That the act be committed with treachery.

Basis – has reference to the means and ways employed in the commission of the crime

Treachery

- The offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended part might make.
- The offended party was not given an opportunity to make a defense

Rules regarding treachery

- (1) Applicable only to crimes against persons
- (2) Means, methods or forms need not insure accomplishment of crime
o The treacherous character of the means employed does not depend upon its result but on the means itself
o The law does not require that the means actually insured the execution of aggression
o Thus, when one assaults his victim from behind, but does not kill him, the offender is not absolved of treachery even if the aggression was not executed.
o Suddenness of attack does not, of itself, suffice to support a finding of alevosia, even if the purpose was to kill, as long as the decision mad made all of a sudden and victim’s helpless position was accidental (treachery cannot be presumed)
o Where no particulars are known about the manner the aggression was carried out, it can in no way be established from mere suppositions that the accused perpetrated the act with treachery

> However, the killing of a child is murder qualified with treachery, even if nothing is known of the means employed
o Treachery is not attendant when no witness who could have seen how the deceased was shot is presented (People v Tiozon)

> However, when the victim was tied elbow to elbow, his body with many wounds and his head cut off, treachery may be considered despite lack of any witness (US v Santos)
o Treachery is not attendant when the attack is frontal, providing that the victim was not totally without opportunity to defend himself, and all other circumstances dictate that the attack was made in the spur of the moment and not of a careful deliberation. (People v Tugbo)
o Intent to kill is not necessary in murder with treachery
- (3) The mode of attack must be consciously adopted
o The accused must make some preparation to kill the deceased in a manner that insures execution of the crime to make it impossible or hard for the attacked to defend himself
o The mode of attack must be thought of by the offender and must not merely spring from the unpredictable turn of events

Illustrations of treachery:

- The act of shooting the victim at a distance, without the least expectation on his part that he would be assaulted characterizes treachery (People v Tamani)
- The hands of the deceased were raised and he was pleading for mercy with one of the assailants when another struck him on the neck with a bolo (People v Ricochermoso)
- A woman was first reduced to helplessness before being shot (People v Sangalang)
- A mode of execution that insures the consummation of the killing without risk to the offender arising from any
defense which the victim could have made.

o Attacks showing intention to eliminate risk:
> Victim asleep
> Victim half-awake or just awakened
> Victim grappling or being held
> Attacked from behind with a firearm or a blade weapon

- There is treachery when the victim was tied and gagged before being stabbed (People v Ong)
- The five accused suddenly intercepted the victim while he was on his way to the house of his cousin. The victim was unarmed and unable to defend himself considering the suddenness of the attack and the victim being drunk. (People v Pajenadero)
- When the victim is atop a coconut tree, the assailant was on the ground when he fired at the victim. (People v Toribio)
- The accused armed with a gun, riding tandem on a motorcycle, shot the victim suddenly and without any warning as the motorcycle sped by. (People v Clamor)
- The offenders made a deliberate surprise or unexpected attack on the victim
- Treachery is present although the shooting was frontal, as when the attack was so sudden and unexpected that the victim was not in a position to offer an effective defense
- The accused flashed the beam of his flashlight on the face of his victim momentarily blinding the latter. And the attack, although frontal, was sudden and perpetrated in a manner tending directly to insure its execution, free from any danger that the victim might defend himself (People v Pongol)
- It must be shown that the treacherous acts were present and preceded the
commencement of the attack which caused the injury complained of. (US v Balagtas)

Illustrations of when treachery is not present

- Attack was of a frontal encounter, ascertained from the location of the wounds on the victim’s body. The attack was preceded by an altercation and on the spur of the moment. (People v Ybanez, Jr.)

