188 SUPREME COURT REPORTS ANNOTATED

Rivera vs. People

*
G.R. No. 166326. January 25, 2006.

ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO

RIVERA, petitioners, vs. PEOPLE OF THE PHILIPPINES,
respondent.

Criminal Law; Murder; Homicide; An essential element of murder and

homicide, whether in their consummated, frustrated or attempted stage, is
intent of the offenders to kill the victim immediately before or
simultaneously with the infliction of injuries.—An

_______________

* FIRST DIVISION.

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Rivera vs. People

essential element of murder and homicide, whether in their consummated,

frustrated or attempted stage, is intent of the offenders to kill the victim
immediately before or simultaneously with the infliction of injuries. Intent
to kill is a specific intent which the prosecution must prove by direct or
circumstantial evidence, while general criminal intent is presumed from the
commission of a felony by dolo.
Same; Same; Same; If the victim dies as a result of a deliberate act of
the malefactors, intent to kill is presumed.—In People v. Delim, 396 SCRA
386 (2003), the Court declared that evidence to prove intent to kill in crimes
against persons may consist, inter alia, in the means used by the
malefactors, the nature, location and number of wounds sustained by the
victim, the conduct of the malefactors before, at the time, or immediately
after the killing of the victim, the circumstances under which the crime was
committed and the motives of the accused. If the victim dies as a result of a
deliberate act of the malefactors, intent to kill is presumed.
Same; Attempted Felony; Essential elements of an attempted felony;
Elements of the first requisite of an attempted felony.—The essential
elements of an attempted felony are as follows: 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 be 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. The first requisite of an attempted felony
consists of two elements, namely: (1) That there be external acts; (2) Such
external acts have direct connection with the crime intended to be
committed.
Same; Same; Concept of an overt or external act elaborated in People
vs. Lizada, 396 SCRA 62 (2003).—The Court in People v. Lizada, 396
SCRA 62 (2003), elaborated on the concept of an overt or external act, thus:
An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles
nor by the spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison d’etre for the law
requiring a direct overt

190

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Rivera vs. People

act is that, in a majority of cases, the conduct of the accused consisting

merely of acts of preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one which may be
said to be a commencement of the commission of the crime, or an overt act
or before any fragment of the crime itself has been committed, and this is so
for the reason that so long as the equivocal quality remains, no one can say
with certainty what the intent of the accused is. It is necessary that the overt
act should have been the ultimate step towards the consummation of the
design. It is sufficient if it was the “first or some subsequent step in a direct
movement towards the commission of the offense after the preparations are
made.” The act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must have a causal
relation to the intended crime. In the words of Viada, the overt acts must
have an immediate and necessary relation to the offense.
 Same; Treachery; Even if the attack is frontal but is sudden and
unexpected, giving no opportunity for the victim to repel it or defend
himself, there would be treachery.—We reject petitioners’ contention that
the prosecution failed to prove treachery in the commission of the felony.
Petitioners attacked the victim in a sudden and unexpected manner as Ruben
was walking with his three-year-old daughter, impervious of the imminent
peril to his life. He had no chance to defend himself and retaliate. He was
overwhelmed by the synchronized assault of the three siblings. The essence
of treachery is the sudden and unexpected attack on the victim. Even if the
attack is frontal but is sudden and unexpected, giving no opportunity for the
victim to repel it or defend himself, there would be treachery.

PETITION for review on certiorari of a decision of the Regional

Trial Court of Cavite, Br. 90.
The facts are stated in the opinion of the Court.
     Dioscoro P. Timtiman, Jr. for petitioner.
     The Solicitor General for the People.

