People vs. Listerio

The distinction between attempted and frustrated felony lies in whether the offender has passed the subjective phase — the period between the act beginning the commission of the crime and the last act performed by the offender over which he has control — such that if the offender performs all acts of execution and the crime is not consummated solely due to causes independent of his will, the felony is frustrated, not attempted. A felony is frustrated when the offender completes all acts of execution and the crime fails to produce only by reason of causes independent of the perpetrator's will; it is attempted when the offender is prevented by an outside cause from performing all acts of execution.

Agapito Listerio y Prado, Samson dela Torre y Esquela, Marlon dela Torre, George dela Torre, Bonifacio Bancaya, and several others at large were charged in two separate Amended Informations before the Regional Trial Court with Murder and Frustrated Homicide arising from a single incident on August 14, 1991 in Purok 4, Alabang, Muntinlupa, Metro Manila. The accused-appellant and his co-accused were residents of the same area as the victims, the brothers Jeonito and Marlon Araque. Listerio was a sidewalk vegetable vendor. Upon arraignment, Listerio and Samson dela Torre pleaded not guilty to both charges; their other co-accused remained at large.

At around 5:00 p.m. on August 14, 1991, brothers Marlon and Jeonito Araque were in Purok 4, Alabang, Muntinlupa, to collect a sum of money from a certain Tino. Having failed to collect anything, they turned back. While passing through Tramo near Tino's place, a group composed of Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre, and Bonifacio Bancaya blocked their path and attacked them with lead pipes and bladed weapons. Listerio, Marlon dela Torre, and George dela Torre, all armed with bladed weapons, stabbed Jeonito from behind, inflicting three stab wounds — one on the upper right portion of his back, another on the lower right portion, and a third on the middle portion of the left side — causing him to fall. Marlon Araque was hit on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes and momentarily lost consciousness. When he regained his senses three minutes later, Jeonito was already dead. The assailants had fled.

Marlon Araque, who sustained injuries to his arm and back, was brought to a hospital for treatment. Dr. Salvador Manimtim of the UP-PGH Medico Legal Division examined him and issued a Medical Certificate indicating two lacerated wounds on the head, a lacerated wound on the forearm, and a stab wound on the right shoulder. Dr. Manimtim testified that the forearm and shoulder wounds were caused by a sharp object like a knife, while the head wounds were caused by a blunt instrument such as a lead pipe. Dr. Bienvenido Munoz, an NBI Medico Legal Officer, conducted an autopsy on Jeonito's cadaver and found three stab wounds, all inflicted from behind by a sharp, pointed, single-bladed instrument. The first wound, measuring 1.7 centimeters with an approximate depth of 11.0 centimeters, perforated the lower lobe of the left lung and the thoracic aorta and was fatal; the second and third wounds involved only soft tissues and were non-fatal. Dr. Munoz averred that the first and second wounds were inflicted by knife thrusts delivered from below going upward by assailants standing behind the victim.

Accused-appellant Listerio presented a different account. He testified that at around 1:00 p.m. on August 14, 1991, he was drinking beer at the store of Nimfa Agustin with Edgar Remolador and Andres Gininao, then went home and slept at around 2:00 p.m. At about 5:00 p.m., Remolador and Gininao woke him to tell him of a quarrel near the railroad track. At around 6:00 p.m., two policemen passed by, went to Samson dela Torre's house, and then invited Listerio for questioning at the Muntinlupa Police Headquarters. At the station, Listerio was shown a Sinumpaang Salaysay executed by Marlon Araque implicating him. When he confronted Marlon as to why he was being included, Marlon answered "because you eject[ed] us from your house." The trial court found that Listerio's house was only 100 meters from the scene of the killing, making it physically possible for him to have participated.

The trial court credited Marlon Araque's eyewitness testimony as candid and straightforward, found Listerio guilty beyond reasonable doubt of Murder and Attempted Homicide, and sentenced him accordingly. Samson dela Torre, who had escaped during the prosecution's presentation of evidence, was not tried in absentia and no judgment was rendered against him.

