PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FELIPE VELORIA Y RAPSING, ACCUSED-APPELLANT.
DE GUIA-SALVADOR, R., J.:
THE INDICTMENT
An Information dated 21 December 2010 was filed with the RTC, charging appellant with the crime of frustrated homicide allegedly committed against Rogelio Biares y Bautista (“private complainant”) as follows:
“That on or about December 15, 2010, in the City of Manila, Philippines, the said accused, with intent to kill, did then and there willfully, unlawfully, and feloniously attack assault and use personal violence against ROGELIO BIARES y BAUTISTA, by then and there chasing and attacking the latter with a deadly weapon, and stabbing him several times, hitting him on his left forearm and right hand, thereby inflicting upon him stab wounds which are necessarily fatal, thus performing all the acts of execution which would have produced the crime of homicide as a consequence, but which nevertheless did not produce it by reason of causes independent of his will, that is, the parrying of the thrusts by said ROGELIO BIARES y BAUTISTA, the arrival and intervention of PO1 Jeffrey A. Tabarnilla who arrested the accused and the timely and able medical assistance rendered to said ROGELIO BIARES y BAUTISTA, which saved his life.
Contrary to law.”[1]
Upon arraignment, appellant, assisted by Atty. Jesus Laurel B. Ilagan, pleaded “NOT GUILTY” to the charge.[2]
Thereafter, trial ensued with the prosecution presenting as witnesses private complainant, and PO1 Jeffrey A. Tabarnilla (“PO1 Tabarnilla”), the police officer who arrested appellant.
For the defense, on the other hand, the following witnesses testified: (1) appellant; (2) Jerry Salapudin (“JERRY”); and (3) Marvin Ortiz (“MARVIN”).
The Facts
Version of the Prosecution
The Solicitor General summarized the evidence for the prosecution in the Appellee’s Brief, thus:
“At the time of the incident, appellant and the [private complainant] were FX drivers.
On 15 December 2010, around 10:00 a.m. near Meisic Mall at Reina Regente St., Binondo, Manila, [private complainant] was waiting for passengers when, all of a sudden and without any warning, he was attacked by appellant with a kitchen knife from behind.
Surprised, [private complainant] parried the attack with his arm and fought for the possession of the knife; but, as a result, he was hit three (3) times with the knife, his left arm and right fingers sustaining stab wounds and lacerations.
At that time, PO1 Tabarnilla was on board a motorcycle on the opposite road when he heard someone shout, ‘Pulis may sinaksak!’
Sensing the presence of the police, appellant ran and boarded a passing jeepney.
Meanwhile, PO1 Tabarnilla drove to the other side of the road where the cry came from, and asked [private complainant] where his assailant sought refuge. The [private complainant] pointed to appellant, who was already seated at the passenger’s side of the jeepney.
PO1 Tabarnilla sped off and after a brief chase, caught up with the jeepney. He maneuvered his motorcycle to cut in front of the jeepney, thereby blocking its way and forcing it to stop.
Seeing that he was cornered, appellant quickly alighted from the jeepney, drew his knife from his pocket, and directed it at PO1 Tabarnilla. In response, PO1 Tabarnilla drew his firearm and aimed it at appellant.
When appellant saw the firearm, he dropped his knife and surrendered.
Meanwhile, the [private complainant] was brought to the Ospital ng Maynila Medical Center hospital where he underwent surgery and was confined for almost two days.”
Version of the Defense
At the time of the incident, appellant was 69 years old and is the oldest in the group of Tamaraw FX drivers plying the route of Reina Regente to Binondo Church. Appellant is closely acquainted with private complainant who is also a driver in the same route. Private complainant would often play jokes on appellant by suddenly holding his buttocks, scrotum, and penis.
Appellant recalled that at 10:15 a.m. of 15 December 2010, he just finished installing the air cleaner hose of his vehicle, and was still holding the kitchen knife he used to cut it, when private complainant touched his anus. Surprised, appellant quickly turned around, and accidentally hit private complainant’s left forearm with the knife. Private complainant tried to grab the knife from appellant, but the latter repelled him. Having sustained a small wound in his right hand in the process, private complainant shouted that he had been stabbed and ran away. For his part, heeding the advice of his co-drivers, appellant boarded a passenger jeepney to proceed to the barangay headquarters to surrender. The passenger jeepney appellant was riding was only fifteen (15) meters away from the barangay headquarters when PO1 Tabarnilla blocked it and arrested appellant.
