[G.R. No. 172716. November 17, 2010.

]
JASON IVLER y AGUILAR, petitioner, vs. HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of
the Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, respondents.
DECISION
CARPIO, J p:
The Case
The petition seeks the review 1 of the Orders 2 of the Regional Trial Court of Pasig City affirming subsilencio a lower court's ruling finding inapplicable the Double Jeopardy Clause to bar a second prosecution
for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite the accused's
previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries arising from the same
incident grounding the second prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the
Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless
Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by
respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide
and Damage to Property (Criminal Case No. 82366) for the death of respondent Ponce's husband Nestor C.
Ponce and damage to the spouses Ponce's vehicle. Petitioner posted bail for his temporary release in both
cases.
On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted
out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in
Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same offense of reckless
imprudence.SICDAa
The MeTC refused quashal, finding no identity of offenses in the two cases. 3
After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court of
Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought
from the MeTC the suspension of proceedings in Criminal Case No. 82366, including the arraignment on 17
May 2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on petitioner's motion, the
MeTC proceeded with the arraignment and, because of petitioner's absence, cancelled his bail and ordered
his arrest. 4 Seven days later, the MeTC issued a resolution denying petitioner's motion to suspend
proceedings and postponing his arraignment until after his arrest. 5 Petitioner sought reconsideration but
as of the filing of this petition, the motion remained unresolved.
Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of S.C.A.
No. 2803 for petitioner's loss of standing to maintain the suit. Petitioner contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on
petitioner's forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC's order to arrest
petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus, without reaching
the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration but
this proved unavailing. 6 HITEaS
Hence, this petition.
1

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego
participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the line
of jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal before the
RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of conviction. 7
Petitioner laments the RTC's failure to reach the merits of his petition in S.C.A. 2803. Invoking
jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of
punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been previously
convicted in Criminal Case No. 82367 for the same offense of reckless imprudence charged in Criminal Case
No. 82366. Petitioner submits that the multiple consequences of such crime are material only to determine
his penalty. CSTcEI
Respondent Ponce finds no reason for the Court to disturb the RTC's decision forfeiting petitioner's standing
to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court's attention to
jurisprudence holding that light offenses (e.g., slight physical injuries) cannot be complexed under Article
48 of the Revised Penal Code with grave or less grave felonies (e.g., homicide). Hence, the prosecution was
obliged to separate the charge in Criminal Case No. 82366 for the slight physical injuries from Criminal Case
No. 82367 for the homicide and damage to property.
In the Resolution of 6 June 2007, we granted the Office of the Solicitor General's motion not to file a
comment to the petition as the public respondent judge is merely a nominal party and private respondent is
represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in
S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment in Criminal
Case No. 82366; and (2) if in the negative, whether petitioner's constitutional right under the Double
Jeopardy Clause bars further proceedings in Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioner's non-appearance at the arraignment in Criminal Case No. 82366 did not divest
him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by
the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment for
the same offense bars further proceedings in Criminal Case No. 82366. ADETca

Petitioner's Non-appearance at the Arraignment in Criminal Case No. 82366 did not Divest him
of Standing to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant's escape from custody or violation of the terms of his bail
bond are governed by the second paragraph of Section 8, Rule 124, 8 in relation to Section 1, Rule 125, of
the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals to "also, upon
motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the pendency of the appeal." The "appeal"
contemplated in Section 8 of Rule 124 is a suit to review judgments of convictions.
The RTC's dismissal of petitioner's special civil action for certiorari to review a pre-arraignment ancillary
question on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366 finds
no basis under procedural rules and jurisprudence. The RTC's reliance on People v. Esparas 9 undercuts
the cogency of its ruling because Esparas stands for a proposition contrary to the RTC's ruling. There, the
Court granted review to an appeal by an accused who was sentenced to deathfor importing prohibited
drugs even though she jumped bail pending trial and was thus tried and convicted in absentia. The Court
2

in Esparas treated the mandatory review of death sentences under Republic Act No. 7659 as an exception
to Section 8 of Rule 124. 10
The mischief in the RTC's treatment of petitioner's non-appearance at his arraignment in Criminal Case No.
82366 as proof of his loss of standing becomes more evident when one considers the Rules of Court's
treatment of a defendant who absents himself from post-arraignment hearings. Under Section 21, Rule
114 11 of the Revised Rules of Criminal Procedure, the defendant's absence merely renders his bondsman
potentially liable on its bond (subject to cancellation should the bondsman fail to produce the accused
within 30 days); the defendant retains his standing and, should he fail to surrender, will be tried in
absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the bondsman to
produce the accused underscores the fact that mere non-appearance does not ipso facto convert the
accused's status to that of a fugitive without standing. EScAHT
Further, the RTC's observation that petitioner provided "no explanation why he failed to attend the
scheduled proceeding" 12 at the MeTC is belied by the records. Days before the arraignment, petitioner
sought the suspension of the MeTC's proceedings in Criminal Case No. 82366 in light of his petition with the
RTC in S.C.A. No. 2803. Following the MeTC's refusal to defer arraignment (the order for which was
released days after the MeTC ordered petitioner's arrest), petitioner sought reconsideration. His motion
remained unresolved as of the filing of this petition.

Petitioner's Conviction in Criminal Case No. 82367 Bars his Prosecution in Criminal Case No.
82366
The accused's negative constitutional right not to be "twice put in jeopardy of punishment for the same
offense" 13 protects him from, among others, post-conviction prosecution for the same offense, with the
prior verdict rendered by a court of competent jurisdiction upon a valid information. 14 It is not disputed
that petitioner's conviction in Criminal Case No. 82367 was rendered by a court of competent jurisdiction
upon a valid charge. Thus, the case turns on the question whether Criminal Case No. 82366 and Criminal
Case No. 82367 involve the "same offense." Petitioner adopts the affirmative view, submitting that the two
cases concern the same offense of reckless imprudence. The MeTC ruled otherwise, finding that Reckless
Imprudence Resulting in Slight Physical Injuries is an entirely separate offense from Reckless Imprudence
Resulting in Homicide and Damage to Property "as the [latter] requires proof of an additional fact which the
other does not." 15
We find for petitioner. ITSCED

Reckless Imprudence is a Single Crime,

its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts, were prosecuted under the same provision
of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasi-offenses. The
text of the provision reads:

Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act which, had
it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correctional in its medium period; if it would have constituted a less grave
felony, the penalty ofarresto mayor in its minimum and medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if
3

it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be
imposed. cdrep
When the execution of the act covered by this article shall have only resulted in damage to the property of
another, the offender shall be punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple
imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a
light felony.
In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the
rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable: ISDCaT
1. When the penalty provided for the offense is equal to or lower than those provided in the first two
paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that
which should be imposed in the period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall
be caused, in which case the defendant shall be punished by prision correctional in its medium and
maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which
material damage results by reason of inexcusable lack of precaution on the part of the person performing
or failing to perform such act, taking into consideration his employment or occupation, degree of
intelligence, physical condition and other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest. ASTDCH
The penalty next higher in degree to those provided for in this article shall be imposed upon the offender
who fails to lend on the spot to the injured parties such help as may be in this hand to give.

Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties
attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty
scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in
imposing penalties (paragraph 5); and (4) the definition of "reckless imprudence" and "simple imprudence"
(paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental attitude or condition behind the act,
the dangerous recklessness, lack of care or foresight, the imprudencia punible," 16 unlike willful offenses
which punish the intentional criminal act. These structural and conceptual features of quasi-offenses set
them apart from the mass of intentional crimes under the first 13 Titles of Book II of the Revised Penal
Code, as amended.
Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime, separately
defined and penalized under the framework of our penal laws, is nothing new. As early as the middle of the
last century, we already sought to bring clarity to this field by rejecting in Quizon v. Justice of the Peace of
Pampangathe proposition that "reckless imprudence is not a crime in itself but simply a way of committing
it . . ." 17 on three points of analysis: (1) the object of punishment in quasi-crimes (as opposed to
intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct offenses (as opposed to
subsuming them under the mitigating circumstance of minimal intent) and; (3) the different penalty
structures for quasi-crimes and intentional crimes:
4

The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a crime
in itself but simply a way of committing it and merely determines a lower degree of criminal liability is too
broad to deserve unqualified assent. There are crimes that by their structure cannot be committed through
imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised
Penal Code is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a
mere question of classification or terminology. In intentional crimes, the act itself is punished; in negligence

or imprudence, what is principally penalized is the mental attitude or condition behind the act, the
dangerous recklessness, lack of care or foresight, the imprudencia punible. . . . ACHEaI
Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penally
therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to
commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the
corresponding penalty should be fixed in proportion to the penalty prescribed for each crime when
committed willfully. For each penalty for the willfull offense, there would then be a corresponding penalty
for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless
imprudence at arresto mayor maximum, to prision correccional [medium], if the willful act would constitute
a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to
death, according to the case. It can be seen that the actual penalty for criminal negligence bears no

relation to the individual willful crime, but is set in relation to a whole class, or series of
crimes. 18 (Emphasis supplied)
This explains why the technically correct way to allege quasi-crimes is to state that their
commission results in damage, either to person or property. 19
Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for "Damage to
Property through Reckless Imprudence," its jurisdiction being limited to trying charges for Malicious
Mischief, an intentional crime conceptually incompatible with the element of imprudence obtaining in quasicrimes.

Quizon, rooted in Spanish law 20 (the normative ancestry of our present day penal code) and since
repeatedly reiterated, 21 stands on solid conceptual foundation. The contrary doctrinal pronouncement
in People v. Faller 22 that "[r]eckless impudence is not a crime in itself . . . [but] simply a way of
committing it . . . ," 23 has long been abandoned when the Court en banc promulgated Quizon in 1955
nearly two decades after the Court decided Faller in 1939. Quizon rejected Faller's conceptualization of
quasi-crimes by holding that quasi-crimes under Article 365 are distinct species of crimes and not merely
methods of committing crimes. Faller found expression in post-Quizon jurisprudence 24 only by dint of
lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules defining Article 365
crimes and the complexing of intentional crimes under Article 48 of the Revised Penal Code which, as will
be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, theQuizonian conception of
quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy Clause to quasioffenses, barring second prosecutions for a quasi-offense alleging one resulting act after a prior conviction
or acquittal of a quasi-offense alleging another resulting act but arising from the same reckless act or
omission upon which the second prosecution was based. caADSE

Prior Conviction or Acquittal of

Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a
means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent
5

prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Court's
unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v.
Diaz, 25 decided in 1954. There, a full Court, speaking through Mr. Justice Montemayor, ordered the
dismissal of a case for "damage to property thru reckless imprudence" because a prior case against the
same accused for "reckless driving," arising from the same act upon which the first prosecution was based,
had been dismissed earlier. Since then, whenever the same legal question was brought before the Court,
that is, whether prior conviction or acquittal of reckless imprudence bars subsequent prosecution for the
same quasi-offense, regardless of the consequences alleged for both charges, the Court unfailingly and
consistently answered in the affirmative in People v. Belga 26 (promulgated in 1957 by the Court en banc,
per Reyes, J.), Yap v. Lutero 27 (promulgated in 1959, unreported, per Concepcion, J.), People v.
Narvas 28 (promulgated in 1960 by the Court en banc, per BengzonJ.), People v. Silva 29 (promulgated in
1962 by the Court en banc, per Paredes, J.), People v. Macabuhay 30 (promulgated in 1966 by the
Court en banc, per Makalintal, J.),People v. Buan 31 (promulgated in 1968 by the Court en banc, per
Reyes, J.B.L., acting C.J.), Buerano v. Court of Appeals 32 (promulgated in 1982 by the Court en banc, per
Relova, J.), and People v. City Court of Manila 33 (promulgated in 1983 by the First Division, per
Relova, J.). These cases uniformly barred the second prosecutions as constitutionally impermissible under
the Double Jeopardy Clause.
The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy
Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a
subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence"
because of the accused's prior acquittal of "slight physical injuries thru reckless imprudence," with both
charges grounded on the same act, the Court explained: 34
Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi

offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes
thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into
account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act
is single, whether the injurious result should affect one person or several persons, the offense (criminal
negligence) remains one and the same, and can not be split into different crimes and prosecutions. 35. . .
(Emphasis supplied) SCaITA
Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the
reasoning of Quizon.
There is in our jurisprudence only one ruling going against this unbroken line of
authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. Estipona, 36 decided by the
pre-war colonial Court in November 1940, allowed the subsequent prosecution of an accused for reckless
imprudence resulting in damage to property despite his previous conviction for multiple physical injuries
arising from the same reckless operation of a motor vehicle upon which the second prosecution was
based. Estipona's inconsistency with the post-war Diaz chain of jurisprudence suffices to impliedly overrule
it. At any rate, all doubts on this matter were laid to rest in 1982 in Buerano. 37 There, we reviewed the
Court of Appeals' conviction of an accused for "damage to property for reckless imprudence" despite his
prior conviction for "slight and less serious physical injuries thru reckless imprudence," arising from the
same act upon which the second charge was based. The Court of Appeals had relied on Estipona. We
reversed on the strength of Buan: 38

Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People vs.
Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383
(March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that
Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi
offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes
thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into
account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act
is single, whether the injurious result should affect one person or several persons, the offense (criminal
negligence) remains one and the same, and can not be split into different crimes and prosecutions. acEHSI
xxx xxx xxx
. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of
Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his
being prosecuted for serious physical injuries through reckless imprudence in the Court of
First Instance of the province, where both charges are derived from the consequences of one
and the same vehicular accident, because the second accusation places the appellant in
second jeopardy for the same offense. 39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively overruled Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined
causes with the accused, a fact which did not escape the Court's attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969
(page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner's plea of double

jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR
finding petitioner guilty of damage to property through reckless imprudence should be set aside, without
costs." He stressed that "if double jeopardy exists where the reckless act resulted into homicide and
physical injuries, then the same consequence must perforce follow where the same reckless act caused
merely damage to property-not death-and physical injuries. Verily, the value of a human life lost as a result
of a vehicular collision cannot be equated with any amount of damages caused to a motors vehicle arising
from the same mishap." 40 (Emphasis supplied)
Hence, we find merit in petitioner's submission that the lower courts erred in refusing to extend in his favor
the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence could not be
tailored to petitioner's case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also
involved in a vehicular collision, was charged in two separate Informations with "Slight Physical Injuries
thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru Reckless Imprudence."
Following his acquittal of the former, the accused sought the quashal of the latter, invoking the Double
Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in the accused's
claim and dismissed the second case. In affirming the trial court, we quoted with approval its analysis of
the issue following Diaz and its progeny People v. Belga: 42
On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case, holding:

[T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated
in People v. Belga, . . . In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the
Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising from
7

a collision between the two automobiles driven by them (Crim. Case No. 88). Without the aforesaid
complaint having been dismissed or otherwise disposed of, two other criminal complaints were filed in the
same justice of the peace court, in connection with the same collision one for damage to property through
reckless imprudence (Crim. Case No. 95) signed by the owner of one of the vehicles involved in the
collision, and another for multiple physical injuries through reckless imprudence (Crim. Case No. 96) signed
by the passengers injured in the accident. Both of these two complaints were filed against Jose Belga only.
After trial, both defendants were acquitted of the charge against them in Crim. Case No. 88. Following his
acquittal, Jose Belga moved to quash the complaint for multiple physical injuries through reckless
imprudence filed against him by the injured passengers, contending that the case was just a duplication of
the one filed by the Chief of Police wherein he had just been acquitted. The motion to quash was denied
and after trial Jose Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In
the meantime, the case for damage to property through reckless imprudence filed by one of the owners of
the vehicles involved in the collision had been remanded to the Court of First Instance of Albay after Jose
Belga had waived the second stage of the preliminary investigation. After such remand, the Provincial Fiscal
filed in the Court of First Instance two informations against Jose Belga, one for physical injuries through
reckless imprudence, and another for damage to property through reckless imprudence. Both cases were
dismissed by the Court of First Instance, upon motion of the defendant Jose Belga who alleged double
jeopardy in a motion to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the
Supreme Court in the following language:
The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of police
constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to property
through reckless imprudence.
In the case of Peo[ple] v. F. Diaz, G.R. No. L-6518, prom. March 30, 1954, the accused was charged in the
municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for
having driven an automobile in a 'fast and reckless manner . . . thereby causing an accident.' After the
accused had pleaded not guilty the case was dismissed in that court 'for failure of the Government to
prosecute'. But some time thereafter the city attorney filed an information in the Court of First Instance of
Rizal, charging the same accused with damage to property thru reckless imprudence. The amount of the
damage was alleged to be P249.50. Pleading double jeopardy, the accused filed a motion, and on appeal by
the Government we affirmed the ruling. Among other things we there said through Mr. Justice Montemayor
THADEI
The next question to determine is the relation between the first offense of violation of the Motor Vehicle
Law prosecuted before the Pasay City Municipal Court and the offense of damage to property thru reckless
imprudence charged in the Rizal Court of First Instance. One of the tests of double jeopardy is whether or
not the second offense charged necessarily includes or is necessarily included in the offense charged in the
former complaint or information (Rule 113, Sec. 9). Another test is whether the evidence which proves one
would prove the other that is to say whether the facts alleged in the first charge if proven, would have
been sufficient to support the second charge and vice versa; or whether one crime is an ingredient of the
other. . . .
xxx xxx xxx
The foregoing language of the Supreme Court also disposes of the contention of the prosecuting attorney
that the charge for slight physical injuries through reckless imprudence could not have been joined with the
charge for homicide with serious physical injuries through reckless imprudence in this case, in view of the
provisions of Art. 48 of the Revised Penal Code, as amended. The prosecution's contention might be true.
But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through
reckless imprudence before pressing the more serious charge of homicide with serious physical injuries
8

through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of
the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not
now in a position to press in this case the more serious charge of homicide with serious physical injuries
through reckless imprudence which arose out of the same alleged reckless imprudence of which the
defendant have been previously cleared by the inferior court. 43
Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for the
purpose of delimiting or clarifying its application." 44 We declined the invitation, thus:
The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double
jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru
Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits that the facts of the
case at bar, fall squarely on the ruling of the Belga case . . ., upon which the order of dismissal of the lower
court was anchored. The Solicitor General, however, urges a re-examination of said ruling, upon certain

considerations for the purpose of delimiting or clarifying its application. We find, nevertheless, that further
elucidation or disquisition on the ruling in the Belga case, the facts of which are analogous or similar to
those in the present case, will yield no practical advantage to the government. On one hand, there is
nothing which would warrant a delimitation or clarification of the applicability of the Belga case. It was
clear. On the other, this Court has reiterated the views expressed in the Belga case, in the identical case
of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959. 45 (Emphasis supplied) DIHETS
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from
persistent but awkward attempts to harmonize conceptually incompatible substantive and procedural rules
in criminal law, namely, Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of
crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of
multiple felonies falling under either of two categories: (1) when a single act constitutes two or more grave
or less grave felonies (thus excluding from its operation light felonies); 46 and (2) when an offense is a
necessary means for committing the other. The legislature crafted this procedural tool to benefit the
accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most
serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental
attitude . . . behind the act, the dangerous recklessness, lack of care or foresight . . .," 47 a single mental
attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime
resulting in one or more consequences.
Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single prosecution
multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code, when proper; Article
365 governs the prosecution of imprudent acts and their consequences. However, the complexities of
human interaction can produce a hybrid quasi-offense not falling under either models that of
a single criminal negligence resulting in multiple non-crime damages to persons and property with varying
penalties corresponding to light, less grave or grave offenses. The ensuing prosecutorial dilemma is
obvious: how should such a quasi-crime be prosecuted? Should Article 48's framework apply to "complex"
the single quasi-offense with its multiple (non-criminal) consequences (excluding those amounting to light
offenses which will be tried separately)? Or should the prosecution proceed under a single charge,
collectively alleging all the consequences of the single quasi-crime, to be penalized separately following the
scheme of penalties under Article 365? IDTSaC
9

Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of
double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple
consequences 48 unless one consequence amounts to a light felony, in which case charges were split by
grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the charge
with the second level courts and, on the other hand, resulting acts amounting to light felonies and filing the
charge with the first level courts. 49 Expectedly, this is the approach the MeTC impliedly sanctioned (and
respondent Ponce invokes), even though under Republic Act No. 7691, 50 the MeTC has now exclusive
original jurisdiction to impose the most serious penalty under Article 365 which is prision correctional in its
medium period.
Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized under
Article 365 involves only resulting acts penalized as grave or less grave felonies because there will be a
single prosecution of all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is
penalized as a light offense and the other acts are penalized as grave or less grave offenses, in which case
Article 48 is not deemed to apply and the act penalized as a light offense is tried separately from the
resulting acts penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of the
quasi-crime collectively alleged in one charge, regardless of their number or severity, 51 penalizing each
consequence separately. Thus, in Angeles v. Jose, 52 we interpreted paragraph three of Article 365, in
relation to a charge alleging "reckless imprudence resulting in damage to property and less serious physical
injuries," as follows:
[T]he third paragraph of said article, . . . reads as follows: SCADIT
When the execution of the act covered by this article shall have only resulted in damage to the property of
another, the offender shall be punished by a fine ranging from an amount equal to the value of said
damage to three times such value, but which shall in no case be less than 25 pesos.
The above-quoted provision simply means that if there is only damage to property the amount fixed therein
shall be imposed, but if there are also physical injuries there should be an additional penalty for the latter.

The information cannot be split into two; one for the physical injuries, and another for the damage to
property, . . . .53 (Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty scheme under Article 365.
Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing one
framework over the other. Either (1) we allow the "complexing" of a single quasi-crime by breaking its
resulting acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime,
abandon its present framing under Article 365, discard its conception under the Quizon and Diaz lines of
cases, and treat the multiple consequences of a quasi-crime as separate intentional felonies defined under
Titles 1-13, Book II under the penal code; or (2) we forbid the application of Article 48 in the prosecution
and sentencing of quasi-crimes, require single prosecution of all the resulting acts regardless of their
number and severity, separately penalize each as provided in Article 365, and thus maintain the distinct
concept of quasi-crimes as crafted under Article 365, articulated in Quizon and applied to double jeopardy
adjudication in the Diaz line of cases. TaCIDS
A becoming regard of this Court's place in our scheme of government denying it the power to make laws
constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies
under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is
conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave or
less grave felonies; or (2) an offense which is a necessary means for committing another. This is why, way
10

back in 1968 in Buan, we rejected the Solicitor General's argument that double jeopardy does not bar a
second prosecution for slight physical injuries through reckless imprudence allegedly because the charge for
that offense could not be joined with the other charge for serious physical injuries through reckless
imprudence following Article 48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless
imprudence could not be joined with the accusation for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less
grave felonies. This same argument was considered and rejected by this Court in the case
of People vs. [Silva] . . .:
[T]he prosecution's contention might be true. But neither was the prosecution obliged to first prosecute the
accused for slight physical injuries through reckless imprudence before pressing the more serious charge of
homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant

for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the
defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge
of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged
reckless imprudence of which the defendant has been previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant . . . by the Justice of the Peace . . . of the
charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious
physical injuries through reckless imprudence in the Court of First Instance of the province, where both
charges are derived from the consequences of one and the same vehicular accident, because the second
accusation places the appellant in second jeopardy for the same offense. 54(Emphasis supplied) CDTHSI
Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article 365,
irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally
impermissible second prosecutions are avoided, not to mention that scarce state resources are conserved
and diverted to proper use.
Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of the
number or severity of the consequences. In imposing penalties, the judge will do no more than apply the
penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of
charges under Article 365, and only one information shall be filed in the same first level court. 55
Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection of
their constitutional right under the Double Jeopardy Clause. True, they are thereby denied the beneficent
effect of the favorable sentencing formula under Article 48, but any disadvantage thus caused is more than
compensated by the certainty of non-prosecution for quasi-crime effects qualifying as "light offenses" (or,
as here, for the more serious consequence prosecuted belatedly). If it is so minded, Congress can re-craft
Article 365 by extending to quasi-crimes the sentencing formula of Article 48 so that only the most severe
penalty shall be imposed under a single prosecution of all resulting acts, whether penalized as grave, less
grave or light offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the
lenient schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability,
should cushion the effect of this ruling.
WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006
of the Regional Trial Court of Pasig City, Branch 157. We DISMISSthe Information in Criminal Case No.
82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City,
Branch 71 on the ground of double jeopardy.

11

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of
Representatives.
SO ORDERED.
||| (Ivler y Aguilar v. Modesto-San Pedro, G.R. No. 172716, [November 17, 2010])

[G.R. No. 139542. June 21, 2001.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. INOCENCIO GONZALEZ, JR., accusedappellant.

The Solicitor General for plaintiff-appellee.

