THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ANASTASIO DAGMAN ET AL., DEFENDANTS AND APPELLANTS.

On the 2d of May, 1924, Elias Magbual, an employee of the hacienda
“La Esperanza,” while in the performance of his duties, was
treacherously attacked by a crowd of persons, probably about forty in
number and was nearly killed. The motive of the crime was that the
persons who harbored enmity against 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 ruse of feigning death.

On these facts, seven persons,
Luis Pacunla, Andres Rebollido, Isabelo Rebollido, Juan Olonan,
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 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 provided by law because of the presence
of the aggravating circumstance that prohibited arms were used 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 a
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 as
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. vs. 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. 3133; 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, 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 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.

Avanceña, C. J., Johnson, Ostrand, and Johns, JJ., concur.

Villamor and Villa-Real, JJ., did not take part.
Street, J.,
dissenting: I dissent on the ground that the offence should be
qualified as an attempt to commit homicide and not as frustrated
murder.