G.R. No. 176385, February 26, 2008

FACTS:

On 13 February 1998, three separate informations of Murder and two counts of Frustrated Murder were filed before the RTC against appellants, together with accused Jimmy Trinidad and Arnel Trinidad. The murder case was docketed as Criminal Case No. 98-0258 while the two frustrated murder cases were docketed as Criminal Cases No. 98-0260 and No. 98-0270. The accusatory portions of the Informations read:

Criminal Case No. 98-0258
For: Murder

That on or about 11:10 o'clock in the evening, more or less, on the 29^th day of August, 1997, at Purok 7, Barangay San Vicente, Santa Elena, Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully, and feloniously, with intent to kill, conspiring, confederating, and helping each other to attain a common purpose, with treachery, evident premeditation and abuse of superior strength, while armed with firearms, assault, attack, and use personal violence upon one JOSITA FERNANDEZ-NOVELO, by then and there shooting the said victim on her face causing upon the latter serious and mortal wounds which were the direct and proximate cause of the death of the victim to the damage and prejudice of the heirs of said victim.

That the commission of the offense is attended by aggravating circumstance of nighttime purposely sought to facilitate the same and dwelling.

Criminal Case No. 98-0260
For: Frustrated Murder

That on or about 11:10 in the evening of the 29^th day of August, 1997, at Purok 7, Barangay San Vicente, Santa Elena, Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, conspiring, confederating, and mutually helping each other to attain a common purpose, did then and there, willfully, unlawfully, and feloniously, with intent to kill, while armed with firearms and knife, and with treachery, evident premeditation and abuse of superior strength, attack, assault, and use personal violence upon one ANTONIO BEA, by then and there, poking a firearm at said private offended party, tying his hands with a rope and thereafter, stabbing said victim on different parts of his body, thus causing upon the latter serious and mortal wounds capable of causing death, hence, performing all the acts of execution which could have produced the crime of murder as a consequence, but nonetheless, did not produce it by reason of causes independent of their (accused) will, that is, by the timely and able medical assistance rendered to said victim which prevented his death, to the damage and prejudice of herein private complainant.

Criminal Case No. 98-0270
For: Frustrated Murder

That on or about 11:10 o'clock in the evening of August 29, 1997 at the fishpond at Purok 7, Barangay San Vicente, municipality of Santa Elena, province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another with intent to kill with treachery and evident premeditation and while armed with long firearms and 12 gauge shot gun, did, then and there willfully, unlawfully and feloniously attack, assault, kick and strike one ANTONIO NOVELO with a shotgun, hitting him on the different parts of his body and then shot one said Antonio Novelo but missed, which ordinarily would cause the death of Antonio Novelo thus performing all the acts of execution which should have produced the crime of Murder as a consequence, but nonetheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to said Antonio Novelo, which prevented his death, to his damage and prejudice.

ISSUE:

Whether or not the qualifying circumstances of treachery, generic aggravating circumstance of dwelling and nighttime should be appreciated in the cases.

HELD:

The RTC is correct in appreciating the qualifying circumstance of treachery in the killing of Josita Novelo and in the stabbing of Antonio Bea.

The essence of treachery is a deliberate and sudden attack, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape. Frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed. What is decisive is that the execution of the attack made it impossible for the victim to defend himself/herself or to retaliate.

In the killing of Josita Novelo, the victim was at her home when someone called her. When the victim went outside, suddenly Jesus Trinidad held her. Thereafter, Jesus Trinidad and Arnel Trinidad mauled Josita Novelo. Without warning, Jesus Trinidad shot the helpless victim on the cheek. Said attack was so sudden and unexpected that the victim had not been given the opportunity to defend herself or repel the aggression. She was unarmed when she was attacked. Indeed, all these circumstances indicate that the assault on the victim was treacherous.

The stabbing of Antonio Bea was also attended with treachery. While Bea, whose hands were tied behind his back, and the assailants were walking along the dike, Emelio Tolentino unexpectedly stabbed the victim four times. The victim could not put up a defense as the attack was swift and he was not in the position to repel the same since his hands were tied.

Also affirmed is the ruling of the RTC appreciating the presence of the generic aggravating circumstance of dwelling in Criminal Case No. 98-0258. Evidence shows that Josita Novelo was killed in her own house. When the crime is committed in the dwelling of the offended party and the latter has not given provocation, dwelling may be appreciated as an aggravating circumstance. Here, the crime was committed inside the house of the deceased victim. Dwelling is considered aggravating primarily because of the sanctity of privacy the law accords to human abode. He who goes to another’s house to hurt him or do him wrong is more guilty than he who offends him elsewhere.

Dwelling, however, cannot be appreciated in Criminal Case No. 98-0260 considering that the same was not alleged in the information. Under Section 9, Rule 10 of the Revised Rules of Court, aggravating circumstances must be alleged in the information and proved otherwise; even if proved but not alleged in the information, the same shall not be considered by the Court in the imposition of the proper penalty on the accused.

The aggravating circumstance of nighttime in both cases should not be appreciated. Nighttime is considered an aggravating circumstance only when it is sought to prevent the accused from being recognized or to ensure their escape. There must be proof that this was intentionally sought to ensure the commission of the crime and that the perpetrators took advantage of it. Although the crime was committed at nighttime, there is no evidence that the appellants and their companions took advantage of nighttime or that nighttime facilitated the commission of the crime.

People vs. Tolentino, et al.