted murder. Recall that the fraud, (and this was sufficiently discussed in the course of general criminal), as a subjective test only through confession or evidence, so the case law and doctrine have prepared a dossier of circumstances through which is shown necandi animus that characterizes the attempted murder as well:
- The relationships author and victim ligasen
- Personality of the aggressor and attacked
- Attitudes and observed incidences occurred at a time or record the fact, particularly if by provocative acts, words, threats of evil that are advertised, fleeting or episodic tone of same or persistence and recurrence of delivery.
- Manifestations of the participants during the race and the causative agent after the commission of criminal activity.
- Class size and characteristics of weapon used and its suitability to injure or kill.
- Place or area of \u200b\u200bthe body which conducts HACA offensive action, with an appreciation of their vulnerability and their more or less vital.
- A stress or repeated acts attackers.
- previous behavior observed by the infringing, and trying to serve the victim, be disregarded and the scope of their actions, and away from the place where the protagonists, in unequivocal attitude of flight, convinced of the seriousness and importance of those.
The attempt may have finished mode, ie when the subject officer has taken all necessary and planned activities to implement the action of killing, taking the nature of this ideal, but the result does not occur for reasons beyond their control.
PARTICIPATION. Accessoriness governing limited, that is, to derive the determiner or accomplice liability requires at least that the perpetrator has made typical behavior and unlawful.
is determining who by any means that will be born in another murder and at least suitable and unequivocally commits acts aimed at consummation. They are known as non-binding order forms, contracts, advice, suggestion, society, etc.. Typical case of determining when Alberto advises Paul to kill Luis Carlos.
accomplice is one who assists previous or related to the completion of illicit. Such assistance may be of a material, such as opening the front door to enter the killers to murder a person.
also complicit if one activity after the illegal aid, and fulfill previous promises: call a cab to flee the hitmen to kill him to just anyone, so long as the previously agreed upon.
When the assistance is not physical or psychological material, but this phenomenon must be distinguished from the determination. Here there is the idea born criminal, what happens is that we are dealing with an individual who already has the idea criminal and therefore the other is confined to reinforce it. We answer, as we insist on the previous year as an accomplice for strengthening the will.
subjective type. The commission of the murder was carried out with direct intent, that is, when the subject agent knows the circumstances of the act and voluntarily heading for its realization. What does get is what has sought, he wants to kill a person and achievements.
If it fails we are faced with the attempt. But for her, from the subjective point of view, the intent is the same, and is represented by the clear direction of the will towards the consummation of its want.
The intent may be direct as well, when given the success of obtaining the result sought, another result is presented as a necessary consequence that belongs to the realization of the facts. It wants to kill Pedro throwing a grenade at the time that goes with Michael, who throws the grenade liable for both deaths and the death of Miguel despite not being wanted, it is necessary.
When the result appears as unlikely as it is considered as a concomitant effect, and to go ahead with the execution, counting or waiting for the chance is not really produce what ensues anyway which leads to has been called conditional intent. The driver of the goat veredal allowing overcrowding and passengers as human clusters hang out of it, when it collides with another vehicle resulting in several deaths.
When err on any of the elements of type error arises. If there atypical invincible if beatable be punished as guilty only to the extent that there is such a mode of allocation. Peter believes that whoever is behind some bushes is a beast of prey, resulting in a man: if the error was caused by the victim in lonely spot that Peter is dressed to scare a bear, the error arises and is invincible both the conduct is atypical, if Peter acted rashly to the extent that the facts have occurred in the backyard, will carry out a crime to manslaughter.
When the error is on the person it is irrelevant because they wanted to kill another and so he killed another, there is no dispute over the legal property. Not so against the coup fails, that is when Peter wants to kill John and confuses him with Luis, here there is a diversion of causation, allowing us to speak of attempted murder with respect to John and murder, manslaughter about Louis.
may incur in a mistake about the mental realization of a more benign grandson eg believe, mistakenly, that is killing your poor grandfather to save him from intense suffering from a serious and incurable disease, and really the grandmother was a curable disease or was not serious: if the error is invincible, apply the penalty of compassionate homicide is estimated as the typical made of this (section 10 paragraph 2 article 32 Law 599 of 2000). If the error was beatable apply the penalty for manslaughter lowered by half by analogy in bonam part of paragraph 11 of Section 32 ibid.
HOMICIDE AGREED. When the taxpayer's death will have full powers of disposal and make it freely and spontaneously, that is, free of coercion or deception is intentional homicide has consented
This phenomenon is enshrined in the Criminal Code, some argue that since the murder also protects individual autonomy it's obvious she is not violated in the killing consented. If the unjust murder is complex since it consists of the assignment to legally legally living and individual autonomy Cundo latter is not affected is necessary to make adjustments to the concern blameworthiness.
Another sector argues that life is not legally subject to consent it implies that the taxpayer is in a defenseless situation created by himself,
Our position is somewhat eclectic: aware that the taxpayer may consent murder of his death, we think that such consent can only be given to a doctor or health care professional. The other would be to accept that the killer who kills his contractor would be covered by this ground. In any case, the discussion remains open.
not miss for anything in the world, our next class, which we will enter the world of aggravated murder as set out in Section 104 of our Penal Code. Have, you all a good night.
