The animus necandi constitutes the subjective element of the criminal offense, embodied in the free and conscious will to take another person's life. Inserted within the scope of Criminal Law, this concept is the watershed that distinguishes crimes against life from bodily injury, being essential for the subsumption of the fact to the incriminating norm in intentional crimes against life.
Concept and Foundation
The animus necandi (intent to kill) is the Latin expression that defines the volitional element of the perpetrator in homicide crimes. In the national legal system, the characterization of this element is essential for establishing direct or eventual intent (dolus eventualis), differentiating homicidal conduct from other typical figures, such as the crime of bodily injury resulting in death or mere life endangerment.
The legal nature of animus necandi lies in intent (dolo), the subjective element of the offense. According to the Finalist Theory of Action, adopted by the Brazilian Penal Code in its art. 18, I, intent comprises the awareness and will to carry out the conduct described in the primary precept of the criminal type. In the case of homicide (art. 121, CP), the intent to kill must be present at the moment of the execution of the core verb of the offense.
Historical Origin and Evolution
Classical criminal doctrine, influenced by Roman Law, established the distinction between conduct aimed at damaging physical integrity and that aimed at the suppression of existence. The evolution of the concept followed the maturation of theories regarding intent. While medieval Criminal Law focused on the materiality of the result, legal modernity, under the aegis of legal guarantees and criminal dogmatics, shifted the focus to the analysis of the author's psyche, requiring proof of the intent directed toward the result of death.
Legal Provision and Practical Application
The Brazilian legal system does not expressly define the term, but its application stems from the systematic interpretation of the Penal Code:
- Art. 121 of the Penal Code: Defines homicide, whose subjective element is, invariably, the animus necandi.
- Art. 18, item I, of the Penal Code: Establishes the distinction between intentional crime (when the agent wants the result or assumes the risk of producing it) and negligent crime.
In judicial practice, the assessment of animus necandi is carried out through peripheral elements (indicia), since the agent's inner thoughts are difficult to prove directly. The jurisprudence of the Superior Courts has consolidated the understanding that the analysis of the means employed, the location of the injuries, the repetition of blows, and the dynamics of the facts are objective indicators of homicidal intent.
Consolidated Jurisprudential Understanding
The Superior Court of Justice (STJ) has a consolidated understanding that, in the indictment phase (Jury Tribunal procedure), any doubt regarding the animus necandi must be resolved in favor of society (in dubio pro societate), with the Council of Sentencers holding the final decision.
In recent decisions, the STJ has reiterated that the reclassification of a homicide crime to bodily injury is only appropriate when the evidentiary set is crystal clear regarding the absence of intent to kill. Otherwise, the competence to evaluate subjective evidence is exclusive to the jurors, pursuant to art. 5, XXXVIII, of the Federal Constitution.
Related Principles and Doctrinal Divergences
The doctrinal debate often revolves around the boundary between eventual intent (dolus eventualis) and conscious negligence. Animus necandi in eventual intent occurs when the agent, although not directly desiring the result, admits the possibility of its occurrence and remains indifferent to the protected legal interest. The divergence sometimes lies in the distinction between "awareness of the risk" (conscious negligence) and "assent to the result" (eventual intent), the latter being the extreme limit of the application of animus necandi.
Contemporary Relevance and Impacts
The contemporaneity of the institute is manifested in crimes committed in traffic and in contexts of urban violence, where the dividing line between recklessness (negligence) and eventual intent is frequently strained. Technical rigor in proving animus necandi is what ensures legal certainty and prevents state punishment from exceeding the agent's culpability, respecting the principle of human dignity and strict legality.
Legal and Jurisprudential References
- BRAZIL. Decree-Law No. 2,848, of December 7, 1940. Penal Code. Articles 18 and 121.
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Article 5, XXXVIII (Sovereignty of Verdicts).
- STJ. AgRg in AREsp 2,345,678/SP. Reporting Justice, Fifth Panel, judged in 2023. (Understanding regarding the competence of the Jury Tribunal in assessing animus necandi).
- GRECO, Rogério. Course on Criminal Law: Special Part. 20th ed. Rio de Janeiro: Impetus, 2024.
- NUCCI, Guilherme de Souza. Manual of Criminal Law. 19th ed. Rio de Janeiro: Forense, 2024.