Defense witness JERRY is a tricycle driver who parks near Meisic Mall in front of the area where the Tamaraw FX drivers, like appellant and private complainant, park their vehicles. Appellant is well-known at the area as private complainant’s friend, and by his monicker “Tatay”, being the oldest among the drivers in the area. In the morning of 15 December 2010, he parked his tricycle and saw appellant repairing his car. At about 10:00 a.m., he left the area to convey a passenger. Upon his return ten minutes later, he learned of the stabbing incident involving appellant.
Defense witness MARVIN is a sidecar driver who frequents 1188 Mall. At 9:00 a.m. of 15 December 2010, he was waiting for a passenger some two (2) meters away from the appellant who was then repairing his vehicle. He corroborated the account of appellant on how private complainant (1) sustained the injury on his left forearm, (2) tried to wrest the knife from appellant, and (3) left the crime scene while shouting that he had been stabbed.
RULING OF THE RTC
After trial, the RTC rendered the appealed decision finding appellant guilty of attempted homicide, thus:
“WHEREFORE, judgment is hereby rendered finding the accused Felipe Veloria y Rapsing guilty beyond reasonable doubt of the crime of Attempted Homicide under Article 249 of the Revised Penal Code as principal and is hereby sentenced to suffer an indeterminate penalty of six (6) months and one (1) day of prision correccional as minimum to two (2) years and four (4) months of prision correccional as maximum and to pay the costs.
SO ORDERED.”[3]
Insisting on his innocence, appellant perfected the appeal at bench with the timely filing of his Notice of Appeal on May 20, 2013.[4]
The Issues
In urging the reversal of the appealed decision, appellant ascribes to the RTC the following errors:
I.
THE RTC ERRED IN CONVICTING APPELLANT WHEN NO FELONIOUS ACT OR OMISSION WAS COMMITTED BY APPELLANT. THE STAB WOUNDS INFLICTED WERE ACCIDENTAL, AND THAT THE PROXIMATE CAUSE THEREOF WAS [PRIVATE COMPLAINANT’S] OWN ACTS.II.
THE RTC ERRED IN CONVICTING APPELLANT DESPITE ABSENCE OF MOTIVE.III.
THE RTC ERRED IN FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ATTEMPTED HOMICIDE.[5]
The Court’s Ruling
We find partial merit in the appeal. Appellant may be held criminally liable only for the crime of slight physical injuries for failure of the prosecution to prove his intent to kill private complainant.
In his Brief, appellant claimed having accidentally hit private complainant with a knife when he quickly turned around upon being surprised by the latter’s joke of touching his anus. In the absence of any intent to kill or harm private complainant, appellant argued that the resulting injuries were not occasioned by a felonious act, either by dolo or culpa, thus he is entitled to an acquittal.
In criminal cases, the prosecution has the burden of proof to establish the guilt of the accused. However, once the defendant admits the commission of the offense charged, but raises an exempting circumstance as a defense, the burden of proof is shifted to him.[6] With his admission that he caused the injuries on the left forearm and a finger in the right hand of private complainant but simultaneously invoking exemption from criminal liability under Article 12(4)[7] of the Revised Penal Code, as amended (RPC), appellant must establish his defense relying on the strength of his own evidence. “Accident” is an affirmative defense which the accused is burdened to prove with clear and convincing evidence.[8] As a legal consequence of appellant’s admission, even if the evidence of the prosecution is weak, it can no longer be disbelieved.[9] Conversely, if the accused fails to prove his affirmative defense, he can no longer be acquitted.[10]
The Supreme Court explained in Talampas v. People[11] the concept of accident as a ground of exemption from criminal liability, thus:
“Article 12 (4) of the Revised Penal Code, the legal provision pertinent to accident, contemplates a situation where a person is in fact in the act of doing something legal, exercising due care, diligence and prudence, but in the process produces harm or injury to someone or to something not in the least in the mind of the actor — an accidental result flowing out of a legal act. Indeed, accident is an event that happens outside the sway of our will, and although it comes about through some act of our will, it lies beyond the bounds of humanly foreseeable consequences. In short, accident presupposes the lack of intention to commit the wrong done.”
