On December 20, 2006 at about 3:00 a.m., while he was walking on his way home, and after he had passed by Reginald Fuentes’ house where some merrymaking had been ongoing, Mark Reynald Marasigan felt someone throw an object at him from behind. Turning around, he saw Fuentes, who, upon noticing that he had been seen, disappeared. A witness, Jefferson Pablo, spoke with Marasigan and confirmed that it was Fuentes who threw an object at him.
While he and Pablo were speaking, Fuentes reappeared with Calilan and Lindo, and another unidentified individual. Fuentes suddenly punched Marasigan on the face, making his nose bleed. Calilan and Lindo also hit him while their unidentified companion sought to stop them. Fuentes picked up a piece of a hollow block and attempted to hit Marasigan’s head with it. Marasigan parried the stone with his hand, causing his hand to fracture. Fuentes again picked up the stone. Lindo and Calilan took hold of each of Marasigan’s arms. Several more men who were in Fuentes’ home joined in the assault.
Sensing that Fuentes, Calilan, and Lindo were determined to crush him with hollow blocks from a nearby construction site, Marasigan shouted for help. Gregoria Pablo, Jefferson Pablo’s mother, came rushing out of their house and tried to pacify Fuentes, Calilan, and Lindo. They, however, continued to assault Marasigan. It was only upon the arrival of neighbors Marcelo Maaba and Lauro Agulto that Fuentes, Calilan, and Lindo ceased their assault and fled.
Marasigan filed a criminal complaint for frustrated murder against Fuentes, Calilan, Lindo, and one John Doe before Provincial Prosecutor’s Office.
After conducting preliminary investigation, a Resolution was issued finding probable cause for charging Fuentes and Calilan with less serious physical injuries and clearing Lindo of any liability; stating that there were no qualifying circumstances to support a charge for murder, and that the injuries suffered by Marasigan, including his fractured finger, required a healing period of not more than 30 days.
Aggrieved, Marasigan filed a Petition for Review before the Department of Justice. He argued that the medical findings made on him as well as the qualifying circumstance of abuse of superior strength justified prosecution for frustrated murder.
In the Resolution dated September 2, 2009, Undersecretary Malenab-Hornilla partially granted Marasigan’s Petition for Review and ordered the provincial prosecutor of Laguna to file informations for attempted murder against Fuentes, Calilan, and Lindo. She reasoned that precisely because of the arrival of these witnesses, Fuentes, Calilan, and Lindo failed to complete “all the punching, kicking and stoning needed to kill [Marasigan].” Thus, they could not be charged with frustrated murder, but only with attempted murder.
Fuentes, Calilan, and Lindo filed their Motion for Reconsideration to Undersecretary Malenab-Hornilla’s Resolution.
While the Motion for Reconsideration of Fuentes, Calilan, and Lindo was pending, the Provincial Prosecutor’s Office filed the Information for attempted murder before the RTC.
On February 8, 2010, Secretary Devanadera issued a Resolution on Fuentes, Calilan, and Lindo’s Motion for Reconsideration, which absolved Fuentes and Lindo of liability and deemed that Calilan could only be charged with less serious physical injuries, stating that there was no sufficient showing, or “clear and convincing evidence to prove that the herein respondents collectively intended to kill [Marasigan].”
Aggrieved, Marasigan filed a Petition for Certiorari under Rule 65 of the Rules of Court before the Court of Appeals.
The CA dismissed Marasigan’s Petition for Certiorari, and denied Marasigan’s Motion for Reconsideration.
Hence, this Petition was filed.
Whether the accused are liable for attempted or frustrated murder.
Whether or not there was conspiracy.
In Rivera v. People, this court noted that the fact that the wounds sustained by the victim were merely superficial and not fatal did not negate the liability of the accused for attempted murder.
The circumstances in Rivera are starkly similar with (though not entirely the same as) those in this case. As in Rivera, several assailants took part in pummeling petitioner, and efforts were made to hit his head with stones or pieces of hollow blocks. A difference is that, in this case, petitioner managed to parry an attempted blow, thereby causing a fracture in his right hand, instead of a more serious and, possibly fatal, injury on his head.
In any case, the fact that petitioner was successful in blocking the blow with his hand does not, in and of itself, mean that respondents could not have possibly killed him. It does not negate any homicidal intent. It remains that respondent Fuentes attempted to hit petitioner on the head with a hollow block while respondents Calilan and Lindo made efforts to restrain petitioner.
There is also reasonable basis for appreciating how the attack on petitioner was made with respondents taking advantage of their numerical superiority.
From these, it is discernible that respondents took advantage of their superior strength or otherwise employed means to weaken petitioner’s defense. With this qualifying circumstance, there is ample basis for pursuing respondents’ prosecution for murder, albeit not in its consummated stage.
We sustain the conclusion of Undersecretary Malenab-Hornilla that there is basis for prosecuting respondents for murder in its attempted, and not in its frustrated, stage.
The stages of commission of felonies are provided in Article 6 of the Revised Penal Code:
ARTICLE 6. Consummated, Frustrated, and Attempted Felonies. — Consummated felonies, as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.
Rivera v. People discussed the elements that are determinative of a felony’s having reached (only) the attempted stage:
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender’s act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be committed.
In this case, petitioner alleged that respondents coordinated in assaulting him and that this assault culminated in efforts to hit his head with a stone or hollow block. Had respondents been successful, they could have dealt any number of blows on petitioner. Each of these could have been fatal, or, even if not individually so, could have, in combination, been fatal. That they were unable to inflict fatal blows was only because of the timely arrival of neighbors who responded to the calls for help coming from petitioner and witnesses Marcelo Maaba, Lauro M. Agulto, and Gregoria F. Pablo.
Similarly, it is apparent that respondents acted out of a common design and, thus, in conspiracy.
It is settled that direct proof of conspiracy is not imperative and that conspiracy may be inferred from acts of the perpetrators. As explained in People v. Amodia:
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. It arises on the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to pursue it. It may be proved by direct or circumstantial evidence.
Direct proof of conspiracy is rarely found; circumstantial evidence is often resorted to in order to prove its existence. Absent of any direct proof, as in the present case, conspiracy may be deduced from the mode, method, and manner the offense was perpetrated, or inferred from the acts of the accused themselves, when such acts point to a joint purpose and design, concerted action, and community of interest. An accused participates as a conspirator if he or she has performed some overt act as a direct or indirect contribution in the execution of the crime planned to be committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the commission of the crime, or by exerting moral ascendancy over the other co-conspirators. Stated otherwise, it is not essential that there be proof of the previous agreement and decision to commit the crime; it is sufficient that the malefactors acted in concert pursuant to the same objective.
Thus, it has been held that a perpetrator’s act of holding the victim’s hand while another perpetrator is striking a blow is indicative of conspiracy.
In this case, petitioner averred that respondents Calilan and Lindo took hold of each of his arms while respondent Fuentes was about to strike him with a hollow block. It is, therefore, apparent that all three of them acted out of a common design as is indicative of a conspiracy.