36 Phil.

209

MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly
weapon was used. The blow was directed toward a vital part of the body.
The aggressor stated his purpose to kill, thought he had killed, and threw
the body into the bushes. When he gave himself up he declared that he had
killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted.
The accused rushed upon the girl suddenly and struck her from behind, in
part at least, with a sharp bolo, producing a frightful gash in the lumbar
region and slightly to the side eight and one-half inches long and two inches
deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for
the reason that she had theretofore charged him criminally before the local
officials with having raped her and with being the cause of her pregnancy.
He was her mother's querido and was living with her as such at the time the
crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question is
the precise crime of which he should be convicted. It is contended, in the
first place, that, if death had resulted, the crime would not have been
murder but homicide, and in the second place, that is is attempted and not
frustrated homicide.
As to the first contention, we are of the opinion that the crime committed
would have been murder if the girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a sudden attack upon his
victim from the rear, or partly from the rear, and dealing her a terrible blow
in the back and side with his bolo. Such an attack necessitates the finding
that it was made treacherously' and that being so the crime would have
been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was
frustrated and not attempted murder. Article 3 of the Penal Code defines a
frustrated felony as follows:
"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."
An attempted felony is defined thus:
"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 be reason of some cause or accident other than
his own voluntarily desistance."
The crime cannot be attempted murder. This is clear from the fact that the
defendant performed all of the acts which should have resulted in the
consummated crime and voluntarily desisted from further acts. A crime
cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by
some outside cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which intervenes
and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is
his intention to perform. If he has performed all of the acts which should
result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element which
distinguishes attempted form frustrated felony is that, in the latter, there is
no intervention of a foreign or extraneous cause or agency between the
beginning of the commission of the crime and the moment when all of the
acts have been performed which should result int he consummated crime;
while in the former there is such intervention and the offender does not
arrive at the point of performing all of the acts which should produce the
crime. He is stopped short of that point by some cause apart from his
voluntary desistance.
To put it in another way, in case of an 'attempt the offender never passes
the subjective phase of he offense. He is interrupted and compelled to
desist by the intervention of outside causes before the subjective phase is
passed.
On the other had, in case of frustrated crimes the subjective phase is
completely passed. Subjectively the crime is complete. Nothing interrupted
the offender while he was passing through the subjective phase. The crime,
however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to
commit the crime. If the crime did not result as a consequence it was due to
something beyond his control.
The subjective phase is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and
the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of the
offender over which he has control that period between the point where
he begins and the point where the point where he voluntarily desists.
If between these two points the offender is stopped by reason of any cause
outside of his own voluntary desistance, the subjective phase has not been
passed and it is an attempt. If he is not so stopped but continues until he
performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there
being neither aggravating nor mitigating circumstance. As so modified, the
judgment is affirmed with costs. So ordered.
Torres and Araullo, JJ., concur.
Carson and Trent, JJ., concur in the result.