• Insufficiency of Evidence: Accused-appellant maintained that the prosecution evidence failed to establish his guilt beyond reasonable doubt, arguing that Marlon Araque's uncorroborated testimony was insufficient to clearly and positively identify him as the malefactor responsible for his brother's death.
• Absence of Conspiracy and Treachery: Accused-appellant argued that the trial court erred in convicting him of Murder and Attempted Homicide despite the absence of proof of conspiracy and the aggravating circumstance of treachery.
• Defense of Alibi: Accused-appellant proffered alibi, claiming he was asleep at home at the time of the incident and was only awakened to be informed of a quarrel near the railroad track, after which he was fetched by policemen for questioning.

• Credibility of Lone Eyewitness: Whether the uncorroborated testimony of a single eyewitness, who was himself a victim, is sufficient to sustain a conviction beyond reasonable doubt.
• Conspiracy: Whether conspiracy was sufficiently established to hold the accused liable for the acts of his co-assailants.
• Treachery: Whether the qualifying circumstance of treachery was present in the commission of the crime.
• Attempted vs. Frustrated Felony: Whether the crime committed against Marlon Araque was Attempted Homicide, as held by the trial court, or Frustrated Homicide.
• Trial In Absentia of Escaped Co-Accused: Whether the escaped co-accused Samson dela Torre should be deemed tried in absentia and convicted on the basis of the evidence already presented.
• Propriety of Damages Awards: Whether the awards of actual, moral, exemplary damages, and loss of earning capacity were properly determined by the trial court.

• Credibility of Lone Eyewitness: Yes. The testimony of a single, trustworthy, and credible witness is sufficient to support a conviction, especially when found by the trial court to be positive, candid, and straightforward.
• Conspiracy: Yes. Conspiracy was established by circumstantial evidence showing that the accused and his cohorts, all armed with deadly weapons, blocked the victims' path and attacked them in concert, each performing specific and coordinated acts indicative of a common criminal design.
• Treachery: Yes. Treachery was present in the sudden and unexpected attack upon the unsuspecting and unarmed victims, with the assailants blocking the victims' path and stabbing the deceased from behind, ensuring execution without risk to themselves.
• Attempted vs. Frustrated Felony: The crime was Frustrated Homicide, not Attempted Homicide. The offenders performed all acts of execution, and the crime was not consummated only because the attackers mistakenly believed Marlon was already dead and fled — a cause independent of their will.
• Trial In Absentia of Escaped Co-Accused: Yes. Samson dela Torre, having been arraigned and having pleaded not guilty, should be deemed to have been tried in absentia after his escape, and the records were remanded for rendition of judgment against him based on the prosecution evidence.
• Propriety of Damages Awards: Partially affirmed. Actual damages for both victims were sustained as supported by receipts; civil indemnity ex delicto of ₱50,000 for the death was affirmed; moral damages for the death were affirmed; exemplary damages for the death were affirmed due to the aggravating circumstance; the claim for loss of earning capacity was correctly denied for lack of competent proof; actual damages to Marlon were affirmed; moral damages to Marlon were deleted for lack of his testimony on moral suffering; exemplary damages to Marlon were retained due to the aggravating circumstance.

• Credibility of Lone Eyewitness: The rule that witnesses are weighed, not numbered, is well settled. The testimony of a lone eyewitness, if found positive and credible by the trial court, is sufficient to support a conviction, especially when delivered spontaneously, naturally, and in a straightforward manner. The trial court found Marlon Araque's account candid and straightforward, and appellate courts will not disturb such findings absent arbitrariness or disregard of material facts. Marlon's credibility was further bolstered by the principle that relatives of the victim have a natural knack for remembering the faces of attackers and would be most concerned with obtaining justice. There was no showing of ill motive; as a victim himself, Marlon was expected to seek justice, and it would be against the natural order of events to falsely impute charges upon an innocent person. The positive identification by the prosecution eyewitness, absent any showing of ill motive, prevailed over the weak and fabricated alibi of the accused-appellant.

