G.R. No.

198400

October 7, 2013

FE ABELLA y PERPETUA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
REYES, J.:
This is a Petition for Review on Certiorari 1 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
Antecedent Facts
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:
hacking wound left lateral aspect neck; and
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.
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 Judgment 27 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 appeal 29 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 Decision 30 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 Certiorari 36 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.
The petitioner also cites Pentecostes, Jr. v. People 38 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
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,41 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.
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.
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:
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.
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.
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 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.
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
SO ORDERED.

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.
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.

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:
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 self-serving.
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
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. "
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 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.
SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

- versus -

G.R. No. 186412

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

ORLITO VILLACORTA,
Accused-Appellant.

September 7, 2011

x--------------------------------------------------x
DECISION
LEONARDO-DE CASTRO, J.:
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 accused-appellant 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:
That on or about 23rd 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]
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]
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 out-patient. Cruz was
only brought to the San Lazaro Hospital on February 14, 2002, where he died the 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]
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.
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]
On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of murder, qualified by
treachery. The dispositive portion of said Decision reads:
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.

GIOVANI SERRANO y CERVANTES,

G.R. No. 175023

Petitioner,
Present:

CARPIO MORALES, J., Chairperson,

-

versus -

BRION,
BERSAMIN,
*

ABAD, and

VILLARAMA, JR., JJ.

PEOPLE OF THE PHILIPPINES,
Promulgated:
Respondent.
July 5, 2010
x-----------------------------------------------------------------------------------------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:

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.
CONTRARY TO LAW.[6]
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 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.
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.
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.
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.
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 and their testimonies. As we explained in People v. Lucena[14]
[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]
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.
Frustrated homicide versus attempted homicide
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 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.
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.]
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 non-accomplishment 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,
[29]
not frustrated, homicide.
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.

ENGR. CARLITO PENTECOSTES, JR.,

G.R. No. 167766
Petitioner,
Present:
-

CORONA, J., Chairperson,

VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.

versus -

PEOPLE OF THE PHILIPPINES,

Promulgated:
Respondent.

April 7, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

PERALTA, J.:
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:
On September 2, 1998, Rudy Baclig was drinking with his brother-in-law. After consuming bottle of gin, he left
and went to the house of a certain Siababa to buy coffee and sugar. He was accompanied by his four- year-old son. On
their way there, a gray automobile coming from the opposite direction passed by them. After a while, he noticed that the
vehicle was moving backward towards them. When the car was about two arms length from where they were, it stopped
and he heard the driver of the vehicle call him by his nickname Parrod. Rudy came closer, but after taking one step, the
driver, which he identified as the petitioner, opened the door and while still in the car drew a gun and shot him once,
hitting him just below the left armpit. Rudy immediately ran at the back of the car, while petitioner sped away. After
petitioner left, Rudy and his son headed to the seashore. Rudy later went back to the place where he was shot and shouted
for help.[4]

The people who assisted him initially brought him to the Municipal Hall of Gonzaga, Cagayan, where he was
interrogated by a policeman who asked him to identify his assailant. He informed the policeman that petitioner 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 cross-examination 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 accused-appellants voice but that he was able to see him through the lights of the car when he
opened the window and the door. x x x
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.