In one of my earlier columns, I discussed the difference between Homicide and Murder as defined and penalized under Article 249 and 248 of the Revised Penal Code, respectively. Aside from the imposable penalty, the sole difference between homicide and murder is the presence of the aggravating circumstances enumerated under Article 248 of the Revise Penal Code, items 1-6: (1) with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; (2) in consideration of a price, reward, or promise; (3) by means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment of or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; (4) on the occasion of any calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity; (5) with evident premeditation; (6) with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.
Thus, if the killing of a person was done in the presence of any of the said circumstances, the crime committed is murder; while if the killing was made without any of the said circumstances, the crime committed is only homicide.
In this column, I will discuss the difference between attempted homicide and frustrated homicide. Article 6 of the Revised Penal Code states that a felony 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.
The Supreme Court, in a plethora of cases, has already clarified the distinction between frustrated and attempted felony. In a frustrated felony, all the acts have been performed by the offender which produces the felony as a consequence, and the reason for its non-accomplishment is independent of the will of the perpetrator. Whereas, in an attempted felony, the offender does not perform all the acts of execution; the offender only commences the felony by overt acts; and its non-fulfillment is not caused by the offender’s own spontaneous desistance.
In People vs Calines (G.R. No. 260944), it was ruled that attempted homicide is committed when the accused intended to kill the victim, as manifested by the use of a deadly weapon in the assault, and the wound/s sustained by the victim was/were not fatal. In People vs Aquino (G.R. No. 203435), on the other hand, the court enumerated the elements of frustrated homicide, to wit: (1) the accused intended to kill the victim, as manifested by his use of a deadly weapon in the assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code, as amended, is present.
The Court further emphasized that the crucial point in determining whether the accused can be convicted of frustrated murder is the nature of the wound sustained by the victim. Accordingly, it must be fatal and supported by independent proof that the wound was sufficient to cause the victim’s death without timely medical intervention. If the victim’s wounds are not fatal, the crime is only attempted homicide. Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the victim’s wounds.
In People vs Villa (G.R. No. 256486), the Honorable Court, in convicting Villa of Attempted Murder only, explained:
The medical findings show that Maridref suffered gunshot wounds in her chest, armpit, inner arm, thigh, and buttocks. However, these findings are not conclusive to show that Maridref suffered fatal wounds which were sufficient to cause Maridref’s death without any timely medical intervention. Upon perusal of the records, the prosecution presented only the medical abstract and medical certificate of Maridref. The prosecution did not even invite the attending physician to testify about the nature of the gunshot wounds sustained by the victim. The medical documents presented in the court only show the locations of the gunshot wounds sustained by Maridref. Significantly, however, they did not specify whether the wounds sustained were fatal. Thus, without any categorical proof of the fatalness of the gunshot wounds sustained by Maridref, accused-appellant must only be convicted of Attempted Murder.
In a relatively recent case (G.R. No. 255485), the Court further explained that it is imperative in a prosecution for frustrated homicide that the victim’s wounds be proven beyond reasonable doubt to be fatal through the testimony of the physician who attended to the said fatal wounds. Since a medical certificate is merely an opinion of one who must first be established as an expert witness, it could not be given weight or credit unless the doctor who issued it is presented to court to show their qualifications. Failure to present the physician who attended to the wounds deprives the defense an opportunity to cross-examine them on the accuracy and veracity of their findings.
It is settled that where there is nothing in the evidence to show that the wound would be fatal if not medically attended to the character of the wound is doubt and such doubt should be resolved in favor of the accused.