478 Phil. 606


[ G.R. No. 151978, July 14, 2004 ]




For review on certiorari is the Decision[1] dated January 11, 2002 of the Court of Appeals, in CA-G.R. CR. No. 23753, affirming the August 16, 1999 Order[2] of the Regional Trial Court of Cagayan de Oro City, Branch 24, in Criminal Case No. 98-1089.  The RTC convicted petitioner Arturo Romera of frustrated homicide and sentenced him to imprisonment ranging from one (1) year, eight (8) months and twenty (20) days of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum.  He was also ordered to pay private offended party P19,361.15 as actual damages and P10,000 as attorney’s fee.

The Information against petitioner reads:
On October 4, 1998, at about 7:00 o’clock in the evening, at Sitio Puntod, Barangay Balagnan, Balingasag, Misamis Oriental, within the jurisdiction of the Honorable Court, the above-named accused, with intent to kill, did, then and there, willfully, unlawfully, and feloniously attack, assault, and stab one Roy Mangaya-ay with the use of a bolo, thus, inflicting a mortal wound on the abdomen of the latter; accused thereby performed all the acts of execution which would have produced the felony of Homicide which was not produced because of the timely and effective medical attendance administered on the said victim.

CONTRARY TO and in violation of Article 249, in relation with Article 6 of the Revised Penal Code.[3]
When arraigned, petitioner pleaded not guilty and trial thereafter ensued.

The facts, as summarized by the Court of Appeals and borne by the records, are as follows:

In the afternoon of October 4, 1998, petitioner Arturo Romera was with the victim, Roy Mangaya-ay, and five other men namely, Eligario “Beboy” Acenas, Dennis “Bobong” Mangaya-ay, Ric Mangaya-ay, Bebing Zulueta and Franklin Generol.  They were all headed for Biasong to play volleyball.  When they reached Biasong, it was raining, so they decided to while away time at the house of Ciriaca Capil.  Franklin Generol hung a string made of cigarette foil on Bebing Zulueta’s pants and said, “There’s a monkey among us.”  Everybody laughed except Roy Mangaya-ay, who got angry and chided Franklin Generol to stop lest he make enemies.  Bebing Zulueta also got angry and pointed a finger at Franklin Generol and said, “Even if you are stronger and older, if you will be hit by my fist, you will crawl.” Petitioner then stood up and warned everyone, “You all watch out in Balaguan.” He pulled Franklin Generol to join him and said, “Let’s go, there are many boastful people here.” Thereafter, petitioner and Franklin left the group.

At six o’clock in the evening, Roy and his companions arrived in Balaguan.  On their way home, they passed by the house of one Antonio Mangaya-ay.  In said house, which is about one kilometer away from petitioner’s own, they saw petitioner already carrying a bolo waiting for them.

Suddenly, raising the bolo with his right hand, petitioner uttered, “Here are the brave ones.” Roy and his companions ran away but Roy slipped on the muddy ground.  Petitioner approached Roy and said, “Come here, brave one.” He held Roy up by the collar and stabbed him in the stomach. Roy fell unconscious.  When he woke up, he found himself at the provincial hospital where he underwent surgery and stayed for more than three weeks.

After the stabbing incident, petitioner voluntarily surrendered to a certain Tibo Ramoso of the Citizen’s Armed Force Geographical Unit (CAFGU).  Ramoso accompanied petitioner to the Balingasay police station.

For his part, petitioner testified on what happened as follows:

Petitioner and his family were having dinner in their house at around seven o’clock in the evening.  Thereafter, they went to bed.  While lying in bed, they heard Roy call petitioner and his wife, asking if they had beer and a fighter for sale.  He did not answer Roy because he knew that Roy was already drunk.  Roy asked for petitioner but when the latter’s wife told him that petitioner was already asleep, he told her to wake her husband up.  Petitioner went down the house and asked who was at the door.  Just as he opened the door for Roy, Roy thrust his bolo at him.  He successfully parried the bolo and asked Roy what it was all about.  Roy answered he would kill petitioner.  Petitioner tried to prevent Roy from entering, so he pushed the door shut.  As Roy was hacking at the wall, petitioner’s wife held the door to allow petitioner to exit in another door to face Roy.  He hurled a stone at Roy, who dodged it.  Roy rushed to him and hacked him, but he parried the blow.  Petitioner grappled for the bolo and stabbed Roy in the stomach.  Wounded, Roy begged petitioner for forgiveness.  According to petitioner, he ceased harming Roy for fear he might kill him.

The trial court discounted petitioner’s story of self-defense.  It found that when petitioner got hold of the bolo, there was no more danger to his life.  Petitioner was convicted of frustrated homicide.  The dispositive part of its decision reads:
WHEREFORE, premises considered, judgment is hereby rendered, finding accused ARTURO ROMERA guilty beyond reasonable doubt as principal of the offense charged. Consequently, taking into consideration the mitigating circumstance of voluntary surrender and the provisions of the [I]ndeterminate Sentence Law, he is hereby sentenced to a penalty ranging from One (1) year Eight (8) months and Twenty (20) days of Prision Correccional as minimum to Six (6) years and one (1) day of Prision Mayor as maximum and to pay the private offended party as actual damages, P19,361.15 and another sum of P10,000.00 as attorneys fee without, however, subsidiary imprisonment in case of insolvency.

