Вы находитесь на странице: 1из 91

G.R. No. L-12155

February 2, 1917

THE UNITED STATES, plaintiff-appellee, vs. PROTASIO EDUAVE, defendant-appellant.

Manuel Roxas for appellant. Attorney-General Avanceña for appellee.

MORELAND, J.:

We believe that the accused is guilty of frustrated murder.

We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital part of the body. The aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes. When he gave himself up he declared that he had killed the complainant.

There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and struck her from behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the side eight and one-half inches long and two inches deep, severing all of the muscles and tissues of that part.

The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him criminally before the local officials with having raped her and with being the cause of her pregnancy. He was her mother's querido and was living with her as such at the time the crime here charged was committed.

That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be convicted. It is contended, in the first place, that, if death has resulted, the crime would not have been murder but homicide, and in the second place, that it is attempted and not frustrated homicide.

As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been killed. It is qualified by the circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or partly from the rear, and dealing her a terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it was made treacherously; and that being so the crime would have been qualified as murder if death had resulted.

As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3 of the Penal Code defines a frustrated felony as follows:

A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

An attempted felony is defined thus:

There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not perform all the acts of execution which constitute the felony by reason of some cause or accident other than his own voluntarily desistance.

The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which should have resulted in the consummated crime and voluntarily desisted from further acts. A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a

his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.

To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and compelled to desist by the intervention of outside causes before the subjective phase is passed.

On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is complete. Nothing interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the intervention of causes independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it was due to something beyond his control.

The subjective phase is that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time forward the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has control — that period between the point where he begins and the points where he voluntarily desists. If between these two points the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.

That the case before us is frustrated is clear.

The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating circumstance. As so modified, the judgment is affirmed with costs. So ordered.

FIRST DIVISION

ESMERALDO RIVERA, ISMAEL G.R. No. 166326 RIVERA, EDGARDO RIVERA, Petitioners, Present:

PANGANIBAN, C.J., Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, - versus - CALLEJO, SR., and CHICO-NAZARIO, JJ.

,

- versus - CALLEJO, SR., and CHICO-NAZARIO, JJ.

Promulgated:

PEOPLE OF THE PHILIPPINES, Respondent. January 25, 2006

x

- - -

- - -

- -

-

- - -

- - -

- - -

-

- - -

-

- - -

- - -

-

- - -

-

-

- -

- -

-

-

- - -

-

-

- - - - x

D

E C I S I O N

 

CALLEJO, SR., J.:

This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 27215 affirming, with modification, the Decision[2] of the Regional Trial Court (RTC) of Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People of the Philippines. v. Esmeraldo Rivera, et al.

On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of attempted murder. The accusatory portion of the Information reads:

That on or about the 3rd day of May 1998, in the Municipality of Dasmarias, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, did then and there, wilfully, unlawfully, and feloniously attack, assault and hit with a piece

of hollow block, one RUBEN RODIL who thereby sustained a non-mortal injury on his head and on the

different parts of his body, the accused thus commenced the commission of the felony directly by overt acts, but failed to perform all the acts of execution which would produce the crime of Murder by reason of some causes other than their own spontaneous desistance, that is, the said Ruben Rodil was able to ran (sic) away and the timely response of the policemen, to his damage and prejudice.

CONTRARY TO LAW.[3]

Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998 after a would- be rapist threatened his life. He was even given a citation as a Bayaning Pilipino by the television network ABS-CBN for saving the would-be victim. His wife eked out a living as a manicurist. They and their three children resided in Barangay San Isidro Labrador II, Dasmarias, Cavite, near the house of Esmeraldo Rivera and his brothers Ismael and Edgardo.

At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for being

jobless and dependent on his wife for support. Ruben resented the rebuke and hurled invectives at Edgardo. A heated exchange of words ensued.

At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to look for his wife.

His three-year-old daughter was with him. Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo, emerged from their house and ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with fist blows and he fell to the ground. In that helpless position, Edgardo hit Ruben three times with a hollow block on the parietal area. Esmeraldo and Ismael continued mauling Ruben. People who saw the incident shouted: Awatin sila! Awatin sila! Ruben felt dizzy but managed to stand up. Ismael threw a stone at him, hitting him at the back. When policemen on board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their house.

Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin, Jr., signed a medical certificate in which he declared that Ruben sustained lacerated wounds on the parietal area, cerebral concussion or contusion, hematoma on the left upper buttocks, multiple abrasions on the left shoulder and hematoma periorbital left.[4] The doctor declared that the lacerated wound in the parietal area was slight and superficial and would heal from one to seven days.[5] The doctor prescribed medicine for Rubens back pain, which he had to take for one month.[6]

Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and banged the gate. Ruben challenged him and his brothers to come out and fight. When he went out of the house and talked to Ruben, the latter punched him. They wrestled with each other. He fell to the ground. Edgardo arrived and pushed Ruben aside. His wife arrived, and he was pulled away and brought to their house.

For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben grabbed

arr ve

an

pus e

u

en as

e.

s w

e arr ve

, an

e was pu e

away an

roug

o

e r

ouse.

For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben grabbed him by the hair. He managed to free himself from Ruben and the latter fled. He went home afterwards. He did not see his brother Edgardo at the scene.

Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front of their house. Ruben arrived and he went inside the house to avoid a confrontation. Ruben banged the gate and

ordered him to get out of their house and even threatened to shoot him. His brother Esmeraldo went out of their house and asked Ruben what the problem was.

A fist fight ensued. Edgardo rushed out of the house and pushed Ruben aside. Ruben fell to the ground.

When he stood up, he pulled at Edgardos shirt and hair, and, in the process, Rubens head hit the lamp

post.[7]

On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond reasonable doubt of frustrated murder. The dispositive portion of the decision reads:

WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable doubt and are sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor as the prosecution has proved beyond reasonable doubt the culpability of the accused. Likewise, the accused are to pay, jointly and severally, civil indemnity to the private complainant in the amount of P30,000.00.

SO ORDERED.[8]

The trial court gave no credence to the collective testimonies of the accused and their witnesses. The accused appealed to the CA, which rendered judgment on June 8, 2004 affirming, with modification, the appealed decision. The dispositive portion of the CA decision reads:

WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED in that the appellants are convicted of ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2 years of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum. In all other respects, the decision appealed from is AFFIRMED.

SO ORDERED.[9]

The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the CA erred

in affirming the RTC decision. They insist that the prosecution failed to prove that they had the intention to

kill Ruben when they mauled and hit him with a hollow block. Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben sustained only a superficial wound in the parietal area; hence, they should be held criminally liable for physical injuries only. Even if petitioners had the intent to kill Ruben, the prosecution failed to prove treachery; hence, they should be held guilty only of attempted homicide.

On the other hand, the CA held that the prosecution was able to prove petitioners intent to kill Ruben:

On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted and the kind of weapon used. Intent to kill was established by victim Ruben Rodil in his testimony as follows:

Q: And while you were being boxed by Esmeraldo and Bong, what happened next? A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow block xxx and hit me thrice on the head, Sir.

Q: And what about the two (2), what were they doing when you were hit with a hollow block by Dagol? A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir.

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that the (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the ground; that one of them even picked up a cement hollow block and proceeded to hit the victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.[10]

The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is correct, thus:

The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence raised by petitioners. The crime has been clearly established with petitioners as the perpetrators. Their intent to kill is very evident and was established beyond reasonable doubt.

y pe

oners.

e cr me

as

een c ear y es a

s

e

w

pe

oners as

e perpe ra ors.

e r

n en

o

kill is very evident and was established beyond reasonable doubt.

Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that the victim Ruben Rodil was walking along St. Peter Avenue when he was suddenly boxed by Esmeraldo Baby Rivera. They further narrated that, soon thereafter, his two brothers Ismael and Edgardo Dagul Rivera, coming from St. Peter II, ganged up on the victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw Edgardo Dagul Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful review of their testimonies revealed the suddenness and unexpectedness of the attack of petitioners. In this case, the victim did not even have the slightest warning of the danger that lay ahead as he was carrying his three- year old daughter. He was caught off-guard by the assault of Esmeraldo Baby Rivera and the simultaneous attack of the two other petitioners. It was also established that the victim was hit by Edgardo Dagul Rivera, while he was lying on the ground and being mauled by the other petitioners. Petitioners could have killed the victim had he not managed to escape and had the police not promptly intervened.

Petitioners also draw attention to the fact that the injury sustained by the victim was superficial and, thus, not life threatening. The nature of the injury does not negate the intent to kill. The Court of Appeals held:

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that the three (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the ground; that one of them picked up a cement hollow block and proceeded to hit the victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.[11]

The petition is denied for lack of merit.

An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.

In People v. Delim,[12] the Court declared that evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was committed and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed.

In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows. Even as Ruben fell to the ground, unable to defend himself against the sudden and sustained assault of petitioners, Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben on the head, missed, but still managed to hit the victim only in the parietal area, resulting in a lacerated wound and cerebral contusions.

That the head wounds sustained by the victim were merely superficial and could not have produced his death does not negate petitioners criminal liability for attempted murder. Even if Edgardo did not hit the victim squarely on the head, petitioners are still criminally liable for attempted murder.

The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus:

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:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous

desistance.[13]

4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous

desistance.[13]

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.[14]

The Court in People v. Lizada[15] elaborated on the concept of an overt or external act, thus:

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison detre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense.[16]

In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling the victim and hitting him three times with a hollow block; they narrowly missed hitting the middle portion of his head. If Edgardo had done so, Ruben would surely have died.

We reject petitioners contention that the prosecution failed to prove treachery in the commission of the felony. Petitioners attacked the victim in a sudden and unexpected manner as Ruben was walking with his three-year-old daughter, impervious of the imminent peril to his life. He had no chance to defend himself and retaliate. He was overwhelmed by the synchronized assault of the three siblings. The essence of treachery is the sudden and unexpected attack on the victim.[17] Even if the attack is frontal but is sudden and unexpected, giving no opportunity for the victim to repel it or defend himself, there would be treachery.[18] Obviously, petitioners assaulted the victim because of the altercation between him and petitioner Edgardo Rivera a day before. There being conspiracy by and among petitioners, treachery is considered against all of them.[19]

The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision correccional in its minimum period, as minimum, to six years and one day of prision mayor in its maximum period, as maximum. This is erroneous. Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to death. Since petitioners are guilty only of attempted murder, the penalty should be reduced by two degrees, conformably to Article 51 of the Revised Penal Code. Under paragraph 2 of Article 61, in relation to Article 71 of the Revised Penal Code, such a penalty is prision mayor. In the absence of any modifying circumstance in the commission of the felony (other than the qualifying circumstance of treachery), the maximum of the indeterminate penalty shall be taken from the medium period of prision mayor which has a range of from eight (8) years and one (1) day to ten (10) years. To determine the minimum of the indeterminate penalty, the penalty of prision mayor should be reduced by one degree, prision correccional, which has a range of six (6) months and one (1) day to six (6) years.

Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the Court of Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum. No costs.

SO ORDERED.

G.R. No. 138033

February 22, 2006

RENATO BALEROS, JR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.

GARCIA, J.:

D E C I S I O N

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the

GARCIA, J.:

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision 1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution 2 denying petitioner’s motion for reconsideration.

2 denying petitioner’s motion for reconsideration. The assailed decision affirmed an earlier decision of the

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2,

in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted

Renato Baleros, Jr. y David (CHITO) guilty of attempted rape. 3 The accusatory portion of the

rape. 3

The accusatory portion of the information 4 dated December 17, 1991 charging petitioner with attempted rape reads as follow:

That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance, said acts being committed against her will and consent to her damage and prejudice.

against her will and consent to her damage and prejudice. Upon arraignment on February 5, 1992,

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty." 5 Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the decision of the CA, established the following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was

a medical student of the University of Sto. Tomas [UST] in 1991.

In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She struggled but could not move. Somebody was pinning her down on the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got free. With this the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the

intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who

it was she did not, however, know. The only thing she had made out during their struggle was the feel of

her attacker’s clothes and weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid, p. 17). He was wearing a t-shirt and shorts Original Records, p.

355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx.

It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN, July

5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened, another window inside her bedroom was now open. Her attacker had fled from her room going through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. . (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the

u y

,

, p.

) an

s

e rejec e

m. . (

,

u y

,

, p.

).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning of December 13, 1991, wearing a white t-shirt with “‘ a marking on the front of the T-shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas” (TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph Bernard Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused [but later, relented] . S/G Ferolin made the following entry in the security guard’s logbook :

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), .

xxx xxx xxx

Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the time CHITO’s knocking on the door woke him up, . He was able to fix the time of CHITO’s arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the knock at the door .

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. . It was at around 3 o’clock in the morning of December 13, 1991 when he woke up again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), .

xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO . He mentioned to the latter that something had happened and that they were not being allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.

People from the CIS came by before 8 o’clock that same morning . They likewise invited CHITO and Joseph to go with them to Camp Crame where the two (2) were questioned .

An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not belonging to them in their Unit. While they were outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not know was there and surrender the same to the investigators. When he saw the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T- shirts, an underwear, and socks (Ibid).

"

"

"

"

shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITO’s because CHITO had lent the very same one to him . The t- shirt with CHITO’s fraternity symbol, CHITO used to wear on weekends, and the handkerchief he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R. Alagadan’s testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full

but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary,

Bernard, and Renato went back to Room 310 at around 3 to 4 o’clock that afternoon along with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had seen CHITO leave it.

Not

until later that night at past 9 o’clock in Camp Crame, however, did Renato know what the contents of

the

bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having acted in response to the written request of PNP Superintendent Lucas M. Managuelod

dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory examination on

the specimen collated and submitted . Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112)

reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked ‘UNIMART’ with the following:

xxx xxx xxx

Exh ‘C’ – One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked ‘JONAS’ with the following:

Exh. ‘D’ – One (1) printed handkerchief.

Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.

Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following results:

Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.

Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.

CONCLUSION:

‘F’ are insufficient for further analysis. CONCLUSION: Exhs. ‘C’ and ‘D’ contain chloroform, a volatile

Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison." 6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the

crime imputed to him or making at any time amorous advances on Malou. Unfolding a different version of f

th

i

id

t

th

d

f

ht

t

t

bli

h

th

ll

i

ll

d

f

th

d

i

i

f

th

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the

crime imputed to him or making at any time amorous advances on Malou. Unfolding a different version of

the incident, the defense sought to establish the following, as culled from the same decision of the

appellate court:

In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity . MALOU, , was known to him being also a medical student at the UST at the time.

From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog over dark pants and leather shoes, arrived at their Fraternity house located at Dos Castillas, Sampaloc, Manila at about 7 o’clock in the evening of December 12, 1991. He was included in the entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4)

presidential nominees of the Fraternity, CHITO included, were being dunked one by one into the pool.

xxx.

xxx

CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was

dunked. Perla Duran, , offered each dry clothes to change into and CHITO put on the white t-shirt

with the Fraternity’s symbol and a pair of black shorts with stripes. xxx .

Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma

Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with

Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day .

At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached. Because of this, CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry . xxx.

S/G

Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10) minutes

had

lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for

five (5) minutes vainly tried to open the door until Rommel Montes, approached him and even

commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open

the door of Unit 306 but was likewise unsuccessful. CHITO then decided to just call out to Joseph

while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. CHITO , changed to a thinner shirt and went to bed. He still had on the same short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).

At 6 o’clock in the morning of December 13, 1991, CHITO woke up . He was already in his school

uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter why

this was so and, without elaborating on it, Joseph told him that something had happened and to just go to

Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building . When two (2) CIS men came to the unit asking for Renato Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306 .

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two

(2) of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to him

(2) of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo

At the hospital, CHITO and Joseph were

physical examination at the Camp Crame Hospital

physically examined by a certain Dr. de Guzman who told them to strip .

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his presence but the contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at Room 306 in the early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when he returned to the apartment at past 1:00 o’clock in the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock in the morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the first time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the afternoon, when he was in Camp Crame.

Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo and Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr. Duran’s place at Greenhills, riding on the same car going to and coming from the party and dropping the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they parted after the party. 7 Rommel Montes, a tenant of Room 310 of the said building, also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while clad in dark short pants and white barong tagalog.

306 while clad in dark short pants and white barong tagalog. On the other hand, Perla

On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in her father’s house. 8 Presented as defense expert witness was Carmelita Vargas,

a forensic chemistry instructor whose actual demonstration in open court showed that chloroform, being

demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30) seconds without tearing
demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30) seconds without tearing

volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth on which it is applied. 9

On December 14, 1994, the trial court rendered its decision 10 convicting petitioner of attempted rape and accordingly sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused

Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney’s fees of P30,000.00, without subsidiary imprisonment

in case of insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No.

17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial court’s judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED. 11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March 31, 1999. 12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him,

absent sufficient, competent and convincing evidence to prove the offense charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the

prosecution failed to satisfy all the requisites for conviction based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive

and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the award was improper and

unjustified absent any evidence to prove the same.

6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty

has not been met, hence, he should be acquitted on the ground that the offense charged against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape.

After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed to rule for petitioner’s acquittal, but not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on the bed in the early morning of December 13, 1991.

Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually witnessed the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence. 13 In the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove. 14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction if –

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was the intruder in question.

In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was the intruder in question.

We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the petitioner as such intruder:

Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her intruder’s apparel to be something made of cotton material on top and shorts that felt satin-smooth on the bottom.

From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the handkerchief and MALOU’s night dress both contained chloroform, a volatile poison which causes first degree burn exactly like what MALOU sustained on that part of her face where the chemical-soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth soaked in chemical while holding her body tightly under the weight of his own, had commenced the performance of an act indicative of an intent or attempt to rape the victim. It is argued that petitioner’s actuation thus described is an overt act contemplated under the law, for there can not be any other logical conclusion other than that the petitioner intended to ravish Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that if petitioner’s intention was otherwise, he would not have lain on top of the victim. 15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or is demented. Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when the offender commences the commission of rape directly by overt acts and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. 16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang, 17 stated that "the attempt which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code. 18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.1avvphil.net

Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. 19

Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really

the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate intention, is anybody’s guess. The CA maintained that if the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because his intended victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case, her unconsciousness. 20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. 21

In Perez vs. Court of Appeals, 22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that:

xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not completed.

xxx xxx xxx

Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the complainant’s sexual organ. xxx.

Likewise in People vs. Pancho, 23 the Court held:

xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime the right to be informed of the nature and cause of the accusation, 24 it cannot be said that petitioner was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person. 25 The paramount question is whether the offender’s act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed. 26 That Malou, after the incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine ranging from 5.00 to 200.00 or both.

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of 200.00, with the accessory penalties thereof and to pay the costs

D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of 200.00, with the accessory penalties thereof and to pay the costs.

SO ORDERED.

ARISTOTEL VALENZUELA y G. R. No. 160188 NATIVIDAD, Petitioner, Present:

PUNO, C.J., QUISUMBING, SANTIAGO,

- versus - GUTIERREZ,

CARPIO, MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, and PEOPLE OF THE PHILIPPINES NACHURA, JJ. and HON. COURT OF APPEALS, Respondents. Promulgated:

June 21, 2007

x----------------------------------------------------------------------------x

D E C I S I O N

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively

concedes having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition rests on a common theory expounded in two well-known decisions[1] rendered decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this

Court.

As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.[3] A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC. [5] This petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the open parking space.[7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the

taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards

of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise

recovered.[8] The filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case

of

Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value

of

P12,090.00.[9]

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP

Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building

to check what was

transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio

transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio

Valenzuela,[13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride

a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him

and the other people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft.[14] During petitioners cross-examination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM.[15]

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.[17] The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of Appeals rejected this contention and affirmed petitioners conviction.[22] Hence the present Petition for Review,[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft.[24]

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered many years ago by the Court of Appeals: People v. Dio[27]and People v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our criminal law annotations,[29] and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal

Code.[30]

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted 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.

Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime.[31] After that point has been breached, the subjective phase ends and the objective phase begins.[32] It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted.[33] On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is complete.[34]

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whether the felony was produced after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime, that ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly, there can be no crime when the criminal mind is wanting.[35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea has been defined before as a guilty mind, a guilty or wrongful purpose or criminal intent,[37] and essential for criminal liability.[38] It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement infringes on constitutionally protected rights.[39] The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase shall kill another, thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as follows:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent.

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without

violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its

owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use

of the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs

to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.[41] In the present discussion, we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one operative act of execution by the actor involved in theft the taking of personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[42]

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius, was so broad enough as to encompass any kind of physical handling of property belonging to another against the will of the owner,[43] a definition similar to that by Paulus that a thief handles (touches, moves) the property of another.[44] However, with the Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45]This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.[46]

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing. [47] However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking[48]or an intent to permanently deprive the owner of the stolen property; [49] or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.[51]

So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not produced, and that such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends

consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not produced, and that such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code[52] as to when a particular felony is not produced, despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is already produced upon the tak[ing of] personal property of another without the latters consent.

