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G.R. No.

167954 January 31, 2008
PERLITO !ON"IGO y #$E!#LE%, appellant.
" E & I I O N
&#RPIO, J.'
T() &a*)
This is an appeal from the Decision1 dated 16 March 2005 of the Court of Appeals convicting
appellant erlito Mondigo ! A"emale# $appellant% of Murder and &rustrated Murder.
T() Fa+,*
The prosecution evidence sho'ed that in the morning of 2( )eptem"er 1**+, appellant, Damaso
Delima $Damaso%, Damaso,s son Delfin Delima $Delfin% and three other unidentified individuals
'ere having a drin-ing spree in .igas, Malolos, /ulacan. At around noon, Damaso,s other son,
Anthon! Delima $Anthon!%, 0oined the group. At around 6100 p.m., appellant, using a 20ungle "olo,2
suddenl! hac-ed Anthon! on the head, causing him to fall to the ground unconscious. Appellant
ne3t attac-ed Damaso. A 'itness 'ho 'as in the vicinit!, .olita .umagi $.umagi%, hearing shouts
coming from the scene of the crime, rushed to the area and there sa' appellant repeatedl!
hac-ing Damaso 'ho 'as l!ing on his "ac-, arms raised to 'ard off appellant,s "lo's. Damaso
later died from the in0uries he sustained. Anthon! sustained a 15.254centimeter long lacerated
'ound on his left temporal area.
Appellant 'as charged "efore the 5egional Trial Court of Malolos, /ulacan, /ranch (+ $trial court%
'ith Murder $Criminal Case 6o. 20014M4**% and &rustrated Murder $Criminal Case 6o. 1**74M4**%
8ualified "! treacher!, evident premeditation, and ta-ing advantage of superior strength.
Appellant invo-ed self4defense. According to him, a 8uarrel "ro-e out "et'een him and Anthon!
during their drin-ing spree. Damaso and Delfin arrived and ganged4up on him. 9e ran home,
follo'ed "! Anthon!, Damaso, and Delfin. :pon reaching his house, he got hold of a 2flat "ar2 and
'hac-ed Anthon!,s head 'ith it. Damaso attac-ed him 'ith a "olo "ut Damaso lost hold of the
'eapon 'hich fell to the ground. Appellant retrieved the "olo and used it to hac- Damaso.
T() Ru-.n/ o0 ,() Tr.a- &our,
;n its Decision dated 15 &e"ruar! 2002, the trial court found appellant guilt! of Murder for the -illing
of Damaso and )erious h!sical ;n0uries for the hac-ing of Anthon!, mitigated "! into3ication.2 The
trial court gave credence to the testimonies of prosecution 'itnesses Anthon! and .umagi, and
correspondingl! found unconvincing appellant,s claim of self4defense. The trial court also held that
treacher! 8ualified Damaso,s -illing 'hich 'as done s'iftl!, giving him no opportunit! to ma-e a
defensive stance and protect himself from the attac-, there"! insuring the commission of
appellant,s aggressive act.
etitioner appealed to this Court, contending that $1% the testimonies of the prosecution 'itnesses
on the manner of the attac- on Anthon!, the presence of other individuals at the site of the incident,
and the identit! of the individual 'ho shouted during the attac- are contradictor!< $2% .umagi,s
failure to e3ecute a s'orn statement "efore ta-ing the 'itness stand renders her testimon!
unrelia"le< $7% the nature of the 'ound Anthon! sustained, as indicated in the medical certificate,
"elies his claim that he 'as hac-ed "! a "laded 'eapon< and $=% treacher! did not attend the
-illing of Damaso as mere suddenness of an attac- does not suffice to sho' alevosia, not to
mention that neither Anthon! nor .umagi sa' ho' appellant initiated the attac- against Damaso.
;n its appellee,s "rief, the >ffice of the )olicitor ?eneral $>)?% recommended the modification of
the trial court,s 0udgment "! holding appellant lia"le onl! for 9omicide for the -illing of Damaso.