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Rivera vs. People

CALLEJO, SR., J.:

1
This is a petition for review of the Decision of the Court of Appeals
(CA) in 2CA-G.R. CR No. 27215 affirming, with modification, the
Decision of the Regional Trial Court (RTC) of Cavite, Branch 90, in
Criminal Case No. 6962-99, entitled People of the Philippines. v.
Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus,
Cavite, charging Esmeraldo, Ismael and Edgardo, all surnamed
Rivera, of attempted murder. The accusatory portion of the
Information reads:

“That on or about the 3rd day of May 1998, in the Municipality of

Dasmariñas, Province of Cavite, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring, confederating
and mutually helping one another, with intent to kill, with treachery and
evident premeditation, did then and there, wilfully, unlawfully, and
feloniously attack, assault and hit with a piece of hollow block, one RUBEN
RODIL who thereby sustained a non-mortal injury on his head and on the
different parts of his body, the accused thus commenced the commission of
the felony directly by overt acts, but failed to perform all the acts of
execution which would produce the crime of Murder by reason of some
causes other than their own spontaneous desistance, that is, the said Ruben
Rodil was able to ran (sic) away and the timely response of the policemen,
to his damage and prejudice.
3
 3
CONTRARY TO LAW.”

Ruben Rodil testified that he used to work as a taxi driver. He

stopped driving in April 1998 after a would-be rapist threatened his
life. He was even given a citation as a Bayaning Pilipino by the
television network ABS-CBN for saving the would-be victim. His
wife eked out a living as a mani-

_______________

1 Penned by Associate Justice Portia Aliño-Hormachuelos (Chairman), with

Associate Justices Danilo B. Pine and Fernanda Lampas Peralta, concurring; Rollo,
pp. 17-29.
2 Penned by Judge Dolores L. Español; CA Rollo, pp. 15-19.
3 Records, p. 1.

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Rivera vs. People

curist. They and their three children resided in Barangay San Isidro
Labrador II, Dasmariñas, Cavite, near the house of Esmeraldo
Rivera and his brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy
food. Edgardo mocked him for being jobless and dependent on his
wife for support. Ruben resented the rebuke and hurled invectives at
Edgardo. A heated exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the
store to buy food and to look for his wife. His three-year-old
daughter was with him. Momentarily, Esmeraldo and his two
brothers, Ismael and Edgardo, emerged from their house and ganged
up on Ruben. Esmeraldo and Ismael mauled Ruben with fist blows
and he fell to the ground. In that helpless position, Edgardo hit
Ruben three times with a hollow block on the parietal area.
Esmeraldo and Ismael continued mauling Ruben. People who saw
the incident shouted: “Awatin sila! Awatin sila!” Ruben felt dizzy
but managed to stand up. Ismael threw a stone at him, hitting him at
the back. When policemen on board a mobile car arrived,
Esmeraldo, Ismael and Edgardo fled to their house.
Ruben was brought to the hospital. His attending physician, Dr.
Lamberto Cagingin, Jr., signed a medical certificate in which he
declared that Ruben sustained lacerated wounds on the parietal area,
cerebral concussion or contusion, hematoma on the left upper
buttocks, multiple
4
abrasions on the left shoulder and hematoma
periorbital left. The doctor declared that the lacerated wound in the
parietal area was slight and superficial and would heal from one to

5
 5
seven days. The doctor prescribed medicine
6
for Ruben’s back pain,
which he had to take for one month.

_______________

4 Exhibits “B” and “B-1,” Records, p. 9.

5 Id.
6 TSN, June 19, 2000, p. 29.

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Rivera vs. People

Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben

arrived at his house and banged the gate. Ruben challenged him and
his brothers to come out and fight. When he went out of the house
and talked to Ruben, the latter punched him. They wrestled with
each other. He fell to the ground. Edgardo arrived and pushed Ruben
aside. His wife arrived, and he was pulled away and brought to their
house.
For his part, Ismael testified that he tried to pacify Ruben and his
brother Esmeraldo, but Ruben grabbed him by the hair. He managed
to free himself from Ruben and the latter fled. He went home
afterwards. He did not see his brother Edgardo at the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was
throwing garbage in front of their house. Ruben arrived and he went
inside the house to avoid a confrontation. Ruben banged the gate and
ordered him to get out of their house and even threatened to shoot
him. His brother Esmeraldo went out of their house and asked
Ruben what the problem was. A fist fight ensued. Edgardo rushed
out of the house and pushed Ruben aside. Ruben fell to the ground.
When he stood up, he pulled at Edgardo’s 7
shirt and hair, and, in the
process, Ruben’s head hit the lamp post.
On August 30, 2002, the trial court rendered judgment finding all
the accused guilty beyond reasonable doubt of frustrated murder.
The dispositive portion of the decision reads:

