Case Facts
Rogelio Roque is convicted with the crime of Guilty beyond reasonable doubt - Frustrated
frustrated homicide.
He is a Baragay Kagawad of Brgy. Masagana.
Roque vs PP. (FRUSTRATED HOMICIDE)
Petioner shot Reynaldo at the nape and kicked
him on the face and back.
His parents arrived and took him to the
hospital for emergency medical treatment.
Alfredo is charged with a crime of frustrated
homicide.
an vs. PP (FRUSTRATED HOMICIDE)
RTC Decision
**Petioner filed MR - and was denied
Homicide
Imprisonment of 6 yrs, prision correccional -
10 yrs prision mayor
RTC convicted the petitioner: crime of
Frustrated Homicide (Art 250, RPC) and
indeterminate penalty of 6 mos & 1 day
Prision Correccional (Min) to 6 yrs & 1 day
Prision Mayor (Max). Compensatory Damages
of P14,170.35.
CA
Rule 45 - Certiorari
CA affirmed in full RTC's decision
Petitoner appealed alleging that his guilt was If peitioner was properly found guilty beyond
not proved beyond reasonable doubt; intent to reasonable doubt.
kill was not established, injuries sustained
were scuffmarks because of a fist fight and
that he did not inflict any stab wounds and
that he only caused slight physical injuries.
Issue
Petition must be denied. The errors raised by
Unlawful Aggression was not satisfactorily
proven since the appelant has not
satisfactorily shown that the victim was
armed with a gun
Unlawful Aggression was not justified in firing In attempted or frustrated homicide, the
the victim the second time
Presence of Intent to kill: (1) victim received
two gun shots; (2) petioner prevented brgy
officials to help the wounded victim.
Doctrine
Petition for certiorari was denied. Court
petitioner is not within the ambit of Rule 45.
Petition for review on certiorari raises only
QUESTION OF LAW.
The court affirms the CA's confirmation on the
RTC's decision that the petitioner is guilty of
frustrated homicide and not merely of less
serious physical injuries.
offender must have the INTENT TO KILL the
victim. Regardless of whether the victim suffrs
injuries. If the intent to kill is suffieciently
borne out, the crime is frustrated homicide.
Frustrated homicide requires intent to kill on
the part of the offender. Without proof of
such intent, the felony may only be serious
physical injuries. Intent to kill may be
established through the overt and external
acts and conduct of the offender before,
during and after the assault, or by the nature,
location and number of the wounds inflicted
on the victim.
Court's Decision
convicted him with the crime of frustrated
homicide with modication - ordering
petitioner to pay moral and temperate
damages - P25,000 each with interest of 6%
per annum
It is evident that the victim received two
gunshot wounds in the head. The location of
the wound plus the nature of the weapon
used are indication of the accused-appellant's
objective is not to merely warn or
incapacitate a supposed aggressor.
There is also intent to kill when the petitioner
prevented the barangay officials from
intervening and helping the bleeding victim.
It should not be the gravity of the result of the
injury but the criminat intent of the
malefactor.
Both the trial and the appellate court agreed
that intent to kill was present. We concur with
them. The petitioner wielded and used a knife
in his assault on Alexander. The medical
records indicate, indeed, that Alexander
sustained two stab wounds, specifically, one
on his upper left chest and the other on the
left side of his face. The petitioners attack was
unprovoked with the knife used therein
causing such wounds, thereby belying his
submission, and firmly proving the presence
of intent to kill. There is also to be no doubt
about the wound on Alexanders chest being
sufficient to result into his death were it not
for the timely medical intervention.
Alfredo de Guzman vs. PP (FRUSTRATED HOMICIDE)
Alexander Flojo (victim) was first hit on the
nape. while fetching water by Alfredo. Flojo
informed the land lady what her brother did to
him while fetching water. In the middle of the
evening, Flojo fetched again water when
Alfredo appeared in front of him and stabbed
him on his left face and chest. The son-in-law
of Alexander saw him bleeding on the left
portion of his body and was begging for help.
Alexander told him that Alfredo stabbed him.
Son in law then immediately brought him to
the hospital for medical assistance.
Alexander sustained two stabbed wounds. (1)
On the zygoma, left side and (2) upper left
chest which penetrated the thoracic wall and
left lung of the victim.
