Acórdão nº 039936 de Supremo Tribunal de Justiça (Portugal), 19 de Abril de 1989
Data | 19 Abril 1989 |
Órgão | http://vlex.com/desc1/1997_01,Supreme Court of Justice (Portugal) |
N Privacidade: 1 Meio Processual: REC PENAL.
Decisão: PROVIDO PARCIAL.
Área Temática: DIR CRIM - TEORIA GERAL / CRIM C/PESSOAS.
Legislação Nacional: CP82 ART33 N1 N2 ART72 ART73 N2 A ART131 ART132 N1 N2 G ART133.
Sumário : I - Pratica o crime de homicidio voluntario, previsto e punivel pelo artigo 131 do Codigo Penal, aquele que, no seguimento de uma discussão acesa com uma irmã, relacionada com a propriedade de um quintal em que trabalhava, empunhando aquela uma verga fina de ferro, pontiaguda, com que fazia menção de o espetar ao nivel do ventre mas sem que o arguido a deixasse aproximar a mais de um metro, em certa altura este lançou mão de uma enxada de cabo de madeira e, com o olho da mesma, desferiu uma pancada na nuca da sua irmã, atirando-a, de imediato, por terra e, apesar de ja prostrada no solo, ainda lhe desfere de modo identico outra pancada, provocando-lhe a morte. II - Ao titular de um bem juridico ou a um terceiro e reconhecido o direito de o defender, pelo meio necessario, de uma agressão actual e ilicita, o que não sucede quando o arguido não adopta uma atitude de defesa, procurando desarmar a vitima, sua irmã, mas a atinge na parte do corpo mais apropriada a produzir a morte, repetindo a pancada quando jaz prostrada no chão a sangrar da cabeça. III - O excesso de legitima defesa a que alude o artigo 33 do Codigo Penal diz respeito apenas aos meios necessarios para suster ou prevenir a agressão, exigindo-se a verificação dos pressupostos adjectivos da legitima defesa inicial. IV - A invocação de emoção violenta e proporcionada para enquadramento dos factos no tipo de homicidio privilegiado previsto no artigo 133 do Codigo...
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