I.

INTRODUCTION
(Background of the Case)
"HANDLE them carefully, for words have more power than atom bombs.”

This line from the poet Pearl Strachan Hurd would have come handy for accused
Enrico Hora in the afternoon of July 29, 2018 and, if heeded, spared him the extreme
inconvenience of criminal prosecution and trial. But as things unfolded, he was to be
charged of attempting to take the life of private complainant Herald Emil Weismaier
(Weismaier), not thru mere lethality of words like “Do you like this? You want to die?”
but because of further allegation that he carried out this threat by firing a gun at
Weismaier.

Accused, at arraignment, vigorously denied this when the information was read to
him with the following particulars:

That on or about 5:30 o’clock in the afternoon of July 29, 2018, at

Sitio Maimpis, Brgy. Dalumpinas, municipality of San Nicolas, province
of Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with the used of an unknown
type of short firearm, with intent to kill, did then and there wilfully,
unlawfully and feloniously point his short firearm to one HERALD EMIL
WEISMAIER and utter “DO YOU LIKE THIS? YOU WANT TO DIE?”,
and when said HERALD EMIL WEISMAIER was able to run for his
safety, the accused shoot him twice but missed, the accused having
thus commenced directly by overt act the commission of the crime of
Homicide but did not perform all the acts of execution which would have
produced the felony by reason of some cause or accident other than
accused spontaneous desistance, to the damage and prejudice of said
HERALD EMIL WEISMAIER.

Contrary to Article 240 in relation to Article 6 of the Revised Penal

Code.1

II. Arguments
A. The People’s Evidence.
Burdened by constitutional mandate in proving the guilt of the accused reasonable
doubt, the prosecution had the private complainant and his lone witness Jessel Quimo
Martinez (Martinez) testified in Court.
Weismaier affirmed the content of the Affidavit of Complaint 2 and his signature
thereon; this serving as his direct testimony in Court. In it, he testified that about 5:30 in
the afternoon of July 29, 2018, he was checking the water pipe at the back of his house in
Sitio Maimpis, Brgy. Dalumpinas, San Nicolas, Pangasinan, when the accused emerged
from the nearby rice field holding an unknown type of short firearm. Without any word
as he came close, he pointed the gun at Weismaier and repeatedly uttered: “Do you like
this? You want to die?” The nervous Weismaier scampered into the safety of his house.
While running, he heard the gunshots two times but he was able to seek cover inside the
house and remained thereat. At the time the incident happened, Weismaier was clueless
of the identity of the person as well as his reasons for shooting him. It was his girlfriend
and witness Martinez who afterwards informed him that the accused had issues about the
ducks raised by complainant in his yard. The incident transpired for about ten (10) to
fifteen (15) seconds before the accused left. It was only when Martinez called for the
assistance of barangay officials that Weismaier came out of the house. In Court, he
added that at the time of shooting he was afraid for his life. If the fear could be
1
Information dated September 11, 2018, Records, p. 1
2
Exhibit A, Affidavit of Complaint dated July 30, 2018, Records, p. 6
Crim. Case No. 9130
People vs. Enrico Hora
For: Attempted Homicide
DECISION

