[G.R. NO. 168827 : April 13, 2007]
BENJAMIN P. MARTINEZ, Petitioner, v. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.
D E C I S I O N
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision1 and the Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 25436, affirming with modification the trial court's judgment finding Benjamin P. Martinez guilty beyond reasonable doubt of frustrated homicide.
Dean Dongui-is was a teacher at the Tubao National High School, La Union. Petitioner Benjamin Martinez was the husband of Dean's co-teacher, Lilibeth Martinez. Petitioner eked out a living as a tricycle driver.
On October 28, 1998, Dean and his wife Freda filed a complaint for damages against the spouses Martinez in the Municipal Circuit Trial Court (MCTC) of Tubao, La Union. They alleged that in March 1998, petitioner, a suitor of Elvisa Basallo, had been peddling false reports that Dean and Elvisa had illicit relations; he even told Freda that Elvisa was Dean's mistress. This led to a quarrel between Dean and Freda, and the latter was hospitalized for her heart ailment. Dean requested Lilibeth to stop her husband from spreading lies, and she replied that Elvisa had been her husband's mistress. They prayed that they be awarded moral and exemplary damages and litigation fees in the total amount of
For her part, Elvisa also filed a complaint against the spouses Martinez in the MCTC of Tubao for damages anchored on Article 26 of the New Civil Code. She alleged that on several occasions, petitioner went to the Shaltene Pawnshop and Pharmacy where she was employed and accused her of having an illicit affair with Dean; on one occasion, he held her hand and forcibly pulled her outside, which caused her to scratch his face and run after him with a knife; he also told her husband's cousin, Willy Ordanza, that she had an illicit affair with Dean; Willy, in turn, told her mother-in-law about it; petitioner relayed the same rumors to her co-worker, Melba Dacanay, and his wife spread to people in the Municipality, including Ramil Basallo, her brother-in-law. Elvisa also prayed for damages in the total amount of
The spouses Martinez filed a motion to dismiss the complaint in Civil Case No. 226 which was heard in the morning of February 3, 1999. The court denied the motion.
At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative (TCC) office to pick up the dividend certificate of his wife who was a member of the cooperative. He left the building and walked to his car which was parked in front. As he did, he read the dividend certificate of his wife. Dean was about a step away from an L-300 van which was parked in front of the building when petitioner, armed with a bolo, suddenly emerged from behind the vehicle and stabbed him on the left breast. Dean instantly moved backward and saw his assailant. Dean fled to the bank office and was able to gain entry into the bank. Petitioner ran after him and upon cornering him, tried to stab him again. Dean was able to parry the blow with his right hand, and the bolo hit him on the right elbow. Dean fell to the floor and tried to stand up, but petitioner stabbed him anew on his left breast.5 Dean managed to run to the counter which was partitioned by a glass. Unable to get inside the counter, petitioner shouted at Dean: "Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen (You kneel down because I will really kill you now this day)."6
Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about 100 meters away. He was informed that a fight was going on in the bank. He rushed to the place on board the police car. When he arrived at the scene, he saw Barangay Captain Rodolfo Oller and his son Nicky Oller.7 Nicky handed to him the bolo which petitioner had used to stab Dean.8 He and Rodolfo brought petitioner to the police station. On the way, they passed by the loading area of tricycles, about 40 meters away from the police station. Petitioner shouted: "Sinaksak kon pare, sangsangaili laeng isuna saan isuna to agari ditoy Tubao (I stabbed him, he is just a visitor so he should not act like a king here in Tubao)." SPO1 Sulatre placed Benjamin in jail. Benjamin kept on shouting: "Napatay kon, napatay kon (I killed him, I killed him)."9
In the meantime, PO3 Valenzuela brought Dean to the Doña Gregoria Memorial Hospital in Agoo, La Union. The victim was transferred to the Ilocos Regional Hospital (IRH) in San Fernando, La Union where Dean was examined and operated on by Dr. Nathaniel Rimando, with the assistance of Dr. Darius Pariñas.10 Dean sustained two stab wounds in the anterior chest, left, and a lacerated wound in the right elbow, forearm. Had it not been for the blood clot that formed in the stab wound on the left ventricle that prevented the heart from bleeding excessively, Dean would have died from profuse bleeding.11
On February 7, 1999, Dean gave a sworn statement to SPO1 Sulatre.12 However, he deferred swearing to the truth of his statement before the Public Prosecution because SPO1 Sulatre was waiting for the permanent medical certificate to be issued by the hospital. SPO1 Sulatre deferred the execution and submission of an arrest report also pending the issuance of the medical certificate.
