EN BANC "In Criminal Case No.

1971, this Court finds accused

JULIO RECTO GUILTY beyond reasonable doubt of the
G.R. No. 129069            October 17, 2001 complex crime of qualified [d]irect [a]ssault [w]ith
[f]rustrated [h]omicide and hereby sentences him to suffer
PEOPLE OF THE PHILIPPINES, appellee, the indeterminate penalty of from eight (8) years and one
vs. (1) day of prision mayor, as minimum, to ten (10) years
JULIO RECTO y ROBEA, appellant. and one (1) day of prision mayor, as maximum, with the
accessory penalties of the law, and to pay the costs.
PANGANIBAN, J.:
"In Criminal Case No. 1972, this Court finds co-accused
JULIO RECTO GUILTY beyond reasonable doubt of the
Treachery cannot be appreciated to qualify a killing to murder, if
complex crime of qualified [d]irect [a]ssault [w]ith [m]urder
the accused has not deliberately sought to attack the vulnerability
and hereby sentences him to suffer the supreme penalty
of the victim. In the present case, the latter evidently had the
of DEATH. He is ordered to pay the heirs of the victim
opportunity to escape or to defend himself, but chose not to grab
ANTONIO MACALIPAY the sum of P50,000.00 as
the opportunity; instead, he placed himself in a position more
indemnity for his death, without subsidiary imprisonment
open to attack.
in case of insolvency, and to pay the costs.
The Case
xxx           xxx           xxx
For automatic review by this Court is the Decision 1 dated April 2,
"In Criminal Case No. 1973, this Court finds co-accused
1997, promulgated by the Regional Trial Court (RTC) of Romblon
JULIO RECTO GUILTY beyond reasonable doubt of the
(Branch 81), which found Julio Recto y Robea guilty beyond
crime of [h]omicide and hereby sentences him to suffer
reasonable doubt of (1) two counts of the complex crime of
the indeterminate penalty of from eight (8) years and one
qualified direct assault with frustrated homicide (Criminal Case
(1) day of prision mayor, as minimum, to thirteen (13)
Nos. 1970 and 1971), (2) the complex crime of qualified direct
years, nine (9) months and ten (10) days of reclusion
assault with murder (Criminal Case No. 1972), and (3) homicide
temporal, as maximum, with the accessory penalties of
(Criminal Case No. 1973). The decretal portion of the RTC
the law, and he is ordered to pay the heirs of the victim
Decision reads follows:
EMILIANO 'RENATO' SANTOS, alias REY, the sum of
P50,000.00 as indemnity for his death. without subsidiary
"WHEREFORE, in Criminal Case No. 1970, this Court imprisonment in case of insolvency, and to pay the costs.
finds accused JULIO RECTO GUILTY beyond reasonable
doubt of the complex crime of qualified [d]irect [a]ssault
xxx           xxx           xxx
[w]ith [f]rustrated [h]omicide and hereby sentences him to
suffer the indeterminate penalty of from eight (8) years
and one (1) day of prision mayor, as minimum, to ten (10) "The 'pugakang' or homemade shotgun with one (1) live
years and one (1) day of prision mayor, as maximum, with ammunition (Exh. C); twelve (12) gauge live ammunition
the accessory penalties of the law, and to pay the costs. (Exh. C-1); the revolver together with the three (3) live
 bullets and two (2) empty shells (Exhs. D, D-1 to D-5, inflicting upon the latter gunshot wounds in different parts
respectively) are confiscated in favor of the government. of his body, thus performing all the acts of execution
which should produce the felony of murder as a
"After the judgment shall have become final, the [o]fficer- consequence, but nevertheless, did not produce it by
in-[c]harge, Office of the Clerk of Court, this Court, is reason of causes independent of the will of the accused
ordered to deliver and deposit all the foregoing exhibits to and that is by the timely and able medical assistance
the [p]rovincial [d]irector, PNP, of the Province of rendered to the victim which prevented his death." 4
Romblon properly receipted. Thereafter, the receipt must
be attached to any of the records of these cases and shall Criminal Case No. 1971
form part of these records.
"That on or about the 18th day of April 1994, at around
"The period of preventive imprisonment both accused had 5:00 o'clock in the afternoon, in [B]arangay Ambulong,
undergone shall be credited in their favor to its full extent [M]unicipality of Magdiwang, [P]rovince of Romblon,
and the penalties herein imposed shall be served Philippines, and within the jurisdiction of this Honorable
successively in accordance with Articles 29 and 70, Court, the said accused, with intent to kill, did then and
respectively, of the Revised Penal Code, as amended." 2 there, by means of treachery, wilfully, unlawfully and
feloniously attack, assault, and shoot with a shotgun
On September 22, 1994, four (4) Informations, 3 all signed by locally called 'pugakang' one Barangay Captain
State Prosecutor II Felix R. Rocero, were filed against appellant. PERCIVAL ORBE, knowing that the latter is a duly
The fifth Information was dated October 18, 1994. elected barangay captain of Ambulong, Magdiwang,
Romblon, while he was engaged in the performance of
The Informations in Criminal Case Nos. 1970 and 1971 charged his official duties, inflicting upon the latter gunshot
appellant with direct assault with frustrated murder, as follows: wounds in different parts of his body, thus performing all
the acts of execution which should produce the felony of
murder as a consequence, but nevertheless, did not
Criminal Case No. 1970
produce it by reason of causes independent of the will of
the accused and that is by the timely and able medical
"That on or about the 18th day of April 1994, at around assistance rendered to the victim which prevented his
5:00 o'clock in the afternoon, in [B]arangay Ambulong, death."5
[M]unicipality of Magdiwang, [P]rovince of Romblon,
Philippines, and within the jurisdiction of this Honorable
The Information6 in Criminal Case No. 1972, which charged
Court, the said accused, with intent to kill, did then and
appellant with direct assault with murder, was worded thus:
there, by means of treachery, wilfully, unlawfully and
feloniously attack, assault, and shoot with a shotgun
locally called 'pugakang' one MELCHOR RECTO, "That on or about the 18th day of April 1994, at around
knowing that the latter is a duly appointed [b]arangay 5:00 o'clock in the afternoon, in [B]arangay Ambulong,
[c]hief [t]anod of Ambulong, Magdiwang, Romblon, while [M]unicipality of Magdiwang, [P]rovince of Romblon,
he was engaged in the performance of his official duties, Philippines, and within the jurisdiction of this [H]onorable
Court, the said accused with intent to kill, conspiring,
 confederating and mutually helping each other, did then handgun locally called 'pugakang' with one live
and there, by means of treachery, wilfully, unlawfully and ammunition, which he used in killing Barangay Kagawad
feloniously attack, assault and shoot with a shotgun Antonio Macalipay and Emiliano 'Renato' Santos and
locally called 'pugakang' and strike with a long bolo, one [which was] confiscated by the police authorities."11
ANTONIO MACALIPAY, knowing that the latter is a duly
elected [b]arangay [k]agawad of Ambulong, Magdiwang, When arraigned on all the five charges on November 24, 1994,
Romblon, while he was engaged in the performance of appellant, with the assistance of his counsel, 12 pleaded "not
his official duties, inflicting upon the latter mortal wounds guilty."13 In due course, he was tried and, thereafter, sentenced.
in different parts of his body which were the cause of his
untimely death."7 The Facts
Version of the Prosecution
In the Information8 in Criminal Case No. 1973, appellant was
charged with murder, as indicated hereunder: The Office of Solicitor General summarized the evidence for the
prosecution in this wise:14
"That on or about the 18th day of April 1994, at around
5:00 o'clock in the afternoon, in [B]arangay Ambulong, "In the early afternoon of April 18, 1994 at Ambulong,
[M]unicipality of Magdiwang, [P]rovince of Romblon. Magdiwang, Sibuyan Island, Romblon, Barangay Captain
Philippines, and within the jurisdiction of this Honorable Percival Orbe was in his residence together with
Court, the said accused, with intent to kill, did then and Barangay Kagawad Antonio Macalipay and Barangay
there, by means of treachery, wilfully, unlawfully and Tanod Melchor Recto, appellant's cousin. They were
feloniously attack, assault and shoot with a shotgun trying to settle a land dispute involving Linda Rance and
locally called 'pugakang' and strike with a long bolo, one Cornelio Regis, Jr. While the meeting was in progress,
EMILIANO 'RENATO' SANTOS9 , alias EMY, inflicting Orbe was summoned by SPO4 Fortunato Rafol to
upon the latter mortal injuries in different parts of his body proceed to the bodega of Rance.
which were the direct and immediate cause of his
death."10
"There, they noticed that the padlock of the bodega was
destroyed, and the palay stored therein, stolen. Forthwith,
Finally, appellant was charged with illegal possession of firearm Barangay Kagawad Macalipay, who happened to be the
and ammunition in the Information in Criminal Case No. 1975, chairman of the Barangay Agrarian Reform Committee
which we quote: (BARC), conducted an investigation.

