EN BANC

[G.R. Nos. 39708 & 39709. April 16, 1934.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. LEOVIGILDO DAVID, Defendant-Appellant.

Manuel S. Banzon, Eligio Lagman, Alberto Aquino and Vicente J. Francisco for Appellant.

Solicitor-General Hilado for Appellee.

SYLLABUS

1. CRIMINAL LAW; FRUSTRATED HOMICIDE. — The defendant, in firing his revolver at the offended party, hitting him on the
upper left hand part of the body, piercing it from side to side and perforating the lung, performed all the acts of execution
which should have produced his death but did not produced it by reason of the adequate and timely intervention of medical
science, a cause entirely independent of the defendant’s will. Such proven facts constitute the crime of frustrated homicide
defined in article 404 of the old Penal Code which was in force on the date of the commission of the crime.

2. ID.; DISCHARGE OF FIREARM WITH LESS SERIOUS PHYSICAL INJURIES. — Although it is true that the shot, which
wounded the boy G. P., was not aimed at him, the same cannot be considered accidental inasmuch as it was willfully aimed
at the person against whom the attack was principally directed and, therefore, the defendant is liable for the consequences of
his acts in accordance with the provisions of article 1, paragraph 3, of the old Penal Code.

DECISION

VILLA-REAL, J.:

This case comprises two appeals taken by the defendant Leovigildo David from the judgment rendered by the Court of First
Instance of Bataan in criminal case Nos. 3310 (G. R. No. 39708) and 3296 (G. R. No. 39709), the dispositive part of which
reads as follows:jgc:chan roble s.com.p h

"Wherefore, in criminal case No. 3310, for frustrated murder, the court finds the defendant Leovigildo David guilty of
frustrated murder, without any aggravating nor mitigating circumstance and, therefore, sentences him to twelve (12) years
and one (1) day of reclusion temporal with the accessory penalties of the law, to indemnify the offended party Jose V. Reyes
in the sum of one thousand pesos, with no subsidiary imprisonment in case of insolvency, and to pay the costs.

"The penalty of reclusion has been imposed instead of cadena following the doctrine laid down in the case of People v. Orifon
(57 Phil., 594).

"In criminal case No. 3296, for discharge of firearms with less serious physical injuries, the court finds the defendant
Leovigildo David guilty of the said crime and sentences him to two (2) years, eleven (11) months and eleven (11) days of
prision correccional with the accessory penalties of the law, and to pay the costs. So ordered." cra law virt ua1aw lib ra ry

In support of his appeal, the defendant-appellant assigns the following alleged errors as committed by the trial court in its
aforesaid decision, to wit: jgc:cha nro bles.c om.ph

"1. In holding the defendant-appellant guilty of the crime of frustrated murder charged in the above entitled case No. 3310,
and consequently in sentencing him to reclusion temporal, to indemnify the offended party and to pay the costs.

"2. In holding the defendant-appellant guilty of the crime of discharge of firearm with less serious physical injuries with which
he was charged in the above entitled case No. 3296 and sentencing him, by virtue of the same, to prision correccional, with
costs.

"3. In adopting the prosecution’s theory that the defendant, with deliberate intent to kill Jose V. Reyes, fired from behind
four revolver shots at the latter.

"4. In not accepting the theory of the defense that the defendant, in firing his revolver at the offended party, did not intend
to kill the latter but he did so in defense of his father and while the offended party was facing him.

"5. In not acquitting the defendant-appellant of the charges in the two above entitled cases." cralaw virtua1aw l ibra ry

The two cases at bar arose from two informations filed by the provincial fiscal of Bataan in the justice of the peace court of
Dinalupihan, the one against Leovigildo David and Teodoro David for the frustrated murder committed on the person of Jose
V. Reyes at the time, place and in the manner described in the corresponding information, and the other against said
Leovigildo David for discharge of firearm with less serious physical injuries committed on the person of German Pinili at the
time, place and in the manner described in the corresponding information. After preliminary investigations had been duly
conducted and the cases forwarded to the Court of First Instance of Bataan, the same provincial fiscal filed the following
informations: jgc:chan roble s.com.p h

"On or about April 18, 1931, in the municipality of Dinalupihan, Province of Bataan, Philippine Islands, and within the
jurisdiction of this Court of First Instance, the above named defendant Leovigildo David willfully, illegally and criminally shot
at German Pinili with his revolver, the bullet penetrating the latter’s left side and lodging itself in the left scapula, as a result
of which said German Pinili was under medical treatment for about 25 days.

