Photo credits to: Criminal Law ProjectJurisprudence
Republic of the Philippines
DEPARTMENT OF JUSTICE
OFFICE OF THE PROVINCIAL PROSECUTOR
Province of xxx
Hall of Justice, Brgy., xxx City
xxx xxx xxx, NPS. DOC. NO. II-02-INQ-20F-00112
Complainant,
- versus - for:
xxx xxx xxx, ATTEMPTED HOMICIDE, MALICIOUS
Respondent. MISCHIEF, VIOL OF ART 151 OF RPC &
VIOLATION OF R.A. 113322
MOTION FOR RECONSIDERATION
THE RESPONDENT, with the assistance of the Undersigned Counsel, respectfully states that:
1. The subject matter of this Motion for Reconsideration is the Resolution dated 09 September 2020 (Annex “A”), issued by Senior Assistant Provincial Prosecutor xxx and approved by Provincial Prosecutor xxx;
2. The aforesaid Resolution was received by the Respondent from the Barangay Hall of xxx, xxx on 28 September 2020 and that he has 10 (ten) days or until 07 October 2020 to file this Motion for Reconsideration;
On the Charge of Attempted Homicide
3. Par. 3, Art. 6 of the Revised Penal Code provides that:
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.
4. In the Sinumpaang Salaysay dated 03 June 2020 (Annex “B”) of Witness xxx, he narrates the following:
“…nakita ko si Complainant, na hinahabol ng isang lalake…
Na sa mga sandaling iyon, nakita ko rin ang nasabing lalake na pinagbabato si Complainant hanggang ito ay tuluyan ng makalayo mula sa nasabing lalake;
Pagkalipas ng ilang sandal, nakita kong binato ng nasabing lalake ang likurang sasakyan ni Rommel Taccad na sanhi ng pagkabasag nito…”
5. The same occurrence was what Witness George xxx also narrated in his Sinumpaang Salaysay dated 03 June 2020 (Annex “C”), which goes:
“Nang makalayo na si Complainant, nakita kong nilapitan ni Respondent ang sasakyan…”
As recounted by the two Witnesses presented by the Complainant, the Respondent stopped his pursuit of Complainant when he turned his attention to the Complainant’s vehicle. This action was was a voluntary cessation of the Respondent running after the Complainant as the Respondent had to turn back and go to the place where the vehicle of Rommel was parked.
6. In the case of Garcia v. People of the Philippines (GR No. 234217, 14 November 2008), the Court enunciated the elements of an attempted felony, to wit:
“The essential elements of an attempted felony are as follows: (1) the offender commences the co June 202mmission of the felony by directly 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; and (4) the non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.”
Here, the third and fourth elements are absent since the Respondent stopped his pursuit of Rommel Taccad. This is supported by the Complainant’s own eyewitnesses in their Sinumpaang Salaysay.
7. Even Sr. Asst. Provincial Prosecutor xxx arrived at this same conclusion, when he said in Paragraph 5 of the questioned Resolution that,
“When Michael was not able to outrun Rommel, he turned his ire at the parked vehicle.”
Respondent quit his pursuit of the Complainant – which meant Michael stopped running after Rommel by his own volition, therefore, by his own spontaneous desistance; and it has been settled that, if the accused by his own spontaneous desistance, should stop from performing all the acts needed to consummate the crime, there is no attempted crime, and he incurs no liability.
8. In Paragraph 9 of the questioned Resolution, Prosecutor xxx says,
“To be liable for the crime of attempted homicide it is not necessary that the victim sustains an injury.”