Siam Bank conducted an audit investigation of Tupag was unable to testify.
its loan transactions for the period December
1, 2000 to June 15, 2001, and thereby found
out that fraud and certain irregularities
attended the same. Specifically, it discovered
the non-remittance of some loan payments
received from its clients based on the
provisional receipts issued by its account
officers, as well as the daily collection reports
corresponding to the said provisional receipts.
PP. (ESTAFA)
CA affirmed petitioner's conviction.
CA affirmed RTC's decision.
Elements of frustrated homicide:(1) Intent to
Kill, use of deadly weapon during assault; (2)
victim sustained a fatal or mortal wound but
did die because of timely medical assistance;
and (3) none of the qualifying circumstances
for murder (art 248) is present.
Factors in determining the presence of intent
to kill: (1) the means used by the malefactors;
(2) nature, location and number of wounds
sustained by the victim; (3) conduct of the
malefactors before, during, or immediately
after the killing of the victime; and (4)
circumstances under which the crime was
committed and the motives of the accused.
Whether or not CA erred in sustaining Conversion of material possession: THEFT.
Benabaye's conviction for the crime of Estafa Conversion of material and juridical
through misappropriation. possession: ESTAFA.
We have no cogent reason to deviate from or
to disregard the findings of the trial and
appellate courts on the credibility of
Alexanders testimony. It is not disputed that
the testimony of a single but credible and
trustworthy witness sufficed to support the
conviction of the petitioner. This guideline
finds more compelling application when the
lone witness is the victim himself whose
direct and positive identification of his
assailant is almost always regarded with
indubitable credibility, owing to the natural
tendency of the victim to seek justice for
himself, and thus strive to remember the face
of his assailant and to recall the manner in
which the latter committed the crime.
The honorable court AFFIRMS the decision of
the RTC. That the petitioner is guilty beyond
reasonable doubt of FRUSTRATED HOMICIDE
and sentences him to 4yrs of prision
correccional to 8yrs and 1day of prision
mayor. Moral Damages of P30,000; and
compensatory damages of P14,170.35, plus
interest of 6% per annum; and directs the
petitioner to pay the costs of suit.
Petition was granted. RTC and CA ruling were
reversed and set asside. Charges against
Benabaye and Tupag are dismissed.
 Benabaye (Bookkeeper) claimed, among
others, that the discrepancies could be
clarified by her supervisor, Tupag(Micro
Finance Unit Supervisor), to whom she had
submitted her daily cash transfer slips
together with the corresponding provisional
receipts
Cherry Ann Benabaye v. PP. (ESTAFA)
(1) Both Benabaye & Tupag - guilty of Estafa,
Art 315, par 1(b); (2) 6yrs & 1 days of Prision
Mayor to 20 yrs Reclusion Temporal; (3)
P688,833 of actual damages
Elements of Estafa: (1) goods have been
received and under an obligation involving
duty to make delivery of or to return the
same; (2) misappropriation or conversion of
such money or property to the offender or
denial of such receipt; (3) misappropriation or
conversion or denial is to the prejudice of
another; (4) there is a demand made by the
offended party on the offender.
Benabaye failed to offer evidence that Tupag
had actually received the amount. Tupag lost
his remedy to appeal - Sec 6 (5), Rule 120.
Benabaye's continuing intention to commit
estafa constituted a single intention although
committed on different dates. There is a
conspiracy between Benabaye & Tupag - both
had access and facility to determine if
payments were properly remitted.
JURIDICAL POSSESSION: possession which
gives the transferee a right owns the thing
which the transferee may set up even against
the owner.
A sum of money received by an employee on
behalf of an employer is considered to be only
in the material possession of the employer.
Payment of a 3rd person to the teller is
payment to the bank itself; teller is a mere
custodian/keeper of funds received; has no
independent right/title to retain or possess
the same against the bank. An agent, on the
other hand, can even assert, as against his
own principal, an independent, autonomous,
right to retain the money or goods received in
consequence of the agency; as when the
principal fails to reimburse him for advances
he has made, and indemnify him for damages
suffered without his fault.
Benabaye is a mere collector of loans and
remits the same by the end of the day. Thus,
NO JURIDICAL POSSESSION. In the light,
Tupag (the supervisor and co-accused) was
not appointed as an agent of Siam Bank and
thus no juridical possession of the subject
sums, must also be discharged of the same of
ESTAFA in view of Sec 11(a), Rule 122.
While it is true that only Benabaye was able
to successfully perfect her appeal, the rule is
that an appeal in a criminal proceeding
throws the whole case open for review of all
its aspects, including those not raised by the
parties. Procedure as above-quoted, a
favorable judgment, as in this case, shall
benefit the co-accused who did not appeal or
those who appealed from their judgments of
conviction but for one reason or another, the
conviction became final and executory,
Benabaye's discharge for the crime of Estafa
is likewise applicable to Tupag. Note that the
dismissal of the Estafa charge against Tupag
is similarly without prejudice to the filing of
the appropriate criminal charge against him
as may be warranted under the
circumstances pertinent to him.
SEC. 11. Effect of appeal by any of several
accused. (a) An appeal taken by one or
more of several accused shall not affect those
who did not appeal, except insofar as the
judgment of the appellate court is favorable
and applicable to the latter.
 Sanchez was charged with violation of Sec 11,
Art 2 of RA 9165 (Comprehensive Dangerous
Drugs Act of 2002). He was in possession,
control and custody of shabu.
The police acted on an information that Intang Judgment was rendered convicting Sanchez
was selling drugs to tricycle drivers and were that he violated Sec 11, Art 2, of RA 9165.
dispatched to a barangay at Imus, Cavite to
conduct an operation. They spotted a
motorcycle carrying Sanchez coming out of the
house of Intang. The group chased the tricycle.
After they caught up, they requested Rizaldy
to alight. They noticed that Rizaldy held a
match box. Rizaldy asked if could see the
contents of the match box of which he agreed.
However, they suspected that it was a
regulated drug, the group brought the two to
the police station.
The specimen gave positive results that the
substance is indeed shabu.
RIZALDY SANCHEZ Y CAJILI v. PP. (DRUGS)
RTC rendered its decision finding that SanchezThe CA found no cogent reason to reverse or
was caught in flagrante delicto, in actual
possession of shabu. It stated that the policereached by the RTC and, thus, upheld the
operatives had reasonable ground to believe
that Sanchez was in possession of the said
dangerous drug and such suspicion was
confirmed when the match box Sanchez was
carrying was found to contain shabu.
Suffer imprisonment from 12 yrs to 15 yrs and pursuant to a valid search.
to pay fine of P300,000.00
modify the findings of facts and conclusions
conviction of the accused for violation of
Section 11, Article II of R.A. No. 9165.
According to the CA, there was probable cause
for the police officers to believe that Sanchez
was then and there committing a crime
considering that he was seen leaving the
residence of a notorious drug dealer where,
according to a tip they received, illegal drug
activities were being perpetrated. It concluded
that the confiscation by the police operative of
the subject narcotic from Sanchez was
(1) CA erred when it held that the accused
was caught in flagrante delicto, hence a
search warrant is not needed; and, (2) non
compliance of Sec 21 (1), Art 2 of RA 9165
does not automatically render the seized
items inadmissible in evidence.
Sanchez insists on his acquittal. He argues
that the warrantless arrest and search on him
were invalid due to the absence of probable
cause on the part of the police officers to
effect an in flagrante delict oarrest under
Section 15, Rule 113 of the Rules of Court. He
also contends that the failure of the police
operatives to comply with Section 21,
paragraph 1, Article II of R.A. No. 9165
renders the seized item inadmissible in
evidence and creates reasonable doubt on his
guilt.
SC reversed the RTC and CAs decision. The SC
observed that the CA confused the search
incidental to a lawful arrest with the stop-and-
frisk principle. The distinctions have been
made clear in Malacat v. Court of Appeals.
In a search incidental to a lawful arrest, as
the precedent arrest determines the validity of
the incidental search, the legality of the arrest
is questioned in a large majority of these
cases, e.g.,
whether an arrest was merely used as a
pretext for conducting a search. In this
instance, the law requires that there first be a
lawful arrest before a search can be made --
the process cannot be reversed. At bottom,
assuming a valid arrest, the arresting officer
may search the person of the arrestee and the
area within which the latter may reach for a
weapon or for evidence to destroy, and seize
any money or property found which was used
in the commission of the crime, or the fruit of
the crime, or that which may be used as
evidence, or which might furnish the arrestee
with the means of escaping or committing
violence.
A stop-and-frisk is where a police officer
observes unusual conduct which leads him
reasonably to conclude in light of his
experience that criminal activity may be afoot
and that the persons with whom he is dealing
may be armed and presently dangerous,
where in the course of investigating this
behavior he identifies himself as a policeman
and makes reasonable inquiries, and where
nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own
or others' safety, he is entitled for the
protection of himself and others in the area to
conduct a carefully limited search of the outer
clothing of such persons in an attempt to
discover weapons which might be used to
assault him. While probable cause is not
required to conduct a stop-and-frisk, it
nevertheless holds that mere suspicion or a
hunch will not validate a stop-and-frisk. A
genuine reason must exist.
