Republic of the Philippines

Second Judicial Region

REGIONAL TRIAL COURT
Branch 38
Maddela, Quirino
PEOPLE OF THE PHILIPPINES,
Plaintiff,
- versus -

CRIM. CASE NO. 38-361

FOR: FRUSTRATED
HOMICIDE

ALEX RUIZ AND GLENN BUNAO,

Accused.
X------------------------------------------------------X

D E C I S I O N
The Charge
Alex Ruiz and Glenn Bunao, were charged with frustrated homicide in an
information filed on August 12, 2010, the accusatory portion of which reads:
That on or about 9:00 oclock in the evening of April 15,
2010 in Barangay Ponggo, Municipality of Nagtipunan, Province of
Quirino, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and
mutually aiding one another with intent to kill, did then and there
willfully, unlawfully and knowingly attack, assault and mauled
Donato Ballesteros inflicting upon the latter serious injuries on his
head and different parts of his body, thus performing all the acts of
execution which would produce the crime of homicide as a
consequence, but nevertheless did not produce it by reason of causes
independent of his (sic) will, that is by the timely and able medical
assistance rendered to said Donato Ballesteros which prevented his
death.
Herein accused were arrested on August 24, 2010 and when arraigned on
September 1, 2010, they both pleaded not guilty as charged with the assistance of
Atty. Neil Anthony L. Sugue of the Public Attorneys Office. However, said
counsel was subsequently replaced by Atty. Martin C. Galapon, a counsel de-parte,
chosen by the accused.
During the pre-trial on March 9, 2011, the parties stipulated on the
following matters: 1] The time, date and place of the commission of the incident as
indicated in the information; 2] The existence of the three (3) medical certificates
in favor of the victim; and 3] That the incident happened inside the videoke bar
owned by Jovy Miguel located at Ponggo, Nagtipunan, Quirino (p. 69-Record).
Evidence of the Prosecution
Trial ensued on April 6, 2011 and other dates where Assistant Provincial
Prosecutor Alfredo A. Balajo, Jr. presented the following witnesses to prove the
material allegations of the information:

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ELISEO ASUNCION testified that on April 15, 2010, between 8 to 9 p.m.,

he and Donato Ballesteros were having a drinking session at the videoke bar near
the cemetery at Ponggo, Nagtipunan Quirino. Later on, they went outside the bar
with Donato ahead of him by about five meters. There was a light outside the
video bar. Alex Ruiz held Donato while Glenn Bunao hit him in the head with a
stone and then in the upper left eyelid with a bottle. Donatos head was bleeding.
Subsequently, the duo came to the witness and they hit him in his lower lip and
right face with their fists. He and Donato went inside the videoke bar and shortly,
three police officers arrived who brought them to the hospital. He was not treated
because he only suffered superficial wounds, while Donato was confined. He does
not know of any reason why the two accused mauled Donato. The incident just
happened spontaneously. At the time of the incident, Glenn and Alex were with a
man by the name of Bisaya. This fellow was the first one to box him and this
happened before the incident. He knew Glenn for a long time and he was able to
identify him in open court in the course of his direct examination. He is also
familiar with Alex, who is his cousin, and he identified him through his
photograph.
JOVELYN GANITANO narrated that she is an entertainer at the
beerhouse of Jovie Miguel. On the night of April 15, 2010, she was at her room
when she heard shouts from the hall. She stood near the door and saw Alex Ruiz,
Glenn Bunao and Manong Nato (Donato Ballesteros) fighting. Glenn hit Donato
once on his upper right eye brow with a bottle of Red Horse. Alex held Donato on
his collar. Donato had blood from his head to his waist. They have five costumers
that night, the group of Donato, who was with Ely and the group of Alex, who was
accompanied by Glenn and another fellow whom she does not know. Ely was
fighting with the unidentified companion of Alex, while the incident was
happening. She knew Alex and Donato for about two years, while it was the first
time that she saw Glenn. She was able to identify the two accused in the course of
her direct examination.
SPO1 ANTONIO C. RAMOS, averred that he is an investigator at the
PNPNagtipunan, Quirino. In the evening of April 15, 2010, they received a
cellphone call about a mauling incident at Jovys Videoke Bar at Ponggo,
Nagtipunan, Quirino. Four of them responded to the report with SPO2 Eduardo
Rodriguez as the team leader. Upon arrival thereat, they saw Donato Ballesteros
inside the bar with bloodied head. He asked what happened to him, but the latter
was too weak to give a reply. It was Donatos companion, Eliseo Asuncion, who
told them that Donato was mauled by Alex and Glenn, while he (Eliseo) fought
with another group. A police companion (SPO2 Rodriguez) took pictures of the
victim and also the place of the incident. One of the ladies working at the videoke
bar also took pictures using her cellphone, but it was him who had them
developed. The pictures have reference to the wounds sustained by Mr.
Ballesteros, a broken bottle of beer, stones, and drops of blood (Exhibits E to
E-11). After documenting what they saw, they brought Donato to the hospital.
The witness identified the two accused in the course of his direct examination.
DR. FLORANTE GAMINO, a Medical Officer III of Maddela Municipal
Hospital, stated that he attended to Donato Ballesteros on April 15, 2010 at around
10:30 P.M. He sutured and dressed the patients three (3) wounds. The first