We beg to disagree. In the case of Etino v. People of the Philippines (GR No. 206632, 14 February 2018), the Court had the occasion to conclude that:
“…we have ruled in several cases that when the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault, and his victim sustained fatal of mortal wound/s but did not die because of timely medical assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying circumstances under Article 249 of the Revised Penal Code are present. However, if the wound/s sustained by the victim in such a case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide. If there was no intent to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious, less serious or slight physical injury. (Emphasis supplied)
Keeping in mind the above qualifications laid down by the Supreme Court, how can the Respondent be charged with Attempted Homicide when he cannot even be charged with the crime of Physical Injuries. The Complainant was not harmed in any way with nary a scratch on his body nor has he presented evidence or a medical certificate that he sustained any injury at all from the alleged attack.
9. Further, in the same case of Etino v. People, the Court expressed that:
“The assailant’s intent to kill is the main element that distinguishes the crime of physical injuries from the crime of homicide. The crime can only be homicide if the intent to kill is proven. The intent to kill must be proven in a clear and evident manner [so as] to exclude every possible doubt as to the homicidal intent of the aggressor.
In Rivera v. People, the Court ruled that “[i]ntent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, which may consist of:
[a)] the means used by the malefactors;
[b)] the nature, location and number of wounds sustained by the victim;
[c)] the conduct of the malefactors before, at the time, or immediately after the killing of the victim;
[d)] the circumstances under which the crime was committed; and,
[e)] the motives of the accused.
Moreover, the Court held in Rivera that intent to kill is only presumed if the victim dies as a result of a deliberate act of the malefactors.
…
Although it was sufficiently shown that petitioner fired a 12 gauge shotgun at the victim, there was simply no other evidence on record that tended to prove that petitioned had animus interficendi or intent to kill the victim. On the contrary, none of the prosecution’s witnesses testified that petitioner had indeed aimed and fired the shotgun to kill the victim (emphasis ours).”
Let it be noted that only the Complainant’s allegation that Michael shouted “Patayan taka!” (I will kill you!) as narrated in Paragraph 3 of his Sinumpaang Salaysay dated 03 June 2020 (Annex “D”), supposedly signified his intent to kill the Complainant. Even Rommel’s account of how the alleged attack happened does not manifest this intention of the Respondent because Rommel said that Michael only waved the missing weapon used to attack him to and fro, as contained in the third paragraph of his Sinumpaang Salaysay dated 03 June 2020,
“…sabay wasiwas sa akin ang dala niyang balisong…”
Nowhere in the Sinumpaang Salaysay of the Complainant or Witnesses was it indicated that Michael “thrust” or “stabbed” the missing bladed weapon towards the body of the Complainant. The term “wasiwas” was expressly used by the Complainant in his Sinumpaang Salaysay. The Witnesses did not even see or mention that Michael even pointed the alleged weapon at Rommel.
The equivalent action or literal translation of the Filipino word “wasiwas” in English is not similar to “thrust” as assumed by the Sr. Asst. Prosecutor in his Resolution nor is it the same as “stabbed” as indicated in the Joint Affidavit of PMSg Philip Palattao and PAT Jovie Paul Calagui dated 03 June 2020 and the Police Blotter Entry dated 02 June 2020 because “wasiwas” means to swing an object from side to side in a horizontal direction, to and fro.
10. In Paragraph 8 of the questioned Resolution, the Sr. Asst. Prosecutor said that the Respondent did not offer a contrary version of what allegedly transpired, but only offered his legal conclusions. However, the Respondent in his Counter-Affidavit dated 11 June 2020, did in fact deny all the allegations of the Complainant and the testimony of the witnesses as falsehoods and fabrications. When the Respondent raised a question therein as to why the Complainant sustained no injury despite the allegations of a weapon being drawn and stones hurled, he meant to say that these things as narrated by the Witnesses of the Complainant did not happen and that there was no weapon drawn at all.
11. Prior to the alleged altercation and as reported by the Complainant in his Sinumpaang Salaysay, the Respondent just arrived riding a motorcycle,
“… biglang dumating si Micheal na sakay ng motor… na nilapitan ako, at nang makalapit sa akin, nakita ko ang hawak nyang balisong…”
However, Respondent denies having a fan-knife or “balisong” with him and was, at that time, only holding the key to his motorcycle. It is possible that because Rommel was startled, he mistook the key as a “balisong.” It also begs the question as to how near the two other Witnesses were when they saw that Michael was holding a bladed weapon because it is also possible that they mistook the shining, metallic key, that Michael was holding, as a knife.
