Page 1 of 5 Art 247 SECOND DIVISION G.R. No.

74433 September 14, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant. SAR IENTO, J.: This is an appeal from the decision of the Re ional Trial Court of !alo, "e#te, sentencin the accused-appellant $rancisco %&arca to death for the comple' crime of murder (ith dou&le frustrated murder. The case (as elevated to this Court in vie( of the death sentence imposed. )ith the approval of the ne( Constitution, a&olishin the penalt# of death and commutin all e'istin death sentences to life imprisonment, (e re*uired the accused-appellant to inform us (hether or not he (ished to pursue the case as an appealed case. In compliance there(ith, he filed a statement informin us that he (ished to continue (ith the case &# (a# of an appeal. The information +amended, in this case reads as follo(s''' ''' ''' The undersi ned Cit# $iscal of the Cit# of Taclo&an accuses $rancisco %&arca of the crime of .urder (ith Dou&le $rustrated .urder, committed as follo(sThat on or a&out the /0th da# of 1ul#, /234, in the Cit# of Taclo&an, !hilippines and (ithin the 5urisdiction of this 6onora&le Court, the a&ove-named accused, (ith deli&erate intent to 7ill and (ith evident premeditation, and (ith treacher#, armed (ith an unlicensed firearm +armalite,, .-/8 rifle, did then and there (ilfull#, unla(full# and feloniousl# attac7 and shot several times 96IN:S"E; !%<" 9O6 on the different parts of his &od#, there&# inflictin upon said 96IN:S"E; !%<" 9O6 unshot (ounds (hich caused his instantaneous death and as a conse*uence of (hich also caused unshot (ounds to "IN% %.!%R%DO and %RNO"D %.!%R%DO on the different parts of their &odies there&# inflictin unshot (ounds (hich other(ise (ould have caused the death of said "ina %mparado and %rnold %mparado, thus performin all the acts of e'ecution (hich should have produced the crimes of murders as a conse*uence, &ut nevertheless did not produce it &# reason of causes independent of his (ill, that is &# the timel# and a&le medical assistance rendered to "ina %mparado and %rnold %mparado (hich prevented their death. ''' ''' ''' On arrai nment, the accused-appellant pleaded not uilt#. The Solicitor :eneral states accuratel# the facts as follo(s9hin sle# !aul 9oh and the (ife of accused $rancisco %&arca, 1enn#, had illicit relationship. The illicit relationship apparentl# &e an (hile the accused (as in .anila revie(in for the /23= >ar e'aminations. 6is (ife (as left &ehind in their residence in Taclo&an, "e#te +pp. 40-4?, 80, tsn, Sept. @4, /234,. On 1ul# /0, /234, the accused (as in his residence in Taclo&an, "e#te. On the mornin of that date he (ent to the &us station to o to Dolores, Eastern Samar, to fetch his dau hter. 6o(ever, he (as not a&le to catch the first trip +in the mornin ,. 6e (ent &ac7 to the station in the afternoon to ta7e the @-AA oBcloc7 trip &ut the &us had en ine trou&le and could not leave +pp. 0-3, tsn, Nov. @3, /230,. The accused, then proceeded to the residence of his father after (hich he (ent home. 6e arrived at his

Page 2 of 5 Art 247 residence at the V C : Su&division in Taclo&an Cit# at around 8-AA oBcloc7 in the afternoon +pp. 3-2, tsn, Id.,. <pon reachin home, the accused found his (ife, 1enn#, and 9hin sle# 9oh in the act of se'ual intercourse. )hen the (ife and 9oh noticed the accused, the (ife pushed her paramour (ho ot his revolver. The accused (ho (as then peepin a&ove the &uilt-in ca&inet in their room 5umped and ran a(a# +pp. 2-/=, tsn, Id.,. The accused (ent to loo7 for a firearm at Taclo&an Cit#. 6e (ent to the house of a !C soldier, C@C %rturo Tal&o, arrivin there at around 8-=A p.m. 6e ot Tal&oBs firearm, an .-/8 rifle, and (ent &ac7 to his house at V C : Su&division. 6e (as not a&le to find his (ife and 9oh there. 6e proceeded to the Dmah5on sessionD as it (as the Dhan outD of 9in sle# 9oh. The accused found 9oh pla#in mah5on . 