PP V Gonzales

2/26/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 359
352 SUPREME COURT REPORTS ANNOTATED

People vs. Gonzalez, Jr.
*
G.R. No. 139542. June 21, 2001.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

INOCENCIO GONZALEZ, JR., accused-appellant.
Criminal Law; Murder; Aggravating Circumstances; Treachery; The

suddenness of the attack, the infliction of the wound from behind the victim,
the vulnerable position of the victim at the time the attack was made or the
fact that the victim was unarmed do not by themselves render the attack as
treacherous.—Treachery under par. 16 of Article 14 of the Revised Penal
Code is defined as the deliberate employment of means, methods or forms
in the execution of a crime against persons which tend directly and specially
to insure its execution, without risk to the offender arising from the defense
which the intended victim might raise. For treachery to be appreciated two
elements must concur: 1) the employment of means of execution that would
insure the safety of the accused from retaliatory acts of the intended victim
and leaving the latter without an opportunity to defend himself; and 2) the
means employed were deliberately or con-
_______________
* EN BANC.
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VOL. 359, JUNE 21, 2001 353
sciously adopted by the offender. The suddenness of the attack, the infliction
of the wound from behind the victim, the vulnerable position of the victim
at the time the attack was made or the fact that the victim was unarmed do
not by themselves render the attack as treacherous. This is of particular
significance in a case of an instantaneous attack made by the accused
whereby he gained an advantageous position over the victim when the latter
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accidentally fell and was rendered defenseless. The means employed for the
commission of the crime or the mode of attack must be shown to have been
consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk
of retaliation from the intended victim.
Same; Same; Same; Same; The determining factor on whether or not
the commission of a crime is attended by treachery is not the resulting crime
committed but the mode of attack employed in its execution.—This Court
has also had occasion to state that whether or not the attack succeeds against
its intended victim or injures another or whether the crime committed is
graver than that intended is immaterial, as long as it is shown that the attack
is attended by treachery, the said qualifying circumstance may still be
considered by the court. Thus, the determining factor on whether or not the
commission of a crime is attended by treachery is not the resulting crime
committed but the mode of attack employed in its execution.
Same; Same; Same; Same; A single and continuous attack cannot be
divided into stages to make it appear that treachery was involved.—The
trial court’s finding that the loading of the gun, the cocking of the hammer
and finally the pulling of the trigger constitute a deliberate effort on the part
of appellant to use the gun as a means of a treacherous attack is patently
erroneous. A single and continuous attack cannot be divided into stages to
make it appear that treachery was involved. The entire incident happened in
a matter of minutes, as testified to by witnesses, and as noted by the trial
court. It was error to our mind for the trial court to divide the assault in
stages to arrive at the conclusion that the mode of attack was consciously
employed by the appellant. Contrary to the finding of the trial court that the
appellant prepared the gun before getting out of his car, the appellant
testified that he loaded his gun before he left the house and that it was ready
to fire when he alighted his car. There was no time for him to reflect on the
mode of attack since he just picked up his gun and alighted from his car and
shot at the FX a few seconds after Dino and Noel Andres started shouting at
each other. We note further that the trial court pointed out that from the fact
that the appellant prepared his gun to shoot, this was an indication of the
deliberate employment of the
354
gun as a means to kill; i.e. that the use of an automatic, pistol shows that the
shooting was attended by treachery.
Same; Same; Same; Same; The weapon used, by itself, is not
determinative of treachery, unless it is shown that the accused deliberately
used the gun to insure the commission of the crime and to render the
unarmed victim defenseless.—We do not agree that the weapon used, by

itself, is determinative of treachery, unless it is shown, and it is not herein
shown, that the appellant deliberately used the gun to insure the commission
of the crime and to render the unarmed victim defenseless. As discussed
above, the encounter between the appellant and the Andresses was a chance
encounter and the appellant’s gun was in the glove compartment of his car
even before he left his house. The shooting was clearly a spur of the
moment or impulsive decision made by the appellant preceded by a heated
altercation at the instance of the private complainant. Jurisprudence teaches
us that under the circumstances, treachery is not obtaining.
Same; Physical Injuries; The intent to kill determines whether the
crime committed is physical injuries or homicide and such intent is made
manifest by the acts of the accused which are undoubtedly intended to kill
the victim.—As regards the injuries sustained by the two children we find
that the crime committed are two counts of slight physical injuries. The
intent to kill determines whether the crime committed is physical injuries or
homicide and such intent is made manifest by the acts of the accused which
are undoubtedly intended to kill the victim. In a case wherein the accused
did not know that a person was hiding behind a table who was hit by a stray
bullet causing superficial injuries requiring treatment for three days, the
crime committed is slight physical injuries. In case of doubt as to the
homicidal intent of the accused, he should be convicted of the lesser offense
of physical injuries.
Same; Mitigating Circumstances; Passion and Obfuscation;
Requisites; Provocation must be sufficient to excite a person to commit the
wrong committed and that the provocation must be commensurate to the
crime committed; The aggressive behavior of the complainant towards the
accused and his son may be demeaning or humiliating but it is not sufficient
provocation to shoot at the complainant’s vehicle.—The mitigating
circumstance of passion and obfuscation is also not obtaining. For this
mitigating circumstance to be considered, it must be shown that: (1) an
unlawful act sufficient to produce passion and obfuscation was committed
by the intended victim; (2) that the crime was committed within a
reasonable length of time from the commission of the unlawful act that
produced the obfuscation in the accused’s mind; and that (3) “the passion
and obfusca-
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VOL. 359, JUNE 21, 2001 355
tion arose from lawful sentiments and not from a spirit of lawlessness or
revenge.” Noel Andres’ act of shouting at the appellants son, who was then
a nurse and of legal age, is not sufficient to produce passion and obfuscation
as it is claimed by the accused. Besides, the appellant’s son, Dino was

shouting back at Noel Andres. It was not a case wherein the appellant’s son
appeared helpless and oppressed that the appellant lost his reason and shot
at the FX of Noel Andres. The same holds true for the appellant’s claim of
provocation on the part of Noel Andres. Provocation must be sufficient to
excite a person to commit the wrong committed and that the provocation
must be commensurate to the crime committed. The sufficiency of
provocation varies according to the circumstances of the case. The
aggressive behavior of Noel Andres towards the appellant and his son may
be demeaning or humiliating but it is not sufficient provocation to shoot at
the complainant’s vehicle.
Same; Same; Incomplete Defense of Relative; The mitigating
circumstance of incomplete defense of a relative is unavailing where the act
of complainant in cursing and shouting at the accused and his son do not
amount to art unlawful aggression against them.—The plea for the
appreciation of the mitigating circumstance of incomplete defense of a
relative is also unmeritorious since the act of Andres in cursing and shouting
at the appellant and his son do not amount to an unlawful aggression against
them, Dino Gonzalez.
Same; Same; Lack of Intent to Commit So Grave a Wrong; The
mitigating circumstance of lack of intent to commit so grave a wrong
obtains when there is a notable disparity between the means employed by
the accused to commit a wrong and the resulting crime committed; The
intention of the accused at the time of the commission of the crime is
manifested from the weapon used, the mode of attack employed and the
injury sustained by the victim.—The plea for the appreciation of the
mitigating circumstance of lack of intent to commit so grave a wrong is
likewise devoid of merit. This mitigating circumstance is obtaining when
there is a notable disparity between the means employed by the accused to
commit a wrong and the resulting crime committed. The intention of the
accused at the time of the commission of the crime is manifested from the
weapon used, the mode of attack employed and the injury sustained by the
victim. The appellant’s use of a gun, although not deliberately sought nor
employed in the shooting, should have reasonably placed the appellant on
guard of the possible consequences of his act. The use of a gun is sufficient
to produce the resulting crimes committed.
356
Same; Complex Crimes; Homicide; Slight Physical Injuries; Where the

offenses committed by the act of the accused of firing a single shot are one
count of homicide, a grave felony, and two counts of slight physical injuries,
a light felony, the rules on the imposition of penalties for complex crimes,
which requires two or more grave and/or less grave felonies, will not apply.
—The rules on the imposition of penalties for complex crimes under Art. 48
of the Revised Penal Code are not applicable in this case. Art. 48 applies if a
single act constitutes two or more grave and less grave felonies or when an
offense is a necessary means of committing another; in such a case, the
penalty for the most serious offense shall be imposed in its maximum
period. Art. 9 of the Revised Penal Code in relation to Art. 25 defines grave
felonies as those to which the law attaches the capital punishment or
afflictive penalties from reclusion perpetua to prision mayor; less grave
felonies are those to which the law attaches a penalty which in its maximum
period falls under correctional penalties; and light felonies are those
punishable by arresto menor or fine not exceeding two hundred pesos.
Considering that the offenses committed by the act of the appellant of firing
a single shot are one count of homicide, a grave felony, and two counts of
slight physical injuries, a light felony, the rules on the imposition of
penalties for complex crimes, which requires two or more grave and/or less
grave felonies, will not apply.
Same; Damages; Even if there is no evidence as to the victim’s actual
income at the time of her death, in view of her temporary separation from
work because of her pregnancy, the Court does not consider it reversible
error for the trial court to have pegged her earning capacity to that of the
salary of a government nurse under the salary standardization law, as a fair
or reasonable assessment of her earning capacity at the time of her death.—
The pecuniary award granted by the trial court for actual damages was duly
established by the testimonies of the prosecution witnesses as supported by
the original receipts for hospitalization and other medical expenses
presented in evidence by the prosecution. The award for loss of earning
capacity is likewise sustained for the reason that while Feliber Andres was
pregnant and was unemployed at the time of death, it is not disputed that she
was a registered nurse and had earning capacity. Noel Andres also testified
that he and his wife had plans to go back to Saudi Arabia to work after
Feliber had given birth to their second baby. While there is no evidence as to
Feliber’s actual income at the time of her death, in view of her temporary
separation from work because of her pregnancy, we do not consider it
reversible error for the trial court to peg her earning capacity to that of the
salary of a government nurse under the salary—standardization law, as a fair
estimate or reasonable assessment of her earning capacity at the time of her
death. It would be grossly inequitous to
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VOL. 359, JUNE 21, 2001 357
deny her spouse and her minor children damages for the support that they
would have received, considering clear evidence on record that she did have
earning capacity at the time of her death.
PARDO, J., Dissenting Opinion:
Criminal Law; Murder; Aggravating Circumstances; Treachery; The