 In the case at bench, neither the in flagrante
delicto arrest nor the stop- and-frisk principle
RIZALDY SANCHEZ Y CAJILI v. PP. (DRUGS)
was applicable to justify the warrantless
search and seizure made by the police
operatives on Sanchez. A search as an incident
to a lawful arrest is sanctioned by the Rules of
Court.24 It bears emphasis that the law
requires that the search be incidental to a
lawful arrest. Therefore it is beyond cavil that
a lawful arrest must precede the search of a
person and his belongings; the process cannot
be reversed. Here, the search preceded the
arrest of Sanchez. was no arrest prior to the
conduct of the search.
2 Elements of WARRANTLESS ARREST Par (a)
of Sec (5) (in flagrante delicto) - (1) person to
be arrested must execute an overt act that he
just committed, is actually committing, or is
attempting to commit a crime; (2) the overt
act was done in the presence or within the
view of the arresting officer.
Requisites of PLAIN VIEW DOCTRINE: (1) The
law enforcer in search of evidence has a prior
justification for an intrusion or is in authority
to view a particular area; (2) the discovery of
evidence in plain view is inadvertent; (3) it is
immediately apparent to the officer the itm
which he observes to ba an evidence of a
crime, contraband or is subject to seizure.
Even granting arguendo that Sanchez was
arrested before the search, still the
warrantless search and seizure must be
struck down as illegal because the
warrantless arrest was unlawful.
The evidence on record reveals that no overt
physical act could be properly attributed to
Sanchez as to rouse suspicion in the minds of
the police operatives that he had just
committed, was committing, or was about to
commit a crime. There was no probable
cause as to warrant the arrest. Verily,
probable cause in this case was more
imagined than real.
Measured against the foregoing standards, it
is readily apparent that the seizure of the
subject shabu does not fall within the plain
view exception. First, there was no valid
intrusion. As already discussed, Sanchez was
illegally arrested. Second, subject shabu was
not inadvertently discovered, and third, it
was not plainly exposed to sight.

Antonio Garcia, as seller, and Ferro Chemicals,
Inc., through Ramon Garcia, as buyer, entered
into a deed of absolute sale and purchase of
shares of stock on July 15, 1988. The contract
was allegedly entered into to prevent these
shares of stock from being sold at public
auction to pay the outstanding obligations of
Antonio Garcia.
On September 6, 1989, the class "A" share in
Alabang Country Club, were sold at public
auction to Philippine Investment System
Organization. On September 3, 1990, the
information based on the complaint of Ferro
Chemicals, Inc. was filed against Antonio
Garcia before the Regional Trial Court.
RTC acquitted the petitioner because of
insufficiency of evidence. It was held that the awarded Ferro P1,000,000 as actual loss with
complainant (Ferro) was aware of the status of legal interest and atty's fees - P20,000.
the club shares.
Ferro appealed to CA as to the CIVIL ASPECT
OF THE CASE: that the decision was not in
accordance with the law and the facts of the
case.
CA granted the appeal (civil aspect) and
The CA found that Antonio failed to disclose
the Philippine Investment and Savings
Organization's lien over the club shares.
Whether RTC has jurisdiction over the case?
The prosecution failed to establish an
unbroken chain of custody, resulting in
rendering the seizure and confiscation of the
shabu open to doubt and suspicion. Hence,
the incriminatory evidence cannot pass
judicial scrutiny. Thus, the chain of custody
requirement has a two-fold purpose: (1) the
preservation of the integrity and evidentiary
value of the seized items, and (2) the removal
of unnecessary doubts as to the identity of
the evidence.
Petition was granted. RTC and CA Resolution
are reversed and set aside. Sanchez is
acquitted on reasonable doubt.
As a general rule, this court through its
appellate jurisdiction can only decide on
matters or issues raised by the parties.
However, the rule admits
of exceptions. (1) When the unassigned error
affects jurisdiction over the subject matter or
(2) when the consideration of the error is
necessary for a complete resolution of the
case,this court can still decide on these issues.