"That on or about April 18, 1931, in the barrio of Luacan, municipality of Dinalupihan, Province of Bataan, Philippine Islands,
and within the jurisdiction of this court, the said defendant, without any justifiable motive whatsoever and with deliberate
intent to kill Jose V. Reyes with treachery and evident premeditation, willfully, illegally and criminally, fired four revolver
shots at Jose V. Reyes, who then had his back toward the defendant, inflicting upon him a serious bullet wound at the back
above the left clavicle, the medical treatment of which lasted about seventy-seven (77) days, having thereby performed all
the acts of execution which should have, as a consequence, produced the crime of murder on the person of the said Jose V.
Reyes, which, nevertheless, was not consummated by reason of causes independent of the will of the said defendant. The
offended party spent about one thousand pesos for the treatment of his wound.

"The defendant is a recidivist, having been formerly convicted of the offense of less serious physical injuries in criminal case
No. 2901 of this court, by virtue of a final and executory judgment dated December 8, 1927, the penalty of which was served
by the said defendant.

"Contrary to the provisions of article 403, in connection with those of article 3, paragraph 2, of the Penal Code, and with the
aggravating circumstance of recidivism." cralaw virtua1aw l ibra ry

From the documentary as well as the oral evidence presented at the joint trial of the two cases, the following pertinent facts,
which are necessary for the resolution of the questions raised in these appeals, have been proven beyond reasonable doubt,
to wit:
chan rob1e s virtual 1aw l ibra ry

The herein defendant-appellant Leovigildo David is the son of Teodoro David, a democrata candidate for municipal president
of Dinalupihan, and the offended party Jose V. Reyes is the brother of Emilio Reyes, nacionalista candidate for member of the
provincial board of Bataan, both during the general elections of 1931.

While Emilio Reyes and Teodoro David were engaged in an argument after the former had quarreled with the aforesaid
defendant-appellant, then an election inspector, because said Emilio Reyes wanted to see the list of registered voters, Jose V.
Reyes, the complainant in criminal case No. 3310 and brother of Emilio 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 fell on his right side, face downwards,
Jose V. Reyes on top of him. The two constabulary soldiers present, who had arrived in the same car with Teodoro David a
few moments before, tried to prevent them from coming to blows but due to the presence of many people who were
witnessing the quarrel, were unable to make timely intervention and 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, there was heard a first
shot, which did not hit its mark, fired by the herein defendant Leovigildo David, later followed by another which hit the stock
of the gun carried by the 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 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,
there rang a fourth shot which hit the left axilla of the boy German Pinili, who was perched on top of the fence witnessing the
fight between Jose V. Reyes and Teodoro David. 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 the defendant Leovigildo David and placed him under arrest. In the chamber of the revolver of the defendant
Leovigildo David were found four empty cartridges. Constabulary Captain Cirilo Legaspi, who had been notified of the
incident, immediately ordered the seizure of Jose V. Reyes’ revolver which was found in a box in the latter’s house, while he,
accompanied by his brother Emilio Reyes, was being treated by the doctor.

The first question to be decided in this appeal, in connection with the criminal case for frustrated murder, is one of fact and
consists in whether or not Jose V. Reyes had his back toward Leovigildo David when the latter shot at him.

The witnesses for the prosecution testified in the affirmative, while those for the defense testified in the negative stating that
when the defendant testified in the negative stating 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. The testimony of the constabulary soldier Esteban Aninang, who stated that the violent
shove given Jose V. Reyes by his companion Cirilo Dullas caused the said 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, corroborates the testimony of
the witnesses for the defense that Jose V. Reyes was facing the defendant.
The second question of fact to be decided is whether or not Jose V. Reyes has struck Teodoro David with the butt of his
revolver, while the latter was under him, and was in the act of striking said Teodoro David for the second time when
Leovigildo David fired the shot which hit him.

On this point, the testimony of the two constabulary soldiers, who may be regarded as impartial witnesses, is unanimous in
that when Jose V. Reyes received the bullet wound, he was already standing far from Teodoro David and beside the
constabulary soldier Cirilo Dullas who had dragged him away from said Teodoro David.

From the foregoing, it may be stated 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 Reyes on the back, it was due to the fact that his position was changed upon
being shoved by the constabulary solider; and that when the said defendant Leovigildo David fired the same shot, said
complainant was already far from Teodoro David.

Now then, do the above facts, which were proven beyond reasonable doubt at the final, constitute the crime of frustrated
murder for which the defendant Leovigildo David has been convicted and sentenced?

Inasmuch as 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 (article 10, No. 2, of the old Penal Code). 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. Did the defendant Leovigildo David had the intention of killing Jose V. Reyes?