accused’s conscious use of a firearm with pre-loaded multiple missile bullets
against a defenseless man who was totally unaware of the danger to his life,
as the events moved fast and he did not even hear the shot, constitutes
treachery.—Treachery under Article 14, paragraph 6 of the Revised Penal
Code is defined as the deliberate employment of means, methods or forms
in the execution of a crime against persons which tend directly and specially
to insure its execution without risk to the offender arising from the defense
which the intended victim might raise. For treachery to be appreciated, two
elements must concur: (1) the employment of means of execution that
would insure the safety of the accused from retaliatory acts of the intended
victim and leaving the latter without an opportunity to defend himself or
retaliate; and (2) the means of execution employed were deliberately or
consciously adopted by the offender. The means employed for the
commission of the crime or the mode of attack must be shown to have been
consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk
of retaliation by the victim. At the time of the shooting, the complainant was
having a tiff with accused’s son. He knew that the complainant was not
armed and there was no imminent and grave danger to the life of his son.
His conscious use of a firearm with pre-loaded multiple missile bullets
against a defenseless man who was totally unaware of the danger to his life,
as the events moved fast and he did not even hear the shot constitutes
treachery. Accused insured the success of the crime without risk to himself
arising from defense or retaliation. The complainant could not defend
himself from such firepower, much less retaliate. He was without any
firearm. Even if the attack was frontal, it was sudden and the victim was
unarmed.
Same; Same; Same; Same; Whether or not the attack succeeds against
its intended victim or injures another, or whether the crime committed is
graver than that intended is immaterial, as long as it is shown that the
attack is attended by treachery, the qualifying circumstance may still be
considered.—Whether or not the attack succeeds against its intended victim
or injures another, or whether the crime committed is graver than that
intended is immaterial, as long as it is shown that the attack is attended by
treachery, the qualifying circumstance may still be considered.
358

AUTOMATIC REVIEW of a decision of the Regional Trial Court of

Marikina City, Br, 272.
The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Pastelero Law Office for accused-appellant.
GONZAGA REYES, J.:
Many unfortunate tragedies would not have happened if the

improvident use of a firearm did not exacerbate a simple altercation
over traffic. This is one of them.
On a day intended to pay homage to the dead, a pregnant woman
was shot to death in the course of her husband’s altercation with the
accused-appellant and his son along the Garden of Remembrance
within the Loyola Memorial Park in Marikina. The trial court found
the accused guilty of the complex crime of murder and two counts of
frustrated murder and accordingly sentenced him to death. This case
is before us on automatic review.
The details of what actually transpired in the few seconds
immediately preceding the shooting are controverted by both parties
but the events leading to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the
families of the private complainant Noel Andres and that of the
accused-appellant Inocencio Gonzalez were on their way to the exit
of the Loyola Memorial Park. The appellant was driving a white
Isuzu Esteem van with his grandson and three housemaids, while the
private complainant was driving a maroon Toyota FX with his
pregnant wife Feliber Andres, his two year old son, Kenneth, his
nephew Kevin and his sister-in-law, Francar Valdez. At the
intersection near the Garden of Remembrance, while the accused-
appellant Gonzalez was turning left towards the exit and the
complainant Noel Andres was headed straight along the road to the
exit their two vehicles almost collided, Noel Andres was able to
timely step on the brakes. The appellant continued driving along his
way while Noel Andres drove behind the appellant’s vehicle for
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VOL. 359, JUNE 21, 2001 359

1
some time and cut him off when he found the opportunity to do so.
Noel Andres then got out of his vehicle and knocked on the
appellant’s car window. This is as far as their versions of the incident
coincide.
The prosecution’s version of the incident is that Noel Andres
calmly told the appellant to be careful with his driving and informed
the latter that he, Andres, is with his family and to this Gonzalez
allegedly replied. “Accidents are accidents, what’s your problem.”
Andres stated that he saw the appellant turning red in anger so he
decided to go back to his vehicle when he was blocked by the
appellant’s son who said, “Anong problema mo sa erpat ko.” Andres
testified that he felt threatened and so he immediately boarded his
vehicle, sat at the driver’s seat, closed the door, and partially opened
the car window just wide enough to talk back to appellant’s son,
Dino. Suddenly, one of his passengers said “Binaril kami.” He
turned to his wife Feliber Andres and saw her bloodied and
unconscious. He turned around and saw his son Kenneth and
nephew Kevin were also wounded. Andres admitted in court that he
and Dino were shouting at each other so that he did not hear the
shot. Andres then got out of his vehicle to warn the appellant not to
flee. He then took the wounded members of his family to the exit
where there was an ambulance standing by. The three were then
taken to the Sta. Monica Hospital and were later transferred to the
Quezon City Medical Center.
The defense’s version of the incident is that Andres cut the
appellant’s path by positioning his FX obliquely along the
appellant’s lane from the latter’s left side. Andres then got out of his
vehicle, stood beside the appellant’s car window, and repeatedly
cursed the appellant, “Putang ina mo, ang tanda-tanda 3
mo na hindi
ka pa marunong magmaneho. Ang bobo-bobo mo.” The appellant
stayed inside his car and allegedly replied, “Pasensiya ka na hindi
kita nakita, nasilaw ako. Aksidente lang,” The appellant Gonzalez
and another witness for the defense, Quidic, testified that Noel
Andres
_______________
1 Andres, tsn., March 16, 1999, pp. 14-18; Gonzalez, tsn., May 25, 1999, pp. 15-
22.
2 Andres, ibid., p. 26.
3 Amaba, tsn., May 11, 1999, p. 26.
360

went back to his vehicle to move it in such a way that it is straight in

front of the appellant’s car. Andres allegedly got out of his
4
vehicle
again and continued shouting and cursing at the appellant. Dino, the
appellant’s son, who rode in another vehicle decided to go back
when he did not see his father’s car behind him. When Dino arrived
at the scene he confronted Andres and the two had an altercation.
Both Dino and the appellant stated that Andres remained outside his
vehicle during the altercation with Dino. When Andres suddenly

reached for something inside his vehicle, Dino froze on the spot
where he stood. This prompted the appellant to get his gun from the
glove compartment and feeling that his son was threatened he got
out of his car ready to shoot. When he saw that Andres did not have
a weapon he put down his hand holding the gun. This is when the
appellant’s daughter Trisha who was riding in Dino’s car arrived at
the scene, walked past Dino and Andres, and pushed the appellant
away. She hugged her father and in the process held his hand
holding the gun. The appellant tried to free his hand and with
Trisha’s substantial body weight pushing against him the appellant
lost his balance and the gun accidentally fired. The accused stated
that he did not know he shot somebody until the private
complainant’s sister-in-law, Francar Valdez, got out of the vehicle
carrying a bloodied small boy. The defense claims that the appellant
did not try to flee and even told the complainant’s sister-in-law to
take the wounded to the hospital.
On November 4, 1998 an Information for the complex crime of
Murder, Double Frustrated Murder and Attempted Murder was filed
against herein accused-appellant:
“That on or about the 31st day of October 1998, in the city of Marikina,
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, attack, assault and employ personal violence by means of
treachery and abuse of superior strength upon the person of Noel Andres y
Tomas, by then and there shooting him with a Glock cal. 9mm pistol but
instead hitting one Feliber Andres y Ordono, on the left back portion of her
head, thereby inflicting upon her serious and
_______________
4 Gonzalez, tsn., ibid., pp. 23-33; Quidic, tsn., March 22, 1999, pp. 8; 18-22.
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VOL. 359, JUNE 21, 2001 361

mortal wound which directly caused her death, as well as hitting John
Kenneth Andres y Ordono and Kevin Valdez y Ordono physical injuries
which ordinarily would have caused their death, thus performing all the acts
of execution which would have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of some cause or
causes, independent of their will, that is, the timely and able medical
assistance rendered to John Kenneth Andres y Ordono and Kevin Valdez y
Ordono to their damage and prejudice as well as to the damage and
prejudice of the heirs of Feliber Andres y Ordono.”
On arraignment the accused-appellant pleaded “not guilty” to the

crimes charged.
The case records show that Feliber Andres, the wife of Noel
Andres
5
did not die instantaneously. She lived to give birth to a baby
girl by caesarian section and died 6the following morning on
November 1, 1998. The Autopsy Report states:
“FINDINGS: Fairly nourished, fairly developed female cadaver, with post

mortem lividity. Conjunctivae are pale. Lips and nail beds are cyanotic.
Surgical incisions were noted at left tempero-parietal region. Surgical
incisions is also noted at the abdominal region secondary to a caesarian
section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal region,
measuring 1 by 0.9 cm, 9 cm from the anterior midline, with a uniform
abraided collar measuring 0.2 cm., directed posteriorwards, slightly
downwards, and medialwards, fracturing the frontal, and left temporal
bones, lacerating the left cerebral hemisphere, with a deformed slug
fragment embedded and recovered at the posterior lobe of the left cerebral
hemisphere. (2) hematoma, left orbital region, measuring 4.5 by 2 cm, 4 cm
from the anterior midline. There are subdural and subarachnoidal
hemorrhages. Stomach contains 1 1/2 glassful of partially digested food
particles mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head.”
Kenneth and Kevin were treated for extraction of metallic fragments

on their faces. They were discharged from the hospital six days later
or on November 6, 1998.
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5 Named Ma. Clarisse.

