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605 Phil. 894


[ G.R. No. 183566, May 08, 2009 ]




On automatic review is the Decision dated April 22, 2008 of the Court of Appeals (CA) in CA G.R. CR-H.C. No. 00129, which found accused-appellant Bonifacio Badriago guilty of Frustrated Homicide in Criminal Case No. 4255 and Murder in Criminal Case No. 4276.

The Facts

Accused-appellant was charged before the Regional Trial Court (RTC) under the following Informations:
Criminal Case No. 4255

That on or about the 13th day of September 2002 in the Municipality of Carigara, [P]rovince of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and hack one ADRIAN QUINTO, with the use of a long sharp bolo (sundang) which the accused had provided himself for the purpose, thereby inflicting upon the latter the following wounds, to wit:

(+)  hacked wounds transverse approximately 16 cms.
Linear (L) lumbar area level of L-L5
(+) hacked wound (L) forearm.
A) Near amputation M/3rd (L) forearm 2Ëš to hack wound.
Hack wound 15 cms. oblique level of L2 posterior
lumbar area, transecting underlying muscle.
Fracture both radius and ulna.
OPERATION: September 14, 2002.
Wound Debridement and Repair
ORIF (Pinning)

Which wounds required a period of from thirty (30) days to ninety (90) days to heal and incapacitated said offended party from performing his habitual work for the same period of time; thus the accused performed all the acts of execution which [would] have produced the crime of Homicide as a consequence thereof, but nevertheless did not produce it by reason or causes independent of the will of the accused, that is the timely and able medical assistance rendered to the said Adrian Quinto which prevented his death.


Criminal Case No. 4276

That on or about the 13th day of September, 2002, in the Municipality of Carigara, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab one OLIVER QUINTO with the use of a long sharp bolo (sundang) which the accused had provided himself for the purpose, thereby inflicting upon the latter the following wounds, to wit:
  1. [Stab] wound 4 cm. x 1.5 cm. x 16 cm. (L) ant. chest at the level of 5th ICS along the (L) ICL;
  2. [Stab] wound 6.5 x 3 cm. x 22 cm. (L) ant. chest at the level of 6th ICS along (L) anterior AAL;
  3. [Stab] wound 3.5 cm. x 1.5 x 2 cm., (L) arm proximal 3rd lateral aspect;
  4. Amputating wound (L) 3rd, 4th and 5th finger;
  5. [Stab] wound 5 cm. x 3.5 cm. x 6 cm. umbilical area with intestinal and omental prolapsed;
  6. Hacking wound 9 cm. x 2 cm. (L) occipital area with skull fracture;
  7. [Stab] wound 3 cm. x 1 cm. x 15 cm. (L) posterior back at the level of T 12, 3 cm. away from vertebral line;
  8. [Stab] wound 2 cm. x 1 cm. x 9 cm. (L) posterior back 8 cm. away from vertebral line;
  9. Hacking wound 11 cm. x 2 cm. x 9 cm. (L) posterior iliac with fracture of hip bone;
  10. [Stab] wound 3 cm. x 2 cm. x 3 cm. (L) buttocks;
  11. [Stab] wound 5.5 cm. x 1.5 cm. x 2.5 cm. lumbar area along the vertebral line.
which wounds caused the death of said Oliver Quinto.

Upon arraignment, accused-appellant pleaded not guilty to both charges. The parties later agreed to try the case jointly. During trial, the prosecution presented the following witnesses: Dr. Ma. Bella Profetana, Adrian Quinto, Dr. Frederic Joseph Asanza, and Victoriano Quinto. The defense witnesses consisted of accused-appellant and Rodolfo Gabon.

The prosecution's presentation of evidence is summarized as follows: Adrian testified that on the morning of September 13, 2002, he was asked by his mother to bring a letter to one Berting Bello at Barangay Guindapunan, Leyte. He drove a tricycle to deliver the letter along with his younger brother, Oliver.  After finishing the errand they headed back to the town plaza where their mother was waiting for them. Before they could reach their destination, however, they were approached by accused-appellant at Sitio Mombon in Carigara. Accused-appellant then suddenly hacked him with a sundang or long bolo on his lumbar area.[2] Accused-appellant aimed a second time but Adrian was able to somehow shield himself. His lower left arm suffered a hack wound as a result.  Struck with panic, he jumped off the tricycle but could not run away. He was able to push Oliver off the tricycle so he could run away and call for help. He could no longer testify on what happened thereafter as he lost consciousness and only woke up while confined at Carigara District Hospital. His mother later informed him that Oliver was also attacked and did not survive.

