Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 198400

October 7, 2013

FE ABELLA y PERPETUA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION

On October 7, 1998, the petitioner, who at times worked as a farmer,

baker and trisicad driver, was charged with frustrated homicide in an
Information7 which reads:
That on or about September 6, 1998, at 11:00 oclock in the evening,
more or less, at Sitio Puli, Canitoan, Cagayan de Oro City, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, without any justifiable cause, did then and there willfully,
unlawfully and feloniously and with intent to kill, attack, assault, harm and
hack one, BENIGNO ABELLA y PERPETUA, with the use of a scythe,
hitting the latters neck, thereby inflicting the injury described below, to
wit:

REYES, J.:

hacking wound left lateral aspect neck; and

This is a Petition for Review on Certiorari1 from the Decision2 and

Resolution3 dated October 26, 2010 and August 11, 2011, respectively, of
the Court of Appeals CA) in CA-G.R. CR No. 00336-MIN affirming with
modifications the conviction4 by the Regional Trial Court RTC) of Misamis
Oriental, Cagayan de Oro City, Branch 39 of Fe Abella y Perpetua
petitioner) for the crime of frustrated homicide committed against his
younger brother, Benigno Abella Benigno). The RTC sentenced the
petitioner to suffer an indeterminate penalty of six 6) years and one 1)
day to eight 8) years of prision mayor as minimum, to ten 10) years and
one 1) day to twelve 12) years of prision mayor as maximum, and to pay
Benigno P100,000.00 as consequential damages, P10,000.00 for the
medical expenses he incurred, plus the costs of suit.5 The CA concurred
with the RTCs factual findings. However, the CA modified the penalty
imposed to 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 also deleted the RTCs
award in favor of Benigno of (a) P10,000.00 as actual damages
corresponding to the medical expenses allegedly incurred; and
(b) P100,000.00 as consequential damages. In lieu of the preceding, the
CA ordered the petitioner to pay Benigno P30,000.00 as moral damages
and P10,000.00 as temperate damages.6

incised wound left hand dorsal aspect thus performing all the
acts of execution which would produce the crime of homicide as a
consequence, but nevertheless, did not produce it by reason of
some cause or causes independent of the will of the accused,
that is the timely and able intervention of the medical attendance
rendered to the said victim.

Antecedent Facts

Contrary to Article 249 in relation to 250 of the RPC.8

After the Information was filed, the petitioner remained at large and was
only arrested by agents of the National Bureau of Investigation on
October 7, 2002.9
During the arraignment, the petitioner pleaded not guilty to the crime
charged. Pre-trial and trial thus proceeded.
The Prosecution offered the testimonies of: (a) Benigno;10 (b) Amelita
Abella11 (Amelita), Benignos wife; (c) Alejandro Tayrus12 (Alejandro), with
whom the petitioner had a quarrel; and (d) Dr. Roberto Ardiente 13 (Dr.
Ardiente), a surgeon from J.R. Borja Memorial Hospital, Cagayan de Oro
City, who rendered medical assistance to Benigno after the latter was
hacked by the petitioner.
The Prosecution evidence established that on September 6, 1998, at
around 11:00 p.m., Benigno was watching television in his house. A

certain Roger Laranjo arrived and asked Benigno to pacify the petitioner,
who was stirring trouble in a nearby store. Benigno and Amelita found the
petitioner fighting with Alejandro and a certain Dionisio Ybaes (Dionisio).
Benigno was able to convince the petitioner to go home. Benigno and
Amelita followed suit and along the way, they dropped by the houses of
Alejandro and Dionisio to apologize for the petitioners conduct.
Benigno and Amelita were in Alejandros house when the petitioner
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.
The petitioner wanted to enter Alejandros house, but Benigno blocked
his way and asked him not to proceed. The petitioner then pointed the
scythe, which he held in his left hand, in the direction of Benignos
stomach, while the scythe in the right hand was used to hack the latters
neck once.14 Benigno fell to the ground and was immediately taken to the
hospital15 while the petitioner ran to chase Alejandro.16 Benigno incurred
an expense of more than P10,000.00 for hospitalization, but lost the
receipts of his bills.17 He further claimed that after the hacking incident, he
could no longer move his left hand and was thus deprived of his capacity
to earn a living as a carpenter.18
Dr. Ardiente testified that Benigno sustained: (a) a "hacking wound left
lateral aspect neck 11 cm"; and (b) an "incised wound left hand dorsal
aspect 4 cm".19 Benigno was initially confined in the hospital on
September 6, 1998 and was discharged on September 23, 1998.20 From
Dr. Ardientes recollection, since the scythe used in the hacking was not
sterile, complications and infections could have developed from the big
and open wounds sustained by Benigno, but fortunately did not. 21
The defense offered the testimonies of: (a) the petitioner;22 (b) Fernando
Fernandez23 (Fernando), a friend of the petitioner; and (c) Urbano
Cabag24 (Urbano).
The petitioner relied on denial and alibi as defenses. He claimed that
from September 2, 1998 to October 2002, he and his family resided in
Buenavista, Agusan del Norte. Sitio Puli, Canitoan, Cagayan de Oro City,
where the hacking incident occurred, is about four (4) hours drive away.
Fernando testified that on September 6, 1998, he saw the petitioner
gathering woods to make a hut.25 Later in the evening, at around 5:00
p.m., Urbano spotted the petitioner drinking tuba in the store of Clarita
Perpetua.26

The RTC Ruling

On July 13, 2006, the RTC convicted the petitioner of the crime charged.
The fallo of the Judgment27 reads:
WHEREFORE, in view of the foregoing and finding the evidence
presented by the prosecution sufficient to prove the guilt of the [petitioner]
beyond reasonable doubt, judgment is rendered finding petitioner Fe
Abella GUILTY beyond reasonable doubt of the crime of Frustrated
Homicide as defined and penalized by Article 249 in relation to Article 50
and Art. 6 of the Revised Penal Code. Accordingly, petitioner Fe Abella is
hereby sentenced to suffer an indeterminate penalty of Six (6) years and
One (1) day to Eight (8) years of prision mayor as minimum to Ten (10)
years and One (1) day to Twelve (12) years of prision mayor as
maximum; to indemnify offended-party complainant Benigno Abella the
sum of Ten Thousand ([P]10,000.00) Pesos for the medical expenses
incurred; to pay the sum of ONE HUNDRED THOUSAND
([P]100,000.00) PESOS as consequential damages and to pay the costs.
SO ORDERED.28
The RTC found the petitioners defenses of alibi and denial as weak. No
disinterested witnesses were presented to corroborate the petitioners
claim that he was nowhere at the scene of the hacking incident on
September 6, 1998. Fernando and Urbanos testimonies were riddled
with inconsistencies. The RTC accorded more credence to the averments
of the prosecution witnesses, who, without any ill motives to testify
against the petitioner, positively, categorically and consistently pointed at
the latter as the perpetrator of the crime. Besides, medical records show
that Benigno sustained a wound in his neck and his scar was visible
when he testified during the trial.
The RTC awarded P10,000.00 as actual damages to Benigno for the
medical expenses he incurred despite the prosecutions failure to offer
receipts as evidence. The petitioner was likewise ordered to
pay P100,000.00 as consequential damages, but the RTC did not
explicitly lay down the basis for the award.
The petitioner then filed an appeal29 before the CA primarily anchored on
the claim that the prosecution failed to prove by clear and convincing
evidence the existence of intent to kill which accompanied the single

hacking blow made on Benignos neck. The petitioner argued that the
hacking was merely accidental especially since he had no motive
whatsoever which could have impelled him to hurt Benigno, and that the
infliction of merely one wound negates intent to kill.
The CA Ruling
On October 26, 2010, the CA rendered the herein assailed
Decision30 affirming the petitioners conviction for the crime of frustrated
homicide ratiocinating that:
Intent to kill may be proved by evidence of: (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) the words uttered by the offender at the time the
injuries are inflicted by him on the victim.
Here, the intent to kill was sufficiently proven by the Prosecution. The
petitioner attacked Benigno with deadly weapons, two scythes. The
petitioners blow was directed to the neck of Benigno. The attack on the
unarmed and unsuspecting Benigno was swift and sudden. The latter had
no means, and no time, to defend himself.
Dr. Roberto Ardiente, Jr., who attended and issued the Medical
Certificate, testified that Benigno suffered from a hack wound on the left
neck, and an incised wound on the left hand palm. He said that the
wounds might have been caused by a sharp, pointed and sharp-edged
instrument, and may have resulted to death without proper medical
attendance. Benigno was hospitalized for about a month because of the
injuries. The location of the wound (on the neck) shows the nature and
seriousness of the wound suffered by Benigno. It would have caused his
death, had it not been for the timely intervention of medical
science.31 (Citations omitted and emphasis supplied)
However, the CA 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."32 The CA explained 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.33 (Citation omitted)
The CA also deleted the RTCs order for the payment of actual and
consequential damages as there were no competent proofs to justify the
awards. The CA instead ruled that Benigno is entitled to P30,000.00 as
moral damages and P10,000.00 as temperate damages,34 the latter being
awarded when some pecuniary loss has been incurred, but the amount
cannot be proven with certainty.35
Issue
Hence, the instant Petition for Review on Certiorari36 anchored on the
issue of whether or not the RTC and the CA erred in rendering judgments
which are not in accordance with law and applicable jurisprudence and
which if not corrected, will cause grave injustice and irreparable damage
to the petitioner.37
In support thereof, the petitioner avers that the courts a quo failed to
appreciate relevant facts, which if considered, would justify either his
acquittal or the downgrading of his conviction to less serious physical
injuries. The petitioner points out that after the single hacking blow was
delivered, he ran after Alejandro and Dionisio leaving Benigno behind.
Had there been an intent to kill on his part, the petitioner could have
inflicted more wounds since at that time, he had two scythes in his hands.
Further, the CA erred in finding that the hacking blow was sudden and
unexpected, providing Benigno with no opportunity to defend himself.
Benigno saw the petitioner arriving with weapons on hand. Benigno could
not have been unaware of the danger facing him, but he knew that the

petitioner had no intent to hurt him. Benigno thus approached the

petitioner, but in the process, the former was accidentally hit with the
latters scythe.

Century Iron Works, Inc. and Benito Chua v. Eleto B. Baas 42 is

instructive anent what is the subject of review in a petition filed under
Rule 45 of the Rules of Court, viz:

The petitioner also cites Pentecostes, Jr. v. People38 where this Court
found the downgrading of a conviction from attempted murder to physical
injuries as proper considering that homicidal intent was absent when the
accused shot the victim once and did not hit a vital part of the latters
body.39

A petition for review on certiorari under Rule 45 is an appeal from a ruling

of a lower tribunal on pure questions of law. It is only in exceptional
circumstances that we admit and review questions of fact.