6 Exh. “B” p. 2, Folder of Exhibits.
362

On June 25, 1999 the trial court rendered judgement finding that the
shooting was attended by the qualifying circumstance of treachery
and held the appellant guilty of the complex crime of murder for the
death of Feliber Andres and for two counts of frustrated murder for
the injuries sustained by Kenneth Andres and Kevin Valdez and
sentenced the appellant to the maximum of the imposable penalty
which is death. The trial court held:
“Beforehand, the Court takes note of the judicial admissions on the verbal
declarations of the accused that the court ‘a quo‘ has jurisdiction over the
case; that he owns the black Glock 9 mm. automatic pistol; that the said gun
will never fire even if he drops it; that only one bullet was fired from his
gun; and that the victim Feliber Andres is already dead. With this exegesis
and the declarations in open court of the eyewitness of both the prosecution
and some of the defense, there is no real dispute on the antecedent facts
showing that the accused fired on Noel Andres but instead hit and caused
the fatal injuries to the victims John Kenneth Andres, Kevin Valdez and
Feliber Andres resulting to the ultimate death of the latter. The court takes
further judicial admissions of the accused made in their memorandum
demonstrating the existence of five (5) sequences of events leading to the
death of Feliber Andres and the wounding of John Kenneth Andres and
Kevin Valdez which are as follows: First is when Noel Andres overtook the
car driven of the accused and cut cross his path; Second is when Noel
Andres alighted from his vehicle and confronted Inocencio; Third is when
Noel had an argument with Dino Gonzalez, the son of the accused; Fourth is
when, Inocencio seeing his son having confrontation with Noel, got his gun
to protect Dino; and Fifth is when Inocencio had a struggle with his
daughter. Trisha Gonzalez, who tried to reach for the gun and as a result of
which Inocencio lost his balance and as he was falling backward to his side,
his right arm holding the gun hit the rear window of the Tamaraw FX van
and the gun accidentally went off hitting the victim, who were all then
inside the van.
The court likewise take judicial notice on the feature of the automatic
pistol used in this case which is capable of unquestionable demonstration or
ought to be known to judges because of their judicial functions. Practically,
the stages before an automatic firearm would be capable of firing are as
follows: 1) the loading of a bullet into the chamber of the gun; 2) the
cocking of the hammer, if uncocked; 3) the releasing of the safety pin; 4) the
pressing of the trigger to unleash the hammer so that the firing pin will hit
the cartridge to propel the bullet out to hit the target. Realistically, it
demonstrates that a gun will not fire even if the bullet is loaded in its
chamber if the hammer is uncocked; or even if cocked if the safety pin
363
VOL. 359, JUNE 21, 2001 363

is engaged; or even if the safety pin is disengaged if the; trigger will not be
pressed. However, even if the gun is fired if it is not aimed and leveled to
the target, the purpose of firing it shall not be achieved. Contrarily, once a
gun is drawn against a person, the means methods and forms employed for
its execution is already conceived. And once it is tended directly and
specifically to insure its execution, it consequently produces the conscious
and deliberate intention. Finally if all the acts of execution had been
effectively done without risk on the part of the offender arising from any
defense coming from the offended party, treachery results. In brief, there is
treachery when the offender commits any crime against persons, employing
means, methods and forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from any
defense which the offended party might make (People vs. Mesa, 276 SCRA
407; People vs. Carlos Patrolla, Jr., G.R. No. 112445, March 7, 1996, 254
SCRA 467). To appreciate treachery two (2) conditions must be present, to
wit: 1) the employment of means of execution that give the person attacked
no opportunity to defend himself or retaliate; and 2) the means of execution
were deliberately or consciously adopted. (People vs. Azugue, 268 SCRA
711; People vs. Peña, G.R. No. 116022, July 1, 1998, p. 1, 291 SCRA 606)
In the case at bar and guided with the above-quoted doctrinal cases,
logically, the accused is positive of the crime charged against him. When he
alighted with a drawn gun to protect his son and released all the safety
measures of his gun as he fired and missed at Noel who was then unarmed,
but instead hit Kevin Valdez, John Kenneth Andres and Feliber Andres
which resulted to the death of the latter, demonstrate that the accused has
executed the two (2) conditions to generate treachery enough to qualify the
crime committed to murder.”
xxxx xxxx xxxx
“WHEREFORE, foregoing premises considered, the accused Inocencio
Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of
the complex crime of Murder with Double Frustrated Murder and
Attempted Murder penalized under Art. 248, as amended by Republic Act
No, 7659 in relation to Article 48 of the Revised Penal Code and is
sentenced to suffer the maximum penalty of Death by lethal injection.
The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) The amount of P50,000.00 as indemnity for the death of Feliber

Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning
capacity of the deceased Feliber Andres;
364

c) the amount of P98,384.19 as funeral expenses;

d) the amount of P271,800.56 for the hospitalization expenses
incurred for the injuries sustained by the deceased Feliber Andres
and the amount of P23,622.58 representing the expenses for the
untimely delivery of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses
for the injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the
untimely death of his wife Feliber Andres and for the injuries
caused to his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney’s fees and a

fee of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries

sustained by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
SO ORDERED.”
In his appeal, Gonzalez submits the following assignments of error:
“1. The trial court committed reversible error when it found

that treachery was present.
2. The trial court committed reversible error when it presumed
that there was treachery by taking judicial notice of the
feature of the automatic pistol involved in this case.
3. The trial court committed reversible error when it violated
the constitutional right of the accused-appellant to due
process when it took judicial notice of the feature of the
automatic pistol involved in this case without notice.
4. The trial court committed reversible error when it found
Accused-Appellant guilty beyond reasonable doubt of the
complex crime of Murder with Double Frustrated Murder.
5. The trial court committed reversible error when it failed to
appreciate the mitigating circumstances of passion or
obfuscation, lack of intention to commit so grave a wrong,
provocation or threat on the part of
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VOL. 359, JUNE 21, 2001 365

the offended party immediately preceded the act,

incomplete defense of relative, and voluntary surrender.
6. The trial court committed reversible error when it failed to
find that the shooting incident was accidental.
7. The trial court committed reversible error when it gave
credence to the testimonies of prosecution witnesses Elmer
Ramos and Moises Castro.
8. The trial court committed reversible error when it
disregarded the basic principle that the accused is presumed
innocent and his guilt must be proven beyond reasonable

doubt.
9. The trial court committed reversible error when it ordered
Accused-Appellant to pay for the civil liabilities.”
The appellant seeks a reversal and prays that judgment be rendered

exempting him from criminal and civil liabilities. Appellant declared
that he had no intention to shoot Noel Andres much less his wife nor
the children. He lost his balance when his daughter Trisha
approached and pushed him backwards to stop him from joining
Dino and Noel Andres but the appellant tried to free his right hand
holding the gun and it accidentally fired. The single bullet fired hit
the last window on the left side of the Tamaraw FX. The appellant
claims that he did not see the passengers inside the vehicle at the
time of the shooting. This is corroborated by the testimony of two
witnesses for the prosecution who testified that the windows of
Andres’ vehicle are heavily tinted so that a person outside the
vehicle would not be able to see if there are people inside. It is also
argued that had the appellant intended to shoot Noel Andres he
could have simply done so by shooting at him directly. The defense
asserts that the evidence for the prosecution failed to establish the
attendance of treachery and without the attendance of the said
qualifying circumstance the crime committed is homicide, not
murder.
The appellant also points out that the trial court made the factual
finding that the shooting happened in a matter of seconds and that it
was preceded by a heated argument between the parties. Such being
the case, it is argued that the shooting could not have been attended
by treachery. There was no time for the appellant to consciously and
deliberately employ the mode of attack against Noel Andres, nor
against any one of the actual victims, to insure its
366

execution and at the same time to eliminate any form of retaliation

from the alleged intended victim. And yet, the trial court, contrary to
the evidence on record, held that the loading of the bullet into the
chamber of the gun, the cocking of the hammer, the release of the
safety pin and the pulling of the trigger by the appellant of his
automatic pistol constitute conscious and deliberate effort to employ
the gun as a means of committing the crime and resultantly,
qualified its commission by treachery. Such a finding presupposes
that the appellant loaded the gun to shoot Noel Andres only that very
moment when his son Dino and Noel Andres were arguing. This
conclusion has no basis on record. The appellant testified that his
gun was loaded before he left the house and the two witnesses for
prosecution stated in court that a few seconds after Noel Andres and
Dino started shouting at each other, the appellant got out of his car
and shot at the last window on the left side of the complainant’s
vehicle. Further, the appellant assigns as error the procedure adopted
by the trial court in taking judicial notice that the gun used by the
appellant is an automatic pistol and as such, it will not fire unless
aimed at the intended target. The procedure taken by the trial
7
court is
contrary to Section 3, Rule 129 of the Rules of Court. The trial
court should have given both parties the opportunity to present
evidence, expert evidence, if necessary, to inform the court on the
subject matter. The appellant argues that the factual finding borne by
such erroneous procedure is equally erroneous. The gun used by the
appellant is a semiautomatic and not an automatic pistol which
means that the pistol used has no external safety pin to be released
and that the hammer need not be cocked. The pulling of the trigger,
intentional or not, will fire the gun. The use of a semi-automatic
pistol does not necessarily imply treachery.
_______________
7 Sec. 3. Judicial notice, when hearing necessary.—During the trial, the court, on
its own initiative, or on request of a party, may announce its intention to take judicial
notice of any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own
initiative or on request of a party, may take judicial notice of any matter to be heard
thereon if such matter is decisive of a material issue in this case.”
367
VOL. 359, JUNE 21, 2001 367

