G.R. No.

39708-09, April 16, 1934

People vs. David
J. Villareal

FACTS

Leovigildo David, son of Teodoro David, a democrata candidate for the municipal president of Dinalupihan and Jose V. Reyes,
brother of Emilio Reyes, nacionalista candidate for the member of provincial board of Bataan. Emilio and David are having an argument
after Emilio had quarreled with Leovigildo, then an Election Inspector. Emilio wanted to see the list of registered voters, Jose entered the
scene and ask who is making a trouble. In a disrespectful tone, Teodoro insulted Emilio, afterwards, the two had a fist fight which they
both fell on the ground. Teodoro fell on his right side while facing downwards with Jose on top of him. However, the two constabulary
soldiers, whom with Teodoro inside the car, did not make in time to separate the two person due to the presence of the crowd, later, only
when they fell down they were separated. Cirilo Dullas raised Jose and holding aside, while Esteban Aninang did the same to Teodoro
and took him inside the car. When Jose was on top of Teodoro, there was a first gunshot but missed its target, fired by Leovigildo. Upon
hearing the second shot which hit the gunstock of Cirilo Dulas he shoved Jose, whom he continued to hold by the left arm with his left
hand, causing Jose stooped to the right side, his back facing north where the shots came from. A third gunshot was heard, which hit the
upper left hand side of Jose’s body resulting him to fell on the ground. Fourth gunshot which hit the left axilla of a boy, German Pinili who
was on the fence watching the fight between Jose and Teodoro. Jose and others were brought immediately by Emilio to Dr. Gonzalo
Nuguid’s clinic, where he was given a first aid. Later, Leovigildo was arrested and the revolver that was used by him was seized by
constabulary soldiers and saw the chamber of the gun and found four empty cartridges.
Two information was filed against Leovigildo and the trial court convicted him on the first criminal case, guilty of frustrated murder
while on the second criminal case, guilty of discharge of firearms with less serious physical injuries.

ISSUE

Whether or not the trial court erred in convicting the accused of crime of frustrated murder.

RULING

Yes. The court held that from the expert’s 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).