Further, as per Dr. Ardientes testimony, no complications resulted from

Benignos hacking wound in the neck and incised wound in the hand.
Such being the case, death could not have resulted. The neck wound
was not "so extensive because it did not involve a big blood vessel on its
vital structure" while the incised wound in the hand, which only required
cleansing and suturing, merely left a slight scarring.40 Besides, Benigno
was only confined for seventeen (17) days at the hospital and the injuries
he sustained were in the nature of less serious ones.
In its Comment, the Office of the Solicitor General (OSG) seeks the
dismissal of the instant petition. The OSG stresses that the petitioner
raises factual issues, which call for a re-calibration of evidence, hence,
outside the ambit of a petition filed under Rule 45 of the Rules of Court.
Moreover, the petitioners argument that the development of infections or
complications on the wounds is a necessary factor to determine the crime
committed is specious. The petitioners intent to kill Benigno can be
clearly inferred from the nature of the weapon used, the extent of injuries
inflicted and the circumstances of the aggression. Benigno could have
died had there been no timely medical assistance rendered to him.
41

If it were the petitioners wish to merely get Benigno out of the way to be
able to chase Alejandro and Dionisio, a kick, fist blow, push, or the use of
a less lethal weapon directed against a non-vital part of the body would
have been sufficient. However, the petitioner hacked Benignos neck with
an unsterile scythe, leaving behind a big, open and gaping wound.
This Courts Ruling
The instant petition raises factual issues which are beyond the scope of a
petition filed under Rule 45 of the Rules of Court.

A question of law arises when there is doubt as to what the law is on a

certain state of facts, while there is a question of fact when the doubt
arises as to the truth or falsity of the alleged facts. For a question to be
one of law, the question must not involve an examination of the probative
value of the evidence presented by the litigants or any of them. The
resolution of the issue must rest solely on what the law provides on the
given set of circumstances. Once it is clear that the issue invites a review
of the evidence presented, the question posed is one of fact. 43 (Citations
omitted)
In the case at bar, the challenge is essentially posed against the findings
of the courts a quo that the petitioner had a homicidal intent when he
hacked Benignos neck with a scythe and that the wounds the latter
sustained could have caused his death had there been no prompt
medical intervention. These questions are patently factual in nature
requiring no less than a re-calibration of the contending parties evidence.
It is settled that the general rule enunciated in Century Iron Works, Inc.
and Benito Chua admits of exceptions, among which is, "when the
judgment of the CA is premised on a misapprehension of facts or a failure
to notice certain relevant facts that would otherwise justify a different
conclusion x x x."44 However, the factual backdrop and circumstances
surrounding the instant petition do not add up to qualify the case as
falling within the exceptions.
Even if this Court were to be exceptionally liberal and allow a review of
factual issues, still, the instant petition is susceptible to denial.
To successfully prosecute the crime of homicide, the following elements
must be proved beyond reasonable doubt: (1) that a person was killed;
(2) that the accused killed that person without any justifying
circumstance; (3) that the accused had the intention to kill, which is
presumed; and (4) that the killing was not attended by any of the

qualifying circumstances of murder, or by that of parricide or infanticide.

Moreover, 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 without medical intervention or attendance. 45
In cases of frustrated homicide, the main element is the accuseds intent
to take his victims 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.46
The petitioner now wants to impress upon this Court that he had no
motive to attack, much less kill Benigno. The petitioner likewise invokes
the doctrine in Pentecostes, Jr.47 to argue that homicidal intent is absent
in a case where the accused shot the victim only once when there was
an opportunity to do otherwise. The petitioner belabors his claim that had
he intended to kill Benigno, he could have repeatedly hacked him to
ensure the latters death, and not leave right after the blow to chase
Alejandro instead.

petitioners homicidal intent when the hacking blow was delivered. It does
not require imagination to figure out that a single hacking blow in the
neck with the use of a scythe could be enough to decapitate a person
and leave him dead. While no complications actually developed from the
gaping wounds in Benignos neck and left hand, it perplexes logic to
conclude that the injuries he sustained were potentially not fatal
considering the period of his confinement in the hospital. A mere grazing
injury would have necessitated a lesser degree of medical attention.
This Court likewise finds wanting in merit the petitioners 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
petitioners will.
1wphi1

All told, this Court finds no reversible error committed by the CA in

affirming the RTCs conviction of the petitioner of the crime charged.
The Court modifies the award of damages.

The analogy is flawed.

In Pentecostes, Jr., the victim was shot only once in the arm, a non vital
part of the body. The attending physician certified that the injury would
require medical attendance for ten days, but the victim was in fact
promptly discharged from the hospital the following day.
In Benignos case, he sustained an 11-centimeter long hacking wound in
the neck and a 4-cm long incised wound in his left hand caused by the
unsterile scythe used by the petitioner. Dr. Ardiente testified that "it is
possible to have complications resulting from these injuries because the
wounds were extensive and they were big and they were open wounds,
so there is a possibility of infections resulting from these kinds of wounds,
and the instrument used was not a sterile instrument contaminated with
other things."48 No complications developed from Benignos wounds
which could have caused his death, but he was confined in the hospital
for a period of 17 days from September 6, 1998 to September 23, 1998.
From the foregoing, this Court concludes and thus agrees with the CA
that the use of a scythe against Benignos neck was determinative of the

As to the civil liability of the petitioner, the CA was correct in deleting the
payment of the consequential damages awarded by the trial court in the
absence of proof thereof. Where the amount of actual damages cannot
be determined because of the absence of supporting receipts but
entitlement is shown by the facts of the case, temperate damages may
be awarded.49 In the instant case, Benigno certainly suffered injuries, was
actually hospitalized and underwent medical treatment. Considering the
nature of his injuries, it is prudent to award temperate damages in the
amount of P25,000.00, in lieu of actual damages.50
Furthermore, we find that Benigno is entitled to moral damages in the
amount of P25,000.00.51 There is sufficient basis to award moral
damages as ordinary human experience and common sense dictate that
such wounds inflicted on Benigno would naturally cause physical
suffering, fright, serious anxiety, moral shock, and similar injury.52
WHEREFORE the instant petition is DENIED. The Decision and
Resolution, dated October 26, 2010 and August 11 2011, respectively, of
the Court of Appeals in CA-G.R. CR No. 00336-MIN are AFFIRMED with

MODIFICATIONS. The petitioner, Fe Abella y Perpetua is ORDERED TO

PAY the offended party moral damages in the amount of P25,000.00 and
temperate damages in the amount of P25,000.00. Further, the monetary
awards for damages shall be subject to interest at the legal rate of six
percent ( 6%) p r annum from the date of finality of this Decision until fully
paid.53

Eusebio P. Aquino for private respondents.

TEEHANKEE, J.:
The Court declares the questioned orders of respondent judge dismissing
the information for supposed lack of jurisdiction as null and void.
Respondent judge wrongfully dismissed the case before him in disregard
to the elemental rule that jurisdiction is determined by the allegations of
the information and that the offense of serious physical injuries charged
in the information had duly vested his court with jurisdiction. The Court
orders the transfer of the case below to another branch of the Bukidnon
court of-first instance, since it is doubtful that the State and offended
party may expect a fair and impartial hearing and determination of the
case from respondent judge who with his erroneous pre-conceptions and
predilections has adversely prejudged their case for serious physical
injuries as one merely of slight or less serious physical injuries.

SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
WE CONCUR:

The office of the provincial fiscal of Bukidnon, after preliminary

investigation filed an information dated October 13, 1977 in the court of
respondent judge, charging the three private respondents- accused
(Esterlina Marapao, Leticia Marapao and Diosdado Marapao) for serious
physical injuries committed as follows:
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-47448 May 17, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. EMETERIO C. OCAYA, as District Judge, 15th Judicial District,
Branch VI, Province of Bukidnon, and ESTERLINA MARAPAO,
LETICIA MARAPAO and DIOSDADO MARAPAO, respondents.
Arcadio D. Fabria and Camilo E. Tamin, Office of the Provincial Fiscal of
Malaybalay, Bukidnon for petitioner.

That on or about the 23rd day of July, 1977, in Don

Carlos, Bukidnon, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping each
other, did then and there willfully unlawfully and
feloneously attack, assault and use personal violence
upon one Mrs. LOLITA ARES, a mother who was then still
on the twelfth (12th) day from her child delivery, by then
and there wrestling her to the ground and thereafter
throwing and hitting her with a fist-size stone at the face
thereby inflicting upon said Mrs. LOLITA ARES:lacerated wound, transverse right at about 2.5 cm. x 0.5
cm. in width at the level of the m arch of the face, with
contusion and swelling all around the inflicted area

which injury considerably deforms her face, and further causing upon
said Mrs. LOLITA ARES to suffer a relapse (nabughat in the local dialect)
arising from her weak constitution due to her recent child delivery, which
relapse incapacitated her from performing her customary labor for a
period of more than thirty days.
Contrary to and in violation of Article 263, paragraph 3 of
the Revised Penal Code.
The records do not show that arraignment or trial on the merits has been
held, much less that warrants for the arrest of the accused had been
issued. Instead, after "scanning the records of (the) case" and noting that
the thereto attached medical certificate stated that the injuries suffered by
the victim Lolita Ares would require medical attention from 7 to 10 days
and, therefore, 4 "may either be slight or less serious physical injuries
only" contrary to victim's affidavit that she was incapacitated from her
customary labor for more than 30 days and the fiscal's findings as to the
prominent sear left on the victim's face as a result "which considerably
deforms her face" (as duly alleged in the information), respondent
judge motu proprio ordered the dismissal of the case "as the crime of
slight or less physical injury is not within the jurisdiction of the court" as
per his Order of October 27, 1977, stating as his reason that
The Court is of the opinion that what governs in the filing
of a physical injury case is the certificate issued by the
physician regarding the duration of treatment, and not
what the victim declares because the same is selfserving.
The fiscal's motion for reconsideration proved futile with respondent
judge in his Order of November 16, 1977 denying the same, evaluating
the case without having heard the parties or their witnesses (particularly
the physician who issued the medical certificate) nor having received
their evidence and ruling against the deformity alleged in the information
on the basis of his perception from a reading of the medical certificate
and the fiscal's written resolution finding proper basis for the filing of the
information, that
Now, does the finding of the fiscal to the effect that he
observed a big scar at the left cheek bone of Mrs. Lolita
Ares justify the filing of the charge of serious physical

injuries, under Article 263 of the Revised Penal Code,

when the attending physician certified that what he found
was a lacerated wound on the right side of the face?
Clearly, the scar found by the investigating fiscal could not
be the result of the acts imputed to the accused but for
some other cause, for how could the scar be found on
the left side when the injury inflicted was on the right
side? (Emphasis supplied)
Hence, the petition at bar as filed by the provincial fiscal for nullification of
respondent judge's orders.
The Solicitor General in his comment has noted that there is ample legal
and factual basis for the information charging serious physical injuries,
stating that "(T)hat the allegations in the Information that a fist-size stone
hit the face of Lolita Ares causing lacerated wound on the maxillary arch
of the face which considerably deformed her face (are) not only
supported by the medical certificate, but also by the admission of
accused Diosdado Marapao during the pre investigation that he threw a
fist-size stone which hit the face of Lolita Ares and the personal finding of
Fiscal Tamin during the preliminary in. investigation that there is a
prominent scar on her face," and that the offense as charged falls under
Article 263, paragraph 3 of the Revised Penal Code which imposes
thereon a penalty of prision correccional in its minimum and medium
periods and is therefore properly cognizable by respondent judge's court.
The Court finds that respondent judge committed a grave abuse of
discretion in precipitately dismissing the case for alleged lack of
jurisdiction on the mere basis of his totally wrong notion that what
governs in the filing of a physical injury case is the medical certificate
regarding the duration of treatment and "not what the victim declares
because the same is self-serving."
It is elemental that the jurisdiction of a court in criminal cases is
determined by the allegations of the information or criminal complaint and
not by the result of the evidence presented at the trial,' much less by the
trial judge's personal appraisal of the affidavits and exhibits attached by
the fiscal to the record of the case without hearing the parties and their
witnesses nor receiving their evidence at a proper trial.