"That on or about the 18th day of April 1994, at around "SPO4 Rafol and SPO1 Male, also made their
5:00 o'clock in the afternoon, in [B]arangay Ambulong, investigation and reported their findings to Linda Rance.
[M]unicipality of Magdiwang, [P]rovince of Romblon, At this point, Barangay Tanod Melchor Recto passed by.
Philippines, and within the jurisdiction of this Honorable He saw SPO4 Rafol, Wilfredo Arce, [S]pouses Crestito
Court, the said accused, with intent to kill, did then and and Linda Rance at the bodega. He went to Barangay
there wilfully, unlawfully and feloniously have in his Captain Orbe and inquired why they were there.
possession and under his custody and control, one (1)
Barangay Captain Orbe told him that the padlock of the "Amidst the din, Percival Orbe and Melchor Recto heard
bodega was destroyed and the palay, stolen. Orbe [A]ppellant Julio Recto saying: 'Where is that kapitan?'
requested Melchor Recto to stay as he might be needed. When Melchor could no longer see Julio Recto, he
Thereupon, Barangay Tanod Melchor Recto began his jumped out of the bathroom window and ran. While
own ocular investigation. running, Julio Recto shot him hitting the latter's thigh.
Barangay Captain Orbe also got out of the bathroom
"While SPO4 Rafol and SPO1 Male were leaving the through the top and landed [o]nto the ricefield. Before he
premises, the group of [A]ppellant Julio Recto, Cornelio could take a step, he was also shot by [A]ppellant Julio
Regis, Jr., Dante Regis, Melvar Relox, Teodoro de la Recto at his right elbow, but was still able to continue
Serna, Enrica Regis and Nida Regis arrived. The group running and cross the southern portion of the ricefield. He
stopped at the first 'trampa' near the bodega. Barangay caught up with the wounded Melchor Recto and both
Captain Orbe advised them not to create trouble, but, went their separate ways. On the other hand, both
Dante Regis pulled a piece of wood and threw it towards Barangay Kagawad Antonio Macalipay and Emiliano
them. Thereafter, [A]ppellant Recto, while holding 'Renato' Santos died due to multiple wounds inflicted on
a balisong or fan knife, approached Barangay Captain them by herein appellant." (citations omitted)
Orbe. The latter responded by telling the former to
surrender the balisong. Appellant stepped backward, Version of the Defense
opened his jacket and pulled out a gun, a de sabog. Upon
seeing the gun, Barangay Captain Orbe retreated, while On the other hand, the trial court presented appellant's version of
Barangay Kagawad Antonio Macalipay stepped forward the incident, as follows:15
with both arms raised and uttered the words: 'Do not do it.
We'll just settle this. (Ayoson ta lang ine).' Julio Recto, "x x x Julio Recto interposed self-defense and defense of
however, immediately pulled the trigger, hitting Barangay his co-accused Cornelio Regis, Jr. . . . According to co-
Kagawad Macalipay, causing him to fall down on the accused Julio Recto they were berated at about 12
ground. Then Cornelio Regis, Jr. approached the fallen meters away from the bodega and it was there that the
Macalipay and flipped his bolo at the latter who rolled and late Emiliano Santos shot co-accused Cornelio Regis, Jr.
fell into the rice paddy. and he was hit and he (Julio) retreated two (2) steps
backward. Then, he took two (2) steps forward and said
"Melchor Recto saw the shooting from his hiding place why are you like that. Alberto Rance, the son of Mrs.
behind a concrete pillar. He then ran inside the old Linda Rance, shot him, hitting him on his left side. He ran
dilapidated bathroom of the bodega. Barangay Captain towards Alberto Rance who shot him with the
Orbe also followed. Inside the bathroom, Melchor Recto latter behind the concrete porch holding his gun with his
peeped through the window and saw [A]ppellant Recto two (2) hands resting on the concrete wall (porch) of the
fire his gun at Emilio Santos. Santos also fired his bodega, and with Emiliano Santos also holding his
revolver at appellant and later, turned around and gun [which] he used in shooting Regis, Jr. The distance
crawled. While crawling, Santos fired another shot between Alberto Rance and the unarmed Julio Recto was
towards Regis, Jr[.], but, the latter was able to reach and 11½ meters when x x x Julio Recto r[a]n towards Alberto
hack the former with a bolo. Rance[;] the latter ran and he saw Wilfredo Arce [turn]
 and [pick] up a gun and he grabbed the gun and while "The lower court erred in finding the accused-appellant
pulling it, it fired and he did not know whether it hit guilty of direct assault in Criminal Case Nos. 1970 and
somebody. Emiliano Santos incredibly was no longer 1972 which accordingly resulted in his being convicted of
there to shoot him. However, Julio Recto was able to take complex crimes in those cases.
possession of this gun from Wilfredo Arce, took cover
behind a post and still managed to shoot Santos who was II
somewhere else. He threw the gun later on the disputed
land and ran to the direction of the banana plantation of "The lower court erred in finding the presence of the
Regis, Jr. and he reached his house. Both of them were qualifying circumstance of treachery in Criminal Case No.
outside the house of Regis, Jr. x x x when [M]aritime 1972 which accordingly resulted in his being convicted of
[P]oliceman Morada and Galin arrived. x x x" (citations murder in that case."
omitted, underscoring in original)
In the interest of justice and despite appellant's anemic Brief, we
Ruling of the Trial Court deem it wise to review the entire assailed Decision, particularly
the crimes imputed and the penalties imposed by the trial court.
The trial court found that appellant had fired at a barangay tanod,
Melchor Recto, who was at the crime scene "on the occasion of The Court's Ruling
the performance of his official duties." 16 It added that appellant
had shot a barangay captain, Percival Orbe, also "on the
The Decision of the trial court should be MODIFIED.
occasion of the performance of his official duties."17
Self-Defense and Defense of a Relative
The lower court ruled out treachery in the killing of Emiliano
Santos, because there had been a gun duel between him and
appellant. However, it convicted and sentenced appellant to Appellant contends that he committed the crimes attributed to him
death for the murder of Antonio Macalipay. in self-defense and in defense of his uncle, Cornelio Regis Jr.

