People of the Philippine Islands vs. Leovigildo David

Treachery is not present when the accused fires at a victim who is facing him, even if the bullet hits the victim on the back due to a change in the victim's position caused by a third person's shove. A wound that may by itself alone produce death, absent timely and adequate medical intervention, is mortal and supports a conviction for frustrated homicide when all acts of execution have been performed but death does not result due to causes independent of the accused's will.

The defendant-appellant Leovigildo David is the son of Teodoro David, a democrata candidate for municipal president of Dinalupihan, while the offended party Jose V. Reyes is the brother of Emilio Reyes, a nacionalista candidate for member of the provincial board of Bataan, both during the general elections of 1931. The two cases arose from separate informations filed by the provincial fiscal of Bataan in the justice of the peace court of Dinalupihan — one for frustrated murder against Leovigildo David and Teodoro David for shooting Jose V. Reyes, and another against Leovigildo David alone for discharge of firearms with less serious physical injuries committed on the person of German Pinili. After preliminary investigations, the cases were forwarded to the Court of First Instance of Bataan, where the provincial fiscal filed the corresponding informations.

Leovigildo David, the defendant-appellant, is the son of Teodoro David, a democrata candidate for municipal president of Dinalupihan, while Jose V. Reyes, the offended party in criminal case No. 3310, is the brother of Emilio Reyes, a nacionalista candidate for member of the provincial board of Bataan, both during the general elections of 1931. On or about April 18, 1931, in the barrio of Luacan, municipality of Dinalupihan, Province of Bataan, an argument broke out between Emilio Reyes and Teodoro David after the former had quarreled with Leovigildo David, then an election inspector, because Emilio Reyes wanted to see the list of registered voters. Jose V. Reyes arrived at the scene and asked who was making trouble. Upon hearing him, Teodoro David, in a contemptuous tone, said in Tagalog: "Phse, ichura mong lalake" (Pshaw, you are but a shrimp) and, opening the door of the car where he was, rushed upon his interlocutor, and the two engaged in a hand-to-hand fight during which both fell to the ground, Teodoro David on his right side, face downwards, with Jose V. Reyes on top of him.

Two constabulary soldiers who had arrived in the same car with Teodoro David a few moments before tried to prevent the combatants from coming to blows but, due to the presence of many people witnessing the quarrel, were unable to make timely intervention. They succeeded in separating the combatants only after they had already fallen to the ground, Cirilo Dullas raising Jose V. Reyes and holding him aside, while Esteban Aninang did the same to Teodoro David and took him to his car. While Jose V. Reyes was on top of Teodoro David, a first shot was heard, which did not hit its mark, fired by Leovigildo David, later followed by another which hit the stock of the gun carried by constabulary soldier Cirilo Dullas in his right hand as he held Jose V. Reyes with his left hand after separating the latter from Teodoro David. Upon hearing the second shot and feeling the bullet hit the stock of his gun, Dullas instinctively shoved Jose V. Reyes, whom he continued to hold by the left arm with his left hand, causing the latter to stagger and stoop to the right side, his back toward the north whence the shots came. While Jose V. Reyes was thus stooping, a third shot was heard, which hit the upper left hand side of Reyes' body, whereupon he fell to the ground. Immediately thereafter, a fourth shot rang out, which hit the left axilla of the boy German Pinili, who was perched on top of a fence witnessing the fight.

Jose V. Reyes was immediately brought by his brother Emilio Reyes and others to Dr. Gonzalo Nuguid's clinic in Orani, Bataan, where he was given first aid, while the constabulary soldiers seized the revolver of Leovigildo David and placed him under arrest. In the chamber of the revolver were found four empty cartridges. Constabulary Captain Cirilo Legaspi, who had been notified of the incident, ordered the seizure of Jose V. Reyes' revolver, which was found in a box in the latter's house. The bullet wound on Jose V. Reyes was at the back above the left clavicle, piercing his body from side to side and perforating the lung, with medical treatment lasting about seventy-seven days and expenses amounting to P1,030.79. The wound on German Pinili, whose treatment lasted about twenty-five days, involved a bullet penetrating his left side and lodging itself in the left scapula. The defendant was a recidivist, having been formerly convicted of less serious physical injuries in criminal case No. 2901 of the same court by a final and executory judgment dated December 8, 1927.

