Less grave offense

Treachery is a circumstance which aggravates the killing of a person to the crime of murder instead of homicide. It must be proven as thoroughly as the crime itself. Another aggravating circumstance which likewise qualifies the killing as murder is abuse of superior strength. But if there is treachery, can abuse of superior strength be still considered as an aggravating circumstance. These are the issues resolved in this case of Jun (not his true name).

Jun is one of the teenagers who hang around the streets in his neighborhood together with other gangmates. As shown by his tattoo marks at his back, Jun had been a member of the “Oxo” gang for one year already.  Also residing in the area is Eric, a fine arts student who is working as a house painter to support his schooling.

The case arose from an incident along a street corner one morning between six and seven o’clock when Eric was stabbed that penetrated his heart. Later on he died at the hospital. A post mortem examination of his cadaver, declared that the assailant must have come from behind – “moving a little forward to the left side of the victim.”

After the necessary preliminary investigation, an Information for murder was filed against Jun and four of his companions as “John Does” based mainly on the investigation report of Sgt. Mendoza, the investigating officer and the two eye-witnesses, Rudy and Nardo who were standing at the street corner when the incident happened.

So at the trial, the prosecution presented Sgt. Mendoza who reiterated that the incident is part of the initiation rite of the “Sigue-Sigue” and “Oxo” gangs as reported to him. Rudy and Nardo also testified and declared that they noticed many people running. Rudy said that he saw Jun coming from the street holding a knife and chasing Eric followed by four companions. Then he saw Jun caught up with Eric and stabbed the latter at the back as his four companions clapped. Nardo did not see the actual stabbing as he was three steps behind Rudy lighting a cigarette. He only saw the accused Jun holding a blood stained knife still chasing Eric who was running and whose clothes were already smeared with blood. He also heard Eric cried out “bakit ninyo ako sinaksak wala naman akong kasalanan” after which the other persons chasing him clapped. Rudy and Nardo did not know what transpired afterwards because they were frightened at what they had seen so they just fled and proceeded to their places of work. They just learned later that the victim died as a result of the stab wound.

The accused Jun interposed the defense of alibi and claimed that, at the time of the alleged incident, he was vacationing at his grandmother’s house in a Bicol province and stayed there continuously up to three months later. His mother corroborated his testimony.

After trial, the lower court found Jun guilty of murder and sentenced him to death. Said court held that the aggravating circumstance of treachery and abuse of superior strength were present in the commission of the felony.

On automatic review by the Supreme Court counsel de officio for the accused does not deny that it was the accused who killed the victim. But he contends that there is no sufficient evidence to establish that the killing of the victim was attended by treachery and abuse of superior strength.

The Supreme Court said that there is really no treachery and abuse of superior strength. According to the Supreme Court the testimony of Sgt. Mendoza that this incident is part of the initiation rite is hearsay and inadmissible as evidence. The SC also said that treachery is not presumed. It must be proven thoroughly as the crime itself. There is treachery when the offender employs means, methods or form in the killing of a person which directly and specifically ensure its execution without risk to himself arising from the defense that the offended party might make. If there is treachery, there is no abuse of superior strength because it is already part of and absorbed by treachery, said the Supreme Court.

In this case, as narrated by the two witnesses, it cannot be rightfully said that the means employed by Jun and his companions insured the execution of the killing without risk to themselves. Even if Jun and his companion had pursued Eric, it does not mean there is treachery because Eric could have turned around and attack them. The wounds in the back and the shoulders of Eric alone are not likewise sufficient to legally establish treachery because there is still no proof that the aggressor was not exposed to any risk arising from the defense of the offended party. The two witnesses merely testified as to how Jun and his companion chased Eric and stabbed him at the back when they had caught up with him. Neither one of them witnessed the beginning of the aggression. Since to all appearances, the aggression was continuous until the consummation of the deed, treachery cannot be properly appreciated.

There is also no abuse of superior strength. Abuse of superior strength means the use of excessive force out of proportion to the means of defense available to the person attacked. The mere fact that the accused had four companions and was thus superior in number is not sufficient to show abuse. The participation of Jun’s four companions was confined to applauding his act without the use of force.

Jun’s alibi is also unworthy of credence because of the clear positive and convincing testimony of two witnesses as to his identity.

So the crime committed by Jun is homicide only since there are no qualifying circumstances attending its commission. He is sentenced to suffer imprisonment of 10 years minimum to 15 years maximum with indemnity of P12,000 and moral and exemplary damages indemnity of P20,000 respectively. (Pp. v. Martinez, G.R. No. L-31755 March 31, 1980).

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