[ G.R. No. 9801. August 20, 1914 ] 27 Phil. 512
[ G.R. No. 9801. August 20, 1914 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JESSE T. WORTHINGTON, DEFENDANT AND APPELLANT. D E C I S I O N
JOHNSON, J.:
This defendant was charged with the crime of frustrated homicide. The complaint alleged:
“That on or about the 5th day of February, 1914, in the city of Manila, Philippine Islands, and in the night time, the said Jesse P. Worthington being then and there a duly appointed, qualified, and acting police officer of the said city of Manila, did then and there, willfully, unlawfully, and feloniously, with the intent to kill and armed With a deadly weapon, to wit, a revolver, which then and there was loaded with cartridges, gunpowder, and leaden bullets, shoot off and discharge at and upon Enrique Ayerdi, Lino Eguia de Dios, Jose Garcia Margenant, Manuel Llorca, W. H. Williams, and Leon Hernandez, then and there occupying an automobile, thereby, and by thus striking one of the occupants of the said automobile, to wit, Leon Hernandez, with one of the said leaden bullets, inflicting on the left forearm a wound; the said Jesse P. Worthington performing all of the acts of execution which should have produced the1 crime of homicide as their consequences, but which, nevertheless, did not constitute it, by reason of causes independent of the will of the said Jesse P. Worthington. Contrary to law.”
After hearing the evidence, the Honorable Richard Campbell, judge, found the defendant guilty of the crime charged in the complaint and sentenced him to be imprisoned for a period of six years and one day, to suffer the accessory penalties provided for by law, and to pay the costs. From that sentence the defendant appealed to this court. In this court the defendant made the following assignments of error:
“First. The court erred in holding that the evidence was sufficient to prove the defendant guilty of the crime of frustrated homicide. Second. The court erred in finding the defendant guilty of the crime of frustrated homicide. Third. The court erred in failing to find that the defendant was exempt from criminal liability by reason of the fact that he acted in defense of his person.”
Said assignments of error present a question of fact only and may therefore be discussed together.
From an examination of the evidence brought to this court we find that the following facts are proved beyond a reasonable doubt—in fact, except for a few contradictions, they are practically admitted by the witnesses both for the plaintiff and the defense:
First. That the defendant, Jesse P. Worthington, on the night of the 5th day of February, 1914, accompanied by two Filipino women, whose names were Teoflsta Beray and Felisa Marabibe, went in a calesa to a dance hall located in the barrio of Maypajo, a suburb of the city of Manila, with the admitted purpose of enjoying a few dances, and remained there until about 10.30 p. m.
Second. That the defendant, Jesse P. Worthington, was on the day in question a policeman, duly appointed and acting in the city of Manila.
Third. That the defendant and the said Teofista Beray, upon arriving at the dance hall entered and took some part in the dancing that was going on in said hall.
Fourth. That later, on the same evening, and before the defendant and his two Filipino women companions left the dance hall, W. H. Williams, a clerk in the employ of the Executive Bureau of the Insular Government, Enrique Ayerdi, Manuel Llorca, Lino Eguia, Jose Garcia, and Leon Hernandez, the injured person, arrived at the dance hall in an automobile. The said Leon Hernandez was acting as chauffeur of the automobile.
Fifth. That after said automobile party arrived at the dance hall, all of them, except perhaps Lino Eguia, entered the dance hall and one or more of them engaged in dancing with the said Teofista Beray.
Sixth. That after the said Teofista Beray had been engaged in dancing for some time, she told the defendant that she wanted to go home. During the time the defendant had remained in the dance hall he evidently had a talk with a sailor, and the sailor suggested that they should hire an automobile, evidently for the purpose of taking the two girls for a ride. The defendant went outside the dance hall and spoke to one of the automobile party who had remained in the automobile, concerning the hiring of it, when he was informed that the automobile was not for hire.
Seventh. Later and almost immediately after the attempt of the defendant to hire the automobile, he and his two women companions got into their calesa and started on their return to Manila. Almost immediately Williams and his companions also started for Manila in the automobile, following the calesa occupied by the defendant and his companions.
Eighth, The defendant and his companions had gone but a short distance when he ordered the calesa to stop. Evidently the said Teofista Beray had told him something concerning a remark or remarks made by one of the occupants of the automobile concerning him. The defendant got out of the calesa and went to the automobile and after some conversation, the exact import of which does not appear of record, offered, as he says, to settle their differences there; in other words, it appears that the defendant offered to fight the occupants of the automobile.
Ninth. The defendant again returned to his calesa and started on his way in the direction of Manila, being followed by the automobile.
Tenth. At some point between the starting place at Maypajo and the city of Manila, the defendant, as he admits, fired four shots with a revolver, which he was then carrying, in the direction of the automobile. He asserts that he fired all of the shots but one at the front tires of the automobile and that the fourth shot was fired at the engine of said automobile. The proof shows that one of the shots entered the arm of the chauffeur, Leon Hernandez, and caused a serious injury. The defendant asserts that he fired the shots because the people in the automobile were shouting at him and making threats against him. The defendant asserts that he believed that the people in the automobile intended to run down the calesa. The defendant also asserts that the occupants of the automobile threw stones at the calesa, one of which struck him in the back of the head.
