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Not alleged treachery (Alevosia under RPC Art.14 (16)


People vs. Raquinio, 17 SCRA 914

Nature of Action: Direct appeal on questions of law

Juan Raquinio, is guilty of frustrated homicide with the aggravating
circumstance of treachery offset by voluntary surrender in mitigation.
Early afternoon of November 8, 1957, complainant Apolonio Ravina, with his helper
Luciano, drove his jeep to the river bank to load and transport to market the fish catch
for today. Agustin Raquinio, local barrio lieutenant and head-man of the fishermen, told
Ravina that he promised to load the fishes to Gaspar Retutal, in which the defendant
Juan Raquinio is a helper. Agustin Raquinio and the complainant engaged in defeated
discussion, the latter reminded Agustin that he should be given the preference to
transport and told Agustin: We did not come here to force ourselves to you.
Complainants mother, sensing trouble, called him. And when he turned to go to his
mother, defendant stabbed him at the stomach with a small bolo. Complainant took to
his heels, collapsed at the ground at a distance about 25 meters. Defendant wanted to
pursue him, but Agustin Raquinio held him fast, grabbed the bolo in his hand.
In Appellants brief, hopes that the Supreme Court may spotlight his theory that the
crime committed falls under the level of physical injuries. A direct appeal on questions of
law precludes a review of the facts. The defendant waived his right to inquiry into these
ISSUES: Whether or not the lower court erred in finding of frustrated homicide for lack
of intention to kill? And Whether or not the lower court erred in considering treachery as
an aggravating circumstance when it is not alleged in the criminal charge against him?
Appellant used a lethal weapon, a bolo. The thrust, sudden and
unexpected- was directed to a vital part of the body, the abdomen. If Agustin did not
hold him fast, he would have finished his victim. The wounds suffered by the latter would
have been fatal, were it not for the timely and adequate medical assistance. Intention to
kill, a mental process, may be inferred from the nature of weapon used, the place of
wound, the seriousness thereof and the persistence to kill the victim. Be it all present,
the crime is frustrated homicide.
Had treachery been claimed, the crime would have risen to the level of frustrated
murder. But the information did not allege treachery. How the act was perpetrated has to
be proved to achieve this end, it is inescapable that the act be described. To show the
conditions under which the attack was perpetrated, an aggravating circumstance
which is part of the act may be related. Else, a gap may result, the narrative
incomplete. So it is, that evidence of an aggravating circumstance is not intended to
bring about a change in the nature of that crime averred, for the worse. Rather, it serves
the purpose of aiding the court in assessing the penalty to be imposed "in a more or less

severe form, within the limits prescribed for the offense charged in the complaint or
The decision appealed from is not infirm. It is accordingly affirmed. Costs against