Pastelero Law Office for accused-appellant.
SYNOPSIS
Accused Inocencio Gonzalez, Jr. was charged, tried and subsequently found guilty of the complex crime of
Murder for the death of Feliber Andres, Double Frustrated Murder for the injuries sustained by John
Kenneth Andres and Kevin Valdez and Attempted Murder against Noel Andres. The trial court rejected
accused's theory that the shooting incident was purely accidental and that he had no intention to shoot
Noel Andres much less his wife and children. The trial court sentenced the accused to death and ordered to
pay civil liabilities. HTcDEa
Hence, this automatic review.
Accused-appellant assailed the trial court's finding that the killing was qualified by treachery. Accusedappellant likewise questioned his conviction for the crime of double frustrated murder for the injuries
sustained by Kevin and Kenneth, claiming that there was no intent to kill and the children stayed in the
hospital only for six days, thus, the crime committed were therefore two counts of slight physical injuries
only.
The Supreme Court found that the shooting was not attended by treachery and accordingly the crime
committed for the death of Feliber Andres was homicide and not murder.
In the case at bar, the encounter between Noel Andres and the accused-appellant was a chance encounter.
They were total strangers before their vehicles almost collided at an intersection inside the memorial park.
The heated exchange of remarks that followed the near collision was fanned by a short temper, which in
the case of the accused-appellant, was augmented by the improvident use of a firearm resulting in the
death of Feliber Andres, wife of Noel Andres.
The Court had consistently held that chance encounters, impulse killing or crimes committed at the spur of
the moment or those that were preceded by heated altercations are generally not attended by treachery for
lack of opportunity of the accused to deliberately employ a treacherous mode of attack. Thus, the sudden
attack made by the accused due to his infuriation by reason of the victim's provocation was held to be
without treachery. Sudden attacks made by the accused preceded by curses and insults by the victim or
acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were held to be
without treachery as the victim was sufficiently forewarned of reprisal. For the rules on treachery to apply,
the sudden attack must have been preconceived by the accused, unexpected by the victim and without
provocation on the part of the latter.

12

Considering the nature and location of the children's injuries and the number of days required for their
treatment, and the lack of intent to kill, the Court found that the crime committed for the injuries sustained
by the children were two counts of slight physical injuries only. As to the charge of attempted homicide, the
Court dismissed the same for evident lack of intent to kill the complainant, Noel Andres.
SYLLABUS
1. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; ELEMENTS. Treachery under par. 16 of
Article 14 of the Revised Penal Code is defined as the deliberate employment of means, methods or forms
in the execution of a crime against persons which tend directly and specially to insure its execution, without
risk to the offender arising from the defense which the intended victim might raise. For treachery to be
appreciated two elements must concur: 1) the employment of means of execution that would insure the
safety of the accused from retaliatory acts of the intended victim and leaving the latter without an
opportunity to defend himself and 2) the means employed were deliberately or consciously adopted by the
offender.
2. ID.; ID.; ID.; SUDDENNESS OF ATTACK DOES NOT BY ITSELF RENDERS THE ATTACK TREACHEROUS;
FOR TREACHERY TO BE APPRECIATED, THE SUDDEN ATTACK MUST HAVE BEEN PRECONCEIVED BY THE
ACCUSED, UNEXPECTED BY THE VICTIM AND WITHOUT PROVOCATION ON PART OF THE LATTER. The
suddenness of the attack, the infliction of the wound from behind the victim, the vulnerable position of the
victim at the time the attack was made or the fact that the victim was unarmed do not by themselves
render the attack as treacherous. This is of particular significance in a case of an instantaneous attack
made by the accused whereby he gained an advantageous position over the victim when the latter
accidentally fell and was rendered defenseless. The means employed for the commission of the crime or
the mode of attack must be shown to have been consciously or deliberately adopted by the accused to
insure the consummation of the crime and at the same time eliminate or reduce the risk of retaliation from
the intended victim. Accordingly, it has been consistently held by this court that chance encounters, impulse
killing or crimes committed at the spur of the moment or that were preceded by heated altercations are
generally not attended by treachery for lack of opportunity of the accused to deliberately employ a
treacherous mode of attack. Thus, the sudden attack made by the accused due to his infuriation by reason
of the victim's provocation was held to be without treachery. Sudden attacks made by the accused
preceded by curses and insults by the victim or acts taunting the accused to retaliate or the rebellious or
aggressive behavior of the victim were held to be without treachery as the victim was sufficiently
forewarned of reprisal. For the rules on treachery to apply the sudden attack must have been preconceived
by the accused, unexpected by the victim and without provocation on the part of the latter.
3. ID.; ID.; ID.; NEVER PRESUMED BUT MUST BE SHOWN AS CONCLUSIVELY AS THE CRIME ITSELF.
This Court has also had occasion to state that whether or not the attack succeeds against its intended
victim or injures another or whether the crime committed is graver than that intended is immaterial, as long
as it is shown that the attack is attended by treachery, the said qualifying circumstance may still be
considered by the court. Thus, the determining factor on whether or not the commission of a crime is
attended by treachery is not the resulting crime committed but the mode of attack employed in its
execution. Treachery is never presumed. It is required that the manner of attack must be shown to have
been attended by treachery as conclusively as the crime itself. EHTIcD
4. ID.; ID.; ID.; FIRING OF GUN FROM BEHIND THE VICTIM DOES NOT BY ITSELF AMOUNT TO
TREACHERY; CASE AT BAR. The fact that the appellant fired his gun from behind the victim does not by
itself amount to treachery. There is no evidence on record that the appellant deliberately positioned himself
behind the victim to gain advantage over him when he fired the shot. On the contrary, the evidence before
us reveals that the position of the appellant's car was not of his own doing but it became so when Noel
Andres overtook his car and cut off his path.
13

5. ID.; ID.; ID.; SINGLE AND CONTINUOUS ATTACK CANNOT BE DIVIDED INTO STAGES TO MAKE IT
APPEAR THAT ATTACK IS TREACHEROUS; CASE AT BAR. The trial court's finding that the loading of the
gun, the cocking of the hammer and finally the pulling of the trigger constitute a deliberate effort on the
part of appellant to use the gun as a means of a treacherous attack is patently erroneous. A single and
continuous attack cannot be divided into stages to make it appear that treachery was involved. The entire
incident happened in a matter of minutes, as testified to by witnesses, and as noted by the trial court. It
was error to our mind for the trial court to divide the assault in stages to arrive at the conclusion that the
mode of attack was consciously employed by the appellant. Contrary to the finding of the trial court that
the appellant prepared the gun before getting out of his car, the appellant testified that he loaded his gun
before he left the house and that it was ready to fire when he alighted his car. There was no time for him
to reflect on the mode of attack since he just picked up his gun and alighted from his car and shot at the
FX a few seconds after Dino and Noel Andres started shouting at each other.
6. ID.; ID.; ID.; ATTENDANCE THEREOF NOT DETERMINED BY THE KIND OF WEAPON USED BUT BY THE
MODE OF ATTACK EMPLOYED BY ACCUSED; CASE AT BAR. We do not agree that the weapon used, by
itself, is determinative of treachery, unless it is shown, and it is not herein shown, that the appellant
deliberately used the gun to insure the commission of the crime and to render the unarmed victim
defenseless. As discussed above, the encounter between the appellant and the Andreses was a chance
encounter and the appellant's gun was in the glove compartment of his car even before he left his house.
The shooting was clearly a spur of the moment or impulsive decision made by the appellant preceded by a
heated altercation at the instance of the private complainant. Jurisprudence reaches us that under the
circumstances, treachery is not obtaining. In the case of People vs. Valles, the accused, a security guard,
fired his Armalite and mortally wounded the victim when the latter approached the accused four times
insisting on entering the workplace wearing improper uniform, then cursed and insulted and challenged the
accused to a fight. We held that the shooting was not attended by treachery as the shooting was preceded
by a heated altercation at the instance of the victim. It is to be noted that the kind of weapon used against
an unarmed victim was not taken into consideration in determining the attendance of treachery; it is the
mode of attack employed by the accused under the particular circumstances of a case that determines its
attendance in the commission of a crime. We find that the prosecution has not discharged its burden to
show that the shooting was attended by treachery and we are convinced that the crime committed for the
death of Feliber Andres is homicide.

7. ID.; PHYSICAL INJURIES; ACCUSED SHOULD BE CONVICTED THEREOF IN CASE OF DOUBT AS TO HIS
HOMICIDAL INTENT. As regards the injuries sustained by the two children we find that the crime
committed are two counts of slight physical injuries. The intent to kill determines whether the crime
committed is physical injuries or homicide and such intent is made manifest by the acts of the accused
which are undoubtedly intended to kill the victim. In a case wherein the accused did not know that a
person was hiding behind a table who was hit by a stray bullet causing superficial injuries requiring
treatment for three days, the crime committed is slight physical injuries. In case of doubt as to the
homicidal intent of the accused, he should be convicted of the lesser offense of physical injuries.
8. ID.; SLIGHT PHYSICAL INJURIES; ACCUSED FOUND GUILTY THEREOF IN CASE AT BAR; PENALTIES.
We have earlier pointed out that the intent to kill is absent in this case. It was also found that one small
metallic fragment was extracted from Kenneth below his left eye while another fragment was extracted
from Kevin "immediately below the level of his skin before the cheek bone." An examination of the
testimonies of the attending physicians, showed that the wounds sustained by the two children from the
metallic fragments are not in themselves fatal but may cause death if left untreated. One of the attending
physician testified in court that the fragments themselves "will not cause complication, it is the entry of the
14

fragment" or the open wound that is susceptible to infection. Two small fragments were no longer
extracted from the face of Kevin Valdez, as the doctor deemed it to be without danger of complication. We
note that the various sizes of the metallic fragments were not established, at least to give an indication of
the severity of the wounds sustained. Both children were discharged after six days of treatment and there
is no showing that they required subsequent treatment or that they were immobilized for a greater number
of days by reason of the injuries sustained. Considering the nature and location of their injuries and the
number of days required for their treatment, we find that the crime committed for the injuries sustained by
the children are two counts of slight physical injuries under Art. 266 of the Revised Penal Code which
imposes a penalty of arresto menor or imprisonment for 1 to 30 days for injuries sustained that has
incapacitated the victim for one to nine days or required medical attendance for the same period. For
evident lack of criminal intent to kill the complainant, Noel Andres, as above stated, the information for
attempted homicide must fail.
9. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; CANNOT BE APPRECIATED IN FAVOR OF
ACCUSED IN CASE AT BAR. The mitigating circumstances of voluntary surrender, passion and
obfuscation, incomplete defense of a relative and lack of intent to commit so grave a wrong, pleaded by the
defense, were not convincingly proved and none can be considered in the imposition of penalties. The
testimony of prosecution witness contradicts the appellant's pretense of voluntary surrender. Witness
Ramos testified that the appellant drove away towards the gate of the memorial park while he was
questioning him after the shooting and had not Noel Andres and onlookers blocked his path the appellant
could have fled the scene of the crime.
10. ID.; ID.; PASSION AND OBFUSCATION; REQUISITES TO BE APPRECIATED; PROVOCATION MUST BE
COMMENSURATE TO CRIME COMMITTED; CASE AT BAR. The mitigating circumstance of passion and
obfuscation is also not obtaining. For this mitigating circumstance to be considered, it must be shown that
(1) an unlawful act sufficient to produce passion and obfuscation was committed by the intended victim;
(2) that the crime was committed within a reasonable length of time from the commission of the unlawful
act that produced the obfuscation in the accused's mind; and that (3) "the passion and obfuscation arose
from lawful sentiments and not from a spirit of lawlessness or revenge." Noel Andres' act of shouting at the
appellant's son, who was then a nurse and of legal age, is not sufficient to produce passion and obfuscation
as it is claimed by the accused. Besides, the appellant's son, Dino was shouting back at Noel Andres. It was
not a case wherein the appellant's son appeared helpless and oppressed that the appellant lost his reason
and shot at the FX of Noel Andres. The same holds true for the appellant's claim of provocation on the part
of Noel Andres. Provocation must be sufficient to excite a person to commit the wrong committed and that
the provocation must be commensurate to the crime committed. The sufficiency of provocation varies
according to the circumstances of the case. The aggressive behavior of Noel Andres towards the appellant
and his son may be demeaning or humiliating but it is not sufficient provocation to shoot at the
complainant's vehicle. cTCADI
11. ID.; ID.; INCOMPLETE DEFENSE OF RELATIVE; CURSING AND SHOUTING AT ACCUSED AND HIS SON
DO NOT AMOUNT TO UNLAWFUL AGGRESSION. The plea for the appreciation of the mitigating
circumstance of incomplete defense of a relative is also unmeritorious since the act of Andres in cursing
and shouting at the appellant and his son do not amount to an unlawful aggression against them, Dino
Gonzalez.
12. ID.; ID.; LACK OF INTENT TO COMMIT SO GRAVE A WRONG; TO BE APPRECIATED THERE MUST BE
NOTABLE DISPARITY BETWEEN THE MEANS EMPLOYED TO COMMIT A WRONG AND THE RESULTING
CRIME COMMITTED; CASE AT BAR. The plea for the appreciation of the mitigating circumstance of lack
of intent to commit so grave a wrong is likewise devoid of merit. This mitigating circumstance is obtaining
when there is a notable disparity between the means employed by the accused to commit a wrong and the
15