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under observation during the entire transaction.[54] Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v. Sobrevilla,[57]where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman.[58] In rejecting the contention that only frustrated theft was established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and

that determines the crime of theft If the

ocket-book was afterwards recovered such recover

does not

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the

pocket-book.[59]

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without further investigation or checking.[60] This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less momentary.[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.[62]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft.[63]

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually contained other merchandise as well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance

,

,

.

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was qualified by the words is placed in a situation where [the actor] could dispose of its contents at once.[66] Pouncing on this qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely different from the case where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less restricted,[67] though no further qualification was offered what the effect would have been had that alternative circumstance been present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos momentaneamente proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted from the guarded compounds from which the items were filched. However, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been free disposition, as in the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68]

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even if it were more or less momentary. Or as stated in another case[[69]], theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling seems to have been based on Viadas opinion that in order the theft may be consummated, es preciso que se haga en circumstancias x x x [[70]][71]

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.[72]

There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People v. Batoon[73] involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime of theft.[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the accused were able to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit that the thieves expected from the commission of the offense.[76]

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony.[77] Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a crime in

.

,

law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78]

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code,[79] but further held that the accused were guilty only of frustrated qualified theft. It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.[80]

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of execution which should have produced the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated when the offender performs all the acts of execution, though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non- performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.

rus ra e

e

are

eyon

cav

n

s jur s

c on,

a

ec s on

s su

jec

o reassessmen .

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.

2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin

de lucro.

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos

previstos en los artίculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado[82]

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the property is not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether frustrated or consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the garment as he fled.[84]

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have held to that effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son hurtos

consumados.[86]

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son

aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.[87] (Emphasis supplied)

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether theft could truly be frustrated, since pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as proposed in Dioand Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent that must compel us to adopt

the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment.[88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a narrow interpretation is appropriate. The Court must take heed of language, legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.[89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[90]

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.[91]

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of taking itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the taking not having been accomplished. Perhaps this point could serve as fertile ground for

over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the taking not having been accomplished. Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. [92] And long ago, we asserted in People v. Avila:[93]

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into

the physical power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without his consent, a distinction of no slight importance.[94]

Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated intent,[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification.

It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free disposition of the items stolen is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous

whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

G.R. No. L-43530

August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant. Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a

logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt

to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not

a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the

intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established and stated in the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding.1avvphil.ñet

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is

wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they would be meaningless.

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare that such and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for the

declare that such and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for the designation of the offense:

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not

constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in

the accused

accordance with the evidence and the following allegation contained in the information: "

armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the

and that the accused did not succeed in entering the store due to the

purpose of entering said store

presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the

breaking of the wall, promptly approached the accused

prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and former convictions, — inasmuch as the record shows that several final judgments for robbery and theft have been rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling.

." Under the circumstances of this case the

The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one- half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs.

G.R. No. 33463

December 18, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. BASILIO BORINAGA, defendant-appellant.

Paulo Jaro for appellant. Attorney-General Jaranilla for appellee.

MALCOM, J.:

Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the municipality of Calubian, Leyte, contracted with one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was associated with Lawaan in the construction of the corral. On the morning of March 4, 1929, Lawaan, with some of his men, went to Mooney's shop and tried to collect from him the whole amount fixed by the contract, notwithstanding that only about two-thirds of the fish corral had been finished. As was to be expected, Mooney refused to pay the price agreed upon at that time. On hearing this reply of Mooney, Lawaan warned him that if he did not pay, something would happen to him, to which Mooney answered that if they wanted to do something to him they should wait until after breakfast, Lawaan then left with his men, and Mooney, after partaking of his morning meal, returned to his shop.

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a seat on a chair in front of the Perpetua, his back being to the window. Mooney had not been there long when Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga ran away towards the

been there long when Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga ran away towards the market place. Before this occurred, it should be stated that Borinaga had been heard to tell a companion:

"I will stab this Mooney, who is an American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to renew it, but was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on Borinaga, frightening him away. Again the same night, Borinaga was overheard stating that he had missed his mark and was unable to give another blow because of the flashlight. The point of the knife was subsequently, on examination of the chair, found embedded in it.

The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First Instance of Leyte for the crime of frustrated murder. The defense was alibi, which was not given credence. The accused was convicted as charged, by Judge Ortiz, who sentenced him to fourteen years, eight months, and one day of imprisonment, reclusion temporal, with the accessory penalties and the costs.

The homicidal intent of the accused was plainly evidenced. The attendant circumstances conclusively establish that murder was in the heart and mind of the accused. More than mere menaces took place. The aggressor stated his purpose, which was to kill, and apologized to his friends for not accomplishing that purpose. A deadly weapon was used. The blow was directed treacherously toward vital organs of the victim. The means used were entirely suitable for accomplishment. The crime should, therefore, be qualified as murder because of the presence of the circumstance of treachery.

The only debatable question, not referred to in the briefs, but which must be decided in order to dispose of the appeal, is: Do the facts constitute frustrated murder or attempted murder within the meaning of article 3 of the Penal Code? Although no exact counterpart to the facts at bar has been found either in Spanish or Philippine jurisprudence, a majority of the court answer the question propounded by stating that the crime committed was that of frustrated murder. This is true notwithstanding the admitted fact that Mooney was not injured in the least.

The essential condition of a frustrated crime, that the author perform all the acts of execution, attended the attack. Nothing remained to be done to accomplish the work of the assailant completely. The cause resulting in the failure of the attack arose by reason of forces independent of the will of the perpetrator. The assailant voluntarily desisted from further acts. What is known as the subjective phase of the criminal act was passed. (U. S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.)

No superfine distinctions need be drawn in favor of that accused to establish a lesser crime than that of frustrated murder, for the facts disclose a wanton disregard of the sanctity of human life fully meriting the penalty imposed in the trial court.

Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance against the appellant.

G.R. Nos. L-39303-39305

March 17, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee, vs. FELIPE KALALO, ET AL., defendants. FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants.

Meynardo M. Farol and Feliciano Gomez for appellants. Acting Solicitor-General Peña for appellee.

DIAZ, J.:

On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo, and Gregorio Ramos, were tried in the Court of First Instance of Batangas jointly with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two for murder, and the last for frustrated murder. Upon agreement of the parties said three cases were tried together and after the presentation of their respective evidence, the said court acquitted Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows:

In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months and

one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs of the said deceased Marcelino Panaligan in the sum of P1,000, with the costs.

In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and one

day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs of the aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000, with the costs.

In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply that

of discharge of firearm, not frustrated murder, the appellant Marcelo Kalalo was sentenced to one year,

eight months and twenty-one days of prision correccional and to pay the proportionate part of the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as their co-accused Fausta and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges therein.

The accused in the aforesaid three cases appealed from their respective sentences assigning six alleged errors as committed by the trial court, all of which may be discussed jointly in view of the fact that they raise only one question, to wit: whether or not said sentences are in accordance with law.

A careful study and examination of the evidence presented disclose the following facts: Prior to October

1,

1932, the date of the commission of the three crimes alleged in the three informations which gave rise

to

I

the aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo Kalalo or Calalo and t

b

l

H

l

d

Ol

d

th

l

tt

b

i

th

i

f th

d

d A

di

H

l

d

d

i

f

1, 1932, the date of the commission of the three crimes alleged in the three informations which gave rise to the aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister of the deceased Arcadio Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of land situated in the barrio of Calumpang of the municipality of San Luis, Province of Batangas. On September 28, 1931, and again on December 8th of the same year, Marcelo Kalalo filed a complaint against the said woman in the Court of First Instance of Batangas. By virtue of a motion filed by his opponent Isabela Holgado, his first complaint was dismissed on December 7, 1931, and his second complaint was likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in question during the agricultural years 1931 and 1932, but when harvest time came Isabela Holgado reaped all that had been planted thereon.

On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased, decided to order the aforesaid land plowed, and employed several laborers for that purpose. These men, together with Arcadio Holgado, went to the said land early that day, but Marcelo Kalalo, who had been informed thereof, proceeded to the place accompanied by his brothers Felipe and Juan Kalalo, his brother-in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by Fausta Abrenica and Alipia Abrenica, mother and aunt, respectively, of the first three.

The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who were plowing it by request of Isabela and Arcadio Holgado, to stop, which they did in view of the threatening attitude of those who gave them said order.1ªvvphi1.ne+

Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and Hilarion Holgado arrived at the place with food for the laborers. Before the men resumed their work, they were given their food and not long after they had finished eating, Marcelino Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having been informed of the cause of the suspension of the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their respective carabaos to continue the work already began. At this juncture, the appellant Marcelo Kalalo approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn, approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother of the Kalalos, about as follows, "what is detaining you?" they all simultaneously struck with their bolos, the appellant Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan died instantly from the wounds received by them in the presence of Isabela Holgado and Maria Gutierrez, not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away.

Arcadio Holgado's body bore the following six wounds, to wit:

1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bone completely and, the

radius partially.

2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and 5 cm. wide

extending to the bone and cutting the deltoid muscle across.

3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal space

measuring about 8 cm. long and 2 cm wide.

4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space and injuring

the lung, diaphragm, stomach and large intestine.

5. A small superficial cut wound about 2 cm. long and ½ cm. wide situated on the inner side of the right

scapula.

6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to the right of the

spinal column. (Exhibit I.)

Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit:

1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm. long and 3 cm.

wide cutting the omentum and injuring the lower portion of the stomach and a portion of the transverse

colon, but no actual perforation of either one of the two organs.

2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a portion of

scalp as a flap.

.

scalp as a flap.

.

g

.

g

p

3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide.

4. A cut wound about 12 cm. long across the face just below the eyes extending from one cheek bone to

the other, perforating the left antrum and cutting the nasal bone.

5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of skin and

muscle which measures about 12 cm long and 6 cm. wide.

6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide cutting the bones

of the hand.

7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left axilla.

8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula.

9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the scapula cutting

the muscles of the shoulder.

10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the inner border of

the right scapula.

11. A wound on the back of the head, oval in shape, about 10 cm. long and 5 cm. wide from which a flap

of scalp was removed.

12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep cutting the

vertebral column together with the great arteries and veins on the left side of the neck.

13. A wound about 15 cm. long and 4 cm. wide on the left side of the back.

14. A small wound on the left thumb from which a portion of the bone and other tissues were removed.

(Exhibit H.)

The above detailed description of the wounds just enumerated discloses — and there is nothing of record to contradict it all of them were caused by a sharp instrument or instruments.

After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo Kalalo took from its holster on the belt of Panaligans' body, the revolver which the deceased carried, and fired four shots at Hilarion Holgado who was then fleeing from the scene inorder to save his own life.

