THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. SY PIO, ALIAS POLICARPIO DE LA CRUZ, DEFENDANT AND APPELLANT.

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 and passed through his back. Upon
being hit, Tan Siong Kiap immediately ran to a room behind the store to
hide. From there he still heard gunshots 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 the
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 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 had made in Manila in the morning of September
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 this 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 the 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 China-man by the
name of Ngo Cho, who was 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 the 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 whom 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 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 believe 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 latter 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 the 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 times for a 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 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 a 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 hit his victim at a vital part of the body. In
other words, the defendant-appellant knew that he had not actually
performed 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 exists in our mind
that the defendant-appellant had actually believed that he had
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, riot 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.

Paras, C. J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur.