PEOPLE vs.

BORINAGA
GR No. 33463; December 18, 1930

Malcom, J.

TOPIC:

ARTICLE 6. Consummated, Frustrated, and Attempted Felonies. — Consummated

felonies, as well as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts
of execution which would 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 a felony directly
by overt acts, and does not perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own spontaneous
desistance.

FACTS:

The victim Harry Mooney, an American who resided in Calubian Leyte, contracted with
Juan Lawaan for the construction of a fish corral. Lawaan attempted to collect the
whole amount of the contract even though the corral is not yet finished. Upon Mooney‘s
refusal to pay, Lawaan warned and threatened him that something would happen to
him.

On that evening, Mooney was in the store of his neighbor, sitting with his back towards
a window when suddenly Basilio Borinaga struck him with a knife. The knife imbedded
on the back of the seat though. Mooney fell off from the impact but was not injured.
Borinaga left the scene but after ten minutes, he returned to have another attempt at
Mooney but was warded off by Mooney and his neighbor frightening him by turning a
flashlight on him.

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.

ISSUE:
Whether or not the crime is frustrated murder.
HELD:

Yes, the crime is frustrated murder.

As an essential condition of a frustrated crime, Borinaga performed all the acts of

execution, attending the attack. There was nothing left that he could do further to
accomplish the work. The cause resulting in the failure of the attack arose by reason of
forces independent of his will. Borinaga also voluntarily desisted from further acts. The
subjective phase of the criminal act was passed.

Dissenting opinion, J. Villa-Real:

“The acts of execution perfomed by [Borinaga] did not produce the death of
Mooney as a consequence not 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.”

What the back of the chair prevented was the wounding of Mooney, not his death.
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 a frustrated felony, according to the law,
and not the preventing of the performances of all the acts of execution which
constitute a felony, as in the present case.

Attempted murder only.