quantified in sum of money, he asked the Court for Php50,000.00. He described the
appearance of the gun as small. He elaborated the information relayed by Martinez that
what provoked the shooting was accused’s fury about Weismaier’s ducks escaping into
the rice field of accused and eating the rice grains. He identified accused in Court. He
insisted that accused pointed a gun at him, saying: “Do you like death?”
Beleaguered by questions on cross-examination, he conceded that the shooting
happened while he was running towards his house. Because he was headed at that
direction and his back was turned at the accused, he did not see if accused aimed at him
when he fired the shots. When quizzed for his reasons why he did not try to talk to
accused about his ducks that escaped into the latter’s rice field, Weismaier explained that
he could not do so because “I cannot talk to Mr. Hora because he is not talking English.
I am not talking Tagalog.”3 But that despite accused’s inability to speak English, he
maintained that he threatened him in English words which he could have possibly picked
up from movies. When confronted about the disparity of the alleged utterances in
English as indicated in his prior written testimony (Do you like this, you want to die?)
and his open court testimony (Do you like death?), he stood by the latter. He blamed the
police officer of San Nicolas PNP who took his statement; he remembered reporting that
the utterance made by accused was, “Do you like death?” When it was the Court’s turn
to ask for clarification regarding the exact utterance, Weismaeir was again unsure if it
was really “Do you like death?” or “Do you like this?” Despite report that accused fired
a gun made to PNP San Nicolas, no police officer proceeded to the place to investigate
the crime scene. At complainant’s end, no bullet was recovered at or near his house.
Weismaeir was uncertain of the number of shots fired, he was only sure of the first one.
Martinez was next presented as witness for the people. Like Weismaeir, the
erstwhile Affidavit of Witness4 formed the gamut of her direct examination. She was
inside the house when she heard accused shouting at his Weismaeir, her live-in partner.
She heard the accused uttered repeatedly: “Do you like this? You want to die?” and then
there was a single gunshot. When she came out, she saw Hora aiming a gun at
Weismaeir, still saying repeatedly: “Do you like this? You want to die?” This scared
Weismaeir off who run inside the house for cover. Martinez herself sought cover from
behind the nearby house of her mother. She, however, interacted with Hora asking him
what offense they committed that he had to do that. He only uttered the same threats as
before, fired the gun several times, and left the place for nothing. When later re-joined
with Weismaeir, she asked him what he could have done to Hora to provoke such an act,
but he had no knowledge. In fact, according to Weismaeir, he was totally surprise of
Hora’s presence who suddenly emerged pointing and firing the gun at him. Weismaeir
did not even know if he was the target of Hora. At the instance of Weismaeir, Martinez
summoned for the presence of barangay officials Leoncio Martinez Jr. and Jan-Jan Suyat
who arrived at their house to assist. At around 8:00 p.m. of July 29, 2018, after the
responding policemen left the house of Weismaeir and Martinez, accused returned on a
motorcycle. He stopped in front of the house and from there drove with such acceleration
that it created loud noise, purportedly to terrorize Weismaeir. On additional direct
examination during the trial, Martinez testified that when she opened the door, there was
Weismaeir running towards the house while Hora was holding firearm. Martinez
witnessed the second shot. She, however, did not see in what direction the shot was
aimed at because she herself hid because of fear. When the second shot was fired,
Weismaeir already made it in the house.

3
TSN, Testimony of Herald Emil Weismaier dated June 18, 2019, p. 20.
4
Exhibit B, Affidavit of Witness dated August 3, 2018,

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Crim. Case No. 9130
People vs. Enrico Hora
For: Attempted Homicide
DECISION

Subjected to cross-examination questions, Martinez could only recall hearing

gunshots twice. This despite her prior written testimony that besides the single shot she
heard when she was inside the house, Hora again made successive (several) fires when
Martinez went outside. She admitted that she did not see Hora aimed the gun at
Weismaeir. While policemen and barangay officials came to the house to render some
assistance, she did not request that they call Hora for a dialogue. She was informed by
policemen that Hora was already asleep out of drunkenness. She did not anymore request
for another date to have such conference. When the Court asked questions for
clarification as to whether or not the witness was privy to the cause of row between Hora
and Weismaeir, she answered in the negative. She only heard accused speaking in
English to her partner.