Petitioner appealed to the Court of Appeals assigning to the trial court the following assignments of error:


The Court of Appeals affirmed the trial court’s judgment.  It pointed out that assuming arguendo that it was the victim who was the aggressor at the start, the unlawful aggression ceased to exist when petitioner took possession of the bolo from the victim.  Absent unlawful aggression, the justifying circumstance of self-defense becomes unavailing.

The appellate court also ruled that Article 69[6] of the Revised Penal Code finds no application in this case.  It explained that there can be no self-defense, complete or incomplete, unless the victim has committed unlawful aggression against the person defending himself.  It held, however, that petitioner is entitled to the mitigating circumstance of voluntary surrender as it was established during trial that after the incident he surrendered himself to the CAFGU and later on to the police authorities.

Undeterred, petitioner filed the instant petition for review on the sole ground that both the RTC and the Court of Appeals erroneously failed to apply Article 64 (5) of the Revised Penal Code, which lowers the imposable penalty by one degree when two or more mitigating circumstances are present.

Petitioner contends that the victim provoked him to a fit of anger when the latter woke him up and thrust a bolo at him without warning as petitioner opened the door.  Moreover, by hacking and destroying the bamboo wall of his house, and endangering the lives of his children, the victim also obfuscated his thinking and reasoning processes, says the petitioner.

For public respondent, the Office of the Solicitor General (OSG) counters that the mitigating circumstances of provocation and passion or obfuscation are unavailing to petitioner since it was he who initiated the attack.  The OSG insists that it was not the victim who went to petitioner’s house, but petitioner who went to where the victim was resting.

We note that while both the RTC and the Court of Appeals did not categorically state who started the attack, it can be reasonably gleaned from their decisions that it was the victim who initiated the aggressive encounter.  This finding of fact is amply supported by the evidence on record.

Are the mitigating circumstances of provocation and passion or obfuscation present in this case?

Thrusting his bolo at petitioner, threatening to kill him, and hacking the bamboo walls of his house are, in our view, sufficient provocation to enrage any man, or stir his rage and obfuscate his thinking, more so when the lives of his wife and children are in danger.  Petitioner stabbed the victim as a result of those provocations, and while petitioner was still in a fit of rage.  In our view, there was sufficient provocation and the circumstance of passion or obfuscation attended the commission of the offense.

But, we must stress that provocation and passion or obfuscation are not two separate mitigating circumstances.  Well-settled is the rule that if these two circumstances are based on the same facts, they should be treated together as one mitigating circumstance.[7] From the facts established in this case, it is clear that both circumstances arose from the same set of facts aforementioned.  Hence, they should not be treated as two separate mitigating circumstances.

Nonetheless, we hold that since the mitigating circumstance of voluntary surrender is also present, Article 64 (5) of the Revised Penal Code should be applied, to wit:
ART. 64. Rules for the application of penalties which contain three periods. –…

. . .
  1. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances.
. . .
The penalty for frustrated homicide, pursuant to Article 50[8] of the Revised Penal Code, is the penalty next lower in degree than that prescribed by law for consummated homicide.  The penalty for consummated homicide is reclusion temporal, hence the penalty next lower in degree is prision mayor.  There being two mitigating circumstances and no aggravating circumstance, pursuant to Article 64 (5) of the Revised Penal Code, the next lower penalty, prision correccional, is the next statutory penalty.  But following the Indeterminate Sentence Law herein applicable, the minimum term of the penalty that should be imposed on petitioner for frustrated homicide should be within the range of arresto mayor in any of its periods or from one (1) month and one (1) day to six (6) months, while the maximum term should be within the range of prision correccional in its medium period or two (2) years, four (4) months and one (1) day to four (4) years and two (2) months.

WHEREFORE, the Decision dated January 11, 2002 of the Court of Appeals affirming the Order of the Regional Trial Court of Cagayan de Oro City, Branch 24, is MODIFIED as far as the penalty imposed is concerned.  Petitioner ARTURO ROMERA is hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum.  He is also ORDERED to pay the private offended party P19,361.15 as actual damages, and P10,000.00 as attorney’s fees.  Costs de oficio.


Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[1] Rollo, pp. 29-35.  Penned by Associate Justice Perlita J. Tria Tirona, with Associate Justices Ramon A. Barcelona, and Bernardo P. Abesamis concurring.

[2] Id. at 23-28.

[3] Records, p. 3.

[4] Rollo, p. 28.

[5] Id. at 32.

[6] ART. 69. Penalty to be imposed when the crime committed is not wholly excusable. – A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Articles 11 and 12, provided that the majority of such conditions be present.  The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking.

[7] People v. Pagal, No. L-32040, 25 October 1977, 79 SCRA 570, 575.

[8] ART. 50. Penalty to be imposed upon principals of a frustrated crime. – The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principals in a frustrated felony.

Source: Supreme Court E-Library
This page was dynamically generated by the E-Library Content Management System (E-LibCMS)