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wound was not so deep laceration on the left frontal forehead which was about
seven to eight centimeters in length. The second was also a laceration on the left
back of the head which was about two to three centimeters in length. The third
was another not so deep wound on the right top of the head. The medical
procedures done to the patient lasted for about 20 minutes. He observed the patient
overnight and there was no sign of brain damage. The patient did not vomit or lose
consciousness. Thus, he was discharged the following morning. His injuries will
incapacitate him for work for about 10 to 14 days and this was reflected in the
Medico Legal Certificate (Exhibit D). On cross examination, the witness
stressed that barring any complication, the three wounds sustained by the patient
were not serious wounds (TSN dated June 1, 2011, p. 107).
DONATO BALLESTEROS claimed that on April 15, 2010, at around
8:30 p.m., he and Eliseo Asuncion went to the videoke bar of Jovy Miguel where
they drunk one bottle of Red Horse beer, each. When they finished drinking,
Eliseo went outside and he was followed by the companion of Glenn Bunao
known only as Bisaya. The two of them had a fight and so he went outside to
see Eliseo. When he was about one meter away from the door, Glenn hit him with
a bottle which landed at his upper left eyebrow. Then, Glenn got a piece of stone
and strike it at the top of his head. Alex, who was then holding the witness,
eventually released him when he said that he will not fight back. After his release,
the witness went inside the videoke bar and closed the door. Shortly, three police
officers arrived, but he only knew Police Officer Antonio Ramos. Alex and Glenn
were no longer there when the policemen arrived. He was brought to the Diduyon
District Hospital where he stayed overnight. He knows both of the accused
because they all grew up at Ponggo, Nagtipunan, Quirino. His ability to identify
the two accused was admitted by the defense counsel to forego with an open court
identification.
On July 6, 2011, the prosecution rested its case with five witnesses and
several pieces of documentary evidence consisting of the following Exhibits and
their sub-markings: A- Sworn Statement of Eliseo Asuncion, B- Sworn
Statement of Jovelyn Gaitano, C- Sworn Statement of Donato Ballesteros, DMedical Certificate issued by Dr. Florante Gamino, and E to E-11- Pictures
taken by the Police Officers.
Evidence of the Defense
On August 3, 2011 and other dates, Atty. Galapon presented the two
accused and one eye witness to prove the innocence of his clients:
ALEX RUIZ testified that on April 15, 2010 at around 9 p.m., he was with
Glenn Bunao and another guy known only as Bisaya at the videoke bar owned
by Jovy Miguel at Purok 4, Ponggo, Nagtipunan. When they arrived there, they
saw Donato and Eliseo being entertained by GRO Liezel Orlando. The witness and
his two companions ordered Stallion beers. Subsequently, Bisaya went out of the
videoke bar and at that time Eliseo was standing by the door. When Bisaya was
just out of the door, Eliseo hit him with a bottle of beer but the former evaded the
attack. Glenn went out to help Bisaya, but he was met by Donato; hence, a
scuffle ensued between Glenn and Donato. The witness came to help Glenn by