o Note: but if the attack was not preceded by a dispute and the victim was unable to prepare himself for a defense, there is treachery even if the attack is face to face
- The malefactors gave the victim an ominous warning of their presence and heralded their encounter into his house by firing two gunshots on the ground. They first mauled in a presumably frontal encounter. (People v Manzano)

o Note: calling the attention of victim is not necessarily a warning
- When the victim was already defending himself when he was attacked by the accused
- An attack done on impulse as a reaction to an actual or imagined provocation offered by the victim (People v Sabanal)
- When the accused gave the deceased a chance to prepare as when the accused challenged the victim into a gunfight (People v Visagar)
- When the shooting is preceded by a heated discussion (People v Gonzales)

When treachery cannot be considered

- If it cannot be shown that the accused had pondered upon the mode or method to insure the killing of the deceased or remove or diminish any risk to him that might arise from the defense the deceased may put up.
- If the decision to kill was sudden, there is no treachery, even if the
position of the victim was vulnerable, because it was only accidental and not deliberately sought by the accused.
- Mere suddenness of the attack is not enough to constitute treachery if such means was not deliberately chosen by the accused
- Where the meeting between the accused and the victim is casual and the attack was impulsively done

Requisites of treachery:

- (1) The victim was not in a position to defend himself at the time of the attack
o The victims were made to lie face down with their hands tied at the back before they were killed (People v Saquing)
o The victim was shot from behind while dancing (People v Barzuela)
o The victim was shot blindfolded (People v Jakosalem)
o The victim died, although without any witnesses, beaten to death with his hands and feet were tied with a rope (People v Gapasin)
- (2) The offender consciously adopted the particular means, method or form of attack employed by him

Rules regarding presence of treachery in the beginning of the attack:

(1) When the aggression is continuous, treachery must be present in the beginning of the assault (People v Canete, supra)
o The accused assaulted the deceased with a knife and inflicted a serious cut on the thigh of the latter in the course of the fight. The deceased fled and immediately chased by the accused. The deceased fell to the ground facewards and the accused subsequently
delivered a fatal thrust with his knife in the back of the deceased. The assault, as held, was not characterized by treachery in its inception and the aggression was continuous until the consumption of the deed. The accused could not have consciously adopted the method of attack, which is stabbing the back of the deceased whom was in a helpless condition. The assault initiated face to face and Canete had no time to prepare for, or even think of, that method of attack.

(2) When the assault was not continuous, in that there was an interruption, it is sufficient that treachery was present at the moment the fatal blow was given. (US v Baluyot, supra)
o The accused enter the office of the governor of Bataan when the latter was on his chair behind his desk. The accused spoke some words before firing a shot at the governor when he discovered that the latter was unarmed. The bullet hit the frontal region of the right shoulder blade, a wound of minor importance. The governor fled and took refuge in a closet near the corridor where he screamed for help. The screaming of the governor allowed the accused to identify where the face of the governor was in contrast to the closet where the former took refuge. The accused fired at the origin of the voice, the bullet passed through the panel of the door and hit a mortal wound upon the governor. It was held that the assault from the beginning
until the second shot was fired must be considered continuous. The third shot, however, is not in continuity with the previous shots. The element of alevosia is necessarily found in the manner the crime was consummated. It was the wound in the head that caused the death of the victim. There was an interruption in the assault which enabled the accused to think and make preparation for a method or form of attack that insured the execution of the crime with risk to self.
Victim different from the one intended to kill
- In treachery, it makes no difference whether or not the victim was the same person whom the accused intended to kill (when there is treachery, it is impossible for the victim, either the intended one or not, to defend himself)

Treachery as to the principal by induction

- When it is not proved that the principal by induction did not dictate the manner of killing of the victim because the details as to how to carry out the act was left with the killer, treachery cannot be taken into consideration as to the principal by induction. It aggravated the liability of the actual killer only. (US v Gamao)
- The mastermind should have knowledge of the employment of treachery is he was not present when the crime was committed.
Conspiracy and treachery
- When there is conspiracy among offenders, treachery is considered against all the persons that conspired even if only one of them delivered the fatal wound to the victim.

Treachery: Its Definition and as an Aggravating Circumstance