“WHEREFORE, premises considered, all the accused are found GUILTY

beyond reasonable doubt and are sentenced to an imprisonment of six (6)
years and one (1) day to eight (8) years of prision mayor as the prosecution
has proved beyond reasonable doubt the culpability of the accused.
Likewise, the accused are to pay, jointly and severally, civil indemnity to the
private complainant in the amount of P30,000.00.

_______________

7 TSN, September 24, 2001, pp. 2-18.

 194

194 SUPREME COURT REPORTS ANNOTATED

Rivera vs. People

8
SO ORDERED.”

The trial court gave no credence to the collective testimonies of the

accused and their witnesses. The accused appealed to the CA, which
rendered judgment on June 8, 2004 affirming, with modification, the
appealed decision. The dispositive portion of the CA decision reads:

“WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite,

Branch 90, is MODIFIED in that the appellants are convicted of
ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2
years of prision correccional as minimum to 6 years and 1 day of prision
mayor as maximum. In all other respects, the decision appealed from is
AFFIRMED.
9
SO ORDERED.”

The accused, now petitioners, filed the instant petition for review on
certiorari, alleging that the CA erred in affirming the RTC decision.
They insist that the prosecution failed to prove that they had the
intention to kill Ruben when they mauled and hit him with a hollow
block. Petitioners aver that, based on the testimony of Dr. Cagingin,
Ruben sustained only a superficial wound in the parietal area; hence,
they should be held criminally liable for physical injuries only. Even
if petitioners had the intent to kill Ruben, the prosecution failed to
prove treachery; hence, they should be held guilty only of attempted
homicide.
On the other hand, the CA held that the prosecution was able to
prove petitioners’ intent to kill Ruben:

“On the first assigned error, intent to kill may be deduced from the nature of
the wound inflicted and the kind of weapon used. Intent to kill was
established by victim Ruben Rodil in his testimony as follows:

_______________

8 Records, p. 257.
9 CA Rollo, p. 136.

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VOL. 480, JANUARY 25, 2006 195

Rivera vs. People

Q: And while you were being boxed by Esmeraldo and Bong, what
 happened next?
A: When I was already lying [down] x x x, Dagol Rivera showed up with a
piece of hollow block x x x and hit me thrice on the head, Sir.
Q: And what about the two (2), what were they doing when you were hit
with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing me while
Dagol was hitting, Sir.

As earlier stated by Dr. Cagingin, appellants could have killed the victim
had the hollow block directly hit his head, and had the police not promptly
intervened so that the brothers scampered away. When a wound is not
sufficient to cause death, but intent to kill is evident, the crime is attempted.
Intent to kill was shown by the fact that the (3) brothers helped each other
maul the defenseless victim, and even after he had already fallen to the
ground; that one of them even picked up a cement hollow block and
proceeded to hit the victim on the head with it three times; and that it was
only the arrival of the policemen that made the appellants desist from their
10
concerted act of trying to kill Ruben Rodil.”

