Sample Resolution 2v654g

Republic of the Philippines Department of Justice PROVINCIAL PROSECUTION OFFICE DEPARTMENT OF JUSTICE Province of Negros Oriental Dumaguete City AAA,

NPS DOCKET NO. VII-04-INV- 18B00174

Complainant,

FOR: MULTIPLE ATTEMPTED MURDER -versus“BBB1”, “BBB2” and “BBB3” Respondent. x--------------------------------------x RESOLUTION The respondents “BBB1”, “BB2”, and “BBB3” were charged of the crime of MULTIPLE ATTEMPTED MURDER under Article 248 in relation to Article 6 of the Revised Penal Code in a complaint filed by “AAA.” During the clarificatory hearing of this case, both parties appeared together with their respective witnesses. The complainant was assisted by Atty. ABC. Both parties submitted affidavits and counter-affidavits. Thus, this case is resolved based on the evidence presented by both parties. Complainant, through a t affidavit filed by Witness A, Witness B, Witness C and Witness D, acting as co-complainants, narrates that on February 12, 2018 at about 11:00 in the morning, they accompanied/ed “AAA” to go to Sito Kabankalan, Barangay Tayak Siaton, Negros Oriental because “AAA” was invited by Captain R.M. to attend its annual fiesta celebration. The said parties, with several others are on board an orange Ford Ranger. At around 2:00 in the afternoon of the same date, they arrived at said place and stayed thereat until more or less 3:53 in the afternoon, after complainant “AAA” gave pair of slippers to the people in the area. While going home and on board the vehicle, they saw a man later identified as “BBB3” acting suspiciously and calling somebody using a handheld radio. Witness C, a staff of “AAA,” immediately took pictures of “BBB3” successively, while the vehicle was moving. Allegedly, when “BBB3” noticed that Hazel took pictures of him, he immediately hid behind a man holding a fighting cock. Thereafter, as the party on board the Ford Ranger was travelling more or less one (1) minute, they heard several gun shots from both sides of the road. They got scared of being hit by the bullets but luckily the driver, Witness B did not panic and continued driving the vehicle so they were not hit by the bullets. After such, they proceeded to Siaton Police Station and reported the incident. To the allegations, the following documents were submitted: 1. t affidavit of Witness N.K., J.C., H.N., and J.K. 2. Affidavit of Witness G.M.;

1

3. 4. 5. 6.

Affidavit of Witness A.K.; Photocopy of Police Blotter; Photographs of suspect “BBB3”; and Photographs of the crime scene

Meanwhile the respondents respectively, “BB1” and “BBB3” denied the allegations against them. “BBB2,” however, first denied the same but subsequently filed another affidavit itting his guilt of the crime imputed against them. In the counter-affidavit of “BBB1,” he narrates that on February 12, 2018, he was at Sitio Kabangkalan, Barangay Tayak, Siaton, Negros Oriental since it was a fiesta. That at around 2:30 in the afternoon, they were near the designated place for “hantakan” and “bulangan” at the same place mentioned above. According to him, he was drinking together with Kagawad B.S., D.L., P.K., E.O. and three (3) others. Also present were “BBB2” and J.K., who were in-charged in overseeing the “hatakan.” That at around 3:50 in the afternoon, “BBB1” heard gun shots and told D.L., “murag naa lagi ga pa buto-buto.” D.L. even answered back, “wala ra na.” They ignored it at first but later on saw that there was already a commotion among the people, informing them that there was indeed a gun-burst sound. “BBB1” remained at the place together with four (4) others. People then came back and informed them that they saw an orange vehicle owned by AAA and heard another several gun-burst. That the affidavit of G.M. alleging that he saw “BBB1” holding a short firearm is a pure lie since he does not own any firearm and that around 3:30 in the afternoon, he saw G.M. with his wife and was even invited by D.L. to have a drink with them. That the affidavit of A.K. alleging she saw “BBB1” holding a short firearm and saw him firing a shot against the people inside the vehicle of Ford Ranger is also not true because aside from the fact that he does not own a firearm, he also saw A.K. at around 3:00 in the afternoon, together with her companions roaming around the bulangan. There was also an inconsistency with the statement made by A.K. because accordingly the witness stated in the police blotter than the gunshots came from the sugar cane plantation contrary to the statement made in her affidavit where she said that the assailants were leaning at the coconut trees. Lastly, the complainant failed to consider that the place is infested with leftist and armed group and considering that there were fourteen (14) of them on aboard the vehicle, it would be impossible that not one of them was hit, not even the car. On the other hand, “BBB3” thru his counter-affidavit, narrates that on February 12, 2018, he was at Sitio Kabangkalan, Barangay Tayak, Siaton Negros Oriental since it was a fiesta and around 10:00 in the morning, “BBB3,” together with S.K. and M.G., were inviting people to a free lunch at the house of D.L.; That around 2:00 in the afternoon, he saw AAA and her companions arrived at the place and distributed slippers. At around 3:45 in the afternoon, he proceeded walking to the house of D.L. since dinner will also be held there. While on his way, he saw S.C. sitting at the grass holding a fighting cock and had a short conversation with him. According to him, the allegations that he was calling somebody is very speculative as the complainants and her witnesses did not even hear him talking and that the hand radio was for the facilitation of the fiesta celebration since there was no cellular signal at the area. To corroborate submitted:

