People vs Recto While the police officers Rafol and Male were leaving the premises, Appellant Julio
G.R. No.129069 / Oct 17 2001/ Panganiban,J./LOCGOV-The Barangay/JMQAquino
NATURE Automatic Review of RTC Romblon Decision
PETITIONERS People of the Philippines
RESPONDENTS Julio Recto y Robea
SUMMARY. Appellant was convicted for various charges, among which was qualified
direct assault (complexed with frustrated homicide in 2 counts, and with murder in 1).
This was because he allegedly shot a Barangay Captain, Tanod and Kagawad, while the
latter three were on the occasion of the performance of their official duties. The SC, after
listing down the elements of qualified direct assault and defining who are persons in
authority and their agents, agreed with the RTC that there was qualified direct assault
with respect to the Barangay Captain and the Kagawad, because when these two were
shot, they were then in the act of performing their duties, ie. trying to maintain peace by
coaxing appellant to settle things and not resort to violence. However, for the Barangay
Tanod, the SC held that there was no qualified direct assault because the former was not
then performing his duties when he was shot
DOCTRINE. See ratio #1
*pang-crim talaga to zzz*
FACTS.
Prosecution:
One afternoon, Bgy. Captain Percival Orbe was in his residence together with
Bgy.Kagawad Antonio Macalipay and Bgy Tanod Melchor Recto (Appellant
Julios cousin), to settle a land dispute involving one Linda Rance and Cornelio Regis.
While the meeting was in progress, Orbe was summoned by SPO4 Fortunato Rafol
to proceed to the bodega of Rance.
There, they noticed that the padlock of the bodega was destroyed, and the palay
stored therein, stolen. Thus BK Macalipay, who happened to be the chairman of the
Barangay Agrarian Reform Committee (BARC), conducted an investigation. SPO4
Rafol and SPO1 Male likewise made an investigation and reported their findings to
Rance.
At this point, BT Recto passed by and he was asked by BC Orbe to stay as he might
be needed. Thereupon, Recto began his own ocular investigation.
1a kind of gun that shoots a bullet with multiple pellets when fired
2 Criminal Case No. 1970
That on or about the 18th day of April 1994, at around 5:00 oclock in the afternoon, in [B]arangay
Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, with intent to kill, did then and there, by means of treachery,
willfully, unlawfully and feloniously attack, assault, and shoot with a shotgun locally called pugakang
one MELCHOR RECTO, knowing that the latter is a duly appointed [b]arangay [c]hief [t]anod of
Ambulong, Magdiwang, Romblon, while he was engaged in the performance of his official duties,
inflicting upon the latter gunshot wounds in different parts of his body, thus performing allthe acts of
execution which should produce the felony of murder as a consequence, but nevertheless, did not
produce it by reason of
Recto, Cornelio Regis, Jr. and several others arrived. BC Orbe advised them not to
create trouble, but, Regis pulled a piece of wood and threw it towards them.
Thereafter, Julio, while holding a balisong approached Orbe, who told the former to
surrender the same. Instead, Julio stepped back, opened his jacket and pulled out a
gun, a de sabog1. Upon seeing the gun, Orbe retreated while Macalipay stepped
forward with both armed raised and said, Do not do it. Well just settle this.
However, Julio immediately pulled the trigger, hitting Macalipay, causing him to fall
down on the ground.
Cornelio Regis, Jr. approached the fallen Macalipay and flipped his bolo at him who
rolled and fell into the rice paddy.
BT Recto saw the shooting from his hiding place behind a concrete pillar. He then
ran inside the old dilapidated bathroom of the bodega, where Orbe also followed.
BT Recto peeped through the bathroom window and saw Julio shoot Santos. Santos
fired his revolver at Julio, turned around, and crawled. While he was crawling, he
fired another shot towards Regis, Jr., but the latter was able to reach and hack
Santos with a bolo.
BC Orbe and BT Recto heard Julio saying where is that kapitan?. When BT Recto
could no longer see Julio, he jumped out of the bathroom window and ran. While
running, Julio shot him on the thigh. BC Orbe also got out of the bathroom, but
before he could take a step, he was also shot by Julio at his right elbow.
Both M.Recto and Orbe were able to flee as their wounds werent fatal. However,
both Macalipay and Santos died from multiple wounds inflicted by J.Recto.
Defense:
Julio interposed self-defense and defense of his co-accused Cornelo Regis, Jr.
According to him, they were berated at about 12M from the bodega and it was there
that Santos shot Regis, Jr. H, who was hit and Julio retreated. Then, he took two
steps forward and said, why are you like that?. Linda Rances son, Alberto, then
shot Julio, hitting him on the left side. He ran towards Alberto, while doing so, he
saw Wilfredo Arce pick up a gun and fire it. However, Julio was able to take the gun
from Arce, took cover behind a post and managed too shoot Santos. He threw the
gun later on the land and ran to Regis Jr.s house.
Four informations were filed against Julio Recto, charging him as follows:
o [Criminal Case No.1970 and 1971] direct assault with frustrated murder of
Melchor Recto, barangay chief tanod (1970); and of Percival Obre,
barangay captain (1971)2
causes independent of the will of the accused and that is by the timely and able medical assistance
rendered to the victim which prevented his death.
Criminal Case No. 1971
That on or about the 18th day of April 1994, at around 5:00 oclock in the afternoon, in [B]arangay
Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, with intent to kill, did then and there, by means of treachery,
wilfully, unlawfully and feloniously attack, assault, and shoot with a shotgun locally called pugakang
one Barangay Captain PERCIVAL ORBE, knowing that the latter is a duly elected barangay captain of
Ambulong, Magdiwang, Romblon, while he was engaged in the performance of his official duties,
inflicting upon the latter gunshot wounds in different parts of his body, thus performing all the acts of
execution which should produce the felony of murder as a consequence, but nevertheless, did not
 o [CC No. 1971] direct assault with murder of Antonio Macalipay,
barangay kagawad3
o [CC No. 1973] murder of Emiliano Renato Santos
o [CC No. 1975] illegal possession of firearm and ammunition
RTC: Recto was found guilty beyond reasonable doubt of:
(1) two counts of qualified direct assault with frustrated homicide (bec Julio fired
at a bgy tanod and bgy captain who were at the crime scene on the occasion
of the performance of his official duties)
(2) qualified direct assault with murder
(3) homicide (treachery was ruled out in the killing of Santos bec there had been a
gun duel between them)
Because of the imposition of death penalty, this review by SC is mandatory and
automatic without need of a notice of appeal.
ISSUES & RATIO.
SC reviewed entire assailed decision notwithstanding just two issues 4 raised by appellant in
his brief in the interest of justice
1. WON Recto committed the crimes in self-defense and in defense of his uncle
Cornelio Regis, Jr. -NO
By invoking self-defense and defense of his co-accused (a relative), appellant admitted
to the commission of the acts complained of, and shifted the burden of evidence to himself.
He must prove the existence of essential requisites of self-defense, namely: (1) unlawful
aggression on victims part and (2) reasonable necessity of means employed to prevent or
repel it. Julio was not able to discharge his burden.
Here, J. Recto was clearly the aggressor, so there can be no viable self-defense or
defense of a relative. BK Macalipay was unarmed and actually trying to pacify him when he
was shot. As for BT Recto and BC Orbe, no aggression ever emanated from them during the
entire incident.
2. WON TC erred in convicting Julio of:
a. Qualified direct assault with frustrated homicide of BT Recto- YES. Appelllant
should be convicted of attempted homicide.
Julio: the de sabog gun had merely misfired and hit them
produce it by reason of causes independent of the will of the accused and that is by the timely and able
medical assistance rendered to the victim which prevented his death.
3 That on or about the 18th day of April 1994, at around 5:00 oclock in the afternoon, in [B]arangay
Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction
of this [H]onorable Court, the said accused with intent to kill, conspiring, confederating and mutually
helping eachother, did then and there, by means of treachery, willfully, unlawfully and feloniously
attack, assault and shoot with ashotgun locally called pugakang and strike with a long bolo, one
ANTONIO MACALIPAY, knowing that the latter is a duly elected [b]arangay [k]agawad of
SC: his weak and incredible testimony cannot prevail over witnesses positive and categorical
testimonies stating that he deliberately shot them
As to direct assault:
Unquestionably, Melchor Recto was a barangay chief tanod however, at the
crime scene he was a mere bystander. Apparently, he was not acting and had no occasion
to act in the performance of his official duties that afternoon. Thus, the attack on him did
not amount to direct assault.
Direct assault, a crime against public order, may be committed in two ways:
(1) by any person or persons who, without a public uprising, shall employ force or intimidation
for the attainment of any of the purposes enumerated in defining the crimes of rebellion and
sedition; and
(2) by any person or persons who, without a public uprising, shall attack, employ force, or
seriously intimidate or resist any person in authority or any of his agents, while engaged
in the performance of official duties, or on occasion of such performance.
The first mode is tantamount to rebellion or sedition, without the element of public uprising.
Meanwhile, the second mode is the more common form of assault, and is aggravated when:
(a) the assault is committed with a weapon, or (b) when the offender is a public officer or
employee, or (c) when the offender lays a hand upon a person in authority.
An agent of a person in authority is any person who, by direct provision of law
or by election or by appointment by competent authority, is charged with the
maintenance of public order and the protection and security of life and property, such as
barrio councilman, barrio policeman and barangay leader, and any person who comes to
the aid of persons in authority.
In the case at bar, BT Recto, being then the Barangay Chief Tanod of Ambulong,
Magdiwang, Romblon, was clearly an agent of a person in authority. However, contrary to
the findings of the RTC, he was not engaged in the performance of his official duties at
the time he was shot. Neither was he attacked on the occasion of such performance. This
is because M.Recto was on his way home when he happened to pass by the bodega of the
Rance couple. He himself testified, and this is corroborated by Rances testimony, that when
the commotion occurred, he was not involved in the negotiations to avert the tension; rather,
only Orbe and Macalipay talked to Julios group in attempts to pacify them. BT Recto only
watched on the sidelines, until he later hid himself when the first shot was fired. It was only
when he thought J.Recto had already left that he abandoned his hiding place, and it was in
this occasion that he was shot. Clearly, from his arrival at the scene of the crime to his
departure therefrom, Melchor was not engaged in the performance of his official duties.
Neither was he attacked on the occasion thereof.
Ambulong, Magdiwang, Romblon, while he was engaged in the performance of his official duties,
inflicting upon the latter mortal wounds in different parts of his body which were the cause of his
untimely death.
4WON court erred in finding accused guilty of direct assault which resulted in his conviction
of complex crimes; WON court erred in finding treachery which resulted in conviction of
murder