Even the claims that Michael was throwing stones at Rommel is highly unlikely, because if the Respondent was holding a knife, he most probably would have been holding it in his dominant hand. With this posture, it is awkward and improbable to have to pick up stones to throw at a person you are chasing. And if indeed there was intent to kill, a bladed weapon would have been more effective in fatally injuring another person than it is to just throw stones aimed using your non-dominant hand.
12. In People v. Villanueva (GR No. 28201. 02 February 1928), the Supreme Court has decreed,
“Before the accused can be convicted of frustrated or attempted homicide, … the intention to take life must be proved with the same certainty as is required as to other elements of the offense; and the inference that such intention existed should not be drawn in the absence of circumstances sufficient to prove this fact beyond a reasonable doubt.”
If the circumstances do not point to proving the elements of the offense, then those doubts must be resolved in favour of the accused. If the intention to kill is to be surmised from the actions of the Respondent before the time of the alleged commission of the attack, during, and after; then there is no sufficient basis given by the Complainant. The lack of injuries on the Complainant’s body and the absence of the weapon used in the alleged attack, is more supportive of the fact that there was no intention to kill on the part of the Respondent than the allegation that intent was present.
On the Charge of Disobedience (Viol. Of Art. 151 of RPC)
13. The charge of Violation of Article 151 of the Revised Penal Code stems from the alleged actuations and behaviour of the Respondent when being arrested by the responding police officers as they had described in Paragraphs 4 and 5 of their Joint Affidavit,
“Upon arrival thereat, some of the witnesses pointed to us the person who started the commotion and caused the breakages (sic) of a back windshield of a Toyota Innova;
And at that juncture, we approached and held the suspect,…”
14. If indeed the Respondent did resist arrest and disobeyed the lawful orders of the police officers, then at this point in their affidavit, the police officers should have mentioned any disorderly behaviour of Michael Batara that seriously deterred them in carrying out their lawful orders. As can be deduced in the narration above, the police officers approached and then was able to successfully hold the respondent, thereafter, with no mention of any difficulty in placing him under arrest.
15. It was only in Paragraph No. 8 of the Joint Affidavit that the attesting police officers mention that the suspect resisted arrest but with no given details or circumstances as to how the Respondent acted to justify this allegation.
16. In Sydeco v. People (GR No. 202692, 12 November 2014), the Supreme Court reiterated the two (2) key elements of resistance and serious disobedience under Article 151 of the Revised Penal Code. These are:
a. That the person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; and
b. That the offender resists or seriously disobeys such person or his agent.
17. It is also important to note that Article 151 actually penalizes two (2) kinds of disobedience: Serious Disobedience and Simple Disobedience. The difference between the two lies in the gravity of the disobedience. What is serious, in turn, will depend on the circumstances surrounding the offense.
In Paragraph 8 of the Joint Affidavit of the Arresting Police Officers, allege that:
“That during his arrest, the suspect resisted arrest (sic) and while inside our police station, the suspect kept on shouting and provokes (sic) trouble.”
18. In the same case of Sydeco v. People, the Supreme Court had this to say on the manner of resisting arrest:
“Going over the records, it is fairly clear that what triggered the confrontational stand-off between the police team, on one hand, and the petitioner on the other, was the latter’s refusal to get off the vehicle for a body and vehicle search juxtaposed by his insistence on a plain view search. Petitioner’s twin gestures cannot plausibly be considered as resisting a lawful order. He may have sounded boorish or spoken crudely at that time, but none of this would make him a criminal (emphasis ours).”