resulting crime committed. The intention of the accused at the time of the commission of the crime is
manifested from the weapon used, the mode of attack employed and the injury sustained by the victim.
The appellant's use of a gun, although not deliberately sought nor employed in the shooting, should have
reasonably placed the appellant on guard of the possible consequences of his act. The use of a gun is
sufficient to produce the resulting crimes committed.
13. ID.; HOMICIDE; ACCUSED FOUND GUILTY THEREOF IN CASE AT BAR; PENALTIES. For the death of
Feliber Andres, and in the absence of any mitigating circumstance, the appellant is hereby sentenced to an
indeterminate sentence of 8 years and 1 day of prision mayor, in its medium period, as minimum to 14
years 8 months and 1 day of reclusion temporal in its medium period, as maximum.
14. ID.; PENALTIES; RULE ON IMPOSITION OF PENALTIES FOR COMPLEX CRIMES NOT APPLICABLE TO
CASE AT BAR. The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised
Penal Code are not applicable in this case. Art. 48 applies if a single act constitutes two or more grave and
less grave felonies or when an offense is a necessary means of committing another; in such a case, the
penalty for the most serious offense shall be imposed in its maximum period. Art. 9 of the Revised Penal
Code in relation to Art. 25 defines grave felonies as those to which the law attaches the capital punishment
or afflictive penalties fromreclusion perpetua to prision mayor; less grave felonies are those to which the
law attaches a penalty which in its maximum period falls under correctional penalties; and light felonies are
those punishable by arresto menor or fine not exceeding two hundred pesos. Considering that the offenses
committed by the act of the appellant of firing a single shot are one count of homicide, a grave felony, and
two counts of slight physical injuries, a light felony, the rules on the imposition of penalties for complex
crimes, which requires two or more grave and/or less grave felonies, will not apply.
15. CIVIL LAW; DAMAGES; AWARD OF ACTUAL DAMAGES. The pecuniary award granted by the trial
court for actual damages was duly established by the testimonies of the prosecution witnesses as
supported by the original receipts for hospitalization and other medical expenses presented in evidence by
the prosecution.
16. ID.; ID.; AWARD FOR LOSS OF EARNING CAPACITY, SUSTAINED. The award for loss of earning
capacity is likewise sustained for the reason that while Feliber Andres was pregnant and was unemployed
at the time of death, it is not disputed that she was a registered nurse and had earning capacity. Noel
Andres also testified that he and his wife had plans to go back to Saudi Arabia to work after Feliber had
given birth to their second baby. While there is no evidence as to Feliber's actual income at the time of her
death, in view of her temporary separation from work because of her pregnancy, we do not consider it
reversible error for the trial court to peg her earning capacity to that of the salary of a government nurse
under the salary standardization law, as a fair estimate or reasonable assessment of her earning capacity at
the time of her death. It would be grossly inequitous to deny her spouse and her minor children damages
for the support that they would have received, considering clear evidence on record that she did have
earning capacity at the time of her death.
17. ID.; ID.; AWARD OF MORAL DAMAGES. The awards for moral damages for the death of Feliber
Andres and for the injuries sustained by the two children, which under the circumstances are reasonable,
are likewise sustained.
PARDO, J., dissenting opinion:
1. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; ELEMENTS. Treachery under Article 14,
paragraph 16 of the Revised Penal Code is defined as the deliberate employment of means, methods or
forms in the execution of a crime against persons which tend directly and specially, to insure its execution
without risk to the offender arising from the defense which the intended victim might raise. For treachery to
be appreciated, two elements must concur: (1) the employment of means of execution that would insure
16

the safety of the accused from retaliatory acts of the intended victim and leaving the latter without an
opportunity to defend himself or retaliate; and (2) the means of execution employed were deliberately or
consciously adopted by the offender.

2. ID.; ID.; ID.; APPRECIATED EVEN IF ATTACK IS FRONTAL IF THE SAME IS SUDDEN AND VICTIM WAS
UNARMED; CASE AT BAR. The means employed for the commission of the crime or the mode of attack
must be shown to have been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk of retaliation by the victim. At
the time of the shooting, the complainant was having a tiff with accused's son. He knew that the
complainant was not armed and there was no imminent and grave danger to the life of his son. His
conscious use of a firearm with pre-loaded multiple missile bullets against a defenseless man who was
totally unaware of the danger to his life, as the events moved fast and he did not even hear the shot
constitutes treachery. Accused insured the success of the crime without risk to himself arising from defense
or retaliation. The complainant could not defend himself from such firepower, much less retaliate. He was
without any firearm. Even if the attack was frontal, it was sudden and the victim was unarmed. Whether or
not the attack succeeds against its intended victim or injures another, or whether the crime committed is
graver than that intended is immaterial, as long as it is shown that the attack is attended by treachery, the
qualifying circumstance may still be considered.
3. ID.; ID.; ID.; PRESENT IN CASE AT BAR. We can not agree with the accused or the view of the
Solicitor General that the shooting was not attended by treachery. Noel Andres, who had his pregnant wife
and child with him in his Tamaraw FX could have provoked the situation but was not an aggressor. Initially
he touted the accused for his failure to observe traffic rules. However, after the altercation, complainant
Andres walked toward his vehicle because the altercation was over. On his way to the Tamaraw FX, he met
another man, who was the accused's son. It appears that Andres had another shouting match with
accused's son. Without ado, accused got his already pre-loaded pistol, alighted from his car and fired a
single shot at complainant Noel Andres. He was a poor shot. The single bullet hit instead Feliber Andres on
the forehead near the temporal region above the left eye and the splitting metallic shrapnels hit two
innocent children on their faces, one on the cheek and the other below the left eye. The intent to kill Noel
Andres was evident when accused fired away at him. Accused knew that his son was not physically
threatened. Whether Noel Andres was seated at the driver's seat inside his vehicle when accused Gonzalez
fired, as the prosecution contends or was standing by the door of the driver's seat outside his vehicle, as
the defense submits, there is no question that the shot was directed at complainant Noel Andres. However,
as heretofore stated, the accused was a poor shot. He made up by arming himself with a semi-automatic
pistol loaded with multi-missile bullet that splintered like a shotgun bullet. His son was not in danger. He
knew that complainant could easily be pacified without resorting to shooting. Whether accused overreacted or he shot at Andres out of rage, one thing appears clear to us: the accused deliberately shot
complainant Noel Andres treacherously in cold blood. However, it was his wife who was fatally hit in the
head (aberratio ictus) and shrapnels hit two young innocent children. By an act of God, she delivered a
baby girl alive but gave her life to Him. The shooting was a deliberate act of the accused. We are convinced
that the shooting was attended by treachery that qualified the crime to murder aggravated by the use of a
semi-automatic pistol specially fitted with murderous missile. The crime committed for the killing of Feliber
Andres was murder, qualified by treachery and aggravated by the use of firearm.cSHIaA
4. ID.; FRUSTRATED HOMICIDE; COMMITTED BY ACCUSED IN CASE AT BAR; INTENT TO KILL EVIDENT
FROM THE USE OF DEADLY WEAPON. As regards the injuries suffered by the two children, we agree
with the Solicitor General that the crime committed was two counts of frustrated homicide. The intent to kill
was evident with the use of deadly weapon specially loaded with multi-missile bullets and such intent was
17

clearly made manifest by the acts of the accused undoubtedly intended to kill the victims. An examination
of the testimonies of the attending physicians showed that the wounds sustained by the two children from
the metallic fragments may cause death if left untreated. One of the attending physicians testified that the
fragments themselves will not cause complications; however, it is the entry of the fragments or the open
wound that is susceptible to infection. Two small fragments were no longer extracted from the face of
Kevin Valdez as the doctors deemed it to be without danger of complication, but this could still be life
threatening. None of the mitigating circumstances pleaded by the accused was convincingly proved to be
attendant and none may be considered in the imposition of the penalties.
DECISION
GONZAGA-REYES, J p:
Many unfortunate tragedies would not have happened if the improvident use of a firearm did not
exacerbate a simple altercation over traffic. This is one of them.
On a day intended to pay homage to the dead, a pregnant woman was shot to death in the course of her
husband's altercation with the accused-appellant and his son along the Garden of Remembrance within the
Loyola Memorial Park in Marikina. The trial court found the accused guilty of the complex crime of murder
and two counts of frustrated murder and accordingly sentenced him to death. This case is before us on
automatic review.
The details of what actually transpired in the few seconds immediately preceding the shooting are
controverted by both parties but the events leading to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of the private complainant Noel
Andres and that of the accused-appellant Inocencio Gonzalez were on their way to the exit of the Loyola
Memorial Park. The appellant was driving a white Isuzu Esteem with his grandson and three housemaids,
while the private complainant was driving a maroon Toyota FX with his pregnant wife Feliber Andres, his
two year old son, Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At the intersection near
the Garden of Remembrance, while the accused-appellant Gonzalez was turning left towards the exit and
the complainant Noel Andres was headed straight along the road to the exit their two vehicles almost
collided. Noel Andres was able to timely step on the brakes. The appellant continued driving along his way
while Noel Andres drove behind the appellant's vehicle for some time and cut him off when he found the
opportunity to do so. 1 Noel Andres then got out of his vehicle and knocked on the appellant's car
window. 2 This is as far as their versions of the incident coincide.
The prosecution's version of the incident is that Noel Andres calmly told the appellant to be careful with his
driving and informed the latter that he, Andres, is with his family and to this Gonzalez allegedly replied,
"Accidents are accidents, what's your problem." Andres stated that he saw the appellant turning red in
anger so he decided to go back to his vehicle when he was blocked by the appellant's son who said,
"Anong problema mo sa erpat ko." Andres testified that he felt threatened and so he immediately boarded
his vehicle, sat at the driver's seat, closed the door, and partially opened the car window just wide enough
to talk back to appellant's son, Dino. Suddenly, one of his passengers said "Binaril kami". He turned to his
wife Feliber Andres and saw her bloodied and unconscious. He turned around and saw his son Kenneth and
nephew Kevin were also wounded. Andres admitted in court that he and Dino were shouting at each other
so that he did not hear the shot. Andres then got out of his vehicle to warn the appellant not to flee. He
then took the wounded members of his family to the exit where there was an ambulance standing by. The
three were then taken to the Sta. Monica Hospital and were later transferred to the Quezon City Medical
Center.

18

The defense's version of the incident is that Andres cut the appellant's path by positioning his FX obliquely
along the appellant's lane from the latter's left side. Andres then got out of his vehicle, stood beside the
appellant's car window, and repeatedly cursed the appellant, "Putang ina mo, ang tanda-tanda mo na hindi
ka pa marunong magmaneho. Ang bobo-bobo mo." 3 The appellant stayed inside his car and allegedly
replied, "Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang." The appellant Gonzalez and
another witness for the defense, Quidic, testified that Noel Andres went back to his vehicle to move it in
such a way that it is straight in front of the appellant's car. Andres allegedly got out of his vehicle again and
continued shouting and cursing at the appellant. 4 Dino, the appellant's son, who rode in another vehicle
decided to go back when he did not see his father's car behind him. When Dino arrived at the scene he
confronted Andres and the two had an altercation. Both Dino and the appellant stated that Andres
remained outside his vehicle during the altercation with Dino. When Andres suddenly reached for
something inside his vehicle, Dino froze on the spot where he stood. This prompted the appellant to get his
gun from the glove compartment and feeling that his son was threatened he got out of his car ready to
shoot. When he saw that Andres did not have a weapon he put down his hand holding the gun. This is
when the appellant's daughter Trisha who was riding in Dino's car arrived at the scene, walked past Dino
and Andres, and pushed the appellant away. She hugged her father and in the process held his hand
holding the gun. The appellant tried to free his hand and with Trisha's substantial body weight pushing
against him the appellant lost his balance and the gun accidentally fired. The accused stated that he did not
know he shot somebody until the private complainant's sister-in-law, Francar Valdez, got out of the vehicle
carrying a bloodied small boy. The defense claims that the appellant did not try to flee and even told the
complainant's sister-in-law to take the wounded to the hospital.

On November 4, 1998 an Information for the complex crime of Murder, Double Frustrated Murder and
Attempted Murder was filed against herein accused-appellant:
"That on or about the 31st day of October 1998, in the city of Marikina, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and
feloniously with intent to kill, attack, assault and employ personal violence by means of treachery and
abuse of superior strength upon the person of Noel Andres y Tomas, by then and there shooting him with a
Glock cal. 9mm pistol but instead hitting one Feliber Andres y Ordoo, on the left back portion of her head,
thereby inflicting upon her serious and mortal wound which directly caused her death, as well as hitting
John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily would have
caused their death, thus performing all the acts of execution which would have produced the crime of
murder as a consequence, but nevertheless did not produce it by reason of some cause or causes,
independent of their will, that is, the timely and able medical assistance rendered to John Kenneth
Andres y Ordoo and Kevin Valdez y Ordoo to their damage and prejudice as well as to the damage and
prejudice of the heirs of Feliber Andres y Ordoo."
On arraignment the accused-appellant pleaded "not guilty" to the crimes charged.
The case records show that Feliber Andres, the wife of Noel Andres did not die instantaneously. She lived to
give birth to a baby girl 5 by caesarian section and died the following morning on November 1, 1998. The
Autopsy Report 6 states:
"FINDINGS: Fairly nourished, fairly developed female cadaver, with post mortem lividity. Conjunctivae are
pale. Lips and nail beds are cyanotic. Surgical incisions were noted at left tempero-parietal region. Surgical
incisions is also noted at the abdominal region secondary to a caesarian section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal region, measuring 1 by 0.9 cm, 9 cm from
the anterior midline, with a uniform abraded collar measuring 0.2 cm., directed posteriorwards, slightly
19

downwards, and medialwards, fracturing the frontal, and left temporal bones, lacerating the left cerebral
hemisphere, with a deformed slug fragment embedded and recovered at the posterior lobe of the left
cerebral hemisphere. (2) hematoma, left orbital region, measuring 4.5 by 2 cm, 4 cm from the anterior
midline. There are subdural and subarachnoidal hemorrhages. Stomach contains 1-1/2 glassful of partially
digested food particles mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head."
Kenneth and Kevin were treated for extraction of metallic fragments on their faces. They were discharged
from the hospital six days later or on November 6, 1998.
On June 25, 1999 the trial court rendered judgment finding that the shooting was attended by the
qualifying circumstance of treachery and held the appellant guilty of the complex crime of murder for the
death of Feliber Andres and for two counts of frustrated murder for the injuries sustained by Kenneth
Andres and Kevin Valdez and sentenced the appellant to the maximum of the imposable penalty which is
death. The trial court held:
"Beforehand, the Court takes note of the judicial admissions on the verbal declarations of the accused that
the court 'a quo' has jurisdiction over the case; that he owns the black Gluck 9 mm. automatic pistol; that
the said gun will never fire even if he drops it; that only one bullet was fired from his gun; and that the
victim Feliber Andres is already dead. With this exegesis and the declarations in open court of the
eyewitness of both the prosecution and some of the defense, there is no real dispute on the antecedent
facts showing that the accused fired on Noel Andres but instead hit and caused the fatal injuries to the
victims John Kenneth Andres, Kevin Valdez and Feliber Andres resulting to the ultimate death of the latter.
The court takes further judicial admissions of the accused made in their memorandum demonstrating the
existence of five (5) sequences of events leading to the death of Feliber Andres and the wounding of John
Kenneth Andres and Kevin Valdez which are as follows: First is when Noel Andres overtook the car driven of
the accused and cut cross his path; Second is when Noel Andres alighted from his vehicle and confronted
Inocencio; Third is when Noel had an argument with Dino Gonzalez, the son of the accused; Forth is when,
Inocencio seeing his son having confrontation with Noel, got his gun to protect Dino; and Fifth is when
Inocencio had a struggle with his daughter. Trisha Gonzalez, who tried to reach for the gun and as a result
of which Inocencio lost his balance and as he was falling backward to his side, his right arm holding the
gun hit the rear window of the Tamaraw FX van and the gun accidentally went off hitting the victim, who
were all then inside the van.
The court likewise take judicial notice on the feature of the automatic pistol used in this case which is
capable of unquestionable demonstration or ought to be known to judges because of their judicial
functions. Practically, the stages before an automatic firearm would be capable of firing are as follows: 1)
the loading of a bullet into the chamber of the gun; 2) the cocking of the hammer, if uncocked; 3) the
releasing of the safety pin; 4) the pressing of the trigger to unleash the hammer so that the firing pin will
hit the cartridge to propel the bullet out to hit the target. Realistically, it demonstrates that a gun will not
fire even if the bullet is loaded in its chamber if the hammer is uncocked; or even if cocked if the safety pin
is engaged; or even if the safety pin is disengaged if the trigger will not be pressed. However, even if the
gun is fired if it is not aimed and leveled to the target, the purpose of firing it shall not be achieved.
Contrarily, once a gun is drawn against a person, the means methods and forms employed for its execution
is already conceived. And once it is tended directly and specifically to insure its execution, it consequently
produces the conscious and deliberate intention. Finally if all the acts of execution had been effectively
done without risk on the part of the offender arising from any defense coming from the offended party,
treachery results. In brief, there is treachery when the offender commits any crime against persons,
employing means, methods and forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from any defense which the offended party might make (People
20

vs. Mesa, 276 SCRA 407; People vs. Carlos Patrolla, Jr., G. R. No. 112445, March 7, 1996). To appreciate
treachery two (2) conditions must be present, to wit: 1) the employment of means of execution that give
the person attacked no opportunity to defend himself or retaliate; and 2) the means of execution were
deliberately or consciously adopted. (People vs. Azugue, 268 SCRA 711; People vs. Pea, G. R. No. 116022,
July 1, 1998, p. 1)
In the case at bar and guided with the above-quoted doctrinal cases, logically, the accused is positive of
the crime charged against him. When he alighted with a drawn gun to protect his son and released all the
safety measures of his gun as he fired and missed at Noel who was then unarmed, but instead hit Kevin
Valdez, John Kenneth Andres and Feliber Andres which resulted to the death of the latter, demonstrate that
the accused has executed the two (2) conditions to generate treachery enough to qualify the crime
committed to murder."
xxx xxx xxx
"WHEREFORE, foregoing premises considered, the accused Inocencio Gonzalez, Jr., y Esquivel is hereby
found guilty beyond reasonable doubt of the complex crime of Murder with Double Frustrated Murder and
Attempted Murder penalized under Art. 248, as amended by Republic Act No. 7659 in relation to Article 48
of the Revised Penal Code and is sentenced to suffer the maximum penalty of Death by lethal
injection. cDHAES
The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the deceased Feliber
Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses incurred for the injuries sustained by the
deceased Feliber Andres and the amount of P23,622.58 representing the expenses for the untimely delivery
of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses for the injuries sustained by the
victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the untimely death of his wife Feliber Andres
and for the injuries caused to his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney's fees and a fee of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries sustained by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
SO ORDERED."
In his appeal, Gonzalez submits the following assignments of error:
"1. The trial court committed reversible error when it found that treachery was present.
21

2. The trial court committed reversible error when it presumed that there was treachery by taking judicial
notice of the feature of the automatic pistol involved in this case.
3. The trial court committed reversible error when it violated the constitutional right of the accusedappellant to due process when it took judicial notice of the feature of the automatic pistol involved in this
case without notice.
4. The trial court committed reversible error when it found Accused-Appellant guilty beyond reasonable
doubt of the complex crime of Murder with Double Frustrated Murder.

5. The trial court committed reversible error when it failed to appreciate the mitigating circumstances of
passion or obfuscation, lack of intention to commit so grave a wrong, provocation or threat on the part of
the offended party immediately preceded the act, incomplete defense of relative, and voluntary surrender.
6. The trial court committed reversible error when it failed to find that the shooting incident was accidental.
7. The trial court committed reversible error when it gave credence to the testimonies of prosecution
witnesses Elmer Ramos and Moises Castro.
8. The trial court committed reversible error when it disregarded the basic principle that the accused is
presumed innocent and his guilt must be proven beyond reasonable doubt.
9. The trial court committed reversible error when it ordered Accused-Appellant to pay for the civil
liabilities."
The appellant seeks a reversal and prays that judgment be rendered exempting him from criminal and civil
liabilities. Appellant declared that he had no intention to shoot Noel Andres much less his wife nor the
children. He lost his balance when his daughter Trisha approached and pushed him backwards to stop him
from joining Dino and Noel Andres but the appellant tried to free his right hand holding the gun and it
accidentally fired. The single bullet fired hit the last window on the left side of the Tamaraw FX. The
appellant claims that he did not see the passengers inside the vehicle at the time of the shooting. This is
corroborated by the testimony of two witnesses for the prosecution who testified that the windows of
Andres' vehicle are heavily tinted so that a person outside the vehicle would not be able to see if there are
people inside. It is also argued that had the appellant intended to shoot Noel Andres he could have simply
done so by shooting at him directly. The defense asserts that the evidence for the prosecution failed to
establish the attendance of treachery and without the attendance of the said qualifying circumstance the
crime committed is homicide, not murder.
The appellant also points out that the trial court made the factual finding that the shooting happened in a
matter of seconds and that it was preceded by a heated argument between the parties. Such being the
case, it is argued that the shooting could not have been attended by treachery. There was no time for the
appellant to consciously and deliberately employ the mode of attack against Noel Andres, nor against any
one of the actual victims, to insure its execution and at the same time to eliminate any form of retaliation
from the alleged intended victim. And yet, the trial court, contrary to the evidence on record, held that the
loading of the bullet into the chamber of the gun, the cocking of the hammer, the release of the safety pin
and the pulling of the trigger by the appellant of his automatic pistol constitute conscious and deliberate
effort to employ the gun as a means of committing the crime and resultantly, qualified its commission by
treachery. Such a finding presupposes that the appellant loaded the gun to shoot Noel Andres only that
very moment when his son Dino and Noel Andres were arguing. This conclusion has no basis on record.
The appellant testified that his gun was loaded before he left the house and two witnesses for prosecution
stated in court that a few seconds after Noel Andres and Dino started shouting at each other, the appellant
22

got out of his car and shot at the last window on the left side of the complainant's vehicle. Further, the
appellant assigns as error the procedure adopted by the trial court in taking judicial notice that the gun
used by the appellant is an automatic pistol and as such, it will not fire unless aimed at the intended
target. The procedure taken by the trial court is contrary to Section 3, Rule 129 of the Rules of
Court. 7 The trial court should have given both parties the opportunity to present evidence, expert
evidence, if necessary, to inform the court on the subject matter. The appellant argues that the factual
finding borne by such erroneous procedure is equally erroneous. The gun used by the appellant is a semiautomatic and not an automatic pistol which means that the pistol used has no external safety pin to be
released and that the hammer need not be cocked. The pulling of the trigger, intentional or not, will fire the
gun. The use of a semi-automatic pistol does not necessarily imply treachery.
Appellant also argues that the testimonies of prosecution witnesses Castro and Ramos were improperly
given credence by the trial court. The appellant contends that a reading of their testimonies would show
that their narration of the incident is rather absurd and would show that they did not witness the actual
shooting. Defense witnesses, Gonzalez and his daughter, Trisha, on the other hand, testified that Castro
and Ramos arrived at the scene only after the shooting.
As regards the injuries sustained by Kevin and Kenneth, it is argued that considering that there was no
intent to kill and that they stayed in the hospital only for six days, the crime committed is physical injuries.
It is argued that the trial court erred in awarding damages. The bunch of receipts allegedly representing
the medical expenses incurred for the injuries sustained by the victims was erroneously admitted in
evidence, without first requiring the prosecution to establish the authenticity of the receipts. The appellant
also points out that the award for loss of earning capacity has no basis as the deceased was unemployed at
the time of the incident.
Finally, the appellant assigns as error the trial court's rejection of the mitigating circumstances pleaded by
the defense which allegedly attended the commission of the crime, i.e., lack of intent to commit so grave a
wrong, passion and obfuscation, incomplete defense of a relative and voluntary surrender. The appellant
asserts that these mitigating circumstances were duly proven during the trial and are supported by the
evidence on record. The private complainant Noel Andres testified that he saw the appellant getting red in
anger after they, Andres and the appellant, had a heated argument immediately prior to the shooting.
These admitted circumstances show that the appellant was not in his proper state of mind at the time of
the shooting. First, he was angered by Andres' abusive language and later he got out of his car with a
loaded gun to protect his son from a perceived danger. The appellant claims that his willingness to help the
injured and his voluntary surrender to the police should likewise be considered as mitigating circumstances
in the imposition of penalties.
The Solicitor-General agrees with the appellant that the crime was not attended by the qualifying
circumstance of treachery and hence the crime committed by the appellant for the death of Feliber Andres
is homicide, not murder. The appellee takes into consideration that the shooting was preceded by a heated
argument and that the supposed victim was placed on guard that attack was imminent. It also appears that
the shooting was done impulsively. There is no evidence that the appellant deliberately employed the
means of attack to insure execution of the crime and at the same time eliminate the risk of retaliation from
the private complainant. The appellee also agrees with the appellant that the trial court erred in equating
the use of an automatic pistol with treachery. The trial court made the factual finding that the appellant's
automatic pistol would not fire unless aimed and the trigger is deliberately pulled and hence treachery
attended the shooting. The appellee submits that if we follow the reasoning of the trial court it would
appear that the appellant intended to shoot at the complainant's vehicle only as the shot was fired at the
last window on the left side of the FX away from where Andres was allegedly seated. The fact that the gun
was drawn and fired does not mean that the mode of attack was consciously and deliberately employed.
23

