PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RICARDO ARSENIO ALIAS “CARDO”, ACCUSED-APPELLANT.
QUIJANO-PADILLA, J.:
The Facts
Accused-appellant Ricardo Arsenio alias “Cardo” [Arsenio] was charged in an Information[2] dated June 19, 2006 for Frustrated Murder, committed as follows:
“That on or about the 30th day of November, 2003 at about 10:00 0’clock in the evening at Brgy. Tawagan, Oras, Eastern Samar, Philippines and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault and hack one Jaime B. Basada with the use of a long bolo locally called (sundang) which the accused conveniently provided themselves (sic) for the purpose thereby inflicting upon said Jaime Basada a hack wound on the back portion of his neck and on the left portion of his neck; the accused thus performing all the acts of execution which would have produce(d) the crime of Murder as a consequence but nevertheless did not produce it by reason or cause independent of the will of the accused and that is the timely and able escape of said Jaime Basada and the timely and able medical attendance to the latter which prevented his death.
CONTRARY TO LAW.”
Arsenio was allowed to post bail for his temporary liberty on August 23, 2006.[3] During his arraignment on September 19, 2006, he entered a plea of “not-guilty”to the crime charged.
On January 9, 2007, the RTC issued a Pre-Trial Order wherein the parties stipulated on the identity of the accused, the expertise of Dr. Edward de Dios, the authenticity and due execution of the Medical Certificate and the time and place of the commission of the crime.[4]
Thereafter, trial on the merits ensued.
VERSION OF THE PROSECUTION
The prosecution presented three [3] witnesses namely: the victim Jaime Basada, Imelda Basada and Dr. Edward V. de Dios, who testified, that:
On November 30, 2003 at around 7:00 o’clock in the evening, Jaime Basada [Basada] together with his friends, Denden Lucana, Efren Barros and Junior Calim met in Barangay Tawagan in order for them to all go together to the house of Nene Casillano to attend the birthday party of the latter’s child. They were at the party for two hours more or less until they all decided to get a drink at the videoke house owned by Neneng Andaya. They arrived at the videoke place at around 9:30 in the evening and went on to order a beer grande.
At around 10:00 o’clock in the evening Basada went out of the videoke place to relieve himself. While he was urinating, Arsenio who was then bringing a long bladed weapon locally known as sundang, suddenly stabbed Basada twice hitting the left portion of the latter’s nape and his left jaw. Startled, Basada turned to see who hacked him and since the place was well lit, he clearly saw Arsenio. After regaining the presence of mind, Basada ran for safety at the house of his relative, Nene Casillano[5] who thereafter, brought him to the hospital where he was attended by Dr. Edward V. de Dios. The attending physician’s diagnosis, as reflected in the certification, reads:
“Diagnosis: Hacked wound posterior neck (approximately 10 cms.)
The condition will heal in 6 months barring any complications not apparent at the time of examination.”[6]
Dr. de Dios testified that although the wound sustained by Basada would not cause his instantaneous death but if there was no timely medical intervention and the victim was left to bleed out, then this would likely cause the victim’s death.[7] Basada was confined at Borongan Provincial Hospital for one [1] week.[8]
The testimony of Basada was corroborated by Imelda Basada who witnessed the hacking incident because she was at the videoke place on that fateful night.
After the presentation of prosecution’s testimonial evidence, it presented its documentary Exhibits “A”-”C”[9] with all their sub-markings which were all duly admitted by the RTC.[10]
VERSION OF THE DEFENSE
Arsenio, on the other hand, presented three [3] witnesses namely: Conrado Tomenio, Anatalio Ballete and accused-appellant himself, who established the following facts:
On November 30, 2003, Arsenio recounted that at around 10:00 o’clock in the morning, he went to San Eduardo, Barangay Bolo together with a person named Pidong to deliver dried fish. Due to the numerous deliveries, they were only able to go home at Barangay Tawagan, Oras at around 2:00 o’clock in the afternoon. Upon his arrival at Barangay Tawagan, Oras, Arsenio proceeded to wait for the arrival of his fishing boat carrying the catch for the day. When the boat arrived, he then weighed and sold the fish, which was done by 3:30 o’clock in the afternoon.
After he finished weighing and selling the catch, he immediately went home and did not go out anymore as he had to constantly place ice on the shrimps which he will be sending to Manila moreover, he was preoccupied in computing the sales of the catch.