Because of the trial court's imposition of the death penalty, this By invoking self-defense and defense of a relative, appellant
review by the Supreme Court is mandatory and automatic, plainly admits that he killed Antonio Macalipay and Emiliano
without need of a notice of appeal.18 "Renato" Santos and fired the shots that injured Melchor Recto
and Percival Orbe. Thus, appellant has shifted the burden of
evidence to himself. Consequently, to escape criminal liability, he
Assignment of Errors
must prove, by clear and convincing evidence, the existence of
the essential requisites of self-defense; namely, (1) unlawful
In his Brief, appellant faults the court a quo with the following aggression on the part of the victim, (2) reasonable necessity of
alleged errors:19 the means employed to prevent or repel it, and (3) lack of
sufficient provocation on the part of the person resorting to self-
I defense.20 For defense of a relative21 to prosper, appellant must
prove the concurrence of the first and the second requisites of
self-defense and "the further requisite, in case the provocation (Criminal Case Nos. 1970 and 1971)
was given by the person attacked, that the one making the
defense had no part therein."22 In these two cases, appellant claims that he "did not mind" the
two victims because they were not his enemies. He, however,
Appellant miserably failed to discharge this burden. In fact, he testified that the de sabog gun had merely misfired and hit them.
was clearly the aggressor. Without unlawful aggression on the The court a quo was correct in not giving credence to his attempt
part of the victim, there can be no viable self-defense or defense to paint the victim's injuries as the result of an accident. Evidence
of a relative.23 to be believed must be credible in itself. 25 His weak and incredible
testimony cannot prevail over the positive and categorical
"There is unlawful aggression when the peril to one's life, limb or testimonies of the prosecution witnesses stating that he
right is either actual or imminent. There must be actual force or deliberately shot them.
actual use of weapon."24 In this case, Antonio Macalipay was
unarmed and actually trying to pacify appellant when the latter However, the trial court erred in convicting appellant of qualified
shot him. After shooting Antonio, appellant again cocked his gun, direct assault with frustrated homicide.
pointed it at Emiliano Santos and shot him. The latter's act of
drawing his gun and firing at him was merely self-defense. Direct assault, a crime against public order, may be committed in
two ways: first, by "any person or persons who, without a public
As for Melchor Recto and Percival Orbe, no aggression ever uprising, shall employ force or intimidation for the attainment of
emanated from them during the entire incident. They were any of the purposes enumerated in defining the crimes of
unarmed and in fact already running away from appellant when rebellion and sedition;" and second, by any person or persons
he shot them. Clearly, there was no unlawful aggression from any who, without a public uprising, "shall attack, employ force, or
of the victims. seriously intimidate or resist any person in authority or any of his
agents, while engaged in the performance of official duties, or on
For purposes of clarity and simplicity, we deem it wise to discuss occasion of such performance." 26 The first mode is tantamount to
separately the crimes attributed to appellant and the proper rebellion or sedition, without the element of public uprising. The
penalties imposed by the trial court. second mode, on the other hand, is the more common form of
assault, and is aggravated when: (a) the assault is committed
Crime and Punishment with a weapon, or (b) when the offender is a public officer or
employee, or (c) when the offender lays a hand upon a person in
authority.27
The trial court convicted appellant of four (4) crimes: two counts
of the complex crime of qualified direct assault
with frustrated homicide, one count of the complex crime of An agent of a person in authority is "any person who, by direct
qualified direct assault with murder, and one count of homicide. provision of law or by election or by appointment by competent
We will now discuss each of these crimes. authority, is charged with the maintenance of public order and the
protection and security of life and property, such as barrio
councilman, barrio policeman and barangay leader, and any
Qualified Direct Assault with Frustrated Homicide
person who comes to the aid of persons in authority." 28 In the
case at bar, the victim, Melchor Recto 29 — being then the
barangay chief tanod of Ambulong, Magdiwang, Romblon — was Q:         Why?
clearly an agent of a person in authority. However, contrary to the
findings of the trial court, he was not "engaged in the A:         Because when I pass[ed] in the bodega there
performance of his official duties" at the time he was shot. Neither were plenty of people.
was he attacked "on the occasion of such performance," as we
will now show. Q:         Whose bodega are you referring to?