The defendant-appellant invokes the defense of a relative to exempt himself from criminal liability (article 8, No. 5, of the old
Penal Code). It has been shown that when the said defendant fired at Jose V. Reyes, the aggression had already ceased and,
therefore, the motive for defense; and in firing at him victim, the defendant’s intention could not have been only to repel the
aggression against his father but also to kill Jose V. Reyes. Therefore, the intention of the defendant Leovigildo David to kill
Jose V. Reyes is obvious.

The third question to be decided is whether or not the defendant Leovigildo David, 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 (article 3 of the old Penal Code).

The doctors, who testified as experts on whether or not the wound received by Jose V. Reyes was necessarily mortal, are not
unanimous.

Dr. Anzures testified as follows: "As to the seriousness of the wounds, I can only make approximate statements, not accurate
ones, because in order to determine the seriousness of a wound a doctor can with certainty state the seriousness of a wound
for it is determined only during the autopsy. . . ." (T. s. n., pp. 144, 145.) "On the basis of general principles, the wound was
not mortal. The general principles I am referring to relate to the normal positions of the organs and tissues." (T. s. n., p.
151.) "Judging from the position of the scars, I am of the opinion that the left lung was affected but the affected part is near
the border." "It would be perforated. The effect should be internal hemorrhage but the flow of the blood would be mortal
because the blood vessels in that region are small." "All the wounds including those caused at the base of the lungs, are not
mortal." (T. s. n., p. 152.)

It will be seen that the testimony of Dr. Anzures is purely hypothetical because he has been nothing but the scars, but
nevertheless he is of the opinion that if the lung had been perforated, it would result in an internal hemorrhage and the flow
of the blood would be mortal because the blood vessels of that part are small.

Dr. Afable, who may be said to have saved the offended party’s life, testified as follows: "Taking all the above state facts into
consideration, I arrived at the conclusion that the blood found in the lung of Mr. Reyes had its origin in the injury or wound in
the upper left part of the chest." (T. s. N., p. 6.) "I am of the opinion that had not the fluid been drained from the patient’s
lung, it could have caused his death, taking into consideration that condition in which he was then found." (T. s. n., p. 8.)
Answering a question regarding the accumulation of the fluid in the pleural region due to the congestion of the lung, he said:
"That is one of the causes of death in this case, and a continuous internal hemorrhage might cause death as well." (T. s. n.,
p. 16.)

From all the above expert testimony, it may be inferred that had it not been for the timely and adequate medical
intervention, the offended party Jose V. Reyes would have succumbed from the wound in his lung. A wound that may, by
itself alone, produce a similar consequence, is mortal.

The defendant-appellant Leovigildo David, 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, then performed all the acts of execution which should have
produced the latter’s death but did not produce it by reason of the timely and adequate intervention of medical science,
which was completely independent of his will.

The facts proven at the trial as committed by the defendant- appellant Leovigildo David constitute the crime of frustrated
homicide, defined and penalized in article 404 of the old Penal Code which was in force at the time of the commission of the
crime. The penalty prescribed by law for the said crime, if consummated, is reclusion temporal in its full extent. Inasmuch
the crime with which Leovigildo David is charged herein is merely frustrated, the said penalty should be one degree lower,
that is, prision mayor in its full extend, the duration of which is from six years and one day to twelve years. In order to
determine the penalty, the presence of the mitigating circumstance of immediate vindication of a grave offense committed
against an ascendant (article 9, No. 5, of the old Penal Code) should be taken into consideration, without any aggravating
circumstance to compensate the same, for which reason the said penalty should be imposed in its minimum period, that is,
from six years and one day to eight years of prision mayor (article 81, rule 2, of the old Penal Code).

As to the offended party German Pinili, the evidence shows beyond reasonable doubt that one of the shots fired by the
defendant Leovigildo David hit him on the left axilla, the treatment of the wound having lasted about twenty-five days.

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, which
provides that "any person voluntarily committing a felony (delito) or misdemeanor (falta) shall incur criminal liability,
although the wrongful act done be different from that which he intended." cralaw vi rtua1aw l ibra ry

Although the crime, which the defendant Leovigildo David had intended to commit against Jose V. Reyes, was homicide, the
crime committed by him against the boy German Pinili is discharge of firearms with less serious physical injuries, and the
penalty which should be imposed upon him is that which corresponds to this complex crime, in its maximum period (article
64, paragraph 2, of the old Penal Code). However, inasmuch as he is charged only with the said complex crime, the only
penalty that may be imposed upon him is that corresponding to this offense of discharge of firearms with less serious
physical injuries, defined and penalized in articles 408, in connection with article 418 of the old Penal Code, with prision
correccional in its minimum and medium periods, that is, from six months and one day to four years and two months, which
should be imposed in its maximum period, that is, from two years, eleven months and eleven days, to four years and two
months, in accordance with the rule established in article 89, paragraph 2, of the same Code. There being no modifying
circumstance to be taken into consideration, the said penalty should be imposed in its medium period, that is, from three
years, four months and eight days to three years, nine months and three days.

