[G.R. No. 43530. August 3, 1935.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Solicitor-General Hilado for appellee.

SYLLABUS

1. CRIMINAL LAW; ATTEMPT TO COMMIT AN INDETERMINATE CRIME. — The attempt which the Penal Code punishes is that
which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution thereof by overt acts of
the perpetrator leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch
as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code.
2. ID.; ID. — It is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed should constitute
a mere beginning of execution; it is necessary to establish its unavoidable relation, like the logical and natural relation of the cause
and its effect, to the deed which, upon its consummation, will ripen into one of the crimes defined and punished by the Code; it is
necessary to prove that such beginning of execution, if carried to its complete termination following its natural course, without
being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense.
3. ID.; ID.; ATTEMPTED ROBBERY. — In order that a simple act of entering by means of force or violence another person's
dwelling may be considered as attempted robbery, it must be shown that the offender clearly intended to take possession, for the
purpose of gain, of some personal property belonging to another. In the present case, there is no evidence in the record from which
such purpose of the accused may reasonably be inferred.
4. ID.; ID.; ID. — From the fact established and stated in the decision, that the accused on the day in question was making
an opening by means of an iron bar on the wall of T. Y.'s store, it may only be inferred as a logical conclusion that his evident
intention was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in
entering the store, was to rob, to cause physical injury to its occupants, or to commit any other offense, there is nothing in the
record to justify a concrete finding.
 5. ID.; ATTEMPTED TRESPASS TO DWELLING. — The fact under consideration does not constitute attempted robbery but
attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein
cited). The accused may be convicted and sentenced for an attempt to commit this crime, in accordance with the weight of the
evidence and the allegations contained in the information.

DECISION

RECTO, J p:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding
him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional
penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to
pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C. R. Fuentes
streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap
goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman.
The accused had only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up,
who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the
Solicitor-General, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to
a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading
directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation
to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar
it was the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started
to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop
beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses
defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination
following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means
of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the
offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant
case, there is nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established
and stated in the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of
Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store
against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury
to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding.
"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting,
the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the
nature of the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by
the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected
therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of
double interpretation, that is, in favor as well as against the culprit, and which show an innocent as well as a punishable
act, must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing
between the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct;
the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of
injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must
commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that,
without the intent to commit an offense, they would be meaningless."
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are
not punishable except when they are aimed directly to its execution, and therefore they must have an immediate and necessary
relation to the offense."
"Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare that
such and such overt acts constitute an attempted offense it is necessary that their objective be known and established,
 or that said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily
intended, said objective and finality to serve as ground for the designation of the offense: . . .."
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted
robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of
Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the
dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the information: ". . . the accused armed with an iron bar
forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store . . . and that the
accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing
the noise produced by the breaking of the wall, promptly approached the accused ***." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U. S. vs. Ostrea, 2 Phil., 93; U. S. vs. Silvano, 31 Phil., 509; U. S. vs. Ticson, 25
Phil., 67; U. S. vs. Mesina, 21 Phil., 615; U. S. vs. Villanueva, 18 Phil., 215; U. S. vs. Panes, 25 Phil., 292.) Against the accused
must be taken into consideration the aggravating circumstances of nighttime and former convictions, — inasmuch as the record
shows that several final judgments for robbery and theft have been rendered against him — and in his favor, the mitigating
circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance
inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force,
is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty
corresponding to attempted trespass to dwelling is two degrees lower (art. 51), or, arresto mayor in its minimum and medium
periods. Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed
in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive
imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling,
committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and
one day of arresto mayor, with the accessory penalties thereof and to pay the costs.
||| (People v. Lamahang, G.R. No. 43530, [August 3, 1935], 61 PHIL 703-709)
 [G.R. No. 12155. February 2, 1917.]

THE UNITED STATES, plaintiff-appellee, vs. PROTASIO EDUAVE, defendant-appellant.

Manuel Roxas for appellant.

Attorney-General Avancena for appellee.

SYLLABUS

1. CRIMINAL LAW; FRUSTRATED CRIMES. — A felony is frustrated when the offender performs all the acts of execution which
should produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes independent of the
will of the perpetrator.
2. ID.; ATTEMPTED CRIMES. — There is an attempt when the offender commences the commission of the felony directly by
overt acts, and does not perform all the acts of execution which constitute the felony by reason of some cause or accident other
than his own voluntary desistance.
3. ID.; ID. — In case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before the subjective phase is passed.
4. ID.; FRUSTRATED CRIMES. — In case of frustrated crimes the subjective phase is completely passed. Subjectively the
crime is complete. Nothing interrupted the offender while he was passing through the subject phase. The crime, however, is not
consummated by reason of the intervention of causes independent of the will of the offender. He did all that was necessary to
commit the crime. If the crime did not result as a consequence it was due to something beyond his control.
5. ID.; ID.; SUBJECTIVE PHASE. — The subjective phase is that portion of the acts constituting the crime included between
the act which begins the commission of the crime and the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward the phase is objective. It may also be said to be that period occupied by
the acts of the offender over which he has control -- that period between the point where he begins and the point where he
voluntarily desists. If between these two points the offender is stopped by any cause outside of his own voluntary desistance, the
subjective phase has not been passed and it is attempt. If he is not so stopped but continues until he performs the last act, it is
frustrated.
 DECISION

MORELAND, J p:

We believe that the accused is guilty of frustrated murder.

We are satisfied that there was intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital
part of the body. The aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes. When he
gave himself up he declared that he had killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and struck
her from behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the side eight
and one-half inches long and two inches deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him
criminally before the local officials with having raped her and with being the cause of her pregnancy. He was her
mother's querido and was living with her as such at the time the crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be convicted.
It is contended, in the first place, that, if death had resulted, the crime would not have been murder but homicide, and in the
second place, that it is attempted and not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been killed.
It is qualified by the circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or partly from
the rear, and dealing her a terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it was made
treacherously; and that being so the crime would have been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3 of the
Penal Code defines a frustrated felony as follows:
"A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator."
 An attempted felony is defined thus:
"There is an attempt when the offender commences the commission of the felony directly by overt acts, and does
not perform all the acts of execution which constitute the felony by reason of some cause or accident other than his own
voluntarily desistance."
The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which should
have resulted in the consummated crime and voluntarily desisted from further acts. A crime cannot be held to be attempted unless
the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender
must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it
can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is
no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment
when all of the acts have been performed which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is
stopped short of that point by same cause apart from his from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. he is interrupted
and compelled to desist by the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is complete.
Nothing interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the offender. he did all that was necessary to commit the crime. If
the crime did not result as a consequence it was due to something beyond his control.
The subjective phase is that portion of the acts constituting the crime included between the act which begins the commission
of the crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From
that time forward the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he
has control — that period between the point where he begins and the point where he voluntarily desists. If between these two
points the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been
passed and it is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.
 Then the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating circumstance.
As so modified, the judgment is affirmed with costs. So ordered.
||| (U.S. v. Eduave, G.R. No. 12155, [February 2, 1917], 36 PHIL 209-213)
 [G.R. No. 6739. October 16, 1911.]

THE UNITED STATES, Plaintiff-Appellee, v. LUIS BIEN, Defendant-Appellant.

Ramon Mañalac, for Appellant.

Attorney-General Villamor, for Appellee.

SYLLABUS

1. ATTEMPTED HOMICIDE. — The act of throwing into the sea a person who does not know how to swim, is an attempted crime, at
least that of homicide, inasmuch as the perpetrator commenced the commission of the crime directly by overt acts, and if he did not
consummate it by drowning his intended victim, it was due to the opportune intervention of two witnesses who responded to the cries
for help and prevented the assailant from loosening the victim’s hold upon the gunwale of the boat and kept him from sinking.

DECISION

TORRES, J.:

This is an appeal by the defendant from a judgment of conviction by the Hon. Judge P. M. Moir.

Between 8 and 9 o’clock on the morning of the 3d of May, 1910, the Chinaman, Go Sui Chiang, a resident of the pueblo of Bacacay,
Albay, heard that, in the maritime fishing zone comprised within the concession obtained by him, there were several men engaged in
fishing by means of a hoop net; he therefore got into a small boat, or baroto, and went to the point indicated, and when he reached
a place where there was a depth of about 3 varas of water, he was approached by Luis Bien in his baroto. Chiang then told Bien to
cease fishing and leave the place, whereupon the latter caught hold of the Chinaman and threw him into the water. As Chiang could
not swim, he made efforts to keep himself afloat until finally he succeeded in seizing the gunwale of the boat in which he had come;
and while one of the companions of the defendant told the latter to submerge the Chinaman at a place where the water was deeper,
Camilo Bas and Victorino Bas, whose attention had been attracted to the spot by the Chinaman’s cries for help, arrived on the scene
and prevented the defendant from striking the victim of the attack with an oar, and took him to the shore. Chiang then immediately
went to the lieutenant of the barrio, before whom he presented himself with his clothes wet, and reported that the defendant had
thrown him into the water with the intention of drowning him.

Subsequently, on September 20 of the same year, the provincial fiscal filed a complaint against the accused, Luis Bien, charging him
with the crime of frustrated homicide; and the court, upon the evidence adduced, rendered judgment on the following 8th of November
and sentenced the defendant to the penalty of six years and one day of prision mayor and to the payment of the costs, from which
judgment he appealed.

From the foregoing facts, which were duly proved at the trial, it is concluded that the crime of attempted homicide against the person
of the Chinaman, Go Sui Chiang, was actually committed, for the said Chinaman was thrown into the water, where he was exposed
to asphyxia through submersion, as he did not know how to swim, and it is therefore unquestionable that the assailant commenced
the commission of the crime directly by overt acts; if the death of the party attacked was not consummated, it was because of the
opportune intervention of two witnesses who responded to the cries of the Chinaman when he was sinking and helped him to get out
of the water and to reach the land; hence, it may not be said- that the crime was not consummated because of any voluntary and
spontaneous desistance on the part of the aggressor; consequently the crime under prosecution should be technically classified as
attempted homicide, provided for and punished by article 404, in connection with article 3, second paragraph, and article 66, of the
Penal Code.

The defendant Luis Bien, is the sole perpetrator, by direct participation, and fully convicted of the homicidal attempt charged against
him; notwithstanding his denial and his plea of not guilty, the record shows decisive and conclusive proof of his guilt in having thrown
the said Ghinaman into the water, the latter being unable to swim, and of his having further attempted, by the use of an oar, to
loosen the victim’s hold upon the boat; and if the latter was finally saved, it was due to the assistance of two eyewitnesses who
responded to his call for help and took him to the land where he afterwards presented himself, with his clothes thoroughly drenched,
to the lieutenant of the barrio to report what had occurred to him; this particular was confirmed by the said lieutenant.

The two witnesses presented by the defense testified that the Chinaman did, on the morning of the crime, appear at the place where
there were fishing nets set in the Bay of Bacacay and where they were engaged in fishing; that he inquired as to the ownership of the
net which was placed there and, on learning that it belonged to the defendant, Luis Bien, he approached the latter in his boat and
immediately got into that where the defendant was; that they did not see what afterwards transpired; and that the Chinaman left his
boat floating on the water and returned to the land, without getting wet. These statements were belied entirely at the trial by the
testimony of the two witnesses who helped the Chinaman out of the water and took him to land, thoroughly drenched; also by the
testimony of the lieutenant of the barrio before whom the said Chinaman immediately appeared for the purpose of making complaint.

True enough, the witnesses for the prosecution did not see the defendant throw the offended Chinaman into the water, for when they
came up to him, in response to his cries, they found him already in the water and holding on to the gunwale of the boat; but it is no
less true that neither the defendant nor his witnesses could explain how and in what manner the said Chinaman fell into the water.
Therefore, because of the lack of evidence to the contrary, the charge must be admitted as true, for it can not be believed that the
Chinaman, with no reason whatever and not knowing how to swim, should have jumped into the water. On the other hand, it was not
proven that his fall was due to an accident, but, according to the prosecution, to the criminal act of the defendant, performed with
the unquestionable purpose of doing harm to the offended party who, justly angered at the time, was reproaching the defendant
because the latter had proceeded to fish in the place where the offended party had obtained, from competent authority, a license to
engage in fishing.

In the commission of the crime, there is no aggravating circumstance whatever to be taken into account, but due weight must be
given to the special circumstance of article 11 of the Penal Code, in view of the defendant being a native, the nature of the act
committed, and his scant education; therefore the penalty of prision correccional must be imposed in the minimum degree.

For the foregoing reasons, whereby the errors attributed to the judgment appealed from are held to have been refuted, with the
declaration that the crime committed should be classified as attempted homicide, we hereby sentence the defendant to the penalty
of two years of prision correccional, the accessories of article 61 of the Penal Code, and to pay the costs of both instances. So ordered.
 [G.R. Nos. 39303-39305. March 17, 1934.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FELIPE KALALO, ET

AL., defendants. FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants.

Meynardo M. Farol and Feliciano Gomez for appellants.

Acting Solicitor-General Peña for appellee.

SYLLABUS

1.CRIMINAL LAW; HOMICIDE; CIRCUMSTANCES OF "ABUSE OF SUPERIOR STRENGTH". — Under article 248 of the Revised
Penal Code, which defines murder, the circumstance of "abuse of superior strength", if present, raises homicide to the category of
murder. However, said circumstance may not properly be taken into consideration in the two cases at bar, either as a qualifying or
as a generic circumstance, if it is borne in mind that the deceased were also armed, one of them with a bolo, and the other with a
revolver. The risk was even for the contending parties and their strength was almost balanced because there is no doubt but that,
under circumstances similar to those of the present case, a revolver is as effective as, if not more so than three bolos.
2.ID.; ID.; ID.; ATTEMPTED HOMICIDE. — The evidence shows that M. K. fired four successive shots at H. H., without hitting
him, while the latter was fleeing from the scene of the crime in order to be out of reach of the appellants and their companions and
save his own life. The fact that the said appellant, not having contented himself with firing only once, fired said successive shots
at H. H., added to the circumstance that immediately before doing so he and his co-appellants had already killed A. H. and M. P.,
cousin and brother-in-law, respectively, of the former, shows that he was then bent on killing said H. H. The acts thus committed
with no modifying circumstance to be taken into consideration because none has been established.

DECISION
DIAZ, J p:

On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo and Gregorio Ramos, were tried in
the Court of First Instance of Batangas jointly with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in criminal case Nos.
6858, 6859 and 6860, the first two for murder, and the last for frustrated murder. Upon agreement of the parties said three cases
were tried together and after the presentation of their respective evidence, the said court acquitted Alejandro Garcia, Fausta
Abrenica and Alipia Abrenica, and sentenced the appellants as follows:

In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months and one day of reclusion
temporal, with the corresponding accessory penalties, and to indemnify the heirs of the said deceased Marcelino Panaligan in the
sum of P1,000, with the costs.
In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and one day of reclusion
temporal, with the corresponding accessory penalties, and to indemnify the heirs of the aforesaid victim, the deceased Arcadio
Holgado, in the sum of P1,000, with the costs.
In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply that of discharge of
firearms, not frustrated murder, the appellant Marcelo Kalalo was sentenced to one year, eight months and twenty-one days
of prision correccional and to pay the proportionate part of the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as
their co- accused Fausta and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges therein.
The accused in the aforesaid three cases appealed from their respective sentences assigning six alleged errors as committed
by the trial court, all of which may be discussed jointly in view of the fact that they raise only one question, to wit: whether or not
said sentences are in accordance with law.
A careful study and examination of the evidence presented disclose the following facts: Prior to October 1, 1932, the date of
the commission of the three crimes alleged in the three informations which gave rise to the aforesaid three cases Nos. 6858, 6859
and 6860, the appellant Marcelo Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister of the deceased Arcadio
Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of land situated in the barrio of
Calumpang of the municipality of San Luis, Province of Batangas. On September 28, 1931, and again on December 8th of the same
year, Marcelo Kalalo filed a complaint against the said woman in the Court of First Instance of Batangas. By virtue of a motion filed
by his opponent Isabela Holgado, his first complaint was dismissed on December 7, 1931, and his second complaint was likewise
dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in question during the agricultural years 1931 and 1932, but
when harvest time came Isabela Holgado reaped all that had been planted thereon.
 On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased, decided to order the aforesaid
land plowed, and employed several laborers for that purpose. These men, together with Arcadio Holgado, went to the said land
early that day, but Marcelo Kalalo, who had been informed thereof, proceeded to the place accompanied by his brother Felipe and
Juan Kalalo, his brother- in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by Fausta Abrenica and Alipia
Abrenica, mother and aunt, respectively, of the first three.
The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who were plowing it by request
of Isabela and Arcadio Holgado, to stop, which they did in view of the threatening attitude of those who gave them said order.
Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and Hilarion Holgado arrived at
the place with food for the laborers. Before the men resumed their work, they were given their food and long after they had finished
eating, Marcelino Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having been informed of the cause of the
suspension of the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their respective carabaos
to continue the work already began. At this juncture, the appellant Marcelo Kalalo approached Arcadio, while the appellants
Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn, approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother
of the Kalalos, about as follows, "what is detaining you?" they all simultaneously struck with their bolos, the appellant
Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos slashed Marcelino
Panaligan, inflicting upon them the wounds enumerated and described in the medical certificates Exhibits I and H. Arcadio Holgado
and Marcelino Panaligan died instantly from the wounds received by them in the presence of Isabela Holgado and Maria Gutierrez,
not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away.
Arcadio Holgado's body bore the following six wounds, to wit:
"1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bonee completely and, the radius
partially.
"2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and 5 cm. wide extending
to the bone and cutting the deltoid muscle across.
"3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal space measuring
about 8 cm. long and 2 cm. wide.
"4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space and injuring the
lung, diaphragm, stomach and large intestine.
"5. A small superficial cut wound about 2 cm. long and ½ cm. wide situated on the inner side of the right scapula.
 "6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to the right of the spinal
column." (Exhibit I.)
Marcelino Panaligan's body, in turn, bore the following fourteen wound, to wit:
"1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm. long 3 cm. wide cutting
the omentum and injuring the lower portion of the stomach and a portion of the transverse colon, but no actual perforation
of either one of the two organs.
"2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a portion of scalp as
a flap.
"3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide.
"4. A cut wound about 12 cm. long across the face just below the eyes extending from one cheek bone to the other,
perforating the left antrum and cutting the nasal bone.
"5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of skin and muscle
which measures about 12 cm. long and 6 cm. wide.
"6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide cutting the bones of the
hand.
"7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left axilla.
"8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula.
"9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the scapula cutting the
muscles of the shoulder.
"10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the inner border of the right
scapula.
11. A wound on the back of the head, oval in shape, about 10 cm long. and 5 cm. wide from which a flap of scalp
was removed.
"12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep cutting the vertebral
column together with the great arteries and veins on the left side of the neck.
"13. A wound about 15 cm. long and 4 cm. wide on the left side of the back.
 "14. A small wound on the left thumb from which a portion of the bone and other tissues were removed." (Exhibit
H.).
The above detailed description of the wounds just enumerated discloses — and there is nothing of record to contradict it —
that all of them were caused by a sharp instrument or instruments.
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo Kalalo took from its
holster on the belt of Panaligan's body, the revolver which the deceased carried, and fired four shots at Hilarion Holgado who was
then fleeing from the scene in order to save his own life.
The appellants attempted to prove that the fight, which resulted in the death of the two deceased, was provoked by Marcelino
Panaligan who fired shot at Marcelo Kalalo upon seeing the latter's determination to prevent Arcadio Holgado and his men from
plowing the land in question. No such firing, however, can be taken into consideration, in the first place, because of the existence
of competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness, which corroborates that of Isabela
Holgado in all its details, showing that the said deceased was already lying prostrate and lifeless on the ground when the appellant
Marcelo Kalalo approached him to take his revolver for the purpose of using it, as he in fact did, against Hilarion Holgado; in the
second place, because the assault and aggression of the said appellant were not directed against said Marcelino Panaligan but
exclusively against Arcadio Holgado, the evidence of record on this point being overwhelming, and if his claim were true, he
naturally should have directed his attack at the person who openly made an attempt against his life; in the third place, because
the evidence shows without question that Panaligan was an expert shot with a revolver, and among the eight wounds that the
appellant Marcelo Kalalo received (Exhibit 3), not one appears to have been caused by bullet, and similarly, none of the other
appellants received any wound that might, in any way, suggest the possibility of having been caused by bullet; and finally, because
the fact that he and his co-appellants, together with those who had been charged jointly with them, had gone to the place of the
crime armed with bolos, determined at any cost to prevent the Holgados from plowing the land in dispute, cannot but disclose not
only their determination to resort to violence or something worse, but that they did not need any provocation in order to carry out
their intent.
They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the deceased Marcelino Panaligan
and Arcadio Holgado and inflicted upon them the wounds which resulted in their death, said appellant testifying that he was
compelled to do so in defense of his own life because both of the deceased attacked him first, the former with a revolver, firing
three shots at him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the appellants cannot
give credit. One man alone could not have inflicted on the two deceased their multiple wounds, particularly when it is borne in mind
that one of them was better armed, because he carried a revolver, and that he was furthermore an expert shot and scarcely two
arm-lengths from Kalalo, according to the latter's own testimony. The two witnesses for the defense, who witnessed the crime very
closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased Arcadio Holgado and that the other three
appellants went after the other deceased. It is true that Arcadio Holgado also used his bolo to defend himself from MarceloKalalo's
aggression but it is also no less true that five of the principal wounds of the other deceased Marcelino Panaligan were inflicted on
him from behind, inasmuch as according to Exhibit H they were all found at the back of the head, on the neck and on his back.
Neither is it less true that all the wounds of the appellant Marcelo Kalalo were inflicted on him from the front, which fact shows that
it was not he alone who inflicted the wounds on the two deceased because had he been alone Panaligan would not have exposed
his back to be thus attacked from behind, inasmuch as he was armed with a revolver, which circumstance undoubtedly allowed
him to keep at a distance from Kalalo; and in connection with the testimony of Isabela Holgado and Maria Gutierrez, said
circumstance shows furthermore that the three appellants Felipe Kalalo and Gregorio Ramos attacked said Panaligan with their
respective bolos at the same time that Marcelo Kalalo attacked Arcadio Olgado, in order that all might act simultaneously in
conformity with the common intent of the four and of their coaccused to eliminate through violence and at any cost, without much
risk to them, all those who wanted to plow the land which was the cause of the dispute between the two parties. And it is not
strange that the three appellants, who inflicted the wounds upon Marcelino Panaligan, should act as they did, because they knew
that the latter carried a revolver in bolster on his belt.
Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's allegation that he acted in self-
defense is absolutely unfounded on the ground that, were it true that the deceased Marcelino Panaligan succeeded in using his
revolver, he would have wounded if not the said appellant, at least the other appellants.
The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and Felipe Kalalo and Gregorio
Ramos that they proceeded to the scene of the crime completely unarmed, with the exception that one of them had a brush in his
hand and the other a plane, after Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and improbable
under the circumstances, knowing, as in fact that then knew, that their brother Marcelo Kalalo had been attacked by armed men.
This court cannot help but agree with the decision of the lower court where it states:
"It is improbable that after having been informed that their brother was engaged in a fight, they went to the scene
of the crime, one merely armed with a plane and the other with a brush. It is improbable that Felipe Kalalo also went to
that place simply to follow Juan Kalalo and Gregorio Ramos upon seeing them run unarmed in that direction. These
improbabilities of the defenses of the accused, in the face of the positive and clear testimony of the eyewitness pointing
to the said accused as the aggressors of the deceased Marcelino Panaligan and Arcadio Holgado, cannot, of course, prevail
against nor direct from the weight of the evidence of the prosecution, particularly taking into consideration the numerous
wounds of each of the deceased and the positions thereof, which show that the said deceased were attacked by several
 persons and that those several persons were the defendants. Furthermore, the established fact that after the commission
of the crime the said defendants had been in hiding in order to avoid arrest, is corroborative evidence of their guilt."
It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos were not arrested
until several days, because they had been hiding or, at least, absenting themselves from their homes.
That the four appellants should all be held liable for the death of the two deceased leaves no room for doubt. All of them, in
going to the land where the killing took place, were actuated by the same motive which was to get rid of all those who might insist
on plowing the land which they believed belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable from the
circumstance that all of them went there fully armed and that they simultaneously acted after they had been instigated by their
mother with the words hereinbefore stated, to wit: "What is detaining you?"
The question now to be decided is whether the appellants are guilty of murder or of simple homicide in each of cases G.R.
No. 39303 and G.R. No. 39304. The Attorney-General maintain that they are guilty of murder in view of the presence of the
qualifying circumstance of abuse of superior strength particularly refer. The trial court was of the opinion that they are guilty of
simple homicide but with the aggravating circumstance of abuse of superior strength.
It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance of "abuse of superior
strength", if proven to have present, raises homicide to the category of murder; but this court is of the opinion that said
circumstance may not properly be taken into consideration in the two cases at bar, either as a qualifying or as a generic
circumstance, if it is borne in mind that the deceased were also armed, one of them with a bolo, and the other with a revolver. The
risk was even for the contending parties and their strength was almost balanced because there is no doubt but that, under
circumstances similar to those of the present case, a revolver is as effective as, if not more than so than three bolos. For this
reason, this court is of the opinion that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. 39303 and 39304, respectively),
merely constitute two homicides, with no modifying circumstance to be taken into consideration because none has been proved.
As to the case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive shots at Hilarion
Holgado while the latter was fleeing from the scene of the crime in order to be out of reach of the appellants and their companions
and save his own life. The fact that the said appellant, not having contented himself with firing only once, fired said successive
shots at Hilarion Holgado, added to the circumstances that immediately before doing so he and his co-appellants had already killed
Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the former, shows that he was then bent on
killing said Hilarion Holgado. He performed everything necessary on his part to commit the crime that he determined to commit
but he failed by reason of causes independent of his will, either because of his poor aim or because his intended victim succeeded
 in dodging the shots, none of which found its mark. The acts thus committed by the said appellant Marcelo Kalalo constitute
attempted homicide with no modifying circumstance to be taken into consideration, because none has been established.
Wherefore, the three appealed sentences are hereby modified as follows:
In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the appellants is homicide and they are
hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify the
heirs of Marcelino Panaligan in the sum of P1,000 and to pay the proportionate part of the costs of the proceedings of both
instances; and by virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is hereby fixed
at nine years;
In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the appellants is homicide, and
they are hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally
indemnify the heirs of Arcadio Holgado in the sum of P1,000 and to pay the proportionate part of the costs of both instances; and
in conformity with the provisions of Act No. 4103, the minimum of the penalty ofreclusion temporal herein imposed upon them is
hereby fixed at nine years;
In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant Marcelo Kalalo is attempted
homicide, and he is hereby sentenced to two years, four months and one day of prision correccional, it being understood that by
virtue of the provisions of said Act No. 4103, the minimum of this penalty is six months, and he is furthermore sentenced to pay
the costs of the appeal in this case.
In all other respects, the appealed sentences in the said three cases are hereby affirmed without prejudice to crediting the
appellants therein with one-half of the time during which they undergone preventive imprisonment, in accordance with article 29
of the Revised Penal Code. So ordered.
||| (People v. Kalalo, G.R. Nos. 39303-39305, [March 17, 1934], 59 PHIL 715-726)
 [G.R. No. L-3462. February 16, 1907. ]

THE UNITED STATES, Plaintiff-Appellee, v. SANTACRUZ DURUELO, ET AL., Defendants-Appellants.

Thomas L. McGirr, for Appellants.

Attorney-General Araneta, for Appellee.