However, with respect to the injuries sustained by Kevin and Kenneth, the appellee disagrees with the
contention that the appellant is liable only for slight physical injuries. The injuries sustained by both children
are head injuries and could have caused their death if not for the immediate medical attention given them.
The number of days spent in the hospital is not determinative of the severity of the wounds. Their nature
and location should instead be considered. The appellant cannot escape liability for frustrated homicide for
the injuries of the two children on the ground that he fired a single shot at the vehicle of Noel Andres. He is
liable for all the consequences of his unlawful act even if the crime committed is different from that
intended.
As regards the pleaded mitigating circumstances, appellee asserts that none can be considered in favor of
the appellant. There is evidence on record that the appellant did not voluntarily surrender to the police and
it appears from the testimonies of witnesses that he entertained the possibility of flight but his car was
stuck in traffic along the exit of the memorial park. His pretense of incomplete defense of a relative is
belied by his own admission that when he saw that Noel Andres did not have a gun he lowered his hand
holding the gun. There was allegedly no threat on the life of his son at the time of the shooting, no
uncontrollable fear nor irresistible force that would mitigate the commission of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards granted by the trial court. The appellee
alleges that it is not denied by the appellant that Feliber Andres was a 38 year old registered nurse at the
time of the shooting. Although she was then unemployed on account of her pregnancy, she still had
earning capacity and the trial court properly applied the salary of a government nurse under the salary
standardization scheme in the computation of damages for the loss of earning capacity. The receipts
presented in evidence by the prosecution to establish hospitalization and other medical expenses incurred
by the private complainants by reason of the injuries suffered by the victims were duly authenticated by the
prosecution witnesses and there is no dispute that they are exact copies of the original receipts presented
in court. The objections raised by the appellant in this regard were duly met by the evidence presented by
the private complainants.

In sum, the appellee asserts that considering that the appellant fired a single shot and in the process
committed four offenses the appellant should be held liable for the complex crime of homicide for the death
of Feliber Andres, double frustrated homicide against Kevin and Kenneth and attempted homicide against
Noel Andres. Under the rules on complex crimes the penalty for the gravest offense, i.e., reclusion
temporal for homicide, should be imposed in its maximum period.
The appeal has merit.
Treachery under par. 16 of Article 14 of the Revised Penal Code is defined as the deliberate employment of
means, methods or forms in the execution of a crime against persons which tend directly and specially to
insure its execution, without risk to the offender arising from the defense which the intended victim might
raise. For treachery to be appreciated two elements must concur: 1) the employment of means of
execution that would insure the safety of the accused from retaliatory acts of the intended victim and
leaving the latter without an opportunity to defend himself and 2) the means employed were deliberately or
consciously adopted by the offender. 8 The suddenness of the attack, the infliction of the wound from
behind the victim, the vulnerable position of the victim at the time the attack was made or the fact that the
victim was unarmed do not by themselves render the attack as treacherous. 9 This is of particular
significance in a case of an instantaneous attack made by the accused whereby he gained an advantageous
position over the victim when the latter accidentally fell and was rendered defenseless. 10 The means
employed for the commission of the crime or the mode of attack must be shown to have been consciously
or deliberately adopted by the accused to insure the consummation of the crime and at the same time
24

eliminate or reduce the risk of retaliation from the intended victim. 11 Accordingly, it has been consistently
held by this court that chance encounters, impulse killing or crimes committed at the spur of the moment or
that were preceded by heated altercations are generally not attended by treachery for lack of opportunity
of the accused to deliberately employ a treacherous mode of attack. 12 Thus, the sudden attack made by
the accused due to his infuriation by reason of the victim's provocation was held to be without treachery.
Sudden attacks made by the accused preceded by curses and insults by the victim or acts taunting the
accused to retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery
as the victim was sufficiently forewarned of reprisal. 13 For the rules on treachery to apply the sudden
attack must have been preconceived by the accused, unexpected by the victim and without provocation on
the part of the latter. 14
This Court has also had occasion to state that whether or not the attack succeeds against its intended
victim or injures another or whether the crime committed is graver than that intended is immaterial, as long
as it is shown that the attack is attended by treachery, the said qualifying circumstance may still be
considered by the court. 15 Thus, the determining factor on whether or not the commission of a crime is
attended by treachery is not the resulting crime committed but the mode of attack employed in its
execution. 16
Treachery is never presumed. It is required that the manner of attack must be shown to have been
attended by treachery as conclusively as the crime itself. 17
We affirm the recommendation of the Solicitor-General that the shooting was not attended by treachery
and accordingly the crime committed for the death of Feliber Andres is homicide and not murder.
The encounter between Noel Andres and the appellant was a chance encounter. They were total strangers
before their vehicles almost collided at an intersection inside the memorial park. Unfortunately, heated
exchange of remarks that followed the near collision was fanned by a short temper, which in the case of
the appellant, was augmented by the improvident use of a firearm.
From a reading of the transcript of the testimonies of the witnesses, it would appear that Noel Andres, who
had his pregnant wife and child with him, among others, on board the Tamaraw FX provoked the
altercation. After the near collision of his vehicle with that of the appellant, he tailed behind the latter's car
towards the exit until he had the chance to cut him off to scold him for his failure to observe traffic
rules. 18 Andres stated in court that he calmly told the appellant to be careful with his driving and denied
that he was angry when he alighted from his vehicle to confront the appellant. 19 His statement is belied
by the witnesses, two prosecution witnesses included, who uniformly testified that Andres quarreled with or
shouted and cursed at the appellant for the latter's recklessness at the intersection. 20 The appellant
narrated in court that Andres repeatedly shouted at him, "Putang ina mo, ang tanda-tanda mo na gago ka
pa". 21 Andres' hostile behavior towards the appellant is evident from his statement in court that he
noticed the appellant turning red in anger. 22 It is highly improbable for Gonzalez to have turned red in
anger had Andres been polite, as he claims he was, in scolding Gonzalez. Andres could have simply
communicated to the appellant his disgust for the latter's bad driving when he overtook the appellant's car
near the scene of the shooting but instead he chose to block the appellant's path, insult and virtually
provoke the appellant to retaliate.
Andres stated in court that when he noticed Gonzalez' infuriation he immediately walked towards his
vehicle, because according to him the altercation was over. On his way to his FX he met another man,
whom he later found out to be the appellant's son, Dino. It appears that the altercation was far from over
because again Andres had a shouting match this time with Dino. 23 In a matter of seconds, the appellant
alighted from his car and fired a single shot at the last window on the left side of Andres' vehicle at an
angle away from Noel Andres. The single bullet fired hit Feliber Andres on the forehead near the temporal
25

region above the left eye and the two children with metallic fragments of the bullet on their faces, one at
the cheek and the other below his left eye.
The prosecution did not present evidence as to the exact seating arrangement of the victims inside the
vehicle; suffice it to say, that an examination of the pictures of the vehicle 24 one of which shows a mass
of blood stains on the left side (towards the driver's seat) of the white seat cover below the head
rest, 25 would show that the deceased Feliber must have been seated at the front passenger's seat and
the children at the middle row behind the driver's seat. 26 Another picture shows a bullet hole on the last
window on the left side of the vehicle 27 and another shows that the front windshield appears
undamaged. 28 A ballistics expert appeared in court for the prosecution and testified that the bullet fired at
the FX came from the appellant's gun, which fact was admitted by the defense. The prosecution did not
inquire from the ballistics expert regarding the trajectory of the bullet or the approximate distance of the
appellant from the FX when he fired his gun to establish whether or not the appellant aimed for Noel or
Feliber or simply fired indiscriminately at the latter's vehicle. 29
At first blush it would seem that the shooting of Feliber Andres was attended by treachery as she was
inside the FX witnessing her husband's altercation, first, with the appellant then with the appellant's son,
totally defenseless from the shot that came suddenly from her left side. Public outrage over the death of
Feliber was heightened by the fact that she was then pregnant with her second child and her death left a
new born baby girl and a two year old boy motherless.
However, a meticulous review of the evidence prevents a conclusive finding of treachery and any doubt
must be resolved, like the fact of the commission of an offense, in favor of the accused. The pictures
indicate that Gonzalez fired at the FX at an angle away from Noel Andres and that Gonzalez was not aiming
at anybody in particular. It is not disputed that the appellant's car was directly behind the complainant's FX
and that Gonzalez who was then seated at the driver's seat alighted from his car, took a few steps then
fired at the left side of the FX. Whether Noel Andres was seated at the driver's seat inside his vehicle when
Gonzalez fired at the FX, as the prosecution asserts, or was standing by the door of the driver's seat
outside his vehicle, as the defense submits, it is clear that the shot was fired away from Noel Andres. The
bullet hit Feliber near her temple above the left eye indicating that she was facing left towards her husband
when the shot was fired. 30 The direct hit on Feliber's head shows that the angle of the shot was indeed
away from Noel Andres. Even the eyewitness for the prosecution testified that had the appellant intended
to kill Noel Andres he could have shot directly at him, considering that Noel Andres was just a few steps
away from him 31 and that Noel Andres was visible from the outside because his window was partially
open. 32 The pictures show that the bullet hole was on the third window on the left side of the Tamaraw
FX 33 belying any attempt to shoot Noel Andres. Two prosecution witnesses Ramos and Castro
unequivocally declared that "nothing or no one" prevented Gonzalez from shooting directly at Noel Andres
and that Gonzalez could have simply done so if he wanted to. But after alighting from his car, Gonzalez
took a few steps and shot at the left side window of the FX. 34

The fact that the appellant fired his gun from behind the victim does not by itself amount to treachery.
There is no evidence on record that the appellant deliberately positioned himself behind the victim to gain
advantage over him when he fired the shot. On the contrary, the evidence before us reveals that the
position of the appellant's car was not of his own doing but it became so when Noel Andres overtook his
car and cut off his path.
We note further, that the appellant did not act belligerently towards Noel Andres even after the latter cut
off the appellant's path. Andres stated in court that the appellant did not alight from his car nor opened his
window until he, Andres, tapped on it. 35 For his part Gonzalez categorically stated in court that he did not
26

point his gun nor threatened Andres during their short spat. 36 Gonzalez, although he had his gun in his
car, did not react to Andres' cursing until the latter was having an altercation with the appellant's son, Dino.
Gonzalez claimed that he perceived that his son was in imminent danger. 37 Whether he overreacted or he
shot at Andres' vehicle out of rage over Andres' aggressive behavior, one thing appears clear to us, that the
shooting was not done in cold blood. It is undisputed that the windows of the FX are heavily or darkly
tinted so that a person outside would not see if anybody was inside. 38 The pictures of the FX 39 on
record confirm the testimonies of both prosecution and defense witnesses that the other passengers of the
FX were not visible from the outside. Gonzalez admitted in court that Noel Andres mentioned that he has
passengers with him while he was shouting and cursing at Gonzalez but there is no indication that Gonzalez
had any opportunity to see the passengers when he fired the shot. The totality of the evidence on record
fails to support a conclusion that Gonzalez deliberately employed the mode of attack to gain undue
advantage over the intended nor the actual victim. Without any decisive evidence to the contrary, treachery
cannot be considered; thus the crime committed is homicide. 40
The trial court's finding that the loading of the gun, the cocking of the hammer and finally the pulling of the
trigger constitute a deliberate effort on the part of appellant to use the gun as a means of a treacherous
attack is patently erroneous. A single and continuous attack cannot be divided into stages to make it
appear that treachery was involved. 41 The entire incident happened in a matter of minutes, as testified to
by witnesses, and as noted by the trial court. 42 It was error to our mind for the trial court to divide the
assault in stages to arrive at the conclusion that the mode of attack was consciously employed by the
appellant. Contrary to the finding of the trial court that the appellant prepared the gun before getting out of
his car, the appellant testified that he loaded his gun before he left the house and that it was ready to fire
when he alighted his car. There was no time for him to reflect on the mode of attack since he just picked
up his gun and alighted from his car and shot at the FX a few seconds after Dino and Noel Andres started
shouting at each other. 43 We note further that the trial court pointed out that from the fact that the
appellant prepared his gun to shoot, this was an indication of the deliberate employment of the gun as a
means to kill; i.e. that the use of an automatic pistol shows that the shooting was attended by
treachery. CcEHaI
We do not agree that the weapon used, by itself, is determinative of treachery, unless it is shown, and it is
not herein shown, that the appellant deliberately used the gun to insure the commission of the crime and to
render the unarmed victim defenseless. As discussed above, the encounter between the appellant and the
Andreses was a chance encounter and the appellant's gun was in the glove compartment of his car even
before he left his house. The shooting was clearly a spur of the moment or impulsive decision made by the
appellant preceded by a heated altercation at the instance of the private complainant. Jurisprudence
teaches us that under the circumstances, treachery is not obtaining. In the case of People vs.
Valles, 44 the accused, a security guard, fired his Armalite and mortally wounded the victim when the latter
approached the accused four times insisting on entering the workplace wearing improper uniform, then
cursed and insulted and challenged the accused to a fight. We held that the shooting was not attended by
treachery as the shooting was preceded by a heated altercation at the instance of the victim. It is to be
noted that the kind of weapon used against an unarmed victim was not taken into consideration in
determining the attendance of treachery; it is the mode of attack employed by the accused under the
particular circumstances of a case that determines its attendance in the commission of a crime. We find
that the prosecution has not discharged its burden to show that the shooting was attended by treachery
and we are convinced that the crime committed for the death of Feliber Andres is homicide.
As regards the injuries sustained by the two children we find that the crime committed are two counts of
slight physical injuries. The intent to kill determines whether the crime committed is physical injuries or
homicide and such intent is made manifest by the acts of the accused which are undoubtedly intended to
kill the victim. 45 In a case wherein the accused did not know that a person was hiding behind a table who
27