The appellants attempted to prove that the fight, which resulted in the death of the two deceased, was provoked by Marcelino Panaligan who fired a shot at Marcelo Kalalo upon seeing the latter's determination to prevent Arcadio Holgado and his men from plowing the land in question. No such firing, however, can be taken into consideration, in the first place, because of the existence of competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness, which corroborates that of Isabela Holgado in all its details, showing that the said deceased was already lying prostrate and lifeless on the ground when the appellant Marcelo Kalalo approached him to take his revolver for the purpose of using it, as he in fact did, against Hilarion Holgado; in the second place, because the assault and aggression of the said appellant were not directed against said Marcelino Panaligan but exclusively against Arcadio Holgado, the evidence of record on this point being overwhelming, and if his claim were true, he naturally should have directed his attack at the person who openly made an attempt against his life; in the third place, because the evidence shows without question that Panaligan was an expert shot with a revolver, and among the eight wounds that the appellant Marcelo Kalalo received (Exhibit 3), not one appears to have been caused by bullet, and similarly, none of the other appellants received any wound that might, in any way, suggest the possibility of having been caused by bullet; and finally, because the fact that he and his co-appellants, together with those who had been charged jointly with them, had gone to the place of the crime armed with bolos, determined at any cost to prevent the Holgados from plowing the land in dispute, cannot but disclose not only their determination to resort to violence or something worse, but that they did not need any provocation in order to carry out their intent.

They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon them the wounds which resulted in their death, said appellant testifying that he was compelled to do so in defense of his own life because both of the deceased attacked him first, the former with a revolver, firing three shots at him, and the latter with a bolo For the same reasons hereinbefore stated such defense of the appellants cannot be given credit

death, said appellant testifying that he was compelled to do so in defense of his own life because both of the deceased attacked him first, the former with a revolver, firing three shots at him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the appellants cannot be given credit. One man alone could not have inflicted on the two deceased their multiple wounds, particularly when it is borne in mind that one of them was better armed, because he carried a revolver, and that he was furthermore an expert shot and scarcely two arm-lengths from Kalalo, according to the latter's own testimony. The two witnesses for the defense, who witnessed the crime very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased Arcadio Holgado and that the other three appellants went after the other deceased. It is true that Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's aggression but it is no less true that five of the principal wounds of the other deceased Marcelino Panaligan were inflicted on him from behind, inasmuch as according to Exhibit H they were all found at the back of the head, on the neck and on his back. Neither is it less true that all the wounds of the appellant Marcelo Kalalo were inflicted on him from the front, which fact shows that it was not he alone who inflicted the wounds on the two deceased because had he been alone Panaligan would not have exposed his back to be thus attacked from behind, inasmuch as he was armed with a revolver, which circumstance undoubtedly allowed him to keep at a distance from Kalalo; and in connection with the testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore that the three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with their respective bolos at the same time that Marcelo Kalalo attacked Arcadio Holgado, in order that all might act simultaneously in conformity with the common intent of the four and of their coaccused to eliminate through violence and at any cost, without much risk to them, all those who wanted to plow the land which was the cause of the dispute between the two parties. And it is not strange that the three appellants, who inflicted the wounds upon Marcelino Panaligan, should act as they did, because they knew that the latter carried a revolver in a holster on his belt.

Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's allegation that he acted in self-defense is absolutely unfounded on the ground that, were it true that the deceased Marcelino Panaligan succeeded in using his revolver, he would have wounded if not the said appellant, at least the other appellants.

The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and Felipe Kalalo and Gregorio Ramos that they proceeded to the scene of the crime completely unarmed, with the exception that one of them had a brush in his hand and the other a plane, after Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and improbable under the circumstances, knowing, as in fact they then knew, that their brother Marcelo Kalalo had been attacked by armed men. This court cannot help but agree with the decision of the lower court where it states:

It is improbable that after having been informed that their brother was engaged in a fight, they went to the scene of the crime, one merely armed with a plane and the other with a brush. It is improbable that Felipe Kalalo also went to that place simply to follow Juan Kalalo and Gregorio Ramos upon seeing them run unarmed in that direction. These improbabilities of the defenses of the accused, in the face of the positive and clear testimony of the eyewitnesses pointing to the said accused as the aggressors of the deceased Marcelino Panaligan and Arcadio Holgado, cannot, of course, prevail against nor detract from the weight of the evidence of the prosecution, particularly taking into consideration the numerous wounds of each of the deceased and the positions thereof, which show that the said deceased were attacked by several persons and that those several persons were the defendants. Furthermore, the established fact that after the commission of the crime the said defendants had been in hiding in order to avoid arrest, is corroborative evidence of their guilt.

It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos were not arrested until after several days, because they had been hiding or, at least, absenting themselves from their homes.

That the four appellants should all be held liable for the death of the two deceased leaves no room for doubt. All of them, in going to the land where the killing took place, were actuated by the same motive which was to get rid of all those who might insist on plowing the land which they believed belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable from the circumstance that all of them went there fully armed and that they simultaneously acted after they had been instigated by their mother with the words hereinbefore stated, to wit: "What is detaining you?"

The question now to be decided is whether the appellants are guilty of murder or of simple homicide in each of cases G.R. No. L-39303 and G.R. No. L-39304. The Attorney-General maintains that they are guilty of murder in view of the presence of the qualifying circumstance of abuse of superior strength in the commission of the acts to which the said two cases particularly refer. The trial court was of the opinion that they are guilty of simple homicide but with the aggravating circumstance of abuse of superior strength.

It i

t

th

t

d

ti

l

248

f th

R

i

d P

l C

d

hi

h d

fi

d

th

i

t

f

strength.

It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance of "abuse of superior strength", if proven to have been presented, raises homicide to the category of murder; but this court is of the opinion that said circumstance may not properly be taken into consideration in the two cases at bar, either as a qualifying or as a generic circumstance, if it is borne in mind that the deceased were also armed, one of them with a bolo, and the other with a revolver. The risk was even for the contending parties and their strength was almost balanced because there is no doubt but that, under circumstances similar to those of the present case, a revolver is as effective as, if not more than three bolos. For this reason, this court is of the opinion that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303 and 39304, respectively), merely constitute two homicides, with no modifying circumstance to be taken into consideration because none has been proved.

As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive shots at Hilarion Holgado while the latter was fleeing from the scene of the crime in order to be out of reach of the appellants and their companions and save his own life. The fact that the said appellant, not having contended himself with firing only once, fired said successive shots at Hilarion Holgado, added to the circumstance that immediately before doing so he and his co-appellants had already killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the former, shows that he was then bent on killing said Hilarion Holgado. He performed everything necessary on his pat to commit the crime that he determined to commit but he failed by reason of causes independent of his will, either because of his poor aim or because his intended victim succeeded in dodging the shots, none of which found its mark. The acts thus committed by the said appellant Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be taken into consideration, because none has been established.

Wherefore, the three appealed sentences are hereby modified as follows:

In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the appellants is homicide and they hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify the heirs of Marcelino Panaligan in the sum of P1,000 and to pay the proportionate part of the costs of the proceedings of both instances; and by virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is hereby fixed at nine years;

In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the appellants is homicide, and they are hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify the heirs of Arcadio Holgado in the sum of P1,000 and to pay the proportionate part of the costs of both instances; and in conformity with the provisions of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed upon them is hereby fixed at nine years;

In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two years, four months and one day of prision correccional, it being understood that by virtue of the provisions of said Act No. 4103, the minimum of this penalty is six months, and he is furthermore sentenced to pay the costs of the appeal in this case.

In all other respects, the appealed sentences in the said three cases are hereby affirmed without prejudice to crediting the appellants therein with one-half of the time during which they have undergone preventive imprisonment, in accordance with article 29 of the Revised Penal Code. So ordered.

G.R. No. 79123-25 January 9, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELIANO TRINIDAD, accused-appellant.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellant.

MELENCIO-HERRERA, J.:

On the sole issue that the adduced evidence is insufficient to prove his guilt beyond reasonable doubt of

,

On the sole issue that the adduced evidence is insufficient to prove his guilt beyond reasonable doubt of two crimes of Murder and one of Frustrated Murder with which he has been charged, accused Emeliano Trinidad appeals from the judgment of the Regional Trial Court, Branch 7, Bayugan, Agusan del Sur.

From the testimony of the principal witness, Ricardo TAN, the prosecution presents the following factual version:

The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were TAN, a driver, and the other deceased victim Marcial LAROA. On 19 January 1983, using a Ford Fiera, they arrived at Butuan City to sell fish. In the morning of 20 January 1983 SORIANO drove the Fiera to Buenavista, Agusan del Norte, together with LAROA and a helper of one Samuel Comendador. TAN was left behind in Butuan City to dispose of the fish left at the Langihan market. He followed SORIANO and LAROA, however, to Buenavista later in the morning.

While at Buenavista, accused Emeliano TRINIDAD, a member of the Integrated National Police, assigned at Nasipit Police Station, and residing at Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is on the way to Davao City. TRINIDAD was in uniform and had two firearms, a carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA, TAN, and TRINIDAD then left Butuan on 20 January 1983 at about 5:20 P.M. bound for Davao City. TAN was driving the Fiera. Seated to his right was SORIANO, LAROA and the accused TRINIDAD, in that order. When they reached the stretch between El Rio and Afga, TRINIDAD advised them to drive slowly because, according to him, the place was dangerous. All of a sudden, TAN heard two gunshots. SORIANO and LAROA slumped dead. TAN did not actually see the shooting of LAROA but he witnessed the shooting of SORIANO having been alerted by the sound of the first gunfire. Both were hit on the head. TRINIDAD had used his carbine in killing the two victims.

TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City and hid himself in the bushes. The Fiera was still running slowly then but after about seven (7) to ten (10) meters it came to a halt after hitting the muddy side of the road. TAN heard a shot emanating from the Fiera while he was hiding in the bushes.

After about twenty (20) to thirty (30) minutes, when a passenger jeep passed by, TAN hailed it and rode on the front seat. After a short interval of time, he noticed that TRINIDAD was seated at the back. Apparently noticing TAN as well, TRINIDAD ordered him to get out and to approach him (TRINIDAD) but, instead, TAN moved backward and ran around the jeep followed by TRINIDAD. When the jeep started to drive away, TAN clung to its side. TRINIDAD fired two shots, one of which hit TAN on his right thigh. As another passenger jeep passed by, TAN jumped from the first jeep and ran to the second. However, the passengers in the latter jeep told him to get out not wanting to get involved in the affray. Pushed out, TAN crawled until a member of the P.C. chanced upon him and helped him board a bus for Butuan City.

