* By Luiz Flavio Gomes and Ferraz de Sousa Aurea Maria The Second Chamber of the Supreme Court has just posturing to the mismatch between the intent and the eventual murder by item IV of § 2 of Article 121 (surprise, deception, concealment or ambush).
The decision was rendered in the case of HC reported 95.136/PR Minister Joaquim Barbosa. The defense claimed to be incompatible with the eventual intention of qualifying to Article 121, paragraph 2, section IV, also called for the reduction of sentence and the removal of the impossibility of progression of the sentence. The defendant was convicted by the Parana to the completion of 18 years' imprisonment, fully met in a closed regime, having run over and killed a couple who was walking on the sidewalk.
As is known, according to Law 8.072/90 the crime of murder is considered heinous (art. 1, I) and, by 2007, the completion of his sentence should be given full under closed. The trial Parana probably occurred before the Law 11.464/07 which amended § 1 of Article 2 of the Heinous Crimes Act so that today, in theory (because this new rule has also been rejected by case law), the heinous crime and treated to it are met initially in closed regime.
Well. The fact is that the patient's writ claimed to have recognized some of this largesse, having arrived to the Supreme Court to do so.
According to Minister Joaquim Barbosa, there are precedents in the Supreme Court that has already guided by the inability to charge a homicide with eventual intent to murder by the assumptions of section IV of § 2.
The topography of murder shows, sequentially, the following practices: 121, caput - voluntary manslaughter; 121, § 1 - murder privileged; 121, § 2 - murder qualified; 121, § 3 - manslaughter; 121, § 4 - and upper bounds on the 121, § 5 of the acquittal. Note that there is no mention of any intentional homicide, a construction of the doctrine that imputes the agent to deliberate criminal act, in fact, do not want the result, but within the possible predictability recognizes the occurrence of the outcome and accept .
In this respect it is worth remembering the theories of fraud: a) will theory, b) representation theory and c) theory of consent or assent. By the theory of will, guile when there is direct conscious will want to practice a criminal offense. By the theory of representation, the agent provides the result as possible and still chooses to continue to conduct. The third theory, however, is the fact that links in comment, because, according to the theory of consent, the agent provides the result as possible and still continues in practice taking the risk of producing it .
The qualifying attributed to the subject, the Minister Joaquim Barbosa noted that the position of the STF is the sense of incompatibility with the eventual intention, since it would only apply when there malicious intent, or when the author really wants the resulting death and does so even more reprehensible, whether through treachery, ambush, or by concealment or other feature that makes it difficult or impossible to defend the victim, which decided not to have occurred in the case at trial in this writ.
Likewise stood Minister Gilmar Mendes in the trial of 86,163 HC: is manifest incompatibility between the eventual intention that "implies a mere acceptance of a possible outcome - and a qualifier of the resource that makes it impossible to defend the victim, what a preordained agent claims to criminal conduct ".
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