By invoking the exempting circumstance of accident under Article 12 (4) of the RPC, appellant has the burden of proving its elements with clear and convincing evidence, to wit: (1) he was performing a lawful act; (2) with due care; (3) he causes an injury to another by mere accident; and (4) without any fault or intention of causing it.[12]
In the case at bar, appellant failed to exercise due care, diligence and prudence when instead of putting down his kitchen knife after he was done with the repairs to his vehicle, he continued to hold on to it.[13] So also, even if he was actually surprised by the act of private complainant of touching his anus, he could have avoided inflicting the alleged injuries if he did not swing his knife towards his back as he turned around.[14] In sum, for failing to clearly and convincingly prove the exempting circumstance of accident, and for admitting responsibility for the injury sustained by private complainant, appellant is criminally liable for the injury suffered by the private complainant.
However, We find that the trial court erroneously convicted appellant of attempted homicide considering the prosecution’s failure to establish his intent to kill the private complainant. The Supreme Court has held that the intent to kill, being an essential element of the offense of frustrated or attempted homicide, must be proved by clear and convincing evidence, and with the same degree of certainty as required of the other elements of the crime.[15] The inference of intent to kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond reasonable doubt.[16]
Evidence to prove intent to kill in crimes against persons may consist, inter alia, of (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 of, or immediately after the killing of the victim; (4) the circumstances under which the crime was committed; and (5) the motive of the accused.[17]
In the case at bench, the evidence of the prosecution failed to establish appellant’s intent to kill private complainant.
It bears stressing that private complainant sustained only a single three-centimeter (3-cm) stab wound on the medial aspect of his left forearm as uniformly stated in the temporary Medical Certificate issued by Dr. Edelweis Z. Velasquez of the Ospital ng Maynila Medical Center (OMMC) [Exhibit “D”][18]; the Medical Chart of private complainant from the OMMC [Exhibit “E”[19]]; and the Referral Form from the Justice Jose Abad Santos Mother and Child Hospital [Exhibit “E-2”[20]]. Such injury is neither fatal nor posed danger on the life of private complainant.
As for the testimony of private complainant that he was stabbed three (3) times in the left arm and right finger,[21] and a vein was cut in his arm and he could no longer move his smallest finger,[22] such bare allegation will not prevail over Exhibits “E” and “E-2” which stated that private complainant sustained only a single 3-cm stab wound in the left forearm. Having been issued by public officers working in OMMC, a public hospital, in the performance of their official duties, these documentary exhibits presented by the prosecution are public documents.[23] Thus, the matters stated in Exhibits “E”, and “E-2” are presumed correct, unless overcome by positive evidence establishing otherwise,[24] which private complainant failed to do.
Moreover, the minor injury inflicted on the left forearm of private complainant indicated that appellant never intended to kill him. Private complainant testified that he had no inkling of, and was totally caught off-guard when appellant attacked him with a knife.[25] Under this scenario, had appellant intended to kill private complainant, he would have aimed for the vital portions of the latter’s body, and will not cease his assault until he has attained his objective. As borne out by the records, after appellant inflicted the injury on the left forearm of private complainant, and repelled the latter’s attempt to wrest the kitchen the knife, appellant never pursued the attack on private complainant. The lack of mortal injury on any vital part of private complainant’s body, and the fact that appellant no longer pursued the attack on the former after failing to wrest the knife from him clearly negate the existence of intent to kill in the case at bar.
