FACTS:
The defendant, Inocentes Andrada, was charged in the Court of First Instance of Capiz with the crime of frustrated homicide. After trial, the court found him guilty instead of the lesser offense of discharge of firearms under Article 408 of the Penal Code and sentenced him to eight months of presidio correccional. The defendant appealed, contending that the crime of discharge of firearms is not necessarily included in the charge of frustrated homicide.
ISSUE:
Whether the crime of discharge of firearms, as defined under Article 408 of the Penal Code, is necessarily included in the facts alleged in the complaint for frustrated homicide, thereby allowing a conviction for the lesser offense.
RULING:
Yes. The Supreme Court held that the offense of discharge of firearms is necessarily included in the complaint for frustrated homicide. Section 29 of General Orders No. 58 permits a conviction for any offense necessarily included in the charge. An examination of the complaint, which alleged that the defendant discharged a revolver at Eutiquio Andrada at close range, established all the elements of the crime under Article 408. The Court further found the existence of the aggravating circumstance of relationship (the victim being the brother of the accused) under Article 10 of the Penal Code, with no mitigating circumstances. Accordingly, the penalty was imposed in its maximum degree. The trial court’s sentence was modified, and the defendant was sentenced to two years, eleven months, and ten days of prision correccional.