Appellant also argues that the testimonies of prosecution witnesses

Castro and Ramos were improperly given credence by the trial
court. The appellant contends that a reading of their testimonies
would show that their narration of the incident is rather absurd and
would show that they did not witness the actual shooting. Defense
witnesses, Gonzalez and his daughter, Trisha, on the other hand,
testified that Castro and Ramos arrived at the scene only after the
shooting.
As regards the injuries sustained by Kevin and Kenneth, it is
argued that considering that there was no intent to kill and that they
stayed in the hospital only for six days, the crime committed is
physical injuries. It is argued that the trial court erred in awarding
damages. The bunch of receipts allegedly representing the medical
expenses incurred for the injuries sustained by the victims was
erroneously admitted in evidence, without first requiring the
prosecution to establish the authenticity of the receipts. The

appellant also points out that the award for loss of earning capacity
has no basis as the deceased was unemployed at the time of the
incident.
Finally, the appellant assigns as error the trial court’s rejection of
the mitigating circumstances pleaded by the defense which allegedly
attended the commission of the crime, i.e., lack of intent to commit
so grave a wrong, passion and obfuscation, incomplete defense of a
relative and voluntary surrender. The appellant asserts that these
mitigating circumstances were duly proven during the trial and are
supported by the evidence on record. The private complainant Noel
Andres testified that he saw the appellant getting red in anger after
they, Andres and the appellant, had a heated argument immediately
prior to the shooting. These admitted circumstances show that the
appellant was not in his proper state of mind at the time of the
shooting. First, he was angered by Andres’ abusive language and
later he got out of his car with a loaded gun to protect his son from a
perceived danger. The appellant claims that his willingness to help
the injured and his voluntary surrender to the police should likewise
be considered as mitigating circumstances in the imposition of
penalties.
The Solicitor-General agrees with the appellant that the crime
was not attended by the qualifying circumstance of treachery and
368

hence the crime committed by the appellant for the death of Feliber
Andres is homicide, not murder. The appellee takes into
consideration that the shooting was preceded by a heated argument
and that the supposed victim was placed on guard that attack was
imminent. It also appears that the shooting was done impulsively.
There is no evidence that the appellant deliberately employed the
means of attack to insure execution of the crime and at the same
time eliminate the risk of retaliation from the private complainant.
The appellee also agrees with the appellant that the trial court erred
in equating the use of an automatic pistol with treachery. The trial
court made the factual finding that the appellant’s automatic pistol
would not fire unless aimed and the trigger is deliberately pulled and
hence treachery attended the shooting. The appellee submits that if
we follow the reasoning of the trial court it would appear that the
appellant intended to shoot at the complainant’s vehicle only as the
shot was fired at the last window on the left side of the FX away
from where Andres was allegedly seated. The fact that the gun was
drawn and fired does not mean that the mode of attack was
consciously and deliberately employed.
However, with respect to the injuries sustained by Kevin and

Kenneth, the appellee disagrees with the contention that the
appellant is liable only for slight physical injuries. The injuries
sustained by both children are head injuries and could have caused
their death if not for the immediate medical attention given them.
The number of days spent in the hospital is not determinative of the
severity of the wounds. Their nature and location should instead be
considered. The appellant cannot escape liability for frustrated
homicide for the injuries of the two children on the ground that he
fired a single shot at the vehicle of Noel Andres. He is liable for all
the consequences of his unlawful act even if the crime committed is
different from that intended.
As regards the pleaded mitigating circumstances, appellee asserts
that none can be considered in favor of the appellant. There is
evidence on record that the appellant did not voluntarily surrender to
the police and it appears from the testimonies of witnesses that he
entertained the possibility of flight but his car was stuck in traffic
along the exit of the memorial park. His pretense of incomplete
defense of a relative is belied by his own admission that when
369
VOL. 359, JUNE 21, 2001 369

he saw that Noel Andres did not have a gun he lowered his hand
holding the gun. There was allegedly no threat on the life of his son
at the time of the shooting, no uncontrollable fear nor irresistible
force that would mitigate the commission of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards
granted by the trial court. The appellee alleges that it is not denied
by the appellant that Feliber Andres was a 38-year-old registered
nurse at the time of the shooting. Although she was then
unemployed on account of her pregnancy, she still had earning
capacity and the trial court properly applied the salary of a
government nurse under the salary standardization scheme in the
computation of damages for the loss of earning capacity. The
receipts presented in evidence by the prosecution to establish
hospitalization and other medical expenses incurred by the private
complainants by reason of the injuries suffered by the victims were
duly authenticated by the prosecution witnesses and there is no
dispute that they are exact copies of the original receipts presented
in court. The objections raised by the appellant in this regard were
duly met by the evidence presented by the private complainants.
In sum, the appellee asserts that considering that the appellant
fired a single shot and in the process committed four offenses the
appellant should be held liable for the complex crime of homicide
for the death of Feliber Andres, double frustrated homicide against
Kevin and Kenneth and attempted homicide against Noel Andres.

Under the rules on complex crimes the penalty for the gravest
offense, i.e., reclusion temporal for homicide, should be imposed in
its maximum period.
The appeal has merit.
Treachery under par. 16 of Article 14 of the Revised Penal Code
is defined as the deliberate employment of means, methods or forms
in the execution of a crime against persons which tend directly and
specially to insure its execution, without risk to the offender arising
from the defense which the intended victim might raise. For
treachery to be appreciated two elements must concur: 1) the
employment of means of execution that would insure the safety of
the accused from retaliatory acts of the intended victim and leaving
the latter without an opportunity to defend himself; and 2) the means
employed were deliberately or consciously adopted by
370

8
the offender. The suddenness of the attack, the infliction of the
wound from behind the victim, the vulnerable position of the victim
at the time the attack was made or the fact that the victim9 was
unarmed do not by themselves render the attack as treacherous. This
is of particular significance in a case of an instantaneous attack
made by the accused whereby he gained an advantageous position
over the victim
10
when the latter accidentally fell and was rendered
defenseless. The means employed for the commission of the crime
or the mode of attack must be shown to have been consciously or
deliberately adopted by the accused to insure the consummation of
the crime and at the same time eliminate11
or reduce the risk of
retaliation from the intended victim. Accordingly, it has been
consistently held by this court that chance encounters, impulse
killing or crimes committed at the spur of the moment or that were
preceded by heated altercations are generally not attended by
treachery for lack of opportunity of 12
the accused to deliberately
employ a treacherous mode of attack. Thus, the sudden attack made
by the accused due to his infuriation by reason of the victim’s
provocation was held to be without treachery. Sudden attacks made
by the accused preceded by curses and insults by the victim or acts
taunting the accused to retaliate or the rebellious or aggressive
behavior of the victim were held to be without 13
treachery as the
victim was sufficiently forewarned of reprisal. For the rules on
treachery to apply the sudden attack must have been precon-
_______________
8 People vs. Cabodoc, 263 SCRA 187 (1996); People vs. Malabago, 265 SCRA
198 (1996).
9 Reyes, Revised Penal Code, vol. I, 1998 ed., pp. 409-410.
10 People vs. Caday, 2 SCRA 388 (1961); People vs. Ardisa, 55 SCRA 245
(1974); People vs. Genial, 228 SCRA 283 (1993).
11 Regalado, Criminal Law Conspectus, 2000 ed., p. 96; Aquino, Revised Penal
Code, vol. II, 1997 ed., p. 573.
12 People vs. De Jesus, 118 SCRA 516 (1982); People vs. Magdatu 124 SCRA 594
(1983).
13 People vs. Manlapaz, 55 SCRA 598 (1974); People vs. Valles, 267 SCRA 103
(1997); People vs. Real, 242 SCRA 671 (1995).
371
VOL. 359, JUNE 21, 2001 371

ceived by the accused, unexpected 14

by the victim and without
provocation on the part of the latter.
This Court has also had occasion to state that whether or not the
attack succeeds against its intended victim or injures another or
whether the crime committed is graver than that intended is
immaterial, as long as it is shown that the attack is attended by
treachery, the15 said qualifying circumstance may still be considered
by the court. Thus, the determining factor on whether or not the
commission of a crime is attended by treachery is not the resulting 16
crime committed but the mode of attack employed in its execution.
Treachery is never presumed. It is required that the manner of
attack must be shown to have-been 17
attended by treachery as
conclusively as the crime itself.
We affirm the recommendation of the Solicitor-General that the
shooting was not attended by treachery and accordingly the crime
committed for the death of Feliber Andres is homicide and not
murder.
The encounter between Noel Andres and the appellant was a
chance encounter. They were total strangers before their vehicles
almost collided at an intersection inside the memorial park.
Unfortunately, heated exchange of remarks that followed the near
collision was fanned by a short temper, which in the case of the
appellant, was augmented by the improvident use of a firearm.
From a reading of the transcript of the testimonies of the
witnesses, it would appear that Noel Andres, who had his pregnant
wife and child with him, among others, on board the Tamaraw FX
provoked the altercation. After the near collision of his vehicle with
that of the appellant, he tailed behind the latter’s car towards the exit
until he had the chance to cut him off to scold him for his fail-
_______________
14 Sison vs. People, 250 SCRA 58 (1995), citing, People vs. Abapo, 239 SCRA
469 (1994).
15 U.S. vs. Mabug-at, 51 Phil. 967 (1926); People vs. Cagoco, 58 Phil. 524 (1933).
16 Aquino, Revised Penal Code, 1997 ed., vol. 2, pp. 575-576.
17 People vs. Manalo, 148 SCRA 98 (1987).
372

18
ure to observe traffic rules. Andres stated in court that he calmly
told the appellant to be careful with his driving and denied that he
was angry 19
when he alighted from his vehicle to confront the
appellant. His statement is belied by the witnesses, two prosecution
witnesses included, who uniformly testified that Andres quarreled
with or shouted and cursed20 at the appellant for the latter’s
recklessness at the intersection. The appellant narrated in court that
Andres repeatedly shouted
21
at him, “Putang ina mo, ang tanda-tanda
mo na gago ka pa.” Andres’ hostile behavior towards the appellant
is evident from his statement
22
in court that he noticed the appellant
turning red in anger. It is highly improbable for Gonzalez to have
turned red in anger had Andres been polite, as he claims he was, in
scolding Gonzalez. Andres could have simply communicated to the
appellant his disgust for the latter’s bad driving when he overtook
the appellant’s car near the scene of the shooting but instead he
chose to block the appellant’s path, insult and virtually provoke the
appellant to retaliate.
Andres stated in court that when he noticed Gonzalez‘ infuriation
he immediately walked towards his vehicle, because according to
him the altercation was over. On his way to his FX he met another
man, whom he later found out to be the appellant’s son, Dino. It
appears that the altercation was far from over
23
because again Andres
had a shouting match this time with Dino. In a matter of seconds,
the appellant alighted from his car and fired a single shot at the last
window on the left side of Andres’ vehicle at an angle away from
Noel Andres. The single bullet fired hit Feliber Andres on the
forehead near the temporal region above the left eye and the two
children with metallic fragments of the bullet on their faces, one at
the cheek and the other below his left eye.
_______________
18 Andres, tsn., March 16, 1999, pp. 16-19, Gonzalez, tsn., May 25, 1999, pp. 17-
23.
19 Ibid., p. 66.
20 Ramos, tsn., March 15, 1999, pp. 64-65; Castro, tsn., March 15, 1999, p. 134.
21 Gonzalez, tsn., May 25, 1999, pp. 36-39.
22 Andres, ibid., p. 79.
23 Ibid., tsn., pp. 87-88.
373
VOL. 359, JUNE 21, 2001 373

