FIRST DIVISION
[G.R. No. 166326. January 25, 2006.]
ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO RIVERA ,
petitioners, vs. PEOPLE OF THE PHILIPPINES , respondent.
DECISION
CALLEJO, SR., J : p
This is a petition for review of the Decision 1 of the Court of Appeals (CA) in CA-
G.R. CR No. 27215 affirming, with modification, the Decision 2 of the Regional Trial
Court (RTC) of Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People of the
Philippines. v. Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging
Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of attempted murder. The
accusatory portion of the Information reads:
That on or about the 3rd day of May 1998, in the Municipality of
Dasmariñas, Province of Cavite, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with intent to kill, with treachery and evident
premeditation, did then and there, wilfully, unlawfully, and feloniously attack,
assault and hit with a piece of hollow block, one RUBEN RODIL who thereby
sustained a non-mortal injury on his head and on the different parts of his body,
the accused thus commenced the commission of the felony directly by overt
acts, but failed to perform all the acts of execution which would produce the
crime of Murder by reason of some causes other than their own spontaneous
desistance, that is, the said Ruben Rodil was able to ran (sic) away and the
timely response of the policemen, to his damage and prejudice.
CONTRARY TO LAW. 3
Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in
April 1998 after a would-be rapist threatened his life. He was even given a citation as a
Bayaning Pilipino by the television network ABS-CBN for saving the would-be victim.
His wife eked out a living as a manicurist. They and their three children resided in
Barangay San Isidro Labrador II, Dasmariñas, Cavite, near the house of Esmeraldo
Rivera and his brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo
mocked him for being jobless and dependent on his wife for support. Ruben resented
the rebuke and hurled invectives at Edgardo. A heated exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food
and to look for his wife. His three-year-old daughter was with him. Momentarily,
Esmeraldo and his two brothers, Ismael and Edgardo, emerged from their house and
ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with fist blows and he fell
to the ground. In that helpless position, Edgardo hit Ruben three times with a hollow
block on the parietal area. Esmeraldo and Ismael continued mauling Ruben. People
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who saw the incident shouted: "Awatin sila! Awatin sila!" Ruben felt dizzy but managed
to stand up. Ismael threw a stone at him, hitting him at the back. When policemen on
board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their house.
Ruben was brought to the hospital. His attending physician, Dr. Lamberto
Cagingin, Jr., signed a medical certificate in which he declared that Ruben sustained
lacerated wounds on the parietal area, cerebral concussion or contusion, hematoma on
the left upper buttocks, multiple abrasions on the left shoulder and hematoma periorbital
left. 4 The doctor declared that the lacerated wound in the parietal area was slight and
superficial and would heal from one to seven days. 5 The doctor prescribed medicine
for Ruben's back pain, which he had to take for one month. 6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at
his house and banged the gate. Ruben challenged him and his brothers to come out
and fight. When he went out of the house and talked to Ruben, the latter punched him.
They wrestled with each other. He fell to the ground. Edgardo arrived and pushed
Ruben aside. His wife arrived, and he was pulled away and brought to their house. DHcSIT
For his part, Ismael testified that he tried to pacify Ruben and his brother
Esmeraldo, but Ruben grabbed him by the hair. He managed to free himself from
Ruben and the latter fled. He went home afterwards. He did not see his brother Edgardo
at the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing
garbage in front of their house. Ruben arrived and he went inside the house to avoid a
confrontation. Ruben banged the gate and ordered him to get out of their house and
even threatened to shoot him. His brother Esmeraldo went out of their house and asked
Ruben what the problem was. A fist fight ensued. Edgardo rushed out of the house and
pushed Ruben aside. Ruben fell to the ground. When he stood up, he pulled at
Edgardo's shirt and hair, and, in the process, Ruben's head hit the lamp post. 7
On August 30, 2002, the trial court rendered judgment finding all the accused
guilty beyond reasonable doubt of frustrated murder. The dispositive portion of the
decision reads:
WHEREFORE, premises considered, all the accused are found GUILTY
beyond reasonable doubt and are sentenced to an imprisonment of six (6)
years and one (1) day to eight (8) years of prision mayor as the prosecution has
proved beyond reasonable doubt the culpability of the accused. Likewise, the
accused are to pay, jointly and severally, civil indemnity to the private
complainant in the amount of P30,000.00.
SO ORDERED. 8
The trial court gave no credence to the collective testimonies of the accused and
their witnesses. The accused appealed to the CA, which rendered judgment on June 8,
2004 affirming, with modification, the appealed decision. The dispositive portion of the
CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite,
Branch 90, is MODIFIED in that the appellants are convicted of ATTEMPTED
MURDER and sentenced to an indeterminate penalty of 2 years of prision
correccional as minimum to 6 years and 1 day ofprision mayor as maximum. In
all other respects, the decision appealed from is AFFIRMED.