It must be emphasized that Melchor Recto was on his way home A:         Rance.
when he happened to pass by the bodega of the Rance couple.
He testified as follows:
Q:         Do you know the name of the owner?
"PROSECUTOR MORTEL:
A:         Yes, sir.
Q:         On April 18, 1994 at around 4:00 o'clock in the
Q:         Please give us the name?
afternoon, you said you were in the ricefield gathering the
harvested palay[;] what time did you leave that place?
A:         First owned by Jose Rance now owned by
Crestito and Linda Rance.
A:         Nearing 5:00 o'clock already.
Q:         What relation has this Crestito Rance to Jose
Q:         And in going to your house, do you remember if
Rance?
you ha[d] to pass by the bodega of Rance?
A:         Jose is the father of Crestito Rance.
ATTY. MONTOJO:
Q:         And this Linda, what relation has she with Crestito
Leading, Your Honor.
Rance?
COURT:
A:         Wife.
Leading.
Q:         You said, that when you passed by the bodega
on your way to your house there were people in that
PROSECUTOR MORTEL continuing: bodega, please give us [the] names of the people thereat
whom you know?
Q:         Now, did you go to your house that afternoon?
A:         SPO4 Fortunato Rafol, SPO1 Male, Bgy. Captain
A:         No, sir. Percival Orbe, Kag. Antonio Macalipay, Wilfredo Arce and
 Spouses Crestito and Linda Rance and those who were xxx           xxx           xxx
threshing palay thereat."30
Q:         Now later on, do you remember what the
Melchor explained that when appellant's group arrived, it was policemen did?
Barangay Captain Percival Orbe and Kagawad Antonio
Macalipay who talked to the group. Melchor did not do anything to A:         I observed that the policemen were already
avert the tension. He only watched what was transpiring and later passing the rice paddies towards the road.
hid himself when the first shot was fired. He continued:
Q:         And after they were gone . . . . By the way, who
"PROSECUTOR MORTEL continuing: were these policemen whom you observed going towards
the road, will you please name them?
Q:         Because of that, what did Orbe tell you as a
barangay tanod? A:         SPO4 Fortunato Rafol and Male.