In both cases, Act No. 4103, otherwise known as the Indeterminate Sentence Law, is applicable to the defendant-appellant,
and consequently the maximum of the penalty, which he should suffer in case No. 3310, should be the maximum of that
what should be imposed upon him under the law, that is, eight years of prision mayor; and the minimum, a penalty
embraced within that next lower in degree to that prescribed by law for the crime of frustrated homicide, which is prision
correccional in its full extent, the duration of which is from six months and one day to six years, that is, one year and one
day of prision correccional. Therefore, the total extent of the penalty to be imposed upon the defendant for the crime of
frustrated homicide should be from one year and one day to eight years.

In criminal case No. 3296, for the complex crime of discharge of firearms with less serious physical injuries, the maximum of
the penalty, which should be imposed upon the defendant, is the maximum period of the penalty prescribed by the law, that
is, three years, nine months and three days of prision correccional, and the minimum, four months and one day of arresto
mayor, a penalty embraced within that next lower in degree which is arresto mayor in its medium and maximum periods, the
duration of which is from four months and one day to six months, and consequently the full extent of the penalty which
should be imposed upon him is from four months and one day to three years, nine months and three days.

The total amount of the expenses incurred by the offended party for medical assistance is P1,030.79.

Wherefore, the judgment appealed from is hereby modified, and the defendant Leovigildo David is declared guilty of the
crime of frustrated homicide in criminal case No. 3310 of the Court of First Instance of Bataan (G. R. No. 39709) and
sentenced to one (1) year and one (1) day of prision correccional to eight (8) years of prision mayor and to indemnify the
offended party Jose V. Reyes for damages in the sum of P1,030.79; and in criminal case No. 3296 of the said Court of First
Instance of Bataan (G. R. No. 39708), he is declared guilty of the crime of discharge of firearms with less serious physical
injuries, and sentenced to four months and one day to three years, nine months and three years, nine months and three
days, with the costs of both instances in the two cases against the appellant. So ordered. Malcolm, Abad Santos, Butte, and
Diaz, JJ., concur.
 EN BANC

[G.R. No. 6739. October 16, 1911.]

THE UNITED STATES, Plaintiff-Appellee, v. LUIS BIEN, Defendant-Appellant.

Ramon Mañalac, for Appellant.

Attorney-General Villamor, for Appellee.

SYLLABUS

1. ATTEMPTED HOMICIDE. — The act of throwing into the sea a person who does not know how to swim, is an attempted
crime, at least that of homicide, inasmuch as the perpetrator commenced the commission of the crime directly by overt acts,
and if he did not consummate it by drowning his intended victim, it was due to the opportune intervention of two witnesses
who responded to the cries for help and prevented the assailant from loosening the victim’s hold upon the gunwale of the
boat and kept him from sinking.

DECISION

TORRES, J.:

This is an appeal by the defendant from a judgment of conviction by the Hon. Judge P. M. Moir.

Between 8 and 9 o’clock on the morning of the 3d of May, 1910, the Chinaman, Go Sui Chiang, a resident of the pueblo of
Bacacay, Albay, heard that, in the maritime fishing zone comprised within the concession obtained by him, there were
several men engaged in fishing by means of a hoop net; he therefore got into a small boat, or baroto, and went to the point
indicated, and when he reached a place where there was a depth of about 3 varas of water, he was approached by Luis Bien
in his baroto. Chiang then told Bien to cease fishing and leave the place, whereupon the latter caught hold of the Chinaman
and threw him into the water. As Chiang could not swim, he made efforts to keep himself afloat until finally he succeeded in
seizing the gunwale of the boat in which he had come; and while one of the companions of the defendant told the latter to
submerge the Chinaman at a place where the water was deeper, Camilo Bas and Victorino Bas, whose attention had been
attracted to the spot by the Chinaman’s cries for help, arrived on the scene and prevented the defendant from striking the
victim of the attack with an oar, and took him to the shore. Chiang then immediately went to the lieutenant of the barrio,
before whom he presented himself with his clothes wet, and reported that the defendant had thrown him into the water with
the intention of drowning him.

Subsequently, on September 20 of the same year, the provincial fiscal filed a complaint against the accused, Luis Bien,
charging him with the crime of frustrated homicide; and the court, upon the evidence adduced, rendered judgment on the
following 8th of November and sentenced the defendant to the penalty of six years and one day of prision mayor and to the
payment of the costs, from which judgment he appealed.

