THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JESSE T. WORTHINGTON, DEFENDANT AND APPELLANT.

This defendant was charged with the crime of frustrated homicide. The
complaint alleged:

“That on or about the 5th day of February, 1914, in the city of Manila,
Philippine Islands, and in the night time, the said Jesse P. Worthington being
then and there a duly appointed, qualified, and acting police officer of the
said city of Manila, did then and there, willfully, unlawfully, and feloniously,
with the intent to kill and armed With a deadly weapon, to wit, a revolver,
which then and there was loaded with cartridges, gunpowder, and leaden bullets,
shoot off and discharge at and upon Enrique Ayerdi, Lino Eguia de Dios, Jose
Garcia Margenant, Manuel Llorca, W. H. Williams, and Leon Hernandez, then and
there occupying an automobile, thereby, and by thus striking one of the
occupants of the said automobile, to wit, Leon Hernandez, with one of the said
leaden bullets, inflicting on the left forearm a wound; the said Jesse P.
Worthington performing all of the acts of execution which should have produced
the1 crime of homicide as their consequences, but which, nevertheless, did not
constitute it, by reason of causes independent of the will of the said Jesse P.
Worthington. Contrary to law.”

After hearing the evidence, the Honorable Richard Campbell, judge, found the
defendant guilty of the crime charged in the complaint and sentenced him to be
imprisoned for a period of six years and one day, to suffer the accessory
penalties provided for by law, and to pay the costs. From that sentence the
defendant appealed to this court. In this court the defendant made the following
assignments of error:

“First. The court erred in holding that the evidence was sufficient to prove
the defendant guilty of the crime of frustrated homicide. Second. The court
erred in finding the defendant guilty of the crime of frustrated homicide.
Third. The court erred in failing to find that the defendant was exempt from
criminal liability by reason of the fact that he acted in defense of his
person.”

Said assignments of error present a question of fact only and may therefore
be discussed together.

From an examination of the evidence brought to this court we find that the
following facts are proved beyond a reasonable doubt—in fact, except for a few
contradictions, they are practically admitted by the witnesses both for the
plaintiff and the defense:

First. That the defendant, Jesse P. Worthington, on the night of the 5th day
of February, 1914, accompanied by two Filipino women, whose names were Teoflsta
Beray and Felisa Marabibe, went in a calesa to a dance hall located in the
barrio of Maypajo, a suburb of the city of Manila, with the admitted purpose of
enjoying a few dances, and remained there until about 10.30 p. m.

Second. That the defendant, Jesse P. Worthington, was on the day in question
a policeman, duly appointed and acting in the city of Manila.

Third. That the defendant and the said Teofista Beray, upon arriving at the
dance hall entered and took some part in the dancing that was going on in said
hall.

Fourth. That later, on the same evening, and before the defendant and his two
Filipino women companions left the dance hall, W. H. Williams, a clerk in the
employ of the Executive Bureau of the Insular Government, Enrique Ayerdi, Manuel
Llorca, Lino Eguia, Jose Garcia, and Leon Hernandez, the injured person, arrived
at the dance hall in an automobile. The said Leon Hernandez was acting as
chauffeur of the automobile.

Fifth. That after said automobile party arrived at the dance hall, all of
them, except perhaps Lino Eguia, entered the dance hall and one or more of them
engaged in dancing with the said Teofista Beray.

Sixth. That after the said Teofista Beray had been engaged in dancing for
some time, she told the defendant that she wanted to go home. During the time
the defendant had remained in the dance hall he evidently had a talk with a
sailor, and the sailor suggested that they should hire an automobile, evidently
for the purpose of taking the two girls for a ride. The defendant went outside
the dance hall and spoke to one of the automobile party who had remained in the
automobile, concerning the hiring of it, when he was informed that the
automobile was not for hire.

Seventh. Later and almost immediately after the attempt of the defendant to
hire the automobile, he and his two women companions got into their calesa and
started on their return to Manila. Almost immediately Williams and his
companions also started for Manila in the automobile, following the calesa
occupied by the defendant and his companions.

Eighth, The defendant and his companions had gone but a short distance when
he ordered the calesa to stop. Evidently the said Teofista Beray had told him
something concerning a remark or remarks made by one of the occupants of the
automobile concerning him. The defendant got out of the calesa and went to the
automobile and after some conversation, the exact import of which does not
appear of record, offered, as he says, to settle their differences there; in
other words, it appears that the defendant offered to fight the occupants of the
automobile.

Ninth. The defendant again returned to his calesa and started on his way in
the direction of Manila, being followed by the automobile.

Tenth. At some point between the starting place at Maypajo and the city of
Manila, the defendant, as he admits, fired four shots with a revolver, which he
was then carrying, in the direction of the automobile. He asserts that he fired
all of the shots but one at the front tires of the automobile and that the
fourth shot was fired at the engine of said automobile. The proof shows that one
of the shots entered the arm of the chauffeur, Leon Hernandez, and caused a
serious injury. The defendant asserts that he fired the shots because the people
in the automobile were shouting at him and making threats against him. The
defendant asserts that he believed that the people in the automobile intended to
run down the calesa. The defendant also asserts that the occupants of the
automobile threw stones at the calesa, one of which struck him in the back of
the head.

