On numerous occasions the crime of homicide is confused with the crime of murder; For this reason, it is convenient to clarify that the latter is a type of qualified homicide and although it is true that both are crimes against people, it is no less true that they are different notions.
In short, there are always elements or circumstances that make the difference between homicide and murder. Even in all cases, death by homicide occurs. Following are the particularities that differentiate them.
the cruelty
It refers to the cruelty revealed by the murderer in the way of perpetrating the crime, unnecessarily increasing the suffering of the victim. This circumstance is an aggravating factor for criminal responsibility, which means an increase in the penalty imposed on the person guilty of the crime, since there are aggravating factors for the crime of homicide.
In every murder there is cruelty and for this reason criminal responsibility is greater, since it reveals the inhuman behavior of the offender. On the other hand, not all homicides exhibit the circumstance of cruelty.
For there to be cruelty in Criminal Law, two requirements must be met: that redundant suffering be caused to the victim and that the murderer acted consciously and with reflection at the time of committing or executing the crime.
treachery
It consists of the action of perpetrating a crime that threatens the life of the individual, proceeding in a safe or treasonous manner, that is, without giving the victim the slightest chance to defend himself. It is a circumstance that increases criminal responsibility. In fact, treacherous behaviors are aggravating factors in homicide.
In every murder there is treachery and therefore, criminal responsibility is greater, in proportion to the deliberate conduct of the offender. On the other hand, not all homicides exhibit the circumstance of treachery.
The essential requirement for the treacherous conduct to take place is that the victim be defenseless, this being the guarantee of consummation of the criminal act. Therefore, it is prudent to distinguish treachery in murder and manslaughter.
premeditation
It is the previous action of projecting or conceiving all the necessary steps for the execution of the crime that threatens the life of the individual. They are attitudes of the offender, such as the previous study of the routines of the victim, to ensure the main way of perpetrating the crime. It is an aggravating circumstance of criminal responsibility.
In all types of murders there is premeditation and for this reason, this crime is punished with a greater penalty than the conviction for the crime of homicide. On the other hand, not all homicides externalize the circumstance of premeditation.
The reward or the price
It refers to the circumstance in which an advantage or material advantage is offered to the person who commits the crime consisting of ending the life of the victim. It is a fact that notably aggravates the criminal responsibility of the offender and that turns homicide into murder.
In every murder there is a reward or price for the instigator of the crime and for this reason, said crime is punished with a much higher sentence than the sentence for a simple homicide.
What does homicide for reward or prize mean? Personifies death caused by economic interest. However, it must be said that not all homicide exhibits the aggravating factor of reward, promise or price. However, all murder requires the pre-existence of obtaining financial gain or a material or personal advantage that encourages the murderer to commit the crime.
Classification of homicides in the Spanish Penal Code
In accordance with articles 138 to 143 of Organic Law 10/1995, of November 23 of the Spanish Penal Code, whose last reform was published on 07/02/2021, there are mainly two forms or typologies of homicide crimes and their time, each one reveals the characteristics of the homicide that are explained below.
The types of homicide in the penal code of the Iberian country are specified below.
Homicide
It is a crime that is defined as the action of causing the death of an individual, being perpetrated with the deliberate will to end his life. This crime is committed with intent, that is, with the unequivocal intention of killing the victim.
Thus, the essential subjective requirement for the crime of intentional homicide to be verified is the "animus necandi" which means intention to kill knowingly and willingly, that is, intentionally.
Intentional homicide includes the subtypes of basic intentional homicide and aggravated intentional homicide; being that the basic carries penalties less than aggravated homicide, all in accordance with the circumstances provided for in article 140 of the Spanish Penal Code.
reckless homicide
It is a crime that causes the death of the victim, without the murderer having the will to cause his death, which occurs due to the recklessness of the perpetrator of the crime. So, the negligent attitude of the homicide when violating the obligation of care that was required of him, is what has been decisive in the occurrence of the homicide.
In this order of ideas, article 142 of the Spanish Penal Code stipulates two subtypes of this crime: homicide due to serious negligence and homicide due to less serious imprudence. It is even useful to identify the various forms of the crime of homicide. Recklessness can sometimes be considered as a cause of attenuated homicide.
The crime of manslaughter due to gross negligence occurs when the perpetrator of the crime uses a motor vehicle or moped, a firearm or any instrument of his professional practice. In the latter case, acts carried out negligently in health care or as a result of medical malpractice are included.
It should be noted that, in the event of homicide due to gross negligence or homicide by omission, the penalty will be increased when the number of deaths is high and given the seriousness of the punishable act, in which case, it will be classified as a hyper-aggravated subtype.
The subtype for less serious imprudence has also been typified, which is committed in circumstances of lesser risk than the crime of homicide due to serious imprudence and for this reason, carries minimum sentences compared to the rest of the subtypes.
However, despite the fact that the Spanish Penal Code does not expressly regulate preterintentional homicide, the jurisprudence of the Iberian country has made mention of this typology. In this sense, Spanish judges have interpreted it as a form of homicide that inevitably does not involve fraud (intentionality) or guilt (negligence).
Regarding the classification of homicides, it can be deduced that, in preterintentional homicide, the perpetrator of the crime initially intended to cause slight damage to the victim, but inevitably ends up causing her death, this not being what he intended. So, the concept of homicide is widespread.
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