Second Division G.R. No. 245922 People of The Philippines, v. Danilo Toro Diano "OTO,"

SECOND DIVISION
G.R. No. 245922 - PEOPLE OF THE PHILIPPINES, appellee, v.

DANILO TORO y DIANO @ "OTO," appellant.
Promulgated:
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CONCURRING OPINION
LOPEZ, J.:
I concur with the conviction of the accused for the lesser offense of
Homicide. The prosecution failed to establish the qualifying circumstances of
evident premeditation and treachery.
Procedurally, it must be emphasized that the Information charging the

accused was defective because it did not allege the facts and circumstances
constituting treachery, in violation of Sections 8 1 and 92 of Rule 110 of
the Rules of Court. To merely state in the Information that treachery was
attendant is not enough because it is not a factual averment but a conclusion
of law. 3 However, I concur that the accused is deemed to have waived this
formal defect in the Information for his failure to file a Motion to Quash or a
Motion for Bill of Particulars.4
Nevertheless, this is an opportune time for the Court to once again

remind the prosecutors to follow the Constitution and Rules of Court in
upholding the rights of the accused. The factual averments constituting the
aggravating circumstances must be particularly alleged in the Info1mation to
ensure that the accused is properly apprised and afforded the opportunity to
defend himself against the crime under which he is charged.
On the merits, well-settled is the rule that " [i]t is not only the central
fact of a killing that must be shown beyond reasonable doubt; every qualifying
or aggravating circumstance alleged to have been present and to have attended
such killing, must similarly be shown by the same degree of proof."5
1
SEC. 8. Designation of the Offense. - The complaint or information shall state the designation of the
offense g iven by the statute, aver the acts or omissions constituting the offense, and specify its qualifying
and aggravating circumstances. If there is no designation of the offense, reference shall be made to the
section or subsection of the statute punishiJ, g it.
2 SEC. 9 . Cause of the Accusation. -The acts or omissions complained of as constituting the offense and
the qualifying and aggravating circumstances must be stated in ordinary and concise language and not
necessarily in the language used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qua lifying and aggravating
circumstances and fo1 the court to pronounce judgment.
3 People v. Dasmarifias, 819 Phil. 357, 360 (20 17).
4
See People v. Solar, G. R. No. 225595, August 6, 20 19.
5
People v. Derito, 338 Phil. 350, 364 (1997).
I
Concurring Opinion 2 G.R. No. 245922
For treachery to be appreciated, the following elements must concur:

(a) the employment of means of execution which gives the person attacked no
opportunity to defend or retaliate; and, (b) said means of execution were
deliberately or consciously adopted. 6
In this case, there is reasonable doubt on the existence of the second

element of treachery. The reasonable doubt springs from the failure of the
prosecution witness to establish: (1) that the factual circumstances of the
deceased being restrained and stabbed at the same time, constituted the
commencement of the series of actions leading to the death of the accused; (2)
that treachery was present at the inception of the attack, or at the
commencement of each stage of attack, if any; and, (3) the failure of the lone
witness to observe not only when and how the attack commenced, but also
when and how it ended. These circumstances are important to show that the
accused deliberately adopted the mode of execution to insure that the victim
is deprived of the opportunity to defend himself.
Indeed, "treachery must be present at the inception of the attack on the

victim, and if it was absent but the attack was continuous, the employment of
treachery at a subsequent stage is not to be considered."7 As elucidated in the
case of U.S. v. Balagtas: 8
In order that treachery may be considered as a qualifying circumstance to

raise the classification of the crime, or as an aggravating circumstance to
augment the penalty, it must be shown that the treacherous acts were present
at and preceded the commencement of the attack which caused the injury
complained of. After the commencement of such an attack and before its
termination an accused person may have employed means or methods
which were of a treacherous character, and yet such means or methods
would not constitute the circumstance of alevosia. One continuous attack, x
xx can not [sic] be broken up into two or more parts and made to constitute
separate, distinct, and independent attacks so that treachery may be injected
therein and considered as a qualifying or aggravating circumstance. 9
In the recent case of People v. Enriquez, Jr., 10 the Court ruled that
"treachery cannot be considered where the lone witness did not see the
commencement of the assault," viz.:
In a catena of cases, the Court has consistently held that treachery