ATTY. MONTOJO: Q:         Do you know the first name of SPO1 Male?

Leading, Your Honor. A:         No sir.

COURT: Leading. Q:         Now, after they were gone, do you remember if

there were persons who arrived?
PROSECUTOR MORTEL continuing:
ATTY. MONTOJO:
Q:         What else did he say?
Misleading
A:         He told me not to leave because he might need
me. COURT:

Q:         And did you remain? Leading.

A:         Yes, sir. PROSECUTOR MORTEL (continuing):

Q:         As you were there, did you observe what [t]he Q:         After they were gone, what happened?
policemen were doing?
A:         I saw Cornelio Regis, Jr., Julio Recto, Melver
A:         I observed [them] going there and through around Relox, Dante Regis, Teodoro dela Serna, Nida Regis,
[sic] the bodega.
Enrica Regis. I saw these seven (7) passing through the Q:         And what did you observe when [B]arangay
rice paddies towards the bodega. [C]aptain Orbe [told] them not to do it?

xxx           xxx           xxx A:         I observed that the group got angry so Percival
Orbe retreated.
PROSECUTOR MORTEL continuing:
Q:         And when Percival Orbe approached the group,
Q:         Were these group of people able to reach the did he have any companion?
bodega?
A:         Yes, sir.
A:         No, sir.
Q:         Who?
Q:         Why?
A:         Kagawad Antonio Macalipay.
A:         They stopped on the first trampa that they
reached. Q:         And when Percival Orbe retreated, what did
Antonio Macalipay do?
Q:         And upon reaching that place, what happened?
A:         When the barangay captain retreated, Antonio
A:         Dante Regis thr[e]w a piece of wood. Macalipay proceeded towards the group and stop[ped] at
the second trampa coming from the bodega.
Q:         Going to what direction?
Q:         Now, when you reached that place of the second
A:         Towards the bodega. trampa, what happened?