It is equally elementary that the mere fact that evidence presented at the
trial would indicate that a lesser offense outside the trial, 1 court's
jurisdiction was committed does not deprive the trial court of its jurisdiction
which had vested in it under the allegations of the information as filed since
"(once) the jurisdiction attaches to the person and subject matter of the
litigation, the subsequent happening of events, although they are of such a
character as would have prevented jurisdiction from attaching in the first
instance, will not operate to oust jurisdiction already attached. 2

and ordered transferred to Branch V of the court of first instance below,

and the judge presiding the same is ordered to issue the corresponding
warrants of arrest and to proceed with dispatch with the arraignment of
the respondents-accused and the trial and determination of the case on
the merits. Let copy of this decision be attached to the personal record of
respondent judge. No pronouncement as to costs.

Indeed, the Solicitor General has aptly commented that "the dismissal of
the case had only resulted in duplication of work and wasted time in the
remand of records when respondent trial judge dismissed the instant
case for want of jurisdiction, when it could have immediately proceeded
to arraign the accused and try him. "

Teehankee (Chairman), Makasiar, Santos, Fernandez, and Guerrero, JJ.,

concur.

Once more the Court is constrained to admonish the trial courts to

proceed with proper study and circumspection before summarily
dismissing cases duly filed within their court's cognizance and needlessly
burdening the appellate courts with cases such as that at bar which
should not have reached us at all in the first instance. Respondent
judge's disregard of the established rule that the information for serious
physical injuries properly vested his court with jurisdiction to try and hear
the case, and that if from the evidence submitted a lesser offense was
established, that he equally had jurisdiction to impose the sentence for
such lesser offense, is difficult of comprehension. Besides, the doctor
who issued the medical certificate had yet to be presented at the trial and
conceivably could corroborate the victim's testimony that her injuries had
taken longer to heal than had at first been estimated by him as well as
clearify the location of he victim's facial scar.
Respondent judge's actions and premature and baseless declaration that
the victim's declaration as to the period of her incapacity is "self-serving"
raise serious doubts as to whether the State and the offended party may
expect a fair and impartial hearing and determination of the case from
him, since seemingly with his erroneous pre-conceptions and
predilections, he has adversely prejudged their case as one merely of
slight or less serious physical injuries. The case below should therefore
be transferred to another court presided by another judge.
ACCORDINGLY, the questioned orders of respondent judge are declared
null and void. The case below for serious physical injuries is remanded

SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

- versus -

G.R. No. 186412

Present:
CORONA, C.J.,
Chairperson,
LEONARDO-DE CAS
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.
Promulgated:

ORLITO VILLACORTA,
Accused-Appellant.

September 7, 2011

x-------------------------------------------------x
DECISION
LEONARDO-DE CASTRO, J.:

Republic of the Philippines

Supreme Court
Manila

FIRST DIVISION

On appeal is the Decision[1] dated July 30, 2008 of the

Court of Appeals in CA-G.R. CR.-H.C. No. 02550, which
affirmed the Decision[2] dated September 22, 2006 of
the Regional Trial Court (RTC), Branch 170, of Malabon,
in Criminal Case No. 27039-MN, finding accusedappellant Orlito Villacorta (Villacorta) guilty of murder,
and sentencing him to suffer the penalty of reclusion
perpetua and to pay the heirs of Danilo Cruz (Cruz) the
sum of P50,000.00 as civil indemnity, plus the costs of
suit.
On June 21, 2002, an Information[3] was filed against
Villacorta charging him with the crime of murder, as
follows:

rd

That on or about 23 day of January 2002, in Navotas, Metro

Manila, and within the jurisdiction of this Honorable Court,
the above-named accused, armed with a sharpened bamboo
stick, with intent to kill, treachery and evident premeditation,
did then and there willfully, unlawfully and feloniously attack,
assault and stab with the said weapon one DANILO
SALVADORCRUZ, thereby inflicting upon the victim serious
wounds which caused his immediate death.

When arraigned on September 9, 2002, Villacorta

pleaded not guilty.[4]

following day, on February 15, 2002. While admitting

that he did not personally treat Cruz, Dr. Belandres was
able to determine, using Cruzs medical chart and
diagnosis, that Cruz died of tetanus infection secondary
to stab wound.[7] Dr. Belandres specifically described the
cause of Cruzs death in the following manner:
The wound was exposed x x spurs concerted, the patient
developed difficulty of opening the mouth, spastivity of the
body and abdominal pain and the cause of death is hypoxic
encephalopathy neuro transmitted due to upper G.I. bleeding
x x x. Diagnosed of Tetanus, Stage III. [8]

During trial, the prosecution presented as witnesses

Cristina Mendeja (Mendeja) and Dr. Domingo Belandres,
Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002, she was
tending her sari-sari store located at C-4 Road,
Bagumbayan, Navotas. Both Cruz and Villacorta were
regular customers at Mendejas store. At around two
oclock in the morning, while Cruz was ordering bread at
Mendejas store, Villacorta suddenly appeared and,
without uttering a word, stabbed Cruz on the left side of
Cruzs body using a sharpened bamboo stick. The
bamboo stick broke and was left in Cruzs
body. Immediately after the stabbing incident, Villacorta
fled. Mendeja gave chase but failed to catch
Villacorta. When Mendeja returned to her store, she saw
her neighbor Aron removing the broken bamboo stick
from Cruzs body.[5] Mendeja and Aron then brought Cruz
to Tondo Medical Center.[6]

The prosecution also intended to present Dr. Deverni

Matias (Dr. Matias), who attended to Cruz at the San
Lazaro Hospital, but the prosecution and defense agreed
to dispense with Dr. Matias testimony based on the
stipulation that it would only corroborate Dr. Belandres
testimony on Cruz dying of tetanus.

Dr. Belandres was Head of the Tetanus Department at

the San Lazaro Hospital. When Cruz sustained the stab
wound on January 23, 2002, he was taken to the Tondo
Medical Center, where he was treated as an outpatient. Cruz was only brought to the San Lazaro
Hospital on February 14, 2002, where he died the

On September 22, 2006, the RTC rendered a Decision

finding Villacorta guilty of murder, qualified by
treachery. The dispositive portion of said Decision reads:

For its part, the defense presented Villacorta himself,

who denied stabbing Cruz. Villacorta recounted that he
was on his way home from work at around two oclock in
the morning of January 21, 2002. Upon arriving home,
Villacorta drank coffee then went outside to buy
cigarettes at a nearby store. When Villacorta was about
to leave the store, Cruz put his arm around Villacortas
shoulder. This prompted Villacorta to box Cruz, after
which, Villacorta went home. Villacorta did not notice
that Cruz got hurt. Villacorta only found out about Cruzs
death upon his arrest on July 31, 2002.[9]

WHEREFORE, in the light of the foregoing, the Court finds

accused Orlito Villacorta guilty beyond reasonable doubt of

the crime of Murder and is hereby sentenced to suffer the

penalty of reclusion perpetua and to pay the heirs of Danilo
Cruz the sum of P50,000.00 as civil indemnity for the death
of said victim plus the costs of suit.[10]

Villacorta, through his counsel from the Public Attorneys

Office (PAO), filed a notice of appeal to assail his
conviction by the RTC.[11] The Court of Appeals directed
the PAO to file Villacortas brief, within thirty days from
receipt of notice.
Villacorta filed his Appellants Brief[12] on May 30, 2007;
while the People, through the Office of the Solicitor
General (OSG), filed its Appellee's Brief[13] on October 2,
2007.
On July 30, 2008, the Court of Appeals promulgated its
Decision affirming in toto the RTC judgment of
conviction against Villacorta.
Hence, Villacorta comes before this Court via the instant
appeal.
Villacorta manifested that he would no longer file a
supplemental brief, as he was adopting the Appellant's
Brief he filed before the Court of Appeals.[14] The OSG,
likewise, manifested that it was no longer filing a
supplemental brief. [15]
In his Appellants Brief, Villacorta raised the following
assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED
DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.

II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE
QUALIFYING CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A
CRIME, HE COULD ONLY BE HELD LIABLE FOR SLIGHT
PHYSICAL INJURIES.[16]

Villacorta assails the credibility of Mendeja, an

eyewitness to the stabbing incident. It was Mendeja who
positively identified Villacorta as the one who stabbed
Cruz in the early morning of January 23, 2002. Villacorta
asserts that Mendejas account of the stabbing incident
is replete with inconsistencies and incredulities, and is
contrary to normal human experience, such as: (1)
instead of shouting or calling for help when Villacorta
allegedly stabbed Cruz, Mendeja attempted to run after
and catch Villacorta; (2) while, by Mendejas own
account, there were other people who witnessed the
stabbing and could have chased after Villacorta, yet,
oddly, only Mendeja did; (3) if Cruz was stabbed so
swiftly and suddenly as Mendeja described, then it
would have been physically improbable for Mendeja to
have vividly recognized the perpetrator, who
immediately ran away after the stabbing; (4) after the
stabbing, both Villacorta and Cruz ran in opposite
directions; and (5) Mendeja had said that the bamboo
stick, the alleged murder weapon, was left at her store,
although she had also stated that the said bamboo stick
was left embedded in Cruzs body. Villacorta maintains
that the aforementioned inconsistencies are neither
trivial nor inconsequential, and should engender some
doubt as to his guilt.
We are not persuaded.

To begin with, it is fundamental that the determination

by the trial court of the credibility of witnesses, when
affirmed by the appellate court, is accorded full weight
and credit as well as great respect, if not conclusive
effect. Such determination made by the trial court
proceeds from its first-hand opportunity to observe the
demeanor of the witnesses, their conduct and attitude
under grilling examination, thereby placing the trial
court in the unique position to assess the witnesses'
credibility and to appreciate their truthfulness, honesty
and candor.[17]
In this case, both the RTC and the Court of Appeals gave
full faith and credence to the testimony of prosecution
witness Mendeja. The Court of Appeals rejected
Villacortas attempts to impugn Mendejas testimony,
thus:
Appellants reason for concluding that witness Mendejas
testimony is incredible because she did not shout or call for
help and instead run after the appellant, fails to impress the
Court because persons who witness crimes react in different
ways.
x x x the makings of a human mind are unpredictable; people
react differently and there is no standard form of behavior
when one is confronted by a shocking incident.
Equally lacking in merit is appellants second reason which is,
other persons could have run after the appellant after the
stabbing incident. As explained by witness Mendeja, the
other person whom she identified as Aron was left to assist
the appellant who was wounded. Further, the stabbing
occurred at 2:00 oclock in the morning, a time when persons
are expected to be asleep in their house, not roaming the
streets.
His [Villacortas] other argument that the swiftness of the
stabbing incident rendered impossible or incredible the
identification of the assailant cannot likewise prosper in view
of his admission that he was in the store of witness Mendeja

on January 23, 2002 at 2:00 oclock in the morning and that

he assaulted the victim by boxing him.
Even if his admission is disregarded still the evidence of
record cannot support appellants argument. Appellant and
the victim were known to witness Mendeja, both being her
friends and regular customers. There was light in front of the
store. An opening in the store measuring 1 and meters
enables the person inside to see persons outside, particularly
those buying articles from the store. The victim was in front
of the store buying bread when attacked. Further,
immediately after the stabbing, witness Mendeja ran after
the appellant giving her additional opportunity to identify the
malefactor. Thus, authorship of the attack can be credibly
ascertained.[18]

