Treachery

When the offender commits any of the crimes against the person, employing means, methods
or forms the execution thereof which tend directly and specially to insure its execution
without risk to himself arising from the defense which the offender party might make

The offended party was not given opportunity to make a defense

 When the attack is sudden, unexpected, without warning and without giving
the victim an opportunity to defend himself or repel aggression.

REQUISITES OF TREACHERY

1. AT THE TIME OF THE ATTACK, THE VICTIM WAS NOT IN A POSITION TO DEFEND
HIMSELF.

-victims were made to lie down

-hands and feet were tied

2. THAT THE OFFENDER CONSCIOUSLY ADAPTED THE PARTICULAT MEANS, METHODS

OR FORM OF ATTACK EMPLOYED BY HIM

Rules:

1. applicable only to crimes against the person

2. Means, methods or forms need not insure accomplishment of crime

3. The mode of attack must be consciously adopted

a. accused must make some preparations

b. attack must be thought of by the offender

Examples:

- act of shooting the victim at a distance

- hands of the victim were raised and was pleading for mercy

-assailant strategically placed himself in a forested area near the highway and
firing at the unsuspecting victim at a distance of eight meters

- a woman was reduced to helplessness before she was shot

- FLASHING OF LIGHTS

c. That the mode of attack was consciously adopted may be inferred from the circumstances

-accused approached the victim from behind

-assailant hid behind a pile of logs under the cover of darkness

-

4. Must be proved by CLEAR AND CONVINCING EVIDENCE

A. NOT PRESUMED or taken for granted from the mere statement of a witness that the
attack was sudden

NO TREACHERY PRESENT

1. the attack was perpetuated in a frontal encounter

 2. initial assault was not made in a sudden and unexpected manner

3. when the accused announce their presence at the scene of the crime

4. the attack preceded a heated argument

5. meeting of the accused and the victim is casual and the attack impulsively done

6. Victim was already defending himself when he was attacked by the accused

7. accused gave the deceased a chance to prepare

8. attack is preceded by a warning

- calling attention not a warning

9. When shooting is preceded by a heated discussion

Treachery cannot be considered

When the records does not show that the accused had pondered upon the mode or method
to insure the killing

Or remove or diminish any risk to himself that might arise from the defense that the
deceased might make

If the decision to kill was sudden even if the position of the victim was vulnerable

ATTACKS showing intention to eliminate risk

- Victim asleep
- Victim half-awake or just awakened
- Victim grappling or being held
- Victims were having lunch
- Attack from behind
o With firearm
o With a bladed weapon
o Other modes of armed attack
 Victim stabbed without any warning
 Victim shot facing down
- Killing unarmed victim whose hands are raised
- Killing a woman asking for mercy
- Killing a child

Treachery Abuse of Superior Strength Means employed to weaken

the defense
Means and method Offender does not employ Employ means only to
employed to make it means, methods or forms of WEAKEN the defense
impossible or hard for the attack, HE ONLY TAKES
offended party to put up any ADVANTAGE OF HIS
defense SUPERIOR STRENGHT

 When there is conspiracy, treachery is considered against all the offenders

 Treachery, evident premeditation and use of superior strength are absorbed in
treason by KILLINGS
 Treachery absorbs
o ABUSE OF SUPERIOR STRENGTH
o AID OF ARMED MEN
o BY A BAND
o NIGHTTIME- inherent in treachery
o MEANS TO WEAKEN THE DEFENSE
o Crafts
o Disregard of age and sex

 DWELLING NOT INCLUDED IN TREACHERY

  TREACHERY CANNOT CO-EXIST WITH PASSION OF OBFUSCATION

Treachery

Q: Charges d'affaires Volvik of Latvia suffers from a psychotic disorder after he was almost
assassinated in his previous assignment. One day, while shopping in a mall, he saw a group of
shoppers whom he thought were the assassins who were out to kill him. He asked for the gun
of his escort and shot ten (10) people and wounded five (5) others before he was subdued.
The wounded persons required more than 30 days of medical treatment. What crime or
crimes, if any, did he commit? Explain. (2016 BAR)