Not being able to go out of his house from the time he came home at 3:30 in the afternoon, Arsenio had no knowledge whatsoever of what transpired on the night of November 30, 2003. It was only on the following morning that he was told that Basada was hacked. Fifteen days later, he heard rumors that he was the one implicated for the crime. The arrest of Arsenio was effected only in August 2006 at Dolores, Eastern Samar.[11]
Defense did not offer any documentary evidence.
Thereafter, the RTC in its Decision[12] dated December 29, 2011 found Arsenio guilty beyond reasonable doubt of the crime charged. The dispositive portion of its decision, reads:
“WHEREFORE, finding the guilt of accused Ricardo Arsenio established beyond reasonable doubt, this court finds accused guilty of Frustrated Murder, defined and penalized under Article 248 in relation to Article 250 of the Revised Penal Code, and hereby sentences him to suffer the penalty of imprisonment of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of Reclusion temporal as maximum.
Accused being a detainee, the period of his imprisonment shall be credited to him in full, provided he abides in writing with the terms and conditions for convicted prisoners, otherwise only four-fifths (4/5) thereof.
SO ORDERED.”
He applied for and was granted bail by the RTC in the amount of P200,000.00.[13]
Upon the denial[14] of Arsenio’s motion for reconsideration,[15] he came to Us on appeal, with a lone assignment of error, thus:
“THAT THE COURT A QUO ERRED IN CONVICTING RICARDO ARSENIO DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.”[16]
Our Ruling
Accused-appellant Arsenio in his appeal asserted that the prosecution failed to prove his guilt beyond reasonable doubt because it failed to prove that the wounds sustained by Basada were fatal. There was nothing in the evidence which would show that the wound was fatal without medical intervention. Accused-appellant cites the case of Serrano v. People[17] stating that the location and severity of wound do not suggest a frustrated felony, hence:
“Under these standards, we agree with the CA’s 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 victim’s attending physician did not testify on the gravity of the wound inflicted on the victim. We consider, too, the CA’s observation that the medical certifications issued by the East Avenue Medical Center merely stated the location of the wound. There was also no proof that without timely medical intervention, the victim would have died. This paucity of proof must necessarily favor the petitioner.”
We do not agree.
Article 6 of the Revised Penal Code defines the three stages of a felony, namely the consummated, frustrated and attempted felonies. A felony is consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted 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. The determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whether the felony was “produced” after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.[18]
In the instant case, Arsenio was charged with the crime of Frustrated Murder.
Under the Revised Penal Code particularly Article 248 thereto defined murder as the unlawful killing of any person which is not parricide or infanticide, provided that any of the following circumstances are present[19], thus:
“1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.”
In order to qualify the crime as murder, the following elements should be present: (1) that a person was killed; (2) that the accused killed him or her; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the Revised Penal Code (RPC); and (4) that the killing is not parricide or infanticide.[20]
We find that the prosecution has established that all the acts of execution were performed, which acts would qualify as murder, but it did not produce the crime due to causes independent of the will of the perpetrator and in the instant case the timely medical intervention.
First, the identity of Arsenio is not placed in issue in fact it was one of the stipulated facts during the pre-trial.[21]
Second, the felonious act was attended by treachery qualifying it to murder. Paragraph 16 of Article 14 of the Revised Penal Code (RPC) defines treachery as the direct employment of means, methods, or forms in the execution of the crime against persons which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the offended party might make. In order for treachery to be properly appreciated, two elements must be present: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.[22] The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape.[23]
Basada’s testimony proved the presence of treachery in the instant case, as follows:
“Q: Where were you in particular on November 30, 2003 at around 10:00 o’clock in the evening?
A: I was at the videoke house.Q: While you were at the videoke house according to you, do you remember having an unsual incident that happened?
A: I did not observe any unsual incident.Q: Mr. Witness, at around 10:00 o’ clock in the evening on November 30, 2003, did you remember any unusual incident while you were at the videoke house according to you in Brgy. Tawagan, Oras, Eastern Samar?
A: Yes, there was.[24]Q: What was that incident about?
A: I was hacked sir.Q: Hacked by whom?
A: (Witness points to the person who answers the name of Ricardo Arsenio)Q: Were you hit when Ricardo hacked you?
A: Yes sir. (Witness showing his nape with scar)Q: So, you were hit of your (sic) nape as you demonstrated?
A: Yes sir, the first hacking blow.Q: How many times did the accused hack you?
A: Twice.Q: And you were also hit twice?
