Presence of Treachery in Murder, not in Homicide

FACTS: 

The accused A was charged of murder for stabbing B and the RTC sentenced B guilty of murder. One of the issues presented was whether or not the prosecution was able to establish beyond reasonable doubt the presence of treachery in killing B. As testified by eyewitnesses, A and B were drinking liquor in front of house of A. After drinking so much there was an argument between A and B and B went home to his house and returned to the place where they were drinking carrying with him a sharp bolo. When A came back, B was urinating on the dike of the fishpond near his house. A stabbed the victim B and hit him on his left chest as a result of the injury, B died. 

ISSUES: 

1. Was there treachery?
2. What is the crime committed by A? Murder or homicide? 

ANSWER: 

1.         Citing People vs Cayabyab (GR. No. 123073, June 19, 1997), for treachery to be present, two conditions must concur:  (1) employment of means of execution that give the person attacked no opportunity to defend himself, much less retaliate; and (2) conscious and deliberate adoption of the means of execution. More importantly, treachery must be based on some positive, conclusive proof and not only upon hypothetical facts or on mere supposition or presumption. It must be proved as cogently as the killing itself.

            In the above mentioned facts, there was nothing stated that the accused attacked the victim from behind or whether the attack was unexpected, catching the victim totally unaware of the coming peril. There is indeed reasonable doubt on the presence of alevosia. 

2.         Article 248 and 249 of the Revised Penal Code of the Philippines states that: 

Art. 248. Murder. — Any person who, not falling within the provisions of Article 246[1] shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:

1. 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.

2. In consideration of a price, reward, or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

Art. 249. Homicide. — Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

             Therefore, the crime committed by accused was only homicide, not murder.

---

[1] Art. 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.

Submitted to Judge Meneses, February 27, 2009.