THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. ROMAN MAGHIRANG, DAMASO RIVERA AND FRANCISCO GUTIERREZ, DEFENDANTS AND APPELLANTS.

This is an appeal from a judgment of the Court of First Instance of Laguna
convicting the accused of the crime of frustrated murder and sentencing each one
of them to eight years and one day of prision mayor, with the
accessories provided by law, to pay, jointly and severally, to the offended
party the sum of P400, and to pay the costs of the trial.

It appears from the evidence that late at night on the 1st day of May, 1913,
the accused Roman Maghirang, Damaso Rivera, and Francisco Gutierrez, in company
with Pablo Sahagun, went to the house of Cornelio Briones in the barrio of
Remedios, municipality of San Pablo, Laguna, carrying banjos and guitars, for
the purpose of giving a serenade in front of Briones’ house in honor of his
sister-in-law, to whom Sahagun was paying some attention. The young lady being
ill, priones, from his window, called to the accused and asked .them not to
continue the serenade as he was afraid the music would awaken herl The accused
thereupon departed. About 2 o’clock of the afternoon of the following day
Briones, riding a carabao, went to visit a piece of land belonging to him in
Maabu. During the journey he had to cross a dry run which, in the wet season,
emptied its waters into the Patay-na-tubig River. Briones had crossed this run
and was in the act of ascending the opposite bank when suddenly the three
accused, Roman Maghirang, Francisco Gutierrez, and Damaso Rivera, leaped from
the bushes in which they were hidden. Gutierrez seized the carabao while Rivera
struck Briones on the left arm with a club. The force of the blow knocked
Briones to the ground. While down, Maghirang approached him with a bolo and, in
spite of the remonstrances and prayers of Briones, struck him two blows, one on
the shoulder and the other across the lips. The accused then withdrew. The blows
were heavy ones and rendered the victim senseless. After returning to
consciousness he was able, with great difficulty, to reach his house.

According to the testimony of the physician who examined Briones after the
assault, the wound on the shoulder was about 18 centimeters long and, at the
point of greatest profundity, 4 to 5 centimeters deep. The wound cut through all
of the muscles of the shoulder, through the capsular ligament, and into the bone
a distance of 2£ centimeters. The arm has lost about 60 per cent of its strength
and usefulness, and Briones is unable, and will be unable, to engage in his
usual occupation. This injury is permanent.

The second wound, the one across the mouth, intersected both lips. The upper
lip was cut away in part, while a portion cut from the lower lip was still
hanging by a small portion of the skin when first seen by a doctor. Attempts
were made by the surgeon to sew this piece to the lower lip. He finally
succeeded and, although the parts have grown together, the lower lip is
paralyzed and Briones is able to speak only by placing his hand against the
lower lip and holding it in position while he articulates.

These injuries were cured, so far as cure was possible, in about forty days
at an expense of P300.

From the evidence in this case we have no doubt whatever that the accused are
guilty of the acts charged in the information. Briones recognized all three as
they attacked him and detailed clearly and satisfactorily what each one did. The
only question calling for discussion in this case is one raised by the private
prosecutor, who insists that the solicitor-general, in this court, has not
properly qualified the crime, the latter insisting that the crime is lesiones
graves instead of frustrated murder.

In support of his contention that the crime is lesiones graves and
not frustrated murder, the solicitor-general says:

“The trial court found that the crime committed was frustrated murder, with
the aggravating circumstance of premeditation.

“There exist, it is true, certain circumstances which appear to sustain this
conclusion of the court: The. use of bolos, which in themselves are deadly
weapons; the words ‘we are going to kill you’ which Maghirang used to Briones
when the attack was made, and which were followed immediately by the blow across
the face; the ambush and the unexpected and sudden assault, all appear to
sustain the contention that there was an intention to kill, induced as the trial
court said, by the insult which they supposed had been offered them the night
before.

