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FIRST DIVISION

[G.R. No. 140344. August 18, 2000

SOLOMON RABOR, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

KAPUNAN, J.: chanrobles virtual law library

Through this petition for review on certiorari, Solomon Rabor (petitioner) seeks to reverse and set aside the Decision, dated 11 March 1997, of the Court of Appeals in CA-G.R. CR No. 11542 which affirmed the judgment of the Regional Trial Court, Branch 13 of Davao City finding petitioner guilty beyond reasonable doubt of the crime of Frustrated Murder. Likewise sought to be reversed and set aside is the Resolution, dated 7 September 1999, of the appellate court denying petitioners motion for reconsideration. chanrobles virtual law library

The Information filed against petitioner reads as follows: chanrobles virtual law library

That on or about August 17, 1981, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a bolo, with treachery and evident premeditation and with intent to kill, wilfully, unlawfully and feloniously attacked, assaulted and hacked with said weapon one Hikaru Miyake, thereby inflicting injuries upon the latter, the following injuries, to wit: chanrobles virtual law library

INCISED WOUND, POSTERIOR TEMPORAL AREA (L) 1.5 CM. LONG, 2-3 MM. DEEP. chanrobles virtual law library

INCISED WOUND SUPRASCAPULAR AREA (L) 12 CM. LONG, 5-6 CM. DEEP. chanrobles virtual law library

INCISED WOUND, BACK OF THE NECK 10-11 CM. LONG, 4-5 MM. DEEP. chanrobles virtual law library

INCISED WOUND (L) LUMBAR REGION 6 CM. LONG, 4-5 MM. DEEP. chanrobles virtual law library

INCISED WOUND (R) LUMBAR AREA 8 CM. LONG, 3 MM. DEEP. chanrobles virtual law library

INCISED WOUND, POSTEROLATERAL ASPECT (L) ELBOW, 6 CM. LONG, 3-4 CM. DEEP WITH CHIP FRACTURE OF LATERAL EPICONDYLE OF THE HUMEROS (L). chanrobles virtual law library

thus performing all the acts of execution which should have produced the crime of murder as a consequence but nevertheless, did not produce it by reason of cause independent of his will of said accused, that is because of the timely and able medical assistance immediately rendered to the said Hikaru Miyake. chanrobles virtual law library

Contrary to law.[1 chanrobles virtual law library

At his arraignment, petitioner pleaded not guilty. Trial ensued. The prosecutions case, based chiefly on the testimony of the victim, Hikaru Miyake,[2 is as follows: chanrobles virtual law library

On 17 August 1981, at around 9 oclock in the evening, Hikaru Miyake, a Japanese national, residing with his Filipina wife and children in Gem Village, Ma-a, Davao City was taking his usual Japanese-style bath in a drum behind his house. As he soaked his body inside the drum filled with warm water, he heard a sound which made him turn to the direction where it came from. Miyake sensed that there was something wrong, so he hurriedly got out of the drum. He then saw petitioner about one and a half meters away rushing towards him with a bolo. Petitioner attacked Miyake who fought and grappled with the former for the possession of the bolo. The struggle lasted for about two (2) minutes. chanrobles virtual law library

Petitioner fled when he lost possession of the bolo. As a result of the attack, Miyake sustained injuries on the different parts of his body. Miyakes security guard arrived to give assistance to his employer. The security guard saw petitioner flee towards the direction of his house. Miyake was immediately brought to the Brokenshire Hospital where he was confined for ten (10) days. chanrobles virtual law library

Miyake further testified that petitioner and his wife used to perform services to his (Miyakes) family. Petitioner was hired to bring the Miyake children to their school while petitioners wife gave them piano lessons. This cordial relationship between Miyake and petitioner, however, abruptly ended when their respective wives quarreled with each other over a sum of money which Mrs. Miyake loaned to petitioners wife. Since then, petitioner became hostile towards the Miyakes. chanrobles virtual law library

On one occasion, petitioner threw stones at the house of Miyake. In the afternoon of that same day, Miyake went to his (petitioners) house, which was just about fifty (50) meters away, to try to patch things up with him. Nonetheless, on account of the strained relations between them, Miyake terminated the services of petitioner and his wife. Thereafter, Petitioner, while riding on his motorcycle, would stop in front of the Miyake residence and shout, I want to fight and I will kill you. Miyake ignored these threats to avoid any trouble. Then came that fateful day of 17 August 1981. chanrobles virtual law library

