588 Phil. 560
CARPIO MORALES, J.:
That on or about the 29th day of March, 1997 at about 3:05 o'clock in the afternoon at Sto. Domingo, Iriga City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law and with evident premeditation, did, then and there willfully, unlawfully and feloniously attack and stab with the said [sic] weapon, one Medardo M. de Villa, hitting the latter at the left side portion of his stomach, accused thereby have [sic] performed all the acts of execution which would have produced the crime of murder, but which nevertheless was not produced by reason of causes independent of the will of the accused, and that is by the timely medical assistance rendered to the aforesaid victim which prevented his death, to his damage and prejudice in such amount as may be proven in court.In the afternoon of March 29, 1997, Medardo de Villa (the victim), while on board a bicycle along a road at Iriga City, met petitioner who was also on board a bicycle coming from the opposite direction.[1] After both alighted from their respective bicycles, petitioner stabbed the victim with a balisong (fan knife)[2] at the upper left portion of the abdomen.[3]
ACTS CONTRARY TO LAW.
x x x xNot long after the incident, petitioner surrendered to the police.
FINAL DIAGNOSIS:
Stab wound, 3 cm., subcostal Area, Anterior Axillary Line, left penetrating the diaphragm, incising the spleen type I
x x x x (Emphasis and underscoring supplied)
Petitioner added that prior to the incident, there had been several attempts of the victim to stab him, and even the victim's brothers harassed and threatened him.[7]
Q: You also testified that Midardo [sic] de Villa attempted . . . to stab [you] by a knife, but it was only on the 4th time that you were able to wrest the [B]atangas knife from him. Now, will you please stand up and demonstrate to the Honorable Court how were you able to evade these three times Midardo de Villa's attempt[ed] to stab you with [a] [B]atangas knife? A: The first time he stabbed [sic] me (witness swinging his right arm from right to left with him evading the blow while swinging his body backward)[.] I did not react instantly because I could hear the people in the waiting shed pacifying him not to continue and the second time was in like manner [sic] swinging his right hand towards me from left to right with me evading with blow [sic] by the backward [sic] and the third time that he attempted to stab me I decided to wrest the [B]atangas knife. So from him [sic] I could sense he really intends to harm me. The 4th time he attempted I really sense [sic] that he really determine [sic] to stab me. So I pary [sic] blow with my left hand and the [B]atanags [sic] knife with my right hand. After which he picked up stones and it [sic] was in the act of throwing the stones to me that I have [sic] chance to stab him. After I stabbed him, he fell down and so I left.[6] (Emphasis and underscoring supplied)
WHEREFORE, finding accused, COSME NACARIO guilty beyond reasonable doubt for the crime of frustrated homicide, he is sentenced to imprisonment of twelve (12) years, ten (10) months and twenty-one (21) days to thirteen (13) years; nine (9) months and ten (10) days, the medium of reclusion temporal, minimum period which is minimum of, to [sic] fifteen (15) years, six (6) months and twenty (20) days to sixteen (16) years, five (5) months and nine (9) days, the medium of reclusion temporal in its medium period which is the maximum period of the indeterminate sentence; to pay an indemnity of P25,000.00; actual damages including attorney [sic] and doctor's fees of P35,000.00 and to pay the cost.In ruling out self-defense, the trial court held:
SO ORDERED.
Accused could not claim self-defense because, after having wrestled away the knife from complainant, if at all complainant was originally in possession of the knife and tried to stab him [sic], there was already an interval of time when complainant turned his back from him and picked up a stone. Assuming without admitting that complainant picked up a stone to throw at him, he could always run away from the fight. After all he was patient enough to ward off complainant's attempts to stab him. This version of the accused is not credible. The court believes that it was accused who was in possession of the knife all the time when they met and he stabbed him.[9] (Emphasis and underscoring supplied)By Decision of May 18, 2006,[10] the Court of Appeals affirmed the findings of the trial court but modified the penalty after considering the mitigating circumstance of voluntary surrender of petitioner. Thus the appellate court disposed:
WHEREFORE, premises considered, the assailed July 5, 2002 Decision of the RTC of Iriga City, Branch 35, in Criminal Case No. IR-4445, which convicted accused-appellant Cosme Nacario of the crime of Frustrated Homicide, is hereby AFFIRMED with MODIFICATION that the penalty should be from two (2) years and four months of prision correccional in its minimum period, as minimum, to six (6) years and one (1) day of prision mayor in its minimum period, as maximum. Moreover, accused-appellant Cosme Nacario is ORDERED to pay the victim, Medardo M. de Villa, in addition to indemnity of P25,000.00, the amounts of P2,261.55 as actual damages and P30,000.00 as moral damages.Hence, the present petition for review.
SO ORDERED. (Underscoring supplied)
It is clear even from [the accused] Romeo Ebmerga's testimony alone that when he threw a stone at Rafaelito Nolasco, causing the latter to drop the knife he was holding, there was no longer any imminent risk or danger to his life. Thus, when Romeo Ebmerga went on to lunge for the victim's knife on the ground and thrust it for an untold number of times into the victim's body, he was not acting to repel an attack or to protect himself from the aggression of the victim. It strains credulity to accept the version of the defense that despite dropping the knife, the victim still faced Romeo Ebmerga in a menacing manner and "with the intention of killing him." (Underscoring supplied)Again assuming arguendo that the vicitm thereafter turned his back and picked up stones, there was, as the trial court found, before that "an interval of time" which afforded petitioner time to "run away" as, after all, he had warded off the four prior attempts to stab him.