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[No. 33463. December 18, 1930]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff

and appellee, vs. BASILIO BORINAGA, defendant and
appellant.

1. CRIMINAL LAW; FRUSTRATED MURDER OR

ATTEMPTED MURDBR.—While M one evening was
seated on a chair in a provincial store, with his back
towards the window, B from the window struck with a
knife at M, but the knife lodged in the back of the chair on
which M was seated, causing M to fall from the chair, but
not injuring him. The attendant circumstances established
that murder was in the heart and mind of the aggressor.
Held: That within the meaning of article 3 of the Penal
Code, the crime committed was frustrated murder and not
attempted murder.

2. ID.; ID.—The author performed all the acts of execution.

Nothing remained to be done to accomplish the work of
the assailant completely. The cause resulting in the
failure of the attack arose by reason of forces independent
of the will of the perpetrator. The assailant voluntarily
desisted from further acts. What is known as the
subjective phase of the criminal act was passed.

APPEAL from a judgment of the Court of First Instance of

Leyte. Ortiz, J.
The facts are stated in the opinion of the court.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.

MALCOLM, J.:

Sometime prior to March 4, 1929, an American by the

name of Harry H. Mooney, a resident of the municipality of
Calubian, Leyte, contracted with one Juan Lawaan f or the
construction of a fish corral. Basilio Borinaga was
associated with Lawaan in the construction of the corral.
On the morning of March 4, 1929, Lawaan, "with some of
his men, went to Mooney's shop and tried to collect from
him the whole amount fixed by the contract,

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notwithstanding that only about two-thirds of the fish

corral
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484 PHILIPPINE REPORTS ANNOTATED

People vs. Borinaga

had been finished. As was to be expected, Mooney ref used

to pay the price agreed upon at that time. On hearing this
reply of Mooney, Lawaan warned him that if he did not
pay, something would happen to him, to which Mooney
answered that if they wanted to do something to him they
should wait until after breakfast, inasmuch as he had not
yet taken his breakfast. Lawaan then left with his men,
and Mooney, after partaking of his morning meal, returned
to his shop.
On the evening of the same day, Mooney was in the
store of a neighbor by the name of Perpetua Najarro. He
had taken a seat on a chair in front of Perpetua, his back
being to the window. Mooney had not been there long when
Perpetua saw Basilio Borinaga f rom the window strike
with a knife at Mooney, but fortunately for the latter, the
knife lodged in the back of the chair on which Mooney was
seated,. Mooney fell from, the chair as a result of the force
of the blow, but was not injured. Borinaga ran away
towards the market place. Before this occurred, it should be
stated that Borinaga had been heard to tell a companion: "I
will stab this Mooney, who is an American brute." After the
attack, Borinaga was also heard to say that he did not hit
the back of Mooney but only the back of the chair. But
Borinaga was persistent in his endeavor, and hardly ten
minutes after the first attack, he returned, knife in hand,
to renew it, but was unable to do so because Mooney and
Perpetua were then on their guard and turned a flashlight
on Borinaga, frightening: him away. Again that same
night, Borinaga was overheard stating that he had missed
his mark and was unable to give another blow because of
the flashlight. The point of the knife was; subsequently, on
examination of the chair, found imbedded in it.
The foregoing occurrences gave rise to the prosecution of
Basilio Borinaga in the Court of First Instance of Leyte for
the crime of frustrated murder. The defense was alibi,
which was not given credence. The accused was
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VOL. 55, DECEMBER 18, 1930 435

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People vs. Borinaga,

convicted as charged, by Judge Ortiz, who sentenced him to

fourteen years, eight months, and one day of imprisonment,
reclusión temporal, with the accessory penalties and the
costs.
The homicidal intent of the accused was plainly
evidenced. The attendant circumstances conclusively
estabish that murder was in the heart and mind of the
accused. More than mere menaces took place. The
aggressor stated his purpose, which was to kill, and
apologized to his friends for not accomplishing that
purpose. A deadly weapon was used. The blow was directed
treacherously toward vital organs of the victim. The means
used were entirely suitable for accomplishment, The crime
should, therefore, be qualified as murder because of the
presence of the circumstance of treachery.
The only debatable question, not referred to in the
briefs, but which must be decided in order to dispose of the
appeal, is: Do the facts constitute frustrated murder or
attempted murder. within the meaning of article 3 of the
Penal Code? Although no exact counterpart to the facts at
bar has been found either in Spanish or Philippine
juri&prudence, a majority of the court answer the question
propounded by stating that the crime committed was that
of frustrated murder. This is true notwithstanding the
admitted fact that Mooney was not injured in the least.
The essential condition of a frustrated crime, that the
author perform all the acts of execution, attended the
attack. Nothing remained to be done to accomplish the
work of the assailant completely. The cause resulting in the
failure of the attack arose by reason of forces independent
of the will of the perpetrator. The assailant voluntarily
desisted from further acts. What is known as the subjective
phase of the criminal act was passed. (U. S. vs. Eduave
[1917], 36 Phil., 209; People vs. Mabugat [1926], 51 PhiL,
967.)
No superfine distinctions need be drawn in favor of the
accused to establish a lesser crime than that of frus-
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People vs. Borinaga

trated murder, for the facts disclose a wanton disregard of

the sanctity of human life fully meriting the penalty
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imposed in the trial court.

