G.R. No. 122099.
July 5, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO
LISTERIO y PRADO and SAMSON DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
D E C I S I O N
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and
Marlon Araque, Agapito Listerio y Prado, Samson dela Torre y Esquela, Marlon
dela Torre, George dela Torre, Bonifacio Bancaya and several others who are
still at large were charged in two (2) separate Amended Informations with
Murder and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information[1] for
Murder alleges –
That on or about the 11th day of August 1991 in the
Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding one another, all armed with bladed
weapons and GI lead pipes, with intent to kill, treachery and evident
premeditation with abuse of superior strength did then and there willfully,
unlawfully and feloniously attack, assault and stab one Jeonito Araque y Daniel
at the back of his body, thereby inflicting upon the latter mortal wounds which
directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information[2] for
Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the
Municipality of Muntinlupa, Metro Manila, Philippines and within the
jurisdiction this Honorable Court, the above-named accused, conspiring,
confederating together, mutually helping
and aiding one another, with intent to kill did then and there willfully,
unlawfully and feloniously stab and hit with a lead pipe and bladed weapon one
Marlon Araque y Daniel on the vital portions of his body, thereby inflicting
serious and mortal wounds which would have cause[d] the death of the said
victim thus performing all the acts of execution which should have produce[d]
the crime of Homicide as a consequence but nevertheless did not produce it by
reason of causes independent of their will, that is by timely and able medical
attendance rendered to said Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson
dela Torre y Esquela pleaded not guilty to the crimes charged. Their other co-accused have remained at
large.
Trial thereafter ensued after which the court a quo rendered
judgment only against accused Agapito Listerio because his co-accused Samson
dela Torre escaped during the presentation of the prosecution’s evidence and he
was not tried in absentia. The
dispositive portion of the decision[3] reads:
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond
reasonable doubt, he is sentenced:
1. For the death of
Jeonito Araque y Daniel in Criminal Case NO. 91-5842, RECLUSION PERPETUA;
2. For the attempt to
kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is sentenced to
six (6) months and one (1) day as minimum, to four (4) years as maximum;
3. As civil
indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the
sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the
damages sustained by Marlon Araque y Daniel, he is required to pay Marlon
Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED.[4]
Dissatisfied, accused Agapito Listerio interposed this
appeal alleging that –
I
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF
THE ACCUSED BEYOND REASONABLE DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND
ATTEMPTED HOMICIDE DESPITE ABSENCE OF PROOF OF CONSPIRACY AND AGGRAVATING
CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that
fateful day of August 14, 1991 culled from the eyewitness account of Marlon
Araque discloses that at around 5:00 p.m. of August 14, 1991, he and his brother Jeonito were in Purok 4, Alabang,
Muntinlupa to collect a sum of money from a certain Tino.[5] Having failed to
collect anything from Tino, Marlon and Jeonito then turned back.[6] On their
way back while they were passing Tramo near Tino’s place,[7] a group composed of Agapito Listerio,
Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio
Bancaya[8] blocked their path[9] and attacked them with lead pipes and bladed
weapons.[10]
Agapito
Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons,
stabbed Jeonito Araque from behind.[11] Jeonito sustained three (3) stab wounds
on the upper right portion of his back, another on the lower right portion and
the third on the middle portion of the left side of his back[12] causing him to
fall down.[13] Marlon Araque was hit on the head by Samson dela Torre and
Bonifacio Bancaya with lead pipes and momentarily lost consciousness.[14] When
he regained his senses three (3) minutes later, he saw that Jeonito was already
dead.[15] Their assailants then fled after the incident.[16] Marlon Araque who
sustained injuries in the arm and back,[17] was thereafter brought to a
hospital for treatment.[18]
Marlon Araque was examined by Dr. Salvador Manimtim, head of
the Medico Legal Division of the UP-PGH, [19] who thereafter issued a Medical
Certificate[20] indicating that Marlon Araque sustained two (2) lacerated wounds, one measuring
5 centimeters in length located in the center (mid-parietal area) of the
ear.[21] The second lacerated wound measuring 2 centimeters in length is
located at the mid-frontal area commonly known as the forehead.[22] A third
lacerated wound measuring 1.5 centimeters long is located at the forearm[23]
