The offence of attempted murder or common assault; the conditions for the challenge-based excuse; the conditions of the simplified procedure for admitting blame or guilt

DREPT PENAL ŞI PROCESUAL PENAL

Abstract

The act of the accused applying to the injured person a blow with the metal part of a spade, from top to bottom, the blow being oriented towards the head, but which the injured person defended with the right forearm, thus suffering an open fracture type III A right cubitus, in injury that required medical care for healing for a period of 80-85 days, meets the constitutive elements of the attempted murder provided by Article 32 paragraph 1 of  the New Criminal Code reported to Article 188 paragraph 1 of the Criminal Code, and not of common assault provided by Article 193 paragraph 1 and 2 of the New Criminal Code. 

The fact that an injured person, on the one hand, the accused and his father, on the other, there was a contradictory and insulting exchange of words cannot constitute a provocative situation, so as to attract the incidence of the mitigating circumstance provided by Article 75 paragraph 1 letter a) Criminal Code, the reaction of the accused being totally disproportionate in relation to the verbal conflict, so that it cannot be caused by a strong disturbance or emotion determined by a challenge from the injured person.

The formal recognition of the factual situation by the accused requesting the change of the legal classification of the action as “common assault” provided by Article 193 paragraph 2 of the Criminal Code, with the consequence of changing the factual situation and the administration of evidence and the accused specified in his statement that he acted with the spade from the side, without intending to hit the injured person, but rather to scare him, not intending to hitting him in the head area, cannot lead to the admission of the request for trial of the case in the guilty plea procedure with the consequence of  reducing the punishment limits by 1/3.