On appeal by the defendant, the decision of the Regional Court of Frankenthal, 14 August 1985 repealed the findings.
The case is remanded for new trial and decision, including costs of the appeal, other than a competent Criminal Court of Assizes.
By law
reasons
a
The District Court has convicted the accused of attempted homicide to a custodial sentence of three years. The revision of the defendant is engaging with the complaint of infringement of substantive law on the abolition of the Court. 2
first The defendant met his father for about ten centimeters long kitchen knife in the left chest. He was aware that "such a stab in the heart and lung area could be fatal. Such possible consequences were him ... indifferent "(UA 6). After the fact, he cleaned the knife to remove tracks, and swept up the broken glass of the previously destroyed in the confrontation with his father Door Panel. The severely injured victims, he pressed to leave the police out of the game and "the whole as a misfortune" show. When that asked for the notification of an ambulance, he leafed through some time in the phone book, then said, "He could not find the number and handed him the phone." The victim dialed 110, said of an accident and asked for medical help "(WP 7), the result of the call - was made three
- successfully.
second The district court believes the accused is not a criminal trial of killing retired liberating. The trial of the accused to kill his father, had been terminated because he had just run a knife like. A causal chain, "which would be for non-completion have been at least partly responsible," he had not started. He did, namely, "to reach out to his father the phone, ... shall not have any other activities". The initiative for the rescue alone was considered by the victim. The defendants point was not about preventing the possible death, but only of "the injury as an accident ... show" (WP 9). 4
third It is not enough to deny the accused to the benefit of § 24 StGB . 5
a) The Trial Chamber set out below the previous case law of the Federal Court after the case groups of unfinished and finished alone to test the ideas of the offender shall be enclosed in Tatbeginn. In turning away from this case has the Supreme Court in BGHSt 31, 170 , 176 and in addition the Court's decision panel of 22 August 1985 - 4 St 326/85 (for publication in BGHSt) - adopted the position that, for the demarcation of the above groups of cases on the "withdrawal horizon" arrives after the end of the last execution of action. An attempt is therefore not yet complete when the perpetrator - as here - that runs from the beginning planned action, but only if, after the last execution of action, the factual circumstances, could lead to the successful entry, recognize or if the success of admission, in disregard the actual inadequacy of the act deems possible. The District Court has not explicitly stated whether the accused of life threat to his victim in the afterwards for the evaluation of the resignation relevant time, was recognized after the infliction of the stab wound. This is, however, the severity of the victim inflicted injury - the knife caused a 1.5 cm wide and 7 to 8 cm deep smooth cut that reached the lung tissue (UA 7) - close, so is that the district court held may result correctly completed the test for. Then could the accused, of which the trial judge also posed, impunity not attain the very fact that he refrained took to bring about the death by another stabbed. 6
b) The statements of the District Court is clear that it negates the conditions for a withdrawal of amnesty for two reasons. Once it is based that conclusion on the argument that the defendant had no causal chain in motion set, which would have been the cause for non-completion. Second, it directs its view on it, the defendant it was not about the rescue of the victim, but to go to avoid being exposed as a perpetrator. Both considerations do not readily adjust to deny the conditions of the amnesty resignation after § 24 para 1 sentence 2 StGB . 7
aa) The defendant has served his father on the phone. The causality of this act for the success of frustration would be to affirm any event, if the father would have been saved because, for example, if the victim because of his injury was not in a position without help of others to the phone to , Get out of it is then that he was out saving phone call. The accused in such circumstances could not be objected that he still had other emergency measures may be taken (BGH StV 1981, 396). The district court has not determined whether it was here Sun If the act of the accused are not the cause was for the rescue, this would imply the applicability of the § 24 para 1 sentence 2 StGB not ruled out. For in cases where the crime without the assistance of the offender does not succeed, this impunity according to § 24 para 1 sentence 2 StGB when he voluntarily and earnestly efforts to prevent its completion. Condition for the impunity of the offender, however, is that it is appropriate action for the successful prevention of effort ( BGHSt 31, 46 ). If he is on - as here - the victim to take the rescue measures (see BGH NJW 1985, 813 , 814; BGH, Judgement of 26 May 1983 - 4 St 271/83), he may not there the chance to decide whether this shall take appropriate measures ( BGH, Judgement of 22 August 1985 - 4 St 326/85 , intended for publication in BGHSt). Here the victim with notification of the ambulance, the first in the circumstances of the case ELIGIBILITY line taken action to save him. In these circumstances the accused would have his obligation to strive to prevent the success, it made enough when he was the arrival of the - which is likely - would ensure for first aid trained occupants of this car. Whether he has done this - and thus has created despite the lack of causality of his efforts, the conditions for an amnesty resignation - or whether he left his father before the arrival of the ambulance to his fate - which would exclude from discussing the case design of an amnesty resignation - can not be inferred from the findings. 8
bb) The consideration of the District Court, the defendant was not about the rescue of his victim, but just about gone to present his injury as an accident, is also seen for an amnesty does not preclude rescission. The intent of the accused, the fact disguise with the help of the victim of police to be close, not efforts to rescue the victim nor the seriousness and voluntariness of the resignation, if the plan after the presentation of the accused only if the survival of his father could succeed. Would be different if the telephone interview of the victim, the accused may be supported, only the concealment efforts to serve and have proven to accidentally from the perspective of the accused as a trigger for the rescue operation (see RGSt 63, 158, 159, 68, 381, 382; Eser Schönke / Schröder, StGB 21st edition § 24 para 59; Samson SK § 24 para 27; Vogler LK 10th Edition § 24 para 112). This has not determined the district court, however. 9
4th The conviction for attempted murder has therefore not stand. The Senate does not see himself in a position to change the guilty verdict and order the accused of grievous bodily harm, as not excluded that the newly decisive Criminal Division can still make findings that justify a conviction for attempted manslaughter.
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