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Art. 249, in rel to Art.

50, RPC/Indeterminate Sentence Law:

Fe Abella vs. People
G.R. No. 198400, October 7, 2013 (Frustrated Homicide)


Benigno and his wife Amelita found Fe fighting with Alejandro and Dionisio. Benigno was able to
convince Fe to go home. Benigno and Amelita followed suit and along the way, they dropped by the
houses of Alejandro and Dionisio to apologize for Fe’s conduct.

Benigno and Amelita were in Alejandro’s house when Fe arrived bringing with him two scythes, one in
each of his hands. Benigno instructed Alejandro and Dionisio to run away and the latter two complied.
Fe wanted to enter Alejandro’s house, but Benigno blocked his way and asked him not to proceed. Fe
then pointed the scythe, which he held in his left hand, in the direction of Benigno’s stomach, while the
scythe in the right hand was used to hack the latter’s neck once. Benigno suffered from a hack wound on
the left neck, and an incised wound on the left hand palm.

The RTC convicted Fe of the crime of FRUSTRATED HOMICIDE. The CA affirmed petitioner’s conviction
for frustrated homicide but modified the sentence to imprisonment of six (6) months and one (1) day to
six (6) years of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its
medium period, as maximum.

The CA held that Article 249 of the Revised Penal Code provides that the penalty for the crime of
consummated homicide is reclusion temporal, or twelve (12) years and one (1) day to twenty (20) years.
Under Article 50 of the same Code, the penalty for a frustrated crime is one degree lower than that
prescribed by law. Thus, frustrated homicide is punishable by prision mayor, or six (6) years and one (1)
day to twelve (12) years. Applying the Indeterminate Sentence Law, absent any mitigating or
aggravating circumstances, the maximum of the indeterminate penalty should be taken from the
medium period of prision mayor. To determine the minimum of the indeterminate penalty, prision
mayor should be reduced by one degree, which is prision correccional, with a range of six (6) months
and one (1) day to six (6) years. The minimum of the indeterminate penalty may be taken from the full
range of prision correccional.


Did the RTC and CA err in rendering their judgments?


No. In cases of frustrated homicide, the main element is the accused’s intent to take his victim’s life. The
prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding
homicidal intent. And the intent to kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of wounds he inflicted on his victim.

This Court concludes and thus agrees with the CA that the use of a scythe against Benigno’s neck was
determinative of the petitioner’s homicidal intent when the hacking blow was delivered.
This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the
fact that he pursued Alejandro instead and refrained from further hacking Benigno. What could have
been a fatal blow was already delivered and there was no more desistance to speak of. Benigno did not
die from the hacking incident by reason of a timely medical intervention provided to him, which is a
cause independent of the petitioner’s will. This Court finds no reversible error committed by the CA in
affirming the RTC’s conviction of the petitioner of the crime charged.

Age and Rel’p as Modifying Circumstances:

Pp. vs. Marciano Cial
G.R. No. 191362, October 9, 2013


"AAA", then thirteen (13) years old, was a Grade I pupil and was residing with her family and appellant
Marciano Cial, the common law husband of AAA’s mother.

Accordingly, Marciano called "AAA" and told her to go to the bedroom inside their house. Once inside,
Marciano took off "AAA’s" shorts and panty and spread her legs. Appellant pulled his pants down to his
thighs and inserted his penis into the little girl’s vagina. "AAA" felt intense pain but she did not try to
struggle because appellant had a bolo on his waist.

RTC, finding the qualifying circumstances of minority and relationship to be present, rendered a decision
finding Marciano guilty of qualified rape. CA affirmed the decision of the RTC.


Is the conviction of the crime of qualified rape proper?



The Certificate of Live Birth of “AAA” was never presented or offered during the trial of the case. "AAA"
even testified on the witness stand that she does not know her age. The prosecution likewise miserably
failed to establish "AAA’s" relationship with the appellant. Although the Information alleged that
appellant is the common-law husband of "AAA’s" mother, "AAA’" referred to appellant as her step-

Suffice it to state that qualifying circumstances must be proved beyond reasonable doubt just like the
crime itself In this case, the prosecution utterly failed to prove beyond reasonable doubt the qualifying
circumstances of minority and relationship. As such, appellant should only be convicted of the crime of
simple rape.