Dr. Asanza's testimony showed that Adrian suffered from two wounds that could have been fatal: the hack wound on the lumbar area and on his left arm. He explained that Adrian could have died had he not been brought to the hospital.  When cross-examined, he stated that there was a possibility that Adrian could still crawl or walk despite the infliction of the wound on the lumbar area. He also testified that it was possible that Adrian was first hit on the forearm as he was facing accused-appellant and that he could have been hit on the lumbar area while he was running.[3]

Dr. Profetana told the court that her post-mortem examination of Oliver showed that eight of the 11 wounds inflicted on him were fatal.  She identified hypovolemic shock as Oliver's cause of death. Furthermore, she stated that it was impossible for the victim to have survived the wounds as these severed the blood vessels and caused hemorrhage.[4]

Victoriano, father of the victims, testified that his family incurred PhP 20,000 in expenses for the stainless bar placed on Adrian's injured arm. According to his estimate, they spent about PhP 50,000 for Adrian's two-month hospitalization but they were not able to keep the receipts. For the death of his other son, Oliver, they spent PhP 9,000 for the coffin and about PhP 10,000 for the wake. He likewise testified that if his family's losses could be quantified they would claim the amount of PhP 100,000.[5]

In his defense, accused-appellant stated under oath that on the morning of September 13, 2002, he was on his pedicab looking for passengers.  While he was on his way to the bus terminal in Carigara, Leyte, he was accosted by Adrian and Oliver, who carried stones with them. Adrian called out to him, "Now Boning, let us fight." He tried to speed away but the two chased him, with Adrian driving his pedicab and Oliver standing on the cargo compartment. They bumped accused-appellant's pedicab, causing him to swerve to the middle of the road.[6]  When accused-appellant looked back, Adrian got out of his pedicab and approached him with a knife about 10 inches long.  Seeing Adrian was about to stab him, he grabbed a bolo from his pedicab's passenger seat and used it to strike at Adrian, injuring his left hand. Adrian's knife fell and when he bent to pick it up, accused-appellant again hacked at him with his bolo. Adrian then managed to run away from accused-appellant and head towards Barangay Guindapunan. Accused-appellant, meanwhile, ran towards the municipal building to inform the police that he had injured someone. He denied killing Oliver as while he was fighting with Adrian he did not even see Oliver.[7]

When cross-examined accused-appellant admitted that he did not suffer any injury following the confrontation with Adrian. He claimed not to know what happened to Oliver.

The other defense witness, Rodolfo, testified that he knew accused-appellant as a pedicab driver. On the day of the incident he saw two pedicabs engaged in a chase. He noticed that accused-appellant was in one pedicab and he was being chased by the pedicab driven by Adrian. The bumper of accused-appellant's pedicab was bumped by Adrian's pedicab. From a distance of about four arms' length, he saw the two go down from their respective pedicabs. Adrian said "let's have a fight" while drawing a short bolo from his waist. Adrian tried to stab accused-appellant but was unable to hit him. He then saw accused-appellant draw his own bolo from his waist and hit the left arm of Adrian. Adrian's bolo fell to the ground and when he was about to pick it up he was again hit by accused-appellant.

On cross-examination, Rodolfo stated that he had not seen if Adrian had a passenger on board his pedicab, and that the incident occurred along a national road with many houses and shrubbery.[8]

On July 29, 2004, the RTC rendered its judgment. Accused-appellant was found guilty of the crimes charged. The fallo of the Decision is as follows:
WHEREFORE, premises considered, with the aggravating circumstance of treachery, the Court [finds] accused BONIFACIO BARDIAGO, GUILTY beyond reasonable doubt of the crime of FRUSTRATED MURDER instead of Frustrated Homicide in Criminal Case No. 4255, and [sentences him] to suffer an indeterminate penalty of SIX (6) YEARS and ONE (1) DAY OF Prision Mayor as Minimum to TWELVE (12) YEARS and one (1) DAY of Reclusion Temporal as Maximum, and to pay Adrian Quinto actual damages in the amount of Twenty Thousand (P20,000.00) Pesos and exemplary damages in the amount of Ten Thousand (P10,000.00) pesos.

Likewise, pursuant to Art. 248 of the Revised Penal Code as amended and further amended by R.A. No. 7659 (The Death Penalty Law) the Court found accused BONIFACIO BARDIAGO, GUILTY beyond reasonable doubt of the crime of MURDER charged under the information in Criminal Case No. 4276, and sentenced to suffer the maximum penalty of DEATH, and pay the heirs of Oliver Quinto civil indemnity in the amount of Seventy Five Thousand (P75,000.00) and exemplary damages in the amount of Twenty Five Thousand (P25,000.00) Pesos; and [to] pay the cost.