• Conspiracy: Direct proof of conspiracy is rarely found, as criminals do not write down their lawless plans. Conspiracy may be inferred from the acts of the accused before, during, and after the commission of the crime, indicative of a joint purpose, concert of action, and community of interest. In this case, the presence of accused-appellant and his colleagues, all armed with deadly weapons at the locus criminis, their blocking of the victims' path, and their coordinated group attack with lead pipes and bladed weapons indubitably showed their criminal design. Each member performed specific and coordinated acts indicating a common criminal purpose. Even assuming the eyewitness was unclear as to who delivered the fatal blow, accused-appellant as a conspirator was equally liable, because in conspiracy the act of one is the act of all.

• Treachery: Treachery is present when the offender commits a crime against persons 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 the offended party might make. The accused-appellant and his companions, all armed, blocked (hinarang) the path of the victims, effectively cutting off their escape. The deceased was stabbed three times from behind, with knife thrusts delivered from below going upward by assailants standing behind the victim — clearly meant to kill without posing any danger to the malefactors. Abuse of superior strength was also present but was absorbed in treachery. Evident premeditation, though alleged, was not proved, as there was no concrete evidence of how and when the plan to kill was hatched or what time elapsed before it was carried out; in light of the finding of conspiracy, evident premeditation need not be further appreciated.

• Attempted vs. Frustrated Felony: The trial court erred in convicting the accused-appellant of Attempted Homicide on the basis that none of Marlon Araque's wounds were fatal. It is not the gravity of the wounds but whether the subjective phase has been passed that determines whether a felony is attempted or frustrated. The subjective phase is the period between the act beginning the commission of the crime and the last act performed by the offender over which he has control. A felony is frustrated when the offender has performed all acts of execution and the felony is not produced due to causes independent of the perpetrator's will; it is attempted when the offender is prevented by an outside cause from performing all acts of execution. Here, the intent to kill was unmistakable given the use of bladed weapons and lead pipes. After being stabbed and clubbed twice in the head, Marlon lost consciousness and fell; his attackers apparently thought he was already dead and fled. The offenders performed all acts of execution, and the crime was not consummated only by reason of timely medical attendance — a cause independent of their will. The felony was therefore frustrated, not attempted.

• Trial In Absentia of Escaped Co-Accused: The trial court failed to render judgment against Samson dela Torre notwithstanding that he was arraigned and pleaded not guilty to both charges. Under the circumstances, he should be deemed to have been tried in absentia, and considering the prosecution evidence against him, the records were remanded for rendition of judgment.

• Propriety of Damages Awards: Actual damages require substantiated and proven expenses; the expenses for the wake, funeral, and burial of the deceased were supported by receipts and were affirmed. Civil indemnity ex delicto of ₱50,000 requires no proof other than the fact of death and the assailant's responsibility. Moral damages for the death were affirmed as adequate and reasonable, considering the anguish of the deceased's family, particularly his mother who relied solely upon him for support. Exemplary damages were affirmed for the death because an aggravating circumstance (abuse of superior strength, absorbed in treachery) attended the commission. The claim for loss of earning capacity was correctly denied, as the deceased's sister gave only an oral, self-serving, and unreliable statement of income unsupported by income tax returns or receipts. For Marlon Araque, actual damages were affirmed as supported by documentary evidence; moral damages were deleted because Marlon himself did not testify as to the moral suffering he sustained; exemplary damages were retained under Article 2230 of the Civil Code, which allows exemplary damages when the crime is committed with one or more aggravating circumstances.