was hit by a stray bullet causing superficial injuries requiring treatment for three days, the crime committed
is slight physical injuries. 46 In case of doubt as to the homicidal intent of the accused, he should be
convicted of the lesser offense of physical injuries. 47 We have earlier pointed out that the intent to kill is
absent in this case. It was also found that one small metallic fragment was extracted from Kenneth below
his left eye while another fragment was extracted from Kevin "immediately below the level of his skin
before the cheek bone". 48 An examination of the testimonies of the attending physicians, showed that the
wounds sustained by the two children from the metallic fragments are not in themselves fatal but may
cause death if left untreated. One of the attending physician testified in court that the fragments
themselves "will not cause complication, it is the entry of the fragment" or the open wound that is
susceptible to infection. 49 Two small fragments were no longer extracted from the face of Kevin Valdez,
as the doctor deemed it to be without danger of complication. 50 We note that the various sizes of the
metallic fragments were not established, at least to give an indication of the severity of the wounds
sustained. Both children were discharged after six days of treatment and there is no showing that they
required subsequent treatment or that they were immobilized for a greater number of days by reason of
the injuries sustained. Considering the nature and location of their injuries and the number of days required
for their treatment, we find that the crime committed for the injuries sustained by the children are two
counts of slight physical injuries under Art. 266 of the Revised Penal Code which imposes a penalty
of arresto menor or imprisonment for 1 to 30 days for injuries sustained that has incapacitated the victim
for one to nine days or required medical attendance for the same period. For evident lack of criminal intent
to kill the complainant, Noel Andres, as above stated, the information for attempted homicide must fail.
The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of a
relative and lack of intent to commit so grave a wrong, pleaded by the defense, were not convincingly
proved and none can be considered in the imposition of penalties. The testimony of prosecution witness
contradicts the appellant's pretense of voluntary surrender. Witness Ramos testified that the appellant
drove away towards the gate of the memorial park while he was questioning him after the shooting and
had not Noel Andres and onlookers blocked his path the appellant could have fled the scene of the
crime. 51
The mitigating circumstance of passion and obfuscation is also not obtaining. For this mitigating
circumstance to be considered, it must be shown that (1) an unlawful act sufficient to produce passion and
obfuscation was committed by the intended victim; (2) that the crime was committed within a reasonable
length of time from the commission of the unlawful act that produced the obfuscation in the accused's
mind; and that (3) "the passion and obfuscation arouse from lawful sentiments and not from a spirit of
lawlessness or revenge." 52 Noel Andres' act of shouting at the appellant's son, who was then a nurse and
of legal age, is not sufficient to produce passion and obfuscation as it is claimed by the accused. Besides,
the appellant's son, Dino was shouting back at Noel Andres. It was not a case wherein the appellant's son
appeared helpless and oppressed that the appellant lost his reason and shot at the FX of Noel Andres. The
same holds true for the appellant's claim of provocation on the part of Noel Andres. Provocation must be
sufficient to excite a person to commit the wrong committed and that the provocation must be
commensurate to the crime committed. The sufficiency of provocation varies according to the
circumstances of the case. 53 The aggressive behavior of Noel Andres towards the appellant and his son
may be demeaning or humiliating but it is not sufficient provocation to shoot at the complainant's vehicle.
The plea for the appreciation of the mitigating circumstance of incomplete defense of a relative is also
unmeritorious since the act of Andres in cursing and shouting at the appellant and his son do not amount to
an unlawful aggression against them, Dino Gonzalez. Finally, the plea for the appreciation of the mitigating
circumstance of lack of intent to commit so grave a wrong is likewise devoid of merit. This mitigating
circumstance is obtaining when there is a notable disparity between the means employed by the accused to
commit a wrong and the resulting crime committed. The intention of the accused at the time of the
28

commission of the crime is manifested from the weapon used, the mode of attack employed and the injury
sustained by the victim. 54 The appellant's use of a gun, although not deliberately sought nor employed in
the shooting, should have reasonably placed the appellant on guard of the possible consequences of his
act. The use of a gun is sufficient to produce the resulting crimes committed.

For the death of Feliber Andres, and in the absence of any mitigating circumstance, the appellant is hereby
sentenced to an indeterminate sentence of 8 years and 1 day of prision mayor, in its medium period, as
minimum to 14 years 8 months and 1 day of reclusion temporal in its medium period, as maximum. For
each count of the slight physical injuries committed against Kenneth Andres and Kevin Valdez, the appellant
is hereby sentenced to 20 days of arresto menor in its medium period.
The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised Penal Code are not
applicable in this case. Art. 48 applies if a single act constitutes two or more grave and less grave felonies
or when an offense is a necessary means of committing another; in such a case, the penalty for the most
serious offense shall be imposed in its maximum period. Art. 9 of the Revised Penal Code in relation to Art.
25 defines grave felonies as those to which the law attaches the capital punishment or afflictive penalties
from reclusion perpetua to prision mayor; less grave felonies are those to which the law attaches a penalty
which in its maximum period falls under correctional penalties; and light felonies are those punishable
by arresto menor or fine not exceeding two hundred pesos. Considering that the offenses committed by the
act of the appellant of firing a single shot are one count of homicide, a grave felony, and two counts of
slight physical injuries, a light felony, the rules on the imposition of penalties for complex crimes, which
requires two or more grave and/or less grave felonies, will not apply.
The pecuniary award granted by the trial court for actual damages was duly established by the testimonies
of the prosecution witnesses as supported by the original receipts for hospitalization and other medical
expenses presented in evidence by the prosecution. The award for loss of earning capacity is likewise
sustained for the reason that while Feliber Andres was pregnant and was unemployed at the time of death,
it is not disputed that she was a registered nurse and had earning capacity. Noel Andres also testified that
he and his wife had plans to go back to Saudi Arabia to work after Feliber had given birth to their second
baby. While there is no evidence as to Feliber's actual income at the time of her death, in view of her
temporary separation from work because of her pregnancy, we do not consider it reversible error for the
trial court to peg her earning capacity to that of the salary of a government nurse under the salary
standardization law, as a fair estimate or reasonable assessment of her earning capacity at the time of her
death. It would be grossly inequitous to deny her spouse and her minor children damages for the support
that they would have received, considering clear evidence on record that she did have earning capacity at
the time of her death.
The awards for moral damages for the death of Feliber Andres and for the injuries sustained by the two
children, which under the circumstances are reasonable, are likewise sustained.
WHEREFORE, the decision of the trial court is hereby MODIFIED. The appellant is hereby found guilty of
homicide for the death of Feliber Andres and is sentenced to an indeterminate sentence of 8 years and 1
day of prision mayor in its medium period, as minimum, to 14 years 8 months and 1 day of reclusion
temporal in its medium period, as maximum. For each count of the slight physical injuries committed
against Kenneth Andres and Kevin Valdez, the appellant is hereby sentenced to 20 days ofarresto menor.
The pecuniary awards granted by the trial court are hereby sustained.
SO ORDERED.
29

Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Quisumbing, Buena, Ynares-Santiago, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.
Pardo, J., see dissenting opinion.
Puno, Kapunan, and Panganiban, JJ., joins the dissenting opinion of J. Pardo.
Separate Opinions
PARDO, J., dissenting:
We agree that there are indeed many unfortunate tragedies that have happened because of the
improvident use of a firearm to exacerbate a simple altercation over traffic. One was the Rolito Go case. He
shot in cold blood a college graduate of De la Salle University 1 after their cars nearly collided in a one-way
street, snuffing the young life of the victim. He was convicted of murder. This case is another such
senseless killing.
This case occurred on the eve of All Saints Day 1998, along the Garden of Remembrance within the Loyola
Memorial Park, Marikina City, Metro Manila. The trial court convicted the accused of murder and sentenced
him to death. The case is now before us on automatic review. The majority would convict the accused only
of homicide, not of murder. I regret that I cannot give my concurrence.
In the afternoon of October 31, 1998, at about 2:30, both the family of complainant Noel Andres and that
of accused Inocencio Gonzales were on their way to the exit of the Loyola Memorial Park, Marikina. The
accused was driving a white Isuzu Esteem van with his grandson and three housemaids, while the
complainant was driving a maroon Toyota FX with his pregnant wife Feliber Andres, his two year old son,
Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At the intersection near the Garden of
Remembrance, the accused Gonzales was turning left toward the exit while the complainant Noel Andres
was headed straight along the road to the exit; their two vehicles almost collided. Noel Andres was able to
step timely on the brakes. The accused continued driving along his way while Noel Andres drove behind
accused's vehicle for sometime and cut him off when he found the opportunity to do so. 2 Noel Andres got
out of his vehicle and knocked on the accused car's window. 3
According to complainant Noel Andres, he calmly told the accused to be careful with his driving and
informed the latter that he was with his family. To this, accused replied "Accidents are accidents, what's
your problem." Andres saw the accused turning red in anger, so he decided to go back to his vehicle when
he was blocked by accused's son who said "Anong problema mo sa erpat ko." Feeling threatened, Andres
immediately boarded his vehicle, sat at the driver's seat, closed the door and partially opened the car
window just wide enough to talk back to accused's son. Suddenly, one of his passengers said "binaril kami."
He turned to his wife Feliber Andres and saw her bloodied and unconscious. He turned around and saw his
son Kenneth and nephew Kevin also wounded. Noel Andres did not hear the shot. He got out of his vehicle
to warn the accused not to flee. He then took the wounded members of his family to the exit where there
was an ambulance standing by and the three injured were boarded in the ambulance to be brought to the
Sta. Monica Hospital and later transferred to the Quezon City Medical Center.
According to the accused, complainant Andres got out of his vehicle and repeatedly cursed the accused
while he stood beside the accused car's window. The accused stayed inside his car and replied. "Pasensiya
ka na hindi kita nakita, nasilaw ako. Aksidente lang." The complainant would not stop shouting and cursing
at him. Dino, the accused's son, who rode in another vehicle arrived at the scene, confronted complainant
Andres and the two had an altercation. Complainant Andres remained outside his vehicle during the
altercation with Dino. When complainant Andres tried to reach for something inside his vehicle, Dino froze
where he stood. This prompted the accused to get his gun from the glove compartment and feeling that his
son was threatened, got out of his car ready to shoot the complainant. When he saw that complainant
30

Andres was not armed, he put down his gun. At this point, accused's daughter Trisha arrived at the scene,
walked past Andres and pushed her father, the accused, away. She hugged him and in the process he fired
the gun accidentally. The accused did not know that he hit somebody until the complainant's sister-in-law,
Francar Valdez got out of the vehicle carrying a bloodied small boy. The accused claimed that he did not try
to flee and even pharisaically told the complainant's sister-in-law to bring the wounded to the hospital.
Perhaps he meant the cemetery.
On November 4, 1998, the prosecution filed with the Regional Trial Court, Marikina City, an Information
charging the accused with the complex crime of murder, double frustrated murder and attempted murder,
as follows:
"That on or about the 31st day of October 1998, in the City of Marikina, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and
feloniously with intent to kill, attack, assault and employ personal violence by means of treachery and
abuse of superior strength upon the person of Noel Andres y Tomas, by then and there shooting him with a
Glock cal. 9mm pistol but instead hitting one Feliber Andres y Ordoo, on the left back portion of her head,
thereby inflicting upon her serious and mortal wound which directly caused her death, as well as hitting
John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily would have
caused their death, thus performing all the acts of execution which would have produced the crime of
murder as a consequence, but nevertheless did not produce it by reason of some cause or causes,
independent of their will, that is, the timely and able medical assistance rendered to John Kenneth
Andres y Ordoo and Kevin Valdez y Ordoo to their damage and prejudice as well as to the damage and
prejudice of the heirs of Feliber Andres y Ordoo."
On arraignment, the accused pleaded "not guilty" to the charges. Trial ensued.
Feliber Andres, wife of complainant Noel Andres did not die instantaneously. She lived to give birth to a
baby girl 4 by caesarian section and died the following morning on November 1, 1998. Cause of death was
a gunshot wound on the head. 5