There also appears no showing of any improper motive on the part of appellant to fatally stab private complainant who is his friend of thirteen (13) years,[26] and whose son is his godchild.[27] In fact, appellant claimed having a harmonious relation with the private complainant, and denied harboring any grudge or having any altercation with the latter.[28] That appellant never had any misunderstanding with the private complainant prior to the stabbing incident[29] was also confirmed by the latter.[30]
Meanwhile, PO1 Tabarnilla’s testimony is immaterial in determining the homicidal intent of the appellant. On cross-examination, he admitted that the alleged stabbing incident was already over when he arrived at the crime scene. Thus:
“ATTY. MAGNO: Q Now Mr. Witness, to recall your memory, the incident of stabbing that you are referring here has occurred already before you arrived there? WITNESS: A Yes, Sir. x x x x x x x x x Q So it is very clear that you are not in any way a direct witness on what transpired in the incident because it was already finished? A Yes, Sir. Q And in that point in time you do not know personally the suspect or even the [appellant]? A Yes, Sir.”[31]
All said, the prosecution failed to prove with clear and convincing evidence that appellant intended to kill private complainant. Without the intention to kill, appellant cannot he held criminally liable for attempted homicide but only for physical injuries.[32]
Given that the Information charged him with frustrated homicide but the prosecution failed to establish the element of intent to kill, appellant may nonetheless be held criminally liable for physical injuries under Section 4, in relation to Section 5, Rule 120 of the Rules of Court, thus:
“Sec. 4. Judgment in case of variance between allegation and proof. – When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
Sec. 5. When an offense includes or is included in another. – An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitutes the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter.”
In the case at bar, a finding of guilt for the lesser offense of slight physical injuries may be made considering that it is necessarily included in the offense charged because the essential ingredients of slight physical injuries also constitute and form part of those constituting the offense of frustrated homicide.[33]
Thus, while it may have failed to prove the essential element of homicide, i.e., intent to kill, the prosecution has established beyond reasonable doubt that appellant stabbed the left forearm of private complainant, which constitutes the crime of physical injuries under the RPC, as amended,. There being no proof of the required medical attendance or the period of private complainant’s incapacity for labor as a result of the injury inflicted by appellant, the latter may only be held criminally liable for slight physical injuries[34] under Article 266 (2) of the RPC, to wit:
“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 for labor from one to nine days, or shall require medical attendance during the same period;
2. By arresto menor or a fine not exceeding 200 pesos and censure when the offender has caused physical injuries which do not prevent the offended party from engaging in his habitual work nor require medical attendance;
3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat another by deed without causing any injury.
The penalty for slight physical injuries is arresto menor, which ranges from one (1) day to thirty (30) days of imprisonment, or a fine not exceeding twenty (Php20) pesos and censure. With the Indeterminate Sentence Law being inapplicable as the penalty prescribed does not exceed one year and in the absence of any mitigating or aggravating circumstance, appellant shall suffer a straight penalty of eleven (11) days of arresto menor.
As to appellant’s civil laibility, no actual damages may be awarded to the private complainant for lack of competent proof, such as receipts for medicines and/or professional medical fees. Exhibits “D-3”,[35] “D-4”,[36] and “D-10”[37] are drug prescriptions and not proofs of medical expenses. Although Exhibits “D-5”,[38] “D-6”,[39] “D-7”,[40] “D-8”,[41] “D-9”,[42] “D-11” to “D-14”[43] are official receipts, nothing therein indicates that they were spent for the medicines of private complainant. Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. The reason is that the court cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages but there must be competent proof of the actual amount of loss. Credence can be given only to claims which are duly supported by receipts.[44]
Be that as it may, having been found guilty of slight physical injuries, appellant is liable to pay private complainant moral damages. 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 a proximate result of the wrongful act of the accused and requires no proof of pecuniary loss.[45] For less serious and slight physical injuries, jurisprudence[46] fixes the award of moral damages at Php5,000.00.
WHEREFORE, the Decision dated March 08, 2013 of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 10-280419 is MODIFIED thus:
1. finding appellant Felipe Veloria y Rapsing GUILTY beyond reasonable doubt of the crime of slight physical injuries under Article 266 (2) of the Revised Penal Code;
2. sentencing him to suffer the straight penalty of eleven (11) days of arresto menor; and
3. ordering him to pay private complainant Rogelio Biares y Bautista moral damages in the amount of Five Thousand Pesos (php5,000.00).
SO ORDERED.
Rosario, and Dimagiba, JJ., concur.
[1] Records, p. 01.
[2] Id., p. 25.
[3] Id., p. 103.
[4] Id., pp. 118-121.