Instead of issuing a permanent medical certificate, the IRH issued on February 8, 1999 the following Temporary Certificate:
CONTRARY TO LAW.17
On October 13, 2000, the accused, assisted by counsel, was arraigned and entered a plea of not guilty.
The Case for Petitioner
Petitioner declared that he merely defended himself against Dean's assault. Dean was so jealous of him because his mistress, Elvisa, had also been his mistress. Unknown to Dean, he had already terminated his relation with Elvisa sometime in March 1997 when his wife Lilibeth discovered the illicit relationship.18 Dean also suspected that he (petitioner) had been sending letters to his (Dean's) wife relative to the illicit relationship with Elvisa. Dean also suspected that he was responsible for the raid conducted by the Criminal Investigation Service (CIS) of his house for possession of a gun.19 As a result, Dean filed a civil complaint against him for damages, docketed as Civil Case No. 266. Before and after the filing of the civil case, Dean had hurled invectives at him in the presence of Joselito Madriaga and other tricycle drivers.20 Dean even attempted to sideswipe him with his car.21
Petitioner declared that the criminal charge against him was Dean's concoction, and intended solely to harass him. He narrated that he went to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had earlier received a note from the cooperative to get the interest on her deposit.22 He parked his tricycle in front of the building on the left side of the railing going to the entrance of the cooperative.23 Dean's car was parked on the right side of the railing.24 On his way, he met his 82-year-old uncle, Godofredo Sarmiento, who was also on his way to the cooperative to update his passbook because he was intending to apply for a loan.25 He told Godofredo that they could go to the TCC together. When they were about to pass through the entrance door, Dean was about to exit from the cooperative. Dean thought that he was blocking his way and shouted invectives at him and his uncle; Dean also spat on his breast and face; and threw a punch which he was able to parry with his left elbow.26 Dean kept attacking him, forcing him to move backward through the railing and towards his tricycle. Dean punched him again but he managed to parry the blow with his bolo which he took from his tricycle. He stabbed Dean on his right elbow.27 He swung his bolo at Dean which forced the latter to run back into the office. He entered the office and stood by the entrance door to see if Dean would get a weapon. Dean continued hurling invectives at him but was later pacified by Patricio Alterado, an employee of the cooperative.28 When Barangay Captain Oller arrived, he surrendered, along with his bolo.29 He never boasted on the way to the police station that he had killed Dean.30
Godofredo partially corroborated the testimony of petitioner. He declared that Dean spat on the face of petitioner.31 By the time Dean and petitioner reached the place where the latter's tricycle was parked, he had left; he was afraid of being involved.32 He did not report the incident to the police authorities.
Joselito Madriaga testified that he and petitioner were bosom buddies with a long history of friendship. Dean had an axe to grind against petitioner because the two maintained a common mistress, Elvisa.33
The Trial Court's Decision
On April 30, 2001, the trial court rendered judgment34 convicting petitioner of frustrated homicide. The fallo of the decision reads'
WHEREFORE, this Court, after a consideration of the evidence adduced in this case, finds accused BENJAMIN MARTINEZ guilty of the crime of Frustrated Homicide as principal. Neither aggravating circumstance nor mitigating circumstance has been appreciated. Applying the Indeterminate Sentence Law, accused Benjamin Martinez is sentenced to suffer the penalty of imprisonment ranging from FOUR (4) YEARS OF PRISION CORRECTIONAL MEDIUM as minimum to EIGHT (8) YEARS and ONE (1) DAY OF PRISION MAYOR MEDIUM as maximum. He is also ordered to pay DEAN DONGUI-IS the amount of ONE HUNDRED FIFTY THOUSAND (
The trial court gave credence and full probative weight to the testimony of Dean, Dr. Rimando, SPO1 Sulatre, and the documentary evidence of the prosecution. The court rejected petitioner's twin defenses of denial and self-defense. It declared that his version lacked strong corroboration, and that his witnesses (a close relative and a friend) were biased.