B. The Accused’s Evidence.

Accused testified by having his Kontra-Salaysay5 and signature thereon identified,
and its content affirmed in Court. He denied uttering the words: “Do you like this? You
want to die?” What he told the couple Weismaeir and Martinez was: “KUNG HINDI
NINYO IKUKULOMG YONG MGA PATO (DUCKS) NINYO AY PAPATAYIN KO
SILA.”6 Accused caught the ducks owned by Weismaeir feeding off palay shoots in his
field. That was not the first time that happened. Accused already advised the couple to
contain the fowls properly so that they would not escape and pester his crop. When he
again spotted the ducks in the field that afternoon, he pelted stones at them causing them
to run towards Weismaeir’s yard. Weismaeir came out of the house. As he could not
speak Ilocano, and accused could not converse in English, the latter in the vernacular
made his sentiments known. It was not true that he was carrying a firearm because
accused does not own any. He was then in possession of a stick which he intended to
scare the fowls with. On cross-examination, accused owned up to the irritation he felt
when he spotted the loose ducks of Weismaeir at his rice field. He got angry at the ducks
as well as to the owners. When the Court inquired from accused about the number of
times he talked to Weismaeir about his ducks getting loose, he answered there was none
because he could not converse with him in English. It was Martinez to whom he referred
the matter about putting the ducks in proper cage in order to prevent escape.
Still in defense of the accused, witness Olympio Codiamat (Codiamat) was
presented. To serve as his direct testimony, he identified his Sinumpaang Salaysay7 and
the content therewith was verified. Codiamat was with Hora at the latter’s house when he
witnessed the accused merely chased after the loose ducks of Weismaeir with a wooden
stick. This happened after Hora spotted the ducks eating his planted palay. He next saw
Hora run towards the house of Weismaeir where he shouted, “No saanyo ikulong dagita
pato yo, patayek amin ida.” That after the outburst, accused returned to his house. On
cross-examination, he agreed with the proposition that accused was angry when he run
towards the house of Weismaeir.
To corroborate the testimony of Codiamat, his co-affiant Marvin Estigoy was
presented in Court to identify the same Sinumpaang Salaysay as Codiamat. After
affirming its content, it served as his direct testimony in Court. On cross-examination, he
agreed with the prosecution that Hora was angry and serious when he confronted
Weismaeir about the loose ducks. Like Hora and Codiamat, he insisted that there was no
gun shooting that transpired during the confrontation. Codiamat was in a position to

5
Exhibit 1, Kontra Salaysay dated September 10, 2018, Records, p. 13
6
id
7
Exhibit 2, Sinumpaang Salaysay dated September 10, 2018, Records, p. 15

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Crim. Case No. 9130
People vs. Enrico Hora
For: Attempted Homicide
DECISION

witness what he testified on because from the balcony of the house of Hora, one could
see the farms surrounding it including that of Hora’s.

III. Conclusion

The Court’s Evaluation of the Evidence.

In the context of the present charge of Attempted Homicide, words are not
weapons which, if utilized, signifies intent to kill. This holds true even for the harshest
words that wreak emotional havoc as horrific as atomic bomb. It was thus crucial for the
prosecution to establish with certainty intent to kill on the part of the accused to bring the
case within the ambit of Attempted Homicide. To do so, proof of the weapon utilized
with propensity to kill makes or breaks this case. More so, because private complainant
did not sustain injury which often times is telling of the kind of assault weapon used.

As held in Rivera vs. People8: An essential element of murder and homicide,

whether in their consummated, frustrated or attempted stage, is intent of the offenders to
kill the victim immediately before or simultaneously with the infliction of injuries. Intent
to kill is a specific intent which the prosecution must prove by direct or circumstantial
evidence, while general criminal intent is presumed from the commission of a felony by
dolo.

After all, it is settled that "[i]ntent to kill cannot be automatically drawn from the
mere fact that the use of firearms is dangerous to life."9 Rather, "[a]nimus
interficendi  must be established with the same degree of certainty as is required of the
other elements of the crime. The inference of intent to kill should not be drawn in the
absence of circumstances sufficient to prove such intent beyond reasonable doubt."10
(underscoring supplied for emphasis)