A: Volvik committed five (5) frustrated murders for the unwounded victims and five (5) frustrated
murders for the wounded victims. Treachery is present since the sudden attack rendered the victims
defenseless. The nature of the weapon used in attacking the victims and extent of the wounds
sustained by the five victims showed intent to kill. His psychotic condition is not an exempting
circumstance of insanity in the absence of showing that there is a complete deprivation of
intelligence in accordance with the cognition test. However, he is immune from criminal prosecution.
Since the position of Volvik as charges de affaires is diplomatic, he is vested with blanket diplomatic
immunity from criminal suit. (Minucher v. Hon. CA, G.R. No. 142396, 11 Feb. 2003) (UPLC Suggested
Answers)

Q: Lito, a minor, was bullied by Brutus, his classmate. Having had enough, Lito got the key to
the safe where his father kept his licensed pistol and took the weapon. Knowing that Brutus
usually hung out at a nearby abandoned building after class, Lito went ahead and hid while
waiting for Brutus. When Lito was convinced that Brutus was alone, he shot Brutus, who died
on the spot. Lito then hid the gun in one of the empty containers. At the time of the shooting,
Lito was fifteen years and one month old. What is Lito's criminal liability? Explain. (2015 BAR)

A: Lito is criminally liable for murder qualified by the circumstance of treachery, or evident
premeditation, as well as illegal possession of firearms. Minority is not an exempting circumstance
under Sec. 7 of R.A. No. 9344 since his age is above fifteen years but below eighteen years and he
acted with discernment. Circumstance will show that he discerned the consequences of his criminal
acts as shown from the fact he employed means to make a surprise attack and he even hid the
murder weapon in an empty container. It was also clear that he planned the killing. However,
minority will be considered as a privileged mitigating circumstance, which will require the
graduation of the penalty prescribed by law to one degree lower. (Art. 68, RPC) (UPLC Suggested
Answers)

Q: Bernardo was enraged by his conviction for robbery by Judge Samsonite despite insufficient
evidence. Pending his appeal, Bernardo escaped in order to get even with Judge Samsonite.
Bernardo learned that the judge regularly slept in his mistress' house every weekend. Thus,
he waited for the judge to arrive on Saturday evening at the house of his mistress. It was about
8:00 p.m. when Bernardo entered the house of the mistress. He found the judge and his
mistress having coffee in the kitchen and engaging in small talk. Without warning, Bernardo
stabbed the judge at least 20 times. The judge instantly died.

Prosecuted and tried, Bernardo was convicted of direct assault with murder. Rule with
reasons whether or not the conviction for direct assault with murder was justified, and
whether or not the trial court should appreciate the following aggravating circumstances
against Bernardo, to wit: (1) disregard of rank and age of the victim, who was 68 years old; (2)
dwelling; (3) nighttime; (4) cruelty; and (5) quasi-recidivism. (2017 BAR)

A: The phrase “on occasion of such performance” used in Art. 148 of the RPC means “by reason of the
past performance of official duty” because the purpose of the law is to allow them to discharge their
duties without fear of being assaulted by reason thereof (People v. Renegado, G.R. No. L-27031, 31
May 1974). Attacking Judge Samsonite by reason of past performance of duty of convicting Bernardo
based on his assessment of the evidence constitutes qualified direct assault (U.S. v. Garcia, G.R. No.
6820, 16 Oct. 1911). Since the single act of attacking Judge Samsonite constitutes direct assault and
murder qualified by the circumstance of treachery, the two shall be merged together to form a
complex crime of direct assault with murder. (People v. Dural, G.R. No. 84921, 08 June 1993; People v.
Rillorta, G.R. No. 57415, 15 Dec. 1989)

Disregard of rank, being inherent in direct assault, is absorbed. Disregard of age shall not be
considered for lack of showing intent to offend or insult the age of Judge Samsonite. (People v.
Onabia, G.R. No. 128288, 20 Apr. 1999) Dwelling and nighttime shall not be appreciated because the
presence of treachery in the instant case absorbs these aggravating circumstances.
The crime is not aggravated by cruelty simply because the judge sustained 10 stab wounds. For
cruelty to be considered as an aggravating circumstance, it must be proven that in inflicting several
stab wounds on the victim, the perpetrator intended to exacerbate the pain and suffering of the
victim. The number of wounds on the victim is not proof of cruelty (Simangan v. People, G.R. No.
157984, 08 July 2004). Unless there is proof that when the 2nd or subsequent stabs were made, the
Judge was still alive, there is no cruelty to speak of.