Pp vs. Ricardo Dearo, et. al.
G.R. No. 190862, October 9, 2013 (Presence/ MURDER)


Jose, Emeterio and his son Rolly, as well as Porferia and her daughter Analiza, were attending a fiesta
celebration. Around midnight, Emeterio asked Jose whether they might be able to spend the night in the
latter's house.. Jose acceded and told Emeterio, Porferia and Analiza to proceed to his house while he
looked for Rolly. Jose eventually found Rolly, and both of them followed the three others to Jose's

When Jose and Rolly were about 10 meters away, they heard a single gunshot coming from the house.
The two saw Paulino coming down from Jose’s house, saying "Ti, tapos ka man!" (There, now you are
finished!). Immediately after, they heard cries of women from inside the house asking for help, followed
by a rapid series of gunfire from the back of the house. When the firing stopped, they saw appellants
Dearo and Toledo, both carrying long firearms, walk with Luague from the back of the house towards
the road. The three had other companions, but Jose and Rolly were not able to identify them.

Jose and Rolly went inside the house and saw Emeterio and Porferia on the floor, already dead, while
Analiza was still moaning in pain. Rolly brought the victims to the hospital, but Analiza was later also
pronounced dead.

In three Informations, appellants were charged with murder, all committed by conspiracy and attended
by treachery and evident premeditation.

RTC rendered a Judgment finding Luague and appellants Dearo and Toledo guilty of the three counts of
murder. The RTC appreciated the qualifying circumstances of treachery and evident premeditation. CA
rendered a Decision affirming the Judgment of the RTC.


Whether the qualifying circumstance of treachery was properly appreciated by the RTC and the CA


Yes. There is treachery when the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof that tend directly and especially to ensure its execution,
without risk to himself arising from the defense that the offended party might make. We have ruled that
treachery is present when an assailant takes advantage of a situation in which the victim is asleep,
unaware of the evil design, or has just awakened.

It has been established by the prosecution, and even confirmed by the defense, that the victims were
sleeping when they were shot. To be precise, it was Emeterio who was asleep when he was shot,
considering that the women were able to cry for help before the rapid firing that silenced them. In any
case, it was clear that the women were in no position to defend themselves, having been rudely
awakened by the shooting of their companion. The fact that they shouted for help also showed their
loss of hope in the face of what was coming – rapid gunfire from long firearms.

Pp. vs. Ramon Placer
G.R. No. 181753, /October 9, 2013 (Absence/ HOMICIDE)


Maria Gernale and her husband, Rosalino Gernale, were on their way home on board a tricycle. They
were in the company of Maria’s father, another female passenger and five (5) young children. While
their tricycle was moving, another tricycle carrying appellants Ramon and Virgilio Placer almost hit them.
Appellants and Rosalino alighted [from] their respective tricycles and a heated altercation ensued
between them. When things had subsided, Gernale and appellants proceeded their separate ways.

Sometime later, Maria realized that appellants were chasing them. The latter were able to overtake the
tricycle driven by Rosalino and later blocked its path. Appellants alighted from their tricycle and
proceeded towards the direction of Rosalino who had also alighted from his tricycle. A confrontation
followed and Angelina Gestiada, Rosalino’s sister, tried to pacify appellants. But appellant Ramon Placer
did not heed as he stabbed Rosalino in the chest. Rosalino fell towards the direction of his tricycle and
just as he was about to fall, this time Virgilio stabbed him in the stomach.

Ramon and Virgilio were charged with the crime of murder because allegedly, the stabbing was
attended by treachery. The RTC convicted Ramon and Virgilio of the crime charged. The CA affirmed
Ramon’s conviction but granted the Urgent Motion to Withdraw Appeal and considered the appeal
closed and terminated as to Virgilio.

Ramon contends that assuming that he was criminally liable for the killing of the victim, the crime
committed was homicide, not murder.


Is Ramon guilty of homicide and not murder?



The essence of treachery is the sudden and unexpected attack on the unsuspecting victim. Hence,
treachery is absent when the victim was placed on his guard, like when a heated argument has preceded
the attack, or when the victim was standing face to face with his assailants.

The fatal stabbing of Rosalino by Ramon was immediately preceded by two altercations between Ramon
and Virgilio, on one hand, and Rosalino, on the other. The first altercation occurred right after the near-
collision of the tricycles, while the other happened shortly after Ramon and Virgilio had blocked
Rosalino’s tricycle. During the second altercation, Rosalino stood face to face with Ramon and Virgilio. It
was then when Ramon stabbed the victim twice, the sequential method of attack being borne out in the
necropsy report showing that Rosalino had sustained two fatal stab wounds in the chest and abdomen.
Under the circumstances, Rosalino was rendered completely aware of the imminent danger to himself
from Ramon and Virgilio, rendering their assault far from sudden and unexpected as to put Rosalino off
his guard against any deadly assault. To stress, treachery cannot be appreciated if the victim was
forewarned of an impending danger and could have foreseen the aggression of the accused.

With treachery not being proved beyond reasonable doubt, the crime Ramon was properly guilty of was