What befuddles the Court is the utter lack of evidence to substantiate the claim
that accused tried to take the life of the victim with use of gun, other than the incredulous,
if not contradictory, testimonies of Weismaier and Martinez. This despite the
opportunity, ease, and facility to investigate and prove the act further. It was undisputed
that policemen as well as barangay officials trooped to the scene of the shooting moments
after it happened. Given the report that at least two gun shots have been fired, physical
evidence could have been replete and locatable on site if such claim was truthful. There
were no slugs or bullet shells recovered. Neither were there reports or pictures of
structures hit by bullets. Moreover, given the report of shooting in the area with the very
identity of the accused known to policemen, at the very least, they could have checked on
him whether or not he owned a gun and made the necessary inquiries. Much to the
puzzlement of the Court, Martinez testified that the policemen apparently sought for Hora
but found him sleeping due to drunkenness. Basing from the report entered into the
police blotter book, the Certification11 attached to the record, no further investigation
about the weapon used was made. All the foregoing clouds the mind of the Court as to
the existence of the gun. What is certain is the lack of intent to kill on the part of the
accused.

Compounding the woes of the prosecution, the testimony of Weismaier leaves

much to be desired. He was shaky on material points. Firstly, the dissonance between
8
G.R. No. 166326, January 25, 2006, 480 SCRA 188, 196-197.
9
Dado v. People, 440 Phil. 521, 538 (2002); citing People v. Villanueva, 51 Phil. 488, 491 (1928). 
10
Id
11
Exhibit C, Certification dated August 3, 2019, Records, p. 8

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Crim. Case No. 9130
People vs. Enrico Hora
For: Attempted Homicide
DECISION

his prior written testimony and open court declaration anent the utterance of Hora. Was it
“Do you like this? You want to die?” or “Do you like death?” Either way, the Court
would still be dubious that accused could have made such threat in English given the
admission of Weismaier that Hora’s inability to speak English made communication
difficult, if not impossible, between them. Moreover, Hora and his witnesses Codiamat
and Estigoy, were in unison that he spoke in Ilocano threatening to kill the rogue ducks,
not the owners. Hora, too, testified that he never had any occasion to talk to Weismaier
due to language barrier. That includes verbal threats. Secondly, he was inconsistent
about the number of gun shots heard by him. Initially, he was certain he heard gun shots
fired twice while running towards the house. On further examination, he could only
confirm the first shot. He was not sure about the succeeding shot/(s) because he was
running. Ditto, he flipped-flopped about the moment when the shots were fired. Was it
before he run for cover or during?

Xxxx

ATTY. BAGUIDUDOL

Q. And as you were running your eyes were towards the house,
correct?
A. Yes, sir.

Q. And you claimed here that his firearm fired two (2) times, do you
remember stating that?
A. He fired two (2) times? Yes, before I was running.

Q. Before you were running?

A. I have no reason to run.

Q. You are now stating before this Honorable Court that before you
ran, he fired his firearm?
A. Yeah.

Xxxx

The above responses barely inspire credence. On the contrary, his hesitations and
inconsistencies are indicators that he fibbed or exaggerated his narration of the incident.

The testimony of Martinez did more damage than support to the earlier account of
Weismaier. She testified that while inside the house, he already heard Hora threatening
Weismaier repeatedly in English words: “Do you like this? You want to die?” and then a
single gunshot. When she opened the door to check what was happening, he saw
Weismaier dashing for cover towards the house. She saw Hora pointing the gun at
Weismaier and, while repeatedly threatening him with same words, fired the gun several
times. By curt comparison, inconsistencies on material points are rife. That Hora fired
the gun several times reeks of exaggeration too, in view of the lack bullet shells or gun-
related damages recovered and/or reported in the area despite being swarmed by
authorities whom they summoned there.

In categorical fashion, the Court inquired from Weismaier if after the shooting
incident, policemen arrived at the place to investigate, he answered in the negative. He
was to be contradicted by Martinez who in her written affidavit testified that: “xxx That
at around 8:00 PM of July 29, 2018 after the responding policemen left our place, Enrico
Hora came out board on his motorcycle hearing towards south, when he returned he stop

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Crim. Case No. 9130
People vs. Enrico Hora
For: Attempted Homicide
DECISION

in front of our house for almost five minutes and accelerating his motorcycle to create
loud noise and to make my live-in partner terrified xxx.”12 (Underscoring supplied)

This she affirmed in open Court, viz:

Xxxx

ATTY. BAGUIDUDOL

Q. Now, after what happen, you also stated here that barangay
officials or even the Police Officers, they arrived to assist you,
correct?
A. Yes, sir.