• Weight, Not Number, of Witnesses — The testimony of a single, trustworthy, and credible witness is sufficient to convict an accused. The rule is that witnesses are to be weighed, not numbered; the testimony of a lone eyewitness, if found positive and credible by the trial court, suffices for conviction especially when it bears the earmarks of truth and sincerity and has been delivered spontaneously, naturally, and in a straightforward manner. Applied here to sustain conviction on the sole testimony of Marlon Araque, a victim and eyewitness.

• Deference to Trial Court's Assessment of Credibility — The trial judge is the best and most competent person to weigh and evaluate the testimony of witnesses, having firsthand observation of the declarant's demeanor, conduct, and attitude. Appellate courts will not disturb the trial court's findings save in cases where arbitrariness has set in or material facts have been overlooked. Applied here to uphold the trial court's finding that Marlon Araque's testimony was candid and straightforward.

• Presumption of No Ill Motive — Where there is no showing that the eyewitness was motivated by ill feeling or bad blood to falsely testify against the accused, and the witness is himself a victim expected to seek justice, the positive identification prevails. It is against the natural order of events to falsely impute charges of wrongdoing upon an innocent person.

• Conspiracy Inferred from Circumstantial Evidence — Conspiracy need not be established by direct evidence; it may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused when such acts point to a joint purpose and design, concerted action, and community of interest. A conspirator need only have performed some overt act as a direct or indirect contribution in the execution of the crime, which may consist of active participation or moral assistance by being present at the commission. In conspiracy, the act of one is the act of all.

• Treachery as a Qualifying Circumstance — Treachery is present when the offender commits a crime against persons 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 party might make. It qualifies the killing into murder. Applied here where armed assailants blocked the victims' path and stabbed the deceased from behind.

• Absorption of Abuse of Superior Strength in Treachery — When treachery is present, the aggravating circumstance of abuse of superior strength is absorbed therein and need not be separately appreciated.

• Subjective Phase Test: Frustrated vs. Attempted Felony — The distinction between attempted and frustrated felony lies in whether the subjective phase has been passed. The subjective phase is the portion of acts between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime — the period over which the offender has control. If the offender is stopped by a cause outside his own voluntary desistance before performing all acts of execution, the subjective phase has not been passed and it is an attempt. If the offender performs all acts of execution and the crime is not consummated due to causes independent of his will, the subjective phase has been passed and it is frustrated. Applied here to upgrade the conviction from Attempted Homicide to Frustrated Homicide.

• Requisites of Frustrated Felony — (1) The offender has performed all the acts of execution which would produce the felony; and (2) the felony is not produced due to causes independent of the perpetrator's will.

• Requisites of Attempted Felony — (1) The offender commits overt acts to commence the perpetration of the crime; (2) he is not able to perform all the acts of execution which should produce the felony; and (3) his failure to perform all the acts of execution was due to some cause or accident other than his spontaneous desistance.

• Alibi as a Defense — Alibi is generally considered with suspicion and received with caution because it can be easily fabricated. To serve as a basis for acquittal, the accused must establish that: (a) he was present at another place at the time of the perpetration of the offense; and (b) it was physically impossible for him to have been at the scene of the crime. Applied here: the accused-appellant failed because his house was only 100 meters from the crime scene.

• Damages in Criminal Cases — Actual damages require substantiated and proven expenses supported by receipts. Civil indemnity ex delicto requires no proof other than the fact of death and the assailant's responsibility. Moral damages require competent proof of suffering. Exemplary damages may be awarded when the crime is committed with one or more aggravating circumstances (Article 2230, Civil Code). Compensation for lost income requires unbiased proof such as income tax returns or receipts; oral, self-serving statements are insufficient.

• "It is not the gravity of the wounds inflicted which determines whether a felony is attempted or frustrated but whether or not the subjective phase in the commission of an offense has been passed." — This passage states the ratio decidendi for upgrading the conviction from Attempted Homicide to Frustrated Homicide, articulating the controlling test for distinguishing the two stages of felony.