Moreover, Villacorta was unable to present any reason

or motivation for Mendeja to fabricate such a lie and
falsely accuse Villacorta of stabbing Cruz on January 23,
2002.We have ruled time and again that where the
prosecution eyewitness was familiar with both the
victim and accused, and where the locus
criminis afforded good visibility, and where no improper
motive can be attributed to the witness for testifying
against the accused, then her version of the story
deserves much weight.[19]
The purported inconsistencies in Mendejas testimony
pointed out by Villacorta are on matters that have no
bearing on the fundamental fact which Mendeja testified
on: that Villacorta stabbed Cruz in the early morning
of January 23, 2002, right in front of Mendejas store.
In the face of Mendejas positive identification of
Villacorta as Cruzs stabber, Villacorta could only muster
an uncorroborated denial. Denial, like alibi, as an
exonerating justification, is inherently weak and if
uncorroborated, regresses to blatant
impotence. Like alibi, it also constitutes self-serving

negative evidence which cannot be accorded greater

evidentiary weight than the declaration of credible
witnesses who testify on affirmative matters.[20]
Hence, we do not deviate from the foregoing factual
findings of the RTC, as affirmed by the Court of Appeals.
Nevertheless, there is merit in the argument proffered
by Villacorta that in the event he is found to have
indeed stabbed Cruz, he should only be held liable for
slight physical injuries for the stab wound he inflicted
upon Cruz. The proximate cause of Cruzs death is the
tetanus infection, and not the stab wound.
Proximate cause has been defined as that cause, which,
in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred.[21]
In this case, immediately after he was stabbed by
Villacorta in the early morning of January 23, 2002, Cruz
was rushed to and treated as an out-patient at the Tondo
Medical Center. On February 14, 2002, Cruz was
admitted to the San Lazaro Hospital for symptoms of
severe tetanus infection, where he died the following
day, on February 15, 2002. The prosecution did not
present evidence of the emergency medical treatment
Cruz received at the Tondo Medical Center, subsequent
visits by Cruz to Tondo Medical Center or any other
hospital for follow-up medical treatment of his stab
wound, or Cruzs activities between January 23 to
February 14, 2002.
In Urbano v. Intermediate Appellate Court,[22] the Court
was confronted with a case of very similar factual
background as the one at bar. During an altercation
on October 23, 1980, Urbano hacked Javier with a bolo,
inflicting an incised wound on Javiers hand. Javier was

treated by Dr. Meneses. On November 14, 1980, Javier

was rushed to the hospital with lockjaw and
convulsions. Dr. Exconde, who attended to Javier, found
that Javiers serious condition was caused by tetanus
infection. The next day, on November 15, 1980, Javier
died. An Information was filed against Urbano for
homicide. Both the Circuit Criminal Court and the
Intermediate Appellate Court found Urbano guilty of
homicide, becauseJavier's death was the natural and
logical consequence of Urbano's unlawful act. Urbano
appealed before this Court, arguing that Javiers own
negligence was the proximate cause of his death. Urbano
alleged that when Dr. Meneses examined Javiers wound,
he did not find any tetanus infection and that Javier could
have acquired the tetanus germs when he returned to
work on his farm only two (2) weeks after sustaining his
injury. The Court granted Urbanos appeal.
We quote extensively from the ratiocination of the Court
in Urbano:
The issue, therefore, hinges on whether or not there was
an efficient intervening cause from the time Javier was
wounded until his death which would exculpate Urbano
from any liability for Javier's death.
We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between
injury and the appearance of unmistakable symptoms,
ranges from 2 to 56 days. However, over 80 percent of
patients become symptomatic within 14 days. A short
incubation period indicates severe disease, and when
symptoms occur within 2 or 3 days of injury the
mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as
restlessness, irritability, and headache are encountered
occasionally, but the commonest presenting complaints

are pain and stiffness in the jaw, abdomen, or back and

difficulty swallowing. As the disease progresses,
stiffness gives way to rigidity, and patients often
complain of difficulty opening their mouths. In fact,
trismus is the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of
lockjaw. As more muscles are involved, rigidity becomes
generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle
involvement is quite variable. In a small proportion of
patients, only local signs and symptoms develop in the
region of the injury. In the vast majority, however, most
muscles are involved to some degree, and the signs and
symptoms encountered depend upon the major muscle
groups affected.
Reflex spasm usually occur within 24 to 72 hours of the
first symptoms, an interval referred to as the onset
time. As in the case of the incubation period, a short
onset time is associated with a poor prognosis. Spasms
are caused by sudden intensification of afferent stimuli
arising in the periphery, which increases rigidity and
causes simultaneous and excessive contraction of
muscles and their antagonists. Spasms may be both
painful and dangerous. As the disease progresses,
minimal or inapparent stimuli produce more intense and
longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic
contraction of respiratory muscles which prevent
adequate ventilation. Hypoxia may then lead to
irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of
at least 14 days and an onset time of more than 6
days. Trismus is usually present, but dysphagia is
absent and generalized spasms are brief and mild.
Moderately severe tetanus has a somewhat shorter
incubation period and onset time; trismus is marked,

dysphagia and generalized rigidity are present, but

ventilation remains adequate even during spasms. The
criteria for severe tetanus include a short incubation
time, and an onset time of 72 hrs., or less, severe
trismus, dysphagia and rigidity and frequent prolonged,
generalized convulsive spasms. (Harrison's Principle of
Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus
found inside a man's body depends on the incubation
period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound
on his right palm when he parried the bolo which
Urbano used in hacking him. This incident took place
on October 23, 1980. After 22 days, or on November 14,
1980, he suffered the symptoms of tetanus, like lockjaw
and muscle spasms. The following day, November 15,
1980, he died.
If, therefore, the wound of Javier inflicted by the
appellant was already infected by tetanus germs at the
time, it is more medically probable that Javier should
have been infected with only a mild case of tetanus
because the symptoms of tetanus appeared on the
22nd day after the hacking incident or more than 14
days after the infliction of the wound. Therefore,
the onset time should have been more than six days.
Javier, however, died on the second day from the onset
time. The more credible conclusion is that at the time
Javier's wound was inflicted by the appellant, the severe
form of tetanus that killed him was not yet present.
Consequently, Javier's wound could have been infected
with tetanus after the hacking incident. Considering the
circumstance surrounding Javier's death, his wound
could have been infected by tetanus 2 or 3 or a few but
not 20 to 22 days before he died.[23]

The incubation period for tetanus infection and the

length of time between the hacking incident and the
manifestation of severe tetanus infection created
doubts in the mind of the Court that Javier acquired the
severe tetanus infection from the hacking incident. We
explained in Urbano that:
The rule is that the death of the victim must be
the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. (People v.
Cardenas, supra) And since we are dealing with a
criminal conviction, the proof that the accused caused
the victim's death must convince a rational
mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the
infection of the wound by tetanus was an efficient
intervening cause later or between the time Javier was
wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. (People v.
Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound
was but the remote cause and its subsequent infection,
for failure to take necessary precautions, with tetanus
may have been theproximate cause of Javier's death
with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the basis of
an action if such remote cause did nothing more than
furnish the condition or give rise to the occasion by
which the injury was made possible, if there intervened
between such prior or remote cause and the injury a
distinct, successive, unrelated, and efficient cause of
the injury, even though such injury would not have
happened but for such condition or occasion. If no

danger existed in the condition except because of the

independent cause, such condition was not the
proximate cause. And if an independent negligent act or
defective condition sets into operation the instances,
which result in injury because of the prior defective
condition, such subsequent act or condition is the
proximate cause." (45 C.J. pp. 931-932). (at p. 125)[24]
We face the very same doubts in the instant case that
compel us to set aside the conviction of Villacorta for
murder. There had been an interval of 22 days between
the date of the stabbing and the date when Cruz was
rushed to San Lazaro Hospital, exhibiting symptoms of
severe tetanus infection. If Cruz acquired severe tetanus
infection from the stabbing, then the symptoms would
have appeared a lot sooner than 22 days later. As the
Court noted in Urbano, severe tetanus infection has a
short incubation period, less than 14 days; and those
that exhibit symptoms with two to three days from the
injury, have one hundred percent (100%)
mortality. Ultimately, we can only deduce that Cruzs stab
wound was merely the remote cause, and its
subsequent infection with tetanus might have been the
proximate cause of Cruz's death. The infection of Cruzs
stab wound by tetanus was an efficient intervening
cause later or between the time Cruz was stabbed to
the time of his death.
However, Villacorta is not totally without criminal
liability. Villacorta is guilty of slight physical injuries
under Article 266(1) of the Revised Penal Code for the
stab wound he inflicted upon Cruz. Although the charge
in the instant case is for murder, a finding of guilt for
the lesser offense of slight physical injuries may be
made considering that the latter offense is necessarily
included in the former since the essential ingredients of

slight physical injuries constitute and form part of those

constituting the offense of murder.[25]
We cannot hold Villacorta criminally liable for attempted
or frustrated murder because the prosecution was not
able to establish Villacortas intent to kill. In fact, the
Court of Appeals expressly observed the lack of evidence
to prove such an intent beyond reasonable doubt, to wit:
Appellant stabbed the victim only once using a
sharpened bamboo stick, hitting him on the left side of
the body and then immediately fled. The instrument
used is not as lethal as those made of metallic
material. The part of the body hit is not delicate in the
sense that instant death can ensue by reason of a single
stab wound. The assault was done only once. Thus, there
is doubt as to whether appellant had an intent to kill the
victim, which should be resolved in favor of the
appellant. x x x.[26]
The intent must be proved in a clear and evident manner
to exclude every possible doubt as to the homicidal (or
murderous) intent of the aggressor. The onus
probandi lies not on accused-appellant but on the
prosecution. The inference that the intent to kill existed
should not be drawn in the absence of circumstances
sufficient to prove this fact beyond reasonable
doubt. When such intent is lacking but wounds were
inflicted, the crime is not frustrated murder but physical
injuries only.[27]
Evidence on record shows that Cruz was brought to
Tondo Medical Center for medical treatment
immediately after the stabbing incident. Right after
receiving medical treatment, Cruz was then released by
the Tondo Medical Center as an out-patient. There was
no other evidence to establish that Cruz was

incapacitated for labor and/or required medical

attendance for more than nine days. Without such
evidence, the offense is only slight physical injuries.[28]
We still appreciate treachery as an aggravating
circumstance, it being sufficiently alleged in the
Information and proved during trial.
The Information specified that accused, armed with a
sharpened bamboo stick, with intent to
kill, treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault
and stab with the said weapon one DANILO SALVADOR
CRUZ x x x.
Treachery exists when an offender commits any of the
crimes against persons, employing means, methods or
forms which tend directly or especially to ensure its
execution, without risk to the offender, arising from the
defense that the offended party might make. This
definition sets out what must be shown by evidence to
conclude that treachery existed, namely: (1) the
employment of such means of execution as would give
the person attacked no opportunity for self-defense or
retaliation; and (2) the deliberate and conscious
adoption of the means of execution. To reiterate, the
essence of qualifying circumstance is the suddenness,
surprise and the lack of expectation that the attack will
take place, thus, depriving the victim of any real
opportunity for self-defense while ensuring the
commission of the crime without risk to the aggressor.
[29]
Likewise, even when the victim was forewarned of
the danger to his person, treachery may still be
appreciated since what is decisive is that the execution
of the attack made it impossible for the victim to defend
himself or to retaliate.[30]

Both the RTC and the Court of Appeals found that

treachery was duly proven in this case, and we sustain
such finding. Cruz, the victim, was attacked so
suddenly, unexpectedly, and without provocation. It was
two oclock in the morning of January 23, 2002, and
Cruz, who was out buying bread at Mendejas store, was
unarmed. Cruz had his guard down and was totally
unprepared for an attack on his person. Villacorta
suddenly appeared from nowhere, armed with a
sharpened bamboo stick, and without uttering a word,
stabbed Cruz at the left side of his body, then swiftly ran
away. Villacortas treacherous mode of attack left Cruz
with no opportunity at all to defend himself or retaliate.
Article 266(1) of the Revised Penal Code provides:
ART. 266. Slight physical injuries and maltreatment. The
crime of slight physical injuries shall be punished:
1. By arresto menor when the offender has inflicted
physical injuries which shall incapacitate the offended
party from labor from one to nine days, or shall require
medical attendance during the same period.
The penalty of arresto menor spans from one (1) day to
thirty (30) days.[31] The Indeterminate Sentence Law
does not apply since said law excludes from its
coverage cases where the penalty imposed does not
exceed one (1) year.[32] With the aggravating
circumstance of treachery, we can sentence Villacorta
with imprisonment anywhere within arresto menor in
the maximum period, i.e., twenty-one (21) to thirty (30)
days. Consequently, we impose upon Villacorta a
straight sentence of thirty (30) days of arresto menor;
but given that Villacorta has been in jail since July 31,
2002 until present time, already way beyond his
imposed sentence, we order his immediate release.