As to frustrated homicide:
Julio only shot BT Recto once, but the latter sustained five gunshot entry wounds at
the vicinity of his buttocks (lol) because of the nature of the de sabog gun. The nature of the
weapon used for the attack and the direction at which it was aimed (the victims back)
unmistakably showed appellants intent to kill. However, for reasons other than his own
desistance, appellant was not able to perform all the acts of execution necessary to
consummate the killing, since the wounds he inflicted were not mortal. In US v. Eduave, it
was held that if the wounds would not normally cause death, then the last act necessary to
produce homicide has not been performed by the offender. Thus, appellants liability
amounted only to attempted, not frustrated, homicide.
b. Qualified direct assault with frustrated homicide of BC Orbe- YES. Appellant
should be convicted of qualified direct assault with attempted homicide.
As to direct assault:
With respect to Orbe, the RTC was correct in ruling that the attack on him, then a
barangay captain, a person in authority, amounted to qualified direct assault, because he was
attacked on the occasion of the performance of his duty. At the time, he was attempting to
pacify appellant and to keep the peace between the two groups.
aggression that was to ensue, yet chose not to grab the opportunity and instead placed
himself in a position more open to attack. Equally important, his vulnerable position had not
been deliberately sought by appellant. It was thrust on the latter by the former himself. In
short, appellant did not deliberately choose the mode of attack to kill the victim with impunity
and without risk to himself.
For treachery to be appreciated, evidence must show that the accused deliberately
adopted a mode of attack intended to ensure the killing of the victim with impunity, and
without giving the victim an opportunity to defend himself. This was not the case here.
Instead, at the time of the questioned events, Julio was out in the open, and his every action,
which indicated the imminence of more violence, was visible to Macalipay and the latters
companions. Julio was actually vulnerable to any attack that they could have made at the
time, had they chosen to. His mode of attack was therefore not without risk to himself.
Absent treachery, the killing is homicide, not murder.
d. Homicide - NO
Indeed, there was a gun duel between Recto and Santos. Thus, the conviction was
correctly held by the RTC for homicide and not murder (no treachery and other qualifying
circumstance).

