Art. 77. Jurisdiction will be determined by salute when:
I – two or more persons are accused of the same offence;
II – in the case of an offense committed under the conditions provided for in Articles 51, § 1 , 53, second part, and 54 of the Penal Code.
The continence hypotheses
Continence: The expression is related to what is contained, understood, encompassed, encompassed, included, interconnected. When two people commit the same crime, both are interconnected, the evidence is related, the crime unites them, and therefore the process must be one. Similarly, when, through a single action, the agent commits two crimes, both and the respective evidence are connected, which justifies the unity of the process and judgment.
Continence and forms of formal competition: Item two of article 77 of the CPP refers to articles 51, 53 and 54 of the CP. With the 1984 reform ( Law No. 7209 , of July 11, 1984 ), the mention should be considered as made to articles 70, 73, 2nd part , and 74, 2nd part of the CP . Such devices deal with three cases of formal competition. The simple formal competition, the one resulting from an error in the execution and the consequent result different from the intended one. In these three situations of formal contest, competence is defined by salute.
Simple formal contest: The agent, through a single action or omission, commits two or more crimes, identical or not ( article 70, caput, of the CP ).
Formal contest resulting from error in execution: By accident or error in the use of the means of execution, the agent, in addition to hitting the person he intended to offend, hits a different person ( article 73, second part, of the CP ). For example: in an argument at a party, Mário punches Carlos (who is injured in the face); with the impact, Carlos collapses on Fernando, who loses his balance and rolls down the stairs, suffering several bruises. Mário is responsible for two crimes in a formal competition due to an error in the execution, and the jurisdiction is defined by the salute, that is, there will be a single process and a single sentence.
The consequent formal contest of result different from the intended: In addition to the intended result, by accident or error in the execution of the crime, a different result supervenes ( article 74, second part, of the CP ). According to Celso Delmanto, the most frequently remembered example is that of the agent who intends to break the window and injures the clerk. There will be a crime of damage and culpable bodily injury in a formal contest (Delmanto, Celso. Penal Code Commented . 9th. Ed. Editora Saraiva: 2016).