The prosecution did not present evidence as to the exact seating

arrangement of the victims inside the vehicle; 24
suffice it to say, that
an examination of the pictures of the vehicle one of which shows a
mass of blood stains on the left side (towards
25
the driver’s seat) of the
white seat cover below the head rest, would show that the deceased
Feliber must have been seated at the front passenger’s26
seat and the
children at the middle row behind the driver’s seat. Another picture
shows 27a bullet hole on the last window on the left side of the
vehicle and 28
another shows that the front windshield appears
undamaged. A ballistics expert appeared in court for the
prosecution and testified that the bullet fired at the FX came from
the appellant’s gun, which fact was admitted by the defense. The
prosecution did not inquire from the ballistics expert regarding the
trajectory of the bullet or the approximate distance of the appellant
from the FX when he fired his gun to establish whether or not the
appellant aimed for Noel 29
or Feliber or simply fired indiscriminately
at the latter’s vehicle.
At first blush it would seem that the shooting of Feliber Andres
was attended by treachery as she was inside the FX witnessing her
husband’s altercation, first, with the appellant then with the
appellant’s son, totally defenseless from the shot that came suddenly
from her left side. Public outrage over the death of Feliber was
heightened by the fact that she was then pregnant with her second
child and her death left a new born baby girl and a two year old boy
motherless.
However, a meticulous review of the evidence prevents a
conclusive finding of treachery and any doubt must be resolved, like
the fact of the commission of an offense, in favor of the accused.
The pictures indicate that Gonzalez fired at the FX at an angle away
from Noel Andres and that Gonzalez was not aiming at anybody in
_______________
24 Exhibit P and its submarkings, pp. 79-81, Folder of Exhibits.

25 Exh. “PP-5,” p. 80, folder of Exhibits.
26 See also, Andres, tsn., March 16, 1999, pp. 32-33.
27 Exh. “PP,” p. 79, Folder of Exhibits.
28 Exh. “PP-3,” ibid.
29 Insp. Salamat, tsn., April 14, 1999, pp. 7-8
374

particular. It is not disputed that the appellant’s car was directly

behind the complainant’s FX and that Gonzalez who was then seated
at the driver’s seat alighted from his car, took a few steps then fired
at the left side of the FX. Whether Noel Andres was seated at the
driver’s seat inside his vehicle when Gonzalez fired at the FX, as the
prosecution asserts, or was standing by the door of the driver’s seat
outside his vehicle, as the defense submits, it is clear that the shot
was fired away from Noel Andres. The bullet hit Feliber near her
temple above the left eye indicating that30
she was facing left towards
her husband when the shot was fired. The direct hit on Feliber’s
head shows that the angle of the shot was indeed away from Noel
Andres. Even the eyewitness for the prosecution testified that had
the appellant intended to kill Noel Andres he could have shot
directly at him,31considering that Noel Andres was just a few steps
away from him and that Noel Andres was 32
visible from the outside
because his window was partially open. The pictures show that the
bullet
33
hole was on the third window on the left side of the Tamaraw
FX belying any attempt to shoot Noel Andres. Two prosecution
witnesses Ramos and Castro unequivocally declared that “nothing or
no one” prevented Gonzalez from shooting directly at Noel Andres
and that Gonzalez could have simply done so if he wanted to. But
after alighting from his car, Gonzalez
34
took a few steps and shot at
the left side window of the FX.
The fact that the appellant fired his gun from behind the victim
does not by itself amount to treachery. There is no evidence on
record that the appellant deliberately positioned himself behind the
victim to gain advantage over him when he fired the shot. On the
contrary, the evidence before us reveals that the position of the
appellant’s car was not of his own doing but it became so when Noel
Andres overtook his car and cut off his path.
_______________
30 Autopsy Report, supra.

31 Ramos, tsn., March 15, 1999, p. 23.
32 Andres, tsn., March 16, 1999, p. 85.
33 See Exh. “PP-7,” p. 81, Folder of Exhibits.
34 Ramos, ibid., p. 122; Castro, tsn., March 15, 1999, pp. 176-177.
375
VOL. 359, JUNE 21, 2001 375

We note further, that the appellant did not act belligerently towards
Noel Andres even after the latter cut off the appellant’s path. Andres
stated in court that the appellant did not alight from 35
his car nor
opened his window until he, Andres, tapped on it. For his part
Gonzalez categorically stated in court that he 36did not point his gun
nor threatened Andres during their short spat. Gonzalez, although
he had his gun in his car, did not react to Andres’ cursing until the
latter was having an altercation with the appellant’s son, Dino.
Gonzalez37
claimed that he perceived that his son was in imminent
danger. Whether he overreacted or he shot at Andres’ vehicle out of
rage over Andres’ aggressive behavior, one thing appears clear to us,
that the shooting was not done in cold blood. It is undisputed that the
windows of the FX are heavily or darkly tinted 38
so that a person
outside
39
would not see if anybody was inside. The pictures of the
FX on record confirm the testimonies of both prosecution and
defense witnesses that the other passengers of the FX were not
visible from the outside. Gonzalez admitted in court that Noel
Andres mentioned that he has passengers with him while he was
shouting and cursing at Gonzalez but there is no indication that
Gonzalez had any opportunity to see the passengers when he fired
the shot. The totality of the evidence on record fails to support a
conclusion that Gonzalez deliberately employed the mode of attack
to gain undue advantage over the intended nor the actual victim.
Without any decisive evidence to the contrary, treachery
40
cannot be
considered; thus the crime committed is homicide.
The trial court’s finding that the loading of the gun, the cocking
of the hammer and finally the pulling of the trigger constitute a
deliberate effort on the part of appellant to use the gun as a means of
a treacherous attack is patently erroneous. A single and continuous
attack cannot be divided into stages to make it appear that
_______________
35 Andres, tsn., March 16, 1999, p. 26; Ramos, ibid., p. 13.

36 Andres, tsn., March 16, 1999, p. 76; Gonzales, tsn., ibid., pp. 39-41.
37 Gonzalez, ibid., p. 43.
38 Ramos, tsn., p. 71; Castro, tsn., pp. 174-175.
39 Exh. “PP to PP-2,” p. 79, Folder of Exhibits.
40 Aquino, Revised Penal Code, 1997 ed., vol. 1, p, 401.
376

41
41
treachery was involved. The entire incident happened in a matter of
minutes,
42
as testified to by witnesses, and as noted by the trial
court. It was error to our mind for the trial court to divide the assault
in stages to arrive at the conclusion that the mode of attack was
consciously employed by the appellant. Contrary to the finding of
the trial court that the appellant prepared the gun before getting out
of his car, the appellant testified that he loaded his gun before he left
the house and that it was ready to fire when he alighted his car.
There was no time for him to reflect on the mode of attack since he
just picked up his gun and alighted from his car and shot at the FX a
few seconds
43
after Dino and Noel Andres started shouting at each
other. We note further that the trial court pointed out that from the
fact that the appellant prepared his gun to shoot, this was an
indication of the deliberate employment of the gun as a means to
kill; i.e. that the use of an automatic pistol shows that the shooting
was attended by treachery.
We do not agree that the weapon used, by itself, is determinative
of treachery, unless it is shown, and it is not herein shown, that the
appellant deliberately used the gun to insure the commission of the
crime and to render the unarmed victim defenseless. As discussed
above, the encounter between the appellant and the Andresses was a
chance encounter and the appellant’s gun was in the glove
compartment of his car even before he left his house. The shooting
was clearly a spur of the moment or impulsive decision made by the
appellant preceded by a heated altercation at the instance of the
private complainant. Jurisprudence teaches us that under the
circumstances,
44
treachery is not obtaining. In the case of People vs.
Valles, the accused, a security guard, fired his Armalite and
mortally wounded the victim when the latter approached the accused
four times insisting on entering the workplace wearing improper
uniform, then cursed and insulted and challenged the accused to a
fight. We held that the shooting was not attended by treachery as
_______________
41 Aquino, ibid., 1997 ed., vol. 1, p. 426.

42 Ramos, tsn., March 15, 1999, p. 77; Amaba, tsn., May 11, 1999, p. 39; RTC
Decision, p. 82.
43 Ramos, ibid.
44 267 SCRA 103 (1997).
377
VOL. 359, JUNE 21, 2001 377

the shooting was preceded by a heated altercation at the instance of

the victim. It is to be noted that the kind of weapon used against an
unarmed victim was not taken into consideration in determining the

attendance of treachery; it is the mode of attack employed by the
accused under the particular circumstances of a case that determines
its attendance in the commission of a crime. We find that the
prosecution has not discharged its burden to show that the shooting
was attended by treachery and we are convinced that the crime
committed for the death of Feliber Andres is homicide.
As regards the injuries sustained by the two children we find that
the crime committed are two counts of slight physical injuries. The
intent to kill determines whether the crime committed is physical
injuries or homicide and such intent is made manifest by the acts
45
of
the accused which are undoubtedly intended to kill the victim. In a
case wherein the accused did not know that a person was hiding
behind a table who was hit by a stray bullet causing superficial
injuries requiring treatment
46
for three days, the crime committed is
slight physical injuries. In case of doubt as to the homicidal intent
of the accused, 47he should be convicted of the lesser offense of
physical injuries. We have earlier pointed out that the intent to kill
is absent in this case. It was also found that one small metallic
fragment was extracted from Kenneth below his left eye while
another fragment was extracted from Kevin48 “immediately below the
level of his skin before the cheek bone.” An examination of the
testimonies of the attending physicians, showed that the wounds
sustained by the two children from the metallic fragments are not in
themselves fatal but may cause death if left untreated. One of the
attending physician testified in court that the fragments themselves
“will not cause complication, it is the entry of the fragment” or the
open wound that is susceptible to infection. Two small fragments
were no longer extracted from the face of Kevin
_______________
45 People vs. Listerio, G.R. No. 122099, July 5, 2000, 335 SCRA 40.
46 People vs. Violin, 266 SCRA 224 (1997).
47 Aquino, Revised Penal Code, vol. 2, 1997 ed., pp. 627-628.
48 Dr. Lyndon Ong, tsn., February 23, 1999, pp. 73-77, 81; Dr. Antonio Chua, tsn.,
February 23, 1999, pp. 33-45; 59-60.
49 Dr. Chua, tsn., February 23, 1999, pp. 61-64.
378