SYLLABUS

ATTEMPTED HOMICIDE. — Held, That under the facts stated in the opinion the defendants were not guilty of the crime of attempted
homicide.

DECISION

ARELLANO, C.J. :

This is an appeal by the defendants, Santacruz Duruelo and Eulalio Duruelo, from the Court of First Instance of Iloilo, sentencing them
to three years’ imprisonment for the crime of attempted homicide, and to pay the costs. The record discloses the following
facts:chanrob1es virtual 1aw library

(1) That the defendants were charged with the crime of attempted homicide, and that they, according to the complaint, went to the
house of one Agustin Drilon, and brandishing their bolos, called to the said Drilon to come down for they were going to kill him, but
"as Agustin Drilon refused to leave the house, the defendants went up the stairs for the purpose of killing him, and finding the door
locked, they broke the same open with their bolos in order to enter the house and kill the said Drilon, but while the defendants were
breaking the front door open, by reason of which they did not succeed in their purpose to kill him."cralaw virtua1aw library

(2) That the only proof of a deliberate intention on the part of the defendants to kill the said Drilon were the words alleged to have
been uttered by the defendant, to-wit: "Agustin, come down, we are going to kill you!" and "Agustin, come down, and we will cut you
to pieces!"

One of the witnesses testified that one of the defendant broke open the door and entered the house. Another witness stated that the
defendants cut the door open, and another witness that they went up the steps but did not enter the house. (Record, pp. 137, 131,
and 104.)

The foregoing facts do not even constitute the beginning of the execution of the crime of homicide, so as to hold the defendant guilty
of the crime of attempted homicide. Those facts might constitute the crime of forcible entry of a dwelling, as suggested by the
Attorney-General, but the testimony of the witnesses who testified that the defendants broke open the door and entered the house
can not be harmonized with the testimony of the witness who testified that the defendants cut the door, and the testimony of another
witness who stated that the defendants went up the steps but did not enter the house.

It seems that the defendants did nothing but shout to the said Drilon, and cause some damage to the door of the house. There is
nothing upon which the charge of attempted homicide contained in the complaint can be sustained, nor can the defendants be
convicted thereunder of the crime of forcible entry of a dwelling.

We accordingly reverse the judgment of the court below without prejudice to the killing of a new complaint for some other crime, and
we hereby acquit the said Santacruzan Duruelo and Eulalio Duruelo of the charge of attempted homicide, with the costs of both
instances de oficio.

After the expiration of ten days let judgment be entered in accordance herewith, and ten days thereafter let the cause be remanded
to the Court of First Instance. So ordered.
 [G.R. No. 1603. April 15, 1904. ]

THE UNITED STATES, Complainant-Appellee, v. FLAVIANO SIMEON, Defendant-Appellant.

Felix Ferrer, for Appellant.

Solicitor-General Araneta, for Appellee.

SYLLABUS

1. CRIMINAL LAW; FRUSTRATED MURDER. — In order to justify a conviction for the crime of frustrated murder, the proof must show
that the accused has performed all acts necessary to cause the death of a human being under circumstances which would raised the
homicide, if consummated, to the degree of murder, and that the failure to consummate the crime was due to causes independent of
the will of the accused.

2. ID.; THREAT OF ASSAULT. — One who raises a weapon against another as if about to strike with it is guilty of a misdemeanor
under article 589, paragraph 2 of Penal Code.

DECISION

McDONOUGH, J. :

The defendant, Flaviano Simeon, was charged with having, on or about April 10, 1903, in the city of Manila, feloniously attempted to
assassinate, to wit, a bolo; and that he was frustrated in the execution of his purpose by being overpowered by third parties.

He was placed upon trial April 28,1903; was found guilty, and was sentenced imprisonment for a term of four year and two months.

The proof in this case, briefly stated, shows that Bali Kan was night watchman at the railroad station in Manila; that his dwelling place
was very near that station; that the defendant was seen several occasions walking near that place with a working bolo in his hand
and had been requested by Bali Kan to go away but to refused to do so, whereupon Bali Kan pushed the defendant.

On the morning in question, was walking from the station toward his house, he encountered the defendant who, while two yards
away, raised his bolo as if about to strike or stab Bali Kan with it. The latter shouted for help an ran away, and immediately thereafter
a detective of the police department arrested the defendant. No blow was struck; nor is there proof of threats to kill or to do bodily
harm.

A crime is frustrated when the guilty person performs all the acts of execution which produce the crime as their consequence, but
nevertheless do not constitute it by reason of causes independent of the will of the perpetrator. (Art. 3, Penal Code.)

In order to constitute the crime of assassination, it must be proved that the accused committed the crime with treachery; for a price
or reward; by means of flood, fire, or poison; with deliberate premeditation, or vindictiveness, by deliberately and inhumanely
increasing the suffering of the person attacked.

The evidence does not show that any of these essential elements of the crime of assassination existed in this case. There is no proof
whatever from which it may be even inferred that the defendant intended to kill Bali Kan, much less to show that he intended to do
so with deliberate premeditation.

The crime committed by the defendant is that provided in article 589 of the Penal Code for threatening another weapons, and it is
punishable by imprisonment from one to five days or by a fine of from 15 to 125 pesetas.

The judgment of the Court of First Instance is reversed, and judgment is ordered that the defendant be imprisoned for a term of five
days, with costs de oficio.
 [G.R. No. 12066. February 3, 1917.]

THE UNITED STATES, plaintiff-appellee, vs. ANGEL JOVEN, defendant-appellant.

Basilio Aromin for appellant.

Acting Attorney-General Zaragoza for appellee.

SYLLABUS

1. ATTEMPTED HOMICIDE; PHYSICAL INJURIES. — Where the intent of the assailant to kill his victim is clear, the act of the
accused inflicting several injuries upon the offended party constitutes the crime of attempted homicide and not merely physical in
injuries.
2. ID.; ID.; WHERE INTENT TO KILL IS PRESENT. — Where the means employed by the assailant were adequate to cause the
death of his victim, and at the time he was being prevented by a third person from continuing to attack the offended party, who
was already wounded and retreating, he said, "Until I kill him," the intent to kill is clear, and the crime committed is not merely
physical injuries, but attempted homicide, since the offender has commenced, by direct overt acts, the commission of the crime
he intended, although the same was not produced by reason of a cause independent of his will.

DECISION

ARAULLO, J p:

This cause was commended in the Court of First Instance of the Province of Pampanga by a complaint of the following tenor
filed by the provincial fiscal of said province on July 17, 1915:
"The undersigned fiscal charges Angel Joven with the crime of attempted homicide, committed as follows:
"That the said defendant, in the municipality of Bacolor, Pampanga, P. I., on the afternoon of June 13, 1915, armed
with a pocket-knife, did willfully, unlawfully and criminally, and with the intent to kill Edilberto Joven, assault him with
 his pocketknife and inflict upon him several wounds, and, if he did not succeed in his said design, it was due to the timely
intervention of Fortunato Datu.
"An act committed contrary to law."
On arraignment the defendant plead not guilty. After trial and the introduction of evidence, the court rendered judgment on
October 25th of the same year, finding the defendant guilty as principal of the crime of attempted homicide, without any modifying
circumstance, and sentenced him, under article 404, in connection with article 3 of the Penal Code, to the penalty of two years,
four months and one day of presidio correctional, to indemnify the aggrieved party, Edilberto Joven, in the sum of P500, or, in case
of insolvency, to suffer the corresponding subsidiary imprisonment, and to pay the cost. From this judgment the defendant
appealed.
It was proven at the trial, beyond all doubt, and was not denied by the defendant, that between 3 and 4 o'clock in the
afternoon of June 13, 1915, while Edilberto Joven, a pharmacist and resident of the municipality of Bacolor, Province of Pampanga,
was crossing the street in front of the market of said pueblo, he met the defendant, Angel Joven, his cousin, and said to him that
he (Angel) was pale and seemed to be sick; that thereupon the defendant replied "yes," and, approaching Edilberto and placing
his left hand upon his shoulder, asked him whether he had spoken when the defendant, who had one hand in his trousers' pocket,
drew it out armed with a pocketknife; that with this weapon he assaulted Edilberto Joven, inflicting upon him a wound on the neck,
another on the left forearm and still another on the stomach; that thereupon a man by the name of Fortunato Datu approached
them and caught the defendant by the arm, in the hand of which he was holding the knife, and then Edilberto, who, while in such
manner continued to be assaulted by the defendant and kept withdrawing until he arrived at one corner of the market, improving
the opportunity offered him by the defendant's being held, rushed to his pharmacy near by, for first medical treatment, where he
became very weak as a result of the hemorrhage of the wounds in his arm and neck, and later was obliged to enter the General
Hospital and undergo two operations because of the atrophy of his injured arm, which lost its strength rendering him incapacitated
to perform a part of his work in the pharmacy. The injured member was still in the same condition during the time of the trial, and
it could no then be determined positively how long it would remain so.
The defendant introduced no evidence whatever at the trial, having waived, through counsel, his right so to do. He now assails
the judgment appealed from, which he deems erroneous, but only as regards the classification of the crime, which he considers
should not be that of attempted homicide, but lesiones menos graves; and in respect to the sentence in so far as it imposes an
indemnity for damages. The appellant argues that damages were not proven at the trial, and that lower court fixed them under
the sole guide of his judicial discretion.
 Doctor Clemente Punu who examined the wounded man immediately after the assault and rendered him professional services
for some time, said that he had a wound produced by a cut 5 centimeters long in the outer, lower part of the left part of the left
forearm; another wound, inflicted by a cutting and pointed instrument, situated on the left side of the neck one and a half centimeter
long, the depth of which he did not probe in order to avoid a hemorrhage which might have caused the patient's death; that the
wound on the neck was of a serious nature, as it was just behind some main arteries, and had these been cut the patient would
have died in five minutes; that, had this wound been deep, it necessarily would have been mortal and none of the doctors would
have been able to arrive in time to save the patient; that the wound on the left arm also might have caused his death, had it been
completely neglected and the precaution not taken to bind it so as to prevent further hemorrhage; that this latter wound affected
the muscles and one of the interosseous arteries and probably was not caused directly, but while the injured man was shielding
his neck, as explained by the fact that it was a cut. and, had it been inflicted directly, it would have been a puncture or stab,
witness adding that the blow was probably aimed at the neck; that the other wound of EdilbertoJoven was not exactly on the
breast, as hesitated in his testimony, but was on a level with the stomach, and was not serious, though it would have been mortal
had it been deeper.
The weapon with which the defendant wounded his victim was exhibited at the trial and the court took judicial notice of the
fact that it was an automatic pocket-knife, which, when opened, could not be closed without touching a spring, and that its blade
was five inches long.
Finally, Fortunato Datu (who, as aforestated, went up to the wounded man to help him and held the defendant's arm, the
hand of which grasped the knife with which he assaulted his victim) testified that he got between the two men and caught hold of
the defendant's right hand that held the knife; that he said to the defendant: "No more, now that he is wounded," and succeeded
in separating the men, but that the defendant, before the witness intervened and held him, said to the assaulted party, who kept
withdrawing and was avoiding the blows: "Until I can kill you."
As may be seen, the defendant, in assaulting and wounding Edilberto Joven made use of a weapon adequate to the purpose
of causing on the latter's body sufficient injury for the realization of the intent to kill him. One of the wounds which the defendant
succeeded in inflicting upon his victim with said weapon, was inflicted on the latter's neck and was of such a nature that, according
to Dr. Punu, had it severed the main arteries in from of it, the victim would have died in five minutes, and it would necessarily
have been fatal had it been deeper, as then its consequences. The defendant's intent to would the assaulted man on the neck was
indicated by the fact of his having also inflicted upon him a wound on his left arm, not directly, but, as Doctor Punu also stated
while the assaulted man was shielding his neck, for this wound was not straight and was not a thrust or stab, but was a cut. All
the foregoing facts force upon us the inevitable conviction that the defendant's purpose was to kill Edilberto Joven, and he
manifested this intention clearly by saying to Edilberto while the latter was withdrawing and trying to avoid the blows which the
defendant was striking at him with the knife: "Until I can kill you." The defendant did not succeed in performing all the acts of
execution which were to produce the result that he intended, because of the intervention of Fortunato Datu, who, by holding his
arm, in the hand of which the knife was grasped, gave the assaulted man an opportunity to get out of his assailant's reach and
free himself from the danger in which he really was.
The manifest intention of the agent, as shown by his acts and confirmed by his words, and for the realization of which, means
were employed adequate to obtain the result sought by him, is an element that necessarily must be taken into account for the
classification of the crime which such acts constitute, and for the imposition of the corresponding penalty.
As the defendant commenced the execution of the crime of homicide directly by exterior acts, though he did not perform all
the acts of execution which were to produce the crime, owing to a cause or accident that was not his own voluntary desistance, to
wit, through the intervention of Fortunato Datu at the moment when the defendant, knife in hand, was pursuing and wounding
Edilberto Joven, the classification of the crime committed by the defendant and for which he is responsible as principal by direct
participation, is that of attempted homicide, and the lower court did not err in so holding in the judgment appealed from.
Although it is true as the appellant says in his brief, that at the trial no evidence at all was introduced with respect to the
value of the medicine used in curing the offended party, and no voucher whatever of any expense incurred and no bill for doctor's
fees were presented, yet the record itself of the case discloses the nature, seriousness, and consequences of the wound inflicted
upon the victim by the defendant, as hereinabove stated. It is also shown, by the testimony of the aggrieved party himself, which
was not contradicted by the defendant, that he suffered consequential injury as a result of his wounds; that he was attended by
Doctor Singian, who had not yet collected his bill from the patient; that the cost incurred on account of the injury suffered by the
patient was approximately P400, covering his expenses in coming to this city and of his sojourn here, his hospital bills and the
medicine use, including among the expenses of his coming to Manila, the travelling expenses of is wife, for he had to bring her
along with him and to be accompanied by her twice in the hospital, together with two of his children. Finally, in closing his said
testimony, witness stated that doctor's fees were not included in the P400.
Doctor Punu, in describing the condition of Edilberto Joven's left arm as result of the wound made in it by the defendant, said
that the injured man was hindered in the use of that arm for "hitting purposes" (so witness said), but not for light work in the
pharmacy, — laboratory work. In referring to his fees for his attendance upon, and medical care of, the patient, this witness added
that up to that time, that is, to the time of his testimony, he had not yet collected the same; that he had collected no fees from
the Joven family, nor had the latter requested his bill; that he attended the patient for quite a while; and that his fees would
probably not exceed P100 and might be P80.
 In view of these facts, the court stated in the judgment appealed from that in cases of this nature it was its duty to fix
damages in the amount he believed to reasonable; that the doctors had not collected their fees from the patient, and that
considering the seriousness of the wounds and the fact of the injured man's not having completely recovered the use of his left
arm, the damages should, he believed, be fixed at P500.
Pursuant to article 122 of the Penal Code, it is the duty of the courts to regulate the amount of the damages the payment of
which, as civil liability, should be imposed upon the person criminally responsible for the injury. The second paragraph of the same
article prescribes that the courts shall determine the amount of this indemnity in the manner prescribed for the reparation of
damages in the next preceding article (121). In the instant case the lower court, in regulating the amount of the indemnity for the
injuries caused the offended party by the defendant and in fixing it at P500, taking into account for this purpose the nature and
importance of these wounds and their consequences, as well as the testimony given by the aggrieved party himself and by Doctor
Punu, hereinabove cited, far from incurring the error assigned by the appellant in his brief, followed out he mandate of the law,
above-mentioned, and we are of the opinion that the amount fixed by him for that purpose is reasonable and just.
As it does not appear that the commission of the crime of attempted homicide of which the defendant is guilty as principal by
direct participation, was attended by any circumstance modifying said liability, the penalty that should be imposed upon the
defendant, under article 404, in connection with article 66, of the Penal Code, is that of prision correccional in its medium degree,
and not that of presidio correccional in the same degree, which latter penalty was the one imposed upon him by the lower court in
the judgment appealed from. He should also be sentenced to the accessory penalties mentioned in article 61 of the said Code.
For the foregoing with the understanding that the penalty of two years, four months and one day, imposed upon the defendant,
shall be deemed to be prision correccional, and sentencing him, besides, to the accessory penalties of suspension of the right to
hold public office and the right of suffrage during the term of his sentence, we affirm in all other respects the judgment appealed
form, with the costs of this instance against the appellant. So ordered.
||| (U.S. v. Joven, G.R. No. 12066, [February 3, 1917], 44 PHIL 796-803)
 [G.R. Nos. 39708 & 39709. April 16, 1934.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. LEOVIGILDO DAVID, defendant-appellant.

Manuel S. Banzon, Eligio Lagman, Alberto Aquino and Vicente J. Francisco for appellant.
Solicitor-General Hilado for appellee.

SYLLABUS

1. CRIMINAL LAW; FRUSTRATED HOMICIDE. — The defendant, in firing his revolver at the offended party, hitting him on the
upper left hand part of the body, piercing it from side to side and perforating the lung, performed all the acts of execution which
should have produced his death but did not produced it by reason of the adequate and timely intervention of medical science, a
cause entirely independent of the defendant's will. Such proven facts constitute the crime of frustrated homicide defined in article
404 of the old Penal Code which was in force on the date of the commission of the crime.
2. ID.; DISCHARGE OF FIREARM WITH LESS SERIOUS PHYSICAL INJURIES. — Although it is true that the shot, which wounded
the boy G. P., was not aimed at him, the same cannot be considered accidental inasmuch as it was willfully aimed at the person
against whom the attack was principally directed and, therefore, the defendant is liable for the consequences of his acts in
accordance with the provisions of article 1, paragraph 3, of the old Penal Code.

DECISION

VILLA-REAL, J p:

This case comprises two appeals taken by the defendant Leovigildo David from the judgment rendered by the Court of First
Instance of Bataan in criminal case Nos. 3310 (G. R. No. 39708) and 3296 (G. R. No. 39709), the dispositive part of which reads
as follows:
 "Wherefore, in criminal case No. 3310, for frustrated murder, the court finds the defendant Leovigildo David guilty
of frustrated murder, without any aggravating nor mitigating circumstance and, therefore, sentences him to twelve (12)
years and one (1) day of reclusion temporal with the accessory penalties of the law, to indemnify the offended party
Jose V. Reyes in the sum of one thousand pesos, with no subsidiary imprisonment in case of insolvency, and to pay the
costs.
"The penalty of reclusion has been imposed instead of cadena following the doctrine laid down in the case
of People vs. Orifon (57 Phil., 594).
"In criminal case No. 3296, for discharge of firearms with less serious physical injuries, the court finds the defendant
Leovigildo David guilty of the said crime and sentences him to two (2) years, eleven (11) months and eleven (11) days
ofprision correccional with the accessory penalties of the law, and to pay the costs. So ordered."
In support of his appeal, the defendant-appellant assigns the following alleged errors as committed by the trial court in its
aforesaid decision, to wit:
"1. In holding the defendant-appellant guilty of the crime of frustrated murder charged in the above entitled case
No. 3310, and consequently in sentencing him to reclusion temporal, to indemnify the offended party and to pay the
costs.
"2. In holding the defendant-appellant guilty of the crime of discharge of firearm with less serious physical injuries
with which he was charged in the above entitled case No. 3296 and sentencing him, by virtue of the same, to prision
correccional, with costs.
"3. In adopting the prosecution's theory that the defendant, with deliberate intent to kill Jose V. Reyes, fired from
behind four revolver shots at the latter.
"4. In not accepting the theory of the defense that the defendant, in firing his revolver at the offended party, did
not intend to kill the latter but he did so in defense of his father and while the offended party was facing him.
"5. In not acquitting the defendant-appellant of the charges in the two above entitled cases."
The two cases at bar arose from two informations filed by the provincial fiscal of Bataan in the justice of the peace court of
Dinalupihan, the one against Leovigildo David and Teodoro David for the frustrated murder committed on the person of Jose V.
Reyes at the time, place and in the manner described in the corresponding information, and the other against said
Leovigildo David for discharge of firearm with less serious physical injuries committed on the person of German Pinili at the time,
place and in the manner described in the corresponding information. After preliminary investigations had been duly conducted and
the cases forwarded to the Court of First Instance of Bataan, the same provincial fiscal filed the following informations:
"On or about April 18, 1931, in the municipality of Dinalupihan, Province of Bataan, Philippine Islands, and within
the jurisdiction of this Court of First Instance, the above named defendant Leovigildo David willfully, illegally and
criminally shot at German Pinili with his revolver, the bullet penetrating the latter's left side and lodging itself in the left
scapula, as a result of which said German Pinili was under medical treatment for about 25 days.
"That on or about April 18, 1931, in the barrio of Luacan, municipality of Dinalupihan, Province of Bataan, Philippine
Islands, and within the jurisdiction of this court, the said defendant, without any justifiable motive whatsoever and with
deliberate intent to kill Jose V. Reyes with treachery and evident premeditation, willfully, illegally and criminally, fired
four revolver shots at Jose V. Reyes, who then had his back toward the defendant, inflicting upon him a serious bullet
wound at the back above the left clavicle, the medical treatment of which lasted about seventy-seven (77) days, having
thereby performed all the acts of execution which should have, as a consequence, produced the crime of murder on the
person of the said Jose V. Reyes, which, nevertheless, was not consummated by reason of causes independent of the will
of the said defendant. The offended party spent about one thousand pesos for the treatment of his wound.
"The defendant is a recidivist, having been formerly convicted of the offense of less serious physical injuries in
criminal case No. 2901 of this court, by virtue of a final and executory judgment dated December 8, 1927, the penalty of
which was served by the said defendant.
"Contrary to the provisions of article 403, in connection with those of article 3, paragraph 2, of the Penal Code, and
with the aggravating circumstance of recidivism."
From the documentary as well as the oral evidence presented at the joint trial of the two cases, the following pertinent facts,
which are necessary for the resolution of the questions raised in these appeals, have been proven beyond reasonable doubt, to
wit:
The herein defendant-appellant Leovigildo David is the son of Teodoro David, a democrata candidate for municipal president
of Dinalupihan, and the offended party Jose V. Reyes is the brother of Emilio Reyes, nacionalista candidate for member of the
provincial board of Bataan, both during the general elections of 1931.
While Emilio Reyes and Teodoro David were engaged in an argument after the former had quarreled with the aforesaid
defendant-appellant, then an election inspector, because said Emilio Reyes wanted to see the list of registered voters, Jose V.
Reyes, the complainant in criminal case No. 3310 and brother of Emilio Reyes, arrived at the scene and asked who was making
trouble. Upon hearing him, Teodoro David, in a contemptuous tone, said in Tagalog: "Phse, ichura mong lalake" (Pshaw, you are
but a shrimp) and, opening the door of the car where he was, rushed upon his interlocutor and the two engaged in a hand-to-hand
fight during which both fell to the ground. TeodoroDavid fell on his right side, face downwards, Jose V. Reyes on top of him. The
two constabulary soldiers present, who had arrived in the same car with Teodoro David a few moments before, tried to prevent
them from coming to blows but due to the presence of many people who were witnessing the quarrel, were unable to make timely
intervention and succeeded in separating the combatants only after they had already fallen to the ground, Cirilo Dullas raising
JoseV. Reyes and holding him aside, while Esteban Aninang did the same to Teodoro David and took him to his car. While Jose V.
Reyes was on top of Teodoro David, there was heard a first shot, which did not hit its mark, fired by the herein defendant
Leovigildo David, later followed by another which hit the stock of the gun carried by the constabulary soldier Cirilo Dullas in his
right hand as he held Jose V. Reyes with his left hand after separating the latter from TeodoroDavid. Upon hearing the second shot
and feeling the bullet hit the stock of his gun, Dullas instinctively shoved Jose V. Reyes, whom he continued to hold by the left arm
with his left hand, causing the latter stagger and stoop to the right side, his back toward the north whence the shots came. While
Jose V. Reyes was thus stooping, a third shot was heard, which hit the upper left hand side of Reyes' body, whereupon he fell to
the ground. Immediately thereafter, there rang a fourth shot which hit the left axilla of the boy German Pinili, who was perched on
top of the fence witnessing the fight between Jose V. Reyes and Teodoro David. Jose V. Reyes was immediately brought by his
brother Emilio Reyes and others to Dr. Gonzalo Nuguid's clinic in Orani, Bataan, where he was given first aid, while the constabulary
soldiers seized the revolver of the defendant Leovigildo David and placed him under arrest. In the chamber of the revolver of the
defendant Leovigildo David were found four empty cartridges. Constabulary Captain Cirilo Legaspi, who had been notified of the
incident, immediately ordered the seizure of Jose V. Reyes' revolver which was found in a box in the latter's house, while he,
accompanied by his brother Emilio Reyes, was being treated by the doctor.
The first question to be decided in this appeal, in connection with the criminal case for frustrated murder, is one of fact and
consists in whether or not Jose V. Reyes had his back toward Leovigildo David when the latter shot at him.
The witnesses for the prosecution testified in the affirmative, while those for the defense testified in the negative stating that
when the defendant testified in the negative stating that when the defendant fired the shot which hit Jose V. Reyes, the latter was
on top of Teodoro David, the defendant's father, and in the act of hitting Teodoro on the forehead for the second time with the butt
of his revolver. The testimony of the constabulary soldier Esteban Aninang, who stated that the violent shove given Jose V. Reyes
by his companion Cirilo Dullas caused the said Jose V. Reyes to stagger and stoop to the right side and at the same time to turn
his back toward the defendant simultaneously with the third shot, corroborates the testimony of the witnesses for the defense that
Jose V. Reyes was facing the defendant.
 The second question of fact to be decided is whether or not Jose V. Reyes has struck Teodoro David with the butt of his
revolver, while the latter was under him, and was in the act of striking said Teodoro David for the second time when
Leovigildo David fired the shot which hit him.
On this point, the testimony of the two constabulary soldiers, who may be regarded as impartial witnesses, is unanimous in
that when Jose V. Reyes received the bullet wound, he was already standing far from Teodoro David and beside the constabulary
soldier Cirilo Dullas who had dragged him away from said Teodoro David.
From the foregoing, it may be stated as a conclusion of fact that when Leovigildo David fired the shot that hit Jose V. Reyes,
the latter was facing him, and if the bullet hit Reyes on the back, it was due to the fact that his position was changed upon being
shoved by the constabulary solider; and that when the said defendant Leovigildo David fired the same shot, said complainant was
already far from Teodoro David.
Now then, do the above facts, which were proven beyond reasonable doubt at the final, constitute the crime of frustrated
murder for which the defendant Leovigildo David has been convicted and sentenced?
Inasmuch as the defendant fired the shot facing the victim and in the presence of many people, he did not employ means,
methods and forms in the execution of the crime, which tend directly and specially to insure its execution without risk to himself
arising from the defense which the offended party might make (article 10, No. 2, of the old Penal Code). The very fact that Jose V.
Reyes had been shoved by the constabulary soldier Cirilo Dullas shows that he could have evaded the shot and thereby frustrate
the defendant's intent. Therefore, the circumstance of treachery was not present in the commission of the crime. Did the defendant
Leovigildo David had the intention of killing Jose V. Reyes?
The defendant-appellant invokes the defense of a relative to exempt himself from criminal liability (article 8, No. 5, of the old
Penal Code). It has been shown that when the said defendant fired at Jose V. Reyes, the aggression had already ceased and,
therefore, the motive for defense; and in firing at him victim, the defendant's intention could not have been only to repel the
aggression against his father but also to kill Jose V. Reyes. Therefore, the intention of the defendant Leovigildo David to kill Jose V.
Reyes is obvious.
The third question to be decided is whether or not the defendant Leovigildo David, having intended to kill Jose V. Reyes, had
performed all the acts of execution which should have produced the latter's death, but did not produce it by reason of causes
independent of his will (article 3 of the old Penal Code).
The doctors, who testified as experts on whether or not the wound received by Jose V. Reyes was necessarily mortal, are not
unanimous.
 Dr. Anzures testified as follows: "As to the seriousness of the wounds, I can only make approximate statements, not accurate
ones, because in order to determine the seriousness of a wound a doctor can with certainty state the seriousness of a wound for it
is determined only during the autopsy. . . ." (T. s. n., pp. 144, 145.) "On the basis of general principles, the wound was not mortal.
The general principles I am referring to relate to the normal positions of the organs and tissues." (T. s. n., p. 151.) "Judging from
the position of the scars, I am of the opinion that the left lung was affected but the affected part is near the border." "It would be
perforated. The effect should be internal hemorrhage but the flow of the blood would be mortal because the blood vessels in that
region are small." "All the wounds including those caused at the base of the lungs, are not mortal." (T. s. n., p. 152.)
It will be seen that the testimony of Dr. Anzures is purely hypothetical because he has been nothing but the scars, but
nevertheless he is of the opinion that if the lung had been perforated, it would result in an internal hemorrhage and the flow of the
blood would be mortal because the blood vessels of that part are small.
Dr. Afable, who may be said to have saved the offended party's life, testified as follows: "Taking all the above state facts into
consideration, I arrived at the conclusion that the blood found in the lung of Mr. Reyes had its origin in the injury or wound in the
upper left part of the chest." (T. s. N., p. 6.) "I am of the opinion that had not the fluid been drained from the patient's lung, it
could have caused his death, taking into consideration that condition in which he was then found." (T. s. n., p. 8.) Answering a
question regarding the accumulation of the fluid in the pleural region due to the congestion of the lung, he said: "That is one of the
causes of death in this case, and a continuous internal hemorrhage might cause death as well." (T. s. n., p. 16.)
From all the above expert testimony, it may be inferred that had it not been for the timely and adequate medical intervention,
the offended party Jose V. Reyes would have succumbed from the wound in his lung. A wound that may, by itself alone, produce
a similar consequence, is mortal.
The defendant-appellant Leovigildo David, in firing his revolver and hitting Jose V. Reyes on the upper left hand part of his
body, piercing it from side to side and perforating the lung, then performed all the acts of execution which should have produced
the latter's death but did not produce it by reason of the timely and adequate intervention of medical science, which was completely
independent of his will.
The facts proven at the trial as committed by the defendant- appellant Leovigildo David constitute the crime of frustrated
homicide, defined and penalized in article 404 of the old Penal Code which was in force at the time of the commission of the crime.
The penalty prescribed by law for the said crime, if consummated, is reclusion temporal in its full extent. Inasmuch the crime with
which Leovigildo David is charged herein is merely frustrated, the said penalty should be one degree lower, that is, prision mayor in
its full extend, the duration of which is from six years and one day to twelve years. In order to determine the penalty, the presence
of the mitigating circumstance of immediate vindication of a grave offense committed against an ascendant (article 9, No. 5, of the
old Penal Code) should be taken into consideration, without any aggravating circumstance to compensate the same, for which
reason the said penalty should be imposed in its minimum period, that is, from six years and one day to eight years of prision
mayor (article 81, rule 2, of the old Penal Code).
As to the offended party German Pinili, the evidence shows beyond reasonable doubt that one of the shots fired by the
defendant Leovigildo David hit him on the left axilla, the treatment of the wound having lasted about twenty-five days.
Although it is true that the shot, which hit the boy German Pinili, was not aimed at him, however, it cannot be considered
accidental because, it having been voluntarily aimed at Jose V. Reyes, the defendant-appellant LeovigildoDavid is liable for the
consequences of his act, in accordance with the provisions of article 1, paragraph 3, of the old Penal Code, which provides that
"any person voluntarily committing a felony (delito) or misdemeanor (falta) shall incur criminal liability, although the wrongful act
done be different from that which he intended."
Although the crime, which the defendant Leovigildo David had intended to commit against Jose V. Reyes, was homicide, the
crime committed by him against the boy German Pinili is discharge of firearms with less serious physical injuries, and the penalty
which should be imposed upon him is that which corresponds to this complex crime, in its maximum period (article 64, paragraph
2, of the old Penal Code). However, inasmuch as he is charged only with the said complex crime, the only penalty that may be
imposed upon him is that corresponding to this offense of discharge of firearms with less serious physical injuries, defined and
penalized in articles 408, in connection with article 418 of the old Penal Code, with prision correccional in its minimum and medium
periods, that is, from six months and one day to four years and two months, which should be imposed in its maximum period, that
is, from two years, eleven months and eleven days, to four years and two months, in accordance with the rule established in article
89, paragraph 2, of the same Code. There being no modifying circumstance to be taken into consideration, the said penalty should
be imposed in its medium period, that is, from three years, four months and eight days to three years, nine months and three
days.
In both cases, Act No. 4103, otherwise known as the Indeterminate Sentence Law, is applicable to the defendant-appellant,
and consequently the maximum of the penalty, which he should suffer in case No. 3310, should be the maximum of that what
should be imposed upon him under the law, that is, eight years of prision mayor; and the minimum, a penalty embraced within
that next lower in degree to that prescribed by law for the crime of frustrated homicide, which is prision correccional in its full
extent, the duration of which is from six months and one day to six years, that is, one year and one day of prision correccional.
Therefore, the total extent of the penalty to be imposed upon the defendant for the crime of frustrated homicide should be from
one year and one day to eight years.
 In criminal case No. 3296, for the complex crime of discharge of firearms with less serious physical injuries, the maximum of
the penalty, which should be imposed upon the defendant, is the maximum period of the penalty prescribed by the law, that is,
three years, nine months and three days of prision correccional, and the minimum, four months and one day of arresto mayor, a
penalty embraced within that next lower in degree which is arresto mayorin its medium and maximum periods, the duration of
which is from four months and one day to six months, and consequently the full extent of the penalty which should be imposed
upon him is from four months and one day to three years, nine months and three days.
The total amount of the expenses incurred by the offended party for medical assistance is P1,030.79.
Wherefore, the judgment appealed from is hereby modified, and the defendant Leovigildo David is declared guilty of the crime
of frustrated homicide in criminal case No. 3310 of the Court of First Instance of Bataan (G. R. No. 39709) and sentenced to one
(1) year and one (1) day of prision correccional to eight (8) years of prision mayor and to indemnify the offended party Jose V.
Reyes for damages in the sum of P1,030.79; and in criminal case No. 3296 of the said Court of First Instance of Bataan (G. R. No.
39708), he is declared guilty of the crime of discharge of firearms with less serious physical injuries, and sentenced to four months
and one day to three years, nine months and three years, nine months and three days, with the costs of both instances in the two
cases against the appellant. So ordered. Malcolm, Abad Santos, Butte, and Diaz, JJ., concur. ||| (People v. David, G.R. Nos. 39708
& 39709, [April 16, 1934], 60 PHIL 93-104)
 G.R. No. L-27415 November 29, 1927