Q:         And when Dante Regis thr[e]w that piece of wood A:         Julio Recto raised his jacket and pulled out a gun
towards the direction of the bodega, what happened? and pointed it to Antonio Macalipay.

A:         The barangay captain, Percival Orbe, approached INTERPRETER:

them and told them not to do it.
Witness standing and demonstrating.
Q:         And what did you observe . . . . By the way, who
was that barangay captain? PROSECUTOR MORTEL continuing:

A:         Orbe. Q:         And when the gun was pointed to Kagawad

Antonio Macalipay, what did Antonio Macalipay do?
A:         He raised both hands. A:         I ran towards an old broken down bathroom. . . .
"31
INTERPRETER:
Thinking that appellant had already left the bodega, Melchor,
Witness demonstrating by raising his two (2) arms up with while hiding inside the old bathroom for several minutes, decided
open palms as if in surrender, and said ['D]o not do it we to jump out of a broken down window 32 and ran towards the
will just settle this.['] national road.33

PROSECUTOR MORTEL continuing: Clearly, from his arrival at the scene of the crime to his departure
therefrom, Melchor was not engaged in the performance of his
Q:         And after Macalipay had said that, what official duties. Neither was he attacked on the occasion thereof.
happened?
This fact was corroborated further by the testimony of Linda
A:         Julio Recto shot him. Rance, who said that it was Orbe and Macalipay who had
pacified appellant and his six companions. She testified thus:
Q:         And what happened to Macalipay after being
shot? "PROSECUTOR VICTORIANO continuing:

A:         Antonio Macalipay fell down backward. Q:         While they were discussing, what happened?

INTERPRETER: A:         When they were discussing, Dante Regis thr[e]w

a piece of wood.
Witness demonstrating . . . fall[ing] backward.
Q:         To what direction was that piece of wood thr[own]
by Dante Regis?
PROSECUTOR MORTEL continuing:
A:         Going towards our group.
Q:         And when you saw Antonio Macalipay fall down
backward, what did you do?
Q:         And how is this Dante Regis related to Cornelio
Regis Jr.?
A:         I hid behind a pil[l]ar?
A:         He is the son of Cornelio Regis, Jr.
xxx           xxx           xxx
Q:         When that piece of wood was thrown towards
Q:         After hiding behind the pil[l]r, what did you do?
your direction, was somebody hit?
A:         No, sir. (at the same time raising . . . both [of her] hands as if in
surrender[)"].
Q:         Where did that piece of wood land?
INTERPRETER:
A:         In front of our bodega.
Witness demonstrating.
Q:         Was there anything hit by that piece of wood?
PROSECUTOR VICTORIANO continuing:
A:         No, sir.
Q:         Now, [in] spite of what Barangay Kagawad
Q:         When that piece of wood was thrown, what Antonio Macalipay did, what happened?
followed next?
A:         Julio Recto shot him once."34
A:         They were already agitated.
Unquestionably, Melchor Recto was a barangay chief tanod;
Q:         Now, because of the agitation, what happened? however, at the crime scene he was a mere bystander.
Apparently, he was not acting and had no occasion to act in the
A:         Bgy. Captain Orbe was trying to pacify them. performance of his official duties that afternoon. Thus, the attack
on him did not amount to direct assault.35
Q:         What about Bgy. Kagawad Antonio Macalipay,
what did he do? We now determine the criminal liability of appellant with respect
to the attack. He shot Melchor only once, but the latter sustained
five gunshot entry wounds36 all located at his backside, at the
A:         He was trying to pacify but they would not be
vicinity of his buttocks. Because the gun used by the former was
pacified.
a de sabog,37 each bullet contained several pellets inside. 38 In
other words, a single shot from a de sabog results in the spewing
Q:         Now, when they refused to be pacified, what did of several pellets. The nature of the weapon used for the attack
Julio Recto do? and the direction at which it was aimed — the victim's back —
unmistakably showed appellant's intent to kill.
A:         Julio Recto turned his way (witness turning to her
left side) and open[ed] his jacket and drew a gun. However, for reasons other than his own desistance, appellant
was not able to perform all the acts of execution necessary to
Q:         When Julio Recto drew his gun, what did Antonio consummate the killing, since the wounds he inflicted were not
Macalipay do? mortal. In United States v. Eduave,39 this Court has held that if the
wounds would not normally cause death, then the last act
A:         Antonio Macalipay said, ["L]et us settle this necessary to produce homicide has not been performed by the
(witness raising . . . both [of her] hands) and do not do it.
offender. Thus, appellant's liability amounted only to attempted, felony by overt acts (shooting Orbe with a de sabog), he was not
not frustrated, homicide. able to consummate that felony for some reason other than his
spontaneous desistance. Thus, he
The penalty that is lower by two degrees 40 than that prescribed by committed attempted homicide.
law for consummated homicide shall be imposed upon appellant.
After applying the Indeterminate Sentence Law, it shall be taken Given these circumstances, appellant should therefore be
from the medium period, since there were no aggravating or convicted of the complex crime of qualified direct assault with
mitigating circumstances proven. attempted homicide. To be imposed therefor should be the
penalty for the most serious crime — in this case qualified direct
In Criminal Case No. 1971, the trial court was correct in ruling assault — the same to be imposed in its maximum period. 45 The
that the attack on Percival Orbe — then a barangay captain, a Indeterminate Sentence Law should also be applied in this case.
person in authority41 — amounted to qualified direct assault,
because he was attacked on the occasion of the performance of Qualified Direct Assault with Murder
his duty. At the time, he was attempting to pacify appellant and to
keep the peace between the two groups. (Criminal Case No. 1972)

