Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 198400

October 7, 2013

FE ABELLA y PERPETUA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
REYES, J.:
This is a Petition for Review on Certiorari1 from the Decision2 and Resolution3 dated October 26,
2010 and August 11, 2011, respectively, of the Court of Appeals CA) in CA-G.R. CR No. 00336-MIN
affirming with modifications the conviction4 by the Regional Trial Court RTC) of Misamis Oriental,
Cagayan de Oro City, Branch 39 of Fe Abella y Perpetua petitioner) for the crime of frustrated
homicide committed against his younger brother, Benigno Abella Benigno). The RTC sentenced the
petitioner to suffer an indeterminate penalty of six 6) years and one 1) day to eight 8) years of prision
mayor as minimum, to ten 10) years and one 1) day to twelve 12) years of prision mayor as
maximum, and to pay Benigno P100,000.00 as consequential damages, P10,000.00 for the medical
expenses he incurred, plus the costs of suit.5 The CA concurred with the RTCs factual findings.
However, the CA modified the penalty imposed to six (6) months and one (1) day to six (6) years of
prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its medium
period as maximum. The CA also deleted the RTCs award in favor of Benigno of (a) P10,000.00 as
actual damages corresponding to the medical expenses allegedly incurred; and (b) P100,000.00 as
consequential damages. In lieu of the preceding, the CA ordered the petitioner to pay
Benigno P30,000.00 as moral damages and P10,000.00 as temperate damages.6
Antecedent Facts
On October 7, 1998, the petitioner, who at times worked as a farmer, baker and trisicad driver, was
charged with frustrated homicide in an Information7 which reads:
That on or about September 6, 1998, at 11:00 oclock in the evening, more or less, at Sitio Puli,
Canitoan, Cagayan de Oro City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without any justifiable cause, did then and there willfully, unlawfully and
feloniously and with intent to kill, attack, assault, harm and hack one, BENIGNO ABELLA y
PERPETUA, with the use of a scythe, hitting the latters neck, thereby inflicting the injury described
below, to wit:
hacking wound left lateral aspect neck; and
incised wound left hand dorsal aspect thus performing all the acts of execution which would
produce the crime of homicide as a consequence, but nevertheless, did not produce it by
reason of some cause or causes independent of the will of the accused, that is the timely
and able intervention of the medical attendance rendered to the said victim.

Contrary to Article 249 in relation to 250 of the RPC.8

After the Information was filed, the petitioner remained at large and was only arrested by agents of
the National Bureau of Investigation on October 7, 2002. 9
During the arraignment, the petitioner pleaded not guilty to the crime charged. Pre-trial and trial thus
proceeded.
The Prosecution offered the testimonies of: (a) Benigno;10 (b) Amelita Abella11 (Amelita), Benignos
wife; (c) Alejandro Tayrus12 (Alejandro), with whom the petitioner had a quarrel; and (d) Dr. Roberto
Ardiente13 (Dr. Ardiente), a surgeon from J.R. Borja Memorial Hospital, Cagayan de Oro City, who
rendered medical assistance to Benigno after the latter was hacked by the petitioner.
The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno
was watching television in his house. A certain Roger Laranjo arrived and asked Benigno to pacify
the petitioner, who was stirring trouble in a nearby store. Benigno and Amelita found the petitioner
fighting with Alejandro and a certain Dionisio Ybaes (Dionisio). Benigno was able to convince the
petitioner to go home. Benigno and Amelita followed suit and along the way, they dropped by the
houses of Alejandro and Dionisio to apologize for the petitioners conduct.
Benigno and Amelita were in Alejandros house when the petitioner arrived bringing with him two
scythes, one in each of his hands. Benigno instructed Alejandro and Dionisio to run away and the
latter two complied. The petitioner wanted to enter Alejandros house, but Benigno blocked his way
and asked him not to proceed. The petitioner then pointed the scythe, which he held in his left hand,
in the direction of Benignos stomach, while the scythe in the right hand was used to hack the latters
neck once.14 Benigno fell to the ground and was immediately taken to the hospital 15 while the
petitioner ran to chase Alejandro.16 Benigno incurred an expense of more than P10,000.00 for
hospitalization, but lost the receipts of his bills.17 He further claimed that after the hacking incident, he
could no longer move his left hand and was thus deprived of his capacity to earn a living as a
carpenter.18
Dr. Ardiente testified that Benigno sustained: (a) a "hacking wound left lateral aspect neck 11 cm";
and (b) an "incised wound left hand dorsal aspect 4 cm".19 Benigno was initially confined in the
hospital on September 6, 1998 and was discharged on September 23, 1998. 20 From Dr. Ardientes
recollection, since the scythe used in the hacking was not sterile, complications and infections could
have developed from the big and open wounds sustained by Benigno, but fortunately did not. 21
The defense offered the testimonies of: (a) the petitioner;22 (b) Fernando Fernandez23 (Fernando), a
friend of the petitioner; and (c) Urbano Cabag24 (Urbano).
The petitioner relied on denial and alibi as defenses. He claimed that from September 2, 1998 to
October 2002, he and his family resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan,
Cagayan de Oro City, where the hacking incident occurred, is about four (4) hours drive away.
Fernando testified that on September 6, 1998, he saw the petitioner gathering woods to make a
hut.25 Later in the evening, at around 5:00 p.m., Urbano spotted the petitioner drinking tuba in the
store of Clarita Perpetua.26
The RTC Ruling

