Republic of the Philippines

Department of Justice
PROVINCIAL PROSECUTION OFFICE
DEPARTMENT OF JUSTICE
Province of Negros Oriental
Dumaguete City

AAA, NPS DOCKET NO. VII-04-INV- 18B-

Complainant, 00174

FOR: MULTIPLE ATTEMPTED

MURDER
-versus-

“BBB1”, “BBB2” and “BBB3”

Respondent.
x--------------------------------------x

RESOLUTION

The respondents “BBB1”, “BB2”, and “BBB3” were charged of the crime
of MULTIPLE ATTEMPTED MURDER under Article 248 in relation to Article 6
of the Revised Penal Code in a complaint filed by “AAA.”

During the clarificatory hearing of this case, both parties appeared

together with their respective witnesses. The complainant was assisted by Atty.
ABC. Both parties submitted affidavits and counter-affidavits. Thus, this case
is resolved based on the evidence presented by both parties.

Complainant, through a joint affidavit filed by Witness A, Witness B,

Witness C and Witness D, acting as co-complainants, narrates that on
February 12, 2018 at about 11:00 in the morning, they accompanied/joined
“AAA” to go to Sito Kabankalan, Barangay Tayak Siaton, Negros Oriental
because “AAA” was invited by Captain R.M. to attend its annual fiesta
celebration. The said parties, with several others are on board an orange Ford
Ranger. At around 2:00 in the afternoon of the same date, they arrived at said
place and stayed thereat until more or less 3:53 in the afternoon, after
complainant “AAA” gave pair of slippers to the people in the area. While going
home and on board the vehicle, they saw a man later identified as “BBB3”
acting suspiciously and calling somebody using a handheld radio. Witness C, a
staff of “AAA,” immediately took pictures of “BBB3” successively, while the
vehicle was moving. Allegedly, when “BBB3” noticed that Hazel took pictures of
him, he immediately hid behind a man holding a fighting cock. Thereafter, as
the party on board the Ford Ranger was travelling more or less one (1) minute,
they heard several gun shots from both sides of the road. They got scared of
being hit by the bullets but luckily the driver, Witness B did not panic and
continued driving the vehicle so they were not hit by the bullets. After such,
they proceeded to Siaton Police Station and reported the incident.

To support the allegations, the following documents were submitted:

1. Joint affidavit of Witness N.K., J.C., H.N., and J.K.

2. Affidavit of Witness G.M.;

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 3. Affidavit of Witness A.K.;
4. Photocopy of Police Blotter;
5. Photographs of suspect “BBB3”; and
6. Photographs of the crime scene

Meanwhile the respondents respectively, “BB1” and “BBB3” denied the

allegations against them. “BBB2,” however, first denied the same but
subsequently filed another affidavit admitting his guilt of the crime imputed
against them.

In the counter-affidavit of “BBB1,” he narrates that on February 12,

2018, he was at Sitio Kabangkalan, Barangay Tayak, Siaton, Negros Oriental
since it was a fiesta. That at around 2:30 in the afternoon, they were near the
designated place for “hantakan” and “bulangan” at the same place mentioned
above. According to him, he was drinking together with Kagawad B.S., D.L.,
P.K., E.O. and three (3) others. Also present were “BBB2” and J.K., who were
in-charged in overseeing the “hatakan.” That at around 3:50 in the afternoon,
“BBB1” heard gun shots and told D.L., “murag naa lagi ga pa buto-buto.” D.L.
even answered back, “wala ra na.” They ignored it at first but later on saw that
there was already a commotion among the people, informing them that there
was indeed a gun-burst sound. “BBB1” remained at the place together with
four (4) others. People then came back and informed them that they saw an
orange vehicle owned by AAA and heard another several gun-burst. That the
affidavit of G.M. alleging that he saw “BBB1” holding a short firearm is a pure
lie since he does not own any firearm and that around 3:30 in the afternoon,
he saw G.M. with his wife and was even invited by D.L. to have a drink with
them. That the affidavit of A.K. alleging she saw “BBB1” holding a short firearm
and saw him firing a shot against the people inside the vehicle of Ford Ranger
is also not true because aside from the fact that he does not own a firearm, he
also saw A.K. at around 3:00 in the afternoon, together with her companions
roaming around the bulangan. There was also an inconsistency with the
statement made by A.K. because accordingly the witness stated in the police
blotter than the gunshots came from the sugar cane plantation contrary to the
statement made in her affidavit where she said that the assailants were leaning
at the coconut trees. Lastly, the complainant failed to consider that the place is
infested with leftist and armed group and considering that there were fourteen
(14) of them on aboard the vehicle, it would be impossible that not one of them
was hit, not even the car.