A felony "is frustrated when the offender performs all the acts of In Criminal Case No. 1972, appellant does not question the
execution which would produce the felony as a consequence but finding of the trial court that he shot Antonio Macalipay. However,
which, nevertheless, do not produce it by reason of causes he submits that it erred in finding the presence of the qualifying
independent of the will of the perpetrator." In this case, the nature circumstance of treachery. We agree.
of the weapon used by appellant unmistakably shows that he
intended to kill Orbe. However, like the wounds inflicted by the First, the victim's companions outnumbered those of appellant.
accused on Melchor Recto, those on Orbe were not fatal. As shown by the pleadings and records of the case, his group
consisted of seven individuals; the victims, sixteen. 46
As evidenced by the Medico-Legal Certificate 42 prepared by Dr.
Ramon D. Villanueva of the Romblon Provincial Hospital and the Second, the heated confrontation on April 18, 1994 arose as a
testimony given by Dr. Giovannie C. Fondevilla of the same consequence of an earlier judgment 47 of the trial court in favor of
hospital, Orbe sustained several gunshot wounds in the vicinity of appellant's group. This case strained the relations of the parties
his right elbow. Those injuries could not have caused his death. who, after all, were related by blood and marriage. In fact, prior to
Moreover, according to Dr. Fondevilla, no surgical intervention this event, appellant — believing that his uncle Cornelio Regis Jr.
was required; only medication was given to him 43 to prevent any should get the landlord's share of the palay or rice harvest —
secondary infection from setting in.44 attempted to harvest the fields thrice: (1) in October 1993; (2) in
December 1993; and, (3) in March 1994. 48 All of these attempts
Evidently, appellant had not yet been able to perform all the acts failed, because Linda Rance hired a group of bodyguards headed
of execution necessary to bring about the death of Orbe, because by the victim, Emiliano "Renato" Santos. 49 In short, the
the latter was able to run away after being fired at. Although confrontation was not totally unexpected.
appellant had already directly commenced the commission of a
Third, both groups were armed. The exchange of gunfire was himself. Further, the shooting took place after a heated
substantiated by the Medico-legal Certificates presented by both exchange of words and a series of events that forewarned
the prosecution and the defense. 50 Moreover, the deceased the victim of aggression from appellant. In this case, it
Santos carried a gun which Alberto Rance, son of Crestito and appears to have occurred on sudden impulse but
Linda, had given him for his protection.51 preceded by acts of appellant showing hostility and a
heated temper that indicated an imminent attack and put
Fourth, appellant's group asked the police station commander to the deceased on guard.58
assemble the workers of the disputed rice field on April 15, 1994
at the Municipal Building of Magdiwang, Romblon, to inform them "If the decision to kill was sudden, there is no treachery,
of the trial court's Decision awarding the land to Cornelio Regis even if the position of the victim was vulnerable, because
Jr. For this reason, the members of the group were to start it was not deliberately sought by the accused, but was
collecting the landlord's share starting April 18, 1994. 52 purely accidental.59