The Office of the Solicitor General (OSG), for its part, asserts that
the decision of the CA is correct, thus:

“The evidence and testimonies of the prosecution witnesses defeat the

presumption of innocence raised by petitioners. The crime has been clearly
established with petitioners as the perpetrators. Their intent to kill is very
evident and was established beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly
and categorically declared that the victim Ruben Rodil was walking along
St. Peter Avenue when he was suddenly boxed by Esmeraldo “Baby”
Rivera. They further narrated that, soon thereafter, his two brothers Ismael
and Edgardo “Dagul” Rivera, coming from St. Peter II, ganged up on the
victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw
Edgardo “Dagul” Rivera pick up a hollow block and hit Ruben Rodil with it
three (3) times. A

_______________

10 Rollo, pp. 25-26.

196

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Rivera vs. People

careful review of their testimonies revealed the suddenness and

unexpectedness of the attack of petitioners. In this case, the victim did not
even have the slightest warning of the danger that lay ahead as he was
carrying his three-year old daughter. He was caught off-guard by the assault
of Esmeraldo “Baby” Rivera and the simultaneous attack of the two other
petitioners. It was also established that the victim was hit by Edgardo
“Dagul” Rivera, while he was lying on the ground and being mauled by the
other petitioners. Petitioners could have killed the victim had he not
managed to escape and had the police not promptly intervened.
Petitioners also draw attention to the fact that the injury sustained by the
victim was superficial and, thus, not life threatening. The nature of the
injury does not negate the intent to kill. The Court of Appeals held:

‘As earlier stated by Dr. Cagingin, appellants could have killed the victim had the
hollow block directly hit his head, and had the police not promptly intervened so that
the brothers scampered away. When a wound is not sufficient to cause death, but
intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact
that the three (3) brothers helped each other maul the defenseless victim, and even
after he had already fallen to the ground; that one of them picked up a cement hollow
block and proceeded to hit the victim on the head with it three times; and that it was
only the arrival of the policemen that made the appellants desist from their concerted
11
act of trying to kill Ruben Rodil.’ ”

The petition is denied for lack of merit.

An essential element of murder and homicide, whether in their
consummated, frustrated or attempted stage, is intent of the
offenders to kill the victim immediately before or simultaneously
with the infliction of injuries. Intent to kill is a specific intent which
the prosecution must prove by direct or circumstantial evidence,
while general criminal intent is presumed from the commission of a
felony by dolo.

_______________

11 Id., at pp. 70-71.

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Rivera vs. People

12
In People v. Delim, the Court declared that evidence to prove intent
to kill in crimes against persons may consist, inter alia, in the means
used by the malefactors, the nature, location and number of wounds
sustained by the victim, the conduct of the malefactors before, at the
time, or immediately after the killing of the victim, the
circumstances under which the crime was committed and the
motives of the accused. If the victim dies as a result of a deliberate
act of the malefactors, intent to kill is presumed.
In the present case, the prosecution mustered the requisite
quantum of evidence to prove the intent of petitioners to kill Ruben.
Esmeraldo and Ismael pummeled the victim with fist blows. Even as
Ruben fell to the ground, unable to defend himself against the
sudden and sustained assault of petitioners, Edgardo hit him three
times with a hollow block. Edgardo tried to hit Ruben on the head,
missed, but still managed to hit the victim only in the parietal area,
resulting in a lacerated wound and cerebral contusions.
That the head wounds sustained by the victim were merely
superficial and could not have produced his death does not negate
petitioners’ criminal liability for attempted murder. Even if Edgardo
did not hit the victim squarely on the head, petitioners are still
criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code defines
an attempt to commit a felony, thus:

“There is an attempt when the offender commences the commission of a

felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.”

The essential elements of an attempted felony are as follows:

_______________

12 G.R. No. 142773, January 28, 2003, 444 Phil. 430, 450; 396 SCRA 386, 400
(2003).

198

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Rivera vs. People

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 be not stopped by his own spontaneous
desistance;
4. The non-performance of all acts of execution was due13 to
cause or accident other than his spontaneous desistance.

The first requisite of an attempted felony consists of two elements,

namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime
14
intended to be committed.
15
The Court in People v. Lizada elaborated on the concept of an overt
or external act, thus:
“An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles
nor by the spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison d’etre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of the
accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is
that quality of being equivocal that must be lacking before the act becomes
one which may be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what

_______________

13 People v. Lizada, G.R. Nos. 143468-71, January 24, 2003, 444 Phil. 67; 396
SCRA 62 (2003).
14 Reyes, Revised Penal Code, 1981, Vol. I, p. 98.
15 Supra at note 13.

