Homicide: Insidiousness; Withdrawal from Attempt
| Author | Michael Bohlander |
| DOI | 10.1350/jcla.2007.71.1.29 |
| Published date | 01 February 2007 |
| Date | 01 February 2007 |
| Subject Matter | German Federal Court of Justice (Bundesgerichtshof—BGH), 4th Criminal Senate |
(Bundesgerichtshof—BGH),
4th Criminal Senate
Homicide: Insidiousness; Withdrawal from Attempt
Judgment of 16 March 2006, Case No. 4 StR 594/05
The defendant had been convicted under juvenile law of murder in the
first degree (Mord) on three counts and three counts of causing bodily
harm by using dangerous means (gefährliche Körperverletzung) together
with a road traffic offence.
The defendant had been to a party at his football club and had
apparently been so drunk or tired that he fell asleep at the table. While
he was asleep, somebody cut off a tuft of his hair. When he woke up he
worked himself into a rage about this practical joke and left the party at
around 1.15 am. To cool his temper he took the family car and drove off.
At around 3.30 am he got on to the motorway and intentionally took the
wrong slip road so that he was driving in the opposite direction to that
of the motorway lane he was using. At first he drove on the shoulder
without turning on the lights, although he realised that there was a car
coming towards him at a distance of about 500 m. At some stage he
moved from the shoulder to the right lane of the main road, still without
lights. His intention was to commit suicide by crashing into the oncom-
ing car, and he was aware that this might cause the death of or grievous
bodily harm to the driver and passengers in the other car. He knew that
the other driver had no chance of spotting his car because he had not
switched on the lights, and would thus have no chance of avoiding a
collision. At a point when a collision could objectively no longer have
been avoided even by an emergency braking, the defendant—as the trial
court could not exclude on the evidence—gave up his suicidal intent and
switched on his lights to alert the other driver to his presence. The driver
unsuccessfully tried to swerve to the left and the two cars crashed when
the speed of the accused’s car was 117 kph, but due to the swerve only
the respective right-hand front ends made contact. There were six
people in the other car, three of whom were killed; the other three were
seriously injured.
The defendant was given a juvenile sentence of four years and was
disqualified from driving for a...
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