TRINIDAD's defense revolved around denial and alibi. He contended that he was in Cagayan de Oro City on the date of the incident, 20 January 1983. At that time, he was assigned as a policeman at Nasipit Police Station, Agusan del Norte. He reported to his post on 19 January 1983 but asked permission from his Station Commander to be relieved from work the next day, 20 January, as it was his birthday. He left Baan, his Butuan City residence, at about 3:00 P.M. on 20 January 1983 and took a bus bound for Cagayan de Oro City. He arrived at Cagayan de Oro at around 8:00 P.M. and proceeded to his sister's house at Camp Alagar to get his subsistence allowance, as his sister was working thereat in the Finance Section.

At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD then.

Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at lunch time on 21 January 1983 arriving at the latter place around 6:00 P.M., and went to his house directly to get his service carbine. He was on his way to Nasipit to report for duty on 21 January 1983 when he was arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.

After joint trial on the merits and unimpressed by the defense by the Trial Court** sentenced the accused in an "Omnibus Decision", thus:

WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano Trinidad GUILTY beyond reasonable doubt of the crimes of Murder and Frustrated Murder.

In the Frustrated Murder, there being no mitigating circumstance, and taking into account the provisions of the Indeterminate Sentence Law, accused Trinidad is meted out a penalty of:

In

the Frustrated Murder, there being no mitigating circumstance, and taking into account the provisions

of

the Indeterminate Sentence Law, accused Trinidad is meted out a penalty of:

1) 8 years and 1 day to 12 years of prision mayor medium;

2) to indemnify the complainant the amount of P 5,000.00; and

3) to pay the costs.

Likewise, in the two murder cases, Trinidad is accordingly sentenced:

1) to a penalty of Reclusion Perpetua in each case;

2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of P30,000.00 each; and

3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).

Before us now, TRINIDAD claims that the Trial Court erred in giving full faith and credit to TAN's testimony who, TRINIDAD alleges, was an unreliable witness. That is not so.

We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer that when TRINIDAD boarded the Fiera in Buenavista, he (TAN) was not in the vehicle, and that made in open Court when he said that he was with TRINIDAD going to Butuan City on board the Fiera. For the facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN was still in Langihan distributing fish. The Fiera left for Buenavista, driven by SORIANO between 6:00 to 7:00 A.M., while TAN followed only at 11:00, A.M. in another vehicle. So that when TRINIDAD boarded the Fiera in Buenavista, TAN was not

yet in that vehicle although on the return trip from Butuan City to Davao City, TAN was already on board.

In

fact, TAN was the one driving. TAN's testimony clarifying this point reads:

Q

Did you not say in your direct examination that you went to Buenavista, Agusan del Norte?

A We were in Langihan and since our fishes were not consumed there, we went to Buenavista.

Q

Now, what time did you leave for Buenavista from Langihan?

A

It was more or less at 6:00 to 7:00 o'clock.

Q

You were riding the fish car which you said?

A

I was not able to take the fish car in going to Buenavista because they left me fishes to be dispatched

yet.

Q

In other words, you did not go to Buenavista on January 20, 1983?

A

I was able to go to Buenavista after the fishes were consumed.

Q

What time did you go to Buenavista?

A

It was more or less from 11:00 o'clock noon.

Q

What transportation did you take?

A

I just took a ride with another fish car because they were also going to dispatch fishes in Buenavista.

Q

Now, who then went to Buenavista with the fish car at about 7:00 o'clock in the morning of January 20,

1983?

A Lolito Soriano and Marcia Laroa with his helper.

x x x x x x

Q Now, when this fish car returned to Butuan City who drove it?

A Lolito Soriano.

 

,

y

A

Lolito Soriano.

Q

Were you with the fish car in going back to Langihan?

A

Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).

Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw TRINIDAD riding in the Fiera on the front seat in the company of TAN, SORIANO and LAROA, when the Fiera stopped by his house at Butuan City (TSN, November 5, 1985, pp. 32-33).

The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before the NAPOLCOM Hearing Officer whether TRINIDAD was wearing khaki or fatigue uniform but, in open Court, he testified positively that TRINIDAD was in khaki uniform; and that while TAN declared that TRINIDAD was wearing a cap, prosecution witness Felimon Comendador said that he was not but was in complete fatigue uniform, are actually trivial details that do not affect the positive identification of TRINIDAD that TAN has made nor detract from the latter's overall credibility.

Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the deceased victims negates TAN's claim that they were shot "point-blank." Actually, this term refers merely to the "aim directed straight toward a target" (Webster's Third New International Dictionary) and has no reference to the distance between the gun and the target. And in point of fact, it matters not how far the assailant was

at the time he shot the victims, the crucial factor being whether he did shoot the victim or not.

TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward and detailed descriptive narration of TAN, thus:

Q

Now, from Butuan City, where did you proceed?

A

We proceeded to Davao.

Q

Did you in fact reach Davao on that date?

A

No, sir.

Q

Could you tell the Court why you failed to reach Davao?

A

Because we were held-up.

Q

Who held-up you?

A

Emeliano Trinidad, sir.

Q

Are you referring to accused Emeliano Trinidad whom you pointed to the court awhile ago?

A

Yes, sir.

Q

Will you tell the Court how did Emeliano Trinidad holdup you?

A

When we reach between El Rio and Afga, Trinidad advised us to run slowly because this place is

dangerous. Then suddenly there were two gun bursts.

Q

Now, you heard two gun bursts. What happened? What did you see if there was any?

A

I have found out that Lolito Soriano and Marcial Laroa already fall.

Q

Fall dead?

A

They were dead because they were hit at the head.

Q

You mean to inform the Court that these two died because of that gun shot bursts?

A

Yes, sir.

A

Yes, sir.

Q

Did you actually see Trinidad shooting the two?

A

I did not see that it was really Trinidad who shot Laroa but since I was already alerted by the first burst, I

have seen that it was Trinidad who shot Soriano.

Q

What was the firearm used?

A

Carbine, sir.

x

x x x x x

Q

Now, after you saw that the two fell dead, what did you do?

A

I got out from the Ford Fiera while it was running.

x

x x x x x

Q

From the place where you were because you said you ran, what transpired next?

A

I hid myself at the side of the jeep, at the bushes.

Q

While hiding yourself at the bushes, what transpired?

A

I heard one gun burst.

Q

From what direction was that gun bursts you heard?

A

From the Ford Fiera, sir.

Q

After that, what happened?

A

At around 20 to 30 minutes, I moved out from the place where I hid myself because I wanted to go back

to

Butuan, Then, I boarded the jeep and sat at the front seat but I found out that Emeliano Trinidad was at

the back seat.

Q

When you found out that Trinidad was at the back, what happened?

A

He ordered me to get out.

Q

Now, when you got down, what happened?

A

When I got out from the jeep, Trinidad also got out.

Q

Tell the Court, what happened after you and Trinidad got out from the jeep?

A

He called me because he wanted me to get near him.

Q

What did you do?

A

I moved backward.

'Q

Now, what did Trinidad do?

A

He followed me.

Q

While Trinidad followed you, what happened?

A

I ran away around the jeep.

Q

Now, while you were running around the jeep, what happened?

Q

Now, while you were running around the jeep, what happened?

A

The driver drove the jeep.

Q

Now, after that, what did you do?

A

I ran after the jeep and then I was able to take the jeep at the side of it.

Q

How about Trinidad, where was he at that time?

A

He also ran, sir.

Q

Now, when Trinidad ran after you what happened?

A

Trinidad was able to catchup with the jeep and fired his gun.

Q

Were you hit?

A

At that time I did not know that I was hit because it was sudden.

Q

When for the first time did you notice that you were hit?

A

At the second jeep.

Q

You mean to inform the Court that the jeep you first rode is not the very same jeep that you took for the

second time?

A

No, sir.

Q

Now, when you have notice that you were hit, what did you do?

A

At the first jeep that I took I was hit, so I got out from it and stood-up at the middle of the road so that I

can catch up the other jeep.' (TSN, December 6, 1985, pp. 44-49)

TAN's testimony remained unshaken even during cross- examination. No ill motive has been attributed to him to prevaricate the truth. He was in the vehicle where the killing transpired was a witness to the actual happening, and was a victim himself who managed narrowly to escape death despite the weaponry with which TRINIDAD was equipped.

The defense is correct, however, in contending that in the Frustrated Murder case, TRINIDAD can only be convicted of Attempted Murder. TRINIDAD had commenced the commission of the felony directly by overt acts but was unable to perform all the acts of execution which would have produced it by reason of causes other than his spontaneous desistance, such as, that the jeep to which TAN was clinging was in motion, and there was a spare tire which shielded the other parts of his body. Moreover, the wound on his thigh was not fatal and the doctrinal rule is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is only Attempted Murder, the accused not having performed all the acts of execution that would have brought about death (People vs. Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13, 1980, 96 SCRA 497).

But while the circumstances do spell out the two crimes of Murder, the penalty will have to be modified. For, with the abolition of capital punishment in the 1987 Constitution, the penalty for Murder is now reclusion temporal in its maximum period to reclusion perpetua (People vs. Lopez, et al. G.R. No. 71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673, October 30, 1987; People vs. Masangkay, G.R. No. 73461, October 27, 1987). With no attending mitigating or aggravating circumstance, said penalty is imposable in its medium period or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. The penalty next lower in degree for purposes of the Indeterminate Sentence Law is prision mayor, maximum, to reclusion temporal, medium, or from ten (10) years and one (1) day to seventeen (17) years and four (4) months (Article 61, parag. 3, Revised Penal Code).

WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two counts) and Attempted Murder, having been proven beyond reasonable doubt, his conviction is hereby AFFIRMED and he is hereby sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall suffer the

and he is hereby sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to indemnify the heirs of Marcial Laroa and Lolito Soriano, respectively, in the amount of P30,000.00 each; and to pay the costs.

2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby found guilty only of Attempted Murder and sentenced to an indeterminate penalty of six (6) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum; to indemnify Ricardo Tan in the sum of P5,000,00; and to pay the costs.

SO ORDERED.

G.R. No. 168827

April 13, 2007

BENJAMIN P. MARTINEZ, Petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

CALLEJO, SR., J.:

D E C I S I O N

CALLEJO, SR., J.:

CALLEJO, SR., J.: This is a Petition for Review on Certiorari of the Decision 1 and

This is a Petition for Review on Certiorari of the Decision 1 and the Resolution 2 of the Court of Appeals (CA) in CA-G.R. CR No. 25436, affirming with modification the trial court’s judgment finding Benjamin P. Martinez guilty beyond reasonable doubt of frustrated homicide.

The Antecedents

Dean Dongui-is was a teacher at the Tubao National High School, La Union. Petitioner Benjamin Martinez was the husband of Dean’s co-teacher, Lilibeth Martinez. Petitioner eked out a living as a tricycle driver.