@e transferred the case to the Court of Appeals follo'ing the ruling in People v. Mateo.7
T() Ru-.n/ o0 ,() &our, o0 #11)a-*
;n its Decision of 16 March 2005, the Court of Appeals affirmed the trial court,s ruling 'ith the
modification that appellant 'as lia"le for &rustrated Murder for the hac-ing of Anthon!.= The Court
of Appeals held that $1% the testimonies of the prosecution 'itnesses are credi"le despite the
inconsistencies appellant noted as these had nothing to do 'ith the central 8uestion of 'hether
appellant attac-ed Anthon! and Damaso 'ith a "olo< $2% the lac- of motive for appellant to attac-
the victims does not negate the commission of the crimes in 8uestion as motive "ecomes material
onl! 'hen the identit! of the assailant is in dou"t< and $7% Damaso,s -illing 'as attended "!
treacher! as appellant launched his attac- 'ithout an! 'arning, leaving the victims no chance to
defend themselves.
9ence, this appeal. ;n separate manifestations, the parties informed the Court that the! 'ere no
longer filing supplemental "riefs and accordingl! agreed to su"mit the case for resolution "ased on
the points raised in their "riefs filed 'ith the Court of Appeals.
T() I**u)
The issue is 'hether appellant is guilt! of Murder and &rustrated Murder, as charged.
T() Ru-.n/ o0 ,() &our,
@e find appellant guilt! of 9omicide and &rustrated Murder.
Appellant Failed to Prove Self-defense
/! invo-ing self4defense, appellant admitted committing the felonies for 'hich he 'as charged
al"eit under circumstances 'hich, if proven, 'ould 0ustif! his commission of the crimes.5 Thus, the
"urden of proof is shifted to appellant 'ho must sho', "e!ond reasona"le dou"t, that the -illing of
Damaso and 'ounding of Anthon! 'ere attended "! the follo'ing circumstances1 $1% unla'ful
aggression on the part of the victims< $2% reasona"le necessit! of the means emplo!ed to prevent
or repel it< and $7% lac- of sufficient provocation on the part of the person defending himself.6
As the Court of Appeals o"served, appellant,s version of ho' Damaso and Anthon! ganged4up on
him, 'holl! uncorro"orated, fails to convince. Appellant does not e3plain 'h! a flat "ar, 'hich he
claims to have used to 'hac- Anthon! on the head, convenientl! la! outside his house. &urther,
the nature of the 'ound Anthon! sustained, a 15.254centimeter long laceration, could onl! have
"een caused "! a "laded 'eapon and not "! a "lunt4edged instrument such as a flat "ar. As for
Damaso,s alleged unla'ful aggression, assuming this claim is true, such aggression ceased 'hen
Damaso lost hold of the "olo. Thus, there 'as no longer an! reason for appellant to pic-4up the
"olo and attac- Damaso 'ith it.
;n contrast, the prosecution 'itnesses, testimonies that appellant, 'ithout an! provocation,
attac-ed t'o of his drin-ing companions 'ith a "olo ring true and are consistent in their material
points. After revie'ing their testimonies, 'e find no reason to distur" the lo'er courts, findings
giving full credence to the testimonies of the prosecution 'itnesses.
Appellant is Guilty of Frustrated Murder and Homicide
Treachery Attended the Attack Aainst Anthony
As the Court of Appeals correctl! held, the location and nature of the 'ound inflicted against
Anthon! and the manner "! 'hich appellant carried out his attac- sho' intent to -ill and treacher!.
Contrar! to appellant,s claim, treacher! attended the attac- as the evidence sho'ed that 'hile the
group 'as in the midst of their drin-ing spree, appellant slipped out, 'ent to his house to get the
"olo, and 'hile Anthon! 'as sitting among the group, appellant too- out his "olo and hac-ed
Anthon! on the left side of the head, causing a 15.254centimeter long laceration. Treacher! is
present 'hen the offender commits the crime emplo!ing means, methods or forms in its e3ecution
'hich tend directl! and speciall! to insure its e3ecution, 'ithout ris- to himself arising from the
defense that the offended part! might ma-e.( Anthon!, totall! unprepared for 'hat 'as to "efall
him, 'as completel! defenseless.
