People vs. Tabago, et al, C.A., 48 O.G. 3419 (no liability)

While Tabago was talking with the Chief of Police, he made a motion to draw his pistol, but the latter embraced him and prevented him from drawing his pistol. Tabago then told his two companions to fire at the Chief of Police, but they could not do so, because the Chief of Police was embracing Tabago. One of his companions, Avelino Valle, fired a shot but the same was not aimed at anybody.

 Held:

The accused cannot be convicted of the crime of attempted homicide. The action of the accused in placing his hand on his revolver, which was then on his waist, is indeed very equivocal and susceptible of different interpretations. For example, it cannot be definitely concluded that the attempt of the accused to draw out his revolver would have, if allowed to develop or be carried to its complete termination following its natural course, logically and necessarily ripened into a concrete offense, because it is entirely possible that at any time during the subjective stage of the felony, the accused could have voluntarily desisted from performing all the acts of execution and which, had it happened, would completely exempt him from criminal responsibility for the offense he intended to commit. (People vs. Tabago, et al, C.A., 48 O.G. 3419)

To constitute attempted homicide the person using a firearm must fire the same, with intent to kill, at the offended party, without however inflicting a mortal wound on the latter.

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