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Rivera vs. People

the intent of the accused is. It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is
sufficient if it was the “first or some subsequent step in a direct movement
towards the commission of the offense after the preparations are made.” The
act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the
intended crime. In the words of Viada, the overt acts must have an
16
immediate and necessary relation to the offense.”

In the case at bar, petitioners, who acted in concert, commenced the

felony of murder by mauling the victim and hitting him three times
with a hollow block; they narrowly missed hitting the middle portion
of his head. If Edgardo had done so, Ruben would surely have died.
We reject petitioners’ contention that the prosecution failed to
prove treachery in the commission of the felony. Petitioners attacked
the victim in a sudden and unexpected manner as Ruben was
walking with his three-year-old daughter, impervious of the
imminent peril to his life. He had no chance to defend himself and
retaliate. He was overwhelmed by the synchronized assault of the
three siblings. The essence of 17
treachery is the sudden and
unexpected attack on the victim. Even if the attack is frontal but is
sudden and unexpected, giving no opportunity for the victim to repel
18
it or defend himself, there would be treachery. Obviously,
petitioners assaulted the victim because of the altercation between
him and petitioner Edgardo Rivera a day before. There being
conspiracy by and among petitioners, treachery is considered against
19
all of them.

_______________

16 Id., at pp. 98-99; pp. 94-95.

17 People v. Gutierrez, G.R. No. 142905, March 18, 2002, 429 Phil. 124, 126; 379
SCRA 395, 406 (2002).
18 People v. Coscos, G.R. No. 132321, January 21, 2002, 424 Phil. 886, 903; 374
SCRA 138, 153 (2002).
19 People v. Sullano, G.R. No. 125896, May 11, 2000, 387 Phil. 668, 682; 331
SCRA 649, 661 (2000).

200

200 SUPREME COURT REPORTS ANNOTATED

Rivera vs. People

The appellate court sentenced petitioners to suffer an indeterminate

penalty of two (2) years of prision correccional in its minimum
period, as minimum, to six years and one day of prision mayor in its
maximum period, as maximum. This is erroneous. Under Article
248 of the Revised Penal Code, as amended by Republic Act No.
7659, the penalty for murder is reclusion perpetua to death. Since
petitioners are guilty only of attempted murder, the penalty should
be reduced by two degrees, conformably to Article 51 of the Revised
Penal Code. Under paragraph 2 of Article 61, in relation to Article
71 of the Revised Penal Code, such a penalty is prision mayor. In
the absence of any modifying circumstance in the commission of the
felony (other than the qualifying circumstance of treachery), the
maximum of the indeterminate penalty shall be taken from the
medium period of prision mayor which has a range of from eight (8)
years and one (1) day to ten (10) years. To determine the minimum
of the indeterminate penalty, the penalty of prision mayor should be
reduced by one degree, prision correccional, which has a range of
six (6) months and one (1) day to six (6) years.
Hence, petitioners should be sentenced to suffer an indeterminate
penalty of from two (2) years of prision correccional in its minimum
period, as minimum, to nine (9) years and four (4) months of prision
mayor in its medium period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED
for lack of merit. The Decision of the Court of Appeals is
AFFIRMED WITH THE MODIFICATION that petitioners are
sentenced to suffer an indeterminate penalty of from two (2) years of
 prision correccional in its minimum period, as minimum, to nine (9)
years and four (4) months of prision mayor in its medium period, as
maximum. No costs.
SO ORDERED.

     Panganiban (C.J., Chairperson), Ynares-Santiago, Austria-

Martinez and Chico-Nazario, JJ., concur.

201

VOL. 480, JANUARY 27, 2006 201

Foronda vs. Guerrero

Petition denied, judgment affirmed with modification.

Note.—Intent to kill may be deduced from the nature of the

wound inflicted and the kind of weapon used. (People vs. Gonza,
415 SCRA 507 [2003])

——o0o——

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