Under paragraph (1), Article 2219 of the Civil Code,

moral damages may be recovered in a criminal offense
resulting in physical injuries. Moral damages
compensate for the mental anguish, serious anxiety,
and moral shock suffered by the victim and his family as
being a proximate result of the wrongful act. An award
requires no proof of pecuniary loss. Pursuant to previous
jurisprudence, an award of Five Thousand Pesos
(P5,000.00) moral damages is appropriate for less
serious, as well as slight physical injuries.[33]
WHEREFORE, the Decision dated July 30, 2008 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 02550,
affirming the Decision dated September 22, 2006 of the
Regional Trial Court, Branch 170, of Malabon, in Criminal
Case No. 27039-MN, is REVERSED and SET ASIDE. A new
judgment is entered finding Villacorta GUILTYbeyond
reasonable doubt of the crime of slight physical injuries,
as defined and punished by Article 266 of the Revised
Penal Code, and sentenced to suffer the penalty of thirty
(30) days arresto menor. Considering that Villacorta has
been incarcerated well beyond the period of the penalty
herein imposed, the Director of the Bureau of Prisons is
ordered to cause Villacortas immediate release, unless
Villacorta is being lawfully held for another cause, and
to inform this Court, within five (5) days from receipt of
this Decision, of the compliance with such
order. Villacorta is ordered to pay the heirs of the late
Danilo Cruz moral damages in the sum of Five Thousand
Pesos (P5,000.00).
SO ORDERED.

versus -

PEOPLE OF THE PHILIPPINES,

Respondent.

CARPIO MORALES, J., Cha

BRION,
BERSAMIN,

ABAD, and
VILLARAMA, JR., JJ.
Promulgated:

July 5, 2010
x------------------------------------------------------------------------------------DECISION
BRION, J.:
We review in this petition for review on certiorari[1] the
decision[2] dated July 20, 2006 of the Court of Appeals
(CA) in CA-G.R. CR No. 29090, entitled People of the
Philippines v. Giovani Serrano y Cervantes. The CA
modified the decision dated October 25, 2004[3] of the
Regional Trial Court[4] (RTC), Branch 83, Quezon City,
and found petitioner Giovani Serrano y Cervantes
(petitioner) guilty beyond reasonable doubt of
attempted homicide, instead of frustrated homicide.
THE FACTS
The case stemmed from a brawl involving 15 to 18
members of two (2) rival groups that occurred at the
University of the Philippines, Diliman, Quezon City (UP)
on the evening of March 8, 1999. The incident resulted
in the stabbing of Anthony Galang (victim). Pinpointed
as the victims assailant, the petitioner was charged on
March 11, 1999,[5] with frustrated homicide in an
Information that reads:

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION
GIOVANI SERRANO y CERVANTES,
Petitioner,

G.R. No. 175023

Present:

That on or about the 8th day of March 1999, in Quezon City,

Philippines, the said accused, with intent to kill, did then and
there willfully, unlawfully and feloniously attack, assault and

employ personal violence upon the person of one ANTHONY

GALANG Y LAGUNSAD, by then and there stabbing him on
the stomach with a bladed weapon, thus performing all the
acts of execution which should have produced the crime of
homicide, as a consequence but which nevertheless did not
produce it, by reason of some causes independent of the will
of the accused; that is the timely and able medical assistance
rendered to said ANTHONY GALANG Y LAGUNSAD which
prevented his death, to the damage and prejudice of the said
offended party.

Dagohoy, UP Campus when they came across Gener

Serrano, the petitioners brother, who was with his group
of friends. The victim, Arceo and Tan approached Gener
and his friends to settle a previous quarrel between
Gener and Roberto Comia. While the victim and Gener
were talking, Comia suddenly appeared and hurled
invectives at Gener. Irked, Gener challenged Comia to a
fistfight to settle their quarrel once and for all; Comia
rose to the challenge.

CONTRARY TO LAW.[6]

It was at this point that the petitioner appeared with

other members of his group. He was a guest at a party
nearby, and was informed that a fight was about to take
place between his brother and Comia. Members of the
victims group also started to show up.

On March 20, 2000, the petitioner pleaded not guilty.

During the pre-trial, the prosecution and the defense
agreed to dispense with the testimonies of SPO2 Isagani
dela Paz and the records custodian of East Avenue
Medical Center on the basis of the following stipulations:
(1) SPO2 dela Paz was the one who conducted the
investigation; (2) SPO2 dela Paz took the statement of
the victim at the East Avenue Medical Center; (3) the
victim was able to narrate the story of the incident to
SPO2 dela Paz before he underwent surgery; (4) SPO2
dela Paz prepared a referral-letter to the city prosecutor;
(5) SPO2 dela Paz had no personal knowledge of the
incident; and (6) the victim was confined for treatment
at the East Avenue Medical Center from March 8, 1999,
and the documents referring to his confinement and
treatment were duly executed and authenticated.
[7]
After these stipulations, trial on the merits
immediately followed.
The Prosecutions Evidence
The prosecution presented the victim, Arlo Angelo
Arceo, Sgt. Rolando Zoleto, and SPO2 Roderick Dalit.
These witnesses testified that, at around 9:30 p.m. of
March 8, 1999, the victim and his two friends, Arceo and
Richard Tan, were on their way to Fatima II in Pook

The petitioner watched Gener fight Comia. When Gener

lost the fight, the petitioner sought to get back at the
victim and his friends. Thus, the one-on-one escalated
into a rumble between the members of the two
groups. During the rumble, and with the aid of the light
emanating from two Meralco posts, the victim and Arceo
saw that the petitioner had a knife and used it to chase
away the members of their group. The petitioner also
chased Arceo away, leaving the victim alone; the
petitioners group ganged up on him.
The petitioner went to where the victim was being
beaten by Gener and one Obet Orieta. It was then that
the victim was stabbed. The petitioner stabbed the left
side of his stomach while he was standing, with Gener
and Orieta holding his arms. The petitioner, Gener and
Orieta thereafter continued to beat and stone the victim
until he fell into a nearby creek. The petitioner and his
group left him there.
From his fallen position, the victim inspected his stab
wound and saw that a portion of his intestines showed.

On foot, he went to find help. The victim was initially

taken to the UP Infirmary, but was referred to
the East Avenue Medical Center where he underwent
surgery. The victim stayed at the hospital for a week,
and thereafter stayed home for one month to
recuperate.
In the investigation that immediately followed, the
victim identified the petitioner as the person who
stabbed him. In court, the victim likewise positively
identified the petitioner as his assailant.
The Defenses Evidence
The defense presented the testimonies of the petitioner,
Gener, and George Hipolito.
The petitioner denied that he stabbed the victim. While
he admitted that he was present during the fistfight
between Gener and Comia, he claimed that he and
Gener left as soon as the rumble started. The petitioner
testified that as he and Gener were running away from
the scene (to get back to the party), bottles and stones
were being thrown at them.
Hipolito, a participant in the rumble and a member of
the petitioners group, narrated that the rumble
happened fast and he was too busy defending himself
to take note of everything that happened. He testified
that he did not see the petitioner and Gener during the
fight. He also testified that the place where the rumble
took place was near a steel manufacturing shop which
provided some light to the area. He further testified that
the victim was left alone at the scene and he alone
faced the rival group.
THE RTC RULING

After considering the evidence, the trial court found the

petitioner guilty beyond reasonable doubt of frustrated
homicide. It held, thus:
The bare statement of Giovani Serrano that he did not stab
Anthony and he really does not know who might have
stabbed Anthony is outweighed by the positive identification
by Anthony that Giovani stabbed him frontally while they
faced each other and also the circumstantial evidence
pointing to him as the wielder of the knife. Naturally, Giovani
Serrano would feign ignorance as to who stabbed Anthony
but there is no way that he can avoid said direct and
circumstantial evidences.[8]

Accordingly, the RTC decision disposed:

WHEREFORE, the prosecution having established the guilt of
accused GIOVANI SERRANO Y CERVANTES of the offense of
FRUSTRATED HOMICIDE beyond reasonable doubt, this Court
finds him GUILTY thereof and hereby sentences him to
undergo imprisonment of FOUR (4) YEARS, TWO (2) MONTHS
and ONE (1) DAY of prision correccional as minimum to TEN
(10) YEARS of prision mayor as maximum.
Accused Giovani Serrano is hereby ordered to reimburse to
complainant Anthony Galang the medical expenses incurred
by the latter in his hospitalization and treatment of his
injuries in the amount of FIFTEEN THOUSAND PESOS
(P15,000.00) and loss of income for one (1) month in the
amount of FOUR THOUSAND PESOS (P4,000.00) or the total
amount of NINETEEN THOUSAND PESOS (P19,000.00).
Costs against the accused.
SO ORDERED.[9]

The petitioner appealed to the CA. He claimed that the

inconsistencies in the victims testimony rendered it
incredible, but the RTC disregarded the claim. The RTC
also disregarded the evidence that the dimness of the

light in the crime scene made it impossible for the

victim to identify his assailant.
THE CA RULING
In its decision, the CA agreed with the RTC that the
petitioner had been positively identified as the victims
assailant. The CA, however, ruled that the crime
committed was attempted homicide, not frustrated
homicide. The CA ruled that the prosecution evidence
failed to conclusively show that the victims single stab
wound was sufficient to cause death without timely
medical intervention. In support of its conclusion, the CA
said that:
Thus, in Paddayuman v. People (G.R. No. 120344, 23 January
2002), appellants conviction for attempted homicide was
upheld because there was no evidence that the wounds
suffered by the victim were fatal enough as to cause her
demise. Thus:

x x x petitioner stabbed the victim twice on the chest, which

is indicative of an intent to kill. x x x This can be gleaned
from the testimony of Dr. Pintucan who did not categorically
state whether or not the wounds were fatal. x x x (I)n People
v. Pilones, this Court held that even if the victim was
wounded but the injury was not fatal and could not cause his
death, the crime would only be attempted.
Similarly, in the case of People v. Costales (G.R. No. 141154,
15 January 2002), where the offense charged was frustrated
murder, the trial court rendered a verdict of guilty
for attemptedmurder because the prosecution failed to
present a medical certificate or competent testimonial
evidence which will prove that the victim would have died
from her wound without medical intervention. Citing People
v. De La Cruz, the Supreme Court sustained the trial court
and stressed that:
x x x the crime committed for the shooting of the victim
was attempted murder and not frustrated murder for the

reason that his injuries, though no doubt serious, were not

proved fatal such that without timely medical intervention,
they would have caused his death.[10]

Thus, the CA modified the RTC decision. The dispositive

portion of the CA decision reads:
WHEREFORE, with the MODIFICATIONS that:
1) Appellant is found GUILTY beyond reasonable doubt of
the crime of ATTEMPTED HOMICIDE and sentenced to suffer
the indeterminate penalty of imprisonment
of SIX (6)MONTHS of arresto mayor as minimum
to FOUR (4) YEARS and TWO (2) MONTHS of prision
correccional, as maximum;
2) The actual damages is REDUCED to P3,858.50; and
3) The award of loss earnings is DELETED,
The appealed decision is AFFIRMED in all other respects.
SO ORDERED.[11]

Undaunted, the petitioner filed this present petition.

