Elements of frustrated homicide

Frustrated homicide requires intent to kill on the part of the offender. Without proof of such intent, the felony may only be serious physical injuries. Intent to kill may be established through the overt and external acts and conduct of the offender before, during and after the assault, or by the nature, location and number of the wounds inflicted on the victim.The elements of frustrated homicide are:
(1) the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault;(2) the victim sustained fatal or mortal wound but did not die because of timely medical assistance; and
(3) none of the qualifying circumstances for murder under Article 248 of the Revised Penal Code, as amended, is present.[1]

The essential element in frustrated or attempted homicide is the intent of the offender to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent that the State must allege in the information, and then prove by either direct or circumstantial evidence, as differentiated from a general criminal intent, which is presumed from the commission of a felony by dolo.8 Intent to kill, being a state of mind, is discerned by the courts only through external manifestations, i.e., the acts and conduct of the accused at the time of the assault and immediately thereafter. In Rivera v. People,[2] the Supreme Court considered the following factors to determine the presence of intent to kill, namely: (1) the means used by the malefactors; (2) the nature, location, and number of wounds sustained by the victim; (3) the conduct of the malefactors before, during, or immediately after the killing of the victim; and (4) the circumstances under which the crime was committed and the motives of the accused. The Supreme Court also considered as determinative factors the motive of the offender and the words he uttered at the time of inflicting the injuries on the victim.[3]

[1] Serrano v. People, G.R. No. 175023, July 5, 2010.

[2] Rivera v. People, supra at 197, citing People v. Delim, G.R. No. 142773, January 28, 2003.

[3] Serrano v. People, G.R. No. 175023, July 5, 2010.

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