THE PEOPLE OF THE PHILIPPINE ISLAND, Plaintiff-Appellee, vs. MARCOS MERCADO, Defendant-Appellant.

AVANCEÃ'A, C.J.:
On the morning of July 23, 1926, in the municipality of Bustos, Province of Bulacan, Rufino Lopez was attacked and wounded on the
left side of the abdomen with a sharp edged weapon by his brother-in-law Marcos Mercado. The wound extended to the peritoneal
cavity and, according to Doctor Estrada, who attended the injured man, it was serious enough to have produced his death had it not
been properly treated in time.

A complaint having been filed against Marcos Mercado charging him with the crime of frustrated murder, he was convicted and
sentenced. to fourteen years, eight months and one day reclusion temporal, with the accessories of the law, to indemnify the injured
party in the sum of P780 and to pay the costs of the action.

The evidence of the prosecution shows that while Rufino was gathering ears of corn that morning, he was suddenly attacked by the
accused who inflicted upon him the wound hereinbefore described. According to the injured party, as soon as he felt himself wounded,
he turned around and only then saw the accused behind him. He caught his aggressor's right hand which bore the weapon, with his
left hand, and with his right tried to snatch the weapon. While they thus grappled, Alejandro Mercado, who was some distance away
and saw the attack, left the bolo with which he was working on the ground and went towards the combatants. Alejandro succeeded
in wresting the weapon from the accused who stepped back from them. The accused, however, upon seeing the bolo left by Alejandro
on the ground, picked it up and came back to where the injured party was, in order to again assault him, but was prevented from
doing so by Alejandro's intervention. The accused then asked the latter for the weapon taken from him, offering in exchange the bolo
which he had picked up from the ground. After Alejandro had received his bolo and had delivered the weapon to the accused, the
latter withdrew.

The lower court found that the qualifying circumstance of treachery was present in the commission of the crime. We do not find such
circumstance sufficiently proven. We cannot admit that the attack took place as related by the offended party; we cannot conceive
how, coming upon him from behind, the accused could have wounded him on the left side of the abdomen, having the weapon in his
right hand. The position of the wound shows that the attack must have been made with the accused in front of the injured party.
Besides, Alejandro Mercado, testifying for the prosecution, contradicted from the injured party on this point. According to said witness,
the accused came up from behind but suddenly placed himself in front of his victim and it was then that he wounded the latter in the
abdomen.

As the versions of the occurrence given by the witnesses for the prosecution are contradictory to each other, we cannot accept them,
finding that the crime was committed in this or that particular way, and, hence, we cannot hold that the circumstance of treachery
was present.

It has been clearly shown that the accused intended to kill the offended party, having' executed to this end all the acts that should
have produced this result but for Alejandro's intervention This is seen not only from the location and seriousness of the wound
inflicted on the injured party, but also from the accused's conduct in picking up Alejandro's bolo after the latter had disarmed him and
in returning to where the injured party was in order to again attack him with said bolo.

Counsel for the defense tried to show that the accused acted in legitimate self-defense, as it was the injured party who first provoked
and attacked him, taking hold of his neck. We do not find this defense proven.

The facts established by the evidence of the prosecution constitute the crime of frustrated homicide, aggravated by the circumstance
of the accused being a brother-in-law of the injured party. The penalty one degree lower than that provided by the law for the crime
of homicide should be imposed.

The judgment appealed from is modified and it being understood that the crime committed is that of frustrated homicide, the appellant
is sentenced to ten years and one day reclusion temporal, said judgment appealed from being confirmed in all other respects, with
the costs against the appellant. So ordered.
G.R. No. L-4614 January 15, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
ESTEBAN MONTENEGRO, defendant-appellant.

Felipe Agoncillo for appellant.

Office of the Solicitor-General Harvey for appellee.

CARSON, J.:

The information in this case charges Esteban Montenegro and Vicente Sison, with the crime of frustrated assassination, committed as
follows:

That on or about April 19, 1907, at night, in the municipality of Taal, Batangas, the said Esteban Montenegro and Vicente Sison
were walking together; the first named, Esteban Montenegro was provided with a big stick of palma brava and a revolver, and
the second, Vicente Sison, also carried a stick of palma brava and a dagger. They stopped at the foot of the bridge that connects
the town of Taal with that of Lemery on the Taal side, and waited at said place for Doroteo Ilagan, with the deliberate intent to
kill him; in furtherance of such purpose the accused Esteban Montenegro willfully, maliciously, and feloniously gave Ilagan a
heavy blow with the stick and while the other accused, Vicente Sison, standing in a threatening attitude, was watching Ramon
Castillo, the friend of Doroteo Ilagan, in order to prevent his rendering any assistance to the latter. During the struggle that
ensued between the two the former, Esteban Montenegro, fired two shots in succession and at point-blank range against the
said Ilagan, causing a contused wound in his left forearm and two wounds in the abdomen, which last two, on account of their
seriousness, might have caused the death of the person attacked had it not been for the prompt and extraordinary assistance
and efforts of the physicians. The accused Esteban Montenegro, with the cooperation of the other accused, Vicente Sison,
executed all the acts which would have resulted in the death of Doroteo Ilagan, although, for reasons which are independent for
the will of the accused, such result was avoided. All of the foregoing being contrary to law.

The trial court acquitted both defendants of the crime of frustrated assassination with which they were charged, but convicted Esteban
Montenegro of the lesser included crime of frustrated homicide, and sentenced him to eight years and one day of prison mayor,
together with the accessory penalties prescribed by law, and to the payment of the sum of P500 to the complaining witness as civil
damages.
On the night of the 19th of April, 1907, Doroteo Ilagan, the complaining witness, and his friend Ramon Castillo, met Esteban
Montenegro and his codefendant in this action on the bridge connecting the town of Lemery and the town of Taal, in the Province of
Batangas. Montenegro called Ilagan aside and charged him with having made offensive remarks about a certain woman, to which
Ilagan replied that not only had he never made such remarks, but that he wanted to know the name of the person who had charged
him with doing so, in order that he might investigate the matter. Montenegro refused to give the name of the person from whom he
had received his information and challenged Ilagan to accompany him to a suitable place for a fight. Ilagan declined to accept the
challenge on the ground that he was not ready at that moment, but offered to meet Montenegro on some other occasion. They then
separated, but a short time afterwards Ilagan and Castillo again met Montenegro, accompanied by various companions; and on this
occasion Montenegro separated himself from his friends, went up to Ilagan and struck him with a club (garrote de palma-brava).
Ilagan in his turn struck at Montenegro with his stick, which in some way fell from his hand, and then seized Montenegro by the collar
(cuello) or throat. Montenegro on being seized by his opponent threw away his club, drew a revolver from his pocket and fired two
shots, one of which took effect in Ilagan's left side, just below the tenth rib, and the other about 4 inches below the left nipple. Ilagan
was under medical treatment for the wounds thus inflicted for some twenty-eight days, and incurred considerable expenses for medical
attendance, nursing, medicine, the amount of which, together with damages, the trial court fixed at P500.

The foregoing summary of the facts as found by the trial judge is in our opinion proven by the evidence of record beyond a reasonable
doubt, and we find no error in the proceedings in the trial court prejudicial to the rights of the accused.

In discussing the allegations in the information as to deliberate premeditation and the intent of the accused, the trial court made use
of the following language:

Had it been the deliberate intention of Esteban to kill Doroteo, he could have easily done so at their first encounter, during which
their is no doubt that he was armed; he had then more reason for attacking him, as according to his declaration, Doroteo had
said to him that he might do as he pleased with the news circulated with respect to his cousin, a young woman who lived in the
house of the accused and whom Doroteo visited. However, when they met for the first time, they agreed to let the question
stand for another day, and the accused did not then even attempt to compel him to fight, much less to kill him.

The evidence shows that when they separated, and fifteen or twenty minutes after their first encounter, the fight between the
two took place, and that Esteban was the first to attack Doroteo with a stick and only used the revolver against Doroteo when
the latter held him in his arms to prevent his using the stick. If it had been his intention to kill Doroteo, he would not have lost
such valuable time in attacking him with the stick, but would have used the revolver as soon as Doroteo arrived at the place
 where he waited for him. I believe that his intention to kill Doroteo only sprung up when the latter held him in his arms, depriving
him of every opportunity to use the stick, and he then feared that he would get the worst of the contest. Treachery is not shown
by the fact that, during the progress of a fight, while two men are struggling for the advantage over each other, one of them
draws a revolver and fires at the other who is unarmed.

xxx xxx xxx

When a man draws a revolver, a deadly weapon the consequences of which are well known, points it at the heart of another and
freely and intentionally, although overcome by the loss of self-control, pulls the trigger and fires, his intention, the object of his
efforts, can not be said to be unknown; he means to kill.

It is contended that the trial judge erred in his characterization of the offense committed; that the facts proven at the trial and found
by the trial judge himself raise a reasonable doubt, not merely as to whether the accused acted with deliberate premeditation but
also as to his intention to kill at the moment when he discharged his revolver; and that the intention to kill being an essential element
of the crime of attempted homicide, the accused should be acquitted of that crime, and if he be not exempted from punishment on
his plea of self-defense, convicted of the complex crime of the unlawful discharge of a firearm at another which resulted in the infliction
of lesiones menos graves (lesser injuries).

In support of this contention our attention is directed to the decision of the supreme court of Spain of the 18th of January, 1887,
wherein that court held that "while it is true that the discharge of a firearm at a short distance, under certain conditions, is a general
rule, an adequate means for the consummation of the crime of homicide, this fact is not sufficient in itself to demonstrate the homicidal
intent of the actor;" and to its decision of the 12th of December, 1884 (with which compare its sentence of November 20, 1883),
wherein it held that proof that certain wounds were inflicted in the trunk of the body of the injured party, as a result of repeated shots
fired at a short distance, did not constitute in itself sufficient motive for raising the crime of the unlawful discharge of a deadly weapon
at another, accompanied by the infliction of wounds, to the graver crime of frustrated homicide; also to various decisions of this court
wherein we have held that "homicidal intent must be evidenced by acts which at the time of their execution are unmistakably calculated
to produce the death of the victim by adequate means;" and that where an act constitutes in itself a specific crime, defined and
penalized by law, such act should not be held to constitute an attempt to commit a higher offense unless the accompanying
circumstances marking the execution of the act are such as to preclude beyond a reasonable doubt a finding that the act may have
been committed without the intent to commit the higher offense. (U. S. vs. Taguibao, 1 Phil. Rep., 16; U. S. vs. Trinidad, 4 Phil. Rep.,
152; U. S. vs. Camacho, 8 Phil. Rep., 142.)
We do not doubt that there may be cases wherein the discharge of a firearm at another is not in itself sufficient to sustain a finding
of the intention to kill, and there are many cases in the books wherein the attendant circumstances conclusively establish that on
discharging a firearm at another the actor was not in fact animated by the intent to kill. But, in seeking to ascertain the intention with
which a specific act is committed, it is always proper and necessary to look not merely to the act itself but to all the attendant
circumstances so far as they are developed by the evidence; and where, as in the case at bar, a revolver is twice discharged point-
blank at the body of another, and the shots directed at the most vital parts of the body, it needs but little additional evidence to
establish the intent to kill beyond a reasonable doubt. The persistent manner in which the accused in this case forced the fight upon
his opponent, and the fact that in seeking his opponent he carried a revolver concealed in his pocket, taken together with the use of
the revolver against his unarmed victim, although the presence of onlookers and friends when the fight occured rendered it wholly
improbable that he would or could suffer serious injury at the hands of his opponent, even if the latter were to obtain the mastery,
tend to negative the possibility that in twice discharging the revolver and directing his aim point-blank toward the region of the heart
and the abdomen of his victim, the accused had any other intention than that of killing his enemy; and in view of all the circumstances,
we are unable to conceive of any reasonable hypothesis which would explain the action of the accused other than that when he shot,
he shot to kill.

We agree with the trial judge that the evidence is not sufficient to establish the existence of deliberate premeditation beyond a
reasonable doubt, but we think that there can be no reasonable doubt that, finding himself worsted in the fight with clubs which he
himself provoked, the accused there and then resolved to kill and did attempt to kill his enemy.

The judgment and sentence of the trial court should be and is hereby affirmed, with the costs of this instance against the appellant.
So ordered.
G.R. No. L-5848 April 30, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.

Exequiel Zaballero, Jr. for appellant.

Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee.

LABRADOR, J.:

This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant-appellant herein Sy Pio, alias Policarpio
de la Cruz, guilty of frustrated murder against the person of Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence
of 6 years, 1 month, and 11 days of prision mayor, to 14 years, 8 months, and 1 day of reclusion temporal, to indemnify the offended
party Tan Siong Kiap in the sum of P350, without subsidiary imprisonment in case of insolvency, and to pay the costs. The case was
appealed to the Court of Appeals, but that court certified it to this Court under the provisions of section 17 (4) of Republic Act No.
296, on the ground that the crime charged was committed on the same occasion that the defendant-appellant had committed crime
of murder, with which the defendant-appellant was also charged.

The evidence for the prosecution shows that early in the morning of September 3, 1949, the defendant-appellant entered the store
at 511 Misericordia, Sta Cruz, Manila. Once inside he started firing a .45 caliber pistol that he had in his hand. The first one shot was
Jose Sy. Tan Siong Kiap, who was in the store and saw the accused enter and afterwards fire a shot at Jose Sy, asked the defendant-
appellant, "What is the idea?" Thereupon defendant-appellant turned around and fired at him also. The bullet fired from defendant-
appellant's pistol entered the right shoulder of Tan Siong Kiap immediately ran to a room behind the store to hide. From there he still
heard gunshot fired from defendant-appellant's pistol, but afterwards defendant-appellant ran away.

Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He stayed there from September 3 to
September 12, 1949, when he was released upon his request and against the physician's advice. He was asked to return to the
hospital for further treatment, and he did so five times for a period of more than ten days. Thereafter his wound was completely
healed. He spent the sum of P300 for hospital and doctor's fees.
The defendant-appellant shot two other persons in the morning of September 3, 1949, before shooting and wounding Tan Siong Kiap;
one was Ong Pian and the other Jose Sy. On September 5 information was received by the Manila Police Department that defendant-
appellant was in custody of the Constabulary in Tarlac, so a captain of the Manila police by the name of Daniel V. Lomotan proceeded
to Tarlac. There he saw the defendant-appellant and had a conversation with him. On this occasion defendant-appellant and had a
conversation with him. On this occasion defendant-appellant admitted to Lomotan that his victims were Tan Siong Kiap, Ong Pian,
and Jose Sy. The Constabulary in Tarlac also delivered to Lomotan the pistol used by the defendant-appellant, marked Exhibit C, and
its magazine, Exhibit C-1, both of which the Constabulary had confiscated from the defendant-appellant. The defendant-appellant was
thereupon delivered to the custody of Lomotan, and the latter brought him to Manila, where his statement was taken down in writing.
This declaration was submitted at the time of the trial as Exhibit D, and it contains all the details of the assaults that defendant-
appellant 3 against the persons of Tan Siong Kiap, Ong Pian, and Jose Sy. This written statement was taken down on a typewriter
and afterwards signed by the defendant-appellant in both his Chinese and Filipino names, the latter being Policarpio de la Cruz.

According to the declaration of the defendant-appellant, some months prior to September 3, 1949, he was employed as an attendant
in a restaurant belonging to Ong Pian. Defendant-appellant's wife by the name of Vicenta was also employed by Ong Pian's partner,
Eng Cheng Suy. Prior to September 3 the relatives of his wife had been asking the latter for help, because her father was sick.
Defendant-appellant asked money from Ong Pian, but the latter could only give him P1. His wife was able to borrow P20 from her
employer, and this was sent to his wife's parents in Cebu. Afterwards defendant-appellant was dismissed from his work at the
restaurant of Ong Pian, and he became a peddler. Ong Pian presented a list of the sums that defendant-appellant had borrowed from
him, and these sums were deducted from the salary of his wife. Defendant-appellant did not recognize these sums as his indebtedness,
and so he resented Ong Pian's conduct.

As to Tan Siong Kiap, the confession states that a few days before September 3, 1949, defendant-appellant had been able to realize
the sum of P70 from the sales of medicine that he peddled. He laid his money in a place in his room, but the following morning he
found that it had disappeared from the place in which he had placed it. Tan Siong Kiap and Jose Sy, upon the discovery of the loss of
money, told defendant-appellant that he must have given the money to his wife, and that nobody had stolen it. After this incident of
the loss, the defendant-appellant used to hear Tan Siong Kiap and Jose Sy and other Chinamen say that the money had not been
actually stolen, but that he lost it in gambling. Because of these accusations against him, he nurtured resentment against both Tan
Siong Kiap and Jose Sy.

So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the possessor of a caliber .45 pistol, was
away from his room, defendant-appellant got his pistol and tucked it in his belt. With this pistol he went to the restaurant at 822
Ongpin, and there shot Ong Pian. After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy and Tan Siong Kiap
were, and there he fired at them. Then he escaped to Legarda Street, in Sampaloc, where he borrowed P1 from his relatives. From
there he went to Malabon, to the house of his mother, to whom he told he had killed two persons and from he asked money.

The foregoing is the substance of the written declaration made by the defendant-appellant in Exhibit D on September 6, 1949. At the
time of the trial, however, he disowned the confession and explained that he signed it without having read its contents. He declared
that it was not he who shot the three victims, but it was one by the name of Chua Tone, with whom he had previously connived to
kill the three other victims. He introduced no witnesses, however, to support his denial. Neither did he deny that he admitted before
Captain Lomotan having killed the three persons, or having been found in Tarlac in possession of the caliber .45 pistol, Exhibit C, and
its magazine, Exhibit C-1. In his cross-examination he admitted many of the incidents mentioned in the confession, especially the
cause of his resentment against his victims Ong Pian, Jose Sy, and Tan Siong Kiap.

The trial court refused to believed his testimony, and therefore, found him guilty of the crime charged.

On this appeal counsel for the defendant-appellant claims that the trial court erred in not finding that Tan Siong Kiap received the
shot accidentally from the same bullet that had been fired at Jose Sy, and in finding that defendant-appellant has committed a crime
distinct and separate from that of murder for the slaying of Jose Sy. We find no merit in this contention. According to the uncontradicted
testimony of the offended party Tan Siong Kiap, when the latters saw defendant-appellant firing shots he asked him why he was doing
so, and the defendant-appellant, instead of answering him, turned around and fired at him also. It is not true, therefore, that the shot
which hit him was fired at Sy.

It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We also find no merit in this contention.
The evidence submitted to prove the charge consists of: the uncontradicted testimony of the victim himself; the admissions made
verbally by the defendant-appellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant had escaped and was
found in Tarlac; his possession of the .45 caliber pistol coupled with the fact, attested to by the testimony of the physician who
examined and treated the wounds of Tan Siong Kiap, that the wounds found in his person must have been caused by the caliber .45
bullet; and, lastly, the confession of the defendant-appellant himself, Exhibit D, which he was not able to impugn. As against this
mass of evidence, defendant-appellant has only made a very unbelievable story that it was not he but another that had committed
the crime charged. His admissions at the time of the trial regarding the incidents, as well as the cause of his having assaulted his
victims, coincide exactly with the reasons given in his written confession. This shows that he had made the confession himself, for
nobody but himself could have known the facts therein stated. The claim that the offense has not been proved beyond reasonable
doubt must be dismissed.

The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay an indemnity of P350. The offended
party testified that he actually spent P300 for hospital and doctor's fees, and that he was confined in the hospital for nine days. The
above facts stand uncontradicted. This assignment of error must also be dismissed.

It is lastly contended that the defendant-appellant should be found guilty only of less serious physical injuries instead of the crime of
frustrated murder as defendant-appellant admitted in his confession in the open court that he had a grudge against the offended
party, and that he connived with another to kill the latter. The intent to kill is also evident from his conduct in firing the shot directly
at the body of the offended party.

But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal, because it did not touch any of the vital
organs of the body. As a matter of fact, the medical certification issued by the physician who examined the wound of the offended
party at the time he went to the hospital, states that the wound was to heal within a period of fourteen days, while the offended party
actually stayed in the hospital for nine days and continued receiving treatment thereafter five time for the period of more than ten
days, or a total of not more than thirty days. The question that needs to be determined, therefore, is: Did the defendant-appellant
perform all the acts of execution necessary to produce the death of his victim?