SO ORDERED. 9
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The accused, now petitioners, filed the instant petition for review on certiorari,
alleging that the CA erred in affirming the RTC decision. They insist that the prosecution
failed to prove that they had the intention to kill Ruben when they mauled and hit him
with a hollow block. Petitioners aver that, based on the testimony of Dr. Cagingin,
Ruben sustained only a superficial wound in the parietal area; hence, they should be
held criminally liable for physical injuries only. Even if petitioners had the intent to kill
Ruben, the prosecution failed to prove treachery; hence, they should be held guilty only
of attempted homicide.
On the other hand, the CA held that the prosecution was able to prove petitioners'
intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from the nature
of the wound inflicted and the kind of weapon used. Intent to kill was
established by victim Ruben Rodil in his testimony as follows:
Q: And while you were being boxed by Esmeraldo and Bong, what
happened next?
A: When I was already lying [down] . . ., Dagol Rivera showed up with
a piece of hollow block . . . and hit me thrice on the head, Sir.
Q: And what about the two (2), what were they doing when you were
hit with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing me while
Dagol was hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed the victim
had the hollow block directly hit his head, and had the police not promptly
intervened so that the brothers scampered away. When a wound is not
sufficient to cause death, but intent to kill is evident, the crime is attempted.
Intent to kill was shown by the fact that the (3) brothers helped each other maul
the defenseless victim, and even after he had already fallen to the ground; that
one of them even picked up a cement hollow block and proceeded to hit the
victim on the head with it three times; and that it was only the arrival of the
policemen that made the appellants desist from their concerted act of trying to
kill Ruben Rodil. 10
The Office of the Solicitor General (OSG), for its part, asserts that the decision of
the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat the
presumption of innocence raised by petitioners. The crime has been clearly
established with petitioners as the perpetrators. Their intent to kill is very
evident and was established beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly
and categorically declared that the victim Ruben Rodil was walking along St.
Peter Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera. They
further narrated that, soon thereafter, his two brothers Ismael and Edgardo
"Dagul" Rivera, coming from St. Peter II, ganged up on the victim. Both Alicia
Vera Cruz and Lucita Villejo recounted that they saw Edgardo "Dagul" Rivera
pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful
review of their testimonies revealed the suddenness and unexpectedness of
the attack of petitioners. In this case, the victim did not even have the slightest
warning of the danger that lay ahead as he was carrying his three-year old
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daughter. He was caught off-guard by the assault of Esmeraldo "Baby" Rivera
and the simultaneous attack of the two other petitioners. It was also established
that the victim was hit by Edgardo "Dagul" Rivera, while he was lying on the
ground and being mauled by the other petitioners. Petitioners could have killed
the victim had he not managed to escape and had the police not promptly
intervened.
Petitioners also draw attention to the fact that the injury sustained by the
victim was superficial and, thus, not life threatening. The nature of the injury
does not negate the intent to kill. The Court of Appeals held:
As earlier stated by Dr. Cagingin, appellants could have killed the
victim had the hollow block directly hit his head, and had the police not
promptly intervened so that the brothers scampered away. When a wound
is not sufficient to cause death, but intent to kill is evident, the crime is
attempted. Intent to kill was shown by the fact that the three (3) brothers
helped each other maul the defenseless victim, and even after he had
already fallen to the ground; that one of them picked up a cement hollow
block and proceeded to hit the victim on the head with it three times; and
that it was only the arrival of the policemen that made the appellants desist
from their concerted act of trying to kill Ruben Rodil. 11
The petition is denied for lack of merit. HIETAc
An essential element of murder and homicide, whether in their consummated,
frustrated or attempted stage, is intent of the offenders to kill the victim immediately
before or simultaneously with the infliction of injuries. Intent to kill is a specific intent
which the prosecution must prove by direct or circumstantial evidence, while general
criminal intent is presumed from the commission of a felony by dolo.
In People v. Delim , 12 the Court declared that evidence to prove intent to kill in
crimes against persons may consist, inter alia, in the means used by the malefactors,
the nature, location and number of wounds sustained by the victim, the conduct of the
malefactors before, at the time, or immediately after the killing of the victim, the
circumstances under which the crime was committed and the motives of the accused. If
the victim dies as a result of a deliberate act of the malefactors, intent to kill is
presumed.
In the present case, the prosecution mustered the requisite quantum of evidence
to prove the intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the
victim with fist blows. Even as Ruben fell to the ground, unable to defend himself
against the sudden and sustained assault of petitioners, Edgardo hit him three times
with a hollow block. Edgardo tried to hit Ruben on the head, missed, but still managed
to hit the victim only in the parietal area, resulting in a lacerated wound and cerebral
contusions.