THE ISSUES
The petitioner raises the following issues for the Courts
consideration:
A
THE COURT OF APPEALS ERRED IN GIVING FULL FAITH
AND CREDENCE TO THE INCREDIBLE AND
INCONSISTENT TESTIMONY OF THE PRIVATE
COMPLAINANT.
B
THE COURT OF APPEALS ERRED IN GIVING CREDENCE
TO THE TESTIMONIES OF THE WITNESSES FOR THE

PROSECUTION, WHICH WERE BASED ON MERE

SPECULATION AND CONJECTURE.

and their testimonies. As we explained in People v.

Lucena[14]

C
THE COURT OF APPEALS GRAVELY ERRED IN
OVERLOOKING THE FACT THAT THE STABBING INCIDENT
OCCURRED IN THE MIDDLE OF A STREET BRAWL,
WHERE ANYBODY OF THE NUMEROUS PARTICIPANTS
COULD HAVE BEEN THE ASSAILANT.

[It] has been consistently held by this Court that the matter
of assigning values to declarations on the witness stand is
best and most competently performed by the trial judge, who
had the unmatched opportunity to observe the witnesses and
to assess their credibility by the various indicia available but
not reflected in the record. The demeanor of the person on
the stand can draw the line between fact and fancy. The
forthright answer or the hesitant pause, the quivering voice
or the angry tone, the flustered look or the sincere gaze, the
modest blush or the guilty blanch these can reveal if the
witness is telling the truth or lying through his teeth. [15]

D
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT THE GUILT OF THE ACCUSED-APPELLANT WAS
PROVEN BEYOND REASONABLE DOUBT.[12]
The petitioner claims that the lower courts decisions
were erroneous based on two-pronged arguments first,
he cannot be convicted because he was not positively
identified by a credible testimony; and second, if he is
criminally culpable, he can only be convicted of serious
physical injuries as the intent to kill the victim was not
sufficiently proven.
THE COURT RULING
We do not find merit in the petitioners arguments, and
accordingly hold that the petition is devoid of merit.
At the outset, we clarify that we shall no longer deal
with the correctness of the RTC and the CAs
appreciation of the victims identification of the
petitioner as his assailant. This is a question of fact that
we cannot entertain in a Rule 45 review, save for
exceptional reasons[13] that must be clearly and
convincingly shown. As a rule, we accord the greatest
respect for the findings of the lower courts, especially
the evaluation by the trial judge who had the distinct
opportunity to directly hear and observe the witnesses

In this regard, the petitioner cites an exception the

lower courts misappreciation of the testimonial
evidence. Due consideration of the records, however,
does not support the petitioners position. We find that
the RTC and the CA did not err in their appreciation of
the evidence.
The petitioner was positively identified
The RTCs and CAs conclusions on the petitioners
positive identification are supported by ample evidence.
We consider in this regard the following pieces of
evidence of the prosecution: (1) the manner of attack
which was done frontally and at close range, thus
allowing the victim to see his assailant; (2) the lighting
conditions at the scene of the stabbing, provided by two
Meralco posts;[16] the scene was also illuminated
by white, fluorescent type light coming from a steel
manufacturing shop;[17] and (3) that the victim and the
petitioner knew each other also allowed the victim to
readily identify the petitioner as his assailant.
The victims credibility is further strengthened by his
lack of improper motive to falsely accuse the petitioner

of the crime. Human experience tells us that it is

unnatural for a victim to accuse someone other than his
actual attacker; in the normal course of things, the
victim would have the earnest desire to bring the guilty
person to justice, and no other.We consider, too, that
the victim consistently and positively, in and out of
court, identified the petitioner as his assailant. The
victim testified that the petitioner was a neighbor who
lived just a few houses away from his house.
We also take into account the evidence that the
petitioner was the only one seen in possession of a knife
during the rumble. The victim testified that he saw the
petitioner holding a knife which he used to chase away
others.[18] Prosecution witness Arceo testified that he
also saw the petitioner wielding a knife during the
rumble.
Based on these considerations, we find the victims
identification of the petitioner as his assailant to be
positive and conclusive.
In contrast, we find the inconsistencies attributed to the
victim to be minor and insufficient to discredit his
testimony. These inconsistencies refer to extraneous
matters that happened during the rumble, not directly
bearing on the stabbing. They do not likewise relate to
the material elements of the crime.
We also cannot give any credit to the petitioners
position that the victims failure to identify the weapon
used to stab him discredited his testimony. The victims
failure to identify the weapon is irrelevant under the
circumstances, considering that the identity of the
weapon is not an element of the crime charged.
The intent to kill was sufficiently established

The petitioner posits that he can only be held liable for

serious physical injuries since the intent to kill, the
necessary element to characterize the crime as
homicide, was not sufficiently proven. The assailants
intent to kill is the main element that distinguishes the
crime of physical injuries from the crime of homicide.
The crime can only be homicide if the intent to kill is
proven.
Intent to kill is a state of mind that the courts can
discern only through external manifestations, i.e., acts
and conduct of the accused at the time of the assault
and immediately thereafter. In Rivera v. People,[19] we
considered the following factors to determine the
presence of an intent to kill: (1) the means used by the
malefactors; (2) the nature, location, and number of
wounds sustained by the victim; (3) the conduct of the
malefactors before, at the time, or immediately after
the killing of the victim; and (4) the circumstances
under which the crime was committed and the motives
of the accused. We also consider motive and the
words uttered by the offender at the time he inflicted
injuries on the victim as additional determinative
factors.[20]
In this case, the records show that the petitioner used a
knife in his assault. The petitioner stabbed the victim in
the abdomen while the latter was held by Gener and
Orieta. Immediately after the stabbing, the petitioner,
Gener and Orieta beat and stoned the victim until he fell
into a creek. It was only then that the petitioner, Gener
and Orieta left. We consider in this regard that the
stabbing occurred at around 9:30 p.m. with only the
petitioner, Gener, Orieta, and the victim as the only
persons left in the area. The CA aptly observed that a
reasonable inference can be made that the victim was
left for dead when he fell into the creek.

Under these circumstances, we are convinced that the

petitioner, in stabbing, beating and stoning the victim,
intended to kill him. Thus, the crime committed cannot
be merely serious physical injuries.

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.

Frustrated homicide versus attempted homicide

There is an attempt when the offender commences the

commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance. [Emphasis and italics supplied.]

Since the victim did not die, the issue posed to us is the
stage of execution of the crime. The lower courts
differed in their legal conclusions.
On one hand, the RTC held that the crime committed
reached the frustrated stage since the victim was
stabbed on the left side of his stomach and beaten until
he fell into a creek.[21] The RTC also took into account
that the victim had to be referred by the UP Infirmary to
the East Avenue Medical Center for medical treatment.
[22]

On the other hand, the CA ruled that the crime

committed only reached the attempted stage as there
was lack of evidence that the stab wound inflicted was
fatal to cause the victims death.[23] The CA observed
that the attending physician did not testify in court.
[24]
The CA also considered that the Medical Certificate
and the Discharge Summary issued by
the East Avenue Medical Center fell short of specifying
the nature or gravity of the wound.[25]
Article 6 of the Revised Penal Code, as amended defines
the stages of a felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies, as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary
for its execution and accomplishment are present; and it

In Palaganas v. People,[26] we made the following

distinctions between frustrated and attempted felony as
follows:
1.) In frustrated felony, the offender has performed all the
acts of execution which should produce the felony as a
consequence; whereas in attempted felony, the offender
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.
2.) In frustrated felony, the reason for the nonaccomplishment of the crime is some cause independent of
the will of the perpetrator; on the other hand, in attempted
felony, the reason for the non-fulfillment of the crime is a
cause or accident other than the offenders own spontaneous
desistance.[27]

The crucial point to consider is the nature of the wound

inflicted which must be supported by independent proof
showing that the wound inflicted was sufficient to cause
the victims death without timely medical intervention.
In discussing the importance of ascertaining the degree
of injury sustained by a victim and its importance in
determining criminal liability, the Court in People
v. Matyaong, said:[28]
In considering the extent of injury done, account must be
taken of the injury to the function of the various organs, and

also the danger to life. A division into mortal and nonmortal

wounds, if it could be made, would be very desirable; but the
unexpected complications and the various extraneous causes
which give gravity to the simplest cases, and, on the other
hand, the favorable termination of some injuries apparently
the most dangerous, render any such classification
impracticable. The general classification into slight, severe,
dangerous, and mortal wounds may be used, but the
possibility of the slight wound terminating with the loss of the
persons life, and the apparently mortal ending with only a
slight impairment of some function, must always be kept in
mind. x x x
The danger to life of any wound is dependent upon a number
of factors: the extent of the injury, the form of the wound, the
region of the body affected, the blood vessels, nerves, or
organs involved, the entrance of disease-producing bacteria
or other organisms into the wound, the age and constitution
of the person injured, and the opportunities for administering
proper surgical treatment.