From the foregoing facts, which were duly proved at the trial, it is concluded that the crime of attempted homicide against
the person of the Chinaman, Go Sui Chiang, was actually committed, for the said Chinaman was thrown into the water,
where he was exposed to asphyxia through submersion, as he did not know how to swim, and it is therefore unquestionable
that the assailant commenced the commission of the crime directly by overt acts; if the death of the party attacked was not
consummated, it was because of the opportune intervention of two witnesses who responded to the cries of the Chinaman
when he was sinking and helped him to get out of the water and to reach the land; hence, it may not be said- that the crime
was not consummated because of any voluntary and spontaneous desistance on the part of the aggressor; consequently the
crime under prosecution should be technically classified as attempted homicide, provided for and punished by article 404, in
connection with article 3, second paragraph, and article 66, of the Penal Code.

The defendant Luis Bien, is the sole perpetrator, by direct participation, and fully convicted of the homicidal attempt charged
against him; notwithstanding his denial and his plea of not guilty, the record shows decisive and conclusive proof of his guilt
in having thrown the said Ghinaman into the water, the latter being unable to swim, and of his having further attempted, by
the use of an oar, to loosen the victim’s hold upon the boat; and if the latter was finally saved, it was due to the assistance
of two eyewitnesses who responded to his call for help and took him to the land where he afterwards presented himself, with
his clothes thoroughly drenched, to the lieutenant of the barrio to report what had occurred to him; this particular was
confirmed by the said lieutenant.

The two witnesses presented by the defense testified that the Chinaman did, on the morning of the crime, appear at the
place where there were fishing nets set in the Bay of Bacacay and where they were engaged in fishing; that he inquired as to
the ownership of the net which was placed there and, on learning that it belonged to the defendant, Luis Bien, he approached
the latter in his boat and immediately got into that where the defendant was; that they did not see what afterwards
transpired; and that the Chinaman left his boat floating on the water and returned to the land, without getting wet. These
statements were belied entirely at the trial by the testimony of the two witnesses who helped the Chinaman out of the water
and took him to land, thoroughly drenched; also by the testimony of the lieutenant of the barrio before whom the said
Chinaman immediately appeared for the purpose of making complaint.

True enough, the witnesses for the prosecution did not see the defendant throw the offended Chinaman into the water, for
when they came up to him, in response to his cries, they found him already in the water and holding on to the gunwale of
the boat; but it is no less true that neither the defendant nor his witnesses could explain how and in what manner the said
Chinaman fell into the water. Therefore, because of the lack of evidence to the contrary, the charge must be admitted as
true, for it can not be believed that the Chinaman, with no reason whatever and not knowing how to swim, should have
jumped into the water. On the other hand, it was not proven that his fall was due to an accident, but, according to the
prosecution, to the criminal act of the defendant, performed with the unquestionable purpose of doing harm to the offended
party who, justly angered at the time, was reproaching the defendant because the latter had proceeded to fish in the place
where the offended party had obtained, from competent authority, a license to engage in fishing.

In the commission of the crime, there is no aggravating circumstance whatever to be taken into account, but due weight
must be given to the special circumstance of article 11 of the Penal Code, in view of the defendant being a native, the nature
of the act committed, and his scant education; therefore the penalty of prision correccional must be imposed in the minimum
degree.

For the foregoing reasons, whereby the errors attributed to the judgment appealed from are held to have been refuted, with
the declaration that the crime committed should be classified as attempted homicide, we hereby sentence the defendant to
the penalty of two years of prision correccional, the accessories of article 61 of the Penal Code, and to pay the costs of both
instances. So ordered.

Mapa, Johnson and Moreland, JJ., concur.

 SECOND DIVISION

[G.R. Nos. 339303-39305. March 17, 1934.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. FELIPE KALALO, ET AL., Defendants. FELIPE
KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, Appellants.

Meynardo M. Farol and Feliciano Gomez for Appellants.

Acting Solicitor-General Peña for Appellee.

SYLLABUS

1. CRIMINAL LAW; HOMICIDE; CIRCUMSTANCES OF "ABUSE OF SUPERIOR STRENGTH." — Under article 248 of the Revised
Penal Code, which defines murder, the circumstance of "abuse of superior strength", if present, raises homicide to the
category of murder. However, said circumstance may not properly be taken into consideration in the two cases at bar, either
as a qualifying or as a generic circumstance, if it is borne in mind that the deceased were also armed, one of them with a
bolo, and the other with a revolver. The risk was even for the contending parties and their strength was almost balanced
because there is no doubt but that, under circumstances similar to those of the present case, a revolver is as effective as, if
not more so than three bolos.