A quasi-recidivist is a person who shall commit a felony after having been convicted by final
judgment, before beginning to serve such sentence, or while serving the same (Art. 160, RPC). In this
case, Bernardo committed the crime while the judgment of conviction is on appeal. Thus, quasi-
recidivism cannot be considered since he did not commit the crime after having been convicted by
final judgment. (UPLC Suggested Answers)

Q: The accused and the victim occupied adjacent apartments, each being a separate dwelling
unit of one big house. The accused suspected his wife of having an illicit relation with the
victim. One afternoon, he saw the victim and his wife together on board a vehicle. In the
evening of that day, the accused went to bed early and tried to sleep but being so annoyed
over the suspected relation between his wife and the victim, he could not sleep. Later in the
night, he resolved to kill the victim. He rose from bed and took hold of a knife. He entered the
apartment of the victim through an unlocked window. Inside, he saw the victim soundly
asleep. He thereupon stabbed the victim, inflicting several wounds, which caused his death
within a few hours.

Would you say that the killing was attended by the qualifying or aggravating circumstances of
evident premeditation, treachery, nighttime and unlawful entry? (1997 BAR)

A: Evident premeditation cannot be considered against the accused because he resolved to kill the
victim “later in the night" and there was no sufficient lapse of time between the determination and
execution, to allow his conscience to overcome the resolution of his will.

Treachery may be present because the accused stabbed the victim while the latter was sound asleep.
Accordingly, he employed means and methods which directly and specially insured the execution of
the act without risk himself arising from the defense which the victim might have made. (People v.
Dequiña, G.R. No. 41040, 09 Aug. 1934; People v. Miranda, et al., G.R. No. L-3284, 28 Sept. 1951)

Nighttime cannot be appreciated because there is no showing that the accused deliberately sought or
availed of nighttime to insure the success of his act. The Intention to commit the crime was conceived
shortly before its commission (People v. Pardo. G.R. No. L-562, 19 Nov. 1947). Moreover, nighttime is
absorbed in treachery.

Unlawful entry may be appreciated as an aggravating circumstance, in as much as the accused

entered the room of the victim through the window, which is not the proper place for entrance into
the house. (Art. 14(18), RPC; People v. Barruga. G.R. No. 42744, 27 Mar. 1935) (UPLC Suggested
Answers)

Q: As Sergio, Yoyong, Zoilo and Warlito engaged in a drinking spree at Heartthrob Disco,
Special Police Officer 3 (SPO3) Manolo Yabang suddenly approached them, aimed his revolver
at Sergio whom he recognized as a wanted killer and fatally shot the latter. Whereupon,
Yoyong, Zoilo and Warlito ganged up on Yabang, Warlito, using his own pistol, shot and
wounded Yabang.

What are the criminal libailities of Yoyong, Zoilo and Warlito for the injury to Yabang? Was
there conspiracy and treachery? (1992 BAR)

A: If they have to be criminally liable at all, each will be responsible for their individual acts as there
appears to be no conspiracy, as the acts of the three were spontaneous and a reflex response to
Yabang’s shooting of Sergio. There was no concerted act that will lead to a common purpose. (UPLC
Suggested Answers)

Q: Lina worked as a housemaid and yaya of the one- week-old son of the Sps. John and Joana.
When Lina learned that her 70-year-old mother was seriously ill, she asked John for a cash
advance of P20,000.00, but the latter refused. In anger, Lina gagged the mouth of the child
with stockings, placed him in a box, sealed it with masking tape, and placed the box in the
attic. Lina then left the house and asked her friend Fely to demand a P20,000.00 ransom for
the release of the spouses' child to be paid within twenty-four hours. The spouses did not pay
the ransom. After a couple of days, John discovered the box in the attic with his child already
dead. According to the autopsy report, the child died of asphyxiation barely minutes after the
box was sealed.