19. In this instance, the Respondent might have struggled a bit while he was being placed under arrest but the police were successful in detaining him, even the Witnesses for the Complainant narrate the ease of how the Respondent was placed under arrest by the Responding Police Officers, as recounted by Witness Ryan xxx in Paragraph 6 of his Sinumpaang Salaysay,
“At ilang sandali pa ay dumating na ang mga pulis at dinala agad ito sa kanilang himpilan.”
20. The same can also be read in the account of Witness George xxx in Paragraph 6 of his Sinumpaang Salaysay, to wit:
“At ilang sandali pa ay dumating na ang mga pulis at dinala agad ito sa kanilang himpilan.”
21. Both Witnesses of the Complainant attested that when the police officers arrived at the scene, they were able to apprehend the Respondent quickly and in a short amount of time, enabling them to bring him to the Police Station immediately.
22. Granting he was noisy and unruly when he was inside the Police Station, would this behaviour amount to Simple Disobedience or Serious Disobedience on the part of Respondent? No. We go back to the pronouncement of the Supreme Court in Sydeco v. People, that even if the accused “sounded boorish or spoken crudely” this does not make him a criminal.
23. In Paragraph 11 of the Resolution, Sr. Asst. Prosecutor xxx stated,
“Respondent also claims that the bare allegations of the police of his unruliness do not support a violation of Art. 151 of the revised penal (sic) Code. We disagree. The police officers enjoy the presumption of regularity in the performance of their duties. It is incumbent upon respondent to disprove their allegation.”
24. The Respondent does not allege that there was irregularity in how the Arresting Officers performed their duties, rather what is being questioned is the presence of the 2nd element of the crime of disobedience, which is the actuations of the Respondent that is tantamount to a showing of serious or simple disobedience. The Joint Affidavit of the Police Officers who responded, do not sufficiently establish the disobedient acts of the Respondent, whether Simple or Serious.
Again, in Sydeco v. People, the Court underscored that:
“Conviction must come only after it survives the test of reason. It is thus required that every circumstance favouring one’s innocence be duly taken into account. … [t]he blind reliance and simplistic invocation by the trial court and the CA on the presumption of regularity in the conduct of police duty is misplaced. As stressed in People v. Ambrosio, the presumption of regularity is merely just that, a presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth. And to be sure, this presumption alone cannot preponderate over the presumption of innocence that prevails if not overcome by proof that obliterates all doubts as to the offender’s culpability. In the present case, the absence of conclusive proof… argues against or at least cast doubt on the finding of guilt for… resisting arrest.”
25. Lastly, to say that it is incumbent upon the Respondent to disprove the allegations of the Police Officers is in direct contrast to the very basic principle that the guilt of the Accused must be established on the strength of the evidence of the prosecution and not on the weakness of the defense. Since the allegations of the Police Officers is insufficient to establish that the Respondent committed Simple or Serious Disobedience, the charge for Violation of Article 151 of the Revised Penal Code, must fall on its face.
On the Charge of Malicious Mischief
26. Article 327 of the Revised Penal Code provides those who are liable for Malicious Mischief:
“ Any person who shall deliberately cause to the property of another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious mischief.”
Jurisprudence has also established the following elements of Malicious Mischief:
a. That the offender deliberately caused damage to the property of another;
b. That such act does not constitute arson or other crimes involving destruction; and
c. That the act damaging another’s property be committed merely for the sake of damaging it.
Malicious Mischief is characterized by its deliberativeness for the sake of causing damage due to hate, revenge or other evil motive (malice).
27. Art. 13 of the Revised Penal Code provides for the mitigating circumstances for felonies committed:
ARTICLE 13. Mitigating Circumstances. — The following are mitigating circumstances:
xxx-xxx-xxx
6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
To avail of this mitigating circumstance, accused must prove the following elements:
a. The accused acted upon an impulse.
b. The impulse must be so powerful that it naturally produced passion or obfuscation in him.
