On 2 February 2007 at around 10:30 in the evening, Rey Perfecto%De Luna (De Luna) and Sixto Elizan[7] (Elizan)

entered
a videoke bar[8] at Barangay Mugdo, Hinabangan, Samar.[9] Noli Abayan (Abayan), appellant and Joselito Bardelas
(Bardelas) followed five minutes thereafter.[10]While Elizan and De Luna were drinking, singing and merely having fun,
four successive gunshots[11] were fired through the window. Because of this, Elizan and De Luna were hit from behind.[12]
Later on, De Luna[13] and Marialinisa Pasana[14] (Pasana) saw appellant, who was then wearing a black t-shirt and a black
cap, holding a gun aimed at their location. Pasana also saw accused-appellant and Bardelas escape after the
incident.[15]Elizan and De Luna were brought to St. Paul's Hospital at Tacloban City.[16] Unfortunately, Elizan was
pronounced dead upon arrival. De Luna, on the other hand, survived.[17]Appellant steadfastly denied the accusations.
According to him, he and his companions ordered for bottles of beer. However, when they tried to order for more bottles,
the waitress refused to give them their order unless they pay for their previous orders first.[18] While Abayan was
explaining to the father of the owner of the videoke bar, appellant and Bardelas went out to urinate,[19] however, the
waitress locked the front door.[20] While standing outside, he heard the waitress utter the words, "If you will not pay, I
[will] have you killed, all of you, right this moment.[21] He also consistently contend that it was a man wearing black shirt
and camouflage pants who fired shots to the videoke bar[22], not him.The following day, appellant and Bardelas were
arrested and underwent paraffin test.
Issues: and alibi are bereft of merit.
Ruling:
Elements of Murder and FrustratedMurder were establishedThis Court finds that the circumstance of treachery should be
appreciated, qualifying the crime to Murder. According to the Revised Penal Code:ARTICLE 248. Murder. - Any person
who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by
reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances: With
treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense
or of means or persons to insure or afford impunity. In consideration of a price, reward or promise. By means of
inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive,
fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. On
occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano,
destructive cyclone, epidemic, or any other public calamity. With evident premeditation. With cruelty, by deliberately and
inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.Thus, the elements of
murder are: (1) that a person was killed; (2) that the accused killed him or her; (3) that the killing was attended by any of
the qualifying circumstances mentioned in Article 248 of the RPC; and (4) that the killing is not parricide or
infanticide.[37]Furthermore, there is treachery when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof, which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.[38]The requisites of treachery
are:(1) The employment of means method, or manner of execution which will ensure the safety of the malefactor from
defensive or retaliating acts on the part of the victim, no opportunity being given to the latter to defend himself or to
retaliate; and (2) Deliberate or conscious adoption of such means, method, or manner of execution.[39]In this case, the
hapless victims were merely drinking and singing in-front of the videoke machine when shot by the appellant. The firing
was so sudden and swift that they had no opportunity to defend themselves or to retaliate. Furthermore, appellant's acts
of using a gun and even going out of the videoke bar evidently show that he consciously adopted means to ensure the
execution of the crime.In addition, the lower courts appropriately found appellant liable for the crime of Frustrated
Murder.A felony 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.[40]Dr. Angel Cordero M.D. categorically said that De Luna could have died because of the wounds if the
surgery was not conducted timely.[41] Hence, appellant performed all the acts of execution which could have produced
the crime of murder as a consequence, but nevertheless, did not produce it by reason of a cause independent of his will,
which is, in this case, the timely and able medical attendance rendered to De Luna.
Illegal Possession of Firearm as anaggravating circumstancein the crimes of Murder andFrustrated MurderThe CA
appropriately appreciated the use of an unlicensed firearm as an aggravating circumstance in the crimes of Murder and
Frustrated Murder. Under R.A. No. 1059, use of loose firearm in the commission of a crime, like murder, shall be
considered as an aggravating circumstance.[58]In view of the amendments introduced by R.A. No. 8294 and R.A. No.
10591, to Presidential Decree No. 1866, separate prosecutions for homicide and illegal possession are no longer in order.
Instead, illegal possession of firearm is merely to be taken as an aggravating circumstance in the crime of murder.[59] It
is clear from the foregoing that where murder results from the use of an unlicensed firearm, the crime is not qualified
illegal possession but, murder. In such a case, the use of the unlicensed firearm is not considered as a separate crime but
shall be appreciated as a mere aggravating circumstance. Thus, where murder was committed, the penalty for illegal
possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance.[60] The intent
of Congress is to treat the offense of illegal possession of firearm and the commission of homicide or murder with the use
of unlicensed firearm as a single offense.[61]In the case at hand, since it was proven that accused-appellant was not a
licensed firearm holder,[62] and that he was positively identified by the witnesses as the one who fired shots against the
victims, the use of an unlicensed firearm in the commission of the crimes of Murder and Frustrated Murder should be
considered as an aggravating circumstance thereof.The presence of such aggravating circumstance would have
meritedthe imposition of the death penalty for the crime of Murder. However, in view of R.A. No. 9346, we are mandated
to impose on appellant the penalty of reclusion perpetua without eligibility for parole.
CASE DIGEST: Palaganas v. People, G.R. No. 157057
Title: Palaganas v. People, G.R. No. 157057

