People vs. Ravelo

Frustrated murder requires intent to kill manifested by external acts performing all acts of execution that would produce death, frustrated only by causes independent of the perpetrator's will; a mere verbal threat to kill hours later, coupled with non-mortal restraint and beating, constitutes only slight physical injuries.

The accused-appellants were members of the Civilian Home Defense Force (CHDF) stationed at a checkpoint near the airport at Awasian in Mabua, Tandag, Surigao del Sur. Reynaldo Cabrera Gaurano was a minor on vacation from Cebu City, and Joey Lugatiman was a 22-year-old resident of Dawis, Tandag. The prosecution theory was that the CHDF stopped both youths for questioning on suspicion that they were insurgents or members of the New People's Army.

On May 21, 1984 at about 5:30 in the afternoon, Edilberto Salazar, Diego Gallardo and Reynaldo Cabrera Gaurano were walking from Dawis to Dagocdoc to attend a dance but turned back toward Dawis. While crossing the Tandag bridge, they were stopped at gunpoint by Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and Nicolas Guadalupe. Salazar and Gallardo ran toward old junk tractors and hid, while Gaurano ran to the house of Fernando Cortes across the road, where he was caught by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe, dragged to a pick-up owned and driven by Pedro Ravelo, and taken toward the Tandag airport at Awasian. Salazar and Gallardo reported the taking to the police.

Later that night into the early dawn of May 22, 1984, Joey Lugatiman, after spending five hours with ten companions at Maticdum, boarded a logging/hauler truck bound for Tandag. Near the airport at about 1:00 in the morning, the group was stopped by the accused, ordered down, and made to identify each other. Lugatiman was separated, brought to Pedro Ravelo's house near the checkpoint, questioned whether he was Joey Lugatiman, knew Gaurano, and was an NPA, then taken to the Airborne Company Headquarters at Mabua where for almost an hour he was boxed, kicked and pistol-whipped by Pedro Ravelo and the others until nearly unconscious. He was then brought back to Awasian to Pedro Ravelo's house and toward Bonifacio Padilla's house, seeing on the way Gaurano one meter away, weak, bruised, hands tied behind, gagged and bleeding from the mouth.

At Padilla's house Lugatiman was chained and tied near an open window. Through the window about thirty meters away, he saw Gaurano hanging from a mango tree with fire below, heard moaning amid laughter, and saw Pedro Ravelo and Josen Ravelo, with the others surrounding, set fire with dried coconut leaves to Gaurano's body. Francisco Villasis, catching crabs at Awasian creek about twenty meters away, likewise saw a man hanging from the mango tree over fire, with Jerry Ravelo applying fire and Romeo Aspirin applying a burning torch of dried coconut leaves at the victim's back, surrounded by the other accused. At about 5:00 in the morning, Bonifacio Padilla, Nicolas Guadalupe and Hermie Pahit tied Lugatiman with nylon line to a piece of wood, gagged and blindfolded him, and left word he would be killed at 9:00 in the evening at Awasian bridge. Left alone, Lugatiman untied himself, jumped out the window at about 10:00 in the morning of May 22, 1984, ran through a nipa grove toward the airport as seen by Emilio Espinoza, and reported to his parents and police, submitting to examination by Dr. Petronila Montero who found small abrasions and hematomas on wrists, ankle, chest, neck, back and upper lip requiring four to five days treatment and not mortal.

