Dear PAO,

Will treachery not be appreciated just because the deceased victim is not the intended victim of the attacker? A 14-year-old boy, who was playing with his friends at the time of the incident, was hit by a bullet from a gun that X fired. It appears that X had a prior beef with Y. At the time of the incident, Y was buying snacks at a sari-sari store near his house. Out of nowhere, X showed up, shouted expletives, and then fired a gun at Y. Y sustained injuries but eventually recovered. Unfortunately, the 14-year-old boy was hit by the same bullet and died. The family of the boy wants to file a case for murder, but a relative of X said that the proper case is for homicide because the boy was not the intended victim; it just so happened that the boy was at the wrong place and time. Is that correct?

Yvette

Dear Yvette,

Murder is a crime that is committed by a person who kills another, who is not the former’s father, mother, child, or spouse, and the killing is attended by any of the qualifying circumstances enumerated under Article 248 of the Revised Penal Code of the Philippines, treachery being one of those circumstances:

“Art. 248. Murder. — Any person who, not falling within the provisions of Article 246 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.

x x x” (Emphasis supplied).

In order to prove that an act is attended by treachery, it must be shown that the assailant intentionally selected a method of pursuing such an act and made certain that the intended victim would not be able to defend himself or herself. As reiterated by the Supreme Court, through Associate Justice Amy C. Lazaro-Javier, in the case of People of the Philippines v. Nestor Bendecio y Viejo alias “Tan” (GR 235016, Sept. 8, 2020):

“x x x There is treachery when two (2) elements concur: (1) the employment of means, methods, or manner of execution which would ensure the offender’s safety from any defense or retaliatory act on the part of the offended party; and (2) such means, method, or manner of execution was deliberately or consciously chosen by the offender. The essence of treachery consists of the sudden and unexpected attack on an unguarded and unsuspecting victim without any ounce of provocation on his or her part.”

Accordingly, if it can be established that X indeed intended to kill Y and to facilitate his vicious plan, he purposely chose and employed means, methods, or manner of execution that ensured his safety from any form of defense on the part of Y, such as carrying a loaded gun, showing up unknowingly to Y and shooting the latter, then treachery may well serve as a qualifying circumstance and a complaint for murder may be pursued.

The same holds true even if Y subsequently survives the attack. The survival of the victim will not release the assailant from criminal liability as long as all the elements of the crime are proven. X may be prosecuted for attempted or frustrated murder, as the case may be.

Likewise, the fact that it was not Y who was eventually killed but an innocent bystander does not necessarily bring the case down to homicide. If the qualifying circumstance of treachery, along with the other elements of murder, is undoubtedly proven, the same may be applied in favor of the deceased minor victim. This is in line with the ruling of the Supreme Court in People vs. Bendecio (id):

“x x x Appellant fired at Gerry but instead of hitting the latter, the bullet hit Jonabel in the chest and thereafter, Princess in the leg. Jonabel died as a result x x x

“As for Jonabel’s death, what happened to this seven (7)-year-old was a clear case of aberratio ictus or mistake in the blow. Under the doctrine of aberratio ictus, as embodied in Article 4 of the RPC, criminal liability is imposed for the acts committed in violation of law and for all the natural and logical consequences resulting therefrom. Thus, while it may not have been appellant’s intention to shoot Jonabel, this fact alone will not exculpate him of his criminal liability. Jonabel’s death was unquestionably the natural and direct consequence of appellant’s felonious deadly assault against Gerry.

“Notably, the qualifying circumstance of treachery attended Jonabel’s killing. As pointed out by Justice Mario V. Lopez during the deliberation, although appellant did not intend to kill Jonabel, treachery may still be appreciated in aberratio ictus, pursuant to the Court’s ruling in People v. Flora x x x Just because Jonabel was not the intended victim does not make appellant’s sudden attack any less treacherous.”

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated on.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net