What crime or crimes, if any, did Lina and Fely commit? Explain. (2016 BAR)
A: Lina is liable for murder. Gagging the mouth of the child with stockings, placing him in a box,
sealing it with masking tape, and placing the box in the attic were only the methods employed by the
defendant in committing the murder qualified by treachery (People v. Lora, G.R. No. L- 49430, 30 Mar.
1982). Taking advantage of the defenseless condition of the victim by reason of his tender age, one-
week old, is treachery. (People v. Fallorina, G.R. No. 137347, 04 Mar. 2004)

She is not liable for kidnapping with murder. The essence of kidnapping or serious illegal detention is
the actual confinement or restraint of the victim or the deprivation of his liberty. In this case, the
victim was not deprived of his liberty since he immediately died. The demand for ransom did not
convert the offense into kidnapping with murder. The defendant was well-aware that the child would
be suffocated to death in a few moments after she left. The demand for ransom is only a part of the
diabolic scheme of the defendant to murder the child, to conceal his body and then demand money
before the discovery of the cadaver. (People v. Lora, G.R. No. L-49430, 30 Mar. 1982)

Fely is not liable for murder as principal or accomplice since there is neither conspiracy or
community of design to commit murder since her criminal intention pertains to kidnapping for
ransom. In addition, her participation of demanding ransom for the release of the child is not
connected to murder. Her criminal mind to assist Lina in committing kidnapping for ransom is not
constitutive of a felony. Mens rea without actus reus is not a crime. (UPLC Suggested Answers)

EVIDENT Premeditation

Q: Harry, an overseas contract worker, arrived from Saudi Arabia with considerable savings.
Knowing him to be “loaded”, his friends Jason, Manuel and Dave invited him to poker session
at a rented beach cottage. When he was losing almost all his money which to him was his
savings of a lifetime, he discovered that he was being cheated by his friends. Angered by the
betrayal, he decided to take revenge on the three cheats.

Harry ordered several bottles of Tanduay Rhum and gave them to his companions to drink, as
they did, until they all fell asleep. When Harry saw his companions already sound asleep, he
hacked them all to death. Then he remembered his losses. He rifled through the pockets of his
victims and got back all the money he lost. He then ran away but not before burning the
cottage to hide his misdeed. The following day, police investigators found among the debris
the charred bodies of Jason, Manuel, Dave, and the caretaker of the resort.

After preliminary investigation, the Provincial Prosecutor charged Harry with the complex
crime of arson with quadruple homicide and robbery. Was Harry properly charged? Discuss
fully. (1995 BAR)

A: NO. Harry was not properly charged. Harry should have been charged with three (3) separate
crimes, namely: murder, theft, and arson.

Harry killed Jason, Manuel, and Dave with evident premeditation, as there was considerable lapse of
time before he decided to commit the crime and the actual commission of the crime. In addition,
Harry employed means which weakened the defense of Jason, Manuel, and Dave. Harry gave them
the liquor to drink until they were drunk and fell asleep. This gave Harry the opportunity to carry out
his plan of murder with impunity.

The taking of the money was a mere afterthought of the killings. Hence, Harry committed the
separate crime of theft and not the complex crime of robbery with homicide.

Although theft was committed against dead persons, it is still legally possible as the offended party
are the estates of the victims.

In burning the cottage, it is another separate crime of arson. The act of burning was not necessary for
the consummation of the two previous offenses he committed. The fact that the caretaker died from
the blaze did not qualify Harry’s crime into a complex crime of arson with homicide for there is no
such crime.

Hence, Harry was improperly charged with the complex crime of arson with quadruple homicide and
robbery. Harry should have been charged with three separate crimes: murder, theft, and arson.
(UPLC Suggested Answers)