Valdez, as the
50
doctor deemed it to be without danger of
complication. We note that the various sizes of the metallic
fragments were not established, at least to give an indication of the
severity of the wounds sustained. Both children were discharged
after six days of treatment and then is no showing that they required
subsequent treatment or that they were immobilized for a greater
number of days by reason of the injuries sustained. Considering the
nature and location of their injuries and the number of days required
for their treatment, we find that the crime committed for the injuries
sustained by the children are two counts of slight physical injuries
under Art. 266 of the Revised Penal Code which imposes a penalty
of arresto menor or imprisonment for 1 to 30 days for injuries
sustained that has incapacitated the victim for one to nine days or
required medical attendance for the same period. For evident lack of
criminal intent to kill the complainant, Noel Andres, as above stated,
the information for attempted homicide must fail.
The mitigating circumstances of voluntary surrender, passion and
obfuscation, incomplete defense of a relative and lack of intent to
commit so grave a wrong, pleaded by the defense, were not
convincingly proved and none can be considered in the imposition
of penalties. The testimony of prosecution witness contradicts the
appellant’s pretense of voluntary surrender. Witness Ramos testified
that the appellant drove away towards the gate of the memorial park
while he was questioning him after the shooting and had not Noel
Andres and onlookers 51blocked his path the appellant could have fled
the scene of the crime.
The mitigating circumstance of passion and obfuscation is also
not obtaining. For this mitigating circumstance to be considered, it
must be shown that: (1) an unlawful act sufficient to produce passion
and obfuscation was committed by the intended victim; (2) that the
crime was committed within a reasonable length of time from the
commission of the unlawful act that produced the obfuscation in the
accused’s mind; and that (3) “the passion and obfuscation arose from
lawful sentiments and not from a spirit of lawless-
_______________
50 Ibid., p. 60.
51 Ramos, tsn., March 15, 1999, pp. 36-37; 45-46.
379
VOL. 359, JUNE 21, 2001 379

52
ness or revenge.” Noel Andres’ act of shouting at the appellant’s
son, who was then a nurse and of legal age, is not sufficient to
produce passion and obfuscation as it is claimed by the accused.
Besides, the appellant’s son, Dino was shouting back at Noel
Andres. It was not a case wherein the appellant’s son appeared
helpless and oppressed that the appellant lost his reason and shot at
the FX of Noel Andres. The same holds true for the appellant’s
claim of provocation on the part of Noel Andres. Provocation must

be sufficient to excite a person to commit the wrong committed and
that the provocation must be commensurate to the crime committed.
The sufficiency
53
of provocation varies according to the circumstances
of the case. The aggressive behavior of Noel Andres towards the
appellant and his son may be demeaning or humiliating but it is not
sufficient provocation to shoot at the complainant’s vehicle.
The plea for the appreciation of the mitigating circumstance of
incomplete defense of a relative is also unmeritorious since the act
of Andres in cursing and shouting at the appellant and his son do not
amount to an unlawful aggression against them, Dino Gonzalez.
Finally, the plea for the appreciation of the mitigating circumstance
of lack of intent to commit so grave a wrong is likewise devoid of
merit. This mitigating circumstance is obtaining when there is a
notable disparity between the means employed by the accused to
commit a wrong and the resulting crime committed. The intention of
the accused at the time of the commission of the crime is manifested
from the weapon used, 54the mode of attack employed and the injury
sustained by the victim. The appellant’s use of a gun, although not
deliberately sought nor employed in the shooting, should have
reasonably placed the appellant on guard of the possible
consequences of his act. The use of a gun is sufficient to produce the
resulting crimes committed.
For the death of Feliber Andres, and in the absence of any
mitigating circumstance, the appellant is hereby sentenced to an
inde-
_______________
52 Reyes, Revised Penal Code, 1998 ed., vol. 1, p. 272.

53 Reyes, ibid., p. 261.
54 Reyes, ibid., pp. 254-255.
380

terminate sentence of 8 years and 1 day of prision mayor, in its

medium period, as minimum to 14 years 8 months and 1 day of
reclusion temporal in its medium period, as maximum. For each
count of the slight physical injuries committed against Kenneth
Andres and Kevin Valdez, the appellant is hereby sentenced to 20
days of arresto menor in its medium period.
The rules on the imposition of penalties for complex crimes
under Art 48 of the Revised Penal Code are not applicable in this
case. Art. 48 applies if a single act constitutes two or more grave and
less grave felonies or when an offense is a necessary means of
committing another; in such a case, the penalty for the most serious
offense shall be imposed in its maximum period. Art. 9 of the
Revised Penal Code in relation to Art. 25 defines grave felonies as
those to which the law attaches the capital punishment or afflictive
penalties from reclusion perpetua to prision mayor, less grave
felonies are those to which the law attaches a penalty which in its
maximum period falls under correctional penalties; and light
felonies are those punishable by arresto menor or fine not exceeding
two hundred pesos. Considering that the offenses committed by the
act of the appellant of firing a single shot are one count of homicide,
a grave felony, and two counts of slight physical injuries, a light
felony, the rules on the imposition of penalties for complex crimes,
which requires two or more grave and/or less grave and/or less grave
felonies, will not apply.
The pecuniary award granted by the trial court for actual
damages was duly established by the testimonies of the prosecution
witnesses as supported by the original receipts for hospitalization
and other medical expenses presented in evidence by the
prosecution. The award for loss of earning capacity is likewise
sustained for the reason that while Feliber Andres was pregnant and
was unemployed at the time of death, it is not disputed that she was
a registered nurse and had earning capacity. Noel Andres also
testified that he and his wife had plans to go back to Saudi Arabia to
work after Feliber had given birth to their second baby. While there
is no evidence as to Feliber’s actual income at the time of her death,
in view of her temporary separation from work because of her
pregnancy, we do not consider it reversible error for the trial court to
peg her earning capacity to that of the salary of a govern-
381
VOL. 359, JUNE 21, 2001 381

ment nurse under the salary standardization law, as a fair estimate or

reasonable assessment of her earning capacity at the time of her
death. It would be grossly inequitous to deny her spouse and her
minor children damages for the support that they would have
received, considering clear evidence on record that she did have
earning capacity at the time of her death.
The awards for moral damages for the death of Feliber Andres
and for the injuries sustained by the two children, which under the
circumstances are reasonable, are likewise sustained.
WHEREFORE, the decision of the trial court is hereby
MODIFIED. The appellant is hereby found guilty of homicide for
the death of Feliber Andres and is sentenced to an indeterminate
sentence of 8 years and 1 day of prision mayor in its medium period,
as minimum, to 14 years 8 months and 1 day of reclusion temporal
in its medium period, as maximum. For each count of the slight

physical injuries committed against Kenneth Andres and Kevin
Valdez, the appellant is hereby sentenced to 20 days of arresto
menor.
The pecuniary awards granted by the trial court are hereby
sustained.
SO ORDERED.
Davide, Jr. (C.J.), Bellosillo, Melo, Vitug, Mendoza,

Quisumbing, Buena, Ynares-Santiago, De Leon, Jr. and Sandoval-
Gutierrez, JJ., concur.
Puno, Kapunan and Panganiban, JJ., Join the dissent of J.
Pardo.
Pardo, J., I dissent, see attached.
DISSENTING OPINION
PARDO, J.:
We agree that there are indeed many unfortunate tragedies that have
happened because of the improvident use of a firearm to exacerbate
a simple altercation over traffic. One was the Rolito Go case. He
shot in cold blood a college graduate of De la Salle Univer-
382

1
Sity after their cars nearly collided on a one-way street, snuffing the
young life of the victim. He was convicted of murder. This case is
another such senseless killing.
This case occurred on the eve of All Saints Day 1998, along the
Garden of Remembrance within the Loyola Memorial Park,
Marikina City, Metro Manila. The trial court convicted the accused
of murder and sentenced him to death. The case is now before us on
automatic review. The majority would convict the accused only of
homicide, not of murder. I regret that I cannot give my concurrence.
In the afternoon of October 31, 1998, at about 2:30, both the
family of complainant Noel Andres and that of accused Inocencio
Gonzalez were on their way to the exit of the Loyola Memorial
Park, Marikina. The accused was driving a white Isuzu Esteem van
with his grandson and three housemaids, while the complainant was
driving a maroon Toyota FX with his pregnant wife Feliber Andres,
his two year old son, Kenneth, his nephew Kevin and his sister-in-
law, Francar Valdez. At the intersection near the Garden of
Remembrance, the accused Gonzalez was turning left toward the

exit while the complainant Noel Andres was headed straight along
the road to the exit when their two vehicles almost collided. Noel
Andres was able to step timely on the brakes. The accused continued
driving along his way while Noel Andres drove behind accused’s
vehicle for
2
sometime and cut him off when he found the opportunity
to do so. Noel Andres 3
got out of his vehicle and knocked on the
accused car’s window.
According to complainant Noel Andres, he calmly told the
accused to be careful with his driving and informed the latter that he
was with his family. To this, accused replied “Accidents are
accidents, what’s your problem.” Andres saw the accused turning
red in anger, so he decided to go back to his vehicle when he was
blocked by accused’s son who said “Anong problema mo sa erpat
ko.” Feeling threatened, Andres immediately boarded his vehicle,
_______________
1 Rolito Go v. Court of Appeals, 206 SCRA 138 [1992].