and a fourth which is a stab wound measuring 3 centimeters is located at the
right shoulder at the collar.[24] Elaborating on the nature of Marlon Araque’s
injuries, Dr. Manimtim explained in detail during cross-examination that the two (2) wounds on the forearm
and the shoulder were caused by a sharp object like a knife while the rest were
caused by a blunt instrument such as a lead pipe.[25]
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an
autopsy on the cadaver of Jeonito
Araque[26] and prepared an Autopsy Report[27] of his findings. The report which contains a detailed description
of the injuries inflicted on the victim shows that the deceased sustained three
(3) stab wounds all of
them inflicted from behind by a sharp, pointed and single-bladed instrument
like a kitchen knife, balisong or any similar instrument.[28] The first stab wound, measuring
1.7 centimeters with an approximate depth of 11.0 centimeters, perforated the
lower lobe of the left lung and the thoracic aorta.[29] Considering the
involvement of a vital organ and a major blood vessel, the wound was considered
fatal.[30] The second wound, measuring 2.4 centimeters, affected the
skin and underlying soft tissues and did not penetrate the body cavity.[31] The
third wound measuring 2.7 centimeters was like the second and involved only the
soft tissues.[32] Unlike
the first, the second and third wounds were non-fatal.[33] Dr. Munoz
averred that of the three,
the first and second wounds were inflicted by knife thrusts delivered starting
below going upward by assailants who were standing behind the victim.[34]
On the other hand, accused-appellant’s version of the incident is
summed thus in his brief:
1. Accused-appellant is 39 years
old, married, side walk vendor and a resident of Purok 4, Bayanan, Muntinlupa,
Metro Manila. He earns a living by
selling vegetables.[35]
2. At around 1:00 o’clock in the
afternoon of August 14, 1991, Accused-Appellant was in the store of Nimfa
Agustin having a little fun with Edgar Demolador and Andres Gininao drinking
beer. At around 2:00 o’clock Accused-appellant
went to his house and slept.[36]
3. While asleep, at about 5
o’clock, Edgar Remolador and Andres Gininao woke him up and told him there was
a quarrel near the railroad track.[37]
4. At around 6:00 o’clock two (2)
policemen passed by going to the house of Samson de la Torre while
Accused-appellant was chatting with Edgar Remolador and Andres Gininao. These two (2) policemen together with
co-accused Samson de la Torre came back and invited Accused-appellant for
questioning at the Muntinlupa Police Headquarters together with Edgar Demolador
and Andres Gininao. Subsequently, Edgar
Demolador and Andres Gininao were sent home.[38]
5. At the Police Station,
Accused-Appellant was handed a Sinumpaang Salaysay executed by Marlon Araque,
implicating him for the death of Jeonito Araque and the frustrated murder of
Marlon Araque. Accused-Appellant
confronted Marlon Araque as to why he was being included in the case. Marlon Araque answered “because you eject[ed]
us from your house.”[39]
Professing his innocence, accused-appellant claims that
Marlon Araque’s uncorroborated testimony failed to clearly and positively
identify him as the malefactor responsible for his brother’s death. In fine, he insists that Marlon’s testimony
is insufficient to convict him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not
numbered, such that the testimony of a single, trustworthy and credible witness
could be sufficient to convict an accused.[40] More explicitly, the well
entrenched rule is that “the testimony of a lone eyewitness, if found positive
and credible by the trial court is sufficient to support a conviction
especially when the testimony bears the earmarks of truth and sincerity and had
been delivered spontaneously, naturally and in a straightforward manner. It has been held that witnesses are to be
weighed not numbered; hence, it is not at all uncommon to reach a conclusion of
guilt on the basis of the testimony of a single witness.”[41]
The trial court found Marlon Araque’s version of what
transpired candid and straightforward.
We defer to the lower court’s findings on this point consistent with the
oft-repeated pronouncement that: “the trial judge is the best and the most
competent person who can weigh and evaluate the testimony of witnesses. His firsthand look at the declarant’s
demeanor, conduct and attitude at the trial places him in a peculiar position
to discriminate between the true and the false.
Consequently appellate courts will not disturb the trial court’s
findings save only in cases where arbitrariness has set in and disregard for
the facts important to the case have been overlooked.”[42]
The account of Marlon Araque as to how they were assaulted
by the group of accused-appellant was given in a categorical, convincing and
straightforward manner:
Q Mr. Witness, do
you know a certain Jeonito Araque y Daniel?
A Yes, sir.
Q And why do you
know him?
A He is my
brother.
Q Where is Jeonito
Araque now?
A He is already
dead.
Q When did he die?
A Last August 14.