On September 14, 2004, the records of the case were transferred to this Court on automatic review as the death penalty was involved. But conformably with People v. Mateo,[10] the case was transferred to the CA via a Resolution dated February 15, 2005.

Accused-appellant, in his Brief filed before the CA, claimed that the trial court erred in convicting him of frustrated murder as what was read to him at his arraignment was a charge for frustrated homicide, and the trial court likewise erred in convicting him of frustrated murder and murder as his guilt was not proved beyond reasonable doubt.  He also challenged the conviction on the ground that the mitigating circumstances of voluntary surrender, incomplete self-defense, and lack of intention to commit so grave a wrong were not appreciated by the trial court.

The CA sustained accused-appellant's first contention. It ruled that his conviction for frustrated murder was a gross violation of his constitutional right to be informed of the nature and the cause of accusation against him. Accused-appellant's other arguments, however, were not given merit. The CA noted the undisputed fact that it was accused-appellant, claiming self-defense, who inflicted the wounds sustained by Adrian and Oliver. The circumstantial evidence presented showed accused-appellant's culpability. Moreover, according to the CA, his choice of weapon and the areas he hacked on the victim's bodies revealed a clear intention to kill. The CA said he was able to injure the brothers with no injury caused to himself.

Lastly, the appellate court rejected the mitigating circumstances proffered by accused-appellant. It ruled that there was no voluntary surrender as accused-appellant himself testified that he had merely reported the injury and did not surrender. As to the self-defense theory, the CA stated that accused-appellant failed to establish the victims' unlawful aggression, a requisite in such a mitigating circumstance.

In view of Republic Act No. 9346 or An Act Prohibiting the Imposition of Death,[11] the CA reduced accused-appellant's penalty to reclusion perpetua with respect to the murder charge in Criminal Case No. 4276.

The decretal portion of the CA Decision reads:
WHEREFORE, all the foregoing taken into account, the instant appeal is partially granted.

Accordingly, in Criminal Cases No. 4255 accused-appellant is found guilty only of FRUSTRATED HOMICIDE and is hereby penalized to suffer an indeterminate sentence of 2 years, 4 months and 1 day of prision correccional as minimum to 8 years and 1 day of prison mayor as maximum and to pay Adrian Quinto the sum of twenty five thousand pesos (P25,000.00) by way of temperate damages.

In criminal case no. 4276 accused-appellant is found guilty of MURDER and is hereby sentenced to Reclusion Perpetua and to pay the amount of fifty thousand pesos (Php50,000.00) as civil indemnity; twenty five thousand pesos (P25,000.00) by way of temperate damages, fifty thousand pesos (P50,000.00) as moral damages and twenty-five thousand pesos (P25,000.00) as exemplary damages.

With costs.

The Issues

On September 1, 2008, this Court notified the parties that they may file supplemental briefs if they so desired. The parties manifested that they were dispensing with such filing. Accused-appellant, thus, re-pleads his arguments first made before the CA. His appeal being partially granted, the only remaining issues to be resolved are the following:



Our Ruling

We affirm accused-appellant's conviction.

Frustrated Homicide

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.[13] 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.[14]

On the other hand, the essential elements of a frustrated felony are as follows: (1) The offender performs all the acts of execution; (2) all the acts performed would produce the felony as a consequence; (3) but the felony is not produced; and (4) by reason of causes independent of the will of the perpetrator.[15]

From the evidence presented to the trial court, it is very much clear that accused-appellant was able to perform all the acts that would necessarily result in Adrian's death. His intention to kill can be presumed from the lethal hacking blows Adrian received. His attack on Adrian with a bolo was not justified. His claim of self-defense was not given credence by both the trial and appellate courts. Neither are there any of the qualifying circumstances of murder, parricide, and infanticide. The circumstances, thus, make out a case for frustrated homicide as accused-appellant performed all the acts necessary to kill Adrian; Adrian only survived due to timely medical intervention as testified to by his examining physician.
Murder Qualified by Treachery

It is also argued by the defense that the attendant qualifying circumstance of treachery was not proved by clear and convincing evidence. Accused-appellant reasons that Adrian was still able to put up a defense by parrying the blow made by accused-appellant and was even able to jump off from the pedicab he was driving. He, thus, maintains that the trial court erroneously characterized the incident as a sudden attack.