Q. Now, when the barangay officials and police officers arrived, you
did not try..you did not request the barangay officials to call Mr.
Enrico Hora for you to have conference?
A. I told them, Sir.

Q. What happened after that, Madam Witness?

A. The police officers informed me, Sir, that Mr. Hora was already
sleeping because he was drunk.13

Xxxxx

The dubious narration of prosecution witnesses in proving the elements of the

crime causes hesitation on the Court to rule a conviction. As doubt abounds, they should
be taken in accused’s favour.

Conviction in criminal actions demands proof beyond reasonable doubt. Rule 133,
Section 2 of the Revised Rules on Evidence states:

Section 2. Proof beyond reasonable doubt. - In a criminal case, the

accused is entitled to an acquittal, unless his guilt is shown beyond
reasonable doubt. Proof beyond reasonable doubt does not mean
such a degree of proof as, excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced mind.

While not impelling such a degree of proof as to establish absolutely impervious

certainty, the quantum of proof required in criminal cases nevertheless charges the
prosecution with the immense responsibility of establishing moral certainty, a certainty
that ultimately appeals to a person's very conscience. While indeed imbued with a sense
of altruism, this imperative is borne, not by a mere abstraction, but by constitutional
necessity:

This rule places upon the prosecution the task of establishing the
guilt of an accused, relying on the strength of its own evidence, and
not banking on the weakness of the defense of an accused.
Requiring proof beyond reasonable doubt finds basis not only in the
due process clause of the Constitution, but similarly, in the right of an
accused to be "presumed innocent until the contrary is proved."
"Undoubtedly, it is the constitutional presumption of innocence that
lays such burden upon the prosecution." Should the prosecution fail
to discharge its burden, it follows, as a matter of course, that an

12
Exhibit B, Id.
13
TSN, Testimony of Jessel Q. Martinez, p. 9

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Crim. Case No. 9130
People vs. Enrico Hora
For: Attempted Homicide
DECISION

accused must be acquitted. As explained in Basilio v. People of the

Philippines:

We ruled in People v. Ganguso:

An accused has in his favor the presumption of innocence which the

Bill of Rights guarantees.  Unless his guilt is shown beyond
reasonable doubt, he must be acquitted. This reasonable doubt
standard is demanded by the due process clause of the Constitution
which protects the accused from conviction except upon proof
beyond reasonable doubt of every fact necessary to constitute the
crime with which he is charged. The burden of proof is on the
prosecution, and unless it discharges that burden the accused need
not even offer evidence in his behalf, and he would be entitled to an
acquittal. Proof beyond reasonable doubt does not, of course, mean
such degree of proof as, excluding the possibility of error, produce
absolute certainty. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced mind. The
conscience must be satisfied that the accused is responsible for the
offense charged.

Well-entrenched in jurisprudence is the rule that the conviction of the

accused must rest, not on the weakness of the defense, but on the
strength of the prosecution. The burden is on the prosecution to
prove guilt beyond reasonable doubt, not on the accused to prove his
innocence.14

WHEREFORE, on the ground of reasonable doubt, the Court maintains the

constitutional presumption of innocence on accused Enrico Hora and thus ACQUITS him
of the crime charged.

SO ORDERED.

Promulgated this 5th of November, 2019 at Tayug, Pangasinan.

BRYAN JASPER D. SOLIS

Presiding Judge

14
Macayan, Jr. y Malana v. People, G.R. No. 175842, March 18, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/20l5/march2015/17 5842.pdt> 7-8 [Per J. Leonen, Second Division], citing CONST., art. Ill, sec. 1; CONST.,
art. Ill, sec. 14 (2); People of the Philippines v. Solayao, 330 Phil. 811, 819 (1996) [Per J. Romero, Second Division]; and Basilio
v. People of the Philippines, 591 Phil. 508, 521-522 (2008) [Per J. Velasco, Jr., Second Division].

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