Doctors treated Kenneth and Kevin for extraction of metallic fragments on their faces. They were
discharged from the hospital six days later on November 6, 1998.
After due trial, on June 25, 1999, the trial court rendered a decision finding that the killing was attended by
the qualifying circumstance of treachery and holding the accused guilty of the complex crime of murder for
the killing of Feliber Andres and for two counts of frustrated murder for the injuries sustained by Kenneth
Andres and Kevin Valdez and sentenced the accused to death. The dispositive portion of the decision reads
as follows:
"WHEREFORE, foregoing premises considered, the accused Inocencio Gonzales, Jr., y Esquivel is hereby
found guilty beyond reasonable doubt of the complex crime of Murder with Double Frustrated Murder and
Attempted Murder penalized under Art. 248, as amended by Republic Act No. 7659 in relation to Article 48
of the Revised Penal Code and is sentenced to suffer the maximum penalty of Death by lethal injection.
"The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the deceased Feliber
Andres;
31

c) the amount of P98,384.19 as funeral expenses;

d) the amount of P271,800.56 for the hospitalization expenses incurred for the injuries sustained by the
deceased Feliber Andres and the amount of P23,622.58 representing the expenses for the untimely delivery
of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses for the injuries sustained by the
victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the untimely death of his wife Feliber Andres
and for the injuries caused to his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney's fees and a fee of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries sustained by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
"SO ORDERED."
In this review, the accused claimed that the shooting was purely accidental. This is another of his false
pretensions. He declared that he had no intention to shoot Noel Andres much less his wife nor the children.
He lost his balance when his daughter Trisha pushed him backward to stop him from joining the
confrontation between Dino and Noel Andres. He tried to free his right hand holding the gun and it
accidentally fired hitting the rear window of the left side of the Tamaraw FX. He claimed that he did not see
the passengers inside the vehicle at the time of the shooting. The accused asserted that the prosecution
failed to establish the attendance of treachery and without said qualifying circumstance, the crime
committed was homicide, not murder. We find such pretenses to be utterly false and bigoted. The evidence
plainly shows that he directly aimed his pre-loaded pistol with multi-missile bullets, released its safety
trigger and deliberately pulled the trigger aiming the gun at complainant Andres. What a poor shot he was.
The bullet hit the innocent pregnant wife of complainant. She did not die instantly, although she could
have. Divine intervention enabled her to give light to a baby girl born the next day.
The trial court held that the accused's act of loading the bullet into the chamber of the gun and the cocking
of the trigger of his automatic pistol constitute conscious and deliberate effort to employ the gun as a
means of committing the crime and resultantly, treachery qualified its commission. The accused testified
that his gun was loaded before he left the house and he got out of his car and shot at the rear window on
the left side of the complainant's vehicle. This testimony could not be true, unless the accused was an
instinctive killer who envisioned that he would use his gun to kill someone as he left his house to go to the
cemetery. The accused also argued that the gun he used was a semi-automatic, not an automatic pistol
which meant that the pistol used had no external safety pin to be released and that the hammer need not
be cocked. The pulling of the trigger, intentional or not, would fire the gun. This is another prevarication.
Even a semi automatic pistol has to be cocked to chamber load the same with a bullet and activate the
trigger-hammer. In the Glock semi-automatic 9mm pistol as the one accused used, the trigger has a built-in
safety lever and must be cocked and the trigger purposely pulled to fire the gun.
Accused argued that the trial court improperly gave credence to the testimonies of prosecution witnesses
Castro and Ramos. Their narration of the incident was rather absurd and would show that they did not
witness the actual shooting. Defense witnesses, on the other hand, testified that Castro and Ramos arrived
at the scene only after the shooting.
32

As regards the injuries sustained by Kevin and Kenneth, the accused argued that there was no intent to kill
and that they stayed in the hospital only for six days, the crimes committed were two counts of slight
physical injuries. The trial court erred in awarding damages and in admitting in evidence the bunch of
receipts representing the medical expenses incurred for the injuries sustained by the victims, without first
requiring the prosecution to establish the authenticity of the receipts. The accused also pointed out that the
award for loss of earning capacity had no basis as the deceased was unemployed at the time of the
incident.
Finally, the accused submitted that the trial court erred in rejecting the mitigating circumstances pleaded by
the defense which attended the commission of the crime,i.e., lack of intent to commit so grave a wrong,
passion and obfuscation, incomplete defense of a relative and voluntary surrender. The accused asserted
that the mitigation circumstances were duly proven and supported by the evidence. The complainant Noel
Andres testified that he saw the accused getting red in anger after they had a heated argument
immediately prior to the shooting. These circumstances showed that the accused was not in his proper
state of mind at the time of the shooting. He was angered by Andres' abusive language directed at him and
he got out of his car with a loaded gun to protect his son from a perceived danger. The accused claimed
that his willingness to help the injured and his voluntary surrender to the police should likewise be
considered as mitigating circumstances in the imposition of the penalties.
The Solicitor General agreed with the accused that the crime was not attended by treachery, and hence,
the killing of Feliber Andres was homicide, not murder. The Solicitor General was of the view that the
shooting was preceded by a heated argument and that the victim was placed on guard that attack was
imminent. There was no evidence that the accused deliberately employed the means of attack to insure
execution without danger of retaliation from the victim. However, with respect to the injuries sustained by
Kevin and Kenneth, the Solicitor General disagreed with the accused that he was liable only for slight
physical injuries. The injuries sustained by both children were head injuries and could have caused their
death if not for the immediate medical attention given them. The number of days they spent in the hospital
is not determinative of the severity of the wounds. The accused is liable for frustrated homicide for the
injuries of the two small children because he fired the shot at Noel Andres that hit instead his pregnant wife
and two small children. He is liable for all the consequences of his unlawful act even if the crime committed
is different from that intended (aberratio ictus).
As regards the mitigating circumstances, the Solicitor General asserted that none can be considered in favor
of the accused. The accused did not voluntarily surrender to the police and he even entertained the
possibility of flight but his car was stuck in traffic along the exit of the memorial park. His claim of
incomplete defense of relative was belied by his own admission that complainant Noel Andres did not have
a gun and there was no unlawful aggression on his part. There was no threat to his life or the life of his son
at the time of the shooting, no uncontrollable fear nor irresistible force that would mitigate the commission
of the offense.
The Solicitor General also agreed with the pecuniary awards the trial court granted. He agreed that the late
Feliber Andres was a 38-year old registered nurse at the time of the killing. Although she was then not
employed because she was pregnant, she still had earning capacity and the trial court properly applied the
salary of a government nurse under the salary standardization scheme in the computation of damages for
the loss of earning capacity. The receipts presented in evidence by the prosecution to establish
hospitalization and other medical expenses incurred by the complainant by reason of the injuries suffered
by the victims were duly authenticated by the prosecution witnesses and there is no dispute that they are
exact copies of the original receipts presented in court.
In sum, the Solicitor General asserted that the accused fired a single shot but because of the multiple
missile bullet that he used committed four offenses. He is liable for the complex crime of homicide for the
33

death of Feliber Andres, double frustrated homicide against Kevin and Kenneth and attempted homicide
against Noel Andres, and that the penalty for the gravest offense, that is, homicide, shall be imposed, in its
maximum period, which is seventeen (17) years, four (4) months and one (1) day to twenty (20) years
of reclusion temporal.
We find the appeal without merit. We do not agree with the views of the Solicitor General.

Treachery under Article 14, paragraph 6 of the Revised Penal Code is defined as the deliberate employment
of means, methods or forms in the execution of a crime against persons which tend directly and specially to
insure its execution without risk to the offender arising from the defense which the intended victim might
raise. 6For treachery to be appreciated, two elements must concur: (1) the employment of means of
execution that would insure the safety of the accused from retaliatory acts of the intended victim and
leaving the latter without an opportunity to defend himself or retaliate; and (2) the means of execution
employed were deliberately or consciously adopted by the offender. 7 The means employed for the
commission of the crime or the mode of attack must be shown to have been consciously or deliberately
adopted by the accused to insure the consummation of the crime and at the same time eliminate or reduce
the risk of retaliation by the victim. 8 At the time of the shooting, the complainant was having a tiff with
accused's son. He knew that the complainant was not armed and there was no imminent and grave danger
to the life of his son. His conscious use of a firearm with pre-loaded multiple missile bullets against a
defenseless man who was totally unaware of the danger to his life, as the events moved fast and he did not
even hear the shot constitutes treachery. Accused insured the success of the crime without risk to himself
arising from defense or retaliation. The complainant could not defend himself from such firepower, much
less retaliate. He was with out any firearm. Even if the attack was frontal, it was sudden and the victim was
unarmed.
Whether or not the attack succeeds against its intended victim or injures another, or whether the crime
committed is graver than that intended is immaterial, as long as it is shown that the attack is attended by
treachery, the qualifying circumstance may still be considered.
We can not agree with the accused or the view of the Solicitor General that the shooting was not attended
by treachery. Noel Andres, who had his pregnant wife and child with him in his Tamaraw FX could have
provoked the situation but was not an aggressor. Initially he touted the accused for his failure to observe
traffic rules.
However, after the altercation, complainant Andres walked toward his vehicle because the altercation was
over. On his way to the Tamaraw FX, he met another man, who was the accused's son. It appears that
Andres had another shouting match with accused's son. Without ado, accused got his already pre-loaded
pistol, alighted from his car and fired a single shot at complainant Noel Andres. He was a poor shot. The
single bullet hit instead Feliber Andres on the forehead near the temporal region above the left eye and the
splitting metallic shrapnels hit two innocent children on their faces, one on the cheek and the other below
the left eye. The intent to kill Noel Andres was evident when accused fired away at him. Accused knew that
his son was not physically threatened. Whether Noel Andres was seated at the driver's seat inside his
vehicle when accused Gonzales fired, as the prosecution contends or was standing by the door of the
driver's seat outside his vehicle, as the defense submits, there is no question that the shot was directed at
complainant Noel Andres. However, as heretofore stated, the accused was a poor shot. He made up by
arming himself with a semi-automatic pistol loaded with multi-missile bullet that splintered like a shotgun
bullet. His son was not in danger. He knew that complainant could easily be pacified without resorting to
shooting. Whether accused over-reacted or he shot at Andres out of rage, one thing appears clear to us:
the accused deliberately shot complainant Noel Andres treacherously in cold blood. However, it was his wife
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who was fatally hit in the head (aberratio ictus) and shrapnels hit two young innocent children. By an act of
God, she delivered a baby girl alive but gave her life to Him. The shooting was a deliberate act of the
accused. We are convinced that the shooting was attended by treachery that qualified the crime to murder
aggravated by the use of a semi-automatic pistol specially fitted with murderous missile. The crime
committed for the killing of Feliber Andres was murder, qualified by treachery and aggravated by the use of
firearm.
As regards the injuries suffered by the two children, we agree with the Solicitor General that the crime
committed was two counts of frustrated homicide. The intent to kill was evident with the use of deadly
weapon specially loaded with multi-missile bullets and such intent was clearly made manifest by the acts of
the accused undoubtedly intended to kill the victims.
An examination of the testimonies of the attending physicians showed that the wounds sustained by the
two children from the metallic fragments may cause death if left untreated. One of the attending physicians
testified that the fragments themselves will not cause complications; however, it is the entry of the
fragments or the open wound that is susceptible to infection. Two small fragments were no longer
extracted from the face of Kevin Valdez as the doctors deemed it to be without danger of complication, but
this could still be life threatening.
None of the mitigating circumstances pleaded by the accused was convincingly proved to be attendant and
none may be considered in the imposition of the penalties.
IN VIEW WHEREOF, I vote to affirm the decision of the trial Court finding accused guilty of MURDER,
qualified by treachery and aggravated by the use of firearm for the killing of Feliber Andres and sentencing
him to reclusion perpetua, with the accessory penalties of the law.
For each count of frustrated homicide committed against Kenneth Andres and Kevin Valdez, the accused
must be sentenced to the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum; to indemnify
the offended parties Kenneth Andres and Kevin Valdez in the amount of P20,000.00 each.
||| (People v. Gonzales, Jr., G.R. No. 139542, [June 21, 2001], 411 PHIL 893-937)

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