Q Do you know of
your own knowledge how he died?
A Yes, sir.
Q Will you please
inform the Honorable Court what is your own knowledge?
A He was stabbed,
sir.
Q Do you know the
person or persons who stabbed him?
A Yes, sir.
Q Will you please
inform the Honorable Court who are these person or persons, if you know?
A Its (sic)
Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and
Bonifacio.
Q Now if these
persons [are] inside the courtroom, could you identify them?
A They (sic) are
only two persons but the three persons is (sic) not around.
Q Could you please
point to this Honorable Court who are these two persons in side the courtroom?
A Yes, sir
(Witness pointing to a persons [sic] and when asked [identified themselves as]
Agapito Listerio and Samson dela Torre.)
Q Now, at around
5:00 o’clock in the afternoon of August 14, 1991, do you recall where were you?
A Yes, sir.
Q Will you please
inform the Honorable Court where were you at that time?
A I’m in Alabang
at Purok 4 and I’m collecting.
Q Do you have any
companion at that time?
A Yes, sir.
Q What are you
doing at that time in [that] particular date?
A I’m collecting
from a certain Tino.
Q Were you able to
collect?
A No, sir.
Q If you said that
there were no collections, what did you do?
A We went back.
Q When you went
back, did you have any companion?
A Yes, sir.
Q Who was your
companion?
A My brother.
Q While you were
going back, was there any untoward incidents that happened?
A Yes sir
“Hinarang po kami.”
Q Now, what
particular place [where] you were waylaid, if you recall?
A In Tramo, near
Tino’s place.
Q And who were the
persons that were waylaid (sic)?
A Agapito
Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please
inform the Honorable Court how will (sic) you waylaid by these persons?
A We were walking
then suddenly they stabbed us with knife (sic) and ran afterwards.
Q Who were the
persons that waylaid you?
A Agapito
Listerio, George and Marlon.
Q How about your
brother, what happened to him?
A He fall (sic)
down.
Q And after he fall
(sic) down, do you know what happened?
A I was hit by a
lead pipe that’s why I painted (sic).
Q Do you know the
reason why your brother fall (sic) down?
A I cannot recall,
sir. Because I already painted (sic).
Q Do you know the
reason why your brother fall (sic) before you painted (sic)?
A Yes, sir.
Q Will you please
inform the Honorable Court why your brother fall (sic) down?
xxx xxx xxx
A Yes, sir,
because he was stabbed.
Q What particular
place of his body was [he] stabbed if you know?
A At the back of
his body.
Q Do you know the
person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please
inform the Honorable Court who was that persons was stabbed him?
A Agapito, Marlon
and George.
COURT
How many
stabbed [him], if you know?
A Three (3), sir.
COURT
In what
particular part of his body was stabbed wound (sic)?
A Witness pointing
to his back upper right portion of the back, another on the lower right portion
and another on the middle portion of the left side at the back.
COURT
Proceed.
Q Will you please
inform the Honorable Court why you are (sic) lost consciousness?
A I was hit by [a]
lead pipe by Samson and Bonifacio.
Q And when did you
regain consciousness?
A After three
minutes.
Q And when you
gain[ed] consciousness, what happened to your brother?
A He was already
dead.
Q How about you,
what did you do?
A I go (sic) to
the Hospital.
Q How about the
accused, the persons who way laid, what happened to them?
A From what I
know, they ran away.[43]
Persistent efforts by defense counsel to establish that the
attack was provoked, by eliciting from Marlon Araque an admission that he and
the deceased had a drinking spree with their attackers prior to the incident,
proved futile as Marlon steadfastly maintained on cross examination that he and
his brother never drank liquor on that fateful day:
Q After your work,
was there an occasion when you drink something with your borther (sic)?
A No, sir.
Q And you stand to
your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there
no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00
p.m. on August 14, 1991?
A No, sir.
Q And did you not
have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela
Torre?
A No, sir.
Q Bonifacio?
A With your
borther (sic)?
Q So you want to
tell this Honorable Court that there was no point in time on August 14, 1991 at
4:00 p.m. that you did not take a sip of wine?
A No, sir.
Q Neither your
brother?
Atty. Agoot
Objection, Your
Honor, the question is vague.
COURT
Ask another
question.
Q Mr. Witness, will
you please tell the Honorable Court where this George dela Torre, Marlon dela
Torre and a certain Bonifacio were?
Atty. Agoot
Witness is
incompetent.