On May 23, 1984, Col. Jesus Hermosa with officers, police investigator Cresenciano Rulona, photographer Roberto Awa, relatives and Salazar inspected the area at Tambacan, Awasian. About 25 meters from Padilla's house and 150 meters from Pedro Ravelo's house, under a mango tree, they found a P.25 coin, comb, zippers, burned cloth and coconut leaves and newly excavated soil, then exhumed from about one meter deep the naked body identified by Salazar and Remedios Cabrera Fernandez as Gaurano, without right ear, neck almost cut, entire body blistered, photographed in and out of the hole and brought to Mata Funeral Parlor. Dr. Romeo delos Reyes autopsied the body, finding fire burns throughout with reddish blisters peeling easily, swollen face with contusion and hematoma, loosening hair, 24-cm incised wound around the neck cutting esophagus, pharynx, arteries and veins to the second cervical bone, plus contusions and hematomas on trunk and extremities, all inflicted 36 to 48 hours before autopsy and suffered before death, with death due to shock secondary to the neck wound while hanged with hands tied. The mother Zosima Gaurano arrived from Cebu on May 24, 1984 and claimed P64,350.00 in moral damages and expenses.

The accused, represented by Atty. Eliseo Cruz who repeatedly sought postponements by telegram for health and accident reasons, refused to attend trial without him after five postponements. On May 30, 1985 the trial court, having warned against further delay, proceeded at 2:00 in the afternoon with appointed counsels de oficio Atty. Pretextato Montenegro and Atty. Florito Cuartero, who cross-examined prosecution witnesses. No defense evidence was presented, and a later granted new trial was likewise unused by the defense.

• Frustrated Murder — Lack of Intent to Kill: Petitioner argued that frustrated murder in Criminal Case No. 1194 had no basis in fact and law absent proof of intent to kill, an essential element; a mere statement that Lugatiman would be killed sixteen hours later did not show actual design, the tying, gagging and leaving were only restraint while Gaurano was being killed, and the manhandling injuries were expressly found non-fatal by Dr. Montero and did not cause unconsciousness.
• Attempt — No Overt Acts: Petitioner maintained that not even attempted murder was shown because there was no commencement by overt acts directly connected to murder, the victim was never placed in imminent danger of death, and Lugatiman himself was unsure he would be killed, testifying he was only afraid he would be next and never heard his name mentioned for hanging.
• Due Process — No Valid Waiver of Presence: Petitioner argued that there was no deliberate waiver of the right to be present and present evidence because refusal to appear was only in obedience to Atty. Cruz's instruction not to submit without him, without understanding its import, and the judge should have explained its meaning and consequences; negligence of counsel should not bind them and their case should be excepted from the rule that a client suffers counsel's negligence.

• Frustrated Murder: Whether accused-appellants are guilty of frustrated murder for the beating, tying, gagging and threatened killing of Joey Lugatiman absent proof of intent to kill manifested by execution of all acts necessary to produce death.
• Waiver and Due Process: Whether accused-appellants waived their rights to be present during trial and to present evidence, or were denied due process when trial proceeded in their absence with counsel de oficio and when no defense evidence was received.

• Frustrated Murder: No. Frustrated murder was not proven for lack of intent to kill manifested by performance of all acts of execution; liability was only for slight physical injuries based on the medico-legal findings of non-mortal abrasions and hematomas.
• Waiver and Due Process: Yes. Waiver was valid and due process observed, the absence being a product of free choice after warning, with competent counsel de oficio conducting cross-examination, and generous opportunity including a granted new trial left unused.