their

statements,

the

following

documents

were

2

1. 2. 3. 4. 5.

Counter-Affidavit of “BBB1”; Counter-Affidavit of “BBB3”; Affidavit of Witness D.L.; Affidavit of Witness N.R.; and Affidavit of Witness J.K.;

One of the third accused, “BBB2” first filed a counter-affidavit. However, during the preliminary investigation, he retracted his statement. The public prosecutor thereafter prevented him from further making statement as the accused was not assisted by a counsel during the preliminary investigation. He was advised to submit an affidavit regarding his retraction of his counteraffidavit. In a subsequent affidavit, he its the allegations made against him and the two (2) aforementioned accused. He narrates that on February 12, 2018, he was drinking together with “BBB1,” D.L, N.R. and “BBB3” from morning until noon. At around 1:00 o’clock in the afternoon, “BBB1” told them to go to the house of D.L. together with N.R. and “BBB3” for a meeting and during said meeting, “BBB1” informed them that he was ordered by Mayor F.D. to ambush and kill Councilor “AAA” who will be arriving at Kabankalan Tayak to distribute slippers. Upon learning of plan, he told them that he will not go with them because he has no firearm but “BBB1” threatened to kill him and offered to give him a firearm. After the meeting, “BBB2,” together with “BBB1,” D.L. and N.R. went directly to the cockpit area while “BBB3” went to Kabankalan Proper. According to him, “BBB3” brought a handheld radio going to Kabankalan proper where the vehicle that “AAA” was riding will by and that “BBB3” will inform them if the complainant was already leaving. At around 3:30 in the afternoon, “BBB3” radioed “BBB1” and informed them that the vehicle of which the complainant is riding was about to leave and instructed them to go immediately to the area where they were told to ambush and kill “AAA,” which is near the house of R.C. After being informed, they went to the place agreed upon. “BBB1” and “BBB2” are positioned on the right side of the road while D.L. and N.R. positioned on the left side. When the vehicle where “AAA” was riding ed by the area, “AAA” made the first shot and then the others followed by also firing series of gun fires for not more than 30 seconds, pointing their firearms to the vehicle where “AAA” was riding, with the intent to kill her. Immediately after the incident, they headed back to the cockpit area as if nothing happened and was told by “BBB1” not to mention it to anybody. He learned that there was a case filed against them and “BBB1” went to their house, informing him that there was already a subpoena and to not it the crime to the lawyer and instead deny the allegations. After executing the first affidavit, he realized that what he did was wrong but “BBB1” again threatened him and his family. Lastly, he executed another affidavit because he realized that what he did was wrong and that he and his family’s lives are in danger. Disposition In the case at bar, the case being filed against the three aforementioned accused is attempted murder punishable under Article 248 in relation to