The prosecution's witnesses testified that when the defendant fired the shot which hit Jose V. Reyes, the latter was on top of Teodoro David and in the act of hitting Teodoro on the forehead for the second time with the butt of his revolver. The testimony of constabulary soldier Esteban Aninang, however, stated that the violent shove given Jose V. Reyes by his companion Cirilo Dullas caused Jose V. Reyes to stagger and stoop to the right side and at the same time to turn his back toward the defendant simultaneously with the third shot, corroborating the testimony of the witnesses for the defense that Jose V. Reyes was facing the defendant. The testimony of the two constabulary soldiers was unanimous that when Jose V. Reyes received the bullet wound, he was already standing far from Teodoro David and beside constabulary soldier Cirilo Dullas, who had dragged him away from Teodoro David.

• Frustrated Murder Conviction: The defendant-appellant assigned as error the trial court's holding him guilty of frustrated murder and sentencing him to reclusion temporal, to indemnify the offended party, and to pay costs.
• Discharge of Firearms Conviction: The defendant-appellant assigned as error the trial court's holding him guilty of discharge of firearms with less serious physical injuries and sentencing him to prision correccional with costs.
• Lack of Intent to Kill: The defendant-appellant argued that the trial court erred in adopting the prosecution's theory that he, with deliberate intent to kill Jose V. Reyes, fired from behind four revolver shots at the latter.
• Defense of Relative: The defendant-appellant argued that the trial court erred in not accepting the theory of the defense that he, in firing his revolver at the offended party, did not intend to kill the latter but acted in defense of his father and while the offended party was facing him.
• Acquittal: The defendant-appellant argued that the trial court erred in not acquitting him of the charges in both cases.

• Prosecution's Theory: The prosecution's witnesses testified that when the defendant fired the shot which hit Jose V. Reyes, the latter was on top of Teodoro David, the defendant's father, and in the act of hitting Teodoro on the forehead for the second time with the butt of his revolver, supporting the charge of frustrated murder with treachery and evident premeditation.

• Treachery: Whether the circumstance of treachery was present in the commission of the crime against Jose V. Reyes, given that the victim was facing the defendant when the shot was fired.
• Intent to Kill: Whether the defendant had the intention of killing Jose V. Reyes when he fired the shot that hit him.
• Frustrated Murder vs. Frustrated Homicide: Whether the defendant, having intended to kill Jose V. Reyes, had performed all the acts of execution which should have produced the latter's death, but did not produce it by reason of causes independent of his will, and whether the crime constituted frustrated murder or frustrated homicide.
• Criminal Liability for the Wound on German Pinili: Whether the defendant is liable for the wound inflicted on German Pinili, who was hit by a shot not aimed at him but fired at Jose V. Reyes.

• Treachery: No. Treachery was not present because the defendant fired the shot facing the victim and in the presence of many people, and the victim could have evaded the shot, having been shoved by the constabulary soldier. The circumstance of treachery under article 10, No. 2, of the old Penal Code was therefore absent.
• Intent to Kill: Yes. The defendant's intention to kill Jose V. Reyes was obvious, as the aggression against his father had already ceased when he fired, and his intention could not have been only to repel the aggression but also to kill Jose V. Reyes.
• Frustrated Murder vs. Frustrated Homicide: The crime constituted frustrated homicide, not frustrated murder. The wound was mortal, as it perforated the lung and would have caused death absent timely and adequate medical intervention, but the absence of treachery reduced the crime from murder to homicide.
• Criminal Liability for the Wound on German Pinili: Yes. Although the shot that hit German Pinili was not aimed at him, the defendant is liable for the consequences of his act under article 1, paragraph 3, of the old Penal Code, which provides that any person voluntarily committing a felony or misdemeanor shall incur criminal liability although the wrongful act done be different from that which he intended.

