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Verily, the presence of treachery qualified the killing of the hapless children to murder.

As held
in People v. Fallorina, the essence of treachery is the sudden and unexpected attack on an

unsuspecting victim without the slightest provocation on his part. Minor children, who by reason of
their tender years, cannot be expected to put up a defense. When an adult person illegally attacks a
child, treachery exists.
he informations charged the accused-appellant with murder and attempted murder, averring
that the crimes were committed with treachery. The convictions were warranted. The killing of
or assault against a child by an adult assailant is always treated as treacherous, even if the
treacherous manner of the assault is not shown. Indeed, the weakness of the minor victim
because of his tender years results in the absence of any danger or risk to the adult assailant.
The rationale for such treatment is easy to discern – the minor victim cannot be expected
to put up any form of effective resistance because of his tender age, relatively small frame,
and inexperience in combat. Moreover, a deadly attack against a minor is easier to execute
inasmuch as the minor can offer little, if any, resistance, thereby posing no peril to the

CEBU, Philippines — The Cebu City Prosecutor’s Office has indicted a 31-year-old
man for allegedly attempting to rape and kill his 19-year-old neighbor.

Prosecutor Noel Cellona said he found probable cause to hold Melchor Cortes, a
resident of Barangay Banilad, Cebu City, for trial after evaluating the evidence.

“Wherefore, finding probable cause for the crime as charged, the undersigned is
recommending for the filing of the cases of attempted rape and attempted murder
before the proper court,” the resolution read.

In her judicial affidavit, the 19-year-old girl said while she was sleeping inside her
room in their house in Barangay Banilad last October 28, 2018, with her two-year old
nephew, she was awakened when someone touched her body.

The teenager said she tried to fight back by kicking him, but he punched her in the
abdomen. She shouted for help while trying to run away but she was choked and
dragged her back to the room.

She said she was able to grip a plastic chair and hit Cortes several times and ran
outside. At this point her nephew began crying because of the commotion.
“I was able to open the entrance door and shout for help, but he bit me in my face and
banged my head into the concrete wall that made me fall to the ground,” she said.

At this point a neighbor happened to pass by and Cortes was able to escape.

The teenager reported the incident to the Mabolo Police Station.

Cellona issued a subpoena directing Cortes to file his counter-affidavit but he failed to
do so, so Cellona resolved the complaint based on the available information.

“There is evidence sufficient to prove attempted rape,” Cellona ruled. Because of the
defenses set up by the victim, Cortes was not able to consummate the rape.

Cellona further said attempted murder was committed, saying after Cortes failed to
consummate the crime of rape because the victim’s nephew was already crying,
attracting attention of people nearby, Cortes proceeded in trying to kill the victim by
biting her face, banging her head against the wall, and trying to smash her head with a

Cortes even warned the victim that he will come back to kill her, Cellona
said. (FREEMAN)


As to the claim of petitioners Echanis and Baylosis, we quote the pertinent portion of Prosecutor Vivero’s
Resolution, which states:chanRoblesvirtualLawlibrary

In connection with the foregoing and pursuant to the Revised Rules of Criminal Procedure[,] the respondents
were issued and served with Subpoena at their last known address for them to submit their counter–
affidavits and that of their witnesses.

Majority of the respondents did not submit their counter–affidavits because they could no longer be found in
their last known address, per return of the subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides
Lim, Maureen Palejaro and Ruben Manatad submitted their Counter–Affidavits. However, Vicente Ladlad and
Jasmin Jerusalem failed to submit the required Counter Affidavits in spite entry of appearance by their
respective counsels
In this case, the Resolution stated that efforts were undertaken to serve subpoenas on the named
respondents at their last known addresses. This is sufficient for due process. It was only because a majority
of them could no longer be found at their last known addresses that they were not served copies of the
complaint and the attached documents or evidence.