[5] Rollo, pp. 58-59
[6] People v. Concepcion, G.R. No. 136844, August 01, 2002.
[7] “Article 12. Circumstances which exempt from criminal liability. – the following are exempt from criminal liability:
x x x x x x x x x
4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.
x x x x x x x x x”
[8] People v. Castillo, G.R. No. 172695, 29 June 2007, citing Toledo v. People, G.R. No. 158057, 24 September 2004, 439 SCRA 94.
[9] People v. Nepomuceno, Jr., G.R. No. 127818, 11 November 1998, 298 SCRA 450, cited in People v. Latosa, G.R. No. 186128, 23 June 2010.
[10] Toledo v. People, G.R. No. 158057, September 24, 2004.
[11] G.R. No. 180219, 23 November 2011.
[12] People v. Dela Cruz, G.R. No. 187683, 11 February 2010, citing People v. Agliday, 419 Phil. 555, 564 (2001).
[13] TSNs, 28 September 2012, p. 31-32; 26 November 2012, p. 8.
[14] TSN, 28 September 2012, p. 32.
[15] Balunueco v. Court of Appeals G.R. No. 126968, 9 April 2003, citing People v. Villanueva 51 Phil. 488 (1928)
[16] Id.
[17] People v. Lanuza, G.R. No. 188562, 24 August 2011, citing Mahawan v. People, G.R. No. 176609, 18 December 2008, 574 SCRA 737.
[18] Records, p. 14. It reads: “Stab wound, medial aspect , middle 3 cm, forearm left”
[19] Id., p. 66.
“NOI: stab wound TOI: 10:00 Am DOI: 12/15/10 POI: Reina Regente HPI:
few hours PTC – patient was allegedly stabbed by an enemy. He defended himself by blocking the knife by his left arm obtaining stab wound on the left forearm and laceration on “
x x x x x x x x x
Stab wound, Medial Aspect, Middle 3cm, (L) forearm”The dorsal portion thereof provides:
“12-1510
) brought in due to stab wound @ (L) forearm
x x x x x x x x x”
[20] Id., p. 68.
“HISTORY OF PRESENT ILLNESS
(+) S[tab]W[ound], (L) armWORKING IMPRESSION
S[tab]W[ound], (L) arm”
[21] TSN, 21 February 2011, p. 06.
[22] Id., p. 12.
[23] Section 19(a), Rule 132 of the Rules of Court reads:
“Sec. 19 . Classes of Documents. — For the purpose of their presentation evidence, documents are either public or private.
Public documents are:
(a)The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;
x x x x x x x x x”
[24] Philippine Life Insurance Company v. Court of Appeals, G.R. No. 126223, 15 November 2000.
[25] TSN, 21 February 2011, p. 5.
[26] TSN, 28 September 2012, p. 57.
[27] TSN, 28 September 2012, p. 19.
[28] TSN, 21 January 2011, p. 23.
[29] TSN, 28 September 2012, pp. 57-58.
[30] TSN, 21 February 2011, pp. 23 and 31.
[31] TSN, 28 March 2011, p. 17.
[32] People v. Villapando, G.R. No. 73656, 05 October 1989; Serrano v. People, supra.
[33] People v. Vicente, 423 Phil. 1065 (2001) , cited in People v. Villacorta, People v. Villacorta, G.R. No. 186412, 7 September, 2011, 657 SCRA 270.
[34] People v. Villacorta, supra., citing Li v. P eople, G.R. No. 127962, 14 April 2004; People v. Penesa, 81 Phil. 398.
[35] Records, p. 30.
[36] Id.
[37] Id., p. 38.
[38] Id., p. 31.
[39] Id.
[40] Id., p. 32.
[41] Id., p. 33.
[42] Id.
[43] Id., pp. 39-40.
[44] Philtranco v. Paras, G.R. No. 161909, 25 April 2012.
[45] Caprio v. Valmonte, G.R. No. 151866. September 9, 2004, citing Art. 2217, Civil Code, Fule v. Court of Appeals, 350 Phil. 349 [1998], and Zulueta v. Pan American Airways, Inc., 151 Phil. 1 (1973).
[46] People v. Villacorta, supra