As to Frustrated Homicide: DECISION. TC decision modified

As in the case of M.Recto, the felony was merely at the attempted stage because the
wounds inflicted on Orbe were also not fatal (shot in the elbow; no surgery needed, only NOTES.
medications).

c. Qualified direct assault with murder of Macalipay- YES. Appellant should be

convicted of qualified direct assault with homicide aggravated by use of a weapon.

As to direct assault:
As with Orbe, the RTC correctly convicted J.Recto for qualified direct assault
because Macalipay was a Kagawad who was in the actual performance of his duties when he
was shot (remember that he was the one who stepped forward and tried to pacify J.Recto
before the latter went on a shooting spree).

As to murder:
Treachery was improperly appreciated by the RTC against J.Recto in convicting the
latter of murder.
First, Macalipays companions outnumbered J.Recto and company.
Second, the heated confrontation was a result of an earlier judgment of the RTC in
favor of J.Rectos group, which strained the relations between the parties (some of whom
were relatives).
Third, both groups were armed, and the exchange of gunfire was substantiated by
both parties.
Fourth, it is to be remembered that Julio first brandished a balisong before he pulled
out his gun and aimed it at the victims group. Macalipay, quite boldly (yet foolishly) stepped
forward and tried to talk to Julio, and it was then evident that before Julio had the chance to
shoot and kill him, Macalipay had all the opportunity to escape or defend himself from the