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EN BANC

G.R. No. 3462  February 16, 1907

THE UNITED STATES, plaintiff-appelle, vs. SANTACRUZ DURUELO, ET AL.,Defendants-Appellants.

Thomas L. McGirr for appellants.
Attorney-General Araneta for appellee.

ARELLANO, C.J.: chanrobles virtual law library

This is an appeal by the defendants, Santacruz Duruelo and Eulalio Duruelo, from the Court of First Instance of Iloilo, sentencing them to three years' imprisonment for the crime of attempted homicide, and to pay the costs. The record discloses the following facts: chanrobles virtual law library

(1) That the defendants were charged with the crime of attempted homicide, and that they, according to the complaint, went to the house of one Agustin Drilon, and brandishing their bolos, called to the said Drilon to come down for they were going to kill him, but "as Agustin Drilon refused to leave the house, the defendants went up the stairs for the purpose of killing him, and finding the door locked, they broke the same open with their bolos in order to enter the house and kill the said Drilon, but while the defendants were breaking the front door open, by reason of which they did not succeed in their purpose to kill him." chanrobles virtual law library

(2) That the only proof of a deliberate intention on the part of the defendants to kill the said Drilon were the words alleged to have been uttered by the defendant, to-wit: "Agustin, come down, we are going to kill you!" and "Agustin, come down, and we will cut you to pieces!" chanrobles virtual law library

One of the witnesses testified that one of the defendant broke open the door and entered the house. Another witness stated that the defendants cut the door open, and another witness that they went up the steps but did not enter the house. (Record, pp. 137, 131, and 104.) chanrobles virtual law library

The foregoing facts do not even constitute the beginning of the execution of the crime of homicide, so as to hold the defendant guilty of the crime of attempted homicide. Those facts might constitute the crime of forcible entry of a dwelling, as suggested by the Attorney-General, but the testimony of the witnesses who testified that the defendants broke open the door and entered the house can not be harmonized with the testimony of the witness who testified that the defendants cut the door, and the testimony of another witness who stated that the defendants went up the steps but did not enter the house.chanroblesvirtualawlibrary chanrobles virtual law library

It seems that the defendants did nothing but shout to the said Drilon, and cause some damage to the door of the house. There is nothing upon which the charge of attempted homicide contained in the complaint can be sustained, nor can the defendants be convicted thereunder of the crime of forcible entry of a dwelling.chanroblesvirtualawlibrary chanrobles virtual law library

We accordingly reverse the judgment of the court below without prejudice to the killing of a new complaint for some other crime, and we hereby acquit the said Santacruzan Duruelo and Eulalio Duruelo of the charge of attempted homicide, with the costs of both instances de oficio.chanroblesvirtualawlibrary chanrobles virtual law library

After the expiration of ten days let judgment be entered in accordance herewith, and ten days thereafter let the cause be remanded to the Court of First Instance. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Torres, Mapa, Johnson, Carson, Willard and Tracey, JJ., concur.