On October 28, 1998, Dean and his wife Freda filed a complaint for damages against the spouses Martinez in the Municipal Circuit Trial Court (MCTC) of Tubao, La Union. They alleged that in March 1998, petitioner, a suitor of Elvisa Basallo, had been peddling false reports that Dean and Elvisa had illicit relations; he even told Freda that Elvisa was Dean’s mistress. This led to a quarrel between Dean and Freda, and the latter was hospitalized for her heart ailment. Dean requested Lilibeth to stop her husband from spreading lies, and she replied that Elvisa had been her husband’s mistress. They prayed that they be awarded moral and exemplary damages and litigation fees in the total amount of 100,000.00. 3 The case was docketed as Civil Case No. 226.

3 The case was docketed as Civil Case No. 226. For her part, Elvisa also filed

For her part, Elvisa also filed a complaint against the spouses Martinez in the MCTC of Tubao for damages anchored on Article 26 of the New Civil Code. She alleged that on several occasions, petitioner went to the Shaltene Pawnshop and Pharmacy where she was employed and accused her of having an illicit affair with Dean; on one occasion, he held her hand and forcibly pulled her outside, which caused her to scratch his face and run after him with a knife; he also told her husband’s cousin, Willy Ordanza, that she had an illicit affair with Dean; Willy, in turn, told her mother-in-law about it; petitioner relayed the same rumors to her co-worker, Melba Dacanay, and his wife spread to people in the Municipality, including Ramil Basallo, her brother-in-law. Elvisa also prayed for damages in the total amount of 100,000.00. The case was docketed as Civil Case No. 227. 4

100,000.00. The case was docketed as Civil Case No. 227. 4 The spouses Martinez filed a

The spouses Martinez filed a motion to dismiss the complaint in Civil Case No. 226 which was heard in the morning of February 3, 1999. The court denied the motion.

At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative (TCC) office to pick up the dividend certificate of his wife who was a member of the cooperative. He left the building and walked to his car which was parked in front. As he did, he read the dividend certificate of his wife. Dean was about a step away from an L-300 van which was parked in front of the building when petitioner, armed with a bolo, suddenly emerged from behind the vehicle and stabbed him on the left breast. Dean instantly moved backward and saw his assailant. Dean fled to the bank office and was able to gain entry into the bank. Petitioner ran after him and upon cornering him, tried to stab him again. Dean was able to parry the blow with his right hand, and the bolo hit him on the right elbow. Dean fell to the floor and tried to stand up, but petitioner stabbed him anew on his left breast. 5 Dean managed to run to the counter which was partitioned by a glass. Unable to get inside the counter, petitioner shouted at Dean: "Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen (You kneel down because I will really kill you now this day)." 6

down because I will really kill you now this day)." 6 Meantime, SPO1 Henry Sulatre was
down because I will really kill you now this day)." 6 Meantime, SPO1 Henry Sulatre was

Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about 100 meters away. He was informed that a fight was going on in the bank. He rushed to the place on board the police car. When he arrived at the scene, he saw Barangay Captain Rodolfo Oller and his son Nicky Oller. 7 Nicky handed to him the bolo which petitioner had used to stab Dean. 8 He and Rodolfo brought petitioner to the police station. On the way, they passed by the loading area of tricycles, about 40 meters away from the police station. Petitioner shouted: "Sinaksak kon pare, sangsangaili laeng isuna saan isuna to agari ditoy Tubao (I stabbed him, he is just a visitor so he should not act like a king here in Tubao)." SPO1 Sulatre placed Benjamin in jail. Benjamin kept on shouting: "Napatay kon, napatay kon (I killed him, I killed him)." 9

kon, napatay kon (I killed him, I killed him)." 9 In the meantime, PO3 Valenzuela brought
kon, napatay kon (I killed him, I killed him)." 9 In the meantime, PO3 Valenzuela brought
kon, napatay kon (I killed him, I killed him)." 9 In the meantime, PO3 Valenzuela brought

In the meantime, PO3 Valenzuela brought Dean to the Doña Gregoria Memorial Hospital in Agoo, La Union. The victim was transferred to the Ilocos Regional Hospital (IRH) in San Fernando, La Union where Dean was examined and operated on by Dr. Nathaniel Rimando, with the assistance of Dr. Darius Pariñas. 10 Dean sustained two stab wounds in the anterior chest, left, and a lacerated wound in the right elbow, forearm. Had it not been for the blood clot that formed in the stab wound on the left ventricle that prevented the heart from bleeding excessively, Dean would have died from profuse bleeding. 11

On February 7, 1999, Dean gave a sworn statement to SPO1 Sulatre. 12 However, he deferred swearing to the truth of his statement before the Public Prosecution because SPO1 Sulatre was waiting for the permanent medical certificate to be issued by the hospital. SPO1 Sulatre deferred the execution and

On February 7, 1999, Dean gave a sworn statement to SPO1 Sulatre. However, he deferred swearing to the truth of his statement before the Public Prosecution because SPO1 Sulatre was waiting for the permanent medical certificate to be issued by the hospital. SPO1 Sulatre deferred the execution and submission of an arrest report also pending the issuance of the medical certificate.

Instead of issuing a permanent medical certificate, the IRH issued on February 8, 1999 the following Temporary Certificate:

TO WHOM IT MAY CONCERN:

According to hospital record, DEAN N. DONGUI-IS, 30 years old, male, married, a resident of Francia West, Tubao, La Union, was examined/treated/confined in this hospital on/from February 3-20, 1999.

WITH THE FOLLOWING FINDINGS AND DIAGNOSIS:

– Stab Wound (L) Chest with Hemothorax (L), (L) Ventricular Perforation;

OPERATIONS:

– Exploratory Thoracotomy (L); Evacuation of Retained Blood Clots; Ventriculorrhaphy Decortication

2/11/99

and would need medical attendance for more than thirty (30) days barring complications. 13

On March 10, 1999, SPO1 Sulatre filed a criminal complaint for frustrated murder against petitioner in the MCTC. 14 The MCTC opted not to act on the crime pending the arrest report and SPO1 Sulatre’s submission of Dean’s sworn statement.

The IRH issued a medical certificate on February 28, 1999, stating that Dean’s wounds would need medical attendance of more than 30 days. 15 Barangay Captain Oller and SPO1 Sulatre executed an

affidavit on petitioner’s arrest. 16 Dean had his affidavit sworn before the Public Prosecutor on March 30,

1999.

On September 13, 2000 the Provincial Prosecutor of La Union indicted Benjamin for frustrated murder before the Regional Trial Court (RTC), Branch 31, of the same province. The accusatory portion of the Information reads:

That on or about the 3rd day of February 1999, in the Municipality of Tubao, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and with treachery and evident premeditation, being then armed with a small pointed bolo, did then and there willfully, unlawfully and feloniously attack, assault and stab one DEAN DONGUI-IS y Manalo, hitting him on his left breast and right elbow, and thereby inflicting on him injuries that would have produced the crime of Murder as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the accused, mainly the timely rendition of medical assistance of on the said offended party, which prevented his death, to his damage and prejudice.

CONTRARY TO LAW. 17

On October 13, 2000, the accused, assisted by counsel, was arraigned and entered a plea of not guilty.

The Case for Petitioner

Petitioner declared that he merely defended himself against Dean’s assault. Dean was so jealous of him because his mistress, Elvisa, had also been his mistress. Unknown to Dean, he had already terminated his relation with Elvisa sometime in March 1997 when his wife Lilibeth discovered the illicit relationship. 18 Dean also suspected that he (petitioner) had been sending letters to his (Dean’s) wife relative to the illicit relationship with Elvisa. Dean also suspected that he was responsible for the raid conducted by the Criminal Investigation Service (CIS) of his house for possession of a gun. 19 As a result, Dean filed a civil complaint against him for damages, docketed as Civil Case No. 266. Before and after the filing of the civil case, Dean had hurled invectives at him in the presence of Joselito Madriaga and other tricycle drivers. 20 Dean even attempted to sideswipe him with his car. 21

Petitioner declared that the criminal charge against him was Dean’s concoction, and intended solely to harass him. He narrated that he went to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had earlier received a note from the cooperative to get the interest on her deposit. 22 He parked his tricycle ’

23

harass him. He narrated that he went to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had earlier received a note from the cooperative to get the interest on her deposit. 22 He parked his tricycle in front of the building on the left side of the railing going to the entrance of the cooperative. 23 Dean’s car was parked on the right side of the railing. 24 On his way, he met his 82-year-old uncle, Godofredo Sarmiento, who was also on his way to the cooperative to update his passbook because he was intending to apply for a loan. 25 He told Godofredo that they could go to the TCC together. When they were about to pass through the entrance door, Dean was about to exit from the cooperative. Dean thought that he was blocking his way and shouted invectives at him and his uncle; Dean also spat on his breast and face; and threw a punch which he was able to parry with his left elbow. 26 Dean kept attacking him, forcing him to move backward through the railing and towards his tricycle. Dean punched him again but he managed to parry the blow with his bolo which he took from his tricycle. He stabbed Dean on his right elbow. 27 He swung his bolo at Dean which forced the latter to run back into the office. He entered the office and stood by the entrance door to see if Dean would get a weapon. Dean continued hurling invectives at him but was later pacified by Patricio Alterado, an employee of the cooperative. 28 When Barangay Captain Oller arrived, he surrendered, along with his bolo. 29 He never boasted on the way to the police station that he had killed Dean. 30

Godofredo partially corroborated the testimony of petitioner. He declared that Dean spat on the face of petitioner. 31 By the time Dean and petitioner reached the place where the latter’s tricycle was parked, he had left; he was afraid of being involved. 32 He did not report the incident to the police authorities.

Joselito Madriaga testified that he and petitioner were bosom buddies with a long history of friendship. Dean had an axe to grind against petitioner because the two maintained a common mistress, Elvisa. 33

The Trial Court’s Decision

On April 30, 2001, the trial court rendered judgment 34 convicting petitioner of frustrated homicide. The fallo of the decision reads –

WHEREFORE, this Court, after a consideration of the evidence adduced in this case, finds accused BENJAMIN MARTINEZ guilty of the crime of Frustrated Homicide as principal. Neither aggravating circumstance nor mitigating circumstance has been appreciated. Applying the Indeterminate Sentence

Law, accused Benjamin Martinez is sentenced to suffer the penalty of imprisonment ranging from FOUR

(4) YEARS OF PRISION CORRECTIONAL MEDIUM as minimum to EIGHT (8) YEARS and ONE (1)

DAY OF PRISION MAYOR MEDIUM as maximum. He is also ordered to pay DEAN DONGUI-IS the amount of ONE HUNDRED FIFTY THOUSAND (150,000.00) PESOS, broken into the following:

(a)

Ninety-Two Thousand (92,000.00) Pesos for medical expenses;

(b)

Twenty-Six Thousand (26,000.00) Pesos, representing his salaries for two (2) months when he could

not attend to teach due to his injuries;

(c)

Twenty-Two Thousand (22,000.00) Pesos as moral damages; and

(d)

Ten Thousand (10,000.00) Pesos as complainant’s attorney’s fees.

