GR L 4127; (March, 1908) (Digest)
G.R. No. L-4127
THE UNITED STATES, plaintiff-appellee, vs. CHARLES J. KOSEL, defendant.
March 17, 1908
FACTS:
The accused, Charles J. Kosel, was charged with frustrated assassination. The evidence showed that he attempted to intimidate complaining witnesses by pointing his revolver at them. During a struggle that ensued when the witnesses disarmed him, the revolver discharged so close to one of them that his side was burned by the flash and powder particles were embedded in his skin. The accused claimed the discharge was accidental, but the Court found that he willfully fired the revolver, not with the intention to kill or wound, but to intimidate and frighten his opponents away. The trial court acquitted Kosel of frustrated assassination but convicted him of unlawfully discharging a firearm at another person, as defined and penalized in Article 408 of the Penal Code, sentencing him to six months and one day of prision correccional. On appeal, counsel for the accused argued that frustrated assassination and unlawfully discharging a firearm are separate and distinct offenses, not necessarily included in each other, and thus the complaint was fatally defective for charging two offenses.
ISSUE:
1. Did the act of willfully discharging a firearm to intimidate, without intent to kill or wound, constitute the offense of “discharging a firearm at a person” under Article 408 of the Penal Code?
2. Can an objection that a complaint is fatally defective for charging two separate offenses be raised for the first time on appeal?
RULING:
1. Yes. The Court held that willfully firing a revolver, even without the intention of killing or wounding opponents, but for the purpose of intimidating and frightening them away, constitutes the offense of “discharging a firearm at a person” (disparar una arma de fuego contra cualquiera persona) as defined and penalized in Article 408 of the Penal Code.
2. No. The Court ruled that since the accused did not raise any objection regarding a defective complaint (on the ground of charging two offenses) in the trial court, he cannot be heard to raise this objection for the first time on appeal. In accordance with the doctrine in United States vs. Paraiso, a trial court does not err in convicting the accused of any offense sufficiently charged in the complaint where the evidence of record sustains a finding of guilt.
The judgment and sentence of the Court of First Instance were affirmed.