On July 13, 2006, the RTC convicted the petitioner of the crime charged. The fallo of the
Judgment27 reads:
WHEREFORE, in view of the foregoing and finding the evidence presented by the prosecution
sufficient to prove the guilt of the [petitioner] beyond reasonable doubt, judgment is rendered finding
petitioner Fe Abella GUILTY beyond reasonable doubt of the crime of Frustrated Homicide as
defined and penalized by Article 249 in relation to Article 50 and Art. 6 of the Revised Penal Code.
Accordingly, petitioner Fe Abella is hereby sentenced to suffer an indeterminate penalty of Six (6)
years and One (1) day to Eight (8) years of prision mayor as minimum to Ten (10) years and One (1)
day to Twelve (12) years of prision mayor as maximum; to indemnify offended-party complainant
Benigno Abella the sum of Ten Thousand ([P]10,000.00) Pesos for the medical expenses incurred; to
pay the sum of ONE HUNDRED THOUSAND ([P]100,000.00) PESOS as consequential damages
and to pay the costs.
SO ORDERED.28
The RTC found the petitioners defenses of alibi and denial as weak. No disinterested witnesses
were presented to corroborate the petitioners claim that he was nowhere at the scene of the hacking
incident on September 6, 1998. Fernando and Urbanos testimonies were riddled with
inconsistencies. The RTC accorded more credence to the averments of the prosecution witnesses,
who, without any ill motives to testify against the petitioner, positively, categorically and consistently
pointed at the latter as the perpetrator of the crime. Besides, medical records show that Benigno
sustained a wound in his neck and his scar was visible when he testified during the trial.
The RTC awarded P10,000.00 as actual damages to Benigno for the medical expenses he incurred
despite the prosecutions failure to offer receipts as evidence. The petitioner was likewise ordered to
pay P100,000.00 as consequential damages, but the RTC did not explicitly lay down the basis for
the award.
The petitioner then filed an appeal29 before the CA primarily anchored on the claim that the
prosecution failed to prove by clear and convincing evidence the existence of intent to kill which
accompanied the single hacking blow made on Benignos neck. The petitioner argued that the
hacking was merely accidental especially since he had no motive whatsoever which could have
impelled him to hurt Benigno, and that the infliction of merely one wound negates intent to kill.
The CA Ruling
On October 26, 2010, the CA rendered the herein assailed Decision30 affirming the petitioners
conviction for the crime of frustrated homicide ratiocinating that:
Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in
the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the
manner the crime was committed; and (e) the words uttered by the offender at the time the injuries
are inflicted by him on the victim.
Here, the intent to kill was sufficiently proven by the Prosecution. The petitioner attacked Benigno
with deadly weapons, two scythes. The petitioners blow was directed to the neck of Benigno. The
attack on the unarmed and unsuspecting Benigno was swift and sudden. The latter had no means,
and no time, to defend himself.