Fifth, appellant was seen holding a balisong or fan knife during "When there is no evidence that the accused has, prior to
the heated confrontation, before he pulled out the shutgun and the moment of the killing, resolved to commit the crime, or
pointed it at the other group. 53 Macalipay, in a bold yet foolish there is no proof that the death of the victim was the result
attempt, stepped forward in front of appellant and told him: of meditation, calculation or reflection, treachery cannot
"Ayosan ta lang ini?54 (No, don't, because we will just settle be considered."60
this)."55 And "[s]imultaneously with the last word in the phrase
[']don't because we will just settle this, [']" 56 appellant fired his gun, Section 16 of Article 14 of the Revised Penal Code states that
killing the victim. "there is treachery when the offender commits any of crimes
against the person, employing means, methods, or forms in the
Evidently, the victim had all the opportunity to escape or defend execution thereof which tend directly and specially to insure its
himself from the aggression that was to ensue, yet chose not to execution, without risk to himself arising from the defense which
grab the opportunity and instead placed himself in a position the offended party might make."
more open to attack.57 Equally important, his vulnerable position
had not been deliberately sought by appellant. It was thrust on In this case, appellant was out in the open during the entire span
the latter by the former himself. In short, appellant did not of time from the heated discussion, to the brewing of the violence,
deliberately choose the mode of attack to kill the victim with and up to the shooting of Macalipay. At the time, his every action,
impunity and without risk to himself. which indicated the imminence of more violence, was visible to
them — to the victim and the latter's companions. Appellant was
Jurisprudence teaches us: actually vulnerable to any attack that they could have made at the
time, had they chosen to. His mode of attack was therefore not
"Treachery does not exist [when] the evidence does not without risk to himself. Absent treachery, the killing is homicide,
show that appellant deliberately adopted a mode of attack not murder.
intended to ensure the killing of [the victim] with impunity,
and without giving the victim an opportunity to defend
Considering that Antonio Macalipay was a kagawad who was in attempted homicide and is hereby sentenced to suffer an
the actual performance of his duties when he was shot, the attack indeterminate penalty, of six (6) months of arresto mayor as
on him constituted direct assault. minimum, to six (6) years of prision correctional as maximum.

Applying the provisions of Articles 148 (direct assault), 249 Third, in Criminal Case No. 1972, appellant is hereby
(homicide) and 48 (penalty for complex crimes), appellant should CONVICTED of qualified direct assault with homicide aggravated
be held liable for the complex crime of qualified direct assault with by the use of a weapon and is sentenced to suffer an
homicide. The penalty to be imposed on him should be for indeterminate penalty of twelve (12) years of prision mayor as
homicide, which is the more serious crime, to be imposed in the minimum, to twenty (20) years of reclusion temporal as
maximum period. This penalty shall comprise the maximum of his maximum. We AFFIRM the award of P50,000 as indemnity ex
indeterminate sentence, and the minimum shall be within the delicto.
range of the penalty next lower than that prescribed for homicide.
Fourth, in Criminal Case No. 1973, the trial court's judgment
Homicide (Criminal Case No. 1973) convicting appellant of homicide and awarding to the victim's
heirs an indemnity ex delicto of P50,000 is AFFIRMED; but the
We sustain appellant's conviction for homicide in Criminal Case maximum of the penalty imposed is increased to fourteen (14)
No. 1973 because, in the words of the trial judge: "The late years, eight (8) months and one (1) day of reclusion temporal.
Emiliano Santos was only beaten to the draw by co-accused Julio
Recto). It was a gun duel between the two." 61 In his Brief, All other portions of the trial court's disposition that were not
appellant hardly disputed this holding. Neither do we. The modified in the above pronouncement are deemed AFFIRMED.
maximum of the penalty imposed by the court a quo in this case
was, however, taken from the minimum period of the penalty for No pronouncement as to costs.
homicide. Considering that no mitigating or aggravating
circumstances were proven, the maximum of the indeterminate SO ORDERED.
sentence in this case should be taken from the medium period.

WHEREFORE, the Decision dated April 2, 1997, issued by the

Regional Trial Court of Romblon, is hereby MODIFIED as follows:

First, in Criminal Case No. 1970, appellant is hereby

CONVICTED of attempted homicide and sentenced to suffer
imprisonment for an indeterminate penalty of four (4) months
of arresto mayor as minimum, to four (4) years and two (2)
months of prision correccional as maximum.

Second, in Criminal Case No. 1971, appellant is hereby

CONVICTED of the complex crime of qualified direct assault with