Q Mr. Witness, you
testified that it was your brother the deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be
all for the witness, your Honor.[44]
That Marlon was able to recognize the assailants can hardly
be doubted because relatives of the victim have a natural knack for remembering
the faces of the attackers and they, more than anybody else, would be concerned
with obtaining justice for the victim by the felons being brought to the face
of the law.[45] Indeed, family members who have witnessed the killing of a
loved one usually strive to remember the faces of the assailants.[46] Marlon’s
credibility cannot be doubted in this case because as a victim himself and an
eyewitness to the incident, it can be clearly gleaned from the foregoing
excerpts of his testimony that he remembered with a high degree of reliability
the identity of the malefactors.[47]
Likewise, there is no showing that he was motivated by any
ill-feeling or bad blood to falsely testify against accused-appellant. Being a victim himself, he is expected to
seek justice. It is settled that if the
accused had nothing to do with the crime, it would be against the natural order
of events to falsely impute charges of wrongdoing upon him.[48]
Accused-appellant likewise insists on the absence of conspiracy and treachery
in the attack on the victims.
We remain unconvinced.
It must
be remembered that direct proof of conspiracy is rarely found for criminals do
not write down their lawless plans and plots.[49] Conspiracy may be inferred from
the acts of the accused before, during and after the commission of the crime
which indubitably point to and are indicative of a joint purpose, concert of
action and community of interest.[50] Indeed –
A
conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.
To establish the existence of a conspiracy, direct proof is not
essential since it may be shown by facts and circumstances from which may be
logically inferred the existence of a common design among the accused to commit
the offense charged, or it may be deduced from the mode and manner in which the
offense was perpetrated.[51]
More explicitly –
… conspiracy
need not be established by direct evidence of acts charged, but may and
generally must be proved by a number of indefinite acts, conditions and
circumstances, which vary according to the purpose accomplished. Previous agreement to commit a crime is not
essential to establish a conspiracy, it being sufficient that the condition
attending to its commission and the acts executed may be indicative of a common
design to accomplish a criminal purpose and objective. If there is a chain of circumstances to that
effect, conspiracy can be established.[52]
Thus, the rule is that conspiracy must be shown to exist by
direct or circumstantial evidence, as
clearly and convincingly as the crime itself.[53] In the absence of direct
proof thereof, as in the present case, it may be deduced from the mode, method,
and manner by which the offense was perpetrated, or inferred from the acts of
the accused themselves when such acts point to a joint purpose and design,
concerted action and community of interest.[54] Hence, it is necessary that a conspirator should have
performed some overt acts as a direct or indirect contribution in the execution of the crime planned
to be committed. The overt act may
consist of active participation in the actual commission of the crime itself,
or it may consist of moral assistance to his con-conspirators by being present
at the commission of the crime or by exerting moral ascendancy over the other
co-conspirators.[55]
Conspiracy
transcends mere companionship, it denotes an intentional participation in the
transaction with a view to the furtherance of the common design and
purpose.[56] “Conspiracy to exist does not require an agreement for an
appreciable period prior to the occurrence.[57] From the legal standpoint, conspiracy exists if,
at the time of the commission of the offense, the accused had the same purpose
and were united in its execution.”[58] In this case, the presence of
accused-appellant and his colleagues, all of them armed with deadly weapons at
the locus criminis, indubitably shows their criminal design to kill the
victims.
Nowhere is it more evident than in this case where
accused-appellant and his cohorts blocked the path of the victims and as a
group attacked them with lead pipes and bladed weapons. Accused-appellant and his companions acted in
concert during the assault on the victims.
Each member of the group performed specific and coordinated acts as to indicate
beyond doubt a common criminal design or purpose.[59] Thus, even assuming arguendo that the
prosecution eyewitness may have been unclear as to who delivered the fatal blow
on the victim, accused-appellant as a conspirator is equally liable for the crime
as it is unnecessary to determine who inflicted the fatal wound because in
conspiracy, the act of one is the act of all.[60]
As to the qualifying circumstances here present, the
treacherous manner in which accused-appellant and his group perpetrated the
crime is shown not only by the sudden and unexpected attack upon the
unsuspecting and apparently unarmed victims but also by the deliberate manner
in which the assault was perpetrated. In
this case, the accused-appellant and his companions, all of them armed with bladed weapons and lead
pipes, blocked (hinarang) the path of the victims effectively cutting off their
escape.[61] In the ensuing attack, the deceased was stabbed three (3)
times from behind by a sharp, pointed and single-bladed instrument like a
kitchen knife, balisong or similar instrument[62] while Marlon Araque sustained
lacerated wounds in the head caused by blows inflicted by lead pipes as well as
stab wounds on the shoulder and forearm which were caused by a sharp object
like a knife.[63]
It must be noted in this regard that the manner in which the
stab wounds were inflicted on the deceased were clearly meant to kill without
posing any danger to the malefactors considering their locations and the fact
that they were caused by knife thrusts starting below going upward by
assailants who were standing behind the victim.[64] Treachery is present when the offender commits any
of the crimes against persons 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
make.[65] That circumstance qualifies the crime into murder.