Dr. Roberto Ardiente, Jr., who attended and issued the Medical Certificate, testified that Benigno
suffered from a hack wound on the left neck, and an incised wound on the left hand palm. He said
that the wounds might have been caused by a sharp, pointed and sharp-edged instrument, and may
have resulted to death without proper medical attendance. Benigno was hospitalized for about a
month because of the injuries. The location of the wound (on the neck) shows the nature and
seriousness of the wound suffered by Benigno. It would have caused his death, had it not been for
the timely intervention of medical science.31 (Citations omitted and emphasis supplied)
However, the CA modified the sentence to "imprisonment of six (6) months and one (1) day to six (6)
years of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its
medium period, as maximum."32 The CA explained that:
Article 249 of the Revised Penal Code provides that the penalty for the crime of consummated
homicide is reclusion temporal , or twelve (12) years and one (1) day to twenty (20) years. Under
Article 50 of the same Code, the penalty for a frustrated crime is one degree lower than that
prescribed by law. Thus, frustrated homicide is punishable by prision mayor , or six (6) years and
one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law, absent any mitigating or
aggravating circumstances, the maximum of the indeterminate penalty should be taken from the
medium period of prision mayor . To determine the minimum of the indeterminate penalty, prision
mayor should be reduced by one degree, which is prision correccional , with a range of six (6)
months and one (1) day to six (6) years. The minimum of the indeterminate penalty may be taken
from the full range of prision correccional.33 (Citation omitted)
The CA also deleted the RTCs order for the payment of actual and consequential damages as there
were no competent proofs to justify the awards. The CA instead ruled that Benigno is entitled
to P30,000.00 as moral damages and P10,000.00 as temperate damages,34 the latter being awarded
when some pecuniary loss has been incurred, but the amount cannot be proven with certainty.35
Issue
Hence, the instant Petition for Review on Certiorari36 anchored on the issue of whether or not the
RTC and the CA erred in rendering judgments which are not in accordance with law and applicable
jurisprudence and which if not corrected, will cause grave injustice and irreparable damage to the
petitioner.37
In support thereof, the petitioner avers that the courts a quo failed to appreciate relevant facts, which
if considered, would justify either his acquittal or the downgrading of his conviction to less serious
physical injuries. The petitioner points out that after the single hacking blow was delivered, he ran
after Alejandro and Dionisio leaving Benigno behind. Had there been an intent to kill on his part, the
petitioner could have inflicted more wounds since at that time, he had two scythes in his hands.
Further, the CA erred in finding that the hacking blow was sudden and unexpected, providing
Benigno with no opportunity to defend himself. Benigno saw the petitioner arriving with weapons on
hand. Benigno could not have been unaware of the danger facing him, but he knew that the
petitioner had no intent to hurt him. Benigno thus approached the petitioner, but in the process, the
former was accidentally hit with the latters scythe.
The petitioner also cites Pentecostes, Jr. v. People38 where this Court found the downgrading of a
conviction from attempted murder to physical injuries as proper considering that homicidal intent was
absent when the accused shot the victim once and did not hit a vital part of the latters body.39

Further, as per Dr. Ardientes testimony, no complications resulted from Benignos hacking wound in
the neck and incised wound in the hand. Such being the case, death could not have resulted. The
neck wound was not "so extensive because it did not involve a big blood vessel on its vital structure"
while the incised wound in the hand, which only required cleansing and suturing, merely left a slight
scarring.40 Besides, Benigno was only confined for seventeen (17) days at the hospital and the
injuries he sustained were in the nature of less serious ones.
In its Comment,41 the Office of the Solicitor General (OSG) seeks the dismissal of the instant petition.
The OSG stresses that the petitioner raises factual issues, which call for a re-calibration of evidence,
hence, outside the ambit of a petition filed under Rule 45 of the Rules of Court. Moreover, the
petitioners argument that the development of infections or complications on the wounds is a
necessary factor to determine the crime committed is specious. The petitioners intent to kill Benigno
can be clearly inferred from the nature of the weapon used, the extent of injuries inflicted and the
circumstances of the aggression. Benigno could have died had there been no timely medical
assistance rendered to him.
If it were the petitioners wish to merely get Benigno out of the way to be able to chase Alejandro and
Dionisio, a kick, fist blow, push, or the use of a less lethal weapon directed against a non-vital part of
the body would have been sufficient. However, the petitioner hacked Benignos neck with an
unsterile scythe, leaving behind a big, open and gaping wound.
This Courts Ruling
The instant petition raises factual issues which are beyond the scope of a petition filed under Rule
45 of the Rules of Court.
Century Iron Works, Inc. and Benito Chua v. Eleto B. Baas 42 is instructive anent what is the subject
of review in a petition filed under Rule 45 of the Rules of Court, viz:
A petition for review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure
questions of law. It is only in exceptional circumstances that we admit and review questions of fact.
A question of law arises when there is doubt as to what the law is on a certain state of facts, while
there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a
question to be one of law, the question must not involve an examination of the probative value of the
evidence presented by the litigants or any of them. The resolution of the issue must rest solely on
what the law provides on the given set of circumstances. Once it is clear that the issue invites a
review of the evidence presented, the question posed is one of fact. 43 (Citations omitted)
In the case at bar, the challenge is essentially posed against the findings of the courts a quo that the
petitioner had a homicidal intent when he hacked Benignos neck with a scythe and that the wounds
the latter sustained could have caused his death had there been no prompt medical intervention.
These questions are patently factual in nature requiring no less than a re-calibration of the
contending parties evidence.
It is settled that the general rule enunciated in Century Iron Works, Inc. and Benito Chua admits of
exceptions, among which is, "when the judgment of the CA is premised on a misapprehension of
facts or a failure to notice certain relevant facts that would otherwise justify a different conclusion x x

