PP vs. Pacubas

G. R. No.
44727, August 28, 1937
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. PEDRO PACUBAS
AND FERNANDO PACUBAS, DEFENDANTS AND APPELLEES.
The information filed in this case is as follows:
"That on or about the 21st day of March, 1935, in the municipality of

Vigan, Province of Ilocos Sur, Philippine Islands, the said accused
Pedro Pacubas and Fernando Pacubas, conspiring together and helping
each other, did then and there willfully, unlawfully and feloniously
and with intent to kill Pedro Reyes, perform all the acts of execution
which should have produced the latter's death as a consequence, assault
and attack him, and if the acts in question failed to produce the death
of said Pedro Reyes except only four wounds in different parts of the
body, it has been due to causes independent of the will of the said
accused. Said wounds required medical attendance for more than ten but
less than thirty days and prevented said Pedro Reyes from engaging in
his customary work for the same period of time."
A demurrer to the foregoing information was filed on the ground that it

charges more than one offense. The court sustained the demurrer and ordered
the fiscal to amend the information. As the fiscal had refused to make the
amendment, the court dismissed the case with costs de oficio. From this
resolution the fiscal appealed.
The appealed resolution is erroneous. It is claimed that the information

charges two offenses, to wit: frustrated homicide and physical injuries
which required medical attendance for more than ten but less than thirty
days and prevented the offended party from engaging in his customary work
for the same period of time. Although the information really involves the
said two offenses, it cannot be assailed for alleged duplicity because the
two offenses in question constitute only one offense. To prove that there
is but one offense charged, that of frustrated homicide, suffice It to take
into consideration that if all the facts alleged in the information were
established the accused could only be convicted of frustrated homicide,
notwithstanding the fact that this offense includes that of physical
injuries as one of its essential elements in this case, inasmuch as they
simply constitute a lighter offense, physical injuries, embraced in a
graver one, frustrated homicide.
It is contended that if the intent to kill is not established, the accused

could be convicted of the crime of physical injuries. However, this
circumstance does not show that there is duplicity in the infomation
because in such case the accused could neither be convicted of the crime of
frustrated homicide. Such argument, however, deviates the question from its
own course. By means of the demurrer, the case is submitted by assuming
that all the facts alleged are to be proven, not upon the contrary
hypothesis that they are not to be proven. For this same reason this court
finds no merit in the consideration made in the appealed decision in the
sense that the accused does not know which of the two crimes he is charged
with, because it is clear that he is charged with frustrated homicide and
not with another crime. It must be presumed that the Government expects to
prove the facts constituting its charges and, consequently, it must be
understood that it charges the crime resulting from such facts.
The real question, in the opinion of this court, lies in determining

whether or not the facts alleged in the information are essential in the
crime of frustrated homicide charged. If they are, they may and must be
alleged, notwithstanding the fact that some of them may also constitute
another less serious offense, because otherwise it would be impossible to
prosecute a more serious offense which embraces the less serious one.
An examination of the facts alleged in the information shows that they are
essential in the crime of frustrated homicide charged. This crime is
committed when the offender, with the intention to kill, performs all the
acts of execution which would bring about the realization of such intention
as a consequence but which, nevertheless, is not realized by reason of
causes independent of the will of the perpetrator. Inasmuch as the acts
tending to the realization of the intention to kill in this case, consisted
in the infliction of physical injuries on the offended party by the
accused, without the allegation of this fact there would be no crkne of
frustrated homicide and it would be impossible to prosecute the accused for
this crime.
It seems that the objection to the information, by reason of duplicity, is

based on the ground that it also states the seriousness of the injuries, it
being claimed that such specification makes it possible to convict the
accused of the crime of physical injuries of such gravity, if the intention
to kill is not established. This reasoning does not appear sound because,
at any rate, although the seriousness of the physical injuries is not taken
into consideration, the accused may be sentenced to the lightest penalty
prescribed for this crime (art. 266, subsec. 2, of the Revised Penal Code).
However, the truth is that; the specification of the seriousness of the
physical injuries in the information is material in a case of frustrated
homicide, when the act performed to realize the intention to kill is made
to consist in having inflicted the physical injuries in question. In this
case it is necessary to establish the relation between the defendant's act
of wounding the offended party and the intention to kill which inspired it
and which was not realized. Inasmuch as the mere act of wounding does not
necessarily imply the intention to kill, it is essential to state the
circumstances linking said act with such intention, and one of them, is,
certainly, the seriousness of the physical injuries caused.
In view of the foregoing considerations, and reversing the appealed

resolution, the demurrer to the information is overruled and the case is
ordered remanded to the court of origin for its prosecution, without
special pronouncement as to costs. So ordered.
Villa-Real, Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ.,

concur.

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G. R. No.

44727, August 28, 1937

The information filed in this case is as follows:

"That on or about the 21st day of March, 1935, in the municipality of

A demurrer to the foregoing information was filed on the ground that it

The appealed resolution is erroneous. It is claimed that the information

It is contended that if the intent to kill is not established, the accused

The real question, in the opinion of this court, lies in determining

It seems that the objection to the information, by reason of duplicity, is

In view of the foregoing considerations, and reversing the appealed

Villa-Real, Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ.,

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