1. CRIMINAL LAW; FRUSTRATED HOMICIDE; INTENT TO KILL; PHYSICAL INJURIES. — The evidence in this case establishes beyond all doubt that on the night in question the appellants took part in the assault on the injured sailors. However, there is nothing in the circumstances of the act to indicate that the defendants intended to kill the offended parties. On the contrary, the fact that when some of the sailors lost consciousness during the affray, the appellants left, excludes the idea that they had any intention to kill; and it being more favorable for them under such conditions to carry out this purpose, the fact that instead of continuing the attack, they desisted from it, shows that their intention was not to carry their purpose beyond the result of their acts. The appellants are found guilty of two crimes of physical injuries.

On the night of January 8, 1928, sailors Satterlee, Nagle, R. G. Owen, J. L. Ward and J. Ferguson came to Manila from the municipality of Cavite, Province of Cavite, in an automobile driven by Jose Panoguiton. When they came to a deserted spot on the road near Dalahican, Panoguiton stopped the car saying that he wanted to examine the tires. Satterlee, who sat beside Panoguiton, also alighted to see what Panoguiton did. At that instant other cars bearing Juan Montes and the other appellants stopped there, and the latter attacked the sailors with clubs and iron bars. The sailors resisted and in turn attacked. During the affray Nagle and Satterlee lost consciousness as the result of a blow on the head, whereupon the assailants left. As a result of the attack Nagle and Satterlee were wounded and had to be taken to the hospital, requiring medical assistance for a period of more than eight and less than thirty days.

An information for frustrated homicide having been filed against the appellants, they were sentenced to ten years and one day prision mayor for the crime charged.

The question of fact raised in this case refers solely to the identity of the appellants, and on this point we find that the evidence establishes beyond all doubt that the appellants were the ones who, on that night, assaulted and attacked the sailors.

We agree with the Attorney-General in his opinion that the facts proven do not constitute the crime of frustrated homicide for which the defendants are condemned, but only that of less serious physical injuries. There is nothing in the circumstances of the case to indicate that the appellants intended to kill the offended parties. On the contrary, the fact that when some of the sailors lost consciousness during the affray, the appellants left, excludes the idea that they had any intention to kill; and it being more favorable for them under such conditions to carry out this purpose, the fact that instead of continuing the attack, they desisted from it, shows that their intention was not to carry their purpose beyond the result of their acts.

Considering the extent of the injuries sustained by Satterlee and Nagle, the facts constitute the crime of personal injuries defined in article 418 of the Penal Code, making of the personal injuries inflicted upon Nagle and Satterlee two independent crimes. The aggravating circumstance of uninhabited place must be taken into account.

Wherefore, the appellants are found guilty of two crimes of physical injuries according to article 418 of the Penal Code, and are hereby severally sentenced to six months arresto mayor and to pay a fine of 1,300 pesetas, with subsidiary imprisonment in case of insolvency, and costs. So ordered.

Johnson, Street, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.