Eleventh. When the calesa occupied by the defendant and his two
companions arrived in the city of Manila, at the corner of Calles Solis and Juan
Luna, the defendant called to a Filipino policeman, by the name of Pablo Reyes,
and asked him to take the number of the automobile that was following behind. At
that point the defendant got out of the calesa and was talking to the policeman
Reyes, when the automobile came up. When the automobile arrived at the point
where the defendant was standing, Williams got out of the automobile and entered
into a conversation with the defendant, resulting in a quarrel and threats one
against another. During the quarrel Williams, as he says, believing that the
defendant made a move to pull from his pocket a revolver, struck him a blow in
the face and the defendant, as a result of said blow, fell to the ground. When
the defendant fell to the ground as a result of the blow, Williams took from him
his revolver and its holster, and took them to the police station and turned
them over to the desk sergeant.

Twelfth. As was said above, the defendant claims that while he was riding
in the calesa in front of the automobile, some one of the occupants of the
automobile threw a stone at him and wounded him in the back of the head. It is
admitted that the defendant on the night in question received a wound in the
back of his head. We are of the opinion, i however, that the wound was caused at
the time he fell to the ground as a result of the blow inflicted by Williams.

Thirteenth. There is a labored attempt on the part of the defense to show
that the occupants of the automobile were trouble makers and were attempting not
only to annoy but to do him harm; that the occupants of the automobile were the
aggressors; that they were attempting to pick a quarrel with the defendant. In
our opinion that contention’ is unsupported by the proof; at least, there seems
to be but little ground upon which such a charge can be based.

Fourteenth. The defendant admits that he fired the four shots and that one of
them entered the arm of Leon Hernandez. He denies, however, that the shots were
fired with the intention of doing any one harm. The defendant himself
testified:

“I fired one shot. The two lights were shining in my face; I could see
nothing but the lights. I just had to guess what I was shooting at. At that time
they were close by me—a distance not very far—and they were still shouting, some
in Spanish and some in English. I could not understand all they said because I
don’t understand Spanish very well. I waited possibly a minute and a half to
give them an opportunity to stop, and as they did not but kept on coming, I
fired again. After the third shot I waited probably thirty seconds, and then
they slowed up. The first two shots I fired at the tires and the others I shot
at the engine; I could guess where it was and I shot at it. I did not like to
shoot into a load of men I had no quarrel with to hit ’em. When I fired at the
machine the horse was jumping—scared. I fired between the lights for the engine
after I couldn’t hit the tires.”

Fifteenth. There is nothing in the record to justify the contention that the
occupants of the automobile, and especially the injured person, Leon Hernandez,
attempted in any way, by threats, intimidation, or otherwise, to cause the
defendant any bodily harm.

Sixteenth. The record does not show very clearly the extent of the injury
received by the said Leon Hernandez. The injury was received on the night of the
5th of February., The record does not disclose on what day the trial was had.
The decision of the court was rendered on the 21st day of February. At the time
of the trial Leon Hernandez testified that he was still unable to use his
arm.

From an examination of the entire record, considering the admitted and
disputed facts, we have arrived at the conclusion that the defendant, at the
time of the shooting in question, did not intend to kill any of the occupants of
the automobile. That he fired at the automobile and in the direction of the
occupants of the same is undisputed. That one of the bullets entered the arm of
Leon Hernandez is not denied. We have held in numerous cases where the facts
were analogous to the facts in the present case, that when it appears that the
accused discharged a firearm at another, but under circumstances which clearly
indicated that an intent to kill was absent, his offense falls within the
provisions of article 408 of the Penal Code. (U. S. vs. Sabio, 2 Phil.
Rep., 485; U, S. vs. Pineda, 4 Phil. Rep., 223; U. S. vs.
Addison, 10 Phil. Rep., 230; U. S. vs. Kosel, 10
Phil. Rep., 409; U.
S.vs. Samonte, 10 Phil. Rep., 643; U. S. vs. Marasigan, 11
Phil. Rep., 27.)

In the foregoing decisions this court followed the interpretation given
article 408 by the supreme court of Spain. (3 Viada, 47; decisions of the
supreme court of Spain, February 12, 1872; March 7, 1872; February 26, 1874;
December 19, 1882; January 30,1884.)

The defendant was charged with the crime of frustrated homicide as
described in the complaint set out above. He was found guilty and sentenced to
be imprisoned for six years and a day for that crime. In our judgment the
sentence of the lower court should be revoked and the defendant should be
sentenced for the illegal discharge of a firearm, in accordance with the
provisions of article 408 of the Penal Code.

It is, therefore, hereby ordered and decreed that the defendant be sentenced
to be imprisoned for a period of two years eleven months and eleven days of
prision correccional, and to pay the costs. So ordered.

