G.R. No. 140344. August 18, 2000.

SOLOMON RABOR, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
The Solicitor General for petitioner.
Edgar D. Rabor for respondent.

SYNOPSIS

In an information filed before the Regional Trial Court

of Davao City, herein petitioner was charged with the
crime of frustrated murder for stabbing and hacking
with the use of a bolo one Hikaru Miyake. Upon
arraignment, petitioner pleaded not guilty and
thereafter, trial ensued. After trial, the court a quo
rendered judgment convicting petitioner of the crime
charged and sentenced him to suffer the penalty of 4
years, 2 months and 1 day of prision correccional, as
its minimum, to 10 years and 1 day of prision mayor
as its maximum. The court a quo likewise ordered the
petitioner to pay the victim the sum of P12,000.00 for
actual moral and exemplary damages. Undaunted,
petitioner appealed his conviction to the Court of
Appeals, but the assailed decision was affirmed upon
review of the records. Petitioner filed a motion for
reconsideration, but the same was denied for lack of
merit. Aggrieved, petitioner filed this petition.
The Supreme Court found the petition partly
meritorious. The Court ruled that given the testimony
of the prosecution witness, Dr. Bernardo Adolfo, that
the victim could have died if not for the timely medical
treatment, the trial court correctly held that the stage
of execution of the crime was frustrated. Moreover,
contrary to petitioner's insistence, some of the
wounds inflicted on the victim were fatal. This was
sufficiently established by the testimony of the
attending doctor. There was merit, however, to
petitioner's assertion that the trial court erroneously
appreciated evident premeditation in the commission
of the offense, as none of the requisites to establish
evident premeditation can be inferred from the facts
of the case. Thus, the Court held that the crime
committed in this case is frustrated homicide.
Accordingly, the Court found petitioner guilty of
frustrated homicide and sentenced him to a prison
term of 1 year and 1 day of prision correccional, as
minimum, to 8 years and 1 day of prision mayor
medium, as maximum.
SYLLABUS
1. CRIMINAL LAW; FRUSTRATED MURDER; TRIAL
COURT CORRECTLY HELD THAT THE STAGE OF
EXECUTION OF THE CRIME WAS FRUSTRATED. —
Given the foregoing testimony that Miyake could have
died if not for the timely medical treatment, the trial
court correctly held that the stage of execution of the
crime was frustrated. A felony is "frustrated when the
offender performs all the acts of execution which
would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator."
2. ID.; ID.; QUALIFYING CIRCUMSTANCES; EVIDENT
PREMEDITATION; REQUISITES; WRONGLY
APPRECIATED IN CASE AT BAR. — In order that evident
premeditation may be properly considered in
imposing the proper penalty, the following requisites
must be established: (a) the time when the accused
determined to commit the crime; (b) an act manifestly
indicating that the accused clung to his determination;
and (c) a sufficient lapse of time between such
determination and execution to allow him to reflect
upon the consequences of his act. None of these
requisites can be inferred from the facts of this case.
For one, the records do not show the time when
petitioner resolved to commit the crime. The date and,
if possible, the time when the offender determined to
commit the crime is essential, because the lapse of
time for the purpose of the third requisite is
computed from date and time. Absent this first
requisite, evident premeditation was thus incorrectly
appreciated in this case. Further, the second requisite
is wanting. The fact that petitioner was heard to have
shouted at Miyake, "I want to fight and I will kill you"
does not necessarily prove evident premeditation
without showing that petitioner performed acts
manifestly indicating that he clung to his
determination. Petitioner's threat, unsupported by
other evidence which would disclose his true criminal
state of mind, will only be construed as a casual
remark naturally emanating from a feeling of rancor
and not a resolution of the character involved in
evident premeditation. Evident premeditation having
been wrongly appreciated in this case and there being
no other qualifying circumstance established during
the trial, the Court now holds that the crime
committed in this case is frustrated homicide.
3. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT PREVAIL
OVER THE VICTIM'S POSITIVE IDENTIFICATION OF THE
ACCUSED. — With respect to the fourth issue raised
by petitioner, i.e., the appellate court erred in
disregarding his defense of alibi, suffice it to say, that
this defense cannot prevail over the victim's positive
identification of petitioner as the person who attacked
him. Miyake could not have been mistaken about
petitioner's identity as he is no stranger to the former.
They knew each other quite well. Miyake identified
petitioner in a categorical, straightforward and
consistent manner.
4. ID.; ID.; SUPPRESSED EVIDENCE; THE PRESUMPTION
OF SUPPRESSED EVIDENCE DOES NOT APPLY WHEN
THE SAME IS EQUALLY ACCESSIBLE OR AVAILABLE TO
THE DEFENSE. — The non-presentation of certain
witnesses by the prosecution is not a plausible
defense and the matter of whom to present as
witnesses lies in the sound discretion of the
prosecutor handling the case. Besides, as correctly
observed by the Office of the Solicitor General in its
Comment, assuming that the testimonies of these
persons were material and relevant, nothing could
have prevented petitioner from presenting them as
his witnesses in order to discredit the testimonies of
those who testified for the prosecution. The
presumption of suppressed evidence does not apply
when the same is equally accessible or available to the
defense.
DECISION
KAPUNAN, J : p

Through this petition for review on certiorari, Solomon

Rabor (petitioner) seeks to reverse and set aside the
Decision, dated 11 March 1997, of the Court of
Appeals in CA-G.R. CR No. 11542 which affirmed the
judgment of the Regional Trial Court, Branch 13 of
Davao City finding petitioner guilty beyond reasonable
doubt of the crime of Frustrated Murder. Likewise
sought to be reversed and set aside is the Resolution,
dated 7 September 1999, of the appellate court
denying petitioner's motion for reconsideration.
The Information filed against petitioner reads as
follows:
That on or about August 17, 1981, in the City of
Davao, Philippines, and within the
jurisdiction of this Honorable Court, the
above-mentioned accused, armed with a
bolo, with treachery and evident
premeditation and with intent to kill,
wilfully, unlawfully and feloniously
attacked, assaulted and hacked with said
weapon one Hikaru Miyake, thereby
inflicting injuries upon the latter, the
following injuries, to wit:
ETDHSa

INCISED WOUND, POSTERIOR TEMPORAL AREA (L)

1.5 CM. LONG, 2-3 MM. DEEP.

INCISED WOUND SUPRASCAPULAR AREA (L) 12 CM.

LONG, 5-6 CM. DEEP.

INCISED WOUND, BACK OF THE NECK 10-11 CM.

LONG, 4-5 MM. DEEP.

INCISED WOUND (L) LUMBAR REGION 6 CM. LONG,

4-5 MM. DEEP.
INCISED WOUND (R) LUMBAR AREA 8 CM. LONG, 3
MM. DEEP.

INCISED WOUND, POSTEROLATERAL ASPECT (L)

ELBOW, 6 CM. LONG, 3-4 CM. DEEP
WITH CHIP FRACTURE OF LATERAL
EPICONDYLE OF THE HUMERUS (L).

thus performing all the acts of execution which

should have produced the crime of murder
as a consequence but nevertheless, did not
produce it by reason of cause independent
of his will of said accused, that is because
of the timely and able medical assistance
immediately rendered to the said Hikaru
Miyake.

Contrary to law. 1

At his arraignment, petitioner pleaded not guilty. Trial

ensued. The prosecution's case, based chiefly on the
testimony of the victim, Hikaru