SO ORDERED. 35

The trial court gave credence and full probative weight to the testimony of Dean, Dr. Rimando, SPO1 Sulatre, and the documentary evidence of the prosecution. The court rejected petitioner’s twin defenses of denial and self-defense. It declared that his version lacked strong corroboration, and that his witnesses (a close relative and a friend) were biased.

Finding that the prosecution failed to prove the qualifying circumstances of treachery, the trial court convicted petitioner of frustrated homicide. The court declared that the crime involved a "love triangle," 36 and considered the protagonists’ history of personal animosity. There was no evident premeditation because Dean had been "forewarned" of the attack. 37

On appeal before the CA, petitioner raised the following issues:

I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT WRONGFULLY GAVE CREDENCE TO THE FABRICATED CLAIMS OF THE SOLE WITNESS FOR THE PROSECUTION.

II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT WRONGFULLY GAVE CREDENCE TO THE FALSE AND SPECIOUS TESTIMONY OF THE COMPLAINANT.

II.

THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT WRONGFULLY GAVE CREDENCE

TO THE FALSE AND SPECIOUS TESTIMONY OF THE COMPLAINANT.

III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR

FRUSTRATED HOMICIDE FOR INJURIES NOT ATTESTED BY ANY COMPETENT MEDICAL

CERTIFICATE.

IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED FOR

FRUSTRATED HOMICIDE WITHOUT ANY PROOF BEYOND REASONABLE DOUBT.

V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT DISREGARDED THE CONCLUSIVE

EVIDENCE FOR THE DEFENSE WHICH COMPLETELY NEGATED ANY PROOF FOR THE PROSECUTION AND WHICH DEFINITELY WARRANTED THE ACQUITTAL OF THE ACCUSED. 38

Maintaining his innocence, petitioner claimed that he had merely acted in self-defense when Dean insulted him, spat on his face and assaulted him with fist blows on a mere suspicion that he (petitioner) was blocking Dean’s way through the exit door of the cooperative.

The Decision of the Court of Appeals

On February 21, 2005, the CA rendered judgment affirming the assailed decision of the RTC with modification. The fallo reads –

WHEREFORE, the appealed Decision dated April 30, 2001 of the trial court is affirmed, subject to the afforested modification of the minimum period of the sentence. Loss of earnings in the amount of 26,000.00 and attorney’s fees in the amount of 10,000.00 are deleted, and the award of actual damages is increased to 92,715.68.

SO ORDERED. 39

The CA ruled that the case is more of a "retaliation" rather than a case of self-defense. It declared that Dean sustained two fatal stab wounds in his left chest, a fact which belied petitioner’s defense and confirmed the prosecution’s theory that he purposely and vigorously attacked the victim. The CA ruled that when an unlawful aggression which has begun no longer exists, the one making the defense has no more right to kill or even wound the aggressor. The appellate court pointed out that in the case before it, the supposed unlawful aggression of Dean ceased from the moment he retreated inside the cooperative building; there was no need for petitioner to follow Dean inside the building and stab him with his bolo. Petitioner should have simply stood his ground and walked away.

In discounting the qualifying circumstances of treachery and evident premeditation, the CA simply adverted to the stipulation of facts contained in the Pre-Trial Order dated December 20, 2000 issued by the RTC, stating "[t]hat the accused stabbed the private complainant when the latter assaulted and boxed him (accused)." 40 Petitioner’s plea of voluntary surrender was not appreciated in his favor. However, the appellate court modified the minimum sentence imposed by the trial court to four (4) years and two (2) months of prision correctional, as minimum.

As to damages, the CA deleted the RTC’s award of loss of earning capacity and attorney fees, holding that they lack factual and legal basis. It, however, increased the award of actual damages from 92,000.00 to 92,715.68 reasoning that latter amount was duly receipted. The CA denied the appellant’s motion for reconsideration. 41

Before this Court, petitioner assigns the following errors allegedly committed by the CA –

I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY AROSE FROM MISAPPREHENSION OF FACTS THAT PROVE THAT THE PROCEEDINGS AND THE FINDINGS MADE IN THE DECISION OF THE TRIAL COURT AS WELL AS IN THE ASSAILED DECISION ITSELF, WERE BASED ON A FALSE CHARGE WHICH IS PATENTLY FABRICATED BY A POLICE INVESTIGATOR AND WHICH COMPRISES MALICIOUS PROSECUTION.

II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY ARE BASED

ON THE FABRICATED STATEMENT AS WELL AS ON THE SOLE, SELF-SERVING, CONTRADICTORY AND UNCORROBORATED TESTIMONY OF THE COMPLAINANT, WHICH ARE MANIFESTLY CONCOCTED AND CANNOT ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE

DOUBT.

CONCOCTED AND CANNOT ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE

DOUBT.

III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T] ASIDE, AS THERE IS TOTAL

ABSENCE OF EVIDENCE TO PROVE THE VACUOS CHARGE AS WELL AS THE SAID DECISION AND RESOLUTION, FOR WHICH REASON THE GUILT OF THE ACCUSED WAS NOT DULY PROVED BEYOND REASONABLE DOUBT[.]

IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE SAME WERE

RENDERED IN ALL GRAVE ABUSE OF DISCRETION AND IN TOTAL DISREGARD OF THE COMPETENT AND UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH NEGATE ANY REASONABLE DOUBT ON THE GUILT OF THE ACCUSED.

V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE INFERENCES MADE ON THE UNDISPUTED FACTS ARE CONTRARY TO LAW AND JURISPRUDENCE AND CANNOT JUSTIFY ANY FINDING OF ANY PROOF BEYOND REASONABLE DOUBT. 42

Petitioner insists that the criminal complaint filed by SPO1 Sulatre was a fabrication because the latter never conducted a formal investigation of the stabbing incident or of any witness to the incident. The police officer filed the criminal complaint against petitioner on the basis of a sworn statement by Dean which was taken only on March 10, 1999, long after the criminal complaint was filed in the MCTC. Worse, when he testified on cross-examination, Dean admitted that he did not see the questions prepared by SPO1 Sulatre at the hospital, nor his answers to the policeman’s questions. The affidavit dated March 10, 1999 was not typewritten in the hospital, and he was not present when the affidavit was typewritten in the police station. Thus, the testimony of the victim was self-serving and uncorroborated, tailored solely to support the charge filed by SPO1 Sulatre.

In its comment on the petition, respondent, through the Office of the Solicitor General (OSG), avers that

the issues raised by petitioner are factual, hence, inappropriate in a petition for review on certiorari in this

Court.

The OSG maintains that the Revised Rules of Criminal Procedure does not require that the affidavit of the offended party or the witnesses to the crime charged be appended to the criminal complaint filed in court. Moreover, the issue of the validity of the criminal complaint in the MCTC had became moot and academic after the Information was filed in the trial court, and when petitioner was arraigned, assisted by counsel, and entered a plea of not guilty.

It insists that Dean’s testimony, by itself, is sufficient to warrant the conviction of petitioner for frustrated homicide. Petitioner’s conviction may be anchored on Dean’s testimony since the trial court found it credible and entitled to full probative weight. Petitioner failed to prove his plea of self-defense by clear and convincing evidence.

The Court’s Decision

The petition is denied for lack of merit.

Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure 43 provide:

Sec. 3. Procedure. – The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of

the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he

finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

It bears stressing that the officer conducting the preliminary investigation has to determine whether to dismiss the complaint outright based on the averments of the complaint and the appendages thereof if it finds no ground to continue with the investigation. If he finds ground to continue with the investigation of the accused, a subpoena should be issued to the accused, appending thereto a copy of the complaint and the su ortin affidavits Unless the affidavits of the witnesses named in the com laint and

finds no ground to continue with the investigation. If he finds ground to continue with the investigation of the accused, a subpoena should be issued to the accused, appending thereto a copy of the complaint and the supporting affidavits. Unless the affidavits of the witnesses named in the complaint and supporting documents are appended to the complaint, the investigating officer may not be able to determine whether to dismiss the complaint outright or to conduct an investigation and issue a subpoena to the accused. 44

We agree with petitioner that the criminal complaint filed by SPO1 Sulatre with the MCTC on March 10, 1999 was defective. As gleaned from the RTC records, the criminal complaint was not accompanied by any medical certificate showing the nature and number of wounds sustained by the victim, the affidavits of any of the witnesses listed at the bottom of the criminal complaint (particularly the victim himself), and the arrest report of SPO1 Sulatre, Brgy. Capt. Rodolfo Oller, and his son Nicky.

The MCTC had the option not to act one way or the other on the criminal complaint of SPO1 Sulatre because the latter failed to comply with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure; or to order SPO1 Sulatre to comply with the aforequoted rule; or to dismiss the complaint without prejudice to its refiling with the requisite documents. However, the MCTC opted not to act on the complaint until after SPO1 Sulatre shall have submitted the requisite affidavits/medical certificate/arrest report. When SPO1 Sulatre filed with the MCTC, on March 10, 1999, the permanent medical certificate issued by the IRH, the affidavit of Dean and his and Brgy. Capt. Oller’s affidavit of arrest of petitioner, the MCTC forthwith issued a subpoena to petitioner appending thereto the said medical certificate, affidavit of Dean and the affidavit of arrest of SPO1 Sulatre. 45 Hence, SPO1 Sulatre had complied with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure.

Moreover, petitioner submitted his counter-affidavit without any protest. Neither did he assail the validity of the criminal complaint or the tardy submission by SPO1 Sulatre of the medical certificate, the affidavit of Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this, petitioner was arraigned in the RTC, assisted by counsel, and entered a plea of not guilty.

On the second issue, the rulings of the trial court and the appellate court are correct. Whether or not petitioner acted in self-defense whether complete or incomplete is a question of fact, 46 the well- entrenched rule is that findings of fact of the trial court in the ascertainment of the credibility of witnesses and the probative weight of the evidence on record affirmed, on appeal, by the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any justifiable reason to deviate from the said findings. 47

In this case, the trial court gave no credence and probative weight to the evidence of petitioner to prove that he acted in self-defense, complete or incomplete. Petitioner failed to establish that the trial court and the appellate court misconstrued, misappropriated or ignored facts and circumstances of substance which, if considered, would warrant a modification or reversal of the decision of the CA that petitioner failed to establish clear and convincing evidence that he acted in self-defense, complete or incomplete.