RTC HAS NO JURISDICTION. Lack of The trial court's lack of jurisdiction cannot be
jurisdiction results in voiding all of the trial cured by the parties' silence on the matter.
court's proceedings and the judgment The failure of the parties to raise the matter
rendered. Estafa is punishable by arresto of jurisdiction also cannot be construed as a
mayor, or imprisonment of 1 mo, 1 day to 6 waiver of the parties. Jurisdiction is conferred
mos. Which is under the jurisdiction of the by law and cannot be waived by the parties.
first level courts. (Pangilinan vs. CA) Thus, we
apply the general rule that jurisdiction is
vested by law and cannot be conferred or
waived by the parties. Even on appeal and
even if the reviewing parties did not raise the
issue of jurisdiction, the reviewing court is not
precluded from ruling that the lower court
had no jurisdiction over the case
 He was charged with estafa "under Article 318
(Other Deceits) of the Revised Penal Code for
allegedly misrepresenting to Ferro Chemicals,
Inc that the shares subject of the contracts
entered into were free from all liens and
encumbrances.
ANTONIO M. GARCIA V. FERRO CHEMICALS (ESTAFA)
Oct 15 1997, Makati City's Prosecutor and
Ferro Chemicals filed a petition for certiorari court dismissed the petition for certiorari.
with SC, assailing RTC's decision and order of
acquitting Garcia. That the petitioner was
deprived of their substantive right to due
process of law. A verification/certification was
signed by Ramon Garcia (pres of Ferro) against
Forum shopping, disclosing that the notice to
appeal was towards the civil aspect of the
case.
<-- The resolution on November 16, 1998, the Wheher the act of Ferro in filing a notice of
appeal before CA and petition for certiorari
assailing the same trial court decision
constitutes forum shopping.
FERRO COMMITTED FORUM SHOPPING. Test
and Requisites in determining Forum
Shopping: TEST: (1) whether the elements of
litis pendentia are present or(2) whether a
final judgment in one case amounts to res
judicata in another. ELEMENTS: (1) identity of
the parties; (2) identity of the rights asserted
and reliefs prayed for, where reliefs are
founded on the same facts; and (3) identity of
the 2 preceding particulars, such that any
judgment rendered in the other action will
amount to res judicata in the action under
consideration.
There is no question that Ferro Chemicals,
Inc. committed forum shopping when it filed
an appeal before the Court of Appeals and a
petition for certiorari before this court
assailing the
same trial court decision. This is true even if
Ferro Chemicals, Inc.'s notice of appeal to the
Court of Appeals was entitled "Notice of
Appeal Ex Gratia Abudantia Ad Cautelam (Of
The Civil Aspect of the Case).
The "civil aspect of the case" referred to by
Ferro Chemicals, Inc. is for the recovery of
civil liability ex delicto. However, it failed to
make a reservation before the trial court to
institute the civil action for the recovery of
civil liability ex delicto or institute a separate
civil action prior to the filing of the criminal
case.
When the trial court's decision was appealed
as to its criminal aspect in the petition for
certiorari before this court, the civil aspect
thereof is deemed included in the appeal. It is
also evident that Ferro committed forum
shopping in its appeal.
o This notice of appeal is without prejudice to
the filing of an appropriate petition for
certiorari under Rule 65 of the Rules of Court
on the criminal aspect, upon the giving of due
course thereto, private complainant shall
endeavor to seek the consolidation of this
appeal with the said petition.
As to the third requisite, on the assumption
that the trial court had jurisdiction over the
case, this court's decision in G.R. No. 130880
affirming the trial court's decision acquitting
the accused for lack of an essential element
of the crime charged amounts to res judicata
to assert the recovery of civil liability arising
from the offense.

Whether Ferro was entitled to the awards
given as a civil liability ex delicto?
Litigants cannot avail themselves of two
separate remedies for the same relief in the
hope that in one forum, the relief prayed for
will be granted.
The extinction of the penal action does not
necessarily carry with it the extinction of the
civil action, whether the latter is instituted
with or separately from the criminal action.
The offended party may still claim civil liability
ex delicto if there is a finding in the final
judgment in the criminal action that the act or
omission from which the liability may arise
exists.

3 instances not withstanding accused acquittal Petition granted in setting aside CA's decision
that the offended party may still claim civil and resolution over the assailed RTC decision.
liability ex delicto: (a) acquittal is based on
reasonable doubt as only preponderance of
evidence is only required; (b) court declared
that the liability of the accused is only civil (c)
civil liability does not arise from or is not
based upon the crime of which the accused is
acquited.