A: Yes sir. (Witness showing his left jaw under his ear)Q: Which particular (portion) was first hit with the first hacking blow by the accused?
A: I was hit on my nape.Q: Where in particular were you hack(ed), was it inside the videoke house or somewhere else?[25]
A: Outside the videoke house.Q: Why, what were you doing outside the videoke house?
A: I was relieving myself.Q: When you were hacked by the accused, did you notice from which direction he came from?
A: Yes, sir.Q: From which direction?
A: He came from behind.Q: Since the accused according to you came from behind when he delivered that hacking blow you must have not noticed him approached, am I correct?
A: Yes sir.Q: So when was the first time (that) you noticed (his) presence?
A: When he delivered the first hacking blow.Q: And after you were hit by the hacking blows, what did you do?
A: I ran to the house of my cousin to ask some help.[26]
In the case at bench, Basada who was urinating was caught off guard when Arsenio, coming from behind him [Basada] suddenly stabbed him twice, hitting his neck and jaw by using a long bladed weapon leaving him no room to repel, evade or defend himself against the thrusts of Arsenio. Ultimately, the essence of treachery characterizing the attack as deliberate and without warning, done in a swift and unexpected way, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape[27] is clearly established in the instant case.
Its important to note that the intent to kill is without doubt established beyond reasonable doubt by the unwavering testimony of Basada. 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) words uttered by the offender at the time the injuries were inflicted by him on the victim.[28] In the instant case, the crime was attended by treachery not only because Basada was attacked when his back was turned from his assailant but also at the time when he was vulnerable, attending to his personal needs and at the time he had no means to defend himself or repel the attack. The use of a deadly weapon, in the instant case a long bladed weapon locally known as sundang is indicative of the intent to kill.[29]
Prosecution was able to prove that without the timely medical intervention, the wounds sustained by Basada would prove to be fatal.
The factual backdrop of the case cited by the defense differs from the instant case because in the former, the attending physician was not presented in court and the medical certificate was insufficient while in the instant case the attending physician of Basada was presented in court who categorically declared that without the timely medical intervention the wounds sustained by Basada would prove fatal. Jurisprudence dictates that the prosecution must prove by competent testimonial evidence or medical certificate that the wounds sustained by the victim were fatal.[30] Hence, Dr. de Dios testified:
“Q: Based on the location of the wound doctor and the direction of the wound, could the victim die had it not for the timely medical intervention?
A: Yes sir. I recall during the time when the patient (came), there were lots of blood. The wound was covered with blood and upon opening the wound, I could see there was persistent bleeding. Most probably without medical intervention, the patient will die.”[31]
Because of the gravity of the wounds sustained by Basada, he had to be confined at the hospital for a week, which fact was not opposed by Arsenio.[32]
Next, defense points out that the testimonies of the witnesses were contradictory, in one hand, Basada and the eyewitness testified that the former was stabbed twice while on the other hand, the attending physician only mentioned one [1] hack wound. The alleged inconsistencies are not inconsequential but refer to the incident itself thereby casting doubt on the credibility of the prosecution’s witnesses.
This issue was brought only for the first time during appeal and should not be entertained but only to put the matter at rest, We shall entertain the same. Defense should not lose sight of the fact that the inconsistency pointed out is really a minor one and has nothing to do with the elements of the crime. Even if the doctor only mentioned one [1] hack wound, the fact remains that Arsenio was positively identified as the one who repeatedly stabbed Basada. The hack wound referred by the attending physician was the same wound that was meant by the victim and his eyewitness, the very same hack wound that is pronounced to be fatal. Hence, the credibility of prosecution witnesses was not tainted because Arsenio failed to convincingly show any ill motive on the part of prosecution witnesses to testify falsely and to impute to him such grave offense. It is settled that where there is no evidence to indicate that a principal prosecution witness was actuated by improper motive, the presumption is that he was not so actuated. He would not prevaricate and cause damnation to one who brought him no harm or injury.[33]
More importantly, as repeatedly enunciated by jurisprudence, the trial court’s assessment of the credibility of a witness is entitled to great weight, even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the following well-settled principles: (1) the reviewing court will not disturb the findings of the lower court, unless there is a showing that it overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that may affect the result of the case; (2) the findings of the trial court on the credibility of witnesses are entitled to great respect and even finality, as it had the opportunity to examine their demeanor when they testified on the witness stand; and (3) a witness who testifies in a clear, positive and convincing manner is a credible witness.[34]
With respect to penalty, as the OSG points out, there is a need to modify the same in accordance with the recent jurisprudence. An appeal throws the whole case open for review such that the Court may, and generally does, look into the entire records if only to ensure that no fact of weight or substance has been overlooked, misapprehended, or misapplied by the trial court.[35] Hence, We find that there is a need to modify the penalty imposed as well as to award the proper indemnity.
