G.R. No. 1322. February 18, 1905

The defendant is guilty of the crime of discharging a firearm at a
person, according to article 408 of the Penal Code. The complaint,
however, charges him with the crime of frustrated murder.

Teodoro Pineda, a corporal in the Constabulary, while taking Melecio
Roxas to the municipality of Bocaue, ordered three soldiers who were
under his command to fire upon the prisoner. The judgment below
sentenced him to the penalty of one year eight months and twenty-one
days of prision correccional, with the costs, and credits him
with. one-half the time he has been held as a detention prisoner. This
is in accordance with the law. Under section 29 of General Orders, No.
58, he can be sentenced for a crime of a less degree than that for
which he has been prosecuted.

Therefore we affirm the sentence of the court below with the costs in this instance.

Torres, Mapa, Johnson, and Carson, JJ., concur.