6e fired at 9in sle# 9oh three times (ith his rifle +pp. /=-/2, tsn, Id.,. 9oh (as hit. %rnold and "ina %mparado (ho (ere occup#in a room ad5acent to the room (here 9oh (as pla#in mah5on (ere also hit &# the shots fired &# the accused +pp. =4-42, tsn, Sept. @4, /234,. 9in sle# 9oh died instantaneousl# of cardiorespirator# arrest due to shoc7 and hemorrha e as a result of multiple unshot (ounds on the head, trun7 and a&domen +pp. @3-@2, tsn, Sept. @4, /234E see also e'h. %,- %rnold %mparado (as hospitaliFed and operated on in the 7idne# to remove a &ullet +pp. /?-@=, tsn, Oct. /?, /234E see also e'h. C,. 6is (ife, "ina %mparado, (as also treated in the hospital as she (as hit &# &ullet fra ments +p. @=, tsn, Id.,. %rnold %mparado (ho received a salar# of nearl# !/,AAA.AA a month (as not a&le to (or7 for /-/G@ months &ecause of his (ounds. 6e spent !/0,AAA.AA for medical e'penses (hile his (ife spent !l,AAA.AA for the same purpose +pp. @4-@0, tsn, Id. ,. On .arch /?, /238, the trial court rendered the appealed 5ud ment, the dispositive portion (hereof reads as follo(s''' ''' ''' )6ERE$ORE, findin the accused, $rancisco %&arca uilt# &e#ond reasona&le dou&t of the comple' crime of murder (ith dou&le frustrated murder as char ed in the amended information, and pursuant to %rt. 8= of the Revised !enal Code (hich does not consider the effect of miti atin or a ravatin circumstances (hen the la( prescri&es a sin le indivisi&le penalt# in relation to %rt. 43, he is here&# sentenced to death, to indemnif# the heirs of 9hin sle# !aul 9oh in the sum of !=A,AAA, complainant spouses %rnold and "ina %mparado in the sum of T(ent# Thousand !esos +!@A,AAA.AA,, (ithout su&sidiar# imprisonment in case of insolvenc#, and to pa# the costs. It appears from the evidence that the deceased 9hin sle# !aul 9oh and defendantBs (ife had illicit relationship (hile he (as a(a# in .anilaE that the accused had &een deceived, &etra#ed, dis raced and ruined &# his (ifeBs infidelit# (hich distur&ed his reasonin faculties and deprived him of the capacit# to reflect upon his acts. Considerin all these circumstances this court &elieves the accused $rancisco %&arca is deservin of e'ecutive clemenc#, not of full pardon &ut of a su&stantial if not a radical reduction or commutation of his death sentence. "et a cop# of this decision &e furnished her E'cellenc#, the !resident of the !hilippines, thru the .inistr# of 1ustice, .anila. SO ORDERED. ''' ''' ''' The accused-appellant assi ns the follo(in errors committed &# the court a *uoI. IN CONVICTIN: T6E %CC<SED $OR T6E CRI.E %S C6%R:ED INSTE%D O$ ENTERIN: % 1<D:.ENT O$ CONVICTION <NDER %RTIC"E @4? O$ T6E REVISED !EN%" CODEE

Page 3 of 5 Art 247

II. IN $INDIN: T6%T T6E 9I""IN: )%S %.ENDED >; T6E H<%"I$;IN: CIRC<.ST%NCE O$ TRE%C6ER;. The Solicitor :eneral recommends that (e appl# %rticle @4? of the Revised !enal Code definin death inflicted under e'ceptional circumstances, comple'ed (ith dou&le frustrated murder. %rticle @4? reads in full%RT. @4?. Death or physical injuries inflicted under exceptional circumstances . I %n# le all# married person (ho, havin surprised his spouse in the act of committin se'ual intercourse (ith another person, shall 7ill an# of them or &oth of them in the act or immediatel# thereafter, or shall inflict upon them an# serious ph#sical in5ur#, shall suffer the penalt# of destierro. If he shall inflict upon them ph#sical in5uries of an# other 7ind, he shall &e e'empt from punishment. These rules shall &e applica&le, under the same circumstances, to parents (ith respect to their dau hters under ei hteen #ears of a e, and their seducers, (hile the dau hters are livin (ith their parents. %n# person (ho shall promote or facilitate prostitution of his (ife or dau hter, or shall other(ise have consented to the infidelit# of the other spouse shall not &e entitled to the &enefits of this article. )e a ree (ith the Solicitor :eneral that