PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

AGAPITO LISTERIO y PRADO and

SAMSON DELA TORRE y ESQUELA, accused.
Facts:
Culled from the eyewitness account of Marlon Araque, he discloses that around 5:00 p.m. of August
14, 1991, he and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money
from a certain Tino. Having failed to collect anything from Tino, they then turned back. On their way
back while they were passing Tramo near Tinos place, a group composed of Agapito Listerio,
Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio Bancaya blocked their path
and attacked them with lead pipes and bladed weapons. His brother, Jeonito, was stabbed from
behind and sustained three stab wounds causing him to fall down. Marlon was hit on the head with
lead pipes and momentarily lost consciousness. When he regained his sense, he saw that his bro
Jeonito was already dead. Their assailants then fled after the incident. Marlon, who sustained
injuries in the arm and back, was thereafter brought to a hospital for treatment.
Accuseds version: he was in the store of Nimfa Agustin having a little fun with Edgar Demolador
and Andres Gininao drinking beer. At around 2:00 oclock he went to his house and slept. He was
awaken by the two and told him there was a quarrel near the railroad track. He was invited by the
two policemen for questioning with his co-accused Samson dela Torre, and was implicated in the
sinumpaang salaysay of Marlon for the death of Jeonito Araque and the frustrated murder of Marlon
Araque. He professed his innocence and insisted that Marlons testimony is insufficient to convict
him of the crimes charged.
Trial Court rendered judgment only against accused Agapito Listerio because his co-accused
Samson dela Torre escaped during the presentation of the prosecutions evidence and he was not
tried in absentia. Their other co-accuseds have remained at large. The trial court convicted the
accused for the crime of Murder and Attempted Homicide only on the basis of Dr. Manimtims
testimony that none of the wounds sustained by Marlon Araque were fatal.

ISSUES:
(1) WON the accused should be charged with Attempted Murder for the reason that none
of the wounds sustained by Marlon were fatal.
(2) WON there is conspiracy.

RULING:
(1) The reasoning of the lower court is flawed because it is not the gravity of the wounds
inflicted which determines whether a felony is attempted or frustrated but whether or not
the subjective phase in the commission of an offense has been passed. By subjective phase is
meant that portion of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by the offender which, with
the prior acts, should result in the consummated crime. From that time forward, the phase
is objective. It may also be said to be that period occupied by the acts of the offender over
which he has control that period between the point where he begins and the point where
he voluntarily desists. If between these two points the offender is stopped by reason of any
cause outside of his own voluntary desistance, the subjective phase has not been passed and
it is an attempt. If he is not so stopped but continues until he performs the last act, it is
frustrated.

It must be remembered that a felony is frustrated when: 1.] the offender has performed all
the acts of execution which would produce the felony; 2.] the felony is not produced due to
causes independent of the perpetrators will. On the other hand, in an attempted felony: 1.]
the offender commits overt acts to commence the perpetration of the crime; 2.] he is not
able to perform all the acts of execution which should produce the felony; and 3.] his failure
to perform all the acts of execution was due to some cause or accident other than his
spontaneous desistance.

It bears stressing that intent to kill determines whether the infliction of injuries should be
punished as attempted or frustrated murder, homicide, parricide or consummated physical
injuries. Homicidal intent must be evidenced by acts which at the time of their execution are
unmistakably calculated to produce the death of the victim by adequate means. Suffice it to
state that the intent to kill of the malefactors herein who were armed with bladed weapons
and lead pipes can hardly be doubted given the prevailing facts of the case. It also cannot be
denied that the crime is a frustrated felony not an attempted offense considering that after
being stabbed and clubbed twice in the head as a result of which he lost consciousness and
fell, Marlons attackers apparently thought he was already dead and fled.

(2) Conspiracy may be inferred from the acts of the accused before, during and after the
commission of the crime which indubitably point to and are indicative of a joint purpose,
concert of action and community of interest. Indeed
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. To establish the existence of a conspiracy,
direct proof is not essential since it may be shown by facts and circumstances from which may
be logically inferred the existence of a common design among the accused to commit the offense
charged, or it may be deduced from the mode and manner in which the offense was perpetrated.
Conspiracy need not be established by direct evidence of acts charged, but may and generally
must be proved by a number of indefinite acts, conditions and circumstances, which vary
according to the purpose accomplished. Previous agreement to commit a crime is not essential
to establish a conspiracy, it being sufficient that the condition attending to its commission and
the acts executed may be indicative of a common design to accomplish a criminal purpose and
objective. If there is a chain of circumstances to that effect, conspiracy can be established.
Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as
clearly and convincingly as the crime itself. In the absence of direct proof thereof, as in the
present case, it may be deduced from the mode, method, and manner by which the offense was
perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint
purpose and design, concerted action and community of interest. Hence, it is necessary that a
conspirator should have performed some overt acts as a direct or indirect contribution in the
execution of the crime planned to be committed. The overt act may consist of active
participation in the actual commission of the crime itself, or it may consist of moral assistance to
his con-conspirators by being present at the commission of the crime or by exerting moral
ascendancy over the other co-conspirators.
In this case, the presence of accused and his colleagues, all of them armed with deadly weapons at
the locus criminis, indubitably shows their criminal design to kill the victims.
As to the qualifying circumstances, the commission of the crime was attended by treachery. The
manner in which the stab wounds were inflicted on the deceased were clearly meant to kill without
posing any danger to the malefactors considering their locations and the fact that they were caused
by knife thrusts starting below going upward by assailants who were standing behind the
victim. Treachery is present when the offender commits any of the crimes against persons
employing means, methods or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the offended party
might make. That circumstance qualifies the crime into murder. The crime was also attended by
abuse of superior strength on account of the fact that accused and his companions were not only
numerically superior to the victims but also because all of them, armed with bladed weapons and
lead pipes, purposely used force out of proportion to the means of defense available to the persons
attacked. However, this aggravating circumstance is already absorbed in treachery. Furthermore,
although alleged in the information, evident premeditation was not proved by the prosecution. In
the light of the finding of conspiracy, evident premeditation need not be further appreciated, absent
concrete proof as to how and when the plan to kill was hatched or what time had elapsed before it
was carried out.
With regard to the credibility of Marlons testimony, it cannot be doubted in this case because
as a victim himself and an eyewitness to the incident, it can be clearly gleaned from the foregoing
excerpts of his testimony that he remembered with a high degree of reliability the identity of the
malefactors.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No.
91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-
5843 of Frustrated Homicide and is sentenced to suffer an indeterminate penalty of Six
(6) Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day
of Prision Mayor, as maximum.
After finality of this Decision, the records shall be remanded to the Regional Trial Court of
Makati City, which is directed to render judgment based on the evidence against Samson dela Torre
y Esquela.