In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs. Borinaga, 55 Phil., 433, this Court
has held that it is not necessary that the accused actually commit all the acts of execution necessary to produce the death of his
victim, but that it is sufficient that he believes that he has committed all said acts. In the case of People vs. Dagman, supra, the victim
was first knocked down by a stone thrown at him, then attacked with a lance, and then wounded by bolos and clubs wielded by the
accused, but the victim upon falling down feigned death, and the accused desisted from further continuing in the assault in the belief
that their victim was dead. And in the case of People vs. Borinaga, supra, the accused stabbed his intended victim, but the knife with
which he committed the aggression instead of hitting the body of the victim, lodged in the back of the chair in which he was seated,
although the accused believed that he had already harmed him. In both these cases this Court held that of the crime committed was
that of frustrated murder, because the subjective phase of the acts necessary to commit the offense had already passed; there was
full and complete belief on the part of the assailant that he had committed all the acts of execution necessary to produce the death
of the intended victim.
In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit, but he was able to escape and hide in
another room. The fact that he was able to escape, which appellant must have seen, must have produced in the mind of the defendant-
appellant that he was not able to his his victim at a vital part of the body. In other words, the defendant-appellant knew that he had
not actually all the acts of execution necessary to kill his victim. Under these circumstances, it can not be said that the subjective
phase of the acts of execution had been completed. And as it does not appear that the defendant-appellant continued in the pursuit,
and as a matter of fact, he ran away afterwards a reasonable doubt exist in our mind that the defendant-appellant had actually
believed that he has committed all the acts of execution or passed the subjective phase of the said acts. This doubt must be resolved
in favor of the defendant-appellant.

We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as charged in the information. We only
find him guilty of attempted murder, because he did not perform all the acts of execution, actual and subjective, in order that the
purpose and intention that he had to kill his victim might be carried out.

Therefore, the judgment appealed from should be, as it is hereby, modified and the defendant-appellant is found guilty of the crime
of attempted murder, and the sentence imposed upon him reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day
of prision correccional to 10 years of prision mayor. In all other respects the judgment is affirmed. With costs against the defendant-
appellant.
G.R. No. L-23133 August 20, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ANASTASIO DAGMAN, ET AL., defendants-appellants.

Valentin J. Alcid for appellants.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

On the 2nd of May, 1924, Elias Magbual, en employee of the hacienda "La Esperanza," while in the performance of his duties, was
treacherous attacked by a crowd of person, probably about forty in number and was nearly killed. The motive of the crime was that
the persons who harbored enmity against the Magbual had previously been dispossessed of portions of the land by judicial order. The
attack began by the crowd shouting "Avance" and with Magbual attempting to escape. But a stone thrown by Anastasio Dagman hit
Magbual in the breast, and knocked him down. In this position, he was attacked by Luis Pacunla who wounded him with a lance.
Magbual made another attempt to flee only to fall again and to receive wounds made by bolos and clubs wielded by the accused.
Magbual escaped death from his tormentors by the use of feigning death.

On these facts, seven persons, Luis Pacunla, Andres Rebollido, Isabelo Rebollido, Juan Olanan, Anastasio Dagman, Valentin Tabladillo,
and Luciano Pacunla, were charged in the Court of First Instance of Nueva Ecija with the crime of frustrated murder. After trial, each
of the accused was found guilty by the Honorable Eduardo Gutierrez David, Judge of First Instance, of the crime of frustrated homicide
and was sentenced accordingly.

From the judgment last mentioned, all of the defendants have appealed. In their behalf, two errors are assigned and argued, namely,
(1) that the trial judge erred in finding that the accused had the intention to kill Elias Magbual, the offended party, and (2) that the
trial judge likewise erred in finding that there was an agreement to kill Elias Magbual and therefore in sentencing all of the accused
to the same penalty, without taking into account the participation of each of one of them in the commission of the crime, if any.

Neither of these points is well taken. The trial judge found each of the accused to have been proved guilty beyond a reasonable doubt
of a crime included in the information. There is ample proof to substantiate this finding. The murderous intent of the accused and
their joint purpose are likewise clearly demonstrated.
The trial judge, it will be recalled, found the defendants guilty of the crime of frustrated homicide. The Attorney-General, however,
recommends that the crime be classified as frustrated murder in view of the presence of the qualifying circumstance of treachery,
and that the penalty then be placed in the maximum of that provide by law because of the presence of the aggravating circumstance
that prohibited arms were use by the assailants. A majority of the court agree with the Attorney-General. We believe the felony should
be classified as frustrated rather than attempted, under the law and the local jurisprudence.

The murder should be regarded as frustrated because the offenders performed all of the acts of execution which should precede the
felony as consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the perpetrators; in
this instance, the playing possum by Magbual. (Penal Code, art. 3, par. 2.) There was an intent upon the part of the assailants to take
the life of the person attacked, which intent may be gathered from the circumstances surrounding the attack; in this instance, the
nature of the wounds, the cry of the accused, "Vamos a matarle," and their fingering the nose of Magbual to see if respiration
continued. (U.S. vs. Mendoza [1918], 38 Phil., 691; U.S. vs. Sanchez [1911], 20 Phil., 427; U.S. vs. Domingo and Dolor [1911], 18
Phil., 250; U.S. vs. Marasigan [1908], 11 Phil., 27; U.S. vs. Reyes [1906], 6 Phil., 38 U.S. vs. Sabio [1903], 2 Phil., 485; U.S. vs.
Taguibao [1901], 1 Phil., 16.) Deadly weapons were used, blows were directed at the vital parts of the body, the aggressors stated
their purpose to kill and thought they had killed. The subjective phase of the crime was entirely passed, and subjectively speaking,
the crime was complete. (U.S. vs. Eduave [1917], 36 Phil., 209.) The particular parts of the body of the person struck during the
assault, the deadly character of the weapons used, the violence of the attack, and the accomplishment of the crime with alevosia in
such manner as to insure the safety of the assailants while depriving the victim of the opportunity to make defense, classifies the
crime a frustrated murder. (U.S. vs. Sanchez [1911], 20 Phil., 427, citing decisions of the supreme court of Spain of April 17, 1895,
September 29, 1881, and December 31, 1890.) And finally, that the victim did not die, was owing to a chance or accident or reason
independent of the criminal act performed. (U.S. Agoncillo and Admana [1916], 33 Phil., 242.) (See also U.S. vs. Bastas and De la
Serna [1905], 5 Phil., 251; U.S. vs. Poblete [1908], 10 Phil., 578; U.S. vs. Domingo and Dolor [1911], 18 Phil., 250; Albert, The Law
on Crimes, pp. 31-33; and 30 C.J., 14.)

In the decision in the case of United States vs. Lim San ( [1910], 17 Phil., 273, 276), Mr. Justice Moreland speaking for a unanimous
court, in part, said:

The court found the defendant guilty of the crime of attempted murder. We are unable to agree with that finding. We regard the
crime as frustrated murder. The distinction between frustrated murder and attempted murder is this: In frustrated murder the
accused performs all of the acts which he believes necessary to consummate the crime. Death, fails to follow for causes entirely
apart from his will. In attempted murder the accused begins the commission of the crime by over acts, but involuntarily desists
 from performing the other acts necessary to consummate the crime, he being prevented from so doing by some cause outside
of his own will. In the case at bar it appears clearly that the defendant believed that he had performed all of the acts necessary
to consummate the crime of murder, and, therefore, of his own will, desisted from striking further blows. He believed that he
had killed Keng Kin. Death did not result for reasons entirely apart from the will of the accused. This surely stamps the crime as
frustrated murder. If, after the first blow, some one had rushed to the assistance of Keng Kin and by his efforts had prevented
the accused from proceeding further in the commission of the crime, the accused not believing that he had performed all of the
acts necessary to cause death, he would have been guilty of attempted murder.

Agreeable to the recommendation of the Attorney-General, the judgment appealed from is modified and each of the defendants and
appellants is sentenced to fourteen years, eight months and one day imprisonment cadena temporal, with the accessory penalties
provided by law, and to pay a one-seventh part of the costs of each instance, and all of the defendants and appellants jointly and
severally are sentenced to reimburse the offended party in the amount of P65 for medical services. So ordered.
G.R. No. 33463 December 18, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BASILIO BORINAGA, defendant-appellant.

Paulo Jaro for appellant.

Attorney-General Jaranilla for appellee.

MALCOM, J.:

Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the municipality of Calubian, Leyte,
contracted with one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was associated with Lawaan in the construction
of the corral. On the morning of March 4, 1929, Lawaan, with some of his men, went to Mooney's shop and tried to collect from him
the whole amount fixed by the contract, notwithstanding that only about two-thirds of the fish corral had been finished. As was to be
expected, Mooney refused to pay the price agreed upon at that time. On hearing this reply of Mooney, Lawaan warned him that if he
did not pay, something would happen to him, to which Mooney answered that if they wanted to do something to him they should wait
until after breakfast, Lawaan then left with his men, and Mooney, after partaking of his morning meal, returned to his shop.

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a seat on a
chair in front of the Perpetua, his back being to the window. Mooney had not been there long when Perpetua saw Basilio Borinaga
from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which Mooney
was seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga ran away towards the market
place. Before this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is an
American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the
chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to renew
it, but was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on Borinaga, frightening
him away. Again the same night, Borinaga was overheard stating that he had missed his mark and was unable to give another blow
because of the flashlight. The point of the knife was subsequently, on examination of the chair, found embedded in it.

The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First Instance of Leyte for the crime of
frustrated murder. The defense was alibi, which was not given credence. The accused was convicted as charged, by Judge Ortiz, who
sentenced him to fourteen years, eight months, and one day of imprisonment, reclusion temporal, with the accessory penalties and
the costs.

The homicidal intent of the accused was plainly evidenced. The attendant circumstances conclusively establish that murder was in the
heart and mind of the accused. More than mere menaces took place. The aggressor stated his purpose, which was to kill, and
apologized to his friends for not accomplishing that purpose. A deadly weapon was used. The blow was directed treacherously toward
vital organs of the victim. The means used were entirely suitable for accomplishment. The crime should, therefore, be qualified as
murder because of the presence of the circumstance of treachery.

The only debatable question, not referred to in the briefs, but which must be decided in order to dispose of the appeal, is: Do the
facts constitute frustrated murder or attempted murder within the meaning of article 3 of the Penal Code? Although no exact
counterpart to the facts at bar has been found either in Spanish or Philippine jurisprudence, a majority of the court answer the
question propounded by stating that the crime committed was that of frustrated murder. This is true notwithstanding the admitted
fact that Mooney was not injured in the least.

The essential condition of a frustrated crime, that the author perform all the acts of execution, attended the attack. Nothing remained
to be done to accomplish the work of the assailant completely. The cause resulting in the failure of the attack arose by reason of
forces independent of the will of the perpetrator. The assailant voluntarily desisted from further acts. What is known as the subjective
phase of the criminal act was passed. (U. S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.)

No superfine distinctions need be drawn in favor of that accused to establish a lesser crime than that of frustrated murder, for the
facts disclose a wanton disregard of the sanctity of human life fully meriting the penalty imposed in the trial court.

Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance against the appellant.
 [G.R. No. L-5335. November 8, 1910. ]

THE UNITED STATES, Plaintiff-Appellee, v. LIM SAN, Defendant-Appellant.

J. Courtney Hixson, for Appellant.

Solicitor-General Harvey, for Appellee.

SYLLABUS

1. CRIMINAL PRACTICE AND PROCEDURE; COMPLAINT OR INFORMATION; CHARGE OF "ATTEMPTED MURDER," CONVICTION FOR
"FRUSTRATED MURDER." — Although the crime designated in the information is that of "attempted murder," this court may, on
appeal, convict the accused of "frustrated murder," notwithstanding the fact that the latter crime is the more severely punished,
when the crime of frustrated murder is clearly and unmistakably described by the facts set forth in the information.

2. ID.; ID.; CRIME CHARGED IS THAT DESCRIBED. — The crime of which the defendant stands accused is that described by the
facts stated in the information, and not that designated by the fiscal in the preamble thereof.

3. ID.; ID.; DESIGNATION OF CRIME BY TECHNICAL NAME IS A CONCLUSION OF LAW. — The designation of the crime by name in
the caption of the information is a conclusion of law on the part of the fiscal. The denial of that conclusion raises no issue.

4. ID.; ID.; ISSUE, AND HOW RAISED. — An issue in a criminal action is one of fact. It is raised by the allegation of facts in the
information and the denial of those facts by a plea of not guilty.

5. ID.; ID.; DESIGNATION OF CRIME BY TECHNICAL NAME NOT IMPORTANT. — It is not necessary, for the protection of the
substantial rights of the accused, nor for the effective preparation of his defense, that he be informed of the technical name of the
crime of which he stands charged. He must look to the facts alleged.

6. ID.; ID.; COURT ALONE CAN CONCLUDE WHAT CRIME HAS BEEN COMMITTED. — As a matter of fact the court is the only person
or institution authorized by law to say what crime has been committed. Such designation is a conclusion of law resulting from the
facts proven upon the trial. Until that time arrives it is of no consequence, either to the people or to the accused, what the technical
 name of the crime of which the accused is charged may be.

7. ID.; ID.; DESIGNATION OF THE CRIME BY ITS TECHNICAL NAME IS USURPATION OF JUDICIAL FUNCTION. — The designation by
the fiscal of the crime in the information by its technical name is a usurpation of the powers of the court and, if binding, would be in
effect an adjudication by him of the crime of which the accused must be convicted, if he were to be convicted of any offense.

DECISION

MORELAND, J. :

The defendant in this case was convicted of the crime of attempted murder in the Court of First Instance of the city of Manila and
sentenced to seven years of presidio mayor and to pay one-third of the costs of the trial.

It is alleged that on or about the 18th day of October, 1908, the defendant Lim San attempted to kill one Keng Kin by assaulting him
with a bolo and inflicting upon him several wounds; that one of the wounds would have proved fatal had not the injured person
received prompt and efficient medical assistance.

The guilt of the defendant was established beyond reasonable doubt, if the testimony of Keng Kin, Chua Hung, and Gregorio Mariano
is to be believed. All of these witnesses testify that the accused assaulted Keng Kin without cause or provocation and stabbed him
several times with a bolo. All unite in saying that Keng Kin, at the time, was standing just outside the limits of the street, his attention
upon a dog which he had with him, when the accused leaped upon him with his bolo and committed the acts complained of. All of
these witnesses saw the accused in the act, fully recognized him, and later identified him as the person who committed the offense.

The defense interposed by the accused was an alibi. He produced several witnesses to support it. Between the testimony of these
witnesses and that of the witnesses of the prosecution there is an irreconcilable contradiction. The court below, having heard the
witnesses testify and having observed their manner and attitude upon the witness stand, decided that credibility lay with those of the
prosecution. A careful reading of the testimony discloses no reason why the conclusion of the court in this particular should be
disturbed. The court decided between witness and witness. There are no conditions found in the record which render the story told
by the witnesses for the prosecution inherently improbable. There is no circumstance disclosed which impeaches their truthfulness.
There is nothing found which impugns in any way their credibility. Under such conditions we will not interfere with the conclusion of
the trial court respecting credibility.

The crime in this case was committed about 10 o’clock at night. It was somewhat dark, the only light being that given by a lamp
suspended from the ceiling of a tienda directly across the street. Keng Kin was not expecting to be attacked. His attention was directed
exclusively to his dog. He was wholly unsuspicious. Every faculty was withdrawn from consideration of danger. The accused, without
warning of any kind, careful not to disturb the quiescent attitude in which he found his victim until the very instant of the blow,
attacked him with great rapidity and force, driving his bolo straight into his face. On the first blow the point of the knife entered the
left eye, penetrating to and slightly cutting the brain, destroying the eye completely and rendering him entirely incapable of protecting
himself. As a necessary result, the assaulted had no opportunity whatever to defend himself, to escape the blow, to ward it off, or to
mitigate its consequences. He was wholly surprised and incapable of offering the slightest resistance. This means simply that the
accused committed the crime maliciously and treacherously by methods which tended, directly and especially, to insure him against
risk that might proceed from any defense which his victim might make. In other words, the combination of the conditions, darkness,
distracted attention, lack of knowledge of the attack, lack of warning, the suddenness of the assault, the maneuvering of the accused
in such way as not to attract attention till the very moment of the blow, keeping him quiescent until the end was accomplished,
constitutes alevosia under subdivision 2 of article 10 of the Penal Code. This would have made the crime murder had Keng Kin been
killed.

The court found the defendant guilty of the crime of attempted murder. We are unable to agree with that finding. We regard the crime
as frustrated murder. The distinction between frustrated murder and attempted murder is this: In frustrated murder the accused
performs all of the acts which he believes necessary to consummate the crime. Death, however, fails to follow for causes entirely
apart from his will. In attempted murder the accused begins the commission of the crime by overt acts, but involuntarily desists from
performing the other acts from so doing by some cause outside of his own will. In the case at bar it appears clearly that the defendant
believed that he had performed all of the acts necessary to consummate the crime of murder, and, therefore, of his own will, desisted
from striking further blows. He believed that he had killed Keng Kin. Death did not result for reasons entirely apart from the will of
the accused. This surely stamps the crime as frustrated murder. If, after the first blow, some one had rushed to the assistance of
Keng Kin and by his efforts had prevented the accused from proceeding further in the commission of the crime, the accused not
believing that he had performed all of the acts necessary to cause death, he would have been guilty of attempted murder.
The information in his case reads as follows:

"Pursuant to a preliminary investigation heretofore conducted in the office of the prosecuting attorney for the city of Manila, under
the provisions of section 39 of Act No. 183 of the United States Philippine Commission, as amended, the undersigned, prosecuting
attorney of the city of Manila, gives the court information against Lim San, Lim Chu, and Que Lat, and accuses the same, and each of
them, of the crime of attempted assassination, committed as follows:

"That on or about the 18th day of October, 1908, in the city of Manila, Philippine Islands, the said Lim San, Lim Chu, and Que Lat,
conspiring together, did then and there willfully, unlawfully, feloniously, with treachery, deliberate and known premeditation, and n
the nighttime, attempt to kill and assassinate one Keng Kin, by then and there, in the nighttime, lying in wait for and assaulting,
cutting, and stabbing the said Keng Kin with deadly weapons — to wit, large bolos — and inflicting then and there upon the head and
body of the said Keng Kin numerous cuts, wounds, and physical injuries, with intent then and there to kill and assassinate the said
Keng Kin; that the said accused then and there performed all of the acts of execution which should constitute the crime of
assassination, but which did not constitute said crime by reason of the fact that though said wounds were intended by the said accused
to cause the death of the said Keng Kin, and were believed by the said accused to be sufficient to cause the death of the said Keng
Kin, did not cause his death, by reason of prompt and efficient medical assistance, which prevented the said wounds from becoming
fatal.

"All contrary to law."

It appears from this pleading that the prosecuting attorney characterized the crime in the caption of the information as attempted
assassination. It appears, however, that the facts set out in the body of the information describe the crime of frustrated assassination.
Notwithstanding apparent contradiction between caption and body, we believe that we ought to say and hold that the characterization
of the crime by the fiscal in the caption of the information is immaterial and purposeless, and that the facts states in the body of the
pleading must determine the crime of which the defendant stands charged and for which he must be tried. The establishment of this
doctrine is permitted by the Code of Criminal Procedure, and is thoroughly in accord with common sense and with the requirements
of plaint justice. We are aware that such a doctrine departs somewhat from the established theories of American criminal
jurisprudence; but we are confident that the result obtained fully justifies our holding. Many cases might be cited in which justice has
either been greatly delayed or wholly defeated by adhering to the doctrine which we discard. Procedure in criminal actions should
always be so framed as to insure to each criminal that retributive punishment which ought swiftly and surely to visit him who willfully
and maliciously violates the penal laws of society. We believe that a doctrine which does not produce such a result is illogical and
unsound and works irreparable injury to the community in which it prevails.

From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of
which he stands charged. It in no way aids him in a defense on the merits. Whatever its purpose may be, its result is to enable the
accused to vex the court and embarrass the administration of justice by setting up the technical defense that the crime set forth in
the body of the information and proved in the trial is not the crime characterized by the fiscal in the caption of the information. That
to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The
real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in
the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure
or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the
caption of the information from the facts alleged in the body of that pleading is a conclusion of law made by the fiscal. In the
designation of the crime the accused never has a real interest until the trial has ended. For his full and complete defense he need not
know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important
question to him is, "Did you perform the acts alleged in the manner alleged?" not, "Did you commit a crime named murder?" If he
performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor.
It is the province of the court alone to say what the crime is or what it is named. If the accused performed the acts alleged in the
manner alleged, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts
constitute.

The plea of not guilty ought always to raise a question of fact and not of law. The characterization of the crime is a conclusion of law
on the part of the fiscal. The denial by the accused that he committed that specific crime so characterized raises no real question. No
issue can be raised by the assertion of a conclusion of law by one party and a denial of such conclusion by the other. The issues raised
by the pleadings in criminal actions, as well as in civil, are primarily and really issues of fact and not of law. The issue to be tried in
all criminal cases should be one of fact, raised by the allegation of certain facts in the information and a denial of those facts by the
plea of not guilty on the part of the defendant. There is no more reason why the defendant should be allowed to take advantage of a
misnomer of the action where the people are prosecuting than when assailed civilly by a private individual.

The failure to observe this fundamental distinction has been one of the causes of the frequent miscarriage of justice in criminal cases
in many parts of the United States. If a plaintiff in a civil action should open his complaint with the statement, "This is an action of
tort," and then proceed to set out fully facts showing that his action was really to foreclose a mortgage, asking the remedy proper to
that end, no court would hesitate a moment as to what was the real nature of the action. It could not be contended for an instant
that the plaintiff, in order to recover, would be obliged to prove an action in tort. The statement, "This is an action in tort," is a mere
conclusion of law and not a statement of fact. It has no influence whatever upon the nature of the action. It is pure surplusage. It can
not fairly be said to deceive the defendant. So far as the procedure or the merits are concerned, it is of no consequence what the
name of the action may be. Issues are not made by asserting and denying names. They are framed by the allegation and denial of
facts. The acts or omissions of the defendant, as set out by the plaintiff in the complaint as the basis of his action, are that to which
the defendant looks to prepare his defense. They are that to which, when proved, the court looks to apply the remedy.

So it is with pleadings in criminal actions. To quibble about names is to lose sight of realities. To permit an accused to stand by and
watch the fiscal while the guesses as to the name which ought to be applied to the crime of which he charges the accused, and then
take advantage of the guess if it happens to be wrong, while the acts or omissions upon which that guess was made and which are
the real and only foundation of the charge against him are clearly and fully stated in the information, is to change the battle ground
in criminal cases from issues to guesses and from fact to fancy. It changes lawyers into dialecticians and law into metaphysics — that
fertile filed of delusion propagated by language.

Section 5 of the Code of Criminal Procedure reads as follows:

"An information is an accusation in writing charging a person with a public offense, presented and signed by the promoter fiscal or his
deputy and filed with the clerk of the court."

Section 6 is as follows:

"A complaint or information is sufficient if it shows:

"1. The name of the defendant, or, if his name can not be discovered, that he is described under a fictitious name with a statement
that his true name is unknown to the informant or official signing the same. His true name may be inserted at any stage of the
proceedings instituted against him, whenever ascertained.

"2. The designation of the crime or public offense charged.

"3. The acts or omission complained of as constituting the crime or public offense in ordinary and concise language, without repetition,
not necessarily in the words of the statute, but in such form as to enable a person of common understanding to know what is intended
and the court to pronounce judgment according to right.

"4. That the offense was committed within the jurisdiction of the court and is triable therein.

"5. The names of the persons against whom, or against whose property, the offense was committed, if known."

Section 8 reads as follows:

"A complaint or information may be substantially in the following form:

"‘The United States against A. B.

"‘In the Court of _______________ for ___________________, Province of ____________________, the

_____________________ day of _______________, 19 _____

"‘A. B. is accused by the undersigned of the crime of (giving its legal appellation, such as murder, arson, robbery, or the like, or
designating it as a felony or misdemeanor), committed as follows:jgc:

"‘That said A. B., on the _____________ day of _______________, 19 ________, at the ________ of ________, Province of
______________, (here set forth the acts or omissions charged as an offense), contrary to the statute in such case made and
provided.

"‘(Signed)
____________________________________’"

Subdivision 2, section 6, above quoted, requires that the information shall contain "the designation of the crime or public offense
charged." But while that is so and while section 8 provides that the information may stated the legal appellation of the crime, "such
as murder, arson, robbery, or the like," nevertheless, said section also provides that such offense may be designated generally "as a
felony or misdemeanor." This evidently and unquestionably permits an information to be drawn and framed upon the lines marked in
the doctrine we here lay down. This is the form in which information should be drawn.

We are aware that it may be said that, when a fiscal has characterized by name the offense with which he charges the defendant,
and the defendant has accepted that characterization in good faith and prepared his trial in accordance therewith, he ought not to be
required upon appeal or elsewhere to meet a new or different crime; that such a proceeding would prejudice him severely and might
be the means of convicting him without a real hearing, if not without due process of law. Our reply is, in the first place, that it is very
rare indeed that circumstances would be presented in which an accused could be any change be thus prejudiced. Such contingency
is so remote as to be almost negligible. But, should such a condition arise, we say, in the second place, that this court will not permit
the doctrine here laid down to prejudice any defendant who has been innocently misled in any action heretofore tried. However, after
the lapse of a reasonable time following the publication of this decision, its contents and tenor will be presumed to be known to all.
After the doctrine here promulgated is fully known, no one will be heard to say that he has been prejudiced by its application. We
reply, in the third place, that the people of the land are interested more than any single individual in the punishment of those who
offend against its laws; that the fiscal has no right to characterize a crime in defiance of the interests of society; that he has no
authority to speak for the State and say what crime has been committed. That is the duty of the court — the duty of a coordinate
branch of the government, one of its three departments — to which and to which alone the sovereignty has delegated the right to
denominate crime from facts alleged or proved and to impose punishment in accordance with that denomination. The duty of the
fiscal in framing an information is limited to a statement of the facts which the accused has performed and the manner in which he
performed them. It is no part of his duties to give a technical name to the crime which is born of the facts set forth, or draw an
inference or conclusion as to how the courts will or will not denominate the crime described by the facts. If the fiscal denominate or
characterize the crime and if that denomination binds the court, as it always does under the doctrine were are criticizing, then it is
clear that the fiscal has, by such act, usurped the function of the court, inasmuch as he has thereby irrevocably decided by his own
fiat of what crime, if any, the defendant shall be convicted. This is not only performing duties ministerial, but legislative and judicial
as well. He thus not only tries the case as fiscal, but he also, by his mischaracterization, changes the law really applicable to the case.
Moreover, such mischaracterization being binding on the courts, he also thereby in a sense adjudicates the offense for which the
defendant shall be punished. He thus leaves little for the court to do but apply the penalty. Even that must be in accordance with the
fiscal’s characterization. We would say, fourthly, that a careful lawyer ought always to prepare the defense of his client to meet every
allegation of material fact presented by the people’s pleading, and to deny, and to substantiate that denial by proof, every such fact
which is alleged and proved to his prejudice, and that wholly irrespective of the characterization of the crime by the fiscal. It is
undoubted that every innocent man can and will do that. No innocent man will permit himself to rest under proof that he has been
guilty of a malicious and criminal act against the law of the land. He desires above all things to disprove, and will always insist upon
disproving, everything presented by the prosecution which smirches his character or taints his honor. Generally speaking, it is only
the criminal, either by act or intention, who is willing to rest his defense upon the technicality of a characterization, leaving the main
facts proved against him untouched and the conclusions from them unreduced. Every innocent man wants to meet facts and not
theories. He wants to strike at the substance of fact and not the straw man of conclusion. He will insist on meeting the thing and not
the characterization of the thing.