In his defense, petitioner interposed alibi. He claimed that on 17 August 1981, at about 5 oclock in the afternoon, he met Vicente Panes while he (petitioner) was buying a newspaper at the corner of Bolton and San Pedro Streets in Davao City. Panes asked petitioner to accompany him to Sigaboy, Governor Generoso, Davao Oriental to get coconut seedlings. Petitioner readily agreed and after obtaining permission from his wife, he went to Sigaboy with Panes. They arrived in Sigaboy at around 9 oclock in the evening. From there, they traveled another thirty (30) kilometers on motorcycle to reach the place of Fernando Perez in Luzon, Governor Generoso, Davao Oriental where they were supposed to get the seedlings. When they arrived in Luzon, however, Perez was not around. They decided to stay there and wait for Perez. They waited for a few days as Perez arrived in Luzon only on 30 August 1981. Petitioner and Panes returned to Davao City on that same day at around 3 or 4 oclock in the afternoon.[3 chanrobles virtual law library

Vicente Panes testified for the defense. He substantially corroborated petitioners alibi, i.e., he (petitioner) was in Sigaboy, Governor Generoso, Davao Oriental from 17 August 1981 up to 30 August 1981. The two of them were there together to get coconut seedlings from Panes brother-in-law.[4 Emma Rabor, wife of petitioner, also claimed that petitioner was in Sigaboy, Governor Generoso, Davao Oriental at the time.⁵ chanrobles virtual law library

After trial, the court a quo rendered judgment convicting petitioner of the crime of frustrated murder. The dispositive portion of the judgment reads as follows: chanrobles virtual law library

WHEREFORE, the accused Solomon Rabor is found guilty beyond reasonable doubt as principal of the crime of Frustrated Murder and he is hereby sentenced to suffer an indeterminate sentence for four years, two months and one day of prision correccional, as its minimum, to ten years and one day of prision mayor, as its maximum, and to pay the victim Hikaru Miyake the total sum of P12,000.00 for actual, moral and exemplary damages, plus costs. chanrobles virtual law library

SO ORDERED.[6 chanrobles virtual law library

Petitioner appealed his conviction to the Court of Appeals. The appellate court, upon review of the records, affirmed the judgment of the trial court. The dispositive portion of the CA decision reads as follows: chanrobles virtual law library

WHEREFORE, the decision of the court a quo, finding the accused guilty of the offense of frustrated murder is AFFIRMED.⁷ chanrobles virtual law library

Petitioner filed a motion for reconsideration thereof but the same was denied for lack of merit.[8 chanrobles virtual law library

In this petition for review on certiorari, petitioner raises the following issues: chanrobles virtual law library

A. WHETHER OR NOT THE DECISION OF THE COURT OF APPEALS FINDING THE PETITIONER GUILTY OF FRUSTRATED MURDER IS CONTRARY TO LAW; chanrobles virtual law library

B. WHETHER OR NOT THE MEDICAL CERTIFICATE PRESENTED BY THE PROSECUTION IS HEARSAY. chanrobles virtual law library

C. WHETHER OR NOT THE CONCLUSION OF THE COURT OF APPEALS IN THE APPLICATION OF EVIDENT PREMEDITATION IN THE INSTANT CASE IS A FINDING GROUNDED ON SPECULATION, SURMISES, CONJECTURES, AND IS MANIFESTLY MISTAKEN. chanrobles virtual law library

D. WHETHER OR NOT THE COURT OF APPEALS IN DISREGARDING THE ALIBI OF THE PETITIONER HAS DECIDED QUESTIONS OF SUBSTANCE NOT IN ACCORD WITH LAW AND THE APPLICABLE DECISION OF THE HONORABLE COURT. chanrobles virtual law library

E. WHETHER OR NOT THE PROSECUTION IS GUILTY OF SUPRESSION OF EVIDENCE.⁹ chanrobles virtual law library

The petition is partly meritorious. chanrobles virtual law library

The first three issues shall be discussedintly as they are interrelated. They all pertain to petitioners contention that he was wrongly convicted of the crime of frustrated murder. Petitioner maintains that the wounds sustained by the victim were not fatal; hence, the crime committed was merely attempted not frustrated. Further, the qualifying circumstance of evident premeditation was not allegedly sufficiently proven in this case. Petitioner thus is of the view that the crime should be homicide and not murder. chanrobles virtual law library

Contrary to petitioners insistence, some of the wounds inflicted on the victim were fatal. This was sufficiently established by the testimony of Dr. Bernardo Adolfo who, together with Dr. Virgilio S. Durban, Jr., attended to the victim when he was confined at the Brokenshire Hospital after the hacking incident. As stated in the trial courts decision: chanrobles virtual law library

