THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. PEDRO PACUBAS AND FERNANDO PACUBAS, DEFENDANTS AND APPELLEES.

“That on or about the 21st
day of March, 1935, in the municipality of Vigan, Province of Ilocos
Sur, Philippine Islands, the said accused Pedro Pacubas and Fernando
Pacubas, conspiring together and helping each other, did then and there
willfully, unlawfully and feloniously and with intent to kill Pedro
Reyes, perform all the acts of execution which should have produced the
latter’s death as a consequence, assault and attack him, and if the
acts in question failed to produce the death of said Pedro Reyes except
only four wounds in different parts of the body, it has been due to
causes independent of the will of the said accused. Said wounds
required medical attendance for more than ten but less than thirty days
and prevented said Pedro Reyes from engaging in his customary work for
the same period of time.”

A demurrer to the foregoing information was filed on the ground
that it charges more than one offense. The court sustained the demurrer
and ordered the fiscal to amend the information. As the fiscal had
refused to make the amendment, the court dismissed the case with costs
de oficio. From this resolution the fiscal appealed.

The appealed resolution is erroneous. It is claimed that the
information charges two offenses, to wit: frustrated homicide and
physical injuries which required medical attendance for more than ten
but less than thirty days and prevented the offended party from
engaging in his customary work for the same period of time. Although
the information really involves the said two offenses, it cannot be
assailed for alleged duplicity because the two offenses in question
constitute only one offense. To prove that there is but one offense
charged, that of frustrated homicide, suffice It to take into
consideration that if all the facts alleged in the information were
established the accused could only be convicted of frustrated homicide,
notwithstanding the fact that this offense includes that of physical
injuries as one of its essential elements in this case, inasmuch as
they simply constitute a lighter offense, physical injuries, embraced
in a graver one, frustrated homicide.

It is contended that if the intent to kill is not established, the
accused could be convicted of the crime of physical injuries. However,
this circumstance does not show that there is duplicity in the
infomation because in such case the accused could neither be convicted
of the crime of frustrated homicide. Such argument, however, deviates
the question from its own course. By means of the demurrer, the case is
submitted by assuming that all the facts alleged are to be proven, not
upon the contrary hypothesis that they are not to be proven. For this
same reason this court finds no merit in the consideration made in the
appealed decision in the sense that the accused does not know which of
the two crimes he is charged with, because it is clear that he is
charged with frustrated homicide and not with another crime. It must be
presumed that the Government expects to prove the facts constituting
its charges and, consequently, it must be understood that it charges
the crime resulting from such facts.

The real question, in the opinion of this court, lies in
determining whether or not the facts alleged in the information are
essential in the crime of frustrated homicide charged. If they are,
they may and must be alleged, notwithstanding the fact that some of
them may also constitute another less serious offense, because
otherwise it would be impossible to prosecute a more serious offense
which embraces the less serious one.

An examination of the facts alleged in the information shows that
they are essential in the crime of frustrated homicide charged. This
crime is committed when the offender, with the intention to kill,
performs all the acts of execution which would bring about the
realization of such intention as a consequence but which, nevertheless,
is not realized by reason of causes independent of the will of the
perpetrator. Inasmuch as the acts tending to the realization of the
intention to kill in this case, consisted in the infliction of physical
injuries on the offended party by the accused, without the allegation
of this fact there would be no crkne of frustrated homicide and it
would be impossible to prosecute the accused for this crime.

It seems that the objection to the information, by reason of
duplicity, is based on the ground that it also states the seriousness
of the injuries, it being claimed that such specification makes it
possible to convict the accused of the crime of physical injuries of
such gravity, if the intention to kill is not established. This
reasoning does not appear sound because, at any rate, although the
seriousness of the physical injuries is not taken into consideration,
the accused may be sentenced to the lightest penalty prescribed for
this crime (art. 266, subsec. 2, of the Revised Penal Code). However,
the truth is that; the specification of the seriousness of the physical
injuries in the information is material in a case of frustrated
homicide, when the act performed to realize the intention to kill is
made to consist in having inflicted the physical injuries in question.
In this case it is necessary to establish the relation between the
defendant’s act of wounding the offended party and the intention to
kill which inspired it and which was not realized. Inasmuch as the mere
act of wounding does not necessarily imply the intention to kill, it is
essential to state the circumstances linking said act with such
intention, and one of them, is, certainly, the seriousness of the
physical injuries caused.

In view of the foregoing considerations, and reversing the appealed
resolution, the demurrer to the information is overruled and the case
is ordered remanded to the court of origin for its prosecution, without
special pronouncement as to costs. So ordered.

Villa-Real, Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.