the afore*uoted provision applies in the instant case. There is no *uestion that the accused surprised his (ife and her paramour, the victim in this case, in the act of illicit copulation, as a result of (hich, he (ent out to 7ill the deceased in a fit of passionate out&urst. %rticle @4? prescri&es the follo(in elements- +/, that a le all# married person surprises his spouse in the act of committin se'ual intercourse (ith another personE and +@, that he 7ills an# of them or &oth of them in the act or immediatel# thereafter. These elements are present in this case. The trial court, in convictin the accusedappellant of murder, therefore erred. Thou h *uite a len th of time, a&out one hour, had passed &et(een the time the accused-appellant discovered his (ife havin se'ual intercourse (ith the victim and the time the latter (as actuall# shot, the shootin must &e understood to &e the continuation of the pursuit of the victim &# the accused-appellant. The Revised !enal Code, in re*uirin that the accused Dshall 7ill an# of them or &oth of them . . . immediatel#D after surprisin his spouse in the act of intercourse, does not sa# that he should commit the 7illin instantl# thereafter. It onl# re*uires that the death caused &e the pro'imate result of the outra e over(helmin the accused after chancin upon his spouse in the &asest act of infidelit#. >ut the 7illin should have &een actuall# motivated &# the same &lind impulse, and must not have &een influenced &# e'ternal factors. The 7illin must &e the direct &#-product of the accusedBs ra e. It must &e stressed furthermore that %rticle @4?, supra, does not define an offense. said''' ''' ''' %s ma# readil# &e seen from its provisions and its place in the Code, the a&ove-*uoted article, far from definin a felon#, merel# provides or rants a privile e or &enefit I amountin practicall# to an e'emption from an ade*uate punishment I to a le all# married person or parent (ho shall surprise his spouse or dau hter in the act of committin se'ual intercourse (ith another, and shall 7ill an# or &oth of them in the act or immediatel# thereafter, or shall inflict upon them an# serious ph#sical in5ur#. Thus, in case of death or serious ph#sical in5uries, considerin the enormous provocation and his ri hteous indi nation, the accused I (ho (ould other(ise &e criminall# lia&le for the crime of homicide, parricide, murder, or serious ph#sical in5ur#, as the case ma# &e I is punished onl# (ithdestierro. This penalt# is mere &anishment and, as held in a case, is intended more for the protection of the accused than a punishment. +!eople vs. Coricor, ?2 !hil., 8?@., %nd (here ph#sical in5uries other than serious are inflicted, the offender is e'empted from punishment. In effect, therefore, %rticle @4?, or the e'ceptional circumstances mentioned therein, amount to an e'emptin circumstance, for even (here death or
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In People v. Araque, (e

Page 4 of 5 Art 247 serious ph#sical in5uries is inflicted, the penalt# is so reatl# lo(ered as to result to no punishment at all. % different interpretation, i.e., that it defines and penaliFes a distinct crime, (ould ma7e the e'ceptional circumstances (hich practicall# e'empt the accused from criminal lia&ilit# inte ral elements of the offense, and there&# compel the prosecutin officer to plead, and, incidentall#, admit them, in the information. Such an interpretation (ould &e illo ical if not a&surd, since a miti atin and much less an e'emptin circumstance cannot &e an inte ral element of the crime char ed. Onl# Dacts or omissons . . . constitutin the offenseD should &e pleaded in a complaint or information, and a circumstance (hich miti ates criminal lia&ilit# or e'empts the accused therefrom, not &ein an essential element of the offense char ed-&ut a matter of defense that must &e proved to the satisfaction of the court-need not &e