Finding that the prosecution failed to prove the qualifying circumstances of treachery, the trial court convicted petitioner of frustrated homicide. The court declared that the crime involved a "love triangle,"36 and considered the protagonists' history of personal animosity. There was no evident premeditation because Dean had been "forewarned" of the attack.37
On appeal before the CA, petitioner raised the following issues:
Maintaining his innocence, petitioner claimed that he had merely acted in self-defense when Dean insulted him, spat on his face and assaulted him with fist blows on a mere suspicion that he (petitioner) was blocking Dean's way through the exit door of the cooperative.
The Decision of the Court of Appeals
On February 21, 2005, the CA rendered judgment affirming the assailed decision of the RTC with modification. The fallo reads'
WHEREFORE, the appealed Decision dated April 30, 2001 of the trial court is affirmed, subject to the afforested modification of the minimum period of the sentence. Loss of earnings in the amount of
The CA ruled that the case is more of a "retaliation" rather than a case of self-defense. It declared that Dean sustained two fatal stab wounds in his left chest, a fact which belied petitioner's defense and confirmed the prosecution's theory that he purposely and vigorously attacked the victim. The CA ruled that when an unlawful aggression which has begun no longer exists, the one making the defense has no more right to kill or even wound the aggressor. The appellate court pointed out that in the case before it, the supposed unlawful aggression of Dean ceased from the moment he retreated inside the cooperative building; there was no need for petitioner to follow Dean inside the building and stab him with his bolo. Petitioner should have simply stood his ground and walked away.
In discounting the qualifying circumstances of treachery and evident premeditation, the CA simply adverted to the stipulation of facts contained in the Pre-Trial Order dated December 20, 2000 issued by the RTC, stating "[t]hat the accused stabbed the private complainant when the latter assaulted and boxed him (accused)."40 Petitioner's plea of voluntary surrender was not appreciated in his favor. However, the appellate court modified the minimum sentence imposed by the trial court to four (4) years and two (2) months of prision correctional, as minimum.
As to damages, the CA deleted the RTC's award of loss of earning capacity and attorney fees, holding that they lack factual and legal basis. It, however, increased the award of actual damages from
Before this Court, petitioner assigns the following errors allegedly committed by the CA '
Petitioner insists that the criminal complaint filed by SPO1 Sulatre was a fabrication because the latter never conducted a formal investigation of the stabbing incident or of any witness to the incident. The police officer filed the criminal complaint against petitioner on the basis of a sworn statement by Dean which was taken only on March 10, 1999, long after the criminal complaint was filed in the MCTC. Worse, when he testified on cross-examination, Dean admitted that he did not see the questions prepared by SPO1 Sulatre at the hospital, nor his answers to the policeman's questions. The affidavit dated March 10, 1999 was not typewritten in the hospital, and he was not present when the affidavit was typewritten in the police station. Thus, the testimony of the victim was self-serving and uncorroborated, tailored solely to support the charge filed by SPO1 Sulatre.
In its comment on the petition, respondent, through the Office of the Solicitor General (OSG), avers that the issues raised by petitioner are factual, hence, inappropriate in a Petition for Review on Certiorari in this Court.
The OSG maintains that the Revised Rules of Criminal Procedure does not require that the affidavit of the offended party or the witnesses to the crime charged be appended to the criminal complaint filed in court. Moreover, the issue of the validity of the criminal complaint in the MCTC had became moot and academic after the Information was filed in the trial court, and when petitioner was arraigned, assisted by counsel, and entered a plea of not guilty.
It insists that Dean's testimony, by itself, is sufficient to warrant the conviction of petitioner for frustrated homicide. Petitioner's conviction may be anchored on Dean's testimony since the trial court found it credible and entitled to full probative weight. Petitioner failed to prove his plea of self-defense by clear and convincing evidence.
The Court's Decision
The petition is denied for lack of merit.
Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure43 provide:
Sec. 3. Procedure. - The preliminary investigation shall be conducted in the following manner:
It bears stressing that the officer conducting the preliminary investigation has to determine whether to dismiss the complaint outright based on the averments of the complaint and the appendages thereof if it finds no ground to continue with the investigation. If he finds ground to continue with the investigation of the accused, a subpoena should be issued to the accused, appending thereto a copy of the complaint and the supporting affidavits. Unless the affidavits of the witnesses named in the complaint and supporting documents are appended to the complaint, the investigating officer may not be able to determine whether to dismiss the complaint outright or to conduct an investigation and issue a subpoena to the accused.44
We agree with petitioner that the criminal complaint filed by SPO1 Sulatre with the MCTC on March 10, 1999 was defective. As gleaned from the RTC records, the criminal complaint was not accompanied by any medical certificate showing the nature and number of wounds sustained by the victim, the affidavits of any of the witnesses listed at the bottom of the criminal complaint (particularly the victim himself), and the arrest report of SPO1 Sulatre, Brgy. Capt. Rodolfo Oller, and his son Nicky.
The MCTC had the option not to act one way or the other on the criminal complaint of SPO1 Sulatre because the latter failed to comply with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure; or to order SPO1 Sulatre to comply with the aforequoted rule; or to dismiss the complaint without prejudice to its refiling with the requisite documents. However, the MCTC opted not to act on the complaint until after SPO1 Sulatre shall have submitted the requisite affidavits/medical certificate/arrest report. When SPO1 Sulatre filed with the MCTC, on March 10, 1999, the permanent medical certificate issued by the IRH, the affidavit of Dean and his and Brgy. Capt. Oller's affidavit of arrest of petitioner, the MCTC forthwith issued a subpoena to petitioner appending thereto the said medical certificate, affidavit of Dean and the affidavit of arrest of SPO1 Sulatre.45 Hence, SPO1 Sulatre had complied with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure.
Moreover, petitioner submitted his counter-affidavit without any protest. Neither did he assail the validity of the criminal complaint or the tardy submission by SPO1 Sulatre of the medical certificate, the affidavit of Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this, petitioner was arraigned in the RTC, assisted by counsel, and entered a plea of not guilty.
On the second issue, the rulings of the trial court and the appellate court are correct. Whether or not petitioner acted in self-defense whether complete or incomplete is a question of fact,46 the well-entrenched rule is that findings of fact of the trial court in the ascertainment of the credibility of witnesses and the probative weight of the evidence on record affirmed, on appeal, by the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any justifiable reason to deviate from the said findings.47
In this case, the trial court gave no credence and probative weight to the evidence of petitioner to prove that he acted in self-defense, complete or incomplete. Petitioner failed to establish that the trial court and the appellate court misconstrued, misappropriated or ignored facts and circumstances of substance which, if considered, would warrant a modification or reversal of the decision of the CA that petitioner failed to establish clear and convincing evidence that he acted in self-defense, complete or incomplete.
Like alibi, petitioner's claim of self-defense is weak; it is also settled that self-defense is easy to fabricate and difficult to disprove. Such a plea is both a confession and avoidance.48 One who invokes self-defense, complete or incomplete, thereby admits having killed the victim by inflicting injuries on him. The burden of evidence is shifted on the accused to prove the confluence of the essential elements for the defense as provided in Article 11, paragraph 1 of the Revised Penal Code:
x x x (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. x x x49
The accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution because even if the evidence of the prosecution is weak, the same can no longer be disbelieved.50 The accused cannot escape conviction if he fails to prove the essential elements of complete self-defense.
In Garcia v. People,51 the Court defined unlawful aggression:
x x x Unlawful aggression presupposes an actual, sudden and unexpected or imminent danger on the life and limb of a person - a mere threatening or intimidating attitude is not sufficient. There must be actual physical force or a threat to inflict physical injury. In case of a threat, it must be offensive and positively strong so as to display a real, not imagined, intent to cause injury. Aggression, if not continuous, does not constitute, aggression warranting self-defense.52
Aggression, if not continuous, does not constitute aggression warranting self-defense.53 When unlawful aggression ceases, the defender no longer has any justification to kill or wound the original aggressor. The assailant is no longer acting in self-defense but in retaliation against the original aggressor.54
There can be no self-defense, complete or incomplete, unless the accused proves unlawful aggression on the part of the victim.55 Unlawful aggression is a sudden and unexpected attack or an imminent danger thereof, and not merely a threatening or an intimidating attitude.56
Petitioner failed to discharge his burden.