28. Meanwhile, it is established that the requisites for passion or obfuscation are:
a. That there be an act which is unlawful or unjust, and sufficient to produce such a condition of mind.
b. That said act which produces the obfuscation was not far removed from the commission of the crime by a considerable length of time during which the perpetrator might recover his normal equanimity.
c. The passion or obfuscation must arise from lawful sentiments.
29. In this case, what prompted our Respondent to seek out the Complainant was the fact that Rommel xxx was having an affair with his wife. And this has not just been for a while because Respondent had discovered a recorded conversation between his wife and Rommel, and has already heard rumours that the two were having an illicit relationship as evidenced by the Certificate of Police Blotter Excerpt dated 11 August 2019, (Annex “E”). While the Respondent was working hard in Manila as a construction worker, the Complainant was at work destroying the family of Respondent.
30. While Michael learned about the illicit affair on 11 August 2019, he never went to see the Complainant or confronted his wife, even if his children already confirmed his suspicions by divulging to him what they know of their mother’s relationship with the Complainant.
31. On the day of the alleged attack, all these emotions and confusion have escalated within the Respondent and he decided to confront the Complainant about ending the relationship with his wife. Talking for the sake of settling the issue is not illegal but a lawful pursuit that the Respondent was trying to seek with the Complainant.
32. When the Respondent went to where the Complainant was, he said that he just wanted to talk, “Rommel, mag-usap nga tayo.” However, the Complainant paid Michael no heed and instead brushed him off and walked away. This was the last straw that burst all the pent up emotions of a man who had been cheated on prompting him to chase the Complainant and in his failure to talk to him, turned his ire to the Complainant’s vehicle. All of these acts were done not out of malice or revenge but out of passion and obfuscation.
33. In the case of People vs. Oloverio (GR No. 211159, 18 March 2015), the Supreme Court decreed that:
“… [p]assion and obfuscation as a mitigating circumstance need not be felt only in the seconds before the commission of the crime. It may build up and strengthen over time until it can no longer be repressed and will ultimately motivate the commission of the crime.
There is no uniform rule on what constitutes "a considerable length of time." The provocation and the commission of the crime should not be so far apart that a reasonable length of time has passed during which the accused would have calmed down and be able to reflect on the consequences of his or her actions. What is important is that the accused has not yet "recovered his normal equanimity" when he committed the crime.”
In the present case, it can be gainsaid that the action of the Respondent in breaking the glass of the Complainant’s vehicle was a spur-of-the-moment decision. There was no deliberate or devious planning carried out to satisfy the allegation that the act was malicious.
34. It is ironic that in Paragraph 10 of the questioned Resolution, Sr. Asst. Prosecutor xxx asks:
“Could respondent have been motivated by love, reverence, decency, or civility, courtesy or politeness when he destroyed the car?”
We can answer, yes, the Respondent did it for love, that he did it to demand decency, civility, a sense of courtesy and politeness, and respect from the vehicle’s owner to stay in his own marriage and keep out of the Respondent’s. Also, smashing a window or a windshield is not really destroying a car. If indeed Respondent wanted the complete destruction of the vehicle, he should not have been satisfied with smashing one stone on the rear windshield of the vehicle.
35. In People v. Lobino (GR No. 123071, 28 October 1999), the Supreme Court opined:
"… [t]here is passional obfuscation when the crime was committed due to an uncontrollable burst of passion provoked by prior unjust or improper acts, or due to a legitimate stimulus so powerful as to overcome reason."
This passional obfuscation clearly overtook Michael, prompting him to utter the words “UKINAM KO DYABLU! PATAYAN TAKA!” at Complainant when he snubbed him. This obfuscation was still clear all throughout the confrontation until the time that he was able to release his pent-up passions when he threw the rock at the Complainant’s rear windshield. He was overcome with indignation when he was ignored by the Complainant causing him to lose reason and self-control.