Moreover, one can not claim to be prejudiced who voluntarily and willfully shuts his eyes to the facts alleged. Why are the facts alleged
at all if not to specify the real nature of the crime? If the accused looks to the characterization of the fiscal and not to the facts, why
have facts at all; why not have the information state conclusions only? But it will be observed that if we should urge that proposition,
the accused would be he who would first object. His instant reply would be, "I want facts and not conclusions. I can prepare no
defense against the allegation of mere conclusions." Nevertheless he insists on holding the people strictly to the pure conclusion
involved in the fiscal’s characterization of the crime. In other words, he wants conclusions if the facts hurt him, and he wants facts if
the conclusions hurt him. A technicality is something which makes a criminal life worth living. This is here fully exemplified.

We are not forgetful, in what we have said, of those sacred and immutable rights which belong to every freeman. We do not forget,
either, that institutions and states which do not sacredly protect and guard those rights can not live. To their protection every man is
willing to dedicate his life, his fortune, and his honor. The doctrine here laid down conserves those rights swiftly and perfectly — far
more so than does the doctrine we are criticizing. On the other hand and in addition, it protects society from the malicious activities
of those who are ever ready to commit crime if there exists in the law anywhere a technicality upon which the may rest a hope of
escape.

For these reasons it is competent for this court to find the defendant guilty of the crime described by the facts stated in the information,
these facts being fully and satisfactorily proved and the accused having in no wise been prejudiced.
Under article 407 of the Penal Code the defendant should be punished with a penalty lower by one degree than that which would have
been applied had he consummated the crime. The penalty for the consummated crime ranges from cadena temporal in its maximum
degree to death. The penalty lower by one degree is from presidio correccional in its maximum degree to presidio mayor in its medium
degree. There being present the aggravating circumstance of nocturnity, the penalty must be imposed in its maximum degree.
The judgment of the court below is, therefore, reversed, and the defendant is convicted of the crime of frustrated murder and
sentenced to eight years and day of presidio mayor and to pay one-third of the costs. There being no evidence in the case of the
damages which Keng Kin has suffered by reason of the acts complained of, no indemnity can be required paid in this action.
G.R. No. 43495 September 15, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
MARCELO HONRADA, defendant-appellant.

Antonio Gonzales for appellant.

Office of the Solicitor General Hilado for appellee.

VICKERS, J.:

The appellant Marcelo Honrada was tried in the Court of First Instance of Cavite for the crime of frustrated murder. It was alleged in
the information: "That on or about July 1st, 1934, in the municipality of General Trias, Province of Cavite, Philippine Islands, the said
accused with intent to kill one Gregorio Estandarte did, then there stab him with a big knife inflicting on him a wound, stabbed
perforating, hypochondrium, right; wound incised, chest, left, upper 1 ½ inches; wound, incised, lumbar, right (3 ½ inches 1/3 inch
deep); wound, stabbed penetrating to bone, lumbar, left (cutting muscles, 1 ½ inches wide, 1 ½ inches deep); would incised, nose,
ridge, (1 centimeter) having the accused performed all the acts which would produce the death of the said Gregorio Estandarte as a
consequence, but which, nevertheless did not produce it by reason or causes independent of the will of the accused, and which wounds
incapacitated the said Gregorio Estandarte for his customary labor and required medical attendance for a period of more than 60
days."

The trial judge found the defendant as charged, and sentenced him to an indeterminate penalty ranging from four year, two months,
and one day of prision correccional to eight years and one day of prision mayor, and to pay the costs.

From that judgment to defendant has appealed to this court, and now alleges that the lower court erred in not finding that the
defendant acted in legitimate self-defense; in finding that the offense committed was frustrated murder, and that it was committed
with alevosia.

It appears from the evidence that while Gregorio Estandarte was walking along the road in the municipality of General Trias about
four o'clock in the afternoon of July 1, 1934 he was suddenly and without warning stabbed twice in the back, and when he looked
around he saw the defendant with a long fan knife in his hand. The defendant then renewed the attack, and Estandarte tried to defend
himself with the riding whip he was carrying, but the defendant succeeded in stabbing him in the abdomen. The offended party in the
chest and under the breastbone.

The assault took place near the house of Candido Rosari; and Maxima Ballecer, who was going to the house of Rosari and saw the
defendant attack the offended party, shouted for help. Miguel Tagle, Pedro Ballecer, and Leonardo Figueroa heard he cries and went
to scene of the crime. When the defendant saw the three men approaching he ran away. Pedro Ballecer took the wounded man to
the poblacion, where was given first aid. He was then taken to the Philippine General Hospital. Upon examination by Dr. E.M. Lesaca
he was found to have the following wounds: A stabbed wound under the breastbone, a stabbed wound penetrating the liver, an incised
wound in the right lumbar region, and an incised wound on the nose. He was also suffering from shock and anemia. Because of the
wound in the liver, he was promptly operated upon, and was able to leave the hospital at the end of three weeks.

It does not clearly appear what was the motive for the murderous assault. It may have been the fact that about a week prior to the
occasion in question Gregorio Estandarte, in trying to separate two men who were fighting, struck Hilario Honrada, defendant's father,
with his elbow. Hilario Honrada resented the action of Estandarte and tried to hit him, but Estandarte ran away. Hilario Honrada told
Estandarte that his time would come.

The theory of the defense is that the defendant was attacked by Gregorio Estandarte with a blackjack; that the defendant ran away
after he received two blows, and was pursued by the offended party and his companions, Leonardo Figueroa, Miguel Tagle, and
Santiago Loren. According to the accused Figueroa and Loren struck him with sticks. The defendant testified that the offended party
overtook him and struck him several times with a blackjack, whereupon the defendant stabbed the offended party in self-defense;
that struggle ensued between them and they fell into a ditch and the offended party was wounded in the back when they fell down.
It appears that the so-called caborrata was not a blackjack, but only a riding whip.

The trial judge rejected the contention of the defense, and we think he was fully justified in doing so. The testimony of the defendant
that the offended party received the two wounds in the back when he fell into the ditch is incredible. They were undoubtedly caused
by the defendant when he attacked the offended party behind, as stated by the latter and Maxima Ballecer. The attack was therefore
treacherous, and the number and seriousness of the wounds, especially the one in the abdomen that penetrated the liver, show that
it was the intention of the defendant to kill the offended party. It was only prompt and skillful medical treatment which the offended
party received that saved his life. The offense committed by the defendant was therefore frustrated murder. He is entitled to the
mitigating circumstance of voluntary surrender.
The penalty imposed by the lower court is not in accordance with he law. Murder is punished by reclusion temporalin its maximum
period to death, and in accordance with article 50 the penalty for frustrated murder is one degree lower, or prision mayor in its
maximum period to reclusion temporal in its medium period. The maximum period of this penalty is from ten years and one day to
twelve years of prision mayor. It is true that article 250 of the Revised Penalty Code provides that the courts in view of the case, may
impose upon the person guilty of frustrated crime of parricide, murder of homicide penalty lower by one degree than that which should
be imposed by the provision of article 50, but there exist in this case no special reason for applying article 250. In accordance with
Indeterminate Sentence Law the minimum penalty to be served by the defendant was correctly fixed at four years, two months, and
one day. The appellant is therefore sentenced to suffer an indeterminate sentenced ranging from four years, two months, and one
day of prision correccional to ten years and one day of prision mayor. As thus modified, the decision appealed from is affirmed, with
costs against the appellant.
G.R. No. L-23833 October 10, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
MAGDALENA REYES Y DE LA CRUZ, defendant.
PEDRO SAN JUAN, bondsman-appellant.

The appellant in his own behalf.

Acting Attorney-General Reyes for appellee.

MALCOLM, J.:

This is an appeal interposed by Pedro San Juan, one of the bondsmen of the accused Magdalena Reyes y de la Cruz, from an order of
the Court of First Instance of Manila, declaring a bail bond in the amount of P800 forfeited, and from a judgment upon the bond for
its full amount.

The facts are not in dispute. They are: Magdalena Reyes y de la Cruz was convicted in the municipal court of Manila of a violation of
section 733 of the Revised Ordinances of Manila, and again on appeal to the Court of First Instance of Manila, and was sentenced to
suffer four months' imprisonment. She thereupon appealed to this court, giving bail in the amount of P800. The appellant herein,
Pedro San Juan, and one Epifanio Garcia signed as sureties.

The Supreme Court affirmed the judgment of the Court of First Instance 1 and the case was returned to the court of origin for execution
of the sentence. In the meantime, one of the sureties, Epifanio Garcia, had died. The other surety, Pedro San Juan, was however duly
notified to bring the person of the accused into court on September 12, 1924. The accused not having appeared, the Court of First
Instance, on the same day, ordered her arrest and the confiscation of the bail bond.

On motion of the herein appellant, the court, on October 7, 1924, granted him an extension of thirty days for the production of the
person of the accused. On November 12, another extension of thirty days was likewise granted. When this extension expired, the trial
judge granted still another extension of thirty days. On the expiration of this period, the fiscal of the City of Manila moved that the
sureties on the bail bond be ordered to appear and show cause why judgment should not be rendered against them upon the bond.
In accordance with this motion, the court, on January 28, 1925, cited the sureties to appear and show cause on January 31 of the
same year, at 8 o'clock in the morning. Notwithstanding the fact that the appellant had been duly notified, he failed to appear in court
and, on February 5, 1925, a judgment was entered against the bondsmen, ordering them to pay jointly and severally the sum of
P800. Upon this judgment, a writ of execution was issued on the 9th of the same month.

In a motion dated February 3, 1925, but received in the Court of First Instance two days later, the appellant asked that the order of
confiscation of the bail bond of January 28, 1925, be revoked on the ground that on January 28, 1925, he had delivered the person
of the accused to the deputy sheriff of the court and that she was then transferred to Bilibid Prison to serve her sentence. On February
16, 1925, the attorneys for the appellant in a motion for reconsideration presented the same facts and, in substantiation thereof, the
certificate of the chief clerk and executive inspector of Bilibid Prison, showing that Magdalena Reyes y de la Cruz had been received
in Bilibid Prison for confinement on January 29, 1925. These motions were denied by the court. Thereafter, the present appeal was
taken.

The law applicable to the case is found in sections 75 and 76 of the Code of Criminal Procedure. It is there provided that if without
sufficient cause the defendant neglects to appear for arraignment, trial or judgment, or neglects to appear on any other occasion
when his presence may be required in court must direct the fact of his neglect or failure to be entered in the records of the cause,
and declare the undertaking or deposit, as the case may be, to be forfeited. Applied to the facts before us, the trial judge acted in
conformity with the law when he ordered the confiscation of the bond on September 12, 1924. The law continuing, provides that if at
any time within thirty days after the declaration of forfeiture, the defendant or his counsel appears and satisfactorily explains the
neglect or failure, the court may direct the forfeiture to be discharged upon such terms as it may consider just. Applied to the facts
us, the court again acted in conformity with the law by giving the bondsmen thirty days and more to explain their neglect or failure.
When the bondsmen did not appear in response to the order, the court most properly rendered judgment against them.

The record, however, discloses that on the same day that the court issued its order to show cause, the accused was turned over to
the deputy sheriff and was the day following placed in Bilibid Prison. Had the bondsman presented the accused to the court at the
time set for the hearing and explained his failure previously to produce her, undoubtedly the court would have been much more
lenient. This mistake should nevertheless not be held too strongly against the bondsman. The law, it will be recalled, provides for a
discharge of the forfeiture upon such terms as may be considered just. In other words, whether a bail bond upon which there is a
default should be declared forfeited to its full amount or in a lesser amount, rests largely in the discretion of the court and depends
on the circumstances of each particular case.
The purpose of the recognizance has here been accomplished although tardily. The accused has been placed in Bilibid Prison to serve
her sentence. The bondsman, as appears in our records, has been held on two other bonds under somewhat the same
circumstances. 1awph!l.net

In the case of People vs. Gao Kim, Jose Zaguirre, bondsman-appellant, No. 21672, 2 Mr. Justice Johns, delivering the opinion for the
second division of this court, among other things said:

It will be noted that the defendant, Gao Kim, paid her fine and costs on October 26, 1923. The legal effect of this was to satisfy
the judgment of the court in the criminal action. It will also be noted that the court did extend the time until October 20, 1923,
and that Gao Kim was arrested and paid her fine six days after the last extension. It is true that the bondsmen did not produce
the body of the principal, and that there was a technical default on the bond. It is also that during the extension granted by the
court the bondsmen made an honest and bona fide effort to locate their principal and bring her into court. But owing to the fact
that she went from Manila to Cebu and from Cebu to Iloilo, she could not be located within the time specified by the order of
the court. It is also true that she was not surrendered by her bondsmen, but was arrested by the officers of the law, and that
on the day of the arrest, she paid the fine and costs in full. Under such a state of facts, after the fine and costs were paid in full,
it would be unjust and inequitable to require the bondsmen to pay the amount of the bond. In particular, where the principal
was arrested and the fine was paid six days after the extension which was granted by the court had expired, and no formal
judgment had been entered on the bond. Upon the facts shown, and in the interest of justice, the trial court should have vacated
its order, declaring the forfeiture of the bond. . . .

In volume 6, Corpus Juris, under the subject "Bail," at page 1053, are found the following applicable principles:

In most jurisdictions, although the surrender or the appearance of accused is a prerequisite to relief from, or remission of, a
forfeiture of bail, the sureties cannot exonerate themselves by a surrender of him after a forfeiture, and hence they are not, as
a matter of right, released from their obligations under a forfeited recognizance by the mere surrender of their principal after
forfeiture or by his voluntary appearance; but the matter is wholly within the discretion of the court, to be refused or granted in
full or in part, according to the merits of the particular case, unless it is provided by statute that such acts shall operate as a
remission of the forfeiture or shall entitle the sureties to relief therefrom. The compulsory appearance of the principal by
operation of the law will not be sufficient to nullify a judgment of forfeiture. It is generally held, however, that, where accused
appears and shows a reasonable excuse for the default, and that it was not willful, the forfeiture should be set aside; and that
 the appearance or the surrender of accused after forfeiture, followed by his trial and acquittal or conviction, operates as a
discharge from liability and entitles the sureties to relief from, or a remission of, the forfeiture. . . .

Everything considered, a majority of the court are of the opinion that the ends of justice will be better served if the bond be declared
forfeited only in one-half of its amount. To the extent indicated, the order and judgment appealed from are modified. With the costs
of both instances against the appellant, it is so ordered.
G.R. No. L-24010 October 22, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ESTEBAN PACIS, defendant-appellant.

Pedro Villamor for appellant.

Acting Attorney-General Reyes for appellee.

STATEMENT

January 15, 1925, the provincial fiscal filed in the Court of First Instance of Abra the following information:

The undersigned accuses Esteban Pacis of the crime of frustrated murder, committed as follows:

That on or about the 6th day of February , 1922, in the municipality of Bucay, Province of Abra, Philippine Islands, the said
accused willfully, unlawfully, and feloniously with intent to kill, and with treachery, assaulted and attacked Fernando Bobiles
while the latter was asleep in his home by striking him with a deadly weapon, to wit: A bolo, thereby inflicting serious wounds
in the person of Fernando Bobiles, thus performing all the acts of execution which should have produced the crime of murder as
consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by the timely and able
medical assistance rendered to said Fernando Bobiles which has prevented his death.

That besides the aggravating circumstance of treachery, there were also present in the commission of this crime, the aggravating
circumstance of nocturnity and the employment of means to insure or afford immunity. 1awph!l.net

All contrary to law.

As a result of the trial, the defendant was found guilty of the crime of frustrated murder and sentenced to fourteen years, eight
months and one day imprisonment, with the accessories of the law, and to pay the costs. The defendant appeals, contending that the
trial court erred in designating the crime committed against Fernando Bobiles as frustrated murder, and in declaring the defendant
guilty of that crime, and in not acquitting him of the charge.
JOHNS, J.:

About midnight of February 6, 1922, while Fernando Bobiles was asleep in his own home in the barrio of Ucab, municipality of Bucay,
Abra, he was suddenly and treacherously attacked with a bolo, as a result of which he received six serious wounds, one below the
right elbow which required sixty-three days to cure, one below the abdomen affecting the peritoneum, curable in fifty days, one on
the right lower jaw, curable in twenty-five day, one below the right ear, curable in fifteen days, and a wound on the left wrist, affecting
the cubital artery and the bones, curable in fifty-four days, and the last below the right shoulder which caused a permanent disability.
At the same time and place an assault was committed on Dionisia Bobiles, the wife of Fernando Bobiles, and upon their daughter
Rufina Bobiles.

The evidence is conclusive that it was the defendant who committed the crime, and it appears from the nature and number of the
wounds inflicted upon Fernando Bobiles that the assault was both vicious and brutal, and that it was made with intent to kill, and that
it is very fortunate for the defendant that it did not result in a higher crime.

The defendant cites and relies upon the decision of this court in the case of People vs. Yabot (45 Phil., 207, 210), where it is held:

As we analyze the evidence, the proof is not sufficient to sustain either frustrated murder or frustrated homicide. At no time or
in any manner was the defendant frustrated in the commission of the act. In other words, he was not in any manner prevented
from killing Carmona. It is true that Carmona was seriously wounded. It is also true that, through medical treatment, he fully
recovered. But the fact that he recovered through medical treatment does not make the crime either frustrated murder or
frustrated homicide, or in any manner change the character or nature of the crime.

It also appears from that opinion that in that case the injuries were inflicted during a fight between the defendant and the offended
party which took place out in the open. The facts in that case are very different from those in the instant case. The prosecution cites
the case of United States vs. Sanchez (20 Phil., 427), which the defendant was convicted of frustrated murder upon proof that he
entered the house and stabbed Walter P. Linton and Nina Linton while they were asleep, and that the wounds inflicted were cured
after more than thirty days' medical attendance. In that case the court says:
 The particular part of the body of a person struck during an assault, the deadly character of the weapon used and the violence
of the attack, taken together, do not constitute proof of an intention to kill when they are all incidental to a quarrel in which the
contending parties come to blows; under such circumstances, the actual conditions surrounding the encounter form the best
criterion by which to arrive at the facts; but when all the said circumstances are present, and the crime further involves acts
committed with alevosia, in such manner as to insure the safety of the assailant while depriving the victim of the opportunity to
make defense, and when the aggressor, having special knowledge of the place of the assault, surprises and attacks his victim
while the latter is asleep, and is then able to escape because of his intimate acquaintance with the interior of the house, in which
he was formerly employed as a servant, the intention to kill clearly appears and the crime is properly classified as frustrated
murder.

That is this case. Here, the offended party was in his own home sound asleep and defenseless, in which condition and about midnight
six serious wounds were treacherously inflicted upon him, with the apparent intent to kill.

Through a mistake or oversight, the Acting Attorney- General recommends that the defendant be sentenced to eight years and one
day of presidio mayor. Upon the facts, the penalty imposed by the lower court is right. There is no merit in the appeal.

The judgment of the lower court is affirmed, with costs. So ordered.

G.R. No. L-28201 February 8, 1928

THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee,

vs.
PABLO VILLANUEVA, defendant-appellant.

Modesto Reyes for appellant.

Attorney-General Jaranilla for appellee.

STREET, J.:

This appeal has been brought to reverse a judgment of the Court of First Instance of Iloilo finding the appellant, Pablo Villanueva,
guilty of the offense of frustrated parricide and sentencing him to undergo imprisonment for fourteen years, eight months, and one
day, reclusion temporal, with the accessories prescribed by law, and requiring him to pay the costs.

The accused in this case, Pablo Villanueva, and the injured woman, Salvacion Tesoro, are husband and wife; and until June 23, 1927,
they were living together in the municipality of Balasan, in the Province of Iloilo. For some time prior to the day mentioned, ill feeling
had existed on the part of the accused towards his wife; and a few days before the incident now to be referred to, in the course of
the matrimonial dispute, the accused exhibited a hatchet to his wife and told her that he had not bought it for the purpose of splitting
wood but to use upon her body. On the date mentioned the wife had a wordy altercation with a younger sister of the accused,
whereupon the accused intervened and said to the girl, "Leave her alone, sister, for lightning is going to strike soon, and there will be
a cutting." Upon this, the sister retired, and the wife, Salvacion Tesoro, turned away. In a few minutes, however, the accused
approached her with hatchet in hand struck her on the right occipital part of the head, making a gash that was not of a dangerous
nature. Surprised at this aggression, Salvacion asked the accused why he had wounded her. Instead of answering, he placed himself
in front of the woman and aimed at her a second blow, which she parried with her right hand, at the cost of fracturing a bone in her
wrist. Following upon this aggression, the accused attempted to give the woman a third blow, but she evaded the stroke by stopping,
and at the same time gave the accused a push. As consequence the blade of the hatchet passed harmlessly in the air, and only the
handle struck on the woman's left shoulder. At this moment another woman, who was the wife of a brother of the accused, stepped
in and caught the accused by the shoulder, thereby causing to desist from the assault.
The wound inflicted upon the head of the injured woman appears to have taken some fifteen days to heal, while she did not recover
the complete use of her forearm until the expiration of about twenty-five days, and even at the time of the trial she stated she still
felt pains in her wrist. For fifteen days she was so far disabled as to be unable to attend to her customary duties.

As to the qualifications of the crime we agree with the Attorney-General that the offense for which the accused should be convicted
is the infliction of minor physical injuries (lesiones menos graves), punishable under article 418 the Penal Code, because the injuries
required more than eight but less than thirty for their cure. The fact that the injured woman was the wife of the accused is a
circumstance to be taken into account as an aggravation of the offense (No. 1 art. 10, Penal Code). No mitigating circumstance is
discernible. The proper penalty therefore falls within the maximum degree of the penalty indicated in the first paragraph of article
418 of the Penal Code; and in view of the ugly nature of the assault, we are of the opinion that the accused merits said penalty in its
extreme extension, arresto mayor.

The trial judge defined the offense as frustrated parricide, but the majority of this court are of the opinion that this qualification of
the offense is too severe, because it does not appear beyond a reasonable doubt either that the accused actually intended to kill his
wife or that he performed all of the acts of execution which should have resulted in the woman's death and was only prevented from
accomplishing this result by causes independent of his will. A fair interpretation of the evidence is, in our opinion, to the effect that
the accused was somewhat of a blusterer and bully and that the threat implied in his statement, some days before the assault, that
he had bought the hatchet to use on his wife, is at least partly explainable as having been prompted by a desire to intimidate the
woman. Again, if the accused had really intended to kill his wife, it is difficult to see what there really was to prevent him when she
was crouched helplessly on her knees before him.

In connection with offenses of his character, before the graver qualification can be placed upon the offense, the intention to take life
must be proved with the same degree of certainty as required as to other elements of the crime, and the inference of such intent
should not be drawn in the absence of circumstances sufficient to prove such intention beyond a reasonable doubt. Moreover, it is
always to be remembered that the first and simplest presumption which the law draws with respect to human conduct, in connection
with acts of violence, is that the actor intended the natural consequences of his acts; and this presumption should be applied in a fair
and rational way, with proper regard to all the details of the act, and without the suppression of any of its elements. For instance, if
an accused is shown to have fired a gun at his victim, thereby inflicting a minor wound in some part of the body, it should be
assumed prima facie that he intended to inflict such a wound. And from the mere fact that the use of firearms is dangerous to life,
the inference should not be drawn that the accused intended to kill. Likewise, in a case of this kind, where the accused inflicted a
scalp wound with a hatchet and struck at his victim a second time, it should not be inferred, from the mere fact that a hatchet in the
hands of an infuriated man is a deadly weapon, that the accused really intend to kill. In cases of this kind the intent to kill should be
proved by convincing external evidence incompatible with any other intention. Prima facie a man must be assumed to have intended
to do that which he actually did, and not something more. In the opinion of the court the proof of intention to kill in this case is lacking
in certainty and convicting character.

Similar considerations make it improper to convict the accused of attempted parricide, because the intention to kill is equally necessary
in case of an attempted homicide as in case of the frustrated crime; and we consider untenable the suggestion that in this case the
desistance of the accused from the purpose to kill his wife was due to the intervention of a sister-in-law who caught the accused by
the shoulders after he had struck at his victim the third time; for the woman who thus intervened ceased at once from this mild form
of intervention at the command of her own husband, a brother of the accused, who was standing near and who, to judge by his words,
sympathized with the aggression. The fair and natural interpretation of the acts of the accused is that he desisted from the assault of
his own volition.

The judgment convicting the accused of frustrated parricide is therefore reversed, and judgment will be entered convicting the accused
of the offense of lesiones menos graves and sentencing him to six months, arresto mayor, with the accessories appropriate to this
penalty, and requiring him to pay all costs of prosecution, with proper credit of course for one-half the period of provisional confinement
prior to the date when service of this sentence shall begin. So ordered.
G.R. No. L-9991 December 19, 1914

THE UNITED STATES, plaintiff-appellee,

vs.
ROMAN MAGHIRANG, DAMASO RIVERA and FRANCISCO GUTIERREZ, defendants-appellants.

Roman Gesmundo for appellants Maghirang and Rivera.

Santos, Manglapus & Pinzon for appellant Gutierrez.
Office of the Solicitor General Corpus for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Laugna convicting the accused of the crime of frustrated murder
and sentencing each one of them to eight years and one day of prision mayor, with the accessories provided by law, to pay, jointly
and severally, to the offended party the sum of P400, and to pay the costs of the trial.

It appears from the evidence that late at night on the 1st day of May, 1913, the accused Roman Maghirang, Damaso Rivera, and
Francisco Gutierrez, in company with Pablo Sahagun, went to the house of Cornelio Briones in the barrio of Remedios, municipality of
San Pablo, Laguna, carrying banjos and guitars, for the purpose of giving a serenade in front of Briones' house in honor of his sister-
in-law, to whom Sahagun was paying some attention. The young lady being ill, Briones, from his window, called to the accused and
asked them not to continue the serenade as he was afraid the music would awaken her. The accused thereupon departed. About 2
o'clock of the afternoon of the following day Briones, riding a carabao, went to visit a piece of land belonging to him in Maabu. During
the journey he had to cross a dry run which, in the wet season, emptied its waters into the Patay-na-tubig River. Briones had crossed
this run and was in the act of ascending the opposite bank when suddenly the three accused, Roman Maghirang, Francisco Gutierrez,
and Damaso Rivera, leaped from the bushes in which they were hidden. Gutierrez seized the carabao while Rivera struck Briones on
the left arm with a club. The force of the blow knocked Briones to the ground. While down, Maghirang approached him with a bolo
and, in spite of the remonstrances and prayers of Briones, struck him two blows, one on the shoulder and the other across the lips.
The accused then withdrew. The blows were heavy ones and rendered the victim senseless. After returning to consciousness he was
able, with great difficulty, to reach his house.

According to the testimony of the physician who examined Briones after the assault, the wound on the shoulder was about 18
centimeters long and, at the point of greatest profundity, 4 to 5 centimeters deep. The wound cut through all of the muscles of the
shoulder, through the capsular ligament, and into the bone a distance of 2½ centimeters. The arm has lost about 60 per cent of its
strength and usefulness, and Briones is unable, and will be unable, to engage in his usual occupation. This injury is permanent.

The second wound, the one across the mouth, intersected both lips.itc@alf The upper lip was cut away in part, while a portion cut
from the lower lip still hanging by a small portion of the skin when first seen by a doctor. Attempts were made by the surgeon to sew
this piece to the lower lip. He finally succeeded and, although the parts have grown together, the lower lip is paralyzed and Briones
is able to speak only by placing his hand against the lower lip and holding it in position while he articulates.

These injuries were cured, so far as cure was possible, in about forty days at an expenses of P300.

From the evidence in this case we have no doubt whatever that the accused are guilty of the acts charged in the information. Briones
recognized all three as they attacked him and detailed clearly and satisfactorily what each one did. The only question calling for
discussion in this case is one raised by the private prosecutor, who insists that the solicitor-general, in this court, has not properly
qualified the crime, the latter insisting that the crime is lesiones graves instead of frustrated murder.