2 TSN, March 16, 1999, pp. 14-18; TSN, ibid., pp. 20-23.
3 Ibid., p. 26.
383
VOL. 359, JUNE 21, 2001 383

sat at the driver’s seat, closed the door and partially opened the car
window just wide enough to talk bad to accused’s son. Suddenly,
one of his passengers said “binaril kami.” He turned to his wife
Feliber Andres and saw her bloodied and unconscious. He turned
around and saw his son Kenneth and nephew Kevin also wounded.
Noel Andres did not hear the shot. He got out of his vehicle to warn
the accused not to flee. He then took the wounded members of his
family to the exit where there was an ambulance standing by and the
three injured were boarded in the ambulance to be brought to the
Sta. Monica Hospital and later transferred to the Quezon City
Medical Center.
According to the accused, complainant Andres got out of his
vehicle and repeatedly cursed the accused while he stood beside the
accused car’s window. The accused stayed inside his car and replied.
“Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang.”
The complainant would not stop shouting and cursing at him. Dino,
the accused’s son, who rode in another vehicle arrived at the scene,
confronted complainant Andres and the two had an altercation.
Complainant Andres remained outside his vehicle during the
altercation with Dino. When complainant Andres tried to reach for
something inside his vehicle, Dino froze where he stood. This
prompted the accused to get his gun from the glove compartment
and feeling that his son was threatened, got out of his car ready to
shoot the complainant. When he saw that complainant Andres was
not armed, he put down his gun. At this point, accused’s daughter
Trisha arrived at the scene, walked past Andres and pushed her
father, the accused, away. She hugged him and in the process he
fired the gun accidentally. The accused did not know that he hit
somebody until the complainant’s sister-in-law, Francar Valdez got
out of the vehicle carrying a bloodied small boy. The accused
claimed that he did not try to flee and even pharisaically told the
complainant’s sister-in-law to bring the wounded to the hospital.
Perhaps he meant the cemetery.
On November 4, 1998, the prosecution filed with the Regional
Trial Court, Marikina City, an Information charging the accused with
the complex crime of murder, double frustrated murder and
attempted murder, as follows:
384

“That on or about the 31st day of October 1998, in the City of Marikina,
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, attack, assault and employ personal violence by means of
treachery and abused of superior strength upon the person of Noel Andres y
Tomas, by then and there shooting him with a Glock cal. 9mm pistol but
instead hitting one Feliber Andres y Ordono, on the left back portion of her
head, thereby inflicting upon her serious and mortal wound which directly
caused her death, as well as hitting John Kenneth Andres y Ordono and
Kevin Valdez y Ordono physical injuries which ordinarily would have
caused their death, thus performing all the acts of execution which would
have produced the crime of murder as a consequence, but nevertheless did
not produce it by reason of some cause or causes, independent of their will,
that is, the timely and able medical assistance rendered to John Kenneth
Andres y Ordono and Kevin Valdez y Ordono to their damage and prejudice
as well as to the damage and prejudice of the heirs of Feliber Andres y
Ordono.”
On arraignment, the accused pleaded “not guilty” to the charges.

Trial ensued.
Feliber Andres, wife of complainant Noel Andres 4
did not die
instantaneously. She lived to give birth to a baby girl by caesarian
section and died the following morning on November5
1, 1998.
Cause of death was a gunshot wound on the head.
Doctors treated Kenneth and Kevin for extraction of metallic
fragments on their faces. They were discharged from the hospital six
days later on November 6, 1998.

After due trial, on June 25, 1999, the trial court rendered a
decision finding that the killing was attended by the qualifying
circumstance of treachery and holding the accused guilty of the
complex crime of murder for the killing of Feliber Andres and for
two counts of frustrated murder for the injuries sustained by
Kenneth Andres and Kevin Valdez and sentenced the accused to
death. The dispositive portion of the decision reads as follows:
_______________
4 Named Ma. Clarisse.

5 Exhibit “B,” Autopsy Report, Folder of Exhibits, p. 2.
385
VOL. 359, JUNE 21, 2001 385

“WHEREFORE, foregoing premises considered, the accused Inocencio

Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of
the complex crime of Murder with Double Frustrated Murder and
Attempted Murder penalized under Art. 248, as amended by Republic Act
No. 7659 in relation to Article 48 of the Revised Penal Code and is
sentenced to suffer the maximum penalty of Death by lethal injection.
“The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber

Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning
capacity of the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses
incurred for the injuries sustained by the deceased Feliber Andres
and the amount of P23,622.58 representing the expenses for the
untimely delivery of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses
for the injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the
untimely death of his wife Feliber Andres and for the injuries
caused to his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney’s fees and a
fee of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries

sustained by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
“SO ORDERED.”
In this review, the accused claimed that the shooting was purely
accidental. This is another of his false pretensions. He declared that
he had no intention to shoot Noel Andres much less his wife nor the
children. He lost his balance when his daughter Trisha pushed him
backward to stop him from joining the confrontation
386

between Dino and Noel Andres. He tried to free his right hand
holding the gun and it accidentally fired hitting the rear window of
the left side of the Tamaraw FX. He claimed that he did not see the
passengers inside the vehicle at the time of the shooting. The
accused asserted that the prosecution failed to establish the
attendance of treachery and without said qualifying circumstance,
the crime committed was homicide, not murder. We find such
pretenses to be utterly false and bigoted. The evidence plainly shows
that he directly aimed his pre-loaded pistol with multi-missile
bullets, released its safety trigger and deliberately pulled the trigger
aiming the gun at complainant Andres. What a poor shot he was.
The bullet hit the innocent pregnant wife of complainant. She did
not die instantly, although she could have. Divine intervention
enabled her to give light to a baby girl born the next day.
The trial court held that the accused’s act of loading the bullet
into the chamber of the gun and the cocking of the trigger of his
automatic pistol constitute conscious and deliberate effort to employ
the gun as a means of committing the crime and resultantly,
treachery qualified its commission. The accused testified that his
gun was loaded before he left the house and he got out of his car and
shot at the rear window on the left side of the complainant’s vehicle.
This testimony could not be true, unless the accused was an
instinctive killer who envisioned that he would use his gun to kill
someone as he left his house to go to the cemetery. The accused also
argued that the gun he used was a semi-automatic, not an automatic
pistol which meant that the pistol used had no external safety pin to
be released and that the hammer need not be cocked. The pulling of
the trigger, intentional or not would fire the gun. This is another
prevarication. Even a semi-automatic pistol has to be cocked to
chamber load the same with a bullet and activate the trigger-
hammer. In the Glock semi-automatic 9mm pistol as the one accused
used, the trigger has a built-in safety lever and must be cocked and
the trigger purposely pulled to fire the gun.
Accused argued that the trial court improperly gave credence to
the testimonies of prosecution witnesses Castro and Ramos. Their
narration of the incident was rather absurd and would show that they
did not witness the actual shooting. Defense witnesses, on the
387
VOL. 359, JUNE 21, 2001 387

other hand, testified that Castro and Ramos arrived at the scene only
after the shooting.
As regards the injuries sustained by Kevin and Kenneth, the
accused argued that there was no intent to kill and that they stayed in
the Hospital only for six days, the crimes committed were two
counts of slight physical injuries. The trial court erred in awarding
damages and in admitting in evidence the bunch of receipts
representing the medical expenses incurred for the injuries sustained
by the victims, without first requiring the prosecution to establish
the authenticity of the receipts. The accused also pointed out that the
award for loss of earning capacity had no basis as the deceased was
unemployed at the time of the incident.
Finally, the accused submitted that the trial court erred in
rejecting the mitigating circumstances pleaded by the defense which
attended the commission of the crime, i.e., lack of intent to commit
so grave a wrong, passion and obfuscation, incomplete defense of a
relative and voluntary surrender. The accused asserted that the
mitigation circumstances were duly proven and supported by the
evidence. The complainant Noel Andres testified that he saw the
accused getting red in anger after they had a heated argument
immediately prior to the shooting. These circumstances showed that
the accused was not in his proper state of mind at the time of the
shooting. He was angered by Andres’ abusive language directed at
him and he got out of his car with a loaded gun to protect his son
from a perceived danger. The accused claimed that his willingness to
help the injured and his voluntary surrender to the police should
likewise be considered as mitigating circumstances in the imposition
of the penalties.
The Solicitor General agreed with the accused that the crime was
not attended by treachery, and hence, the killing of Feliber Andres
was homicide, not murder. The Solicitor General was of the view
that the shooting was preceded by a heated argument and that the
victim was placed on guard that attack was imminent. There was no
evidence that the accused deliberately employed the means of attack
to insure execution without danger of retaliation from the victim.