• Frustrated Murder: Intent to kill must be shown not only by a statement of purpose but by execution of all acts and use of means necessary to deliver a fatal blow, frustrated only by causes independent of the perpetrator's will after the subjective phase has passed. The trial court's inference from the 5:00 a.m. statement that Lugatiman would be killed at 9:00 p.m. at Awasian bridge was erroneous, a verbal expression sixteen hours beforehand being insufficient without a fatal attack. Tying the leg with a chain to wood, tying hands behind the back to the wall, blindfolding, and leaving Lugatiman in Padilla's house were restraint of liberty while Gaurano was hanged and burned thirty meters away, not acts that would result in death; the earlier boxing, kicking and pistol-whipping at Mabua to extract an NPA admission produced only small abrasions and hematomas found by Dr. Montero to be non-mortal, with no loss of consciousness, and Lugatiman could even sleep after watching the burning. With no distinct evidence of a settled decision to kill at the specified time and Lugatiman himself uncertain, neither frustration nor attempt was established.
• Waiver and Due Process: Proceeding was justified after five postponements, repeated telegraphic requests citing accident and heart ailment, prior denied petitions for change of venue and habeas corpus on military-tribunal ground, and an express warning that no further postponement would be entertained. The rights of public justice and speedy trial outweighed willful delay, and absence did not deprive the accused of confrontation except face-to-face presence, counsels de oficio having cross-examined each prosecution witness. The claim of misplaced trust in Atty. Cruz did not excuse default, no desire to testify being manifest and the granted new trial having been squandered; from appointment of Atty. Montenegro and Atty. Cuartero onward, non-attendance and non-presentation were the accused's own free will, and the client-is-bound-by-counsel rule applied, the constitutional rights having been given more than generous time and opportunity without being overemphasized at public policy's expense.

• Intent to kill in murder, attempted murder and frustrated murder — The offender must have intent or actual design to kill, manifested by external acts. Applied to reduce liability where only a future threat and non-mortal restraint and beating were shown, without execution of means necessary to deliver a fatal blow. Cited to People vs. Santos formulation from US vs. Burns.
• Frustrated felony — There is frustration when the offender performs all acts of execution that would produce the felony as a consequence, but the felony is not produced by reason of causes independent of the will of the perpetrator, after the subjective phase is passed. Applied to reject frustration where tying, gagging and beating would not produce death and escape alone could not supply the missing intent and attack. Cited to People vs. Borinaga.
• Attempted felony — Attempt requires commencement of the criminal act by overt acts having direct connection with the crime intended. Applied to reject even attempt where manhandling, statement of purpose and restraint did not place the victim in danger of imminent death.
• Trial in absentia and representation by counsel de oficio — Reception of prosecution evidence may proceed in the accused's voluntary absence where competent counsel de oficio is appointed and cross-examines witnesses, especially to prevent abuse of speedy trial by willful delays and to serve public justice. Applied to sustain trial on May 30, 1985 onward despite refusal to appear without counsel of record. Cited to Mercado vs. Santos.
• Client bound by counsel's acts — A client suffers the consequences of his counsel's negligence or dilatory tactics absent exceptional justification. Applied where reliance on Atty. Cruz's instructions and telegrams, even after a granted new trial, did not excuse failure to appear and present evidence.

• "In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the actual design to kill (US v. Burns, 41 Phil. 418 [1921]) which must be manifested by external acts." — States the controlling requirement of proven intent to kill for frustrated murder, grounding the modification to slight physical injuries.
• "For there to be frustrated murder, the offender must perform all the acts of execution that would produce the felony as a consequence, but the felony is not thereby produced by reason of causes independent of the will of the perpetrator." — Defines frustration and explains why restraint, beating and a future threat did not satisfy the subjective-phase test.
• "Escape from the aggressors cannot establish frustrated murder without first showing that the aggressors intended to kill and that they really attacked the victim." — Clarifies that timely escape is legally irrelevant unless intent and a real mortal attack are first established.
• "The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988 and in appointing two (2) counsels de oficio for the accused-appellants did not only consider the right of the accused to speedy trial which should not be abused by the defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938])." — Justifies proceeding with trial despite absence and dilatory postponements.

• US vs. Burns, 41 Phil. 418 [1921] — Followed as authority that intent or actual design to kill manifested by external acts is essential in murder and its attempt or frustration.
• People vs. Borinaga, 55 Phil. 433 [1930] — Followed to define frustrated murder as performance of the last act necessary with non-production due to forces outside the aggressor's will.
• Mercado vs. Santos, 66 Phil. 215 [1938] — Followed to hold that speedy trial and rights of public justice justify proceeding despite defense-caused willful delays.

Fernan, C.J. (Chairman), Feliciano, Bidin and Davide, Jr., JJ., concur.