In support of his contention that the crime is lesiones graves and not frustrated murder, the solicitor-general says:

The trial court found that the crime committed was frustrated murder, with the aggravating circumstance of premeditation.

There exist, it is true, certain circumstances which appear to sustain this conclusion of the court: The use of bolos, which in
themselves are deadly weapons; the words "we are going to kill you" which Maghirang used to Briones when the attack was
made, and which were followed immediately by the blow across the face; the ambush and the unexpected and sudden assault,
all appear to sustain the contention that there was an intention to kill, induced as the trial court said, by the insult which they
supposed had been offered them the night before.

But an examination of the doctrine of this court in the case of U. S. vs. Duruelo (7 Phil. Rep., 497); U. S. vs. Trinidad (4 Phil. Rep.,
152); U. S. vs. Dagalea (4 Phil. Rep., 398); U. S. vs. Manlalang (6 Phil. Rep., 339), induces us to believe that the crime committed is
that of lesiones graves (serious injuries) described and punished in paragraph 2, article 416 of the Penal code, with the aggravating
circumstance of treachery. That is to say, although the information was for frustrated murder and that was the crime found by the
trial court to have been committed, the facts demonstrate that the accused are guilty simply of lesiones graves for the reason that
the accusation did not prove on the trial that the intention or the purpose was to kill, for, although one of the accused was armed
with a bolo and the other with a club, and Briones lay upon the ground on his back, the wounds, nor were they located in a fatal spot;
and yet, in spite of that, the accused did not continue the assault in order to effectuate his death, nor did they use the bolo with which
to deliver the fist blow, although they were not prevented by anybody from consummating their intention to kill him if they had such
a purpose. It is necessary to take into consideration the aggravating circumstance of treachery in view of the fact that Briones was
attacked from behind and suddenly, without having been given an opportunity to offer any resistance."

We are disposed to agree with the theory of the Solicitor-General, in spite of the strong argument advanced by the private prosecutor,
that the crime committed was really frustrated murder. According to the provisions of the Penal Code, article 3, "a felony is frustrated
when the offender performs all the acts of execution which should produce the felony as a consequence, but which, nevertheless, do
not produce it by reason of causes independent of the will of the perpetrator."

It is clear to our minds that, in this particular case, the accused did not perform "all of the acts of execution which should produce the
felony as a consequence." The wounds were not located in a vital spot. Neither of them was mortal nor likely to produce death; in
other words, the wounds inflicted were not such as "should" produce death, nor such as would naturally and ordinarily produce death.

The Lim San case (17 Phil. Rep., 273) is illustrative of the conditions necessary to present a case of frustrated murder. There the
would inflicted was such as "should" have produced death and would necessarily have produced death if the injured person had not
been instantly taken to a hospital, his intestines replaced and his abdomen properly closed. While the information charged attempted
murder, we found the accused guilty of frustrated murder upon the ground that he performed all of the acts which should produced
death, which acts, nevertheless, did not produce death by reason of causes independent of the will of the perpetrator. in the case
before us the accused did not perform all of the acts necessary to produce death nor was the life of the complaining witness saved by
causes independent of the will of the perpetrator. In other words, the accused in this case did not perform all of the acts which
"should" produce death.

Nor is the crime attempted murder; for, in order that the crime be qualified as such, the offender must commence "the commission
of the felony directly by over acts" but must "not perform all of the acts of execution which constitute the felony by reason of some
cause or accident other than his own voluntary desistance."

In the case at bar the accused voluntarily desisted from injuring the victim further.1awphil.net They probably knew, which was the
fact, that the injuries were not inflicted in a vital part of the body and were not such as "should" produce death. This presents a
condition from which we cannot say the crime can neither frustrated nor attempted murder. (U. S. vs. Marasigan, 11 Phil. Rep., 27;
U. S. vs. Domingo, 18 Phil. Rep., 250; U. S. vs. Montenegro, 15 Phil. Rep., 1; U. S. vs. Samea, 15 Phil. Rep., 227; U. S. vs. Maquiraya,
14 Phil. Rep., 243; U. S. vs. Taguibao, 1 Phil. Rep., 16; U. S. vs. Sabio, 2 Phil. Rep., 485; U. S. vs. Dagalea, 4 Phil. Rep., 398; U.
S. vs. Trinidad, 4 Phil. Rep., 152; U. S. vs. Redion, 4 Phil. Rep., 500; U. S. vs. Duruelo, 7 Phil. Rep., 497; U. S. vs. Barnes, 8 Phil.
Rep., 59.)

As a necessary result of these considerations, the crime must be characterized as lesiones graves, as stated by the solicitor-general.
There being present the aggravating circumstances of alevosia, premeditation, despoblado and superior force, the penalty must be
imposed in its maximum degree.

The judgment of conviction is reversed and the accused are hereby each convicted of the crime of lesiones graves and sentenced
each to six years eight months and twenty-one days of prision mayor, to the accessories provided by law, to indemnify the offended
party in the sum of P400 and to be jointly and severally liable therefor, and to pay the costs.
G.R. No. L-3395 September 16, 1907

PEDRO ARENAL, ET AL., plaintiffs-appellees,

vs.
CHARLES F. BARNES, defendants,
AND LUIS PALOMAR BALDOVI, intervener-appellant.

Manuel G. Gavieres, for appellant.

Manly and Gallup, for appellee.

WILLARD, J.:

The plaintiffs brought this action in the court below to set aside a document executed by them on the 25th of August, 1902, in favor
of the defendant, Charles F. Barnes. During the progress of the case in the court below, Luis Palomar Baldovi was allowed to intervene,
setting up an interest in the property in question which he had derived from the defendant, Barnes. Judgment was rendered by default
against Barnes, and after trial judgment was rendered in favor of plaintiffs, annulling and setting aside the document in question.
From that judgment the intervener, Baldovi, has appealed.

The plaintiffs, Pedro Arenal and Juana Trinidad, were heirs at law of Ana Endicott, deceased. Her estate had never been settled in
court. Barnes represented to them that if they would give him a power of attorney for that purpose he could settle and liquidate the
inheritance and after doing so would divide the property among the heirs, he to receive for his services the rent accruing from a
certain house belonging to the estate. Relying upon Barnes's promises in this respect, the plaintiffs appeared before a notary public
on the 25th day of August, 1902, and executed the document which they now seek to have set aside. The important parts of that
document are as follows:

First. That Ana Endicott died intestate in the town of Legaspi, leaving personal property and real estate at her death.

Second. The parties, Juan Trinidad and Pedro Arenal, are relatives of the deceased Ana Endicott within the sixth degree of
consanguinity, and they have therefore a right to receive the estate of the deceased.

Third. That it being impossible for the said plaintiffs to themselves engage in the necessary proceedings for the possession of
the property which may belong to them, they have agreed to the division of the same, and have accordingly transferred to
 Charles F. Barnes all the rights as they have to the estate of Ana Endicott for the sum of 1,000 pesos, Mexican, which sum they
acknowledge to have received from said Mr. Barnes before the making of this contract, in consideration of which they renounce
the exception of not counted money, transferring their rights to Barnes so that he may proceed to make the corresponding
declaration of heirs in the court, and receive the share of property belonging to them in the above-mentioned estate.

The plaintiff, Juana Trinidad, testified that before she signed this document it was read over to her in the Bicol dialect, which she
understood. The notary testified to the same effect, that he read the document in Bicol to both of the plaintiffs before it was signed.
This positive testimony of one of the plaintiffs and of the notary public can not be overcome by the statement of the other plaintiff,
Arenal, that the document was not read to him in Bicol before he signed it. We take it as an established fact, therefore., that no
matter what representations Barnes made to the plaintiffs as to the character of the document which they were going to sign, when
they came to sign it they were fully informed as to what it was and that they knew what they were signing. The fact that they may
not have fully understood the legal effect of the document is no ground for setting it side.

The transaction here presented was before this court in the case of the United States vs. Barnes (3 Phil. Rep., 704), in which we held
that Barnes could not be convicted of the crime of estafa under paragraph 7 of article 535 of the Penal Code upon the evidence
presented in that case.

In view of the fact that in order to fully settle and liquidate this inheritance it would undoubtedly be necessary that Barnes have
authority to sell the property belonging thereto for the purpose of paying debts and expenses, it is not altogether improbable that the
document which the plaintiffs in fact signed was very kind of a document which they intended to sign, or in any event, it is probable
that they intended to sign a document giving Barnes power to sell the property belonging to the estate.

Under this document, Barnes sold all of the inheritance to the intervener by deed dated the 19th day of March, 1903. The consideration
expressed in that deed is 7,500 pesos. It was admitted in the court below by the respective parties to this litigation that prior to the
commencement of this action, Baldovi had paid to Barnes 1,250 pesos on account of the purchase price. There is no evidence that
Baldovi, the intervener, had any notice or knowledge of the relations between Barnes and the plaintiffs other than what furnished by
the document executed by the plaintiffs in favor of Barnes. Whether this action for the annulment of this contract on the ground of
fraud can be maintained against a third person who acquired the property as Baldovi acquired it, is a question which we do not find
it necessary to decide, fro we hold that the plaintiffs, knowing fully before they signed the document what its terms were, can not
now have it set aside.
It is very evident that Barnes had defrauded the plaintiffs, because he not only did not pay then the thousand pesos mentioned in the
document referred to but also he has never paid them any money received from Baldovi, or any money received from other property
of the estate. They undoubtedly have a cause of action against him to recover the money so paid by Baldovi which still remain due
from Baldovi to Barnes by virtue of the conveyance in March, 1903, and this right they could probably make available in the appropriate
action.

The judgment of the court below in favor of the plaintiffs, and against the intervener, Baldovi, is reversed and the preliminary injunction
dissolved. No costs will be allowed to either party in this court. So ordered.
G.R. No. L-3852 November 11, 1907

THE UNITED STATES, plaintiff-appellee,

vs.
EDUARDO MONTIEL, defendant-appellant.

R. Palma, for appellant.

Attorney-General Araneta, for appellee.

TORRES, J.:

Between 9 and 10 a. m. on the 13th of July, 1905, Eduardo Montiel, accompanied by his bondsman, Domingo Gutierrez, appeared
before the court of the justice of the peace of the town of Romblon in compliance with the summons served on him, to be notified of
his conviction in the proceedings against him for theft. As soon as the decision was read by the justice of the peace, Wenceslao Molo,
to the accused, the latter addressed the judge then informed him that the sentence would not become final until fifteen days later
and that he could appeal therefrom to the Court of First Instance. At the moment when the judge commenced to dictate to the
secretary, Bernabe Calzado, who was sitting on the right-hand side of the desk, turning his back toward the accused, who stood on
the left, he suddenly felt a blow upon his back, and upon turning round found the accused standing behind him and holding a dagger
or a double-edged weapon covered with blood, and upon asking his assailant why he had wounded him the latter replied, "You will
not laugh at me now; you have enough." The justice of the peace then went toward the kitchen looking for something with which to
defend himself, and his assailant, Montiel, took advantage of the opportunity to make his escape.

Dr. Abella, an inspector of the board of health, examined the injured man and found that he had received a wound in the region of
the left shoulder blade which penetrated the skin, the inner tissues, and the lungs. The wound was a serious one, the prognosis being
reserved and it was found that it had been inflicted with a short sharp instrument. The patient suffered from extreme weakness,
spitting blood for many days, and even after the treatment was completed he was unable to attend to his agricultural pursuits. That
he did not die in consequence of his serious wound was partly due to the prompt assistance rendered by the medical inspector who
happened to be at the capital of Romblon.

By reason of the foregoing facts, on the 7th of August, 1905, the provincial fiscal filed a complaint as follows:
 The undersigned accuses Eduardo Montiel, a resident of the municipality of Romblon, Province of Romblon, of the crime of
frustrated murder with attempt against a public official, armed with a weapon, as defined and punished by article 403 in
connection with articles 65 and 249, paragraph 2, and 250, paragraphs 1 and 2, of the Penal Code, committed as follows:

That on the 13th day of July of the present year 1905, in this municipality of Romblon, Province of Romblon, within jurisdiction
of this Court of First Instance, the said accused being then and there a councilor of this municipality of Romblon, did willfully,
unlawfully, and feloniously attack with a weapon Wenceslao Molo, principal justice of the peace of this municipality of Romblon,
Province of Romblon, while in the discharge of his official duties in his court room, and at a time when by reason of his said
duties he had notified the accused of his conviction as a result of the proceedings against him for theft, inflicting a wound of two
centimeters in extent in the region of the left shoulder blade which penetrated the skin, the inner tissues, and the lungs, a
consummated murder not having resulted through the prompt assistance rendered by a medical inspector who was at the time
in this capital, and because of the patient's favorable condition of health, said causes being entirely independent of the will of
the accused.

All of which acts, committed contrary to law, are hereby brought to the notice of the court for such action as may be proper.

Counsel for the accused demurred to the above complaint on the ground that more than one crime was charged therein, and because
the facts stated in the same in connection with the crime of frustrated assassination did not constitute the said crime, citing in support
thereof, paragraphs Nos. 3 and 4 of section 21 of General Orders, No 58. On the 16th of the said month of August, the objection was
sustained by the court, and thereupon, on the 17th of the same month, the provincial fiscal amended his complaint in the following
terms:

The undersigned accuses Eduardo Montiel, a resident of this municipality of Romblon, Province of Romblon, of the crime of
frustrated murder, defined and punished under article 403 in connection with article 65 of the Penal Code, committed as follows:

That on the 13th day of July of the present year 1905, in this municipality of Romblon, Province of Romblon, within the jurisdiction
of this Court of First Instance, the said accused, who was then and there a councilor of this municipality of Romblon, Province
of Romblon, did willfully, unlawfully and feloniously, and with intent to kill, suddenly and unexpectedly attack with a weapon
Wenceslao Molo, principal justice of the peace of this municipality of Romblon, Province of Romblon, while the former (the said
Molo) was discharging the duties of his office as such justice of the peace in his court room, after notifying the accused herein
of his conviction as a result of the proceedings against him for theft, and caused a wound of two centimeters in length in the
region of the left shoulder blade which penetrated the skin, the inner tissues, and the lungs, death not ensuing because of the
 prompt assistance rendered by a medical inspector who happened to be temporarily in this capital, and also because of the
patient's favorable condition of health, the same being entirely independent of the will of the accused.

All of which acts, committed contrary to law, are hereby brought to the notice of the court for such action as may be deemed
proper.

Proceedings having been instituted for the crime of frustrated murder by virtue of the foregoing complaint, the court, in view of the
result thereof, rendered judgment on the 30th of August, 1906, and sentenced Eduardo Montiel to the penalty of four years of prision
correccional and to suffer the accessory penalties of article 61, to indemnify Wenceslao Molo in the sum of P108, and, in case of
insolvency, to the corresponding subsidiary imprisonment, and to pay the costs of the proceedings. From said judgment the accused
has appealed.

While the present cause was still pending in court, another complaint was filed by the provincial fiscal accusing the same Eduardo
Montiel of the crime of attempt against the authorities. Separate proceedings were had in the Court of First Instance which ended in
the conviction of the accused, who was sentenced to the penalty of imprisonment for six years and to pay a fine of 1,000 pesetas and
costs. Appeal having been taken by the accused, upon review of the case, the judgment of the court below for the crime of attempt
against the authorities was confirmed. The case is registered under No. 2882 in the general register of this court. 1

Upon the appeal in the present case, under the charge of frustrated murder, registered under No. 3852, counsel for the accused in
this second instance moved that the complaint be dismissed on the ground that the defendant herein had already been convicted for
the same crime under another classification, the law not permitting the same crime to be twice prosecuted, alleging double jeopardy
and possible conviction in the present cause of the crime of frustrated murder, and that the legal classification of a crime does not
alter the identity thereof, since the statement of facts as they occurred is the same, which must necessarily happen because of the
sole fact at issue.

In the original complaint presented by the provincial fiscal, Eduardo Montiel was accused of the double crime of frustrated murder
and attempt against the authorities by a public official armed with a weapon, and although the more rational classification of the act
was that of an armed attempt against the authorities and lesiones graves, the fact is that, because in the original complaint he was
accused of two crimes which arose from one single act, the provisions of section 11 of General Orders, No. 58, and of article 89 of
the Penal Code were not violated.
The matter at issue is that of one single act which constitutes the two crimes of attempt against the authorities and lesiones graves,
in lieu of frustrated murder, because the attempt consisted precisely in the aggression with a weapon by Eduardo Montiel against the
justice of the peace of Romblon at a time when said officer was discharging the duties of his office, and for this reason section 11
permits several crimes to be included in the information or complaint for which the above-mentioned article 89 of the Penal Code
prescribes that only one penalty shall be imposed, to wit, that corresponding to the most serious of the crimes charged in the complaint
or information, to be applied in its maximum degree.

The wound inflicted by Eduardo Montiel upon the said justice of the peace, considering the details and circumstances of the aggression,
was caused by a single blow given by the aggressor, which was not repeated, a fact which shows that it was not the purpose or intent
of the latter to kill the person assaulted, and for this reason the offense should only be classified as lesiones graves. The consummation
of the crime of murder or of homicide necessarily requires that the intention to deprive a person of his life be made manifest by acts
tending in an unmistakable manner to secure such result by employing from the beginning adequate means therefor, and, further,
because we are dealing with crimes in which the Penal Code especially looks to the material results of the criminal transgression. As
regards the case at bar, it is evident that Montiel, after striking the injured person in back with the weapon, did not repeat the
aggression, but fled at a time when the person assaulted was entirely unarmed, and for this reason the double crime should have
been classified as attempt against the authorities with a weapon, with lesiones graves.lawphil.net

Under said suppositions and as, notwithstanding the undue separation of the two crimes which were the result of one criminal act, it
is unquestionable that both in the complaint for attempt and in that for frustrated murder in which the classification of lesiones
graves should have been stated, the fact is that Montiel was only accused of one sole act which constituted two crimes; therefore
having been prosecuted and convicted for the crime of attempt, which is more serious that of lesiones, it is not proper that he should
be further prosecuted for the latter crime, erroneously classified as frustrated murder. Hence, taking in consideration the rule regarding
twice in jeopardy, the present case should be dismissed, since it would be unjust to subject the accused to the risk of being again
convicted for a crime which has already been the subject of a conviction in a former case for attempt.

For the foregoing reasons it is our opinion that the judgment appealed from should be reversed and the present case dismissed, with
the costs of both instances de oficio. So ordered.
 [G.R. No. 2867. September 11, 1906. ]

THE UNITED STATES, Complainant-Appellee, v. JULIAN REYES, Defendant-Appellant.

W. A. Kincaid, for Appellant.

Solicitor-General Araneta, for Appellee.

SYLLABUS

1. THEFT. — The defendant had possession of the property, both de facto and de jure. He had a right to dispose of an aliquot part of
the crop. His unlawful disposition of the share of his partner or joint owner was not an act constituting from another. The taking and
abstracting is what constitutes the crime of theft.

DECISION

ARELLANO, J. :

Assuming that the findings of fact contained in the decision of the court below are correct, it appears (1) that one Vicente Sulit
occupied as a tenant several parcels of land within the hacienda of Justo Guido for the use of which he gave to the owner 30 cavanes
of palay for every 3 cavanes of seed received from the latter; (2) that the said Vicente Sulit, who was a man 80 years of age, entered
into an agreement with Julian de los Reyes whereby the former was to contribute 3½ cavanes of seed and sow the same, and in
addition thereto, two carabaos, two harrows, two carts, and 24 pesos in cash, and the latter was to transplant the seed and take care
of and harvest the crop, the profits to be divided between them, share and share alike, after deducting the 30 cavanes due to the
owner of the land, Reyes to reimburse his partner one-half of the expenses defrayed in advance by Sulit; and (3) that when the crop
was ready to be harvested, Reyes being sick, Sulit did the work, stacked the rice, and when the time came for trashing the rice, Reyes
did the trashing.
But when Sulit went upon the land to take his share of the rice, he found Reyes selling palay to various persons, and he refused to
give him (Sulit) any part thereof, saying that he was not this partner because the rice belonged to the town.

The court below sentenced the accused to six months’ imprisonment (arresto mayor), to return the stolen palay, 75 cavanes in all, or
in default thereof to pay to the said Sulit 150 pesos, otherwise to suffer the corresponding subsidiary imprisonment at the rate of one
day for every 12½ pesetas, such subsidiary imprisonment not to exceed one-third of the principal penalty, with the costs of the
proceedings.

The Attorney-General is of the opinion that the crime committed was not that of theft for the reason that, as he says, there was no
apoderamiento of the property of another, and suggests that the crime committed was rather that of estafa, thus apparently accepting
the view of the counsel for the defendant, as expressed on page 5 of the latter’s brief.

As a matter of fact the defendant could have harvested and trashed the crop in question. This he could have done by reason of his
possession, both de facto, and de jure. He was in possession of the palay of which he freely disposed without taking or abstracting
the same from anyone, and he had a right to lawfully disposed of an aliquot part of the crop. If he had disposed of all of the crop his
action would have been unlawful. His unlawful disposition of the share belonging to his partner or joint owner (such contract being
governed by the provisions relative to the contract of partnership, by the stipulation of the parties, and by the custom of the country
as provided in article 1579 of the Civil Code) was undoubtedly a violation of their contract and a trespass upon the rights of another
but not an act constituting the crime of theft. If the defendant was lawfully in possession of the rice he certainly did not, when he
disposed of it, take it or abstract it from another. Such taking and abstracting is what constitutes the crime of theft.

We accordingly reverse the judgment appealed from and acquit the defendant with the costs of both instance de oficio, without
prejudice to the institution of any other action that may be proper, as to which make no decision. After the expiration of ten days
from the date of final judgment the case will be remanded to the court below for proper procedure. So ordered.
 [G.R. No. 280. July 25, 1908. ]

THE UNITED STATES, Plaintiff-Appellee, v. ELEUTERIO MARASIGAN, Defendant-Appellant.

M. Adriatico for Appellant.

Solicitor-General Araneta for Appellee.

SYLLABUS

1. DISCHARGE OF FIREARMS; "LESIONES;" PENALTY. — If the discharge of a firearm by a person caused to the assaulted party lesion
mas o menos grave, under the penal laws the crime committed was a double offense, one, by discharging a firearm against a certain
person, and the other, by causing lesiones graves or menos graves, defined and punished by articles 408, 416, or 418 of the Penal
Code; and, as these crimes are the result of one sole act, the adequate penalty, under article 89 of the code, is that imposed for the
more serious crime, applied in its maximum degree, dividing it into three periods or subgrades, and imposing the same in the period
corresponding to the provisions of article 81 of the Code.

2. ID.; FRUSTRATED MURDER OR HOMICIDE. — In order that the act of discharging a firearm at another inflicting lesiones may be
classified as frustrated murder or homicide, it is absolutely necessary that the intent to deprive the assaulted person of his life be
made manifest by acts which may unmistakebly tend to attain such result by adequate means from the beginning of its execution,
inasmuch as, in crimes which blood is shed, more than in any other, the criminal considers the material effects produced by the
transgression.

DECISION
TORRES, J. :

About 7 o’clock on the evening of the 17th of September, 1892, Engracio Ronimo, a lieutenant of the town of Calaca Batangas, being
in front of the house of Geronimo Ramos in said town, noticed that a quarrel was going on upstairs. He immediately went up to
investigate the affair, and found that the quarrel was between Eleuterio Marasigan and Severo Magsino, the latter charging Marasigan
with having stolen a bull owned by Magsino. Lieutenant Ronimo tried to take them to the municipal building, but at that moment
Arcadio de Joya, the justice of the peace, appeared before the house and, upon being informed of what had happened, ordered all
those who were in the house to come down at once; everyone did so and after a conversation in Spanish which took place between
Marasigan and the justice of the peace, Lieutenant Ronimo became aware that they were arranging, to settle the matter. Ronimo
objecting thereto, Marasigan caught hold of the gun which the justice of the peace was carrying with him and fired a shot at Lieutenant
Ronimo who, in consequence, was wounded in the head and fell to the around. All the foregoing happened in the presence of several
witnesses who, upon examination, so testified.

The wounded man was promptly assisted by two curanderos, and, although the injured party declared that it took him one month
and two days to recover, that during the first twenty days he was unable to work, and that he spent P7 which, together with other
damages, amounted to P12, yet one of the curanderos stated that the cure took twenty days, while the other said that it took only
ten days. The wounded man was later on examined by the municipal physician, who stated that he found a scar in the left parietal
region of the head as the result of a gunshot wound; that the bullet only affected the scalp without penetrating the skull, the wound
having entirely healed without further consequences; and that by proper treatment, barring accidents or complications, cure should
have been effected in from twenty to thirty days.

Proceedings were instituted against Fleuterio Marasigan and Arcadio de Joya for the crime of lesiones graves, and the trial court
rendered judgment on the 2d of May, 1896, sentencing Eleuterio Marasigan, for the crime of discharging a firearm and lesiones menos
graves, to the penalty of three years and six months of prision correccional with the accessory penalties, to indemnify the injured
party in the sum of P18, or to suffer subsidiary imprisonment in case of insolvency, and to pay one-half of the costs, one-half of the
time of his detention to count in his favor. Arcadio de Joya was acquitted, and the other half of the costs was declared de oficio.
Counsel for the accused Marasigan appealed from the above judgment, but after the appeal was admitted, the latter disappeared and
in consequence was declared in default, the proceedings being suspended until such time as he should present himself or be arrested.
This occurred on the 3d of November, 1902, and the case was proceeded, with, the Solicitor-General asking that the judgment
appealed from be affirmed, and counsel for the accused moving that the criminal liability of the accused be declared extinguished
because he had been pardoned by the Government of the former sovereignty. However, notwithstanding the time elapsed since
February of 1903, neither he nor his counsel have been able to produce the original of the decree of pardon alleged by them. It further
appears that the accused Arcadio de Joya, who was acquitted, has since died.

The above related facts fully proven in this case, really constitute the crime of discharge of a firearm causing lesiones menos graves;
the act can not be classified as an armed aggression by Marasigan upon an agent of the authorities, inasmuch as it does not appear
that Lieutenant Ronimo was acting or had any occasion to act in the performance of his official duties on the night in question, as the
justice of the peace, whose duty it was to make the investigation, was on the spot; the quarrel arose from the loss of a bull which
Severo Magsino charged Marasigan with having stolen. Neither can such act be classified as frustrated murder or homicide because
the case does not contain sufficient proof that it was the intention of the aggressor to deprive Ronimo of his life.

The accused Eleuterio Marasigan is convicted of the crime of discharge of a firearm thereby causing lesiones, and it has been fully
proven that he is the sole author thereof, since, notwithstanding his exculpatory allegations, the case contains full evidence of his
guilt as being the only person who fired a shot at Engracio Ronimo who, in consequence, was wounded in the head and fell to the
ground on the spot; moreover, several witnesses saw the accused fire the weapon at the injured party, and against the testimony of
these witnesses the declarations of certain others presented by the accused, they being his relatives or next of kin, can not prevail.
It is, therefore, unquestionable that the accused is the only one liable for the crime with which he is charged.

Whenever one sole act constitutes two or more crimes, or if one of them is the necessary means for committing the other, the penalty
corresponding to the more serious crime shall be imposed in its maximum degree, as provided in article 89 of the Penal Code.