Eleventh. When the calesa occupied by the defendant and his two companions arrived in the city of Manila, at the corner of Calles Solis and Juan Luna, the defendant called to a Filipino policeman, by the name of Pablo Reyes, and asked him to take the number of the automobile that was following behind. At that point the defendant got out of the calesa and was talking to the policeman Reyes, when the automobile came up. When the automobile arrived at the point where the defendant was standing, Williams got out of the automobile and entered into a conversation with the defendant, resulting in a quarrel and threats one against another. During the quarrel Williams, as he says, believing that the defendant made a move to pull from his pocket a revolver, struck him a blow in the face and the defendant, as a result of said blow, fell to the ground. When the defendant fell to the ground as a result of the blow, Williams took from him his revolver and its holster, and took them to the police station and turned them over to the desk sergeant.
Twelfth. As was said above, the defendant claims that while he was riding in the calesa in front of the automobile, some one of the occupants of the automobile threw a stone at him and wounded him in the back of the head. It is admitted that the defendant on the night in question received a wound in the back of his head. We are of the opinion, i however, that the wound was caused at the time he fell to the ground as a result of the blow inflicted by Williams.
Thirteenth. There is a labored attempt on the part of the defense to show that the occupants of the automobile were trouble makers and were attempting not only to annoy but to do him harm; that the occupants of the automobile were the aggressors; that they were attempting to pick a quarrel with the defendant. In our opinion that contention’ is unsupported by the proof; at least, there seems to be but little ground upon which such a charge can be based.
Fourteenth. The defendant admits that he fired the four shots and that one of them entered the arm of Leon Hernandez. He denies, however, that the shots were fired with the intention of doing any one harm. The defendant himself testified:
“I fired one shot. The two lights were shining in my face; I could see nothing but the lights. I just had to guess what I was shooting at. At that time they were close by me—a distance not very far—and they were still shouting, some in Spanish and some in English. I could not understand all they said because I don’t understand Spanish very well. I waited possibly a minute and a half to give them an opportunity to stop, and as they did not but kept on coming, I fired again. After the third shot I waited probably thirty seconds, and then they slowed up. The first two shots I fired at the tires and the others I shot at the engine; I could guess where it was and I shot at it. I did not like to shoot into a load of men I had no quarrel with to hit ’em. When I fired at the machine the horse was jumping—scared. I fired between the lights for the engine after I couldn’t hit the tires.”
Fifteenth. There is nothing in the record to justify the contention that the occupants of the automobile, and especially the injured person, Leon Hernandez, attempted in any way, by threats, intimidation, or otherwise, to cause the defendant any bodily harm.
Sixteenth. The record does not show very clearly the extent of the injury received by the said Leon Hernandez. The injury was received on the night of the 5th of February., The record does not disclose on what day the trial was had. The decision of the court was rendered on the 21st day of February. At the time of the trial Leon Hernandez testified that he was still unable to use his arm.
From an examination of the entire record, considering the admitted and disputed facts, we have arrived at the conclusion that the defendant, at the time of the shooting in question, did not intend to kill any of the occupants of the automobile. That he fired at the automobile and in the direction of the occupants of the same is undisputed. That one of the bullets entered the arm of Leon Hernandez is not denied. We have held in numerous cases where the facts were analogous to the facts in the present case, that when it appears that the accused discharged a firearm at another, but under circumstances which clearly indicated that an intent to kill was absent, his offense falls within the provisions of article 408 of the Penal Code. (U. S. vs. Sabio, 2 Phil. Rep., 485; U, S. vs. Pineda, 4 Phil. Rep., 223; U. S. vs. Addison, 10 Phil. Rep., 230; U. S. vs. Kosel, 10 Phil. Rep., 409; U. S.vs. Samonte, 10 Phil. Rep., 643; U. S. vs. Marasigan, 11 Phil. Rep., 27.)
In the foregoing decisions this court followed the interpretation given article 408 by the supreme court of Spain. (3 Viada, 47; decisions of the supreme court of Spain, February 12, 1872; March 7, 1872; February 26, 1874; December 19, 1882; January 30,1884.)
The defendant was charged with the crime of frustrated homicide as described in the complaint set out above. He was found guilty and sentenced to be imprisoned for six years and a day for that crime. In our judgment the sentence of the lower court should be revoked and the defendant should be sentenced for the illegal discharge of a firearm, in accordance with the provisions of article 408 of the Penal Code.
It is, therefore, hereby ordered and decreed that the defendant be sentenced to be imprisoned for a period of two years eleven months and eleven days of prision correccional, and to pay the costs. So ordered.
Arellano, C. J., Torres, Carson, and Araullo, JJ., concur.