On the other hand, “BBB3” thru his counter-affidavit, narrates that on

February 12, 2018, he was at Sitio Kabangkalan, Barangay Tayak, Siaton
Negros Oriental since it was a fiesta and around 10:00 in the morning, “BBB3,”
together with S.K. and M.G., were inviting people to a free lunch at the house
of D.L.; That around 2:00 in the afternoon, he saw AAA and her companions
arrived at the place and distributed slippers. At around 3:45 in the afternoon,
he proceeded walking to the house of D.L. since dinner will also be held there.
While on his way, he saw S.C. sitting at the grass holding a fighting cock and
had a short conversation with him. According to him, the allegations that he
was calling somebody is very speculative as the complainants and her
witnesses did not even hear him talking and that the hand radio was for the
facilitation of the fiesta celebration since there was no cellular signal at the
area.

To corroborate their statements, the following documents were

submitted:

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 1. Counter-Affidavit of “BBB1”;
2. Counter-Affidavit of “BBB3”;
3. Affidavit of Witness D.L.;
4. Affidavit of Witness N.R.; and
5. Affidavit of Witness J.K.;

One of the third accused, “BBB2” first filed a counter-affidavit. However,

during the preliminary investigation, he retracted his statement. The public
prosecutor thereafter prevented him from further making statement as the
accused was not assisted by a counsel during the preliminary investigation. He
was advised to submit an affidavit regarding his retraction of his counter-
affidavit. In a subsequent affidavit, he admits the allegations made against him
and the two (2) aforementioned accused. He narrates that on February 12,
2018, he was drinking together with “BBB1,” D.L, N.R. and “BBB3” from
morning until noon. At around 1:00 o’clock in the afternoon, “BBB1” told them
to go to the house of D.L. together with N.R. and “BBB3” for a meeting and
during said meeting, “BBB1” informed them that he was ordered by Mayor F.D.
to ambush and kill Councilor “AAA” who will be arriving at Kabankalan Tayak
to distribute slippers. Upon learning of plan, he told them that he will not go
with them because he has no firearm but “BBB1” threatened to kill him and
offered to give him a firearm. After the meeting, “BBB2,” together with “BBB1,”
D.L. and N.R. went directly to the cockpit area while “BBB3” went to
Kabankalan Proper. According to him, “BBB3” brought a handheld radio going
to Kabankalan proper where the vehicle that “AAA” was riding will pass by and
that “BBB3” will inform them if the complainant was already leaving. At around
3:30 in the afternoon, “BBB3” radioed “BBB1” and informed them that the
vehicle of which the complainant is riding was about to leave and instructed
them to go immediately to the area where they were told to ambush and kill
“AAA,” which is near the house of R.C. After being informed, they went to the
place agreed upon. “BBB1” and “BBB2” are positioned on the right side of the
road while D.L. and N.R. positioned on the left side. When the vehicle where
“AAA” was riding passed by the area, “AAA” made the first shot and then the
others followed by also firing series of gun fires for not more than 30 seconds,
pointing their firearms to the vehicle where “AAA” was riding, with the intent to
kill her. Immediately after the incident, they headed back to the cockpit area as
if nothing happened and was told by “BBB1” not to mention it to anybody. He
learned that there was a case filed against them and “BBB1” went to their
house, informing him that there was already a subpoena and to not admit the
crime to the lawyer and instead deny the allegations. After executing the first
affidavit, he realized that what he did was wrong but “BBB1” again threatened
him and his family. Lastly, he executed another affidavit because he realized
that what he did was wrong and that he and his family’s lives are in danger.

Disposition

In the case at bar, the case being filed against the three aforementioned
accused is attempted murder punishable under Article 248 in relation to

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Article 6 of the Revised Penal Code. Under Article 248 of the Revised Penal
Code1, the elements of murder are:

1. That a person was killed;

2. That the accused killed him;
3. That the killing was attended by any of the qualifying circumstance
mentioned in Article 248
a. With treachery, taking advantage of superior strength, with the aid
of armed men, or employing means to weaken the defense, or of
means or persons to insure or afford impunity;
b. In consideration of a price, reward, or promise;
c. By means of inundation, fire, poison, explosion, shipwreck, stranding of
a vessel, derailment or assault upon a railroad, fall of an airship, by
means of motor vehicles, or with the use of any other means involving
great waste and ruin;
d. With evident premeditation; and
e. With cruelty, by deliberately and inhumanly augmenting the suffering
of the victim, or outraging or scoffing at his person or corpse. (Emphasis
supplied)

In relation to Article 248 is Article 6 of the Revised Penal Code since the
case at hand is only an attempted felony. Under Article 6 of the Revised Penal
Code2, there is an attempt when the offender begins the commission of a felony
directly by overt acts. The perpetrator has not performed all the acts of
execution which should produce the felony. The elements are the following:

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 is 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.