2. ID.; ID.; ID.; ATTEMPTED HOMICIDE. — The evidence shows that M. K. fired four successive shots at H. H., without
hitting him, while the latter was fleeing from the scene of the crime in order to be out of reach of the appellants and their
companions and save his own life. The fact that the said appellant, not having contented himself with firing only once, fired
said successive shots at H. H., added to the circumstance that immediately before doing so he and his co-appellants had
already killed A. H. and M. P., cousin and brother-in-law, respectively, of the former, shows that he was then bent on killing
said H. H. The acts thus committed with no modifying circumstance to be taken into consideration because none has been
established.

DECISION

DIAZ, J.:

On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo and Gregorio Ramos, were tried in
the Court of First Instance of Batangas jointly with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in criminal case
Nos. 6858, 6859 and 6860, the first two for murder, and the last for frustrated murder. Upon agreement of the parties said
three cases were tried together and after the presentation of their respective evidence, the said court acquitted Alejandro
Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows: chan rob1es v irt ual 1aw li bra ry

In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months and one day of reclusion
temporal, with the corresponding accessory penalties, and to indemnify the heirs of the said deceased Marcelino Panaligan in
the sum of P1,000, with the costs.

In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and one day of reclusion
temporal, with the corresponding accessory penalties, and to indemnify the heirs of the aforesaid victim, the deceased
Arcadio Holgado, in the sum of P1,000, with the costs.

In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply that of discharge of
firearms, not frustrated murder, the appellant Marcelo Kalalo was sentenced to one year, eight months and twenty-one days
of prision correccional and to pay the proportionate part of the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as
well as their co- accused Fausta and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges
therein.

The accused in the aforesaid three cases appealed from their respective sentences assigning six alleged errors as committed
by the trial court, all of which may be discussed jointly in view of the fact that they raise only one question, to wit: whether
or not said sentences are in accordance with law.

A careful study and examination of the evidence presented disclose the following facts: Prior to October 1, 1932, the date of
the commission of the three crimes alleged in the three informations which gave rise to the aforesaid three cases Nos. 6858,
6859 and 6860, the appellant Marcelo Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister of the
deceased Arcadio Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of land
situated in the barrio of Calumpang of the municipality of San Luis, Province of Batangas. On September 28, 1931, and again
on December 8th of the same year, Marcelo Kalalo filed a complaint against the said woman in the Court of First Instance of
Batangas. By virtue of a motion filed by his opponent Isabela Holgado, his first complaint was dismissed on December 7,
1931, and his second complaint was likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in question
during the agricultural years 1931 and 1932, but when harvest time came Isabela Holgado reaped all that had been planted
thereon.

On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased, decided to order the aforesaid
land plowed, and employed several laborers for that purpose. These men, together with Arcadio Holgado, went to the said
land early that day, but Marcelo Kalalo, who had been informed thereof, proceeded to the place accompanied by his brother
Felipe and Juan Kalalo, his brother- in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by Fausta
Abrenica and Alipia Abrenica, mother and aunt, respectively, of the first three.

The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who were plowing it by
request of Isabela and Arcadio Holgado, to stop, which they did in view of the threatening attitude of those who gave them
said order.

Shortly after nine o’clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and Hilarion Holgado arrived at
the place with food for the laborers. Before the men resumed their work, they were given their food and long after they had
finished eating, Marcelino Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having been informed of the cause
of the suspension of the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their respective
carabaos to continue the work already began. At this juncture, the appellant Marcelo Kalalo approached Arcadio, while the
appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn, approached Marcelino Panaligan. At a remark from Fausta
Abrenica, mother of the Kalalos, about as follows, "what is detaining you?" they all simultaneously struck with their bolos,
the appellant Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos
slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and described in the medical certificates Exhibits I
and H. Arcadio Holgado and Marcelino Panaligan died instantly from the wounds received by them in the presence of Isabela
Holgado and Maria Gutierrez, not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away.

Arcadio Holgado’s body bore the following six wounds, to wit: jgc:chan rob les.com. ph

"1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bonee completely and, the radius partially.

"2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and 5 cm. wide extending to the
bone and cutting the deltoid muscle across.

"3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal space measuring about 8 cm.
long and 2 cm. wide.

"4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space and injuring the lung,
diaphragm, stomach and large intestine.

"5. A small superficial cut wound about 2 cm. long and ½ cm. wide situated on the inner side of the right scapula.

"6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to the right of the spinal column."
(Exhibit I.)

Marcelino Panaligan’s body, in turn, bore the following fourteen wound, to wit: jgc:chanrobles. com.ph

"1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm. long 3 cm. wide cutting the
omentum and injuring the lower portion of the stomach and a portion of the transverse colon, but no actual perforation of
either one of the two organs.

"2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a portion of scalp as a flap.