• Treachery: The Court found as a conclusion of fact that when Leovigildo David fired the shot that hit Jose V. Reyes, the latter was facing him, and if the bullet hit Jose V. Reyes on the back, it was due to the fact that his position was changed upon being shoved by the constabulary soldier, and that when the complainant was already far from Teodoro David. Because the defendant fired the shot facing the victim and in the presence of many people, he did not employ means, methods, and forms in the execution of the crime which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. The very fact that Jose V. Reyes had been shoved by the constabulary soldier showed that he could have evaded the shot and thereby frustrated the defendant's intent. Therefore, treachery was not present.
• Intent to Kill: The defendant invoked the defense of a relative to exempt himself from criminal liability under article 8, No. 5, of the old Penal Code. However, it was shown that when the defendant fired at Jose V. Reyes, the aggression had already ceased, and therefore the motive for defense was no longer present. In firing at his victim, the defendant's intention could not have been only to repel the aggression against his father but also to kill Jose V. Reyes. The intention to kill was therefore obvious.
• Frustrated Murder vs. Frustrated Homicide: The doctors who testified as experts on whether the wound received by Jose V. Reyes was necessarily mortal were not unanimous. Dr. Anzures testified that on the basis of general principles, the wound was not mortal, but his testimony was purely hypothetical because he had seen nothing but the scars. Dr. Afable, who saved the offended party's life, testified that had not the fluid been drained from the patient's lung, it could have caused his death, and that a continuous internal hemorrhage might cause death as well. From this expert testimony, the Court inferred that had it not been for the timely and adequate medical intervention, the offended party would have succumbed from the wound in his lung. A wound that may, by itself alone, produce such a consequence is mortal. The defendant, in firing his revolver and hitting Jose V. Reyes on the upper left hand part of his body, piercing it from side to side and perforating the lung, performed all the acts of execution which should have produced the latter's death but did not produce it by reason of timely and adequate intervention of medical science, which was completely independent of his will. The facts constituted the crime of frustrated homicide, defined and penalized in article 404 of the old Penal Code, not frustrated murder, because treachery was absent. The penalty prescribed for consummated homicide is reclusion temporal in its full extent; for frustrated homicide, the penalty is one degree lower, prision mayor in its full extent, from six years and one day to twelve years. The mitigating circumstance of immediate vindication of a grave offense committed against an ascendant under article 9, No. 5, of the Penal Code was taken into consideration, without any aggravating circumstance to compensate it, so the penalty was imposed in its minimum period, from six years and one day to eight years of prision mayor, under article 81, rule 2, of the Penal Code.
• Criminal Liability for the Wound on German Pinili: The evidence showed beyond reasonable doubt that one of the shots fired by the defendant hit German Pinili on the left axilla, with treatment lasting about twenty-five days. Although the shot was not aimed at him, it cannot be considered accidental because, having been voluntarily aimed at Jose V. Reyes, the defendant is liable for the consequences of his act under article 1, paragraph 3, of the old Penal Code. Although the crime the defendant intended to commit against Jose V. Reyes was homicide, the crime committed against the boy German Pinili was discharge of firearms with less serious physical injuries, and the penalty imposed should correspond to this complex crime in its maximum period under article 64, paragraph 2, of the old Penal Code. However, since he was charged only with the complex crime, the only penalty that may be imposed is that corresponding to the offense of discharge of firearms with less serious physical injuries, defined and penalized in article 408 in connection with article 418 of the old Penal Code, with prision correccional in its minimum and medium periods, from six months and one day to four years and two months, imposed in its maximum period under article 89, paragraph 2, of the same Code. There being no modifying circumstance, the penalty was imposed in its medium period, from three years, four months and eight days to three years, nine months and three days. In both cases, Act No. 4103, the Indeterminate Sentence Law, was applied. For frustrated homicide, the maximum of the penalty was eight years of prision mayor, and the minimum, one year and one day of prision correccional. For the complex crime of discharge of firearms with less serious physical injuries, the maximum was three years, nine months and three days of prision correccional, and the minimum, four months and one day of arresto mayor.

