Evidence adduced show that the family of Norberto Divina were all lying down side by side about to sleep on June 6, 2002 at around 9:00 o’clock in the evening, when suddenly their wall made of sack was stripped off by appellant and his companions.
They ordered him to go out of their house and when he refused despite his plea for mercy, they fired at them successively and indiscriminately, having hit and killed his two daughters, Mary Grace Divina and Claudine who were 13 years old and 3 ½ years old respectively.
In Criminal Case No. 7698-G, appellant was charged with Double Murder, defined and penalized under Article 248 of the Revised Penal Code.
In Criminal Case No. 7702-G, appellant, together with Gilbert Estores and Roger San Miguel, was charged with Multiple Attempted Murder.
However, based on the sworn statement of one Danilo Fajarillo, the Provincial Prosecutor found no prima facie case against Gilbert Estores and Roger San Miguel.
Appellant was then convicted by the trial court of Double Murder and Multiple Attempted Murder.
Aggrieved by the trial court’s judgments, appellant appealed to the CA, which rendered a Decision affirming appellant’s conviction for the crimes charged.
Whether the appellant is guilty of the crimes charged.
Murder is defined under Article 248 of the Revised Penal Code as the unlawful killing of a person, which is not parricide or infanticide, attended by circumstances such as treachery or evident premeditation.
The trial court correctly ruled that appellant is liable for murder because treachery attended the killing of Norberto’s two children.
Minor children, who by reason of their tender years, cannot be expected to put up a defense. When an adult person illegally attacks a child, treachery exists.
As to the charge of multiple attempted murder, the last paragraph of Article 6 of the Revised Penal Code states that a felony is attempted 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.
In this case, the prosecution has clearly established the intent to kill on the part of appellant as shown by the use of firearms, the words uttered during, as well as the manner of, the commission of the crime.
The Court quoted with approval the trial court’s finding that appellant is liable for attempted murder.
Furthermore, the Court notes that both the trial court and the CA failed to take into account dwelling as an ordinary, aggravating circumstance, despite the fact that the Informations in Criminal Case Nos. 7698-G and 7702-G contain sufficient allegations to that effect.
In People v. Agcanas, the Court stressed that “[i]t has been held in a long line of cases that dwelling is aggravating because of the sanctity of privacy which the law accords to human abode. He who goes to another’s house to hurt him or do him wrong is more guilty than he who offends him elsewhere.” Dwelling aggravates a felony where the crime is committed in the dwelling of the offended party provided that the latter has not given provocation therefor.
In view of the attendant ordinary aggravating circumstance, the Court must modify the penalties imposed on appellant.
In view of the attendant ordinary aggravating circumstance, the Court must modify the penalties imposed on appellant. Murder is punishable by reclusion perpetua to death, thus, with an ordinary aggravating circumstance of dwelling, the imposable penalty is death for each of two (2) counts of murder.
However, pursuant to Republic Act (RA) No. 9346, proscribing the imposition of the death penalty, the penalty to be imposed on appellant should be reclusion perpetua for each of the two (2) counts of murder without eligibility for parole.
With regard to the four (4) counts of attempted murder, the penalty prescribed for each count is prision mayor. With one ordinary aggravating circumstance, the penalty should be imposed in its maximum period.