Appellant is Guilty of Homicide for the !illin of "amaso
@e find merit in the >)?,s recommendation that appellant is onl! lia"le for 9omicide for the -illing
of Damaso. 6one of the prosecution 'itnesses sa' ho' the attac- on Damaso commenced.
Anthon! testified that after he regained consciousness, he sa' his father, 'ith multiple sta"
'ounds, cra'ling to'ards their house.+ &or her part, .umagi testified that after hearing shouts
coming from the scene of the crime, she ran to'ards that direction and sa' appellant hac-ing
Damaso 'ho 'as l!ing on his "ac-, arms raised to 'ard off appellant,s "lo's. * This evidence fails
to meet the re8uirement that for treacher! to "e appreciated, the prosecution must sho' ho' the
criminal act commenced, developed and ended.10 That treacher! ma! have attended the attac-
against Anthon! does not follo' that the same also attended the assault against Damaso as
treacher! must "e sho'n in the performance of the acts of e3ecution against each of the victims.
#nto$ication as Mitiatin %ircumstance not Proven
The trial court erred in crediting appellant 'ith the circumstance of into3ication as having mitigated
his crimes "ecause 2the sta""ing incident ensued in the course of a drin-ing spree.211 &or the
alternative circumstance of into3ication12 to "e treated as a mitigating circumstance, the defense
must sho' that the into3ication is not ha"itual, not su"se8uent to a plan to commit a felon! and the
accused,s drun-enness affected his mental faculties.17 9ere, the onl! proof on record on this
matter is appellant,s testimon! that "efore Damaso, Anthon!, and Delfin attac-ed him, he dran-
2a"out 7 to = "ottles of "eer.21= The lo' alcohol content of "eer, the 8uantit! of such li8uor
appellant im"i"ed, and the a"sence of an! independent proof that appellant,s alcohol inta-e
affected his mental faculties all negate the finding that appellant 'as into3icated enough at the time
he committed the crimes to mitigate his lia"ilit!.
The Penalty Applica&le for Homicide
9omicide under Article 2=* of the 5evised enal Code is punisha"le "! reclusion temporal.
Appl!ing the ;ndeterminate )entence .a', the range of the penalt! imposa"le on appellant is 6
!ears and 1 da! to 12 !ears ofprision mayor, as minimum, to 12 !ears and 1 da! to 20 !ears
of reclusion temporal, as ma3imum. ;n the a"sence of an! mitigating or aggravating circumstance,
'e find it proper to impose upon appellant a prison term of + !ears and 1 da! of prision mayor, as
minimum, to 1= !ears and + months of reclusion temporal, as ma3imum. Appellant is also lia"le to
pa! the heirs of Damaso civil indemnit! of 50,000 and moral damages of 50,000 'hich are
a'arded automaticall!.15
2HEREFORE, 'e #FFIR! the Decision dated 16 March 2005 of the Court of Appeals, 'ith
the !O"IFI&#TIONthat appellant erlito Mondigo ! A"emale# is found G3ILT4 of 9omicide for
the -illing of Damaso Delima. Appellant erlito Mondigo ! A"emale# is sentenced as follo's1
1. ;n Crim. Case 6o. 1**74M4**, eight $+% !ears and one $1% da! of prision mayor, as
minimum, to fourteen $1=% !ears and eight $+% months of reclusion temporal, as ma3imum<
2. ;n Crim. Case 6o. 20014M4**, eight $+% !ears and one $1% da! of prision mayor, as
minimum, to fourteen $1=% !ears and eight $+% months of reclusion temporal, as ma3imum.
Appellant erlito Mondigo ! A"emale# is further ordered to pa! the heirs of Damaso Delima
civil indemnit! of 50,000 and moral damages of 50,000.