The essence of treachery is a deliberate and sudden attack, offering an unarmed and unsuspecting victim no chance to resist or to escape.[16] There is treachery even if the attack is frontal if it is sudden and unexpected, with the victims having no opportunity to repel it or defend themselves, for what is decisive in treachery is that the execution of the attack made it impossible for the victims to defend themselves or to retaliate.[17] The records show that Adrian was suddenly attacked with a bolo, and the most he could do at that moment was to shield himself somehow from the blow with his arm. Another blow to Adrian's back showed the vulnerability of his position as he had his back turned to accused-appellant and was not able to flee from attack. Treachery may also be appreciated even if the victims were warned of the danger to their lives where they were defenseless and unable to flee at the time of the infliction of the coup de grace.[18]

Sufficiency of the Prosecution's Evidence

Accused-appellant speculates that if the incident happened in broad daylight and near a bus terminal, there should have been independent eyewitnesses identifying accused-appellant as Oliver's killer. Much is made of the fact that not even Adrian was able to identify accused-appellant as Oliver's assailant.

The failure by the prosecution to present the weapon allegedly used in the attack is, in accused-appellant's mind, yet another obstacle to the State's obligation to prove guilt beyond reasonable doubt.

We hold that the circumstantial evidence available was enough to convict accused-appellant. Circumstantial evidence may be competent to establish guilt as long as it is sufficient to establish beyond a reasonable doubt that the accused, and not someone else, was responsible for the killing.[19] Circumstantial evidence is sufficient for conviction as long as there is (1) more than one circumstance; (2) the facts from which the inferences are derived are proved; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[20]

We go back to accused-appellant's own admission that he indeed injured Adrian, causing him near-fatal injuries. From this admission the rest of the evidence, albeit circumstantial, made out a clear case for Oliver's murder. First, the victims were together in Adrian's pedicab when the attack took place; second, accused-appellant hacked Adrian with a bolo; third, Adrian's injuries were caused by a bolo; fourth, Adrian tried to push Oliver to safety before he lost unconsciousness; fifth, Oliver's wounds were found to have been caused by a weapon that made similar hacking wounds as the one made by accused-appellant when he assaulted Adrian; and sixth, Oliver died on the same day Adrian sustained stab wounds. Although there is no direct evidence of Oliver's actual wounding, the circumstantial evidence presented sufficiently established that it was accused-appellant who perpetrated the twin attacks on the brothers.

Accused-appellant, thus, cannot argue that the prosecution's evidence was insufficient to convict him. Furthermore, we have long ago held that the presentation of the murder weapon is not even essential for a conviction.[21]

Voluntary Surrender

For the mitigating circumstance of voluntary surrender to be appreciated, the surrender must be spontaneous and in a manner that shows that the accused made an unconditional surrender to the authorities, either based on recognition of guilt or from the desire to save the authorities from the trouble and expenses that would be involved in the accused's search and capture.[22] Moreover, it is imperative that the accused was not actually arrested, the surrender is before a person in authority or an agent of a person in authority, and the surrender was voluntary.[23]

None of these requisites are present in accused-appellant's case. In fact, jurisprudence holds that merely reporting the incident cannot be considered voluntary surrender within contemplation of the law.[24]  By accused-appellant's own admission, he only went to the authorities to inform them that Adrian was injured. What is more, accused-appellant claims he had nothing to do with the murder of Oliver. Even if we were to consider voluntary surrender as mitigating, this would only apply to the injury inflicted on Adrian. Accused-appellant denies culpability in Oliver's death and this negates any acknowledgement of guilt.

Incomplete Self-Defense

We likewise find implausible accused-appellant's assertion that he employed self-defense. The records show that the requisites of a successful claim of self-defense were not met.  As found in the Revised Penal Code, these are:
Art. 11. Justifying circumstances.—The following do not incur any criminal liability:

1. Any one who acts in defense of his person or rights, provided that the following circumstances concur:

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it.

Third. Lack of sufficient provocation on the part of the person defending himself.
In incomplete self-defense, the indispensable requisite is unlawful aggression.[25] What is missing is either reasonable necessity of the means employed to prevent or repel it or lack of sufficient provocation on the part of the persons defending themselves. In the instant case, accused-appellant's self-serving claim of self-defense coupled with the fact that he did not sustain any injuries from his supposed attacker, Adrian, fails to support any claim of unlawful aggression, the crucial requisite to his defense. As the appellate court noted, there was no clear, credible, and convincing evidence that Adrian was the one who instigated the fight and that accused-appellant was merely fending off an attack. Unlawful aggression by the victim must be clearly shown.[26]

