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People of the Philippines vs. Gonzales, Jr. People of the Philippines, plaintif appellee, vs. Inocencio Gonzales, Jr., accused-appell ant. GR. No. 139542 June 21, 2001 Gonzaga-Reyes. J FACTS: On October 31, 1998 at about 2:30 p.m., the families of Noel Andres and herein accused- appellant were both on their way to the exit of the Loyola Memorial Park. At the intersection point, the cars they were driving almost collided, Later on, when Andres found an opportunity, he cut Gonzalez off, disembarked ftom his car and went over to Gonzales’. Altercation then ensued. Meanwhile, Dino Gonzalez, son of Inocencio, enteted the scene in defense of his father, Fearing that his son was in danger, Gonzalez took out the gun which was already in his car compartment. Upon seeing his father, Gonzalez’s daughter, Trisha, hugged her father and in the process held his hand holding the gun, The appellant tried to free his hand and with Trisha’s substantial body weight pushing against him the appellant lost his balance and the gun accidentally fired. Feliber “Andres, Noel's wife, was shot to death while their son, Kenneth and nephew Kevin were wounded. ‘The tial court found the accused guilty of the complex crime of murder and two counts of frustrated rder and accordingly sentenced him to death. Accused were also ordered to pay for civil liabilities to the heirs of Mrs, Andres, and the parents of Kevin Valdez. Hence, an automatic review or this case ISSUES: 1, Whether or not the trial court committed reversible error when it found treachery was present in the commission of the crime, 2. Whether or not the trial court committed reversible error when it failed to appreciate voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack of intent fo commit so grave a wrong be considered as mitigating circumstances, RULINGS: 1, Ithas been consistently held by this court that chance encounters, impulse crimes committed at the spur of the moment or that were preceded by heated altereations are generally not attended by treachery for lack of opportunity of the accused to deliberately employ a treacherous mode of attack. Thus, the sudden attack made by the accused due to his infuriaiion by reason of the victim's provocation was held to be ‘without treachery, Sudden attacks made by the accused preceded by curses and insults by the victim or acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery as the victim was sufficiently forewamed of reprisal. For the rules on treachery to apply the sudden attack must have been preconceived by the accused, unexpected by the victim and without provocation on the part of the latter. We affirm the recommendation ofthe Solicitor-General that the shooting was not attended by treachery and accordingly the crime committed for the death of Feliber Andres is homicide and not murder. 2. The mitigating circumstances of voluntary surrender, passion and obfuscation, incomplete defense of a relative and lack of intent to commit so gravea wrong, pleaded by the defense, were not convincingly proved and none can be considered in the imposition of penalties. The testimony of prosecution witness contradicts the appellant's pretense of voluntary surrender ‘The mitigating circumstance of passion and obfuscation is also not cbtaining Provocation must be sufficient to excite a person to commit the wrong commitied and that the provocation must be commensurate to the crime committed. The sufficiency of provocation varies according to the circumstances of the case. The aggressive behavior of Noel Andes towards the appellant and his son may be demeaning er humilisting but not sufficient provocation to shoot at the complainant's vehicle. The plea for the appreciation of the mitigating circumstance of incomplete defense ofa relative is also unmeritorious since the act of Andres in cursing and shouting at the appellant and his son do not amount to an unlawful aggression against them, Dino Gonzalez, Finally, the plea for the appreciation of the mitigating circumstance of lack of intent to commit so grave. wrong is likewise devoid of merit. This mitigating circumstance is obtaining when there isa notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of attack employed and the injury sustained by the victim. The appellant’s use of a gun, although not deliberately sought nor employed in the shooting, should have reasonably placed the appellant on guard of the possible consequences of his act. The use of a gun is sufficient to produce the resulting crimes committed