Daluraya was charged in an Information for
Reckless Imprudence Resulting in Homicide in
connection with the death of Marina Oliva.
Marina was crossing the street when a car ran
over her. She was brought tio the hospital for
medical attention but eventually died.
the RTC dismissed the appeal and affirmed the
MeTCs ruling,declaring that "the act from
which the criminal responsibility may spring
did not at all exist."
the CA granted the petition and reversed the
RTC Decision, ordering Daluraya to pay Marla
the amounts of P152,547.00 as actual
damages, P50,000.00 as civil indemnity, and
P50,000.00 as moral damages.
whether or not the CA was correct in finding
Daluraya civilly liable for Marina Olivas
death despite his acquittal in the criminal
case for Reckless Imprudence Resulting in
Homicide on the ground of insufficiency of
evidence.
The petition is meritorious.
the findings of the MeTC, as affirmed by the
Every person criminally liable for a felony is
also civilly liable. The acquittal of an accused
of the crime charged, however, does not
necessarily extinguish his civil liability.
Clearly, therefore, the CA erred in construing
RTC, that Dalurayas acquittal was anchored
on reasonable doubt, which would
necessarily call for a remand of the case to
the court a quo for the reception of
Dalurayas evidence on the civil
aspect.1wphi1 Records disclose that
Dalurayas acquittal was based on the fact
that "the act or omission from which the civil
liability may arise did not exist" in view of the
failure of the prosecution to sufficiently
establish that he was the author of the crime
ascribed against him. Consequently, his civil
liability should be deemed as non-existent by
the nature of such acquittal.
 The daughter, Marla, filed a criminal case for
reckless imprudence resulting in Homicide
against Antonio, the driver.
An eye witness affirmed the incident saw the
nissan bearing the plate number UPN 172.
Prosecution offered evidences to support the
civil damages sustained by the family.
ANTONIO L. DALURAYA V. MARLA OLIVA (RECKLESS IMPRUDENCE RESULTING IN HOMICIDE)
In so ruling, the CA held that the MeTCs
Order showed that Dalurayas acquittal was
based on the fact that the prosecution failed to
prove his guilt beyond reasonable doubt. As
such, Daluraya was not exonerated from civil
liability.
Moreover, the CA considered the following
pieces of evidence to support its finding that
Daluraya must be held civilly liable: (a) the
inadmissible sworn statement executed by
Daluraya where he admitted that he drove the
subject vehicle which hit Marina Oliva; (b) the
conclusion derived from Serranos testimony
that the woman he saw crossing the street
who was hit by a Nissan Vanette with plate
number UPN-172, and the victim who
eventually died, are one and the same; (c) the
Philippine National Police Referral Letter of
one Police Chief Inspector Virgilio Pereda
identifying Daluraya as the suspectin the case
of Reckless Imprudence Resulting in Homicide
involving the death of Marina Oliva, and
stating that he brought the victim to the
Quezon City General Hospital for treatment
but was declared dead on arrival; and (d) the
subject vehicle was registered in the name of
Dalurayas aunt, Gloria Zilmar, who authorized
him to claim the vehicle from the MeTC.
2 kind of acquittal, with different effects on
the civil liability of the accused: (1) acquital on
the ground that the accused is not the author
of the actor omission complained of. This
closes the door for civil liability (Rule 111). (2)
acquital based on the reasonable doubt of
guilt of the accused. Even if the guilt is not
clearly established, he is not exempt from civil
liability which may be proved by
preponderance of evidence only.
In Dayap v. Sendiong, the Court explained
further:
The acquittal of the accused does not
automatically preclude a judgment against
him on the civil aspect of the case. The
extinction of the penal action does not carry
with it the extinction of the civil liability
where: (a) the acquittal is based on reasonable
doubt as only preponderance of evidence is
required; (b) the court declares that the
liability of the accused is only civil; and (c) the
civil liability of the accused does not arise from
or is not based upon the crime of which the
accused is acquitted. However, the civil action
based on delict may be deemed extinguished
if there is a finding on the final judgment in
the criminal action that the act or omission
from which the civil liability may arise did not
exist or where the accused did not commit the
acts or omission imputed to him.