However, with respect to the injuries sustained by Kevin and
Kenneth, the Solicitor General disagreed with the accused that he
was liable only for slight physical injuries. The inju-
388

ries sustained by both children were head injuries and could have
caused their death if not for the immediate medical attention given
them. The number of days they spent in the hospital is not
determinative of the severity of the wounds. The accused is liable
for frustrated homicide for the injuries of the two small children
because he fired the shot at Noel Andres that hit instead his pregnant
wife and two small children. He is liable for all the consequences of
his unlawful act even if the crime committed is different from that
intended (aberratio ictus).
As regards the mitigating circumstances, the Solicitor General
asserted that none can be considered in favor of the accused. The
accused did not voluntarily surrender to the police and he even
entertained the possibility of flight but his car was stuck in traffic
along the exit of the memorial park. His claim of incomplete defense
of relative was belied by his own admission that complainant Noel
Andres did not have a gun and there was no unlawful aggression on
his part. There was no threat to his life or the life of his son at the
time of the shooting, no uncontrollable fear nor irresistible force that
would mitigate the commission of the offense.
The Solicitor General also agreed with the pecuniary awards the
trial court granted. He agreed that the late Feliber Andres was a 38-
year old registered nurse at the time of the killing. Although she was
then not employed because she was pregnant, she still had earning
capacity and the trial court properly applied the salary of a
government nurse under the salary standardization scheme in the
computation of damages for the loss of earning capacity. The
receipts presented in evidence by the prosecution to establish
hospitalization and other medical expenses incurred by the
complainant by reason of the injuries suffered by the victims were
duly authenticated by the prosecution witness and there is no dispute
that they are exact copies of the original receipts presented in court.
In sum, the Solicitor General asserted that the accused fired a
single shot but because of the multiple missile bullet that he used
committed four offenses. He is liable for the complex crime of
homicide for the death of Feliber Andres, double frustrated homicide
against Kevin and Kenneth and attempted homicide against Noel
Andres, and that the penalty for the gravest offense, that is,
homicide, shall be imposed, in its maximum period, which is

seventeen
389
VOL. 359, JUNE 21, 2001 389

(17) years, four (4) months and one (1) day to twenty (20) years of
reclusion temporal.
We find the appeal without merit. We do not agree with the views
of the Solicitor General.
Treachery under Article 14, paragraph 6 of the Revised Penal
Code is defined as the deliberate employment of means, methods or
forms in the execution of a crime against persons which tend
directly and specially to insure its execution without risk to the
offender
6
arising from the defense which the intended victim might
raise. For treachery to be appreciated, two elements must concur:
(1) the employment of means of execution that would insure the
safety of the accused from retaliatory acts of the intended victim and
leaving the latter without an opportunity to defend himself or
retaliate; and (2) the means of execution employed were deliberately
or consciously adopted by the offender. The means employed for the
commission of the crime or the mode of attack must be shown to
have been consciously or deliberately adopted by the accused to
insure the consummation of the crime and at the same time eliminate
or reduce the risk of retaliation by the victim. At the time of the
shooting, the complainant was having a tiff with accused’s son. He
knew that the complainant was not armed and there was no
imminent and grave danger to the life of his son. His conscious use
of a firearm with pre-loaded multiple missile bullets against a
defenseless man who was totally unaware of the danger to his life,
as the events moved fast and he did not even hear the shot
constitutes treachery. Accused insured the success of the
_______________
6 People v. Basco, 318 SCRA 615 [1999]; People v. Mangahas, 311 SCRA 384
[1999]; People v. Mallari, 310 SCRA 621 [1999]; People v. Sumalpon, 284 SCRA
464 [1998].
7 People v. Cabodoc, 263 SCRA 187 [1999]; People v. Malabago, 265 SCRA 198
[1990]; People v. Villablanca, 316 SCRA 13 [1999]; People v. Marcelino, 316 SCRA
104 [1999]; People v. Bernas, 309 SCRA 741 [1999]; People v. Penaflorida, 313
SCRA 563 [1999]; People v. Bautista, 312 SCRA 475 [1999]; People v. Molina, 312
SCRA 130 [1999]; People v. Bumer, 319 SCRA 539 [1999].
8 Regalado, Criminal Law Conspectus, 2000 ed., p. 96; Aquino, Revised Penal
Code, Vol. II, 1997 ed., p. 573.
390

crime without risk to himself arising from defense or retaliation. The

complainant could not defend himself from such firepower, much
less retaliate. He was without any firearm. Even if the attack was
frontal, it was sudden and the victim was unarmed.
Whether or not the attack succeeds against its intended victim or
injures another, or whether the crime committed is graver than that
intended is immaterial, as long as it is shown that the attack is
attended by treachery, the qualifying circumstance may still be
considered.
We cannot agree with the accused or the view of the Solicitor
General that the shooting was not attended by treachery. Noel
Andres, who had his pregnant wife and child with him in his
Tamaraw FX could have provoked the situation but was not an
aggressor. Initially he touted the accused for his failure to observe
traffic rules.
However, after the altercation, complainant Andres walked
toward his vehicle because the altercation was over. On his way to
the Tamaraw FX, he met another man, who was the accused’s son. It
appears that Andres had another shouting match with accused’s son.
Without ado, accused got his already pre-loaded pistol, alighted
from his car and fired a single shot at complainant Noel Andres. He
was a poor shot. The single bullet hit instead Feliber Andres on the
forehead near the temporal region above the left eye and the splitting
metallic shrapnels hit two innocent children on their faces, one on
the cheek and the other below the left eye. The intent to kill Noel
Andres was evident when accused fired away at him. Accused knew
that his son was not physically threatened. Whether Noel Andres
was seated at the driver’s seat inside his vehicle when accused
Gonzalez fired, as the prosecution contends or was standing by the
door of the driver’s seat outside his vehicle, as the defense submits,
there is no question that the shot was directed at complainant Noel
Andres. However, as heretofore stated, the accused was a poor shot.
He made up by arming himself with a semi-automatic pistol loaded
with multi-missile bullet that splintered like a shotgun bullet. His
son was not in danger. He knew that complainant could easily be
pacified without resorting to shooting. Whether accused over-
reacted or he shot at Andres out of rage, one thing appears clear to
us: the accused deliberately shot
391
VOL. 359, JUNE 21, 2001 391
complainant Noel Andres treacherously in cold blood. However, it

was his wife who was fatally hit in the head (aberratio ictus) and
shrapnels hit two young innocent children. By an act of God, she
delivered a baby girl alive but gave her life to Him. The shooting
was a deliberate act of the accused. We are convinced that the
shooting was attended by treachery that qualified the crime to
murder aggravated by the use of a semi-automatic pistol specially
fitted with murderous missile. The crime committed for the killing
of Feliber Andres was murder, qualified by treachery and aggravated
by the use of firearm.
As regards the injuries suffered by the two children, we agree
with the Solicitor General that the crime committed was two counts
of frustrated homicide. The intent to kill was evident with the use of
deadly weapon specially loaded with multi-missile bullets and such
intent was clearly made manifest by the acts of the accused
undoubtedly intended to kill the victims.
An examination of the testimonies of the attending physicians
showed that the wounds sustained by the two children from the
metallic fragments may cause death if left untreated. One of the
attending physicians testified that the fragments themselves will not
cause complications; however, it is the entry of the fragments or the
open wound that is susceptible to infection. Two small fragments
were no longer extracted from the face of Kevin Valdez as the
doctors deemed it to be without danger of complication, but this
could still be life threatening.
None of the mitigating circumstances pleaded by the accused was
convincingly proved to be attendant and none may be considered in
the imposition of the penalties.
IN VIEW WHEREOF, I vote to affirm the decision of the trial
Court finding accused guilty of MURDER, qualified by treachery
and aggravated by the use of firearm for the killing of Feliber
Andres and sentencing him to reclusion perpetua, with the accessory
penalties of the law.
For each count of frustrated homicide committed against Kenneth
Andres and Kevin Valdez, the accused must be sentenced to the
indeterminate penalty of ten (10) years and one (1) day of prision
mayor, as minimum, to seventeen (17) years and four (4)
392

People vs. Matyaong
months of reclusion temporal, as maximum; to indemnify the

offended parties Kenneth Andres and Kevin Valdez in the amount of
P20,000.00 each.
Decision affirmed with modification.
Notes.—Slight physical injuries being a light offense, cannot be

considered a grave violation of the moral sentiment of the
community or done in the spirit of cruelty, hostility or revenge, and
the act of carrying a weapon by itself is not inherently wrong in the
absence of a law punishing it. (People vs. Yambot, 343 SCRA 20
[2000])
Where conspiracy to murder is not proved, and the gravity or
duration of the physical injury resulting from the fistblows by the
accused on the victim was not established by the evidence, the
accused is presumed, and is held, liable for slight physical injuries.
(People vs. Tilos, 349 SCRA 281 [2001])
——o0o——
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2/26/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 359

352 SUPREME COURT REPORTS ANNOTATED

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

Criminal Law; Murder; Aggravating Circumstances; Treachery; The

VOL. 359, JUNE 21, 2001 353

People vs. Gonzalez, Jr.

354 SUPREME COURT REPORTS ANNOTATED

People vs. Gonzalez, Jr.

unarmed victim defenseless.—We do not agree that the weapon used, by

VOL. 359, JUNE 21, 2001 355

People vs. Gonzalez, Jr.

as it is claimed by the accused. Besides, the appellant’s son, Dino was

356 SUPREME COURT REPORTS ANNOTATED

People vs. Gonzalez, Jr.

Same; Complex Crimes; Homicide; Slight Physical Injuries; Where the

VOL. 359, JUNE 21, 2001 357

People vs. Gonzalez, Jr.

earning capacity at the time of her death.

PARDO, J., Dissenting Opinion:

Criminal Law; Murder; Aggravating Circumstances; Treachery; The

358 SUPREME COURT REPORTS ANNOTATED

AUTOMATIC REVIEW of a decision of the Regional Trial Court of

The facts are stated in the opinion of the Court.

GONZAGA REYES, J.:

Many unfortunate tragedies would not have happened if the

VOL. 359, JUNE 21, 2001 359

360 SUPREME COURT REPORTS ANNOTATED

went back to his vehicle to move it in such a way that it is straight in

vehicle during the altercation with Dino. When Andres suddenly

VOL. 359, JUNE 21, 2001 361

On arraignment the accused-appellant pleaded “not guilty” to the

“FINDINGS: Fairly nourished, fairly developed female cadaver, with post

Kenneth and Kevin were treated for extraction of metallic fragments

5 Named Ma. Clarisse.

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1. To the private complainant Noel Andres:

a) The amount of P50,000.00 as indemnity for the death of Feliber

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c) the amount of P98,384.19 as funeral expenses;

g) the amount of P50,000.00 as and by way of attorney’s fees and a

2. To the private complainant Nicasio Valdez:

a) the amount of P73,824.75 as actual damages for the injuries

In his appeal, Gonzalez submits the following assignments of error:

“1. The trial court committed reversible error when it found

VOL. 359, JUNE 21, 2001 365

the offended party immediately preceded the act,

innocent and his guilt must be proven beyond reasonable

The appellant seeks a reversal and prays that judgment be rendered

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execution and at the same time to eliminate any form of retaliation

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Appellant also argues that the testimonies of prosecution witnesses

prosecution to establish the authenticity of the receipts. The

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However, with respect to the injuries sustained by Kevin and

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Kevin and Kenneth and attempted homicide against Noel Andres.

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