Arellano, C. J., Torres, Carson, and Araullo, JJ.,
concur.

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MORELAND, J.

I doubt if the crime is properly qualified by the court in this case.

In order to bring a case within article 408 of the Penal Code, which punishes
the discharge at another of a firearm “if, the circumstances of the case are
such that the act cannot be held to constitute a frustrated crime of parricide,
murder, or homicide, or an attempt to commit any one of these crimes, or any
other crime for which a higher penalty is prescribed by any of the articles of
this code,” it is necessary that it appear that the discharge of the firearm did
not result in an injury to the party against whom the attempt was made. If a
serious injury is caused by the discharge, such as may be termed under the Penal
Code lesiones graves, the person who fired the arm is guilty of two
crimes, namely, that defined by article 408 referred to and that of lesiones
graves. In such case he should be punished for the crime of lesiones
graves in its maximum degree in pursuance of article 89 of the Penal Code.
(Supreme court of Spain, judgment of 13th of May, 1873; 3 Viada, 49.) If the
discharge resulted in injuries which may be termed under the Penal Code
lesiones menos graves, the same rule applies. Two crimes have, in such
case, been committed, one, that defined in article 408, the other that of
lesiones menos graves; and the accused must be sentenced for the
gravest crime in its maximum degree. (U. S, vs. Marasigan, 11 Phil.
Rep., 27; decisions of supreme court of Spain of 12th of February, 1872, and
26th of February, 1874; 3 Viada, 48.)

In the case before us the court finds that the discharge of the firearm
“caused a serious injury.” It appears from the record that the injury was caused
on the 5th day of February and that on the day of the trial, the 18th of
February, plaintiff’s left arm, which was the member injured by the shot, was
still bandaged and he was unable to use it. Articles 416 and 418 define the
crimes of lesiones graves and lesiones menos graves. The
injury which causes lesiones menos graves is one which, not falling
within articles 416 and 417, incapacitates the offended party for labor for
eight days or more or makes medical attendance necessary for the same period. It
is very likely that, if the facts had been developed and the time required by
article 416 had been allowed to expire, the injury would have been found to be
sufficient upon which to found the charge of lesiones graves. As the
record stands, there is sufficient evidence to find that the injuries caused
constituted lesiones menos graves. That being so, the accused should
have been pronounced guilty of two crimes, namely, the discharge of a firearm as
defined in article 408 and the crime of lesiones menos graves as
defined by article 418 of the Penal Code, and he should have been punished in
the maximum degree of the gravest crime. This is the law as laid down by this
court in United States vs. Marasigan (11 Phil. Rep., 27), where it was
stated:

“The discharge of a firearm by the accused against the injured party,
inflicting on the latter lesiones menos graves about the head,
according to the criminal law produced two offenses, one being for discharging a
firearm against a given person, defined by article 408 of the Penal Code, and
the other, that of lesiones menos graves, penalized under article 418 of said
code, and as both offenses were the result of one sole criminal act, the
adequate penalty, according to article 89 aforesaid, is that imposed by the law
upon the more serious one, the same being applied in its maximum degree. No
mitigating or aggravating circumstance is present in the commission of the crime
herein, therefore the penalty should be imposed in the medium grade of the
maximum degree, and the penalty of three years and six months of prision
correccional and accessories imposed on the accused, is in accordance with
the law.”

In the case before us the accused was found guilty simply of the crime of
discharging a firearm in violation of article 408, and although no aggravating
circumstance was proved and none was found by this court in its judgment of
conviction, nevertheless, the accused is sentenced in the maximum degree of the
crime of which he is convicted. I agree to the penalty, but on grounds already
stated.

In order to avoid any misunderstanding relative to the rule in cases of
attempted homicide, or murder, or parricide, I call attention to the fact that
the decision contains a statement that “we have held in numerous cases where the
facts were analogous to the facts in the present case, that when it appears that
the accused discharged a firearm at another, but under circumstances which
clearly indicated that an intent to kill was absent, his offense falls within
the provisions of article 408 of the Penal Code.” While this is true,, of
course, it does not, as I understand it, correctly express the rule laid down by
this court, which is that, where one person discharges a firearm at another,
and it does not clearly appear that he intended to kill, he cannot be
held for frustrated or attempted murder or homicide but for some other crime.
The rule is correctly stated in United States vs. Sabio (2 Phil. Rep., 485),
where the court says, at page 487:

“In order to convict the defendant in this case of the crime of frustrated
murder, it was necessary to prove that the defendant with deliberate
premeditation intended to kill Reyes.”

We have never held, as might be inferred from the decision in this case,
that, to bring his acts within article 408, the accused must clearly show that
the intent to kill was absent The rule, as I have said, is quite the contrary.
To make the case one of attempted or frustrated homicide, murder, or parricide,
the Government must clearly show that the accused shot to kill. The burden of
proving the intent is on the Government.