The
commission of the crime was also attended by abuse of superior strength on account
of the fact that accused-appellant and his companions were not only numerically
superior to the victims but also because all of them, armed with bladed weapons
and lead pipes, purposely used force out of proportion to the means of defense
available to the persons attacked.
However, this aggravating circumstance is already absorbed in treachery.[66]
Furthermore, although alleged in the information, evident premeditation was not
proved by the prosecution. In the light of the finding of
conspiracy, evident premeditation need not be further appreciated, absent
concrete proof as to how and when the plan to kill was hatched or what time had
elapsed before it was carried out.[67]
In stark contrast to the evidence pointing to him as one of
the assailants of the victims, accused-appellant proffers the defense of
alibi. At the risk of sounding trite, it
must be remembered that alibi is generally considered with suspicion and always
received with caution because it can be easily fabricated.[68] For alibi to
serve as a basis for acquittal, the accused must establish that: a.] he was present at another place at the
time of the perpetration of the offense; and b.] it would thus be physically
impossible for him to have been at the scene of the crime.[69]
Suffice it to state that accused-appellant failed to
discharge this burden. The positive
identification of the accused as one of the perpetrators of the crime by the
prosecution eyewitness, absent any showing of ill-motive, must prevail over the
weak and obviously fabricated alibi of accused-appellant.[70] Furthermore, as
aptly pointed out by the trial court “[t]he place where the accused was at the
time of the killing is only 100 meters away.
The distance of his house to the place of the incident makes him physically
possible to be a participant in the killing [of Jeonito] and [the] wounding of
Marlon.”[71]
All told, an overall scrutiny of the records of this case
leads us to no other conclusion than that accused-appellant is guilty as
charged for Murder in Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was
indicted for Frustrated Homicide, the trial court convicted accused-appellant
of Attempted Homicide only
on the basis of Dr. Manimtim’s testimony that none of the wounds sustained by
Marlon Araque were fatal.
The reasoning of the lower court on this point is flawed because it is not the gravity
of the wounds inflicted which determines whether a felony is attempted or
frustrated but whether or not the subjective phase in the commission of an
offense has been passed. By subjective phase is meant
“[t]hat 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 point 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.”[72]
It must be remembered that a felony is frustrated when: 1.] the offender has performed
all the acts of execution which would produce the felony; 2.] the felony is not
produced due to causes independent of the perpetrator’s will.[73] On the other
hand, in an attempted felony: 1.] the offender commits overt acts to commence
the perpetration of the crime; 2.] he is not able to perform all the acts of
execution which should produce the felony; and 3.] his failure to perform all
the acts of execution was due to some cause or accident other than his
spontaneous desistance.[74] The distinction between an attempted and
frustrated felony was lucidly differentiated thus in the leading case of U.S.
v. Eduave:[75]
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 the acts which should
result in the consummation of the crime and voluntarily desists from proceeding
further, it cannot 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 crime and the moment when all
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 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.
In relation to the foregoing, it bears stressing that intent to kill determines whether
the infliction of injuries should be punished as attempted or frustrated
murder, homicide, parricide or consummated physical injuries.[76] Homicidal
intent must be evidenced by acts which at the time of their execution are
unmistakably calculated to produce the death of the victim by adequate
means.[77] Suffice it to state that the intent to kill of the malefactors
herein who were armed with bladed weapons and lead pipes can hardly be doubted
given the prevailing facts of the case.
It also can not be denied that the crime is a frustrated felony not an
attempted offense considering that after being stabbed and clubbed twice in the
head as a result of which he lost consciousness and fell, Marlon’s attackers
apparently thought he was already dead and fled.