The discharge of a firearm by the accused against the injured party, inflicting on the latter lesiones menos graves about the head,
according to the criminal law produced two offenses, one being for discharging a firearm against a given person, defined by article
408 of the Penal Code, and the other, that of lesiones menos graves, penalized under article 418 of said code, and as both oftenses
were the result of one sole criminal act, the adequate penalty, according to article 89 aforesaid, is that imposed by the laws upon the
more serious one, the same being applied in its maximum degree. No mitigating or aggravating circumstance is present in the
commission of the crime herein, therefore the penalty should be imposed in the medium grade of the maximum degree, and the
penalty of three years and six months of prision correccional and accessories imposed on the accused, is in accordance with the law.

In view of the foregoing considerations, it is our opinion that the judgment appealed from should be affirmed in all of its parts with
the costs against the accused, with the approval of the order in connection with the proceedings for attachment. So ordered.
 [G.R. No. 13818. September 26, 1918. ]

THE UNITED STATES, Plaintiff-Appellee, v. VICTORIANO MENDOZA, Defendant-Appellant.

Guillerrno M. Katigbak, for Appellant.

Solicitor-General Paredes, for Appellee.

SYLLABUS

1. FRUSTRATED HOMICIDE; INTENTION TO KILL. — In order that the crime may be classified as one of frustrated homicide, it
would be necessary to admit that the defendant intended to kill the offended party. After a careful examination of the circumstances
of the crime, Held: That the defendant had such an intention.

2. CRIMINAL LAW; CRIMINAL LIABILITY FOUNDED ON INTENTION. — When criminal liability is made to consist in the intention to
perform an act which was not realized, the facts from which it is claimed that intention sprang must be such as to exclude all
contrary supposition. When this intention is not necessarily disclosed by the acts performed by the defendant, greater importance
should not be given to such acts than that which they in themselves import, nor should the defendant’s liability be extended beyond
that which is actually involved in the material results of his acts. Intention may only be deduced from the external acts performed
by the agent, and when these acts have naturally given a definite result, the courts can not, without clear and conclusive proof, hold
that some other result was intended.

DECISION
AVANCEÑA, J. :

The defendant was sentenced, by the Court of First Instance of Tarlac, for the crime of frustrated homicide, to the penalty of ten years
and one day of prision mayor, with the corresponding accessory penalties, to indemnify the offended party, Gasper W. Creason, in
the sum of P37, and to pay the costs of the case. From this judgment he appealed.
The defendant was at outs with Gasper W. Creason because the latter had not wished to testify as a witness in a case in which the
defendant’s daughter was interested. At about 8.30 o’clock in the evening of December 23, 1917, the defendant entered the house
where Creason was living, in the municipality of Tarlac, Province of Tarlac, and insulted him by words. Creason, who was sick, arose
from his bed on hearing the defendant’s insults and just at that moment the latter assaulted him with a pocket knife, therewith causing
him a wound in the abdomen. Creason then struggled with the defendant, to snatch the weapon from him, and at the same time
called his father-in-law to come to help him. Thereupon the defendant ran away, leaving the weapon. As a result of the wound he
received, Creason was prevented for a period of 22 days from engaging in his customary labors, spent P15 in effecting his cure, and
during this time failed to earn one peso a day.

The Attorney-General is of the opinion that the facts proven do not constitute the crime of frustrated homicide, but only that of
lesiones menos graves. We agree with that opinion. In order that the crime may be classified as one of frustrated homicide, it would
be necessary to admit that the defendant intended to kill the offended party. The circumstances of the case, however, do not show
beyond reasonable doubt that the defendant had such an intention. Rather is the contrary indicated by his running away and his
leaving the weapon during the struggle he maintained with the offended party. If his purpose had been to kill, the moment he gave
up the struggle was not yet the most opportune, if the circumstances justified his acts. The offended party was only wounded, and,
it appears, not seriously wounded, while he was struggling with his assailant. The defendant continued in the possession of the weapon
and was in the same favorable conditions for the realization of his purpose, as in the beginning of the assault. The offended party’s
father-in-law had not yet taken a hand in the former’s defense. And yet, notwithstanding, the defendant fled and left his weapon
behind. It cannot be said that he did so because it was impossible for him to realize his purpose When criminal liability is made to
consist in the intention to perform an act which was not realized, the facts from which it is claimed that intention sprang must be such
as to exclude all contrary supposition. When this intention is not necessarily disclosed by the acts performed by the defendant, greater
importance should not be given to such acts than that which they in themselves import, nor should the defendant’s liability be
extended beyond that which is actually involved in the material results of his act. Nothing is more difficult to discover than intention,
as being a mental act; we are only able to deduce it from the external acts performed by the agent, and when these acts have
naturally given a definite result, courts should not, without clear and conclusive proof, hold that some other results was intended.

The judgment appealed from is reversed, and it is held that the defendant is guilty of the crime of lesiones, as defined in article 418
of the Penal Code, and, taking into account that the crime was committed in the dwelling of the offended party and at nighttime, the
defendant is sentenced to 6 months of arresto mayor, to indemnify the offended party in the. sum of P37, or, in case of insolvency,
to suffer the corresponding subsidiary imprisonment, and to pay the costs of this action. So ordered.
G.R. No. L-6782 October 24, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
PEDRO SANCHEZ, defendant-appellant.

Emilio Mapa, for appellant.

Acting Attorney-General Harvey, for appellee.

ARELLANO, C.J.:

The hearing on this appeal has disclosed the following facts:

1. The defendant is charged with the commission of the crime of frustrated murder, alleged by the complaint to have been perpetrated
in the following manner:

That Pedro Sanchez, in the early morning of or about March 31, 1910, in the pueblo of Binalonan of the Province of Pangasinan,
armed with a sharp-pointed bolo, climbed a bamboo ladder to the window of the room of the house where the married couple
Walter P. Linton and Nina Linton were sleeping, with the intent treacherously to kill them and did in fact stab the said two
persons while they were sound asleep, inflicting upon Walter P. Linton a wound in the upper part of the armpit of the left side,
and upon Nina Linton a wound in the left arm, piercing through the same to the inner side thereof, and another superficial wound
in her left side; but their respective wounds did not produce death and were cured after more than thirty days' medical
attendance, the two said parties being obliged to refrain from engaging in their customary labors during the time they were
under treatment.

2. The crime, the circumstances attending its perpetration, and the liability of the accused as the sole author having been satisfactorily
proven, the latter was sentenced under article 403, in connection with article 3, paragraph 2, of the Penal Code, to seventeen years
and four months of cadena temporal, to the accessories, to indemnify the offended parties in the sum of P324, and to pay the costs.
From this judgment the defendant appealed.

3. The learned counsel for the defense only asks in this instance that, with a reversal of the judgment appealed from, the crime under
prosecution be declared to be one of lesiones menos graves, and that the penalty imposed be reduced; he alleges, as the only error
committed by the trial court, that the latter, notwithstanding the evidence adduced, sentenced the defendant for the crime of frustrated
murder, instead of for that of lesiones menos graves.

4. Mrs. Linton's wound according to the experts medical examination made, extended from one side of the left arm to the other and
reached the left side of her body. The trial judge, considering its gravity, sad that the blow had been so violent that if, instead of the
weapon piercing the left arm, it had been driven directly into the left side, it would have embedded itself up to the hilt and pierced
the heart. Mr. Linton's wound, also according to expert medical examination, was in the left side of the breast, 3 decimeters deep and
exposed the patient to the danger of death, until the hemorrhage had been stopped. The weapon with which the accused inflicted
such wounds is described in the judgment as a sharp-pointed bolo with a well-sharpened blade 10 inches in length and, according to
Mrs. Linton's testimony, was clean and bright on the night of the crime—it was a dagger rather than a bolo, in the opinion of the
judge. The defendant, until two days prior to the crime, had been a servant in the house where it was committed and, on the very
day of the crime, insistently sought to return to the service of the offended parties, but was not admitted by the lady of the house,
one of the complaining witnesses. According to her testimony, Sanchez was acquainted with all the rooms an other parts of the house
and it was he who used to make the bed when he was in the service of the Lintons. For the purpose f committing the crime, the
defendant entered the house by means of a ladder through one of the windows of the sleeping room, and the first person he assaulted
was Mr. Linton who was lying in the bed on the side next to the window.

5. With respect to the classification of the crime and to the punishment of the guilty party, the trial court took account of the qualifying
circumstance of treachery and, as aggravating generic circumstances, those of escalamiento and entry into the offended parties' own
dwelling. By reason of the treacherous attempt to kill two persons, the crime was classified as frustrated double murder. The judgment
relates that the defendant took advantage of the silence and darkness of the night, cautiously entered the room where his victims
were sleeping, approached the bed and, finding them sound asleep and knowing that he was perfectly safe and was in no risk of
danger to himself such as might have arisen had the Linton spouses made any defense, struck Mrs. Linton with a dagger, and then
Mr. Linton, and took to flight.

In a case where it appeared that the accused, without saying a word, had stabbed the offended party with a dagger, in the middle of
the right side of the back about four centimeters from the spinal column, and immediately thereupon fled, the wound not producing
death nor disability for work and requiring ninety days for its cure, and the weapon used in inflicting the wound being a prohibited
one, the insular supreme court classified the crime as frustrated homicide; but the supreme court of Spain held that the acts
constituted the crime of frustrated murder, on account of the attendance of the specific circumstance of treachery, since the accused
assaulted his victim in an unexpected manner at a moment when the latter was seated on the counter of the store, with his back to
the entrance door and to his aggressor, and was looking toward the interior of the establishment, which situation was taken advantage
of by the accused to wound the offended party without being seen by him. All these facts show treachery. (Decision of April 17,
1895.)1awphil.net

In another case where the aggressor struck his victim a blow from behind with a sharp weapon, cutting him in the middle part of the
inner edge of the left shoulder blade, and then started to run; but seeing himself pursued by the injured man, turned about and
approaching him to within a step struck another blow at the injured party, directed at his abdomen, which the latter was able to avoid
by giving a jump that caused him to slip and fall to the ground, and his assailant, seeing that he had fallen, threw the weapon at him,
without hitting him, and again started to run—both the insular supreme court and the supreme court of Spain classified the crime as
frustrated murder; the later court held, in accordance with the facts found to have been proven in the judgment appealed from, that
the accused performed all the acts which might have resulted in depriving the assaulted of his life, and that the trial court, in classifying
the crime as one of frustrated murder, did not commit any error of law. (Decision of September 29, 1881.)

And, finally, in another case—where an old man who was walking along the sreet was wounded in the back by a knife of a kind whose
use was prohibited, the weapon remaining fastened in the bone of the right upper scapular region and causing a wound that was
cured in seven days, a wound which might have been fatal if the knife had penetrated through he upper part of the scapula or if the
impulse of the blow had been stroneger—the insular supreme court, considering that the perpetrator of the deed laid in wait for his
victim in order to derive advantage from the most favorable moment, to the end that the later might not be able to rely upon any
help in his defense, and that the assailant, after striking the blow from behind, took to flight, classified the crime as frustrated murder,
and the supreme court of Spain said:

That he attempt perpetrated was properly classified as a crime of frustrated murder, because, from the proven facts related in
the judgment appealed from, the known, determined and premeditated intent of the guilty parties was to kill the person
assaulted, and such intent being premised, the classification of the crime can not be made in accordance with the mere result
produced by the violent act; as there were attendant in its commission the circumstances of treachery, premeditation and price,
any one of which is sufficient for the aforesaid classification of the crime of the attempted killing, the trial court did not incur
any of the errors alleged. (Decision of supreme court of Spain, Dec. 31, 1890.)

The particular part of the body of a person struck during an assault, the deadly character of the weapon used and the violence of the
attack, taken together, do not constitute proof of an intention to kill when they are all incidental to a quarrel in which the contending
parties come to blows; under such circumstances, the actual conditions surrounding the encounter form the best criterion by which
to arrive at the facts; but when all the said circumstances are present, and the crime further involves acts committed with alevosia,
in such manner as to insure the safety of the assailant while depriving the victim of the opportunity to make defense, and when the
aggressor, having special knowledge of the place of the assault, surprises and attacks his victim while the latter acquaintance with
the interior of the house, in which he was formerly employed as a servant, the intention to kill clearly appears and the crime is properly
classified as frustrated murder.

Therefore, the crime under prosecution is properly classified as frustrated double murder, and the judgement so holding and applying
to the defendant the penalty corresponding to the crime of frustrated murder attended by the two aforesaid aggravating
circumstances, is in accordance with the law, and is affirmed, with the costs against the appellant.
 [G.R. No. 1226. September 4, 1903. ]

THE UNITED STATES, Complainant-Appellee, v. DOROTEO SABIO, Defendant-Appellant.

Jose M. Memije for Appellant.

Solicitor-General Araneta for Appellee.

SYLLABUS

1. CRIMINAL LAW; FRUSTRATED MURDER. — In order to sustain a conviction for frustrated murder, the evidence must show that
the intention of the accused was to kill, that he did everything in his power to consummate the crime, and that the failure was due
to causes foreign to the defendant’s will.

2. ID.; DISCHARGE OF A FIREARM. — Where it appears that the accused discharged a firearm at another, but under circumstances
indicating that an intent to kill was absent, the offense falls within article 408 of the Penal Code.

DECISION

McDONOUGH, J. :

The defendant was charged with the crime of frustrated murder, committed in the city of Manila November 2, 1902, in that he did
then and there willfully, feloniously, and with deliberate premeditation assault Aniceto Reyes by attempting to shoot him.

The defendant was placed upon trial in the Court of First Instance of Manila December 17, 1902, and was convicted and sentenced to
imprisonment for a term of eight years, and to pay the costs of the prosecution.
The defendant and Aniceto Reyes were members of the Constabulary, and, on November 2, 1902, they were engaged in gambling in
their quarters. During the game a dispute arose between Reyes and the defendant regarding a debt of 30 cents, which the defendant
claimed Reyes owed him. The defendant demanded payment of this sum and Reyes asked for a little time to make payment, not
desiring to then open his box in which he had money and upon which they were sitting during the game. Thereupon this witness and
the defendant got into a fight, using their fists and uttering obscene language. The defendant withdrew from this quarrel, went to the
gun rack near by, took down a gun, loaded it, and aimed it at the witness, who testified that the defendant insisted on trying to shoot
at the feet of the witness, and during a struggle between the two for the gun it was discharged by the defendant, the bullet striking
the floor about 5 inches from the feet of the witness.

In the quarrel, before the discharge of the gun, each party claimed that the other struck the first blow.

Reyes testified that when he saw the defendant coming toward him with the gun, he was about 3 yards away. He had the gun in his
hand, and said to the witness, "Are you going to pay me or not?" Reyes answered, "Yes, I will pay you. Wait a minute. I have no
money in the box;" and then the defendant pushed Reyes with the gun, and Reyes grabbed it. Francisco Gaspar, a member of the
Constabulary, testified that he was present on the occasion in question; that the defendant was losing money in the game, and,
needing more, he was trying to collect from Reyes 30 cents. Reyes said, "Wait a minute; I won’t pay you." Defendant then stood up
and said, "Won’t you pay me?" and they started to fight. Defendant was smaller than the other man, and when he could fight no
longer he ran away and got a gun, and when the other saw him coming with the gun he jumped at once, and went to meet him, took
hold of the gun, and told him to let go of it. He would not give up the gun, and discharged it.

The defendant and Reyes had bunks within a few feet of each another in the barracks. The carbines were kept in a rack, and defendant
took the carbine from the rack, about 3 brazas from where they were gambling.

Witness testified that he saw defendant load the gun. Reyes struck the first blow. He stood up and said he would not pay defendant
and then struck him, and defendant stood up and struck Reyes when he said he would not pay him.

Defendant was sworn in his own behalf and testified substantially as did the other witnesses regarding the gambling, the debt of 30
cents, the demand for it, the refusal, and the fight. He said he ran and grabbed the gun with the intention of hitting Reyes with the
butt of it. Reyes caught hold of the gun and tried to take it away, and during the struggle the shot was fired.
In order to convict the defendant in this case of the crime of frustrated murder, it was necessary to prove that the defendant with
deliberate premeditation intended to kill Reyes.

The crime of frustrated murder is committed when the guilty person performs ail the acts of execution which should produce the crime
as their consequence, but nevertheless do not constitute it by reason of causes independent of the will of the perpetrator.

Evidently the defendant had not the intent to kill. He did not aim to kill. He did not threaten to kill. Nor can it be inferred, as it was in
the court below, that an intent to kill was proved when the defendant testified that he intended to hit Reyes with the butt end of his
gun. Such a blow might do bodily harm and might not, depending on its force and the part of the body struck; it might even result in
death, but the conclusion does not follow that the defendant with deliberate premeditation tried to kill Reyes.

The defendant, however, violated article 408 of the Penal Code in that he discharged a firearm at Reyes.

He is therefore convicted of the crime of discharging a firearm at a person, and is sentenced to imprisonment for one year and one
month provisional correccional with costs de oficio.
 [G.R. No. 10783. January 20, 1916. ]

THE UNITED STATES, Plaintiff-Appellee, v. AGRIPINO AGONCILLO and MARIANO ADMANA, Defendants. AGRIPINO
AGONCILLO, Appellant.

Sumulong & Estrada for Appellant.

Attorney-General Avanceña for Appellee.

SYLLABUS

1. FRUSTRATED MURDER; ACTS CONSTITUTING. — The act of shooting at a man who was quietly and heedlessly walking along the
street about six feet ahead of his assailant, the latter employing means, modes or forms which directly and especially tended to
insure the consummation of the crime without risk to the aggressor from any defense that might have been made by the assaulted
man, who had his back to him, should be classified as frustrated murder, since, in spite of the serious wound caused the victim by
the second of the four shots fired by his assailant, he did not die, owing to a chance, accident, or reason independent of the criminal
act performed.

2. ID.; ID. — In view of the illicit relations which existed between the assailant and the wife of the victim, and taking into
consideration the circumstantial evidence brought out at the trial, proving the assailant’s decided purpose to remove from his path
the husband who hindered him in his illicit relations with the unfaithful wife, it is unquestionable that the assailant intended to kill
the deceived husband by firing upon him with a revolver four times in succession, for, while the assaulted man was seated on the
ground, having fallen as a result of the wound inflicted by the second shot, and in spite of the fact that he neither fled nor defended
himself, but remained quiet and motionless in the place where he had fallen, his assailant fired two more shots at him, thus showing
beyond all doubt by these aggressive acts that he firmly intended to deprive of life and to remove the sole obstacle that prevented a
free and unrestrained continuance of the said illicit relations which the assailant sustained with the victim’s wife — the record,
moreover, showing by circumstantial evidence that the adulterers had resolved to poison the unfortunate husband — for all of which
reasons, the criminal acts in question should be classified as frustrated murder.
 DECISION

TORRES, J. :

These proceedings were commenced by an amended complaint filed by the provincial fiscal in the Court of First Instance of Batangas
on September 16, 1914, charging Agripino Agoncillo and Mariano Admana with the crime of frustrated murder. On April 9, 1915,
judgment was rendered whereby Agoncillo was convicted of the crime of frustrated homicide and sentenced to the penalty of six years
and one day of prision mayor, to the accessory penalties, to pay to Irineo Arriola the sum of P1,800 in reimbursement of expenses
incurred by him for medical treatment, and to the payment of one-half of the costs. Mariano Admana was freely acquitted, with the
other one-half of the costs de officio. From this judgment Agoncillo’s counsel appealed.

Some two months prior to the date when the crime in question was perpetrated, Irineo Arriola, municipal president of the pueblo of
Calaca, Batangas, learned from the information and reports he had received from different persons that his wife Petra Navarro was
maintaining illicit relations with her brother-in-law, Agripino Agoncillo, and on this account the husband, indignant and wrathful at his
wife’s unfaithfulness, addressed a letter to her paramour challenging him to a duel. To this letter, exhibited in evidence by the defense,
the husband testified that no reply was made. Notwithstanding the watch the latter kept over his wife, it is certain that the adulteress
and her paramour maintained private correspondence without the husband’s knowledge by means of a man named Ingo, as proven
by the letter Exhibit F of the prosecution, whereby it is seen that the woman must have advised Agoncillo that she was being watched
by her husband, which apparently annoyed them by restraining the relations they had freely maintained up to that time.

As a result of the discovery made by the husband, Arriola, he ordered that Agoncillo’s two daughters named Amparo and Remedios
who had been living in Arriola’s house since the death of their mother, Agoncillo’s wife, should be returned to the control and the
house of Agoncillo, for, up to that time, the latter, as a relative by marriage, was at complete liberty to enter and frequent the house
of the offended party, Arriola, where his two daughters were living under the care of Arriola and his wife Navarro; on one occasion
when Agoncillo fell sick he also remained in the house of this couple and was attended and cared for by them; but after the husband
learned of the illicit relations the adulterers had been maintaining without his knowledge, the bonds of relationship and intimacy that
had previously existed between the two brothers-in-law, if not completely severed, were at least slackened.

With these antecedents, in the afternoon of May 16, 1913, and when Bishop Petrelli was in the parochial building of the said pueblo
of Calaca, Irineo Arriola and other residents of the town went to the said building to greet the bishop, as did likewise, among others,
Agripino Agoncillo and Mariano Admana, all of whom took supper there and left at about 8 o’clock that evening. Agoncillo and Admana
went first, and a little while afterwards, Irineo Arriola. The latter as soon as he reached the street started for the municipal building
for the purpose of inspecting the police service, crossing the pueblo plaza by the shortest road, and, after the inspection and while
leaving the door of the municipal building, the defendants Agoncillo and Admana passed in front of him on their way to a point north
of Calle Vizconde. The three men, therefore, went along together almost side by side, for the municipal president, Arriola, was going
to the house of Matilde Vizconde to speak to her, but before reaching it and when they were about 40 yards from it, Arriola inquired
of Agoncillo whether he was angry at him, and as he received no reply he tried to advance of his two companions. Just at this moment
Arriola heard a shot and, on turning his head around to look back, heard a second shot and felt a bullet in his left thigh. As a result
of this wound he fell to the ground in a sitting posture and then heard two more shots, fired at him by his brother-in-law Agoncillo,
who, with Admana, was walking behind him. A few moments afterwards, when the chief of police Timoteo Mendoza approached the
wounded man, who was sitting on the ground, and inquired of him as to what had happened, Arriola told Mendoza that the defendant,
Agoncillo, had fired four shots at him. The chief of police, therefore, started off on a run toward the north of Calle Vizconde in pursuit
of the assailant and his companion.

As a result of the shots several people who lived near the scene of the occurrence were attracted to the place, among them, Jose
Malabanan, Agripino Vivo, and Felix Urbano. These three latter carried the injured man in a chair to the upper floor of Matilde
Vizconde’s house, at her invitation, for he had fallen in the street near and almost in front of her house. When Arriola had been
undressed and placed on a mat spread on the upper floor of the said house, bullet holes were found in his trousers, his coat and a
handkerchief he had in his pocket, and blood-stains were discovered on his trousers. No weapon whatever was found in the possession
of the injured man, nor in the place where he fell, with the exception of a round cane which was lying at his feet when he was removed
from the road. The hole in the blood-stained trousers was in the part that covered the left thigh, and a circular hole with black borders
was also observed in the left pocket of the coat, in which was the handkerchief, likewise pierced with two round holes. From these
facts it is concluded that the bullet penetrated the coat pocket, went through the handkerchief in two places and through the trousers
and wounded the victim in the thigh.

Dr. Gregorio Singian, who attended President Irineo Arriola in the San Juan de Dios Hospital of this city where the latter was brought
on May 18, 1913, testified that he operated on the injured man for a wound of about 5 millimeters in diameter in the fore lateral part
of the left thigh near the hip joint; that this wound was inflicted by a revolver bullet which to judge from the comminuted fractures of
the bone, such as are frequently caused by spent bullets, must have been fired from a considerable distance; that Arriola was treated
in the hospital for six months before he was completely cured, being discharged therefrom on October 2, 1913, (pp. 1 and 80, record);
and that his left leg was shorter than it was before, on account of a slight incurvation and shortening of the bone, a defect which
probably would be permanent.

The chief of police Timoteo Mendoza immediately pursued the aggressor Agripino Agoncillo along Calle Vizconde and in spite of his
ordering Agoncillo to stop, the latter continued to flee. The officer, therefore, on his arrival at the intersection of this street with that
of Igualdad, discharged his revolver in the air in order to induce the fugitive to give himself up, but the chamber of the officer’s
revolver burst and Agoncillo succeeded in entering the schoolhouse lot. At this moment the policeman Filoteo Bobadilla came up, he
having heard the shot fired and the whistle blown by his chief during the pursuit. The latter, therefore, seized Bobadilla’s revolver and
with it continued his search for Agoncillo, whom they soon afterwards found in the lower part of the kitchen of the said schoolhouse.
The defendant, on being arrested, threw his revolver into a dark place and after he had been taken to the municipal building, where
he was detained, the chief of police and the policeman Eusebio Hernandez returned to the place of the arrest in search of the revolver
Agoncillo had thrown on the ground, which they found loaded, and also a cartridge belt with cartridges. This revolver was an automatic,
modern "Browning" and, with its cartridges, was exhibited at the trial. The testimony of the two aforementioned policemen accorded
with that given by their chief, Timoteo Mendoza.

Jose Malabanan and Agripino Vivo, two of the three persons who, among several others, approached the offended party after he had
been shot and carried him in a chair to Matilde Vizconde’s house, corroborated the foregoing facts. Jose Malabanan testified that while
taking a walk on the night of the crime he heard two shots fired in quick succession at a distance of about 40 brazas away and at the
same time saw a man dressed in a uniform come out of an alley near by, and a few moments afterwards he heard two more shots;
that on approaching the place whence they appeared to have been fired, he saw the municipal president Irineo Arriola sitting in the
road bracing himself with one hand on the ground. The other witness Agripino Vivo testified that he saw Arriola walking along the said
street, and behind him, Agripino Agoncillo and Mariano Admana; that a few moments afterwards he heard two shots fired in quick
succession and at the same time saw Arriola stagger and fall to the ground; that after the third shot he heard Admana tell his
companion Agoncillo to fire another shot because Arriola was still alive, and immediately thereafter witness heard the fourth shot;
that a few moments afterwards several people, among them the witness, approached the wounded man and between them all, on
the invitation of the owner, carried him to the upper story of a house near by. This witness added that Arriola was walking ahead of
his assailant Agoncillo and had his back turned toward the latter, who, on firing the first shot, was 4 brazas away from the assaulted
man, that when Agoncillo fired the other two shots Arriola was already seated on the ground and facing his assailant; that the chief
of police Timoteo Mendoza was the first to approach and assist Arriola, who was then carrying only a cane, and that no dagger or
other weapon was found on him.

Matilde Vizconde, the owner of the house in front of which the assault took place, testified that while lying awake in bed that night
she heard a shot in the street; that she therefore arose and looked out of the window to see what had happened; that as it was a
bright moonlight night she saw Mariano Admana, President Arriola, and Treasurer Agoncillo all standing in the street; that the latter
then fired another shot, as a result of which she saw Arriola fall in a sitting posture; that thereupon, being afraid, she closed the
window and immediately afterwards heard at intervals two more shots, making four in all; that, on returning to the window, she saw
many people gather and, on observing that they were lifting Arriola, who was sitting on the ground, she suggested to them that they
bring him into her house, which they did; and that she did not see that Arriola was then carrying any weapon.

The justice of the peace Emiliano Encarnacion testified that as soon as he learned of the occurrence he went to Matilde Vizconde’s
house, where he found the wounded municipal president, Arriola, and immediately thereupon took his declaration; and that the
wounded man then requested witness to draw up a complaint. Witness added that Arriola was unable to sign his first declaration, as
he was feeling badly, but signed his second one as he was then somewhat better; and that Arriola included in his second declaration
Mariano Admana besides Agripino Agoncillo.