"3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide.

"4. A cut wound about 12 cm. long across the face just below the eyes extending from one cheek bone to the other,
perforating the left antrum and cutting the nasal bone.

"5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of skin and muscle which
measures about 12 cm. long and 6 cm. wide.

"6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide cutting the bones of the hand.

"7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left axilla.

"8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula.

"9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the scapula cutting the muscles of the
shoulder.

"10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the inner border of the right scapula.
11. A wound on the back of the head, oval in shape, about 10 cm long. and 5 cm. wide from which a flap of scalp was
removed.

"12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep cutting the vertebral column
together with the great arteries and veins on the left side of the neck.

"13. A wound about 15 cm. long and 4 cm. wide on the left side of the back.

"14. A small wound on the left thumb from which a portion of the bone and other tissues were removed." (Exhibit H.) .

The above detailed description of the wounds just enumerated discloses — and there is nothing of record to contradict it —
that all of them were caused by a sharp instrument or instruments.

After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo Kalalo took from its
holster on the belt of Panaligan’s body, the revolver which the deceased carried, and fired four shots at Hilarion Holgado who
was then fleeing from the scene in order to save his own life.

The appellants attempted to prove that the fight, which resulted in the death of the two deceased, was provoked by
Marcelino Panaligan who fired shot at Marcelo Kalalo upon seeing the latter’s determination to prevent Arcadio Holgado and
his men from plowing the land in question. No such firing, however, can be taken into consideration, in the first place,
because of the existence of competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness,
which corroborates that of Isabela Holgado in all its details, showing that the said deceased was already lying prostrate and
lifeless on the ground when the appellant Marcelo Kalalo approached him to take his revolver for the purpose of using it, as
he in fact did, against Hilarion Holgado; in the second place, because the assault and aggression of the said appellant were
not directed against said Marcelino Panaligan but exclusively against Arcadio Holgado, the evidence of record on this point
being overwhelming, and if his claim were true, he naturally should have directed his attack at the person who openly made
an attempt against his life; in the third place, because the evidence shows without question that Panaligan was an expert
shot with a revolver, and among the eight wounds that the appellant Marcelo Kalalo received (Exhibit 3), not one appears to
have been caused by bullet, and similarly, none of the other appellants received any wound that might, in any way, suggest
the possibility of having been caused by bullet; and finally, because the fact that he and his co-appellants, together with
those who had been charged jointly with them, had gone to the place of the crime armed with bolos, determined at any cost
to prevent the Holgados from plowing the land in dispute, cannot but disclose not only their determination to resort to
violence or something worse, but that they did not need any provocation in order to carry out their intent.

They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the deceased Marcelino Panaligan
and Arcadio Holgado and inflicted upon them the wounds which resulted in their death, said appellant testifying that he was
compelled to do so in defense of his own life because both of the deceased attacked him first, the former with a revolver,
firing three shots at him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the appellants
cannot give credit. One man alone could not have inflicted on the two deceased their multiple wounds, particularly when it is
borne in mind that one of them was better armed, because he carried a revolver, and that he was furthermore an expert
shot and scarcely two arm-lengths from Kalalo, according to the latter’s own testimony. The two witnesses for the defense,
who witnessed the crime very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased Arcadio
Holgado and that the other three appellants went after the other deceased. It is true that Arcadio Holgado also used his bolo
to defend himself from Marcelo Kalalo’s aggression but it is also no less true that five of the principal wounds of the other
deceased Marcelino Panaligan were inflicted on him from behind, inasmuch as according to Exhibit H they were all found at
the back of the head, on the neck and on his back. Neither is it less true that all the wounds of the appellant Marcelo Kalalo
were inflicted on him from the front, which fact shows that it was not he alone who inflicted the wounds on the two deceased
because had he been alone Panaligan would not have exposed his back to be thus attacked from behind, inasmuch as he was
armed with a revolver, which circumstance undoubtedly allowed him to keep at a distance from Kalalo; and in connection
with the testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore that the three appellants
Felipe Kalalo and Gregorio Ramos attacked said Panaligan with their respective bolos at the same time that Marcelo Kalalo
attacked Arcadio Olgado, in order that all might act simultaneously in conformity with the common intent of the four and of
their coaccused to eliminate through violence and at any cost, without much risk to them, all those who wanted to plow the
land which was the cause of the dispute between the two parties. And it is not strange that the three appellants, who
inflicted the wounds upon Marcelino Panaligan, should act as they did, because they knew that the latter carried a revolver in
bolster on his belt.

Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo’s allegation that he acted in self-
defense is absolutely unfounded on the ground that, were it true that the deceased Marcelino Panaligan succeeded in using
his revolver, he would have wounded if not the said appellant, at least the other appellants.