pleaded. +Sec. 0, Rule /A8, Rules of CourtE <.S. vs. Campo, @= !hil., =83., That the article in *uestion defines no crime is made more manifest (hen (e consider that its counterpart in the old !enal Code +%rticle 4@=, (as found under the :eneral !rovisions +Chapter VIII, of Title VIII coverin crimes a ainst persons. There can, (e thin7, hardl# &e an# dispute that as part of the eneral provisions, it could not have possi&l# provided for a distinct and separate crime. ''' ''' ''' )e, therefore, conclude that %rticle @4? of the Revised !enal Code does not define and provide for a specific crime, &ut rants a privile e or &enefit to the accused for the 7illin of another or the infliction of serious ph#sical in5uries under the circumstances therein mentioned. ... ''' ''' ''' !unishment, conse*uentl#, is not inflicted upon the accused. 6e is &anished, &ut that is intended for his protection. It shall li7e(ise &e noted that inflictin death under e'ceptional circumstances, not &ein a punisha&le act, cannot &e *ualified &# either a ravatin or miti atin or other *ualif#in circumstances, )e cannot accordin l# appreciate treacher# in this case. The ne't *uestion refers to the lia&ilit# of the accused-appellant for the ph#sical in5uries suffered &# "ina %mparado and %rnold %mparado (ho (ere cau ht in the crossfire as the accused-appellant shot the victim. The Solicitor :eneral recommends a findin of dou&le frustrated murder a ainst the accused-appellant, and &ein the more severe offense, proposes the imposition of reclusion temporal in its ma'imum period pursuant to %rticle 43 of the Revised !enal Code. This is (here (e disa ree. The accused-appellant did not have the intent to 7ill the %mparado couple. %lthou h as a rule, one committin an offense is lia&le for all the conse*uences of his act, that rule presupposes that the act done amounts to a felon#. >ut the case at &ar re*uires distinctions. 6ere, the accused-appellant (as not committin murder (hen he dischar ed his rifle upon the deceased. Inflictin death under e'ceptional circumstances is not murder. )e cannot therefore hold the appellant lia&le for frustrated murder for the in5uries suffered &# the %mparados. This does not mean, ho(ever, that the accused-appellant is totall# free from an# responsi&ilit#. :rantin the fact that he (as not performin an ille al act (hen he fired shots at the victim, he cannot &e said to &e entirel# (ithout fault. )hile it appears that &efore firin at the deceased, he uttered (arnin (ords +Dan (ara# la&ot 7a a(as,D, that is not enou h a precaution to a&solve him for the in5uries sustained &# the %mparados. )e nonetheless find ne li ence on his part. %ccordin l#, (e hold him lia&le under the first part, second para raph, of %rticle =80, that is, less serious ph#sical in5uries throu h simple imprudence or ne li ence. +The records sho( that %rnold %mparado (as incapacitated for one and one-half monthsE there is no sho(in , (ith respect to "ina %mparado, as to the e'tent of her in5uries. )e presume that she (as placed in confinement for onl# ten to fourteen da#s &ased on the medical certificate estimatin her recover# period.,

Page 5 of 5 Art 247 $or the separate in5uries suffered &# the %mparado spouses, (e therefore impose upon the accusedappellantarresto mayor +in its medium and ma'imum periods, in its ma'imum period, arresto to &ein the raver penalt# +than destierro,. )6ERE$ORE, the decision appealed from is here&# .ODI$IED. The accused-appellant is sentenced to four months and @/ da#s to si' months of arresto ma#or. The period (ithin (hich he has &een in confinement shall &e credited in the service of these penalties. 6e is furthermore ordered to indemnif# %rnold and "ina %mparado in the sum of !/8,AAA.AA as and for hospitaliFation e'pense and the sum of !/,0AA.AA as and for %rnold %mparadoBs loss of earnin capacit#. No special pronouncement as to costs. IT IS SO ORDERED.