That the head wounds sustained by the victim were merely superficial and could
not have produced his death does not negate petitioners' criminal liability for attempted
murder. Even if Edgardo did not hit the victim squarely on the head, petitioners are still
criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code defines an attempt to
commit a felony, thus:
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
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which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by
overt acts;
2. He does not perform all the acts of execution which should
produce the felony;
3. The offender's act be not stopped by his own spontaneous
desistance;
4. The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance. 13
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime
intended to be committed. 14
The Court in People v. Lizada 15 elaborated on the concept of an overt or
external act, thus:
An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere planning
or preparation, which if carried out to its complete termination following its
natural course, without being frustrated by external obstacles nor by the
spontaneous desistance of the perpetrator, will logically and necessarily ripen
into a concrete offense. The raison d'etre for the law requiring a direct overt act
is that, in a majority of cases, the conduct of the accused consisting merely of
acts of preparation has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason
that so long as the equivocal quality remains, no one can say with certainty
what the intent of the accused is. It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if
it was the "first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made." The act done need
not constitute the last proximate one for completion. It is necessary, however,
that the attempt must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and necessary relation to the
offense. 16
In the case at bar, petitioners, who acted in concert, commenced the felony of
murder by mauling the victim and hitting him three times with a hollow block; they
narrowly missed hitting the middle portion of his head. If Edgardo had done so, Ruben
would surely have died.
We reject petitioners' contention that the prosecution failed to prove treachery in
the commission of the felony. Petitioners attacked the victim in a sudden and
unexpected manner as Ruben was walking with his three-year-old daughter, impervious
of the imminent peril to his life. He had no chance to defend himself and retaliate. He
was overwhelmed by the synchronized assault of the three siblings. The essence of
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treachery is the sudden and unexpected attack on the victim. 17 Even if the attack is
frontal but is sudden and unexpected, giving no opportunity for the victim to repel it or
defend himself, there would be treachery. 18 Obviously, petitioners assaulted the victim
because of the altercation between him and petitioner Edgardo Rivera a day before.
There being conspiracy by and among petitioners, treachery is considered against all of
them. 19
The appellate court sentenced petitioners to suffer an indeterminate penalty of
two (2) years of prision correccional in its minimum period, as minimum, to six years
and one day of prision mayor in its maximum period, as maximum. This is erroneous.
Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659,
the penalty for murder is reclusion perpetua to death. Since petitioners are guilty only of
attempted murder, the penalty should be reduced by two degrees, conformably to
Article 51 of the Revised Penal Code. Under paragraph 2 of Article 61, in relation to
Article 71 of the Revised Penal Code, such a penalty is prision mayor. In the absence of
any modifying circumstance in the commission of the felony (other than the qualifying
circumstance of treachery), the maximum of the indeterminate penalty shall be taken
from the medium period of prision mayor which has a range of from eight (8) years and
one (1) day to ten (10) years. To determine the minimum of the indeterminate penalty,
the penalty of prision mayor should be reduced by one degree, prision correccional,
which has a range of six (6) months and one (1) day to six (6) years.
Hence, petitioners should be sentenced to suffer an indeterminate penalty of
from two (2) years of prision correccional in its minimum period, as minimum, to nine (9)
years and four (4) months of prision mayor in its medium period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
The Decision of the Court of Appeals is AFFIRMED WITH THE MODIFICATION that
petitioners are sentenced to suffer an indeterminate penalty of from two (2) years of
prision correccional in its minimum period, as minimum, to nine (9) years and four (4)
months of prision mayor in its medium period, as maximum. No costs.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ.,
concur.
Footnotes
1. Penned by Associate Justice Portia Aliño-Hormachuelos (Chairman), with Associate
Justices Danilo B. Pine and Fernanda Lampas Peralta, concurring; rollo, pp. 17-29.
2. Penned by Judge Dolores L. Español; CA rollo, pp. 15-19.
3. Records, p. 1.
4. Exhibits "B" and "B-1," records, p. 9.
5. Id.
6. TSN, June 19, 2000, p. 29.
7. TSN, September 24, 2001, pp. 2-18.
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8. Records, p. 257.
9. CA rollo, p. 136.
10. Rollo, pp. 25-26.
11. Id. at 70-71.
12. G.R. No. 142773, January 28, 2003, 444 Phil. 430, 450 (2003).
13. People v. Lizada, G.R. No. 143468-71, January 24, 2003, 444 Phil. 67 (2003).
14. Reyes, Revised Penal Code, 1981, Vol. I, p. 98.
15. Supra at note 13.
16. Id. at 98-99.
17. People v. Gutierrez, G.R. No. 142905, March 18, 2002, 429 Phil. 124, 126 (2002).
18. People v. Coscos, G.R. No. 132321, January 21, 2002, 424 Phil. 886, 903 (2002).
19. People v. Sullano, G.R. No. 125896, May 11, 2000, 387 Phil. 668, 682 (2000).
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