36. Since Malicious Mischief is characterized by its deliberativeness for the sake of causing damage due to hate, revenge or other evil motive (malice), it can be gainsaid that when Michael threw a stone at the rear glass panel of the Complainant’s vehicle, it was a spur-of-the-moment and knee-jerk reaction. There was no element of deliberativeness.
37. Who would not be overwhelmed by pent-up emotions in this situation? Any man who would want to keep his family together would. Any man who would not want for his children to grow without a mother would. The person who had disrespected you, your wife, your marriage and your family is standing right in front of you - who is so arrogant as to not even acknowledge your presence - who would not be overcome with passion if unable to vent out your frustrations to the person responsible for the trouble in your marriage?
If one is deprived of reason and logic is clouded by obfuscation, then the element of conscious deliberativeness, cannot be present; and lacking this essential element, the allegations cannot satisfy the charge of Malicious Mischief.
On the Absence of a Formal Complaint Attached to the Subpoena
38. Republic Act 5180 (as amended by PD 911) also known as An Act Prescribing a Uniform System of Preliminary Investigation by Provincial and City Fiscals and their Assistants, and by State Attorneys or their Assistants, require of Prosecutors that:
“To such subpoena shall be attached a copy of the complaint, the sworn statements and other documents submitted.”
It must be signified that there was no formal Complaint attached to the Subpoena to the Respondent dated 03 June 2020. Only the following documents were attached:
i. Request for Preliminary Investigation and Waiver of Article 135 of the RPC dated 03 June 2020;
ii. Investigation Data Form dated 03 June 2020;
iii. Sinumpaang Salaysay dated 03 June 2020 of Rommel Taccad;
iv. Sinumpaang Salaysay dated 03 June 2020 of Ryan Battung;
v. Sinumpaang Salaysay dated 03 June 2020 of George Bangayan;
vi. Joint Affidavit dated 03 June 2020 of PMSg Phillip Palattao and PAT Jovie Paul Calagui;
vii. Certificate of Police Blotter Entry dated 02 June 2020;
viii. Photocopy of Undated Pictures of Windshield with Damage and Vehicle Plate Number; and
ix. Quotation from NP Baccay Glass and Aluminum Supply dated 03 June 2020.
39. Suffice it to say, the Sinumpaang Salaysay of the Complainant, that of his Witnesses, and the Joint Affidavit of the Police Officers, do not equal a formal Complaint that must include the following matters as provided for in Section 6 and 7 of the National Prosecution Service Manual:
Sec. 6. Sufficiency of complaint or information. – A complaint or information shall be considered sufficient if it states:
a) the name of the accused;
b) the designation of the offense committed;
c) the act or omission complained of;
d) the name of the offended party;
e) the approximate time of the commission of the offense; and
f) the place where the offense was committed.
Sec. 7. Other essential matters to be alleged in complaint or information. – The following shall also be alleged in a complaint or information:
a) every essential element of the offense;
b) the criminal intent of the accused and its relation to the act or omission complained of…
It is through a proper Complaint where the Respondent is apprised of the charges against him and afford him the opportunity to properly put in issue all the allegations against him.
The Respondent was only able to prepare his written defences based on the caption of the Subpoena and Resolution, as well as the allegations of the Complainant and his Witnesses and the Joint Affidavit of the responding Police Officers.
40. WHEREFORE, premises considered and in the interest of justice, the Respondent respectfully prays that the questioned Resolution dated 09 September 2020, be set aside and that the charges for Attempted Homicide, Violation of Art. 151 of the Revised Penal Code, and Malicious Mischief be all dismissed;
41. The Respondent also respectfully prays for such other reliefs as may be deemed just and equitable in the premises.
Signed this 1st day of October, 2020 in xxx City, xxx Province.
By:
ATTY. xxxx
IBP No. xxx/January 8, 2020/xxx
PTR No. xxx/January 3, 2020/xxx
SC Roll of Attorneys No. xxx
MCLE Certificate to follow.
Attended February xxx, UP Law Center
Cc: Via Registered Mail
xxx Police Station
Rommel xxx
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