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kicking Donato at his side to stop their scuffle. Glenn was able to free himself
after which, he and Glenn went home leaving behind Bisaya who continued
fighting the other group. The witness asserted that he only kicked Donato once and
then left with Glenn. It was Bisaya who inflicted Donatos head wounds.
GLENN BUNAO stated that on April 15, 2010 at 9 p.m., he was with his
cousin, Alex Ruiz, and his kumpare known only as Bisaya at the videoke bar
owned by Jovy Miguel at Purok 4, Ponggo, Nagtipunan, Quirino. When they
arrived at the bar, Donato and Eliseo were already there. The witness and his two
companions ordered three bottles of Stallion beer. After ordering, he saw Eliseo
nodded at Bisaya after which, Eliseo went out of the bar followed by Bisaya.
Bisaya hit Eliseo with a bottle and with this, the witness went out to pacify them.
However, he was met at the door by Donato who hit with a bottle of Stallion beer
on his head causing him to fall down to the ground. Then, Donato went on top of
him and boxed him. He was able to free himself from Donatos control only when
Alex kicked Donato on his side. Consequently, he stood up from the ground and
walked towards the road fronting the videoke bar where Bisaya and Eliseo were
situated. Eliseo ran away. Alex came and he brought the witness home. He cannot
provide a medical certificate to prove his injury because there is none as he did not
go to a doctor since it was only a small wound. On cross examination, he showed
his scar on top of his head measuring one inch in length.
JUDITH FERNANDEZ, stated that on April 15, 2010, at around 9 to 10
p.m., she was inside the room of Jovy Miguels videoke bar at Ponggo,
Nagtipunan, Quirino. She heard that there was a fight happening outside and those
involved in the rumble were Glenn, Alex, Eliseo and Donato. At first, this witness
asserted that he saw Eliseo and Donato boxing each other (TSN date February
15, 2012, p. 194), but on cross examination, she changed her mind and admitted
that she has no knowledge about the incident because at that time, she was inside a
room resting (Id., p.199).
Issues
The issues for resolution here are these: 1] Whether or not Alex Ruiz and
Glenn Bunao are guilty of frustrated homicide; 2] Whether or not conspiracy
attended the commission of the crime; 3] Whether or not the private complainant
is entitled to damages; and 4] Whether or not the defense of denial can be credited
for the accused.
Discussion
The first, second and fourth issues are interrelated; hence, they will be
discussed jointly hereunder followed by the issue on damages.
The main element of attempted or frustrated homicide is the accused's
intent to take his victim's life. The prosecution has to prove this clearly and
convincingly to exclude every possible doubt regarding homicidal intent (Arnel
Colinares vs. PP, G.R. No. 182748, December 13, 2011).
As a rule, conspiracy must be shown to exist as clearly and convincingly as

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the crime itself. Its elements are the following: (1) two or more persons came to an
agreement, (2) the agreement concerned the commission of a felony, and (3) the
execution of the felony was decided upon (PP vs. Hadja Jarma Lalli, Ronnie
Aringoy and Nestor Relampagos, G.R. No. 195419, October 12, 2011).
After a painstaking consideration of the pieces of evidence, both testimonial
and documentary, adduced by the contending parties the court rules out any intent
to kill on the part of herein accused. This is clear from the testimony of the private
complainant who admitted that he was released from Alex grip when he retorted
that he will not fight them back (TSN dated July 6, 2011, p.136). Of equal
importance is the testimony of another prosecution witness, Eliseo, who asserted
that the bar brawl was spontaneous (TSN dated May 4, 2011, p. 52). This means
that it was not planned and the two accused acted the way they did based on their
own individual judgment. Furthermore, Dr. Gaminos expert opinion on the extent
of Donatos injuries also supports such lack of homicidal intent. According to said
doctor, barring any complication, the three wounds of the patient were not serious
(TSN dated June 1, 2011, p. 107) and will incapacitate him for work for 10 to 14
days (Exhibit D).
Sans any homicidal intent on the part of Alex and Glenn, the charge of
frustrated homicide against them has, therefore, no legal leg to stand on. However,
this does not mean that they are already absolutely free from any criminal liability
because someone has to answer for the physical injuries sustained by Donato and
the Court is not barred from doing so in the light of Section 4, Rule 120 of the
Rules of Court, which reads:
Section 4. Judgment in case of variance between
allegation and proof. When there is variance between the
offense charged in the complaint or information and that
proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be
convicted of the offense proved which is included in the
offense charged, or of the offense charge which is included in
the offense proved.
The crime of physical injuries is necessarily included in the offense charged
(frustrated homicide) because some of the essential elements or ingredients of the
latter, as alleged in the information, constitute the former (Id., Sec. 5). The
provision on less serious physical injuries is governed by Article 265 of the
Revised Penal Code, which provides:
Article 265. Less serious physical injuries.- Any person
who shall inflict upon another physical injuries not described
in the preceding articles, but which shall incapacitate the
offended party for labor for ten days or more, or shall require
medical attendance for the same period, shall be guilty of less
physical injuries and shall suffer the penalty of arresto
mayor.
The contending parties have opposing declarations as to who started the