“But an examination of the doctrine of this court in the cases of U. S.
vs. Duruelo (7 Phil Rep., 497) ; U. S. vs. Trinidad (4 Phil.
Rep., 152); U. S. vs. Dagalea (4 Phil. Rep., 398) ; U. S. vs.
Manlalang (6 Phil. Rep., 339), induces us to to believe that the crime committed
is that of lesiones graves (serious injuries) described and punished in
paragraph 2, article 416 of the Penal Code, with the aggravating circumstance of
treachery. That is to say, although the information was for frustrated murder
and that was the crime found by the trial court to have been committed, the
facts demonstrate that the accused are guilty simply of lesiones graves for the
reason that the accusation did not prove on the trial that the intention or the
purpose was to kill, for, although one of the accused was armed with a bolo and
the other with a club, and Briones lay upon the ground on his back, the wounds
inflicted upon him were not mortal wounds, nor were they located in a fatal
spot; and yet, in spite of that, the accused did not continue the assault in
order to effectuate his death, nor did they use the bolo with which to deliver
the first blow, although they were not prevented by anybody from consummating
their intention to kill him if they had had such a purpose. It is necessary to
take into consideration the aggravating circumstance of treachery in view of the
fact that Briones was attacked from behind and suddenly, without having been
given an opportunity to offer any resistance.”

We are disposed to agree with the theory of the Solicitor General, in spite
of the strong argument advanced by the private prosecutor, that the crime
committed was really frustrated murder. According to the provisions of the Penal
Code, article 3, “a felony is frustrated when the offender performs all the acts
of execution which should produce the felony as a consequence, but which,
nevertheless, do not produce it by reason of causes independent of the will of
the perpetrator.”

It is clear to our minds that, in this particular case,
the accused did not perform “all of the acts of execution which should
produce the felony as a consequence.” The wounds were not located in a vital
spot. Neither of them was mortal nor likely to produce death; in other words,
the wounds inflicted were not such as “should” produce death, nor such as would
naturally and ordinarily produce death.

The Lim San case (17 Phil. Rep., 273) is illustrative of the conditions
necessary to present a case of frustrated murder. There the wound inflicted was
such as “should” have produced death and would necessarily have produced death
if the injured person had not been instantly taken to a hospital, his intestines
replaced and his abdomen properly closed. While the information charged
attempted murder, we found the accused guilty of frustrated murder upon the
ground that he performed all of the acts which should produced death, which
acts, nevertheless, did not produce death by reason of causes independent of the
will of the perpetrator. In the case before us the accused did not perform all
of the acts necessary to produce death nor was the life of the complaining
witness saved by causes independent of the will of the perpetrator. In other
words, the accused in this case did not perform all of the acts which “should”
produce death.

Nor is the crime attempted murder; for, in order that the crime be qualified
as such, the offender must commence “the commission of the felony directly by
overt acts” but must “not perform all of the acts of execution which constitute
the felony by reason of some cause or accident other than his own voluntary
desistance.”

In the case at bar the accused voluntarily desisted from injuring the victim
further. They probably knew, which was the fact, that the injuries were not
inflicted in a vital part of the body and were not such as “should”
produce death. This presents a condition from which we cannot say that the
accused intended to kill. Without this intention the crime can be neither
frustrated nor attempted murder. (U. S. vs. Marasigan, 11 Phil. Rep.,
27; U. S. vs. Domingo, 18 Phil. Rep., 250; U. S. vs.
Montenegro, 15 Phil. Rep., 1; U. S. vs. Samea, 15 Phil. Rep., 227; U.
S. vs. Maquiraya, 14 Phil. Rep., 243; U. S. vs. Taguibao, 1
Phil. Rep., 16; U. S. vs. Sabio, 2 Phil. Rep., 485; U. S. vs.
Dagalea, 4 Phil. Rep., 398; U. S. vs. Trinidad, 4 Phil. Rep., 152; U.
S. vs. Redion, 4 Phil. Rep., 500; U. S. vs. Duruelo, 7 Phil.
Rep., 497; U. S. vs. Barnes, 8 Phil. Rep., 59.)

As a necessary result of these considerations, the crime must be
characterized as lesiones graves, as stated by the solicitor-general.
There being present the aggravating circumstances of alevosia,
premeditation, despoblado and superior force, the penalty must be
imposed in its maximum degree.

The judgment of conviction is reversed and the accused are hereby each
convicted of the crime of lesiones graves and sentenced each to six
years eight months and twenty one days of prision mayor, to the
accessories provided by law, to indemnify the offended party in the sum of P400
and to be jointly and severally liable therefor, and to pay the costs.

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

Trent, J., concurs in the result.