When nothing in the evidence shows that the wound

would be fatal without medical intervention, the
character of the wound enters the realm of doubt; under
this situation, the doubt created by the lack of evidence
should be resolved in favor of the petitioner. Thus, the
crime committed should be attempted,
not frustrated, homicide.[29]
Under these standards, we agree with the CAs
conclusion. From all accounts, although the stab wound
could have been fatal since the victim testified that he
saw his intestines showed, no exact evidence exists to
prove the gravity of the wound; hence, we cannot
consider the stab wound as sufficient to cause death. As
correctly observed by the CA, the victims attending
physician did not testify on the gravity of the wound
inflicted on the victim. We consider, too, the CAs
observation that the medical certifications issued by
the East Avenue Medical Center merely stated the

location of the wound.[30] There was also no proof that

without timely medical intervention, the victim would
have died.[31] This paucity of proof must necessarily
favor the petitioner.
The view from the frustrated stage of the crime gives
the same results. The elements of frustrated homicide
are: (1) the accused intended to kill his victim, as
manifested by his use of a deadly weapon in his
assault; (2) the victim sustained fatal or mortal wound/s
but did not die because of timely medical assistance;
and (3) none of the qualifying circumstance for murder
under Article 248 of the Revised Penal Code, as
amended, is present.[32] Since the prosecution failed to
prove the second element, we cannot hold the
petitioner liable for frustrated homicide.
THE PENALTY
Article 51 of the Revised Penal Code, as amended,
provides that the imposable penalty for an attempted
crime shall be lower by two degrees than that
prescribed by law for the consummated felony.
Under Article 249, the crime of homicide is punished
by reclusion temporal. Applying Article 61 (Rules of
graduating penalties) and Article 71 (Graduated scales),
two (2) degrees lower of reclusion temporal is prision
correccional which has a duration of six (6) months and
one (1) day to six (6) years.
Under the Indeterminate Sentence Law, the maximum
term of the indeterminate sentence shall be taken, in
view of the attending circumstances that could be
properly imposed under the rules of the Revised Penal
Code, and the minimum term shall be within the range
of the penalty next lower to that prescribed by the
Revised Penal Code.[33]Thus, the maximum term of the

indeterminate sentence shall be taken within the range

of prision correccional, depending on the modifying
circumstances. In turn, the minimum term of the
indeterminate penalty to be imposed shall be taken
from the penalty one degree lower of prision
correccional, that is arresto mayor with a duration of
one (1) month and one (1) day to six (6) months.
In the absence of any modifying circumstance, the
maximum term of the indeterminate penalty shall be
taken from the medium period of prision correccional or
two (2) years and four (4) months and one (1) day to
four (4) years and two (2) months.[34] The minimum term
shall be taken within the range of arresto mayor. Hence,
the penalty imposed by the CA against the petitioner of
six (6) months of arresto mayor, as minimum term of
the indeterminate penalty, to four (4) years and two (2)
months of prision correccional, as maximum term of the
indeterminate penalty, is correct.
THE CIVIL LIABILITY
We modify the CA decision with respect to the
petitioners civil liability. The CA ordered actual damages
to be paid in the amount of P3,858.50. This is erroneous
and contrary to the prevailing jurisprudence.
In People v. Andres,[35] we held that if the actual
damages, proven by receipts during the trial, amount to
less than P25,000.00, the victim shall be entitled to
temperate damages in the amount of P25,000.00, in
lieu of actual damages. The award of temperate
damages is based on Article 2224 of the New Civil Code
which states that temperate or moderate damages may
be recovered when the court finds that some pecuniary
loss was suffered but its amount cannot be proven with
certainty. In this case, the victim is entitled to the award
of P25,000.00 as temperate damages considering that
the amount of actual damages is only P3,858.50. The
amount of actual damages shall be deleted.

Lastly, we find that the victim is also entitled to moral

damages in the amount of P10,000.00 in accordance
with settled jurisprudence.[36] Under Article 2219,
paragraph 1 of the New Civil Code, the victim is entitled
to moral damages in a criminal offense resulting in
physical injuries.
WHEREFORE, we hereby DENY the petition. The
decision, dated July 20, 2006, of the Court of Appeals in
CA-G.R. CR No. 29090, finding petitioner Giovani
Serrano y Cervantes guilty beyond reasonable doubt of
Attempted Homicide, is AFFIRMED with MODIFICATION.
The petitioner is ORDERED to PAY the victim, Anthony
Galang, the following amounts:
(1) P25,000.00 as temperate damages; and
(2) P10,000.00 as moral damages.
Costs against the petitioner.
SO ORDERED.

Assailed before Us is the Decision[1] of the Court of

Appeals (CA), dated February 18, 2005, in CA-G.R. CR.
No. 27458, which affirmed with modification the
Decision[2] of the Regional Trial Court (RTC) of Aparri,
Cagayan, Branch 6, in Criminal Case No. VI-984, finding
petitioner Engr. Carlito Pentecostes, Jr. guilty of the
crime of less serious physical injuries instead of
attempted murder, and the Resolution[3] dated April 19,
2005, denying the motion for reconsideration.
The antecedents are as follows:
Republic of the Philippines
On September 2, 1998, Rudy Baclig was drinking with
Supreme Court
his brother-in-law. After consuming bottle of gin, he left
Baguio City
and went to the house of a certain Siababa to buy
coffee and sugar. He was accompanied by his four- yearTHIRD DIVISION
old son. On their way there, a gray automobile coming
from the opposite direction passed by them. After a
ENGR. CARLITO PENTECOSTES, JR.,
G.R. No. 167766
while, he noticed that the vehicle was moving backward
Petitioner,
towards them. When the car was about two arms length
Present:
from where they were, it stopped and he heard the
driver of the vehicle call him by his
CORONA, J., Chairperson
nickname Parrod. Rudy came closer, but after taking
- versus VELASCO, JR.,
one step, the driver, which he identified as the
NACHURA,
petitioner, opened the door and while still in the car
PERALTA, and
drew a gun and shot him once, hitting him just below
MENDOZA, JJ.
the left armpit. Rudy immediately ran at the back of the
car, while petitioner sped away. After petitioner left,
PEOPLE OF THE PHILIPPINES,
Promulgated:
Rudy and his son headed to the seashore. Rudy later
Respondent.
went back to the place where he was shot and shouted
April 7, 2010
for help.[4]
x----------------------------------------- - - - - - - - - -x
The people who assisted him initially brought him to the
Municipal Hall of Gonzaga, Cagayan, where he was
DECISION
interrogated by a policeman who asked him to identify
his assailant. He informed the policeman that petitioner
PERALTA, J.:
was the one who shot him. After he was interrogated, he
was later brought to
the Don Alfonso Ponce Memorial Hospital at Gonzaga,

Cagayan. The following day, he was discharged from the

hospital.[5]
On June 1, 1999, an Information[6] was filed by the
Provincial Prosecutor of Aparri, Cagayan, charging the
petitioner of frustrated murder, the pertinent portion of
which reads:
That on or about September 2, 1998, in the [M]unicipality of
Gonzaga, [P]rovince of Cagayan, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with
a gun, with intent to kill, with evident premeditation and with
treachery, did then and there willfully, unlawfully and
feloniously assault, attack and shoot one Rudy Baclig,
inflicting upon the latter gunshot injuries.
That the accused had performed all the acts of execution
which would have produce[d] the crime of Murder as a
consequence, but which, nevertheless, did not produce it by
reason of causes independent of his own will.
That the same was aggravated by the use of an unlicensed
firearm.
CONTRARY TO LAW.

Duly arraigned, petitioner pleaded Not Guilty to the

crime as charged.[7]
During the trial, it was established that at the time the
incident occurred, petitioner was employed by the
National Irrigation Administration (NIA) as Irrigation
Superintendent assigned at the Baua River Irrigation
System (BRIS). Petitioner vehemently denied any
involvement in the incident, alleging that he was
in Quezon City at the time the crime was being
committed. He contended that he was following-up the
funding for one of the projects of NIA in Gonzaga,
Cagayan. He insisted that he reported at the NIA Central
Office on September 1, 1998 and stayed in Manila until

the afternoon of September 4, 1998. To buttress his

allegations, the petitioner presented a Certificate of
Appearance[8] issued by Engr. Orlando C. Hondrade,
then NIA Deputy Administrator, who testified thru a
deposition that he indeed signed the document. Engr.
Hondrade testified that he specifically remembered that
petitioner personally appeared before him on the 1st and
4th days of September for a duration of 10 to 15
minutes. Petitioner also submitted his daily time record
to prove that he was not at their office in Cagayan from
the afternoon of August 31, 1998, claiming that he
traveled to Quezon City pursuant to a travel authority
issued by his superior.[9]
On February 27, 2003, after presentation of the parties
respective evidence, the RTC rendered a
Decision[10] finding petitioner guilty of the crime of
attempted murder.The decretal portion of the Decision
reads:
WHEREFORE, the Court finds accused Engr. Carlito
Pentecostes, Jr. guilty beyond reasonable doubt as principal
of the crime of Attempted Murder and sentences him the
penalty of four (4) years, two (2) months and one (1) day
of prision correccional, as minimum, to eight (8) years
of prision mayor, as maximum. Further, the accused is
ordered to pay private complainant Rudy Baclig the amount
of Two Thousand Pesos (P2,000.00).
SO ORDERED.[11]

The RTC concluded that Rudy positively identified the

petitioner as the one who shot him there was
sufficient lighting for Rudy to identify the perpetrator
and he knew petitioner ever since he attained the age
of reason. As to petitioners defense of alibi, the RTC
ratiocinated that when petitioner personally appeared
before Engr. Hondrade onSeptember 1, 1998, it would
not be impossible for him to immediately return to

Gonzaga, Cagayan that afternoon and commit the crime

in the evening of September 2, 1998.[12]
Petitioner then sought recourse before the CA, arguing
that the RTC committed serious errors in finding that he
was guilty of attempted murder and that the RTC failed
to consider the testimonies of his witnesses and the
documentary evidence presented in his favor.[13]
On February 18, 2005, the CA rendered a Decision
affirming with modification the decision of the RTC, the
dispositive portion of which reads:
WHEREFORE, the Decision of the Regional Trial Court
dated 27 February 2003 is AFFIRMED with MODIFICATION that
accused-appellant Pentecostes is only found GUILTY OF LESS
SERIOUS PHYSICAL INJURIES and is hereby sentenced to
suffer imprisonment of six (6) months of arresto mayor, there
being one aggravating and no mitigating circumstance to
offset it.
SO ORDERED.[14]

In convicting the petitioner to a lesser offence, the CA

opined that it was not established that petitioner
intended to kill Rudy when he shot him. Petitioners act
of shooting Rudy once was not followed by any other
assault or any act which would ensure his
death. Considering that petitioner was driving a car, he
could have chased Rudy if he really intended to kill the
latter, or run him over since Rudy went to the rear of
the car. Petitioners desistance displayed his
nonchalance to cause the death of Rudy. Moreover,
Rudy only sustained a gunshot wound on the arm, which
required only 10 days of medical attendance.[15]

Not satisfied, petitioner filed a Motion for

Reconsideration,[16] but was denied in a Resolution
dated April 9, 2005.
Hence, this petition which raises the following issues:
THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT,
COMMITTED A GRAVE ABUSE OF DISCRETION WHEN IT GIVES
CREDENCE TO THE STATEMENT OF THE PRIVATE
COMPLAINANT PRESUMING THAT THE PETITIONER-APPELLANT
IS THE ASSAILANT ALLEGEDLY DUE TO HIS VOICE AND HIS
ALLEGED OWNERSHIP OF THE VEHICLE, AND CONSIDERING
THAT THE PRIVATE COMPLAINANT WAS THEN INTOXICATED,
AND THE CRIME WAS COMMITTED AT NIGHTTIME, SUCH
CONCLUSION IS ENTIRELY GROUNDED ON SPECULATIONS,
SURMISES AND CONJECTURES.
THE HONORABLE FOURTEENTH DIVISION COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT FAILED TO GIVE WEIGHT,
DISCUSS AND CONSIDER THE ARGUMENTS AND DEFENSES
MADE THE PETITIONER-APPELLANT IN OUR BRIEF, VIS--VIS
THE MANIFESTATION AND MOTION OF THE SOLICITOR
GENERAL.
THE HONORABLE FOURTEENTH DIVISION COMMITTED AN
ERROR WHEN IT RELIED HEAVILY ON AN UNFOUNDED,
BASELESS AND ALLEGED MOTIVE OF PETITIONER, BEING A
CRUSADER OF ILLEGAL DRUGS IN THEIR OWN TOWN, TO BE
THE BASIS THAT HE IS THE ASSAILANT.[17]