cannot be appreciated where the prosecution only proved the events after
the attack happened, but not the ma..u1er of how the attack commenced or
how the act which resulted in the victim's death unfolded. In treachery, there
must be clear and convincing evidence on how the aggression was made,
how it began, and how it developed. Where no particulars are known as
6
People v. Aquino, 396 Phil. 303, 307 (2000).
7 Regalado, Criminal Law Conspectus, 3'' Ed., 2007, p. 108, citing US v. Balagtas, 19 Phil. 164 (201 l);
People v. Canete, 44 Phil. 478 (1923).
8
19 Phil. 164 (1911).
9
/d.atl72-173.
10
G.R. No. 238171, June 19, 2019.
r
to the manner in which the aggression was made or how the act which
resulted in the death of the victim began and developed, it cannot be
established from suppositions drawn only from circumstances prior to
the very moment of the aggression, that an accused perpetrated the
killing with treachery. Accordingly, treachery cannot be considered
where the lone witness did not see the commencement of the assault.
In the instant case, the evidence presented by the prosecution only

proved the events after the initial attack had already happened. The
prosecution witnesses, Luisa and Jessica, did not see the manner of how the
attack commenced or how the acts which resulted in the victim's death
unfolded as the attack started inside the house of the victim. They merely
saw Dela Cruz, already bloodied, coming out of his house. It was only at
this point that they saw Enriquez stab the victim again with a bread
knife. Thus, what happened inside the house is unknown to the prosecution
witnesses. (Emphasis supplied; citations omitted.)
Here, the victim's son who was the lone prosecution witness, neither
saw the commencement of the assault nor the unfolding of the events that
ultimately resulted in the victim's death. He only chanced upon a slim portion
or momentary episode of the attack against his father, after which he
immediately ran and went back hours after witnessing the crime. Therefore,
there is reasonable doubt how the aggression started, developed, and ended.
There is doubt whether the victim was indeed deprived of the opportunity to
defend himself.
Without knowing how the aggression ripened, the Court has no way to
ascertain whether "the sudden attack [was] not preconceived and deliberately
adopted, but [was] just triggered by a sudden infuriation on the part of the
accused as a result of a provocative act of the victim, or when the killing [was]
done at the spur of the moment." 11 Verily, the mode of attack must have been
planned by the offender and must not have sprung from an unexpected turn of
events. 12
Also, evident premeditation is not attendant in this case. The

prosecution failed to establish the time when the accused determined to
commit the crime, the overt act manifestly indicating that he clung to his
determination to commit the crime, and a sufficient lapse of time between the
decision to commit the crime and the execution thereof to allow the accused
to reflect upon the consequences of his act. 13 These essential requisites of
evident premeditation are sorely absent from the prosecution evidence.
In sum, absent any other qualifying circumstance, the crime committed

1s only Homicide under Article 249 of the Revised Penal Code with the
11 People v. Canaveras, 722 Phil. 259,270 (2013).

12 Id.
13 People v. Abadies, 436 Phil. 98, 105-106 (_2002); and Peoplev. Dadivo, 434 Phil. 684,688 (2002).
r
penalty of reclusion temporal. The civil liabilities were also properly imposed
pursuant to People v. Jugueta. 14
14 783 Phil. 806 (2016).

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SECOND DIVISION

G.R. No. 245922 - PEOPLE OF THE PHILIPPINES, appellee, v.

Procedurally, it must be emphasized that the Information charging the

Nevertheless, this is an opportune time for the Court to once again

For treachery to be appreciated, the following elements must concur:

In this case, there is reasonable doubt on the existence of the second

Indeed, "treachery must be present at the inception of the attack on the

In order that treachery may be considered as a qualifying circumstance to

In a catena of cases, the Court has consistently held that treachery

In the instant case, the evidence presented by the prosecution only

Also, evident premeditation is not attendant in this case. The

In sum, absent any other qualifying circumstance, the crime committed

11 People v. Canaveras, 722 Phil. 259,270 (2013).

14 783 Phil. 806 (2016).

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