The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and Felipe Kalalo and Gregorio
Ramos that they proceeded to the scene of the crime completely unarmed, with the exception that one of them had a brush
in his hand and the other a plane, after Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and
improbable under the circumstances, knowing, as in fact that then knew, that their brother Marcelo Kalalo had been attacked
by armed men. This court cannot help but agree with the decision of the lower court where it states: jgc:chan roble s.com.p h

"It is improbable that after having been informed that their brother was engaged in a fight, they went to the scene of the
crime, one merely armed with a plane and the other with a brush. It is improbable that Felipe Kalalo also went to that place
simply to follow Juan Kalalo and Gregorio Ramos upon seeing them run unarmed in that direction. These improbabilities of
the defenses of the accused, in the face of the positive and clear testimony of the eyewitness pointing to the said accused as
the aggressors of the deceased Marcelino Panaligan and Arcadio Holgado, cannot, of course, prevail against nor direct from
the weight of the evidence of the prosecution, particularly taking into consideration the numerous wounds of each of the
deceased and the positions thereof, which show that the said deceased were attacked by several persons and that those
several persons were the defendants. Furthermore, the established fact that after the commission of the crime the said
defendants had been in hiding in order to avoid arrest, is corroborative evidence of their guilt." c ralaw virtua1aw l ibra ry

It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos were not arrested
until several days, because they had been hiding or, at least, absenting themselves from their homes.

That the four appellants should all be held liable for the death of the two deceased leaves no room for doubt. All of them, in
going to the land where the killing took place, were actuated by the same motive which was to get rid of all those who might
insist on plowing the land which they believed belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable
from the circumstance that all of them went there fully armed and that they simultaneously acted after they had been
instigated by their mother with the words hereinbefore stated, to wit: "What is detaining you?"

The question now to be decided is whether the appellants are guilty of murder or of simple homicide in each of cases G.R.
No. 39303 and G.R. No. 39304. The Attorney-General maintain that they are guilty of murder in view of the presence of the
qualifying circumstance of abuse of superior strength particularly refer. The trial court was of the opinion that they are guilty
of simple homicide but with the aggravating circumstance of abuse of superior strength.

It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance of "abuse of superior
strength", if proven to have present, raises homicide to the category of murder; but this court is of the opinion that said
circumstance may not properly be taken into consideration in the two cases at bar, either as a qualifying or as a generic
circumstance, if it is borne in mind that the deceased were also armed, one of them with a bolo, and the other with a
revolver. The risk was even for the contending parties and their strength was almost balanced because there is no doubt but
that, under circumstances similar to those of the present case, a revolver is as effective as, if not more than so than three
bolos. For this reason, this court is of the opinion that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. 39303
and 39304, respectively), merely constitute two homicides, with no modifying circumstance to be taken into consideration
because none has been proved.

As to the case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive shots at Hilarion
Holgado while the latter was fleeing from the scene of the crime in order to be out of reach of the appellants and their
companions and save his own life. The fact that the said appellant, not having contented himself with firing only once, fired
said successive shots at Hilarion Holgado, added to the circumstances that immediately before doing so he and his co-
appellants had already killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the
former, shows that he was then bent on killing said Hilarion Holgado. He performed everything necessary on his part to
commit the crime that he determined to commit but he failed by reason of causes independent of his will, either because of
his poor aim or because his intended victim succeeded in dodging the shots, none of which found its mark. The acts thus
committed by the said appellant Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be taken
into consideration, because none has been established.

Wherefore, the three appealed sentences are hereby modified as follows: chan rob1e s virtual 1aw l ib rary

In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the appellants is homicide and they are
hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify
the heirs of Marcelino Panaligan in the sum of P1,000 and to pay the proportionate part of the costs of the proceedings of
both instances; and by virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is
hereby fixed at nine years;

In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the appellants is homicide, and
they are hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally
indemnify the heirs of Arcadio Holgado in the sum of P1,000 and to pay the proportionate part of the costs of both instances;
and in conformity with the provisions of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed
upon them is hereby fixed at nine years;

In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant Marcelo Kalalo is attempted
homicide, and he is hereby sentenced to two years, four months and one day of prision correccional, it being understood that
by virtue of the provisions of said Act No. 4103, the minimum of this penalty is six months, and he is furthermore sentenced
to pay the costs of the appeal in this case.

In all other respects, the appealed sentences in the said three cases are hereby affirmed without prejudice to crediting the
appellants therein with one-half of the time during which they undergone preventive imprisonment, in accordance with article
29 of the Revised Penal Code. So ordered.

Street, Abad Santos, Hull and Butte, JJ., concur.