Lack of Intention to Commit So Grave a Wrong

Under Article 13(3) of the Code, the circumstance that the offender had no intention to commit so grave a wrong as that committed mitigates criminal liability. This mitigating circumstance addresses itself to the intention of the offender at the particular moment when the offender executes or commits the criminal act.[27]  Looking at the victims' wounds, however, we cannot count the circumstance in accused-appellant's favor.  Adrian suffered a hacking wound on his left forearm that caused near amputation, and another one on his lumbar area. These wounds would have been fatal were it not for timely medical assistance. Oliver, on the other hand, bore the brunt of the attack with eleven (11) different stab wounds, including one on the skull and on the chest. The number, location, and nature of these stab wounds belie accused-appellant's claim of lack of intention to commit so grave a wrong against his victim.[28]

We agree with the findings by the trial and appellate courts on the particulars of the case. Findings of facts of the trial court, as affirmed by the appellate court, are conclusive absent any evidence that both courts ignored, misconstrued, or misinterpreted cogent facts and circumstances of substance which, if considered, would warrant a modification or reversal of the outcome of the case.[29]  Since the aforementioned exceptions are not present, accused-appellant's conviction is warranted.

Finally, we affirm the sentence imposed on accused-appellant in both criminal cases. In accordance with jurisprudence,[30] we, however, additionally award moral damages of PhP 50,000 to Adrian. His physical, psychological, and moral sufferings from the wounds inflicted on him serve as the basis for the award and this does not require proof or pleading as ground for this award.[31]

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 00129 which found accused-appellant guilty of Frustrated Homicide in Criminal Case No. 4255 and Murder in Criminal Case No. 4276 is AFFIRMED with the MODIFICATION that he is likewise ordered to pay Adrian the amount of PhP 50,000 as moral damages.


Carpio-Morales,* (Acting Chairperson), Velasco, Jr., Leonardo-De Castro,** and  Brion, JJ., concur.

* As per Special Order No. 618 dated April 14, 2009.

** Bonifacio Bardiago in some parts of the records.

*** Additional member as per Special Order No. 619 dated April 14, 2009.

[1] CA rollo, pp. 16-18.

[2] Id. at 19.

[3] Id. at 20.

[4] Id. at 18-19.

[5] Id. at 20-21.

[6] Id. at 74.

[7] Id. at 74-75.

[8] Id. at 75.

[9] Id. at 30-31. Penned by Judge Crisostomo L. Garrido.

[10] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

[11] Effective June 24, 2006.

[12] Rollo, pp. 19-20. Penned by Associate Justice Priscilla Baltazar-Padilla and concurred in by Associate Justices Franchito N. Diamante and Florito A. Macalino.

[13] Nerpio v. People, G.R. No. 155153, July 24, 2007, 528 SCRA 93, 100.

[14] People v. Tolentino, G.R. No. 176385, February 26, 2008, 546 SCRA 671, 695.

[15] Martinez v. Court of Appeals, G.R. No. 168827, April 13, 2007, 521 SCRA 176, 202.

[16] Tolentino, supra note 14, at 697.

[17] People v. Segobre, G.R. No. 169877, February 14, 2008, 545 SCRA 341, 348-349.

[18] People v. Sison, G.R. No. 172752, June 18, 2008, 555 SCRA 156, 172.

[19] Commonwealth v. Conkey, 819 N.E.2d 176, December 16, 2004.

[20] People v. Garcia, G.R. No. 174479, June 17, 2008, 554 SCRA 616, 633.

[21] People v. Chavez, G.R. No. 116294, August 21, 1997, 278 SCRA 230, 242; citing People v. Bello, G.R. No. 92597, October 4, 1994, 237 SCRA 347, 352.

[22] Garcia, supra note 20, at 637.

[23] People v. Concepcion, G.R. No. 169060, February 6, 2007, 514 SCRA 660, 672.

[24] People v. Valles, G.R. No. 110564, January 28, 1997, 267 SCRA 103, 118.

[25] Mendoza v. People, G.R. No. 139759, January 14, 2005, 448 SCRA 158, 161.

[26] Id. at 162.

[27] People v. Abueg, No. L-54901, November 24, 1986, 145 SCRA 622, 634.

[28] People v. Cardel, G.R. No. 105582, July 19, 2000, 336 SCRA 144, 161.

[29] People v. Dilao, G.R. No. 170359, July 27, 2007, 528 SCRA 427, 439.

[30] People v. Soriano, G.R. No. 148123, June 30, 2008, 556 SCRA 595.

[31] Id. at 613.

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