• Treachery (Alevosia) — Treachery exists when the offender employs means, methods, or forms in the execution of the crime which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. The Court applied this doctrine by finding that treachery was absent because the defendant fired facing the victim, in the presence of many people, and the victim could have evaded the shot, having been shoved by a constabulary soldier.
• Defense of Relative — Under article 8, No. 5, of the old Penal Code, a person who acts in defense of a relative may be exempt from criminal liability. The Court held that this defense was not available because the aggression against the defendant's father had already ceased when the defendant fired at Jose V. Reyes, and the defendant's intention could not have been only to repel the aggression but also to kill.
• Aberratio Ictus (Mistake in the Blow) — Under article 1, paragraph 3, of the old Penal Code, any person voluntarily committing a felony or misdemeanor shall incur criminal liability although the wrongful act done be different from that which he intended. The Court applied this doctrine to hold the defendant liable for the wound inflicted on German Pinili, who was hit by a shot aimed at Jose V. Reyes.
• Frustrated Felony — Under article 3 of the old Penal Code, a felony is frustrated when the offender performs all the acts of execution which should produce the felony but nevertheless does not produce it by reason of causes independent of his will. The Court applied this doctrine in finding that the defendant performed all acts of execution which should have produced Jose V. Reyes' death, but death did not result due to timely and adequate medical intervention.
• Mortal Wound — A wound that may, by itself alone, produce death, absent timely and adequate medical intervention, is mortal. The Court applied this doctrine in finding that the wound on Jose V. Reyes, which perforated his lung, was mortal, supporting the conviction for frustrated homicide.

• "The very fact that Jose V. Reyes had been shoved by the constabulary soldier Cirilo Dullas shows that he could have evaded the shot and thereby frustrate the defendant's intent. Therefore, the circumstance of treachery was not present in the commission of the crime." — This passage states the Court's reasoning for finding that treachery was absent, a central basis for reducing the conviction from frustrated murder to frustrated homicide.
• "A wound that may, by itself alone, produce a similar consequence, is mortal." — This passage defines the standard for a mortal wound, which the Court applied in determining that the crime was frustrated homicide.
• "Although it is true that the shot, which hit the boy German Pinili, was not aimed at him, however, it cannot be considered accidental because, it having been voluntarily aimed at Jose V. Reyes, the defendant-appellant Leovigildo David is liable for the consequences of his act, in accordance with the provisions of article 1, paragraph 3, of the old Penal Code." — This passage articulates the Court's application of the aberratio ictus doctrine to hold the defendant liable for the wound on German Pinili.

• People vs. Orifon, 57 Phil., 594 — Cited by the trial court as the basis for imposing reclusion temporal instead of cadena for the frustrated murder conviction. The Supreme Court's modification of the conviction to frustrated homicide rendered this citation less central, but it was part of the trial court's reasoning.

• Article 403, in connection with Article 3, paragraph 2, of the Penal Code — The information for frustrated murder cited these provisions. The Court ultimately found the crime to be frustrated homicide under article 404, not frustrated murder.
• Article 404 of the old Penal Code — Defines and penalizes homicide. The Court applied this provision in finding the defendant guilty of frustrated homicide.
• Article 10, No. 2, of the old Penal Code — Defines treachery. The Court applied this provision in finding that treachery was not present.
• Article 8, No. 5, of the old Penal Code — Provides for the defense of a relative. The Court held this defense was not available because the aggression had ceased.
• Article 9, No. 5, of the Penal Code — Provides the mitigating circumstance of immediate vindication of a grave offense committed against an ascendant. The Court applied this in determining the penalty for frustrated homicide.
• Article 81, rule 2, of the Penal Code — Governs the imposition of penalties in their minimum period when a mitigating circumstance is present without any aggravating circumstance. The Court applied this in determining the penalty for frustrated homicide.
• Article 1, paragraph 3, of the old Penal Code — Provides that any person voluntarily committing a felony or misdemeanor shall incur criminal liability although the wrongful act done be different from that which he intended. The Court applied this in holding the defendant liable for the wound on German Pinili.
• Article 64, paragraph 2, of the old Penal Code — Governs the imposition of penalties for complex crimes. The Court applied this in determining the penalty for the complex crime of discharge of firearms with less serious physical injuries.
• Article 408, in connection with article 418 of the old Penal Code — Defines and penalizes discharge of firearms with less serious physical injuries. The Court applied these provisions in finding the defendant guilty of this complex crime.
• Article 89, paragraph 2, of the old Penal Code — Governs the imposition of penalties in their maximum period. The Court applied this in determining the penalty for the complex crime.
• Act No. 4103, the Indeterminate Sentence Law — The Court applied this law in both cases to set the maximum and minimum terms of the indeterminate sentences.

Malcolm, Abad Santos, Butte, and Diaz, JJ., concurred.