Dolus eventualis
Definition
A person acts with dolus eventualis if
the causing of the forbidden result is not his main aim, but
(1) he subjectively foresees the
possibility that, in striving towards his main aim, his conduct may cause the forbidden result
and
(2) he reconciles himself with this
possibility.
Examples
of dolus eventualis:
(1) X disconnects sections of a railway
track in order to derail a train. He does
not desire to kill other people, because
his immediate goal is to commit
sabotage and
in this way to express the resentment he feels against the state.
He is nevertheless aware of the
possibility that people may die if the train is
derailed, and he reconciles himself to
this possibility. If he succeeds in
derailing the train, and people die, it
is futile for him to allege that he did not
intend to kill people (facts analogous to
those in Jolly 1923 AD 176).
(2) X wants to burn down a building. He
foresees the possibility that Y may be
inside it, but nevertheless proceeds with
his plan, and sets fire to the building. Y is
indeed inside, and dies in the flames. In the eyes of the law X intentionally caused Y's death.
(3) X and Z undertake a joint robbery. X
knows that Z is armed with a loaded revolver. He also knows that Z may use this
weapon if the people whom they want to rob, offer resistance. They go to a
shop, which Z enters while X stands watch outside. The proprietor of the shop
(Y) resists and Z shoots and kills him. In the eyes of the law not only Z, but
also X had the intention to kill and is guilty of murder (Nsele 1955
(2) SA 145 (A)).
Dolus eventualis.
A
variation of the well-known story of the legendary Swiss patriot Wilhelm Tell.
In order to prove how well he can shoot with his bow and arrow, X (Wilhelm
Tell) places an apple on the head of his son, Y, and shoots an arrow at the
apple. He does not wish to kill Y, whom he dearly loves. He wants the arrow to
pierce the apple on Y's head. However, assume that the following happens: X
foresees the possibility that, in attempting to shoot the apple, the arrow
might strike, not the apple, but Y instead, killing Y.
He aims at the apple, but the arrow
strikes Y, killing him. If X is charged with having murdered Y, can he succeed
with a defence that he never intended to kill Y, since he merely wanted the
arrow to strike the apple? Assuming that it is proven that he in fact foresaw
the possibility of the arrow striking Y instead of the apple, and that he had
reconciled himself to this possibility, his defence will not succeed. In the
eyes of the law X had the intention to kill Y. This form of intention is known
as dolus eventualis.
THE
TEST FOR INTENTION IS
SUBJECTIVE
The test in respect of intention is purely
subjective. The court must determine
what the state of mind of that particular
person Ð the accused (X) Ð was when
he committed the act. When determining
whether X had intention, the question is
never whether he should have forseen the
result, but whether he foresaw it as an
actual fact. To say that X ``should have
foreseen'' says nothing about what X
actually thought or foresaw; it is simply
comparing his state of mind or conduct
with another's, namely the fictitious
reasonable person. To do this is to apply the
test in respect of negligence, which is
objective. In deciding whether X had intent
the question is always: How did X
perceive the situation, what knowledge did he
have, and did he will the consequence or
foresee it as a possibility?
THE
DISTINCTION BETWEEN MOTIVE AND INTENTION
Intention must not be confused with the
motive for committing the crime. In
determining whether X acted with
intention, the motive behind the act is
immaterial (Peverett 1940
AD 213). For this reason X is guilty of theft even though
he steals from the rich in order to give
to the poor. A good motive may at most
have an influence on the degree of
punishment.
GLOSSARY
dolus intention
dolus directus
direct intention
dolus indirectus
indirect
intention
dolus eventualis
a form of intention in which
X
foresees a possibility
and reconciles himself to
such possibility
What is the difference between dolus indirectus and dolus eventualis?
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