Like alibi, petitioner’s claim of self-defense is weak; it is also settled that self-defense is easy to fabricate and difficult to disprove. Such a plea is both a confession and avoidance. 48 One who invokes self- defense, complete or incomplete, thereby admits having killed the victim by inflicting injuries on him. The burden of evidence is shifted on the accused to prove the confluence of the essential elements for the defense as provided in Article 11, paragraph 1 of the Revised Penal Code:

x x (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. x x x 49

x

The accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution because even if the evidence of the prosecution is weak, the same can no longer be disbelieved. 50 The accused cannot escape conviction if he fails to prove the essential elements of complete self-defense.

In Garcia v. People, 51 the Court defined unlawful aggression:

x x x Unlawful aggression presupposes an actual, sudden and unexpected or imminent danger on the life

and limb of a person – a mere threatening or intimidating attitude is not sufficient. There must be actual physical force or a threat to inflict physical injury. In case of a threat, it must be offensive and positively strong so as to display a real, not imagined, intent to cause injury. Aggression, if not continuous, does not

constitute, aggression warranting self-defense. 52

Aggression, if not continuous, does not constitute aggression warranting self-defense. 53 When unlawful aggression ceases, the defender no longer has any justification to kill or wound the original aggressor.

Aggression, if not continuous, does not constitute aggression warranting self-defense. 53 When unlawful aggression ceases, the defender no longer has any justification to kill or wound the original aggressor. The assailant is no longer acting in self-defense but in retaliation against the original aggressor. 54

There can be no self-defense, complete or incomplete, unless the accused proves unlawful aggression on the part of the victim. 55 Unlawful aggression is a sudden and unexpected attack or an imminent danger thereof, and not merely a threatening or an intimidating attitude. 56

Petitioner failed to discharge his burden.

First. Petitioner failed to surrender himself to the responding authorities who arrived at the situs criminis, as well as the bolo he used in stabbing the victim. One who acted in self-defense is expected to surrender, not only himself, but also the weapon he used to kill or inflict physical injuries on the victim. 57

Second. The victim sustained three stab wounds on different parts of his body. Two were fatal stab wounds at his left chest. The presence of a large number of wounds on the part of the victim, their nature and location disprove self-defense and instead indicate a determined effort to kill the victim. 58

Third. Petitioner testified that he was punched by the victim. However, there is not a scintilla of evidence to show that petitioner suffered even a scratch as a result of the alleged fist blows.

Neither can the RTC nor the CA be faulted for giving credence to the testimony of SPO1 Salutre. No evidence was adduced by the defense to show that he harbored any ill-motive against petitioner to charge him with such a crime. Absent any proof of improper motive, the prosecution witness who is law enforcer is presumed to have regularly performed his duty in arresting and charging petitioner. 59 His testimony is thus entitled to full faith and credit. Moreover, the conviction of petitioner was not based solely on the testimony of the SPO1 Salutre. The unimpeached testimony of Dean categorically established the crime; this was corroborated by the testimony of Dr. Nathaniel Rimando.

Petitioner’s argument that he should be acquitted because the criminal complaint against him was not supported by the victim’s sworn statement or by an affidavit of any witness is totally untenable. This issue should have been raised during the preliminary investigation. It is much too late in the day to complain about this issue after a judgment of conviction has been rendered against him.

Contrary to petitioner’s stance, the testimonies of his corroborating witnesses are unimpressive. For one, Godofredo’s testimony was limited only to the alleged fact that happened outside of the cooperative building. He himself admitted that when the protagonists started fighting each other, for fear for his life, he hurriedly flagged and boarded a tricycle which revved up to the highway; it was from there that he saw petitioner slumped on his tricycle. In other words, he did not witness what transpired thereafter or how the fight ended.

Joselito’s testimony did not fare any better. It was given neither credence nor weight by the trial court. And even if it had been proved that the victim was rabid against petitioner, such evidence would only have established a probability that he had indeed started an unlawful assault on petitioner. This probability cannot, however, overcome the victim’s positive statement that petitioner waylaid and assaulted him without any provocation. The theory that Dean may have started the fight since he had a score to settle against petitioner is flimsy, at best. Furthermore, Joselito admitted that he was petitioner’s best friend; hence, his bias cannot be discounted.

The Crime Committed by the Petitioner

Petitioner next argues that should he be convicted of any crime, it should be of less serious physical injuries only, absence the element of intent to kill. He advances the argument that the single wound suffered by the victim was not life threatening and that the latter was transferred to undergo operation in another hospital only because the medical staff where he was first rushed bungled their job. He makes much of the fact that Dr. Darius R. Pariñas who issued the Medical Certificate never testified for the prosecution.

Again, the Court is not swayed.1a\^/phi1.net

If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of the following: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the

om c

e or

rus ra e

mur

er or a

emp e

mur er

e o

en

er

n en

s

o

e v c

m.

n en

o

may be proved by evidence of the following: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on

the victim. 60

Petitioner insists that he had no intent to kill Dean. However, the physical evidence belies petitioner’s pose.

To begin with, as between petitioner and the victim, the former had more hatred to harbor arising from the

fact that the victim filed a lawsuit against him and his wife. Petitioner thus had more motive to do harm than the victim. By his own account, he and Dean had a history of personal animosity.

Secondly, petitioner was armed with a deadly 14 ½-inch bolo.

Thirdly, if it were true that petitioner stabbed Dean merely to defend himself, it defies reason why he had

to stab the victim three times. Petitioner’s claim that Dean suffered only a single non-life threatening

wound is misleading. Dr. Rimando, who attended to and operated on Dean, testified that the victim sustained three (3) stab wounds, two (2) of which penetrated his heart and lung, causing massive blood clotting necessitating operation; the other lacerated Dean’s his right elbow. The presence of these wounds, their location and their seriousness would not only negate self-defense; they likewise indicate a determined effort to kill. 61 Moreover, physical evidence is evidence of the highest order. It speaks more

eloquently than a hundred witnesses. 62

Neither does the non-presentation of Dr. Darius R. Pariñas, the doctor who signed the medical certificate, would dent a bit the evidence for the prosecution. This is so because Dr. Pariñas, who assisted Dr. Rimaldo during the operation of Dean, would merely corroborate Dr. Rimaldo’s testimony. As such, his testimony is not indispensable.

Fourthly, from the manner the crime was committed, there can hardly be any doubt that intent to kill was present. It has been clearly established that petitioner ambushed Dean and struck him with a bolo. Dean was defenseless and unarmed, while petitioner was deadly armed.1ªvvphi1.nét

Lastly, the words of the petitioner while he was assaulting Dean were most revealing:

Atty. Atitiw:

Q : When you were in the counter, what was accused Benjamin doing?

A : When I was inside the counter and he’s outside and between us is a glass and there he shouting at

me telling in Ilocano that AGPARENTONG KA TATTA TA TALAGA NGA PATAYEN KA TATTA NGA

ALDAWEN "You kneel down because I will really kill you now." 63

x x x x

Atty. Atitiw:

Q : While passing through the loading area of the tricycle, do you remember anything that transpired

there at the loading area?

A

: Yes, Sir.

Q

: What is that, Mr. Witness?

A

: While Benjamin Martinez, Barangay Captain Oller and I were walking proceeding to our Police Station

and when we were near the area, at the loading area if the tricycle, Benjamin Martinez shouted and I quote: "SINAKSAK KON PARE, SANGSANGAILI LAENG ISUNA SAAN NGA ISUNA TI AGARI DITOY

TUBAO," that was the utterance, Sir. 64

x x x x

Q

: After bringing him to the Police Station, what did you do next?

 

A

: We put him in jail, Sir.

 

Q

A

d

hil

i

il d

b

h

th

d B

i

M

ti

did

thi

hil

i

il?

A

: We put him in jail, Sir.

Q

: And while in jail do you remember whether accused Benjamin Martinez did anything while in jail?

A

: Yes, Sir.

Q

: What is that, Mr. Witness?

A

: He kept on shouting words, Sir.

Q

: What are those words if you can remember?

A

: He kept on shouting "NAPATAY KON, NAPATAY KON," Sir. 65

Anent the allegation of negligence on the part of the medical staff of Doña Gregoria Memorial Hospital where Dean was rushed, suffice it to say that this is a new theory being foisted by petitioner. It was never raised in the two courts below and thus it will not be entertained here. At any rate, this allegation finds no support in the records of the case.

It cannot be denied that petitioner had the intention to kill Dean. Petitioner performed all the acts of

execution but the crime was not consummated because of the timely medical intervention applied on the victim.

An appeal in a criminal case opens the entire case for review on any question including one not raised by the parties. 66 In this regard, we find ample evidence to establish treachery. The CA’s advertence to the stipulation of facts contained in the Pre-Trial Order dated December 20, 2000 67 is misplaced. This alleged stipulation was stricken off the record on motion of the prosecution on the ground that no stipulation of such fact was made. 68

There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might take. 69

In the present case, the prosecution had met the requisites for alevosia to be appreciated: (1) at the time

of the attack the victim was not in a position to defend himself; and (2) that the offender consciously adopted the particular means, method, or form of the attack employed by him. 70 Dean lived to tell about the swiftness of the attempt against his life:

Q

: After getting the dividend certificate where did you proceed next?

A

: I went out from the bank, sir. I was able to go to school.

Q

: Where you able to go to the school?

A

: No, Sir.

Q

: Why were you not able to reach the school?

A

: Because I was suddenly stabbed by Benjamin Martinez.

Q

: Where did Benjamin Martinez stab you?

A

: In front of the bank, Sir.

Q

: And how did Benjamin Martinez stab you?

A

: I was about to go to my car, Sir. I was reading the dividend certificate that I got from the bank but when

I was about one step away from the back of the L300 van that was parked in front of the bank, I was

suddenly stabbed by him.

Q : Where was Benjamin Martinez at that time when he was stabbed you?

A : Probably he was hiding at the back of the L300 van, Sir. 71

A : Probably he was hiding at the back of the L300 van, Sir. 71

When Dean was attacked he was unarmed. He had just exited the cooperative building and had no inkling that he would be waylaid as he made his way towards his car. Upon the other hand, petitioner was armed with a deadly 14 ½-inch bolo. The attacked on Dean was swift and unannounced; undeniably, petitioner’s attack was treacherous.

Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code which reads:

A felony is consummated when all the elements necessary for its execution and accomplishment are

present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

The essential elements of a frustrated felony are as follows:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;

3. But the felony is not produced;

4. By reason of causes independent of the will of the perpetrat