Neither can the RTC nor the CA be faulted for giving credence to the testimony of SPO1 Salutre. No evidence was adduced by the defense to show that he harbored any ill-motive against petitioner to charge him with such a crime. Absent any proof of improper motive, the prosecution witness who is law enforcer is presumed to have regularly performed his duty in arresting and charging petitioner.59 His testimony is thus entitled to full faith and credit. Moreover, the conviction of petitioner was not based solely on the testimony of the SPO1 Salutre. The unimpeached testimony of Dean categorically established the crime; this was corroborated by the testimony of Dr. Nathaniel Rimando.
Petitioner's argument that he should be acquitted because the criminal complaint against him was not supported by the victim's sworn statement or by an affidavit of any witness is totally untenable. This issue should have been raised during the preliminary investigation. It is much too late in the day to complain about this issue after a judgment of conviction has been rendered against him.
Contrary to petitioner's stance, the testimonies of his corroborating witnesses are unimpressive. For one, Godofredo's testimony was limited only to the alleged fact that happened outside of the cooperative building. He himself admitted that when the protagonists started fighting each other, for fear for his life, he hurriedly flagged and boarded a tricycle which revved up to the highway; it was from there that he saw petitioner slumped on his tricycle. In other words, he did not witness what transpired thereafter or how the fight ended.
Joselito's testimony did not fare any better. It was given neither credence nor weight by the trial court. And even if it had been proved that the victim was rabid against petitioner, such evidence would only have established a probability that he had indeed started an unlawful assault on petitioner. This probability cannot, however, overcome the victim's positive statement that petitioner waylaid and assaulted him without any provocation. The theory that Dean may have started the fight since he had a score to settle against petitioner is flimsy, at best. Furthermore, Joselito admitted that he was petitioner's best friend; hence, his bias cannot be discounted.
The Crime Committed by the Petitioner
Petitioner next argues that should he be convicted of any crime, it should be of less serious physical injuries only, absence the element of intent to kill. He advances the argument that the single wound suffered by the victim was not life threatening and that the latter was transferred to undergo operation in another hospital only because the medical staff where he was first rushed bungled their job. He makes much of the fact that Dr. Darius R. Pariñas who issued the Medical Certificate never testified for the prosecution.
Again, the Court is not swayed.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of the following: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.60
Petitioner insists that he had no intent to kill Dean. However, the physical evidence belies petitioner's pose.
To begin with, as between petitioner and the victim, the former had more hatred to harbor arising from the fact that the victim filed a lawsuit against him and his wife. Petitioner thus had more motive to do harm than the victim. By his own account, he and Dean had a history of personal animosity.
Secondly, petitioner was armed with a deadly 14' -inch bolo.
Thirdly, if it were true that petitioner stabbed Dean merely to defend himself, it defies reason why he had to stab the victim three times. Petitioner's claim that Dean suffered only a single non-life threatening wound is misleading. Dr. Rimando, who attended to and operated on Dean, testified that the victim sustained three (3) stab wounds, two (2) of which penetrated his heart and lung, causing massive blood clotting necessitating operation; the other lacerated Dean's his right elbow. The presence of these wounds, their location and their seriousness would not only negate self-defense; they likewise indicate a determined effort to kill.61 Moreover, physical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses.62
Neither does the non-presentation of Dr. Darius R. Pariñas, the doctor who signed the medical certificate, would dent a bit the evidence for the prosecution. This is so because Dr. Pariñas, who assisted Dr. Rimaldo during the operation of Dean, would merely corroborate Dr. Rimaldo's testimony. As such, his testimony is not indispensable.
Fourthly, from the manner the crime was committed, there can hardly be any doubt that intent to kill was present. It has been clearly established that petitioner ambushed Dean and struck him with a bolo. Dean was defenseless and unarmed, while petitioner was deadly armed.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Lastly, the words of the petitioner while he was assaulting Dean were most revealing:
Anent the allegation of negligence on the part of the medical staff of Doña Gregoria Memorial Hospital where Dean was rushed, suffice it to say that this is a new theory being foisted by petitioner. It was never raised in the two courts below and thus it will not be entertained here. At any rate, this allegation finds no support in the records of the case.