Under Article 61, paragraph 2 of the Revised Penal Code, the penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion temporal. Reclusion temporal has a range of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the maximum of the indeterminate penalty should be taken from the medium of reclusion temporal, since no aggravating or mitigating circumstances attended the commission of the crime. The minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal. Prescinding from the foregoing discussion, the imposable indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, is proper.[36]
On the award of indemnity, the surviving victim was hospitalized in the instant case, however, he failed to present any receipt for his hospitalization expenses. Nevertheless, it could not be denied that he suffered pecuniary loss; thus, We deem it prudent to award P25,000.00 to the surviving victim, as temperate damages. Basada is likewise entitled to moral damages, which this Court in accordance with recent jurisprudence, fixes in the amount of P40,000.00. Ordinary human experience and common sense dictate that the wounds inflicted on the surviving victim would naturally cause physical suffering, fright, serious anxiety, moral shock, and similar injuries. Finally, the award in the amount of P20,000.00, as exemplary damages to Basada, is also in order considering that the crime was attended by the qualifying circumstance of treachery.[37]
WHEREFORE, premises considered, the Decision dated December 29, 2011 of the Regional Trial Court, 8th Judicial Region, Branch 5, Oras, Eastern Samar in Criminal Case No. 06-09 is hereby AFFIRMED with MODIFICATION, accused-appellant Ricardo Arsenio is meted an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum and to pay P40,000.00 as moral damages; P25,000.00 as temperate damages and P20,000.00 as exemplary damages.
SO ORDERED.
Delos Santos, J., Chairperson, and Azcarraga-JacoB, JJ., concur.
[1] Records, pp. 439-443, penned by the Honorable Judge Juliana Adalim-White
[2] Records, pp. 1-2
[3] Records, p. 55
[4] Records, pp. 115-116
[5] Records, pp. 191-214, TSN, January 22, 2008, pp. 2-24
[6] Records, p. 17
[7] Records, p. 249, TSN, July 30, 2008, p. 6
[8] Records, p.198, TSN, January 22, 2008, p. 8
[9] Records, p. 268 “A”- Affidavit of Jaime Basada; “B”- Affidavit of Imelda Basada; and “C”- Medical Certificate
[10] Records, p. 295
[11] Records, pp. 347-363, TSN, February 10, 2010, pp. 2-16
[12] Records, pp. 439-443.
[13] Records, p. 473
[14] Records, p. 475
[15] Records, pp. 447-456; 457-465
[16] Rollo, p. 71
[17] G.R. No.175023, July 5, 2010
[18] Valenzuela v. People, G.R. No. 160188, June 21, 2007
[19] p. 496, The Revised Penal Code, Criminal Law by Luis B. Reyes, Eighteenth Edition, 2012, Rex Book Store
[20] People v. Lagman, G.R. No. 197807, April 16, 2012
[21] Records, p. 115
[22] People v. Dolorido, G.R. No. 191721, January 12, 2011
[23] People v. Nelmida, et al., G.R. No. 184500, September 11, 2012
[24] Records, p. 194, TSN, January 22, 2008, p. 4
[25] Records, p. 195, TSN, January 22, 2008, p. 5
[26] Records, p. 196, TSN, January 22, 2008, p. 6
[27] People v. Lagman, G.R. No. 197807, April 16, 2012
[28] Epifanio v. People, G.R. No. 157057, June 26, 2007
[29]mSerrano v. People, G.R. No. 175023, July 5, 2010
[30] Serrano v. People, G.R. No. 175023, July 5, 2010
[31] Records, p. 246, TSN, July 30, 2008, p. 3
[32] Records, p. 198, TSN, January 22, 2008, p. 8
[33] People v. Lua, G.R. Nos. 114224-25, April 26, 1996
[34] People v. Tamolon, et al., G.R. No. 180169, February 27, 2009
[35] People v. Baraoil, G.R. No. 194608, July 9, 2012
[36] People v. Baldomar, G.R. No. 197043, February 29, 2012
[37] People v. Mokammad, et al., G.R. No. 180594, August 19, 2009