Based on the foregoing considerations, the judgment
appealed from will be affirmed, with the costs of this
instance against the appellant.

Avanceña, C. J., Villamor, Ostrand, Johns, and

Romualdez, JJ., concur,

VILLA-REAL, J., with whom concur JOHNSON and

STREET, J., dissenting:

We dissent from the opinion of the majority in so far as

it finds the defendant-appellant guilty of the crime of
frustrated murder instead of that of an attempt to commit
murder.

Article 3 of the Penal Code provides as follows:

"ART. 3. Frustrated felonies and attempts to commit felonies are

punishable, as well as those which are consummated.
"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.
"There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony by
reason of some cause or accident other than his own voluntary
desistance."

The pertinent facts as found by the court below and by this

court are the following:
On the evening of the same day, Mooney was in the
store of a neighbor by the name of Perpetua Najarro. He
had taken a seat on a chair in front of Perpetua, his back
being to the window. Mooney had not been there long when
Perpetua saw Basilio Borinaga from the window strike
with a knife at Mooney, but fortunately for the

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People vs. Borinaga,

latter, the knife lodged in the back of the chair on which

Mooney was seated. Mooney fell from the chair as a result
of the force of the blow, but was not injured. Borinaga ran
away towards the market place. Before this occurred, it
should be stated that Borinaga had been heard to tell a

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companion: "I will stab this Mooney, who is an American

brute." After the attack, Borinaga was also heard to say
that he did not hit the back of Mooney but only the back of
the chair. But Borinaga was persistent in his endeavor, and
hardly ten minutes after the first attack, he returned, knife
in hand, to renew it, but was unable to do so because
Mooney and Perpetua were then on their guard and turned
a flashlight on Borinaga, frightening him away. Again that
same night, Borinaga was overheard stating that he had
missed his mark and was unable to give another blow
because of the flashlight. The point of the knif6 was
subsequently, on examination of the chair, found imbedded
in it.
Since the facts constituting frustrated felony and those
constituting an attempt to commit felony are integral parts
of those constituting consummated felony, it becomes
important to know what facts would have been necessary
in order that the case at bar might have been a
consummated murder, so that we may determine Whether
the facts proved during the trial constitute frustrated
murder or simply an attempt to commit murder.
In order that the crime committed by the defendant-
appellant might have been a consummated murder it
would have been necessary for him to have inflicted a
deadly wound upon a vital spot of the body of Mooney, with
treachery, as a result of which he should have died.
Since according to the definition given by the Code a
frustrated felony is committed "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

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People vs. Borinaga,

the perpetrator" let us examine the facts of record to find

out whether the said defendant-appellant has performed
all the acts of execution which should produce the murder
of Mooney as a consequence. The prisoner at bar, intending
to kill Mooney, approached him stealthily from behind and
made a movement with his right hand to strike him in the
back with a deadly knife, but the blow, instead of reaching
the spot intended, landed on the frame of the back of the
chair on which Mooney was sitting at the time and did not
cause the slightest physical injury on the latter. The acts of
execution performed by the defendant-appellant did not
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produce the death of Mooney as a consequence nor could

they have produced it because the blow did not reach his
body; therefore the culprit did not perform all the acts of
execution which should produce the felony. There was
lacking the infliction of the deadly wound upon a vital spot
of the body of Mooney.
It is true that the frame of the back of the chair stood
between the deadly knife and the back of Mooney; but what
it prevented was the wounding of said Mooney in the back
and not his death, had he been wounded. It is the
preventing of death by causes independent of the will of the
perpetrator, after all the acts of execution which should
produce the felony as a consequence had been performed,
that constitutes frustrated felony, according to the law, and
not the preventing of the performance of all the acts of
execution which constitute the f elony, as in the present
case. The interference of the frame of the back 6t the chair
which prevented the defendant-appellant from wounding
Mooney in the back with a deadly knife, made his acts
constitute an attempt to commit murder; for he had
commenced the commission of the felony directly by vert
acts, and did not perform, all the acts of execution which
constitute the felony by reason of a cause or accident other
than his own voluntary desistance.

439

VOL. 55, DECEMBER 19, 1930 439

Tan Senguan & Co. vs. Collector of Internal Revenue

The foregoing considerations force us to the conclusion that

the facts alleged in the information and proved during the
trial are not sufficient to constitute the crime of frustrated
murder, but simply the crime of an attempt to commit
murder.
Judgment affirmed.

____________

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