It cannot be denied that petitioner had the intention to kill Dean. Petitioner performed all the acts of execution but the crime was not consummated because of the timely medical intervention applied on the victim.
An appeal in a criminal case opens the entire case for review on any question including one not raised by the parties.66 In this regard, we find ample evidence to establish treachery. The CA's advertence to the stipulation of facts contained in the Pre-Trial Order dated December 20, 200067 is misplaced. This alleged stipulation was stricken off the record on motion of the prosecution on the ground that no stipulation of such fact was made.68
There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might take.69
In the present case, the prosecution had met the requisites for alevosia to be appreciated: (1) at the time of the attack the victim was not in a position to defend himself; and (2) that the offender consciously adopted the particular means, method, or form of the attack employed by him.70 Dean lived to tell about the swiftness of the attempt against his life:
When Dean was attacked he was unarmed. He had just exited the cooperative building and had no inkling that he would be waylaid as he made his way towards his car. Upon the other hand, petitioner was armed with a deadly 14' -inch bolo. The attacked on Dean was swift and unannounced; undeniably, petitioner's attack was treacherous.
Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it 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.
The essential elements of a frustrated felony are as follows:
A crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that is necessary to consummate the crime. However, the crime was not consummated by reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical intervention or attendance.73
The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion temporal.74 The latter penalty has a range of 12 years and 1 day to 20 years. Applying the Indeterminate Sentence Law, the maximum of the indeterminate penalty should be taken from reclusion temporal, the penalty for the crime, taking into account any modifying circumstances in its commission. The minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal. Since there is no modifying circumstance in the commission of frustrated murder, the appellants should be meted an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its medium period as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum.
Petitioner, likewise, insists that he voluntarily surrendered to Barangay Captain Rodolfo Oller. He faults the trial and appellate courts for relying on the prosecution's Affidavit of Arrest, arguing that the same is inadmissible as hearsay, the affiants not having testified to affirm their declarations.
For voluntary surrender to be appreciated, the following requisites should be present: (1) the offender has not been actually arrested; (2) the offender surrendered himself to a person in authority or the latter's agent; and (3) the surrender was voluntary. The surrender must be spontaneous, made in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because he acknowledged his guilt or he wishes to save them the trouble and expenses that would necessarily be incurred in the search and capture.75
In the case at bar, SPO1 Salutre testified that petitioner did not voluntarily surrender but was forcibly apprehended by Barangay Captain Oller, and thereafter turned over to him. Petitioner however insists that said testimony is hearsay inasmuch as SPO1 Salutre was not the person who actually arrested him. We disagree. During SPO1 Salutre's testimony, petitioner failed to object to the questions propounded to SPO1 Salutre regarding his apprehension. Consequently, he cannot now claim that SPO1 Salutre's testimony on the arrest was hearsay. Petitioner's assertion of having voluntarily surrendered to Barangay Captain Oller was not corroborated by any competent and reliable evidence. Considering the damning averments in the Affidavit of Arrest, petitioner should have at least called Barangay Captain Oller to the witness stand just to shed light on his alleged voluntary surrender.
We agree with the trial court that the qualifying circumstance of evident premeditation has not been adequately shown. To properly appreciate the same, it is necessary to establish: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to this determination; and (3) a sufficient lapse of time between the determination and the execution to allow him to reflect upon the consequences of his act.76 Since there is dearth of evidence on when petitioner first conceived of killing Dean and that he was afforded sufficient time to reflect on the consequences of his contemplated crime before its final execution, the circumstance of evident premeditation cannot be appreciated.
Civil Liabilities of Petitioner
The trial court awarded Dean the amount of
The Court awards exemplary damages in the amount of
The CA is correct in deleting Dean's claim for lost salary while recuperating, since this was not supported by evidence. However, the trial court's award of
Lastly, for the suffering Dean endured from petitioner's felonious act, the award of
IN LIGHT OF ALL THE FOREGOING, the assailed Decision is hereby AFFIRMED WITH MODIFICATION. Petitioner is hereby found guilty beyond reasonable doubt of Frustrated Murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty from nine (9) years and four (4) months of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum.
Petitioner is ordered to pay Dean Dongui-is the amount of
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