Subject Matter: Aggravating circumstance, Art. 14 of the Revised Penal Code

Facts:
Brothers Servillano, Melton and Michael Ferrer were having their drinking spree at their house but later decided to
proceed to Tidbits Videoke Bar to continue their drinking spree and to sing. Thereafter, Jaime Palaganas arrived together
with Ferdinand Palaganas and Virgilio Bautista. When Jaime Palaganas was singing, Melton Ferrer sang with him. Jaime
got irritated and insulted. He felt that he was being mocked by Melton that caused him to go to the latter’s table and
uttered statements which began the fight. Ferdinand sought help from Rujjeric Palaganas. They went to the bar and upon
seeing the Ferrers instructed Rujjeric to shoot them. Rujjeric Palaganas shot Servillano, Melton and Michael with the use
of unlicensed firearm. As a result, Melton was killed, Servillano was fatally wounded and Michael was shot in his right
shoulder.

Issues:
(1) Whether or not Rujjeric Palaganas was guilty of the crime of homicide and 2 counts of frustrated murder.
(2) Whether or not the use of the unlicensed firearm is a special aggravating circumstance which should be appreciated
by the court at the case at bar.

Held:
In the first issue, Rujjeric Palaganas is guilty of homicide for the death of Melton Ferrer, frustrated homicide for fatally
wounding Servillano Ferrer and attempted homicide for shooting Michael at his right shoulder.

On the second issue, yes, the unlicensed firearm is a special aggravating circumstance. An aggravating circumstance was
provided for under Presidential Decree No. 1866 as amended by Republic Act 8294 which is a special law that was passed
stating that: if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm
shall be considered as an aggravating circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary
surrender of the petitioner in this case is merely an ordinary mitigating circumstance.

PEOPLE VS TAÑO

Doctrine: Dwelling aggravates a felony when the crime was committed in the residence of the offended party and the
latter has not given any provocation. It is considered an aggravating circumstance primarily because of the sanctity of
privacy that the law accords to human abode. As one commentator puts it, one's dwelling place is a sanctuary worthy of
respect; thus, one who slanders another in the latter's house is more severely punished than one who offends him
elsewhere. According to Cuello Calon, the commission of the crime in another's dwelling shows worse perversity and
produces graver alarm. BUT DWELLING CANNOT BE APPRECIATED IF THE BUILDING WHERE THE OFFENSE WAS
COMMITTED WAS NOT ENTIRELY FOR DWELLING PURPOSES.

Facts: Amy de Guzman was tending a Video Rental Shop owned by her cousin- employer, Ana Marinay in Caloocan City.
The video rental shop was actually located in the same building where Amy and Ana’s family are residing - the ground
floor with kitchen and toilet was where the video rental shop was and the 2nd floor was the family and Amy’s residence
On the date of the incident Alexander Taño, a relative of Ana's husband, kept on going in and out of the video shop, and
on the last time he went inside said shop, he jumped over the counter, seized Amy, poked a knife at the left side of her
neck, pulled her towards the kitchen where he forced her to undress, and started raping her. However, somebody knocked
at the door which prompted him to stop what he was doing and ordered Amy to put on her clothes. Thereafter, he ordered
her to proceed upstairs to get some clothes, so he could bring her out. Before they could reach the upper floor, he suddenly
pulled Amy down and placed himself on top of her. Thereafter, he started mauling her until she lost consciousness.
Accused-appellant then freely ransacked the place. Leaving Amy unconscious and bloody after repeatedly banging her
head, first on the wall, then on the toilet bowl, he took her bracelet, ring and wristwatch. He then proceeded upstairs
where he took as well the jewelry box containing other valuables belonging to Amy's employer.

Charged of Robbery with Rape, TC considered Taño’s admission of the robbery and ruled on the rape case, convicting the
accused with the complex crime of Robbery with Rape, appreciating dwelling as an aggravating circumstance and
sentencing the accused with death penalty.

Issue: Whether dwelling may be appreciated as aggravating circumstance in this case?

Held: No. See Doctrine.

In the case at bar, the building where the two offenses were committed was not entirely for dwelling purposes. The
evidence shows that it consisted of two floors: the ground floor, which was being operated as a video rental shop, and the
upper floor, which was used as a residence. It was in the video rental shop where the rape was committed. True, the victim
was dragged to the kitchen and toilet but these two sections were adjacent to and formed parts of the store. Being a
commercial shop that caters to the public, the video rental outlet was open to the public. As such, it is not attributed the
sanctity of privacy that jurisprudence accords to residential abodes. Hence, dwelling cannot be appreciated as an
aggravating circumstance in the crime of rape.

Dispositive: MODIFIED. Guilty of two separate offenses: rape and robbery. For the crime of rape, appellant is hereby
SENTENCED to reclusion perpetua and to pay Private Complainant Amy de Guzman P50,000 as indemnity ex delicto and
P30,000 as moral damages. For the crime of robbery, appellant is sentenced to an indeterminate penalty of two (2) years
and four (4) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum; and to pay De
Guzman P2,487.65 as actual damages.

NOTE: the case also considered ruling that there is no complex crime of robbery with rape in this case. The rape on this
case was not committed on the occasion of robbery. So separate appreciation of rape and robbery.