• "By subjective phase is meant '[t]hat portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time forward, the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has control – that period between the point where he begins and the point where he voluntarily desists. If between these two points the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.'" — This is the canonical formulation of the subjective phase test, frequently cited in subsequent jurisprudence on attempted and frustrated felonies.

• "Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction with a view to the furtherance of the common design and purpose." — This passage defines the essential nature of conspiracy and distinguishes it from mere presence or companionship, applied here to hold the accused-appellant liable for the acts of his co-assailants.

• "the testimony of a lone eyewitness, if found positive and credible by the trial court is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and had been delivered spontaneously, naturally and in a straightforward manner." — This is the standard formulation of the lone-witness rule, a frequently cited principle in Philippine criminal jurisprudence.

• People vs. Tolibas, G.R. No. 103506, February 15, 2000 — Followed for the proposition that witnesses are weighed, not numbered, and that the testimony of a single credible witness can sustain a conviction.
• People vs. Alagon, G.R. Nos. 126536-37, February 10, 2000 — Followed for the lone-witness rule and for the propriety of awarding exemplary damages when an aggravating circumstance attends the commission of the crime.
• People vs. Llanes, G.R. No. 116986, February 4, 2000 — Followed for the doctrine of deference to the trial court's assessment of witness credibility.
• People vs. Manriquez, G.R. No. 122510-11, March 17, 2000 — Followed for the principle that conspiracy may be established by circumstantial evidence and need not be proved by direct evidence.
• U.S. vs. Eduave, 36 Phil. 209 (1917) — Followed as the leading case distinguishing attempted from frustrated felony, cited for the formulation that the essential distinction lies in whether a foreign or extraneous cause intervenes before the offender performs all acts of execution.
• People vs. Binas, G.R. No. 121630, December 8, 1999 — Followed for the principle that relatives of the victim have a natural knack for remembering the faces of attackers.
• People vs. Belaro, G.R. No. 99869, May 26, 1999 — Followed for the requisites of alibi as a defense: presence at another place and physical impossibility of being at the crime scene.
• People vs. Abordo, G.R. No. 107245, December 17, 1999 — Followed for the definition of treachery as a qualifying circumstance.
• People vs. Lumandong, G.R. No. 132745, March 9, 2000 — Followed for the principle that abuse of superior strength is absorbed in treachery.

• Article 249, Revised Penal Code — Defines and penalizes Homicide with reclusion temporal. Applied as the base penalty for the Frustrated Homicide conviction, with the penalty reduced by one degree pursuant to Article 250.
• Article 250, Revised Penal Code — Provides that for frustrated parricide, murder, or homicide, the courts may impose a penalty lower by one degree than that prescribed for the consummated felony. Applied to determine the penalty for Frustrated Homicide.
• Article 50, Revised Penal Code — Provides that the penalty next lower in degree than that prescribed for the consummated felony shall be imposed upon principals of a frustrated crime. Referenced in connection with Article 250.
• Article 70, Revised Penal Code — Governs the computation of penalties by degrees. Applied to determine that the penalty one degree lower than reclusion temporal is prision mayor.
• Article 64, paragraph 3, Revised Penal Code — Provides that when there is an aggravating circumstance and no mitigating circumstance, the penalty shall be imposed in its maximum period. Applied to impose prision mayor in its maximum period for the Frustrated Homicide.
• Indeterminate Sentence Law (Act No. 4103, as amended by Act No. 4225), Section 1 — Requires the imposition of an indeterminate penalty with a minimum within the range of the penalty next lower in degree. Applied to set the minimum of the indeterminate penalty at prision correccional in its maximum period.
• Article 2230, Civil Code — Provides that exemplary damages may be imposed when the crime is committed with one or more aggravating circumstances. Applied to sustain the award of exemplary damages for both the death of Jeonito and the injuries to Marlon.

Davide, Jr. (Chairman), Puno, Kapunan, and Pardo, JJ., concurred.