Petitioner questions the conclusion of the CA when it

found him guilty of the crime of less serious physical
injuries. He argues that Rudy failed to positively identify
him as the assailant, since Rudy never admitted that he
was able to identify the petitioner through his physical
appearance, but only through his voice, despite the fact
that it was the first time Rudy heard petitioners voice
when he allegedly shot him. Petitioner also insists that
when the incident occurred, Rudys vision was impaired

as he just drank half a bottle of gin and the place was

not properly lit. Rudy also failed to identify the type of
gun used during the shooting. Moreover, the
prosecution failed to establish that the car used by the
perpetrator was owned by the petitioner.
Further, petitioner maintains that it was impossible for
him to have shot the victim on the night of September
2, 1998, since he was not in the Province of Cagayan
Valley from September 1, 1998 to September 4, 1998.
The petition is bereft merit.
In sum, petitioner submits before this Court two issues
for resolution. First, whether or not the prosecution
established beyond reasonable doubt that petitioner
was the one who shot the victim; Second, whether or
not petitioners defense of alibi would prosper.
As regards the first issue, this Court finds that the
prosecution established beyond reasonable doubt that
petitioner was the one who shot Rudy that fateful night
ofSeptember 2, 1998. Both the RTC and the CA found
that petitioner indeed shot Rudy. In arriving at this
conclusion, the RTC ratiocinated in this wise:
Private complainant Rudy Baclig averred that he personally
knew the accused since he was of the age of reason. Rudy
knew accused Engr. Carlito Pentecostes Jr. to be working with
the NIA at Sta. Cruz, Gonzaga, Cagayan. Both private
complainant Rudy Baclig and accused Engr. Carlito
Pentecostes Jr. were residents of Gonzaga, Cagayan, although
they reside in different barangays. Rudy was residing at Brgy.
Batangan, while the accused was living two-and-a-half
kilometers away at Brgy. Flourishing. Rudy Baclig
categorically stated that when the car of the accused passed
by him, it slowly stopped then moved backward and when
the car was at a distance of about two arms length, which
was about three (3) meters, the accused called Rudys

nickname Parrod. Hearing his nickname, Rudy went towards

the car, but he was only able to take one step, accused Engr.
Carlito Pentecostes Jr. opened the door of the car and shot
Rudy once and afterwards the accused hurriedly sped
away. Asked how he was able to identify Engr. Carlito
Pentecostes Jr. to be the person who shot him when it was
night time, Rudy said that he was able to identify the
accused through the lights of the car and on crossexamination he said that aside from the lights of the car,
there were also lights coming from a store nearby the place
of the incident. The Court believes that with these kinds of
lights, Rudy Baclig was able to identify the accused,
considering the distance between the assailant and the
victim was only three (3) meters.
x x x x.
Rudy Baclig was not telling a lie when he declared that he
was shot at about two arms length only because the doctor
who treated him, Dr. Mila M. Marantan, declared that Rudy
Baclig suffered a gunshot wound, the entry was with powder
burns which is an evidence that Rudy Baclig was shot at a
close range.
The defense harped on the fact that the private complainant
smelled liquor. The complainant at first denied having taken
liquor, but he admitted he took one-half bottle of gin before
he went to buy coffee and sugar. On cross-examination, the
complainant admitted also that every afternoon, he drank
liquor. He admitted that he could still walk naturally a
distance of about one kilometer. He also said that his vision
might be affected. This testimony of Rudy Baclig cannot be
considered as evidence that he was not able to identify the
accused. He was categorical in stating that he was able to
identify the accused. The doctor who treated Rudy of his
injury declared the patient smelled liquor, but she could not
tell how much liquor the patient took, however, the patient
could answer all her questions.
x x x x.

There are other evidences that tend to show that Rudy Baclig
was able to identify the assailant. Immediately after he was
shot, Rudy told a police investigator, a certain Torres and Dr.
Mila Marantan that it was Engr. Carlito Pentecostes, Jr. who
shot him.[18]

This conclusion was concurred into by the CA, which

categorically stated in its decision that [t]he prosecution
was able to present a witness, in the person of Baclig,
who categorically identified petitioner as his assailant
and whose testimony was characterized by frankness.
[19]
Contrary to petitioners contention, Rudy saw him and
positively identified him as his shooter, viz:
Q: When you heard the driver of the car calling you by your
nickname Parrod, what was your reaction?
A: I went near because I thought he was telling me
something.
Q: And what made you decide to go near the driver of the
vehicle?
A: Because he called me by my name, Sir.
Q: When the driver of the car called you by your [nickname],
were you able to recognize the driver of the car who called
you?
A: Yes, Sir.
Q: And who was that person who called you by your name
Parrod?
A: It was Engr. Pentecostes, Sir.
Q: The same person you identified a while ago?
A: Yes, Sir.[20]

Corollarilly, petitioner already raised these arguments in

his motion for reconsideration of the decision of the
court a quo, which the CA addressed point by point in

the assailed resolution denying the motion. We quote

with approval the following discussion of the CA:
On the first allegation, accused-appellant wrongly read the
decision. The Court upheld the trial courts finding that it was
indeed accused-appellant who attacked the private
complainant, not because the latter heard accusedappellants voice but that he was able to see him through the
lights of the car when he opened the window and the door. x
xx
xxxx
Clearly, it was not merely hearing the assailants voice, but
that he was able to see him, that private-complainant was
able to identify the accused-appellant. It was admittedly a
fact that private complainant had a drink but it does not
mean that he was intoxicated, especially since he admitted
that he drinks everyday. Thus, his bodys tolerance to alcohol
is probably heightened.There was also no proof that his
vision had been affected by the alcohol intake, and that he
would have mistaken someone else for the accused.
Again, positive declaration is given more weight than the
denial of the accused-appellant. In addition, the same
findings were previously reached by the trial court which had
the opportunity to observe first-hand the demeanor of the
witnesses, and assess their credibility.
Regarding the Solicitor Generals recommendation, the Court
is not bound to follow it although in some cases, we are
persuaded by the same. However, in this case, it was not
able to persuade Us as it only adopted the same arguments
advanced by accused- appellants counsel.
Some of these arguments include the failure to present any
document or evidence showing that the car used was owned
by the accused-appellant. The ownership of the car, however,
is immaterial in the light of the positive identification of the
accused. In addition, the statement of the prosecutions
witnesses that the car was often used by accused-appellants

father does not remove the possibility that he may also use
it.
On the third allegation of error, again, accused-appellant has
misread the decision and exaggerated by accusing us of
relying heavily on the existence of a probable motive on the
part of accused-appellant to commit the act complained
of. This is clear in the decision that the same was meant to
assess whether there was a probable motive for the private
complainant to lie.[21]

It is clear that the arguments advanced by the

petitioner in the case at bar, questioning the conclusion
of the RTC and the CA that petitioner shot the victim,
are trivial. The fact remains that Rudy has been shot
with a gun and he positively identified his shooter as the
petitioner. Petitioner faulted the RTC and the CA for
giving credence to the testimony of Rudy. However, it is
to be noted that even the lone declaration of a sole
eyewitness is sufficient to convict if that testimony is
found to be credible. Credibility of witnesses is to be
weighed and should not be based on numbers. The
matter of assigning values to declaration on the witness
stand is best and most competently performed by the
trial judge who had the unmatched opportunity to
observe the witnesses and to assess their credibility by
various indicia available but not reflected on the record.
[22]

This Court has meticulously scrutinized the transcripts

of stenographic notes of this case and finds that the
RTC, as well as the CA, committed no error in giving
credence to the evidence of the prosecution. The Court
has long adhered to the rule that findings of the trial
court on the credibility of witnesses and their
testimonies are accorded great respect unless it
overlooked substantial facts and circumstances, which if
considered, would materially affect the result of the
case. This deference to the trial courts appreciation of

the facts and of the credibility of witnesses is consistent

with the principle that when the testimony of a witness
meets the test of credibility, that alone is sufficient to
convict the accused.[23] This is especially true when the
factual findings of the trial court are affirmed by the
appellate court.[24]
As regards petitioners defense of alibi, well settled is the
rule that alibi is an inherently weak defense which
cannot prevail over the positive identification of the
accused by the victim.[25] Moreover, in order for
the defense of alibi to prosper, it is not enough to prove
that the petitioner was somewhere else when the
offense was committed, but it must likewise be
demonstrated that he was so far away that it was not
possible for him to have been physically present at the
place of the crime or its immediate vicinity at the time
of its commission.[26] In the case at bar, it was
established that petitioner personally appeared before
Engr. Hondrade only on September 1 and 4, 1998. His
whereabouts for the two days in between the said dates
are unaccounted for. There was no showing that he
could not have gone back to Cagayan, committed the
crime, and went back to Quezon Cityduring those two
days. Petitioners defense of denial and alibi cannot
prevail as against the positive, straightforward and
consistent testimony of Rudy that it was petitioner who
shot him on the night of September 2, 1998.
As to the crime committed by petitioner, this Court also
concurs with the conclusion of the CA that petitioner is
guilty of the crime of less serious physical injuries, not
attempted murder.
The principal and essential element of attempted or
frustrated murder is the intent on the part of the
assailant to take the life of the person attacked. Such
intent must be proved in a clear and evident manner to

exclude every possible doubt as to the homicidal intent

of the aggressor.[27] In the present case, intent to kill the
victim could not be inferred from the surrounding
circumstances. Petitioner only shot the victim once and
did not hit any vital part of the latters body. If he
intended to kill him, petitioner could have shot the
victim multiple times or even ran him over with the
car. Favorably to petitioner, the inference that intent to
kill existed should not be drawn in the absence of
circumstances sufficient to prove this fact beyond
reasonable doubt.[28] When such intent is lacking but
wounds are inflicted upon the victim, the crime is not
attempted murder but physical injuries only. Since the
Medico-Legal Certificate[29] issued by the doctor who
attended Rudy stated that the wound would only require
ten (10) days of medical attendance, and he was, in
fact, discharged the following day, the crime committed
is less serious physical injuries only. The less serious
physical injury suffered by Rudy is defined under Article
265 of the Revised Penal Code, which provides that
"(A)ny person who inflicts upon another physical injuries
not described as serious physical injuries but which shall
incapacitate the offended party for labor for ten (10)
days or more, or shall require medical attendance for
the same period, shall be guilty of less serious physical
injuries and shall suffer the penalty of arresto mayor."
As to the aggravating circumstance of treachery, this
Court finds that the CA erroneously concluded that
treachery attended the commission of the crime. To
establish treachery, the following must be proven: (1)
the employment of such means of execution as would
give the person attacked no opportunity for self-defense
or retaliation; and (2) the deliberate and conscious
adoption of the means of execution.[30] The
circumstances attending the commission of the crime

negate the existence of treachery in its

execution.Although petitioner deliberately assaulted
Rudy and there was suddenness in his attack, he did not
logically plan to assault the latter when he chanced
upon him while he was driving. In treachery, the
perpetrator intentionally and purposely employs ways
and means to commit the crime. There was no
evidence, however, to show that petitioner
employed such means of execution that would ensure
the commission of the crime without harm to his
person. Thus, treachery did not attend the commission
of the crime.
There being no aggravating and no mitigating
circumstance, the penalty for the crime of less serious
physical injuries should be taken from the medium
period of arresto mayor, which is from two (2) months
and one (1) day to four (4) months. The Indeterminate
Sentence Law finds no application in the case at bar,
since it does not apply to those whose maximum term
of imprisonment is less than one year.[31]
As regards the awards for damages, moral damages
may be recovered in criminal offenses resulting
in physical injuries, but there must be a factual basis for
the award.[32]We have studied the records and find no
factual basis for the award of moral damages.
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals, dated February 18, 2005, and the
Resolution dated April 19, 2005 in CA-G.R. CR No.
27458, are AFFIRMED with MODIFICATION. Petitioner
Engr. Carlito Pentecostes, Jr. is sentenced to suffer the
straight penalty of three (3) months of arresto mayor.
SO ORDERED.