3

Article 6 of the Revised Penal Code. Under Article 248 of the Revised Penal Code1, the elements of murder are: 1. That a person was killed; 2. That the accused killed him; 3. That the killing was attended by any of the qualifying circumstance mentioned in Article 248 a. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; b. In consideration of a price, reward, or promise; c. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; d. With evident premeditation; and e. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. (Emphasis supplied) In relation to Article 248 is Article 6 of the Revised Penal Code since the case at hand is only an attempted felony. Under Article 6 of the Revised Penal Code2, there is an attempt when the offender begins the commission of a felony directly by overt acts. The perpetrator has not performed all the acts of execution which should produce the felony. The elements are the following: 1. The offender commences the commission of the felony directly by overt acts; 2. He does not perform all the acts of execution which should produce the felony; 3. The offender’s act is not stopped by his own spontaneous desistance; 4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance. In the case at bar, the facts of the case clearly satisfies the elements clearly provided under Article 248 and Article 6 of the Revised Penal Code respectively. First, the qualifying circumstance of treachery is present. In the case of People of the Philippines vs Roque Dayaday y Dagooc 3, it was held that there is treachery when a victim is set upon by the accused without warning, as when the accused attacks the victim from behind, or when the attack is sudden and unexpected and without the slightest provocation on the part of the victim, or is, in any event, so sudden and unexpected that the victim is unable to defend himself, thus insuring the execution of the criminal act without risk to the assailant. As in this case, the gun shots allegedly fired by “BBB2,” “BBB1” and two others were sudden and unexpected, and without the slightest provocation on the part of the victims. During the preliminary investigation, the respondents it that they knew of the complainant since she is the Councilor of SSS but they had no any relationship or connection with the complainant prior to the accident. Second, the accused “BBB1” and “BBB2” were armed. They were part of the four who allegedly fired shots. The two accused took part in the commission of the crime directly and they availed of themselves of the aid of armed men. Third, the felony was 1

Article 248, RPC Article 6, RPC 3 People vs Dayaday, G.R. 213224 2

4

committed in consideration of a price, reward, or promise. In the affidavit subsequently submitted by “BBB2,” he stated that “BBB1” told them that they were ordered by Mayor F.D. to ambush and kill Councilor “AAA.” In considering the statements made by “BBB2,” there is a prima facie presumption that there was certainly a price, reward or promise made by Mayor F.C. to the accused to do fulfil the said order. The accused would certainly not follow the order without any consideration made to them. Lastly, the incident is attendant of the qualifying circumstance of evident premeditation. There is evident premeditation when: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act.4 As again stated in the affidavit of “BBB2,” the accused together with D.L. and N.R. met at the house of D.L. to plan about the supposed ambush and killing of Councilor “AAA.” There was a deliberate planning on the part of the accused to commit the crime. Also, considering the lapse of the time between the meeting and the actual happening of the incident, it is clear that the act of the three (3) accused, in committing the crime was premeditated and reflected upon and was preceded by cool thought and reflection with the resolution to carry out the criminal intent during a span of time sufficient to arrive at the hour of judgment. 5 However, the crime committed is only an attempted felony because assailants were not able to perform all acts of execution which should produce the felony and that the non-performance of all acts of execution was due to cause or accident other than their spontaneous desistance. In the affidavit of “BBB,” he stated that they failed to fully execute the crime because the speed of the vehicle was so fast, that they were under the influence of liquor and that they had no training on firing and sharp shooting. Lastly, the accused “BBB3” despite not being among of the parties who fired shots against the vehicle of the complainant, with the intent of killing her, would also be liable for the crime of Multiple Attempted Murder as a coconspirator. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 6 The defendant, by their acts aimed at the same object, one performing one part and the other performing another part so as to complete it, with a view to the attainment of the same object, and their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments, there is conspiracy.7 In the preliminary investigation, H.N., J.K. and A.K. all identified “BBB3” as the person holding a handheld radio, which is corroborated with the affidavit filed by “BBB2” stating that “BBB3” used said handheld radio to give them a go signal in executing the crime. The lack of injuries of the complainant/s nor the fact that the vehicle of the complainant was not hit by the several gun shots allegedly fired by the accused is immaterial because what is important is that the offenders commence the commission of the felony directly by overt acts, which is some physical activity or deed, indicating the intention to commit a particular crime, more than mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external 4

People vs Davido, G.R. 143765 People vs Escabarte, G.R. No. L-42964 6 Article 8, RPC 7 People vs Geronimo, G.R. No L-25700 5

5

obstacles nor by voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.8 WHEREFORE, IN VIEW OF THE FOREGOIN, it is most respectfully recommended that an information for the crime for MULTIPLE ATTEMPTED MURDER punishable under Article 248 in relation to Article 6 of the Revised Penal Code be filed against the respondents “BBB1,” “BBB2” and “BBB3” SANCHEZ POSADAS. Bail is set at ______________.

So ordered April _______, 2018. Dumaguete City, Philippines.

EMMYLOU D. BENDANILLO Associate City Prosecutor APPROVED BY: EUGENE D. SALON Provincial Prosecutor

8

Reyes, L. The Revised Penal Code, Book Two, 18th Edition.

6