An appeal in a criminal case throws the whole case wide open
for review[78] and the reviewing tribunal can correct errors, though unassigned
in the appealed judgement[79] or even reverse the trial court’s decision on the
basis of grounds other than those that the parties raised as errors.[80] With
the foregoing in mind, we now address the question of the proper penalties to
be imposed.
With regard to the frustrated felony, Article 250 of the
Revised Penal Code provides that –
ART. 250. Penalty for frustrated parricide, murder, or
homicide. – The courts, in view of the facts of the case, may impose upon the
person guilty of the frustrated crime of parricide, murder or homicide, defined
and penalized in the preceding articles, a penalty lower by one degree than
that which should be imposed under the provisions of article 50.[81]
The courts, considering the facts of the case, may likewise
reduce by one degree the penalty which under article 51 should be imposed for
an attempt to commit any of such crimes.
The penalty for Homicide is reclusion temporal[82] thus, the
penalty one degree lower would be prision mayor.[83] With the presence of the
aggravating circumstance of abuse of superior strength and no mitigating
circumstances, the penalty is to be imposed in its maximum period.[84] Prision
mayor in its maximum period ranges from ten (10) years and one (1) day to
twelve (12) years. Applying further the
Indeterminate Sentence Law,[85] the minimum of the imposable penalty shall be
within the range of the penalty next lower in degree, i.e. prision correccional
in its maximum period which has a range of six (6) months and one (1) day to
six (6) years.
What now remains to be determined is the propriety of the
awards made by the trial court with regard to the civil aspect of the case for
the death of Jeonito Araque and the injuries sustained by Marlon Araque.
Anent actual or compensatory damages, it bears
stressing that only substantiated and
proven expenses or those which appear to have been genuinely incurred in
connection with the death, wake or burial of the victim will be recognized by
the courts.[86] In this case, the expenses incurred for the wake, funeral and
burial of the deceased are substantiated by receipts.[87] The trial court’s
award for actual damages for the death of Jeonito Araque should therefore be
affirmed.
In line with current jurisprudence,[88] the award of
P50,000.00 as civil indemnity ex delicto must also be sustained as it requires
no proof other than the fact of death of the victim and the assailant’s
responsibility therefor.[89] The award for moral damages for the pain and
sorrow suffered by the victim’s family in connection with his untimely death
must likewise be affirmed. The award is
adequate, reasonable and with sufficient basis taking into consideration the
anguish and suffering of the deceased’s family particularly his mother who
relied solely upon him for support.[90] The award of exemplary damages should
likewise be affirmed considering that an aggravating circumstance attended the
commission of the crime.[91]
The trial court, however, correctly ignored the claim for
loss of income or earning capacity of the deceased for lack of factual
basis. The estimate given by the
deceased’s sister on his alleged income as a ‘pre-cast’ businessman is not
supported by competent evidence like income tax returns or receipts. It bears emphasizing in this regard that
compensation for lost income is in the nature of damages[92] and as such
requires due proof thereof.[93] In short, there must be unbiased proof of the
deceased’s average income.[94] In this case, the victim’s sister merely gave an
oral, self-serving and hence unreliable statement of her deceased brother’s
income.
As for the awards given to Marlon Araque, the award for
actual damages must be affirmed as the same is supported by documentary
evidence.[95] With regard to moral and exemplary damages, the same being
distinct from each other require separate determination.[96] The award for
moral damages must be struck down as the victim himself did not testify as to
the moral suffering he sustained as a result of the assault on his person. For lack of competent proof such an award is
improper.[97] The award for exemplary damages must, however, be retained
considering that under Article 2230 of the Civil Code, such damages may be
imposed ”when the crime is committed with one or more aggravating
circumstances.”[98]
Finally, this Court has observed that the trial court did
not render judgment against accused Samson dela Torre, notwithstanding that he
was arraigned and pleaded not guilty to both charges. Under the circumstances, he should be deemed
to have been tried in absentia and, considering the evidence presented by the
prosecution against him, convicted of the crime charged together with appellant
Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the
award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case
No. 91-5843 is DELETED;
2.]
Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No.
91-5843 of Frustrated Homicide and is sentenced to suffer an indeterminate
penalty of Six (6) Years of Prision Correccional, as minimum to Ten (10) Years
and One (1) Day of Prision Mayor, as maximum.
After finality
of this Decision, the records shall be remanded to the Regional Trial Court of
Makati City, which is directed to render judgment based on the evidence against
Samson dela Torre y Esquela.
SO ORDERED.
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ.,
concur.