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fight and caused Donatos injuries. For the prosecution, they alleged that it was the
group of the accused who started the trouble culminating to the various injuries
sustained by the private complainant. On the other hand, the accused pointed to
the group of the private complainant as the initiator thereof, which resulted to
Glenns one inch long head injury. However, the court will give more credence to
the testimonies of the prosecution witnesses, vis-a-vis that of the defense, for
being consistent with one another and even complemented by documentary
evidence. If, indeed, it was the group of Donato who are the unlawful aggressors,
herein accused should have availed of the justifying circumstance of self-defense
to conform with their theory, instead of the defense of denial. Based on the
collective testimonies of the private complainant (Donato), Eliseo and Jovelyn, it
was only Glenn who inflicted the various wounds on Donato. Alex participation
came later when he tried to break up the protagonists (Glenn and Donato) and in
so doing he held Donato, but released him later on when he said that he will not
fight back. The kick that Alex initially employed upon Donato was not meant to
harm him, but to separate him from Glenn. In fact, during his physical
examination, the doctor did not see any injury on his side resulting from such
kicking. Thus, Glenn should be held liable for Donatos less serious physical
injuries.
As for Alex, although he denied having inflicted injuries upon Donato, his
liability will depend on whether or not there is conspiracy between him and Glenn
because in conspiracy, the act of one is the act of all. Based on the testimony of
Eliseo, a prosecution witness, the bar fight happened spontaneously (TSN dated
May 4, 2011, p. 52) and such declaration negates the existence of conspiracy. This
means that Alex and Glenn did not plan injuring Donato and they acted the way
they did based on their own individual judgment. Moreover, there is no evidence
on record that Alex and Glenn armed themselves when they proceeded to the
videoke bar. In one case, the Supreme Court ruled that failure to get a weapon
before the attack negates the presence of conspiracy. If accused had really
conspired with his co-accused to kill the deceased, he should have provided
himself with a weapon (PP v. Vistido, G.R. No. L-31582, October 26, 1977). In
the absence of conspiracy, an accused can only be made liable for the acts
committed by him alone and this criminal responsibility is individual and not
collective (Siton v. CA, GR No. 94065, December 2, 1991). Consequently, Alex
is absolved from any criminal liability because his individual act of kicking
Donato did not result in any injury to the latter.
Donato is entitled to moral damages from Glenn because a criminal offense
resulting in physical injuries justifies such award under Article 2219 (1) of the
New Civil Code.
Fallo
WHEREFORE, premises considered, judgment is hereby rendered finding
Glenn Bunao GUILTY beyond reasonable doubt of less serious physical injuries
and sentences him to suffer an imprisonment two (2) months and one (1) day to
four (4) months of arresto mayor. He is also directed to pay the private
complainant TWENTY FIVE THOUSAND PESOS (P25,000.00) as moral
damages.

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Alex Ruiz is ACQUITTED for insufficiency of evidence.

The cash bonds posted by accused-Bunao in the amount of TWELVE
THOUSAND PESOS (P12,000.00) under O.R. No. 1817604 and accused-Ruiz
also in the amount of TWELVE THOUSAND PESOS (P12,000.00) under O.R.
No. 1817603 are now cancelled and are to be released to them or their duly
authorized representative subject to identification and documentation
requirements.
With the category of accused-Bunao as a Municipal Prisoner, the Clerk of
Court is directed to prepare the corresponding mittimus or commitment order for
his service of sentence at the Maddela Municipal Jail.
SO ORDERED.
Maddela, Quirino, November 21, 2012.

MENRADO V. CORPUZ
Executive Judge