A punctilious examination of the MeTCs
Order, which the RTC sustained, will show
that Dalurayas acquittal was based on the
conclusion that the act or omission from
which the civil liability may arise did not
exist, given that the prosecution was not
able to establish that he was the author of
the crime imputed against him . Such
conclusion is clear and categorical when the
MeTC declared that "the testimonies of the
prosecution witnesses are wanting in
material details and they did not sufficiently
establish that the accused precisely
committed the crime charged against
him." Furthermore, when Marla sought
reconsideration of the MeTCs Order
acquitting Daluraya, said court reiterated and
firmly clarified that "the prosecution was not
able to establish that the accused was the
driver of the Nissan Vanette which bumped
Marina Oliva" and that "there is no
competent evidence on hand which proves
that the accused was the person responsible
for the death of Marina Oliva
ANTONIO L. DALURAYA V. MARLA OLIVA (
Daluraya filed an urgent motion to dismiss
(demurer) asserting that he was not positively
identified by any of the witness as the driver of
the vehicle that hit the victime, and there is no
clear and competent evidence of how the
incident transpired.
MeTC RULING: Granted Daluraya;s demurrer
and dismissed the case for lack of sufficient
evidence. Deconstructing the testimonies of
the prosecution witnesses individually, the
MeTC found that: (a) Marla merely testified on
the damages sustained by her family but she
failed to identify Daluraya as the driver of the
vehicle that hit her mother; (b) Serrano also
did not identify Daluraya as the driver of the
said vehicle; (c) Dr. Ortiz merely testified on
the autopsy results; and (d) PSI Gomez, while
he did investigate the incident, likewise
declared thathe did not witness the same.
Marla appealed the said case to RTC.
Thus, if demurrer is granted and the accused
is acquitted by the court, the accused has the
right to adduce evidence on the civil aspect of
the case unless the court also declares that
the act or omission from which the civil
liability may arise did not exist. This is because
when the accused files a demurrer to
evidence, he has not yet adduced evidence
both on the criminal and civil aspects of the
case. The only evidence on record is the
evidence for the prosecution. What the trial
court should do is issue an order or partial
judgment granting the demurrer to evidence
and acquitting the accused, and set the case
for continuation of trial for the accused to
adduce evidence on the civil aspect of the case
and for the private complainant to adduce
evidence by way of rebuttal. Thereafter, the
court shall render judgment on the civil aspect
of the case.
In case of an acquittal, the Rules of Court
requires that the judgment state "whether the
evidence of the prosecution absolutely failed
to prove the guilt of the accused or merely
failed to prove his guilt beyond reasonable
doubt. In either case, the judgment shall
determine if the act or omission from which
the civil liability might arise did not exist.
Petition was granted. Decision and Resolution
of the CA is REVERSED and SET ASIDE.
Decision of the RTC is REINSTATED.
 Elpidio was outside the house of his sister
Isabelita when he heard his nephew, Winston,
throwing invectives at him. Elpidio confronted
his siter who also threw curses against him
which made him slapped his sister. Elpidio was
under the influence of alcohol.
The Brgy Chairman heard the commotion and
pacify the people, and eventually pursuaded
Elpidio to go home of which he drank coffee to
pacify himself.
IDIO MALICSE, SR. AND PP. (ATTEMPTED MURDER)
Elpidio went back to his sister's house to
reconcile. He passed by the Kagawad's house
to accompany him but was told to just go
home. However he proceeded alone.
During trial, Salvador died. Eventually the trial CA affirmed the decision.
court acquitted Tiotus, Saligan and Tommy but
found Gary and Rolando guilty beyond
reasonable doubt.
Information does not allege all the elements
and necessary ingredients of the specific
crime of attempted murder.
not all elements of attempted murder are
present in the case
no treachery or any QUAC to speak of in this
case
An appeal by certiorari to SC only raises
questions of law distinctly set forth in the
petition. The present case reaises issues and
arguments involving questions of facts. Thus,
the petition is at once dismissible for its failure
to comply with the requirement of Rule 45 of
the rules of court, that the petition should only
raise questions of law.
The distinction between a question of law
and a question of fact is settled. There is a
question of law when the doubt or
difference arises as to what the law is on a
certain state of facts, and which does not call
for an examination of the probative value of
the evidence presented by the parties-
litigants.
On the other hand, there is a question of
fact when the doubt or controversy arises as
to the truth or falsity of the alleged facts.
Simply put, when there is no dispute as to
fact, the question of whether or not the
conclusion drawn therefrom is correct, is a
question of law.