x."44 However, the factual backdrop and circumstances surrounding the instant petition do not add up
to qualify the case as falling within the exceptions.
Even if this Court were to be exceptionally liberal and allow a review of factual issues, still, the
instant petition is susceptible to denial.
To successfully prosecute the crime of homicide, the following elements must be proved beyond
reasonable doubt: (1) that a person was killed; (2) that the accused killed that person without any
justifying circumstance; (3) that the accused had the intention to kill, which is presumed; and (4) that
the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide
or infanticide. Moreover, the offender is said to have performed all the acts of execution if the wound
inflicted on the victim is mortal and could cause the death of the victim without medical intervention
or attendance.45
In cases of frustrated homicide, the main element is the accuseds intent to take his victims life. The
prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding
homicidal intent. And the intent to kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of wounds he inflicted on his victim. 46
The petitioner now wants to impress upon this Court that he had no motive to attack, much less kill
Benigno. The petitioner likewise invokes the doctrine in Pentecostes, Jr.47 to argue that homicidal
intent is absent in a case where the accused shot the victim only once when there was an
opportunity to do otherwise. The petitioner belabors his claim that had he intended to kill Benigno, he
could have repeatedly hacked him to ensure the latters death, and not leave right after the blow to
chase Alejandro instead.
The analogy is flawed.
In Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The
attending physician certified that the injury would require medical attendance for ten days, but the
victim was in fact promptly discharged from the hospital the following day.
In Benignos case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long
incised wound in his left hand caused by the unsterile scythe used by the petitioner. Dr. Ardiente
testified that "it is possible to have complications resulting from these injuries because the wounds
were extensive and they were big and they were open wounds, so there is a possibility of infections
resulting from these kinds of wounds, and the instrument used was not a sterile instrument
contaminated with other things."48 No complications developed from Benignos wounds which could
have caused his death, but he was confined in the hospital for a period of 17 days from September
6, 1998 to September 23, 1998.
From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe
against Benignos neck was determinative of the petitioners homicidal intent when the hacking blow
was delivered. It does not require imagination to figure out that a single hacking blow in the neck
with the use of a scythe could be enough to decapitate a person and leave him dead. While no
complications actually developed from the gaping wounds in Benignos neck and left hand, it
perplexes logic to conclude that the injuries he sustained were potentially not fatal considering the
period of his confinement in the hospital. A mere grazing injury would have necessitated a lesser
degree of medical attention.

This Court likewise finds wanting in merit the petitioners claim that an intent to kill is negated by the
fact that he pursued Alejandro instead and refrained from further hacking Benigno. What could have
been a fatal blow was already delivered and there was no more desistance to speak of. Benigno did
not die from the hacking incident by reason of a timely medical intervention provided to him, which is
a cause independent of the petitioners will.
1wphi1

All told, this Court finds no reversible error committed by the CA in affirming the RTCs conviction of
the petitioner of the crime charged.
The Court modifies the award of damages.
As to the civil liability of the petitioner, the CA was correct in deleting the payment of the
consequential damages awarded by the trial court in the absence of proof thereof. Where the
amount of actual damages cannot be determined because of the absence of supporting receipts but
entitlement is shown by the facts of the case, temperate damages may be awarded. 49 In the instant
case, Benigno certainly suffered injuries, was actually hospitalized and underwent medical
treatment. Considering the nature of his injuries, it is prudent to award temperate damages in the
amount of P25,000.00, in lieu of actual damages.50
Furthermore, we find that Benigno is entitled to moral damages in the amount of P25,000.00.51 There
is sufficient basis to award moral damages as ordinary human experience and common sense
dictate that such wounds inflicted on Benigno would naturally cause physical suffering, fright, serious
anxiety, moral shock, and similar injury.52
WHEREFORE the instant petition is DENIED. The Decision and Resolution, dated October 26, 2010
and August 11 2011, respectively, of the Court of Appeals in CA-G.R. CR No. 00336-MIN are
AFFIRMED with MODIFICATIONS. The petitioner, Fe Abella y Perpetua is ORDERED TO PAY the
offended party moral damages in the amount of P25,000.00 and temperate damages in the amount
of P25,000.00. Further, the monetary awards for damages shall be subject to interest at the legal
rate of six percent ( 6%) p r annum from the date of finality of this Decision until fully paid. 53
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
WE CONCUR: