G.R. No. 2453. December 28, 1905

This defendant was charged in the Court of First Instance of the
Province of Capiz with the crime of frustrated homicide. After a
consideration of the evidence adduced during the trial in the court
below, the judge of the inferior court found the defendant guilty of
discharge of firearms, punishable under article 408 of the Penal Code,
and sentenced him to be imprisoned for a period of eight months of presidio correctional and to pay the costs. From this sentence the defendant appealed to this court.

The defendant claims that the inferior court committed an error in
convicting him of the crime of discharge of firearms under a complaint
in which he was charged with the crime of frustrated homicide, claiming
that the offense of which he was convicted is not necessarily included
in the charge in the complaint.

Section 29 of General Orders, No. 58, provides that—

“The court may find the defendant guilty of any
offense or of any frustrated or attempted offense the commission of
which is necessarily included in the charge in the complaint or
information.”

An examination of the complaint is necessary, therefore, for the
purpose of ascertaining whether the crime of discharge of firearms is
necessarily included in the facts set out in said complaint. The facts
contained in the complaint presented against the defendant are as
follows:

“Que en la noche del dia 11 de Noviembre del ano
1904 estando Eutiquio Andrada en su casa situada en el barrio de
Guibungan-Dacu del municipio de Panay, Capiz, I. F., hablando con
Iniego Andrada delante de una mesa, se presente el acusado Inocentes
Andrada en la puerta de la casa muy cerca del sitio donde aquellos
estaban hablando y disparo un tiro de revo1ver contra el primero o sea
contra Eutiquio Andrada, pasando el proyectil en medio de ambos, con
infraccion de la ley.”

A description of the offense of discharge of firearms, in the Penal Code is found in article 408, and is as follows:

“El acto de disparar un arma de fuego contra
cualquiera persona sera castigado con la pena de prision correccional
en sus grados minimo y medio, si no hubieren concurrido en el hecho
todas las circunstancias necesarias para constituir frustrado o
tentativa de parricidio, asesinato, homicidio o cualquier otro delito a
que este” senalada una pena superior por alguno de los articulos de
este Codigo.”

A comparison of the facts set out in the complaint with the facts
constituting the offense in said article 408 shows clearly that the
crime described in the complaint is included in the offense described
in article 408; therefore, our conclusion is that while the defendant
was accused of frustrated homicide, the offense of which he was
convicted is necessarily included in the complaint.

The evidence discloses the fact that Eutiquio Andrada, the person at
whom the defendant discharged his revolver, was a brother of the
accused. This fact must be taken into consideration as an aggravating
circumstance in accordance with paragraph 1 of article 10 of the Penal
Code.

Article 408 of the Penal Code provides that the punishment shall be prision correccional
in its minimum and medium degrees, etc. The penalty included within
these two degrees is one year eight months and twenty-one days to two
years eleven months and ten days. There being one aggravating
circumstance and no extenuating circumstances, the defendant must be
punished in the maximum degree. Therefore it is the judgment of this
court that the sentence of the inferior court be modified and that the
defendant be imprisoned for a period of two years eleven months and ten
days and to pay the costs. So ordered.

Arellano C. J., Mapa, Carson, and Willard, JJ., concur.