Dr. Adolfo testified that the first wound may not be fatal, it is at the back of the left ear; the second wound could be fatal, it is at the back left side; the third wound may not be fatal, it is at the back of the neck; the fourth wound may not be fatal, it is at the left waist; the fifth wound may not be fatal, it is at the right back above the waist; and the sixth wound at the posterior left elbow 6 cm. long, 3-4 cm. deep with chip fracture of lateral epicondyle of the Humerus (L), is fatal. If no medical treatment were applied the victim could have died.[10 chanrobles virtual law library

Given the foregoing testimony that Miyake could have died if not for the timely medical treatment, the trial court correctly held that the stage of execution of the crime was frustrated. A felony is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.[11 chanrobles virtual law library

There is merit, however, to petitioners assertion that the trial court and the CA erroneously appreciated evident premeditation in the commission of the offense. In holding that petitioner committed the offense with evident premeditation, the trial court considered his act prior to the hacking incident of shouting at Miyake, I want to fight and I will kill you. According to the trial court, this showed that petitioner had long planned to kill Miyake. chanrobles virtual law library

On the other hand, the CA merely made a cursory statement that in qualifying the crime as frustrated murder the trial court considered the circumstance of evident premeditation and not treachery[12 without elaborating on the bases for the appreciation of the qualifying circumstance of evident premeditation. chanrobles virtual law library

In order that evident premeditation may be properly considered in imposing the proper penalty, the following requisites must be established: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused clung to his determination; and (c) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.¹³ chanrobles virtual law library

None of these requisites can be inferred from the facts of this case. For one, the records do not show the time when petitioner resolved to commit the crime. The date and, if possible, the time when the offender determined to commit the crime is essential, because the lapse of time for the purpose of the third requisite is computed from date and time.[14 Absent this first requisite, evident premeditation was thus incorrectly appreciated in this case. chanrobles virtual law library

Further, the second requisite is wanting. The fact that petitioner was heard to have shouted at Miyake, I want to fight and I will kill you does not necessarily prove evident premeditation without showing that petitioner performed acts manifestly indicating that he clung to his determination. Petitioners threat, unsupported by other evidence which would disclose his true criminal state of mind, will only be construed as a casual remark naturally emanating from a feeling of rancor and not a resolution of the character involved in evident premeditation.[15 chanrobles virtual law library

Evident premeditation having been wrongly appreciated in this case and there being no other qualifying circumstance established during the trial, the Court now holds that the crime committed in this case is frustrated homicide. chanrobles virtual law library

With respect to the fourth issue raised by petitioner, i.e., the appellate court erred in disregarding his defense of alibi, suffice it to say, that this defense cannot prevail over the victims positive identification of petitioner as the person who attacked him.[16 Miyake could not have been mistaken about petitioners identity as he is no stranger to the former. They knew each other quite well. Miyake identified petitioner in a categorical, straightforward and consistent manner, thus:

¹ Records, p. 1.

² TSN, Testimony of Hikaru Miyake, 12 July 1983, pp. 15-23.

³ TSN, Testimony of Solomon Rabor, 20 February 1986, pp. 2-5.

⁴ TSN, Testimony of Vicente Panes, 16 June 1986, pp. 2-5.

⁵ TSN, Testimony of Emma Rabor, 6 December 1986, pp. 2-3.

⁶ Decision, Regional Trial Court, Branch 13 of Davao City, Criminal Case No. 7022, p. 16; Records, p. 172.

⁷ Rollo, p. 45.

⁸ Id., at 48.

⁹ Id., at 12-13.

¹⁰ Note 6, at 8; Records, p. 164. Emphasis ours.

¹¹ Article 6, Revised Penal Code.

¹² Note 7, at 43.

¹³ People vs. Espina, G.R. No. 123102, 29 February 2000, p. 11; People vs. Gutierrez, Jr., 302 SCRA 643, 644 (1999); People vs. Realin, 301 SCRA 495, 513 (1999).

¹⁴ REYES, REVISED PENAL CODE, BOOK ONE 385 (13th ed., 1993).

¹⁵ People vs. Fuentesuela, 73 Phil. 553, 554 (1942).

¹⁶ People vs. Bermudez, 309 SCRA 124,135 (1999); People vs. Alshaika, 261 SCRA 637 (1996); People vs. Balamban, 264 SCRA 619 (1996).

¹⁷ Note 2, at 19.

¹⁸ Id., at 23.

¹⁹ People vs. De los Santos, 295 SCRA 583, 604 (1998); People vs. Pabalan, 262 SCRA 574 (1996).

²⁰ Note 7, at 79.

²¹ People vs. Martinez, 205 SCRA 666, 674-675 (1992); People vs. Araja, 105 SCRA 133 (1992).