THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FERNANDO GOROSPE, FELIX GOROSPE, ESPINELO GOROSPE AND ANDRES GOROSPE, DEFENDANTS AND APPELLANTS.

The defendants were accused of the crime of frustrated murder.
It appears from the evidence that in the evening of November 6, 1926, the
offended party, Vicente Mendoza, was present in the La Loma Cabaret situated in
the municipality of Caloocan, Province of Rizal. Between 10 and 11 o’clock that
evening, while walking from the toilet of the cabaret towards the table he had
been occupying, Mendoza was struck on the right eye by an unknown person and
embraced from behind by the defendants Felix, Andres and Espinelo Gorospe. While
he was thus held, Felix Gorospe stabbed him in the back with a pocket-knife.
Mendoza endeavored to free himself, but the defendant Fernando Gorospe joined
the other defendants and struck him on the head with a blunt instrument wrapped
in a small handkerchief, as a result of which blow he fell to the floor.
Fernando thereupon ran away, but the other defendants continued the attack,
Espinelo and Andres striking Mendoza with the fists, and Felix stabbing him with
the pocketknife. Lazaro Faustino, the manager of the cabaret, came to his rescue
and succeeded in pulling Felix and Andres away from their victim. Ambrosio Cruz,
a special policeman, also intervened and Seized Espinelo and, delivering him to
another policeman, pursued the other defendants, who in the meantime had tried
to escape. He overtook Andres and Fernando and succeeded in arresting the
former. Fernando escaped in a carromata but was subsequently pursued by Cruz
with an automobile and captured. Shortly afterwards Felix Gorospe was also
apprehended. Mendoza was very seriously wounded and was immediately taken to the
Philippine General Hospital. One of the wounds had penetrated the lungs, and, as
a consequence, the patient was expectorating blood for several days. Another
wound was also deep, and very nearly reached the left kidney, and still another
deep wound almost touched the peritoneum. Due to his robust constitution and the
immediate medical attendance, Mendoza survived and was discharged from the
hospital in a few weeks.

Upon the facts stated, the defendant Felix Gorospe was
convicted of the crime charged in the information and sentenced to suffer twelve
years and one day of cadena temporal, with the accessory penalties, and to pay
one-fourth of the costs. The other defendants were found guilty of the crime of
less serious physical injuries, and each of them was sentenced to six months of
arresto mayor, with the accessory penalties and with the proportional share of
the remaining three-fourths of the costs. From these sentences the defendants
appealed and present the following assignments of error:

“1. The court erred in assuming jurisdiction over and
proceeding with the trial of the complaint.

“2. The court erred in overruling the defendants’ objection to
the jurisdiction of the court to try the defendants, to which the defendants
duly excepted.

“3. The court erred in subjecting the defendants to a trial and
sentencing them without due process of law.

“4. The court erred in convicting the defendant and appellant,
Felix Gorospe, of the crime of frustrated murder.

“5. The court erred in convicting the defendants and
appellants, Fernando Gorospe, Espinelo Gorospe, and Andres Gorospe, and each of
them of the crime of lesiones menos graves.

“6. The court erred in holding that the circumstance of
treachery on the part of the defendants and appellants was proved by the
evidence.

“7. The court erred in the severity of the various sentences
imposed upon the defendants and appellants.”

The first three assignments of error present a question of law.
The provincial fiscal of Rizal filed a complaint in this case in the justice of
the peace court of Caloocan for a preliminary investigation. Upon such
investigation, the justice of the peace concluded that the defendants were not
guilty of frustrated homicide but of lesiones menos graves and so informed the
fiscal “para los efectos que en derecho tuviere lugar” in an “auto” dated April
5,1927. The fiscal filed a motion with the Court of First Instance praying “that
this Honorable Court require the appearance of the justice of the peace,
Ladislao de Jesus, to make the necessary corrections in his order of April 5,
1927, or to submit an amended order stating therein whether he would order the
dismissal of the case for lack of reasonable evidence of the commission of the
crime charged, or whether he would transmit the case to the court on the ground
that prima facie evidence of the commission of the crime by the herein accused
had been presented.”

On May 6, 1927, the Court of First Instance, in accordance with
the fiscal’s motion, ordered the justice of the peace to make the necessary
corrections in his “auto” of April 5, 1927, and in compliance with that order,
the justice of the peace revoked said “auto” and in another “auto” reported that
the evidence presented during the preliminary investigation of the case
established prima facie that the crime charged had been committed, and, after the
approval of this report by the Court of First Instance, the fiscal presented the
information for frustrated murder.

The defendants’ contention is that the justice of the peace,
having found and declared that the crime committed was only lesiones menos
graves, the court had no authority to try the defendants for frustrated murder
without another preliminary investigation.

This contention is entirely untenable. The duty of the justice
of the peace was only to determine whether or not the evidence presented
supported prima facie the allegations of fact contained in the complaint; he had
no legal authority to determine the character of the crime and his declaration
upon that point can only be regarded as an expression of opinion in nowise
binding on the court. His attention was called to this fact, and, in compliance
with the court’s order, he finally did what it was his duty to do, i. e., state
whether or not the evidence reasonably sustained the allegations of the
complaint. The court had a perfect right to require him to do so and committed
no error in taking jurisdiction of the case upon his final report. The
authorities cited by counsel for the defendants are not in point.

The fourth assignment of error deals with the guilt of the
defendant Felix Gorospe, and it is argued that he at most can only be held
guilty of lesiones menos graves without aggravating or mitigating circumstances.
We cannot give much weight to this argument. The evidence seems conclusive that
Felix stabbed the offended party in the back while the latter was in a
defenseless position. That constitutes treachery. The fact that he inflicted
three deep wounds near vital spots sufficiently shows his murderous intent. The
sentence imposed on him is in accordance with the law and seems well deserved.

The three remaining assignments of error are equally without
sufficient foundation. There may, indeed, be some doubt as to whether Fernando,
Espinelo and Andres should not be held guilty as principals in the commission of
the frustrated murder, but there is no sufficient evidence of conspiracy to
commit that crime, and it is not clear that their cooperation was essential to
its commission. We have therefore concluded that the court below did not err in
finding them guilty of the lesser crime.

The sentence appealed from is affirmed with the costs against
the appellants. So ordered.

Johnson, Malcolm, Villamor, Johns, Romualdez, and Villa-Real,
JJ., concur.

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DISSENTING

STREET, J.:

I submit that the offense committed in this case would be
properly characterized as an attempt and not as a frustrated offense. I am
further of the opinion that all four of the appellants were involved as
principals.