G.R. No.

183566
People vs. Badriago
Frustrated Homicide

FACTS: On or about the 13th day of September 2002 in Carigara, Leyte, Adrian Quinto together
with his brother Oliver drove a tricycle to deliver a letter after which the victims headed back to the town
plaza. En-route to their destination, they were approached by Bonifacio Badriago who suddenly hacked
Adrian with a sundang on his lumbar area. Accused aimed a second time but Adrian managed to shield
himself suffering a hack wound on his lower left arm as a result. The victim was unable to run away but
managed to push his brother Oliver off the tricycle to enable him to escape and call for help. Victim
thereafter lost consciousness and woke up at the hospital while his brother died.
Accused stated that he acted out of self-defense. He was on his way to the bus terminal when he
was accosted by Adrian and provoked him to a fight. Accused tried to speed away but victims caught up
whereafter Adrian approached him with a 10-inch knife. Seeing as he was about to be stabbed, he
grabbed a bolo from his passenger seat, stroked Adrian and injured his left arm. Victims knife fell and
when he bent to pick it up, accused hacked at him again. Adrian managed to run away while accused ran
toward municipal building to inform he injured someone. Accused claims to not have seen Oliver during
the fight and denies killing him.

ISSUE: Is the accused is guilty of frustrated homicide

HELD: Accused Badriago is guilty of 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. 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.
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.
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 Adrians 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.
 DECISION

VELASCO, JR., J.:

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:

SURGERY NOTES:
(+) hacked wounds transverse approximately 16 cms.
Linear (L) lumbar area level of L-L5
(+) hacked wound (L) forearm.
ORTHO NOTES:
A) Near amputation M/3rd (L) forearm 2 to hack wound.
DIAGNOSIS:
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.

CONTRARY TO LAW.

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 5 th ICS
along the (L) ICL;
2. [Stab] wound 6.5 x 3 cm. x 22 cm. (L) ant. chest at the level of 6 th 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.

CONTRARY TO LAW.[1]

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 prosecutions 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
atBarangay 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. Asanzas 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 Olivers 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 Adrians injured arm. According
to his estimate, they spent about PhP 50,000 forAdrians 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 familys 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-
appellants 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 pedicabs passenger seat and used it to strike at Adrian,
injuring his left hand.Adrians 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-appellants
pedicab was bumped by Adrians pedicab. From a distance of about four arms
length, he saw the two go down from their respective pedicabs. Adrian said lets
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. Adrians 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.

SO ORDERED.[9]

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-appellants 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-
appellants 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-appellants culpability. Moreover, according to the CA, his choice
of weapon and the areas he hacked on the victims 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

[11]
Death, the CA reduced accused-appellants 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.

SO ORDERED.[12]

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:
 I

THE COURT OF APPEALS ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF THE CRIME OF FRUSTRATED HOMICIDE AND
MURDER DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN
BEYOND REASONABLE DOUBT

II

THE COURT OF APPEALS ERRED IN NOT APPRECIATING THE

MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER,
INCOMPLETE SELF-DEFENSE, AND LACK OF INTENTION TO COMMIT
SO GRAVE A WRONG

Our Ruling

We affirm accused-appellants 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 Adrians 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 toAdrians 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 Prosecutions 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 Olivers killer. Much is made of the fact that not
even Adrian was able to identify accused-appellant as Olivers assailant.

The failure by the prosecution to present the weapon allegedly used in the
attack is, in accused-appellants mind, yet another obstacle to the States 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-appellants 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 Olivers murder. First, the
victims were together in Adrians pedicab when the attack took place; second,
accused-appellant hacked Adrian with a bolo; third, Adrians injuries were caused
by a bolo; fourth, Adrian tried to push Oliver to safety before he lost
unconsciousness; fifth, Olivers 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 Olivers 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 prosecutions 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 accuseds 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-appellants case. In fact,

jurisprudence holds that merely reporting the incident cannot be considered
voluntary surrender within contemplation of the law. [24] By accused-appellants
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 Olivers death and this negates any acknowledgement of guilt.

Incomplete Self-Defense

We likewise find implausible accused-appellants 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-appellants 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-appellants 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-appellants claim of lack of intention to commit so
grave a wrong against his victim.[28]

Conclusion

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-appellants 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.

SO ORDERED.