Timoteo Marella also testified that Arriola, while in the San Juan de Dios Hospital, wrote witness a letter in which he requested him to
look for his (Arriola’s) watch in the place where the patient had been in the habit of keeping it; that in searching for it in Arriola’s
wardrobe, though he did not find the watch, he did find the letter Exhibit F (p. 364, record), typewritten on page 365 of the record,
under some dresses belonging to Arriola’s wife; that it was dressed to the latter, apparently by Agripino Agoncillo; that, more than
two months after the crime, witness sent this letter to his cousin Irineo Arriola, as he believed it might be useful to him at the trial;
and that the day after the crime he found the three empty cartridges at three different places on the road.

The offended party stated in his affidavit that, aside from the information he had received relative to the illicit relations his brother-
in-law, the defendant Agoncillo, maintained with Arriola’s wife, he exhibited, as proof of such relations, the letter marked Exhibit F,
which his cousin Timoteo Marella sent to him from Calaca to the hospital where he was being cured of his wound, a letter which was
addressed to Arriola’s wife, Petra Navarro, known also by the nickname of Toneng, by Agripino Agoncillo, who signed it with the
nickname of Pinong. Arriola further stated that this letter was written in the defendant’s handwriting, with which he was acquainted
as Agoncillo was his brother-in-law and had been an office companion of his, and that the writer of the letter had inclosed therewith
the newspaper clipping marked as Exhibit G.

The defendant Agoncillo, after expressing in the said letter Exhibit F the profound and intense love he felt for Petra Navarro and the
great interest he took in her, and at the same time his hatred and contempt for her husband, designated the latter by a contemptuous
and injurious nickname, and gave the woman advice for the protection of her property against her husband’s conduct. He inclosed in
the letter a clipping from a newspaper of this city in order that she might read it, as it related to the case of a recent elopement of a
married woman with an unmarried youth, and asked her whether she was capable of doing what the woman did to whom the clipping
referred. He also made the following statements in the said letter:jgc:

"I have now many of those things you asked me to buy in Taal. Two or three capsules I think will be enough; but I’m keeping these
for myself against the time when I may be unable any longer to resist such suffering. When you see me a corpse, I’m going to ask
you to pray for me. Are you capable of doing it? Perhaps you will not even do this, but will ask instead a malediction."

The witness Timoteo Marella, having before him the letter Exhibit F, stated positively that the handwriting was that of Agripino
Agoncillo, whom the witness had several times seen write when the latter was justice of the peace, and in this connection he exhibited
the letter, Exhibit I, written and signed by the defendant Agoncillo, the handwriting of which is the same as that of the letter Exhibit
F, aside from the fact that the defendant did not deny having written or disclaim knowledge of the said letter Exhibit F. Witness added
that the letter Exhibit I was handed to him by Jose Malabanan, who, after the crime, had found it in the street in front of Mariano
Admana’s house.

The defendant Agripino Agoncillo pleaded not guilty and swore that he had received the letter referred to on page 389 of the record
five days prior to the shooting; that on the same night he received it he replied to it in the letter mentioned on page 391 of the record;
that at about 9.30 of the night of May 16, 1913, he and Mariano Admana left the parochial building together, where they had greeted
Bishop Petrelli and, passing through the courtyard of the church, went toward the south, in the direction of Calle Vizconde; that they
stopped a while in front of the municipal building, on account of the municipal president Arriola’s calling Mariano Admana, and that
Arriola then said to appellant: "We’re going to bring this affair to a close. At all events, I’m going to kill you to-night; you’re a traitor;"
to which Agoncillo replied that he had done nothing wrong and consequently had no need to make explanations to Arriola; that after
this the latter entered the municipal building, while appellant and his companion continued on their way toward the north, passing by
the house of Mariano Admana, where he met Placida Hernandez; that, on his taking leave of Admana, the latter insisted on
accompanying him, saying that he had an enemy, and then they went toward the north; that on that occasion, and ever since appellant
had received the letter in which Arriola challenged him to a duel, he went armed with a revolver, because he had learned that Arriola,
upon receiving appellant’s reply to that challenge, was looking for him with a shotgun to shoot him; that while appellant and Admana
were in the doorway of Elpidio Marasigan’s house on Calle Igualdad, Arriola commenced to strike the appellant and continued so to
do until he arrived in front of Matilde Vizconde’s house when Arriola dared appellant to attack, to which Agoncillo replied that he could
not attack, and notwithstanding President Arriola continued to attack him with a knife and afterwards hurled his cane at appellant,
which missile he was able to dodge; that as Arriola continued furiously to attack him, he found himself obliged to fire a shot, though
without taking aim and for the sole purpose of causing Arriola to desist from his purpose, and that as Arriola persisted in his assault
appellant fired three more shots at him only to cause him to desist from his attack, for he did not aim at Arriola’s body but aimed low
to wound him in the feet and avoid fatal consequences; that he had no intention to kill him, though, if he had wished to do so, he
could easily have done it, because, as appellant had been a revolutionist, he was accustomed to handle firearms, especially revolvers;
that as a result of the third or fourth shot he saw Arriola fall to the ground, and then appellant left the place and started for home,
but on arriving at Calle Igualdad the chief of police overtook him and fired a shot him, wherefore he hid himself on the school ground
lot; that the chief of police came up in response to Arriola’s cries of "Police, shoot him, kill him," though at that moment appellant
saw no police officer in the place; that it was not true that on that occasion the chief of police Timoteo Mendoza two or three times
commanded him to halt, but that when two policemen appeared at the place where he was in hiding he gave himself up, throwing on
the ground the revolver he was carrying; that when these policemen asked him why he had wounded the municipal president, he did
not tell them that it was necessary to kill that kind of folks; that he could not escape from the pursuit of his assailant, Arriola, as he
was weak on account of an intestinal malady and a relapse he had had, and that if he had done so, he would have been wounded in
the back; that when he fired the first shot he was about two meters away from Arriola, and about one meter or less when he fired
the second shot; that he believed the wound was inflicted by the fourth shot; that Arriola followed and attacked him for a distance of
35 meters, notwithstanding that he saw that appellant was armed with a revolver; that had he not been in actual danger, he would
not have shot at Arriola; and that appellant’s companion, Admana, also saw the dagger with which, besides the cane, his assailant
was armed.

The other defendant, Mariano Admana, acquitted on trial, corroborated the testimony of Agripino Agoncillo in whose company he was
on the night of the crime, and added that, when witness and Agoncillo met President Arriola in front of the municipal building
immediately after the defendants had come out of the municipal building, Arriola advised witness to separate from his companion
Agoncillo because he, Arriola, was determined to wind up the affair he had pending with the latter and kill him, for Agoncillo was a
treacherous man; that, as they were both friends of Admana, he begged Arriola to desist from his evil purpose and calm himself; that
Arriola then reentered the municipal building and called the policemen, while Admana and Agoncillo went toward the north of Calle
Vizconde; that after a short conversation with Placida Hernandez, Agoncillo tried to return to his home, though witness invited him to
come to his; that Agoncillo then told him that if Arriola assaulted him (Agoncillo) he would defend himself; that meanwhile they went
toward the north, at which moment President Arriola arrived and said to witness: "Since you do not wish to separate from Agoncillo,
here goes," and thereupon, with the dagger he was carrying, attacked witness who therefore started to run toward the east; that
Arriola immediately thereafter also attacked witness’ companion Agoncillo; that as Agoncillo kept retreating, Arriola said to him:
"Whether you attack or not I’m going to kill you," to which Agoncillo replied that he could not attack; that thereupon Arriola hurled
with his left hand the palma brava cane he was carrying, and on his doing so Agoncillo fired the first shot; and that according as the
latter kept retreating he continued firing until he had discharged four shots, as a result of which Arriola fell to the ground in a sitting
posture with a dagger in his right hand and shouting for the police; that as soon as a policeman came up Arriola said to him: "Kill
him, shoot him," for Agoncillo had gone toward the north and the policeman fired a shot at him; that he did not induce his coaccused
Agoncillo to fire at Arriola, for witness was a friend of the latter and was in no manner concerned in the trouble between Agoncillo and
Arriola; that afterwards a natural son of Arriola proposed to witness that he testify in Arriola’s behalf, in order to be excluded from
the charge, but that he refused to do so because that would be to testify against the truth, that in fleeing from Arriola’s assault and
when he had gotten a certain distance away, he stopped to see what might happen to his codefendant; that he did not ask for help,
nor approach Agoncillo to help him, because witness was unarmed; and that he then saw that there were many people in the near-
by store of Eusebia Alamag and that Agoncillo fired shots while falling back to a place in front of the house of Matilde Vizconde.

The witness Melecio Nuay testified that while in Calle Vizconde he saw President Arriola pursue with a dagger the defendant Agoncillo;
that at that moment he heard shots from a firearm and on the fourth shot saw Arriola fall to the ground in a sitting posture; that
while Arriola with a dagger was pursuing Agoncillo, the former hurled a cane at the latter; that Agoncillo, when he fired, was at a
distance of one braza, more or less, from Arriola, who was pursuing him, and that as Agoncillo fired the shots he kept falling back;
that when Arriola was in a sitting posture he called the police and ordered them to fire at his assailant; and that the policeman who
came up to Arriola went toward the north and fired.

The other witness, Fausto Vidal, stated that when President Arriola left the municipal building that night he was followed by the chief
of police; that witness was then in Inves Vivo’s store and saw the quarrel as the men turned into Calle Vizconde, on which occasion
Arriola pursued Agoncillo, saying to him: "Whether you attack or not, I’m going to kill you," to which Agoncillo replied: "I’ll not attack
you;" that thereupon Arriola with a dagger furiously attacked Agoncillo, and a moment afterwards witness heard four shots fired by
Agoncillo one after the other; that the fourth shot wounded Arriola when he was about one braza away, whereupon Mariano Admana
ran off; and that a moment afterwards the chief of police came up.

Vicente Lontok, a municipal physician of the pueblo of Taal, testified that the defendant Agoncillo had been sick with diarrhea, pains
in the stomach and vomiting, and that on May 16, 1913, although completely recovered he was still feeling a little weak. Witness
added that Arriola was a larger and stronger man physically than Agoncillo, as he was older than this defendant.

The defense presented in evidence the letter Exhibit 3 addressed to the Executive Secretary by the provincial treasurer, reporting the
temporary suspension of Agripino Agoncillo and the result of his investigation, to wit, that the municipal president, Arriola, was the
aggressor, and that Agoncillo acted in self-defense.

The complaining witness, Arriola, testifying in rebuttal for the prosecution, denied that on the night in question he had called to
Mariano Admana from in front of the municipal building, or that he had told the latter to separate from Agoncillo because that night
witness would kill Agoncillo. He stated that it was also untrue that he had met the two accused in front of Elpidio Marasigan’s lot and
that he told Admana that as the latter would not separate from Agoncillo, he, the witness, would attack Admana with a dagger; and
that it was likewise untrue that witness with a dagger pursued Agoncillo from Calle Igualdad to Calle Vizconde and to a place in front
of Matilde Vizconde’s house; he also denied that he then told Agoncillo to attack.

Felix Urbano stated among other things that while in the house of his father-in-law that night, he heard shots and saw people running
by; that he approached the place whence the shots were fired and saw the municipal president sitting on the ground and beside him,
among others, Jose Malabanan and Agripino Vivo, whom witness assisted in carrying the wounded man to the upper floor of Matilde
Vizconde’s house.

Manuel Macatangay, a witness in rebuttal for the defense, testified that one day Ruperto Espinosa, while speaking to him about what
had occurred between Arriola and Agoncillo, told him that a member of Arriola’s family had invited Espinosa to testify as a witness in
Arriola’s behalf, but that Espinosa, although he had knowledge of the occurrence, refused to do so, for the reason that he did not wish
to have trouble with any of the parties, as he was a merchant; and that witness was in fact a brother-in-law of the defendant Agoncillo.
From the facts so fully related above it is seen that Agripino Agoncillo, accompanied by Mariano Admana, did intend, on the night of
May 16, 1913, treacherously, to kill Irineo Arriola in Calle Vizconde, pueblo of Calaca, and that, if he did not succeed in carrying out
his vicious intent to kill the husband of his querida, notwithstanding that he performed all the acts conducive thereto and which should
have resulted in the death of the assaulted man, the failure was due to the chance that three of the four shots fired at close range
perhaps missed their mark, and to the victim’s good luck, all reasons independent of the aggressor’s will. Therefore the crime which
gave rise to these proceedings must be classified as frustrated murder, provided for in article 403, in connection with articles 3,
paragraph 1, and 65 of the Penal Code, inasmuch as Agripino Agoncillo assaulted Arriola by firing at him from a distance of one braza,
more or less, at a time when Arriola was walking along the said street with his back toward his assailant, and by employing in the
assault ways and means directly and especially tending to insure the consummation of the crime without risk whatever to his own
person such as might have resulted from any defense the offended party might have made, for, with no prior provocation, Arriola,
unwarned and without noticing that he was going to be assaulted, was walking quietly along ahead of Agoncillo, who, without giving
previous warning and without saying a single word, treacherously and with impunity to himself fired at Arriola, and the assaulted
man, on hearing the first shot, turned half around to see who had shot at him and thereupon was hit in the left thigh by a bullet fired
at the second shot, at which moment and as a result of this wound Arriola fell to the ground in a sitting posture, and while in this
position his assailant fired two more shots at him, both of which, luckily, missed their mark or the body of the assaulted man.

In view of the previous trouble between Agoncillo and Arriola due to the illicit relations maintained rather late by the husband and
were sufficiently proven at the trial, and, further, in view of the decided purpose of the aggressor to remove from his way the husband
who hindered him in his relations with the unfaithful wife, it is unquestionable that Agoncillo had the decided intention to kill Arriola;
though he saw that after the first shot Arriola fell to the ground in a sitting posture, he still fired two more shots at him, notwithstanding
that Arriola did not spring at his assailant, nor even perform acts of self-defense, but without fleeing and without moving remained
quietly where he had fallen; and if Arriola was not hit by the last two shots fired at him it certainly was not because his assailant had
no intention to cause him a mortal injury, but, on the contrary, all the acts performed by Agoncillo show beyond peradventure that in
attacking Arriola his firm intention was to deprive him of his life, undoubtedly for the purpose of removing the only obstacle to the
continuance in absolute liberty of the illicit relations he was maintaining with the wife of the offended man, as the defendant and the
adulterous woman, dominated by the amorous passion which enthralled them were determined, judging from what the former said
in a letter addressed to the latter, relative to some capsules, to resort to the poisoning of the unfortunate husband. Therefore the
crime under prosecution should in justice and in accordance with the penal law be classified as frustrated murder, inasmuch as it is
absolutely undeniable that the assault was made perfidiously, without risk to the aggressor, and was consequently treacherous, as
the first shot was fired suddenly and without the assaulted man’s previously noticing that it was to be fired, and when he was wounded
by the second shot it was at the precise moment when he turned his face at hearing the first shot. It is to be noted that on the
defendant’s arrest, he said to his captors that men like President Arriola ought to be killed.

The assault was witnessed by several persons, some of whom were presented by the defense at the trial, and the assailant himself
did not deny that he fired as many as four shots, although, in admitting that he did, he pleaded self-defense against an assault with
a dagger and a cane previously made upon him by Arriola, who, on his part denied having made any such assault or that he then
carried a dagger.

The record, however, does not show that this pleading of previous unlawful assault by Arriola was duly and satisfactorily proven,
inasmuch as the testimony of the other accused, Mariano Admana, and that of the two witnesses who stated that they saw that
unlawfully assault by Arriola, aside from being inconsistent in itself regarding the declarations of the defendant Agoncillo and
contradictory in part to the testimony given by the latter, contains improbable assertions which make Admana’s testimony and that
of the two said witnesses incredible and unworthy of serious consideration, especially when weighed with that given by the witnesses
for the prosecution who actually saw the acts performed by the defendant Agoncillo, just as they were related by the complaining
witness Arriola.

It is affirmed in a positive and uniform manner by the witnesses for the prosecution that they saw at the place of the assault the
offended party, the defendant Agoncillo and the latter’s companion, Mariano Admana, which latter saw the acts performed by Agoncillo,
although he did not actually take part therein nor attempt to prevent their performance; while the witnesses for the defense make no
mention whatever of the presence there of the accused Admana, notwithstanding that both defendants testified that they were
traveling together that night when, in front of the municipal building, they met the offended party, Arriola, who then preceded them
on the way. Both Agoncillo and his three witnesses stated that when the former was attacked with a dagger by Arriola and while
Agoncillo continued to draw back for a distance of 35 or 40 meters and remove himself further from Arriola, who was attacking him,
Arriola, in the midst of the fury of his attack, threw at Agoncillo the palma brava cane he was carrying. Had the cane been thrown as
alleged, it would have been found at some distance from the place where Arriola fell wounded, and in proof that the latter did not
throw it at the defendant Agoncillo, it was afterward found at the wounded man’s feet when he was removed from the street by the
people who came up on hearing the shots. Therefore, if this particular of the assault with the cane, affirmed by Agoncillo, is not true,
the unlawful assault with a dagger, also claimed by the real assailant but denied by Arriola, is probably likewise untrue, for the reason
that no dagger of any kind was found in the place where Arriola fell wounded, nor was such a weapon found in the latter’s possession
when he was undressed on the upper floor of Matilde Vizconde’s house, where he was taken after he was wounded; moreover, if three
of Agoncillo’s witnesses testified that they saw Arriola armed with a dagger, Arriola and three of his witnesses denied having seen
such a weapon either in the possession of the offended party or in the place where the latter fell after he was shot.

For lack of proof and because the said deadly weapon was not found, it is impossible to find that Arriola carried a dagger besides the
ordinary cane with which he was provided on the night of the crime; and if, as alleged, the unlawful assault was made with a dagger,
since this weapon was not found and any such assault was denied by Arriola, the alleged assailant, it would be improper to conclude
that the crime under prosecution was preceded by such unlawful assault on the part of the wounded man Arriola, and that the
defendant Agoncillo, in firing four shots in succession at the offended party, acted in lawful self-defense. The defendant impelled by
his amorous passion for the latter’s wife and by his hatred for her husband, who was an obstacle to the unlawful relations he was
maintaining with the faithless wife of the victim of whom he was even jealous, though he was but a mere seducer of a married
woman.

The challenge which by the letter Exhibit 1 the aggrieved husband addressed to the defendant is not proof that he intended to assault
the latter that night, as the appellant averred. It is not to be wondered at that a husband who for the first time learns of the infidelity
of his wife with no less a person than his brother-in-law, upon whom he had bestowed all sorts of kindness, should have written the
statements contained in the said latter, the contents of which affirm the certainty of the acts revealed by Agoncillo’s letter to the
unfaithful wife Petra Navarro, who virtually corroborated the certainty and reality of her illicit relations with her husband’s brother-in-
law, for, knowing that her husband was lying dangerously wounded in Matilde Vizconde’s house, she not only did not go there but
also, while he was in the hospital, did not go to see him until a very long time afterwards, and then paid him a visit only such as a
mere acquaintance might have made: neither did she take any care whatever of her husband during his sickness. The trial court
considered this conduct of Arriola’s wife as execrable.

In the judgment appealed from it was held that the statements of the offended party and the testimony of the witnesses for the
prosecution were more worthy of credence, and in view of the fact that the judge who heard them at the trial had an opportunity to
observe the gestures, features, demeanor and manner of testifying of the said witnesses, and of the further fact that it has not been
proven that the trial court incurred any error or failed to take account of any important fact or circumstance, or that he improperly
interpreted their meaning, his conclusions based on the evidence as a whole must be accepted, and there is no legal or other well-
founded reason to warrant a different view of the case.
Notwithstanding that it was proven at trial that the defendant Agoncillo was armed with a revolver, at least on the night in question,
even when he went to the parochial building to greet Bishop Petrelli, yet it cannot be held that he committed the crime with
premeditation. There is not sufficient proof to show that any existed as we cannot be sure that Agoncillo had the premeditated
intention to attack and kill the offended party; but it is undeniable that the assault, consisting of the firing of four shots with an
accurate revolver of late model, was effected with treachery. The crime in question must therefore necessarily be classified as
frustrated murder, and, as no aggravating or extenuating circumstance attended its commission, the penalty fixed by law should be
applied in its medium degree.

For the foregoing reasons, whereby the errors assigned by the defense to the judgment appealed from have been refuted, it is proper
to reverse the said judgment, and to sentence, as we do hereby, Agripino Agoncillo, as principal in the crime of frustrated murder, to
the penalty of twelve years and one day of cadena temporal, to the accessory penalties provided in article 56, to indemnify the
offended party in the sum of P1,800 for expenses of medical treatment and for losses and damages occasioned him, without subsidiary
imprisonment, in view of the nature of the principal penalty, and to pay one-half of the costs of first instance and all those of this
second instance. So ordered.
 [G.R. No. L-4354. March 25, 1908. ]

THE UNITED STATES, Plaintiff-Appellee, v. CANDIDO POBLETE, Defendant-Appellant.

F. Manikis, for Appellant.

Attorney-General Araneta, for Appellee.

SYLLABUS

1. FRUSTRATED MURDER. — When the aggressor of a young woman of 19 years of age inflicts upon her, with a cutting weapon,
sixteen wounds more or less serious, for the purpose and with the criminal intent of causing her death, at the same time doing
everything which should naturally have resulted in the death of the assaulted party, although the same did not take place for reasons
which did not depend on the will of the aggressor, who continued to attack her notwithstanding the fact that she was lying senseless
on the ground, and only refrained when he believed her to be dead, and that the act which he had committed treacherously and with
perfect safety to himself had been consummated, the crime thus committed is unquestionably that of frustrated murder.

2. ID.; JUDICIAL DISCRETION; PENALTY. — Article 407 of the Penal Code authorizes courts, after taking into consideration the
circumstances of the criminal deed, the nature of the wounds inflicted upon the injured party, and the number of days required for
the cure, to use reasonable discretion in lowering by one degree the penalty which the law imposes for the crime of frustrated murder.

DECISION

TORRES, J. :

On the morning of Sunday, the 19th of May, 1907, Gliceria Dolac, a young womans 19 years of age was walking in the direction of
the church, for the purpose of hearing mass, accompanied by her aunt, Toribia Unson, and another young woman, Gliceria Velgrado.
When nearing the parish house she was unexpectedly met by the defendant who seized her with his left hand and immediately
attacked her with an open penknife, inflicting several wounds in her chest, back, sides, arms, and thigh, and although she fell to the
ground senseless upon being cut in the breast with the penknife, the aggressor continued to attack her; as the two women who
accompanied the latter promptly attempted to render assistance, the accused with the same knife also attacked Toribia Unson who
was crying out for help, wounding her in the forehead, which scar she showed to the judge and to other persons present at the time
when giving her testimony in the proceedings; the defendant also attacked Gliceria Velgrado, but the weapon only caught the veil
that she carried over her head; the torn veil was exhibited at the trial. The cause of the aggression was that the offended party had
rejected the proposals of love made by the accused. The sixteen wounds received by Gliceria Dolac healed in about three weeks,
through the assistance of a military surgeon in the hospital of the said pueblo of Naic; the doctor’s certificate, the penknife, the tapis
(apron), and neckerchief which the offended party wore and which showed holes corresponding with her wounds, were exhibited as
evidence.

A complaint was filed charging Candido Poblete with the crime of frustrated murder, and the corresponding proceedings were
instituted; on the 14th of September, 1907, the judge rendered judgment sentencing the accused as guilty of the crime of frustrated
homicide, with one mitigating circumstance, to the penalty of six years and one day of prision mayor, to the accessory penalties of
article 61 and to pay the costs.

The above-stated facts, which have been fully proven in the case, constitute the crime of frustrated murder defined and punished by
article 403 in relation with article 3, paragraph 2 of the Penal Code, inasmuch as the offended party, a girl 19 years of age, was
unexpectedly attacked by the accused who, for the purpose, seized her by the hand and thus held and prevented her from fleeing
from her aggressor; neither could she defend herself, because she was unarmed and by reason of her weakness in comparison with
the strength of the accused; at the hands of the defendant, and by means of treachery, she was wounded several times, for the
sudden appearance of the accused, armed with a penknife, already opened and in readiness, and the instantaneous attack he made
on her, must have caused her surprise and fear. all these details prove conclusively that the crime was committed with perfect safety
to the aggressor who employed means in its execution which tended directly and particularly to insure the consummation thereof
without any risk to himself from any sort of defense which his victim might have made.
Notwithstanding the fact that the offended party had the good fortune to be cured in less than one month of the sixteen wounds
inflicted on her thanks to the prompt assistance and to the proper treatment rendered her by a military physician in the hospital of
Naic, the crime, however, has the characteristics of however, has the characteristics of frustrated murder; the accused, with the
criminal intent to kill the young woman, out of spite because she refused to listen to his pretensions of love, as appears of record, did
everything that would usually lead to the consummation of the crime and the death of the assaulted woman, although such death did
not occur for reasons independent of the will of the aggressor, because notwithstanding the fact that he saw her fall to the ground
senseless after the first blows upon her breast, he still continued to attack her and inflicted on her several other wounds numbering
sixteen in all. It is therefore undeniable that the accused, with the decided intention to kill the said young woman, awaited her on the
street on the morning in question, and in order to insure the crime which he had premeditated, caught the woman by the band so
that she might not escape, and, after she was lying senseless on the ground, he still continued to attack her, and left her only after
inflicting sixteen wounds, and believing her to be dead and that his wicked intention had been consummated.

The accused, Candido Poblete, the proven and fully convicted author of the above-mentioned crime, as already shown by the result
of the proceedings, pleaded not guilty; his exculpatory allegations have been contradicted by the eyewitness, one of whom, Toribia
Unson, was wounded by him in the forehead, and the other Gliceria Velgrado, was also pursued by the accused, but the blow aimed
at her only reached the veil that she wore over her head.

In the commission of the crime neither aggravating or mitigating circumstance is present; nor was there loss of reason and self-
control, said to have been produced by the fact that the offended party refused to admit proposals of love made by the accused, for
the reason that, as he was not pleasing to her, she was under no obligation to meet his wishes, and, furthermore, it does not appear
that she gave any provocation, or that she gave any offense which might have caused loss of reason and self-control on the part of
the accused. On the contrary, the record shows that, from the time when a correction was imposed on the accused at the court of the
justice of the peace in June, 1906, for having gone at midnight to the house where the injured party lived, without the consent of any
of the occupants thereof, at which time he was caught in the interior of the house, he being no longer able to call on his sweetheart,
he threatened several times that he would kill her with the penknife used in committing the crime, and said threat he repeated one
week before the affray. From all of this it appears that, owing to his disappointment in love, and long before the crime, he conceived
the criminal idea to kill her; his purpose to kill her; his purpose to kill the object of his amorous prosecutions is thus corroborated.

After taking into consideration the circumstances of the deed, and in the present case the trivial nature of the wounds inflicted upon
the injured party, which were cured in less than one month, article 407 of the Penal Code authorizes courts to punish, within their
rational discretion, the crime of frustrated murder with a penalty lower by one degree, imposing in its medium grade the penalty of
presidio correccional in its maximum degree to presidio mayor in its medium grade, which is the penalty next lower to that imposed
by article 65 of the Penal Code.

Therefore it is our opinion that the judgment appealed from should be reversed, and that the accused, Candido Poblete, should be
sentenced to the penalty of six years and one day of presidio mayor, to suffer the accessory penalties of article 57 of the code, to
indemnify the injured party for her medical expenses without subsidiary imprisonment in case of insolvency, in view of the nature of
the main penalty, according to article 51 of the code, and to pay the costs of both instances. So ordered.