In the case at bar, the facts of the case clearly satisfies the elements
clearly provided under Article 248 and Article 6 of the Revised Penal Code
respectively. First, the qualifying circumstance of treachery is present. In the
case of People of the Philippines vs Roque Dayaday y Dagooc 3, it was held that
there is treachery when a victim is set upon by the accused without warning,
as when the accused attacks the victim from behind, or when the attack is
sudden and unexpected and without the slightest provocation on the part
of the victim, or is, in any event, so sudden and unexpected that the victim is
unable to defend himself, thus insuring the execution of the criminal act
without risk to the assailant. As in this case, the gun shots allegedly fired by
“BBB2,” “BBB1” and two others were sudden and unexpected, and without the
slightest provocation on the part of the victims. During the preliminary
investigation, the respondents admit that they knew of the complainant since
she is the Councilor of SSS but they had no any relationship or connection
with the complainant prior to the accident. Second, the accused “BBB1” and
“BBB2” were armed. They were part of the four members who allegedly fired
shots. The two accused took part in the commission of the crime directly and
they availed of themselves of the aid of armed men. Third, the felony was
1
Article 248, RPC
2
Article 6, RPC
3
People vs Dayaday, G.R. 213224

4
committed in consideration of a price, reward, or promise. In the affidavit
subsequently submitted by “BBB2,” he stated that “BBB1” told them that they
were ordered by Mayor F.D. to ambush and kill Councilor “AAA.” In considering
the statements made by “BBB2,” there is a prima facie presumption that there
was certainly a price, reward or promise made by Mayor F.C. to the accused to
do fulfil the said order. The accused would certainly not follow the order
without any consideration made to them. Lastly, the incident is attendant of
the qualifying circumstance of evident premeditation. There is evident
premeditation when: (1) the time when the offender determined to
commit the crime; (2) an act manifestly indicating that the culprit has
clung to his determination; and (3) sufficient lapse of time between the
determination and execution to allow him to reflect upon the
consequences of his act.4 As again stated in the affidavit of “BBB2,” the
accused together with D.L. and N.R. met at the house of D.L. to plan about the
supposed ambush and killing of Councilor “AAA.” There was a deliberate
planning on the part of the accused to commit the crime. Also, considering the
lapse of the time between the meeting and the actual happening of the
incident, it is clear that the act of the three (3) accused, in committing the
crime was premeditated and reflected upon and was preceded by cool thought
and reflection with the resolution to carry out the criminal intent during a span
of time sufficient to arrive at the hour of judgment. 5 However, the crime
committed is only an attempted felony because assailants were not able to
perform all acts of execution which should produce the felony and that the
non-performance of all acts of execution was due to cause or accident other
than their spontaneous desistance. In the affidavit of “BBB,” he stated that
they failed to fully execute the crime because the speed of the vehicle was so
fast, that they were under the influence of liquor and that they had no training
on firing and sharp shooting.

Lastly, the accused “BBB3” despite not being among of the parties who
fired shots against the vehicle of the complainant, with the intent of killing her,
would also be liable for the crime of Multiple Attempted Murder as a co-
conspirator. A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it. 6 The
defendant, by their acts aimed at the same object, one performing one part and
the other performing another part so as to complete it, with a view to the
attainment of the same object, and their acts, though apparently independent,
were in fact concerted and cooperative, indicating closeness of personal
association, concerted action and concurrence of sentiments, there is
conspiracy.7 In the preliminary investigation, H.N., J.K. and A.K. all identified
“BBB3” as the person holding a handheld radio, which is corroborated with the
affidavit filed by “BBB2” stating that “BBB3” used said handheld radio to give
them a go signal in executing the crime.

The lack of injuries of the complainant/s nor the fact that the vehicle of
the complainant was not hit by the several gun shots allegedly fired by the
accused is immaterial because what is important is that the offenders
commence the commission of the felony directly by overt acts, which is some
physical activity or deed, indicating the intention to commit a particular crime,
more than mere planning or preparation, which if carried to its complete
termination following its natural course, without being frustrated by external
4
People vs Davido, G.R. 143765
5
People vs Escabarte, G.R. No. L-42964
6
Article 8, RPC
7
People vs Geronimo, G.R. No L-25700

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obstacles nor by voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.8

WHEREFORE, IN VIEW OF THE FOREGOIN, it is most respectfully

recommended that an information for the crime for MULTIPLE ATTEMPTED
MURDER punishable under Article 248 in relation to Article 6 of the Revised
Penal Code be filed against the respondents “BBB1,” “BBB2” and “BBB3”
SANCHEZ POSADAS. Bail is set at ______________.

So ordered
April _______, 2018. Dumaguete City, Philippines.

EMMYLOU D. BENDANILLO
Associate City Prosecutor

APPROVED BY:

EUGENE D. SALON
Provincial Prosecutor

8
Reyes, L. The Revised Penal Code, Book Two, 18th Edition.