G.R. No.
33463 December 18, 1930
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
BASILIO BORINAGA, defendant-appellant.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.
MALCOM, 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 for 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, notwithstanding that only about two-thirds of the
fish corral had been finished. As was to be expected, Mooney refused 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, 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 the 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 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
the 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 embedded 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 convicted as charged, by Judge Ortiz, who sentenced him to fourteen
years, eight months, and one day of imprisonment, reclusion temporal, with the accessory penalties
and the costs.
The homicidal intent of the accused was plainly evidenced. The attendant circumstances
conclusively establish 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 jurisprudence, 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 that accused to establish a lesser crime than that
of frustrated murder, for the facts disclose a wanton disregard of the sanctity of human life fully
meriting the penalty imposed in the trial court.
Based on 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.