The information filed contains all the
elements of the crime of attempted
murder.The Information partly reads: x x x
but the said accused did not perform all the
acts of the execution which should have
produced the crime of murder, as a
consequence, by reason of causes other than
their own spontaneous desistance, that is, the
injuries inflicted upon Elpidio Malicse, Sr. y de
Leon are not necessarily mortal. From the
above-quoted portion of the Information, it is
clear that all the elements of the crime of
attempted murder has been included.
There is an attempt when the offender
commences the commission of a felony
directly by overt acts, and does not perform
all the acts of execution which should
produce the felony by reason of some cause
or accident other than his own spontaneous
desistance.The essential elements of an
attempted felony are as follows: The offender
commences the commission of the felony
directly by overt acts; He does not perform all
the acts of execution which should produce
the felony; The offender's act be not stopped
by his own spontaneous desistance; The non-
performance of all acts of execution was due
to cause or accident other than his
spontaneous desistThe first requisite of an
attempted felony consists of two (2)
elements, namely: (1) That there be external
acts; (2) Such external acts have direct
connection with the crime intended to be
committ
GARY FANTASTICO & ROLANDO VILLANUEVA V. ELPIDIO MALICSE, SR. AND PP. (ATTEMPTED

Upon arrival, he saw Titus his nephew and
Gary Fantastico, his sister's son in law, and
asked where their parents are. However, both
did not show any respect to him that they
cursed at him.
failure to appreciate mitigating circumstance In Rivera v. People, this Court considered the
following factors to determine the presence of
an intent to kill: (1) the means used by the
malefactors; (2) the nature, location, and
number of wounds sustained by the victim; (3)
the conduct of the malefactors before, at the
time, or immediately after the killing of the
victim; and (4) the circumstances under which
the crime was committed and the motives of
the accused.
This Court also considers motive and the
words uttered by the offender at the time he
inflicted injuries on the victim as additional
determinative factors. All of these, were
proven during the trial. Needless to say, with
or without the phrase, what is important is
that all the elements of attempted murder
are still alleged in the Information.

Out of anger, Elpidio kicked the door open and
saw the elder son, Salvador behind the door
holding a rattan stick or arnis. Salvador his
Elpidio twice. The third time, Elpidio defended
himself which made him grappled with his
nephew on the floor.
there are mistakes in the finding of facts of
the CA and RTC
One must not forget the well entrenched rule
that findings of facts of the trial court, its
calibration of the testimonial evidence of the
parties as well as its conclusion on its findings,
are accorded high respect if not conclusive
effect. This is because of the unique advantage
of the trial court to observe, at close range,
the conduct, demeanor and deportment of
the witness as they testify.

Titus went to the two and sprayed something
on Elpidio's face. Unable to free from
Salvador, he bit his nephew's head.
conviction was based on the weakness of the In this particular case, there was no
defense evidence not on the strength of the treachery. There is treachery when the
prosecution evidence offender commits any of the crimes against
persons, employing means, methods, or forms
in the execution, which tend directly and
specially to insure its execution, without risk
to the offender arising from the defense which
the offended party might make. The essence
of treachery is that the attack comes without a
warning and in a swift, deliberate, and
unexpected manner, affording the hapless,
unarmed, and unsuspecting victim no chance
to resist or escape.

Gary hit Elpidio with an axe while he was
about to go out of the house. Elpidio tried to
defend himself but was unable to do so. The
three chased him out.
testimony that it was the petitioner who
attacked him is uncorroborated and self
serving
2 elements of TREACHERY: (1) the
employment of means of execution that gives
the persons attacked no opportunity to defend
themselves or retaliate; and (2) the means of
execution were deliberately or consciously
adopted
Rolland Villanueva hit Elpidio on the back of
his head with a lead pipe. Elpidio then begged
his assailants to stop, but to no avail.
Mang Gil tried to break them off but to no
avail. Only stopped when a bystander
witnessing at their commotion fainted. Elpidio
pretended to be dead that he was rushed to
the hospital.
A case of attempted murder under art 248
was filed. -- all pleaded not guilty.
Abuse of superior strength is present
whenever there is a notorious inequality of
forces between the victim and the aggressor,
assuming a situation of superiority of strength
notoriously advantageous for the aggressor
selected or taken advantage of by him in the
commission of the crime.
Abuse of superior strength was present when
all the malefactors were armed while the
victim was unarmed and drunk. "To take
advantage of superior strength means to
purposely use excessive force out of
proportion to the means of defense available
to the person attacked."
Petition is for review is denied. Decision and
resolution by CA is affirmed with modification.