People v. Listerio
G.R.No. 122099 July 5, 2000
Lessons Applicable: Conspiracy, Attempted or Frustrated Stage
• Criminal Case No. 91-5842 and Criminal Case No. 91-5843 were filed against Agapito Listerio y Prado and Samson dela Torre y Esquela
• Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded not guilty to the crimes charged. Their other co-accused have remained at large.
• May 14, 1991:
o Marlon Araque’s Version: Marlon and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money from Tino. Having failed they turned backAs they were passing Tramo near Tino’s place, a group composed of Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio Bancaya blocked their path and attacked them with lead pipes and bladed weapons. Jeonito Araque from behind with 3 stab wounds: 1. upper right portion of his back, 2. lower right portion and 3. middle portion of the left side of his back causing him to fall down. Marlon was hit on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes and momentarily lost consciousness. When he regained consciousness 3 minutes later, Jeonito was already dead and the group fled. He was brought to the hospital for treatment of his forearm and the shoulder
o Agapito Listerio’s Version: Agapito Listerio is a 39 years old, married, side walk vegetable vendor and a resident of Purok 4.
1:00 pm: He was in store of Nimfa Agustin drinking beer with Edgar Demolador and Andres Gininao
2:00 pm: He went to his house and slept
5:00 pm: Remolador and Gininao woke him up and told him there was a quarrel near the railroad track
6:00 pm: 2 policemen passed by going to the house of Samson de la Torre while he was chatting with Remolador and Gininao and invited them for questioning. But, the two were sent home. He was handed a Sinumpaang Salaysay executed by Marlon Araque, implicating him for the death of Jeonito Araque and the frustrated murder of Marlon Araque. When he confronted Marlon as to why he was being included in the case, the latter replied “because you ejected us from your house”
• Dr. Manimtim’s Autopsy Reports:
o Marlon Araque: 2 wounds on the forearm and the shoulder were caused by a sharp object like a knife while the other 2 were caused by a blunt instrument such as a lead pipe
o Jeonito Araque: 3 stab wounds were inflicted from behind by a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or any similar instrument. Considering the involvement of a vital organ and a major blood vessel, the first wound was considered fatal. Unlike the first, the second and third wounds were non-fatal. The first and second wounds were inflicted by knife thrusts delivered starting below going upward by assailants who were standing behind the victim
• RTC: Attempted Homicide only on the basis of Dr. Manimtim’s testimony that none of the wounds sustained by Marlon Araque were fatal
ISSUE: W/N there is a conspiracy for frustrated homicide
HELD: YES. appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-5843 of Frustrated Homicide and is sentenced to suffer an indeterminate penalty of Six (6) Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day of Prision Mayor, as maximum.
After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati City, which is directed to render judgment based on the evidence against Samson dela Torre y Esquela.
• Direct proof of conspiracy is rarely found for criminals do not write down their lawless plans and plots. Conspiracy may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of interest
• conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy need not be established by direct evidence of acts charged, but may and generally must be proved by a number of indefinite acts, conditions and circumstances, which vary according to the purpose accomplished. Previous agreement to commit a crime is not essential to establish a conspiracy, it being sufficient that the condition attending to its commission and the acts executed may be indicative of a common design to accomplish a criminal purpose and objective
• It is necessary that a conspirator should have performed some overt acts 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 con-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators
• Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction with a view to the furtherance of the common design and purpose
o all of them armed with deadly weapons at the locus criminis, indubitably shows their criminal design to kill the victims
• conspirator is equally liable for the crime as it is unnecessary to determine who inflicted the fatal wound because in conspiracy, the act of one is the act of all
• Treachery is present when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. That circumstance qualifies the crime into murder.
o all of them armed with bladed weapons and lead pipes, blocked (hinarang) the path of the victims effectively cutting off their escape
• The commission of the crime was also attended by abuse of superior strength on account of the fact that accused-appellant and his companions were not only numerically superior to the victims but also because all of them, armed with bladed weapons and lead pipes, purposely used force out of proportion to the means of defense available to the persons attacked. However, this aggravating circumstance is already absorbed in treachery. In the light of the finding of conspiracy, evident premeditation need not be further appreciated, absent concrete proof as to how and when the plan to kill was hatched or what time had elapsed before it was carried out.
• What determines whether a felony is attempted or frustrated is whether or not the subjective phase in the commission of an offense has been passed (NOT gravity of the wound)
• Subjective phase
o portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime.
• Objective phase
o Forward the subjective phase
o period occupied by the acts of the offender over which he has control – that period between the point where he begins and the point where he voluntarily desists.
• If between these two points the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is an attempt.
• If he is not so stopped but continues until he performs the last act, it is frustrated
• frustrated when: (subjective phase is completely passed. Subjectively the crime is complete)
o the offender has performed all the acts of execution which would produce the felony
o the felony is not produced due to causes independent of the perpetrator’s will
• attempted felony: (offender never passes the subjective phase of the offense)
o the offender commits overt acts to commence the perpetration of the crime
o he is not able to perform all the acts of execution which should produce the felony; and
o his failure to perform all the acts of execution was due to some cause or accident other than his spontaneous desistance
• intent to kill determines whether the infliction of injuries should be punished as attempted or frustrated murder, homicide, parricide or consummated physical injuries
o intent to kill of the malefactors herein who were armed with bladed weapons and lead pipes can hardly be doubted given the prevailing facts of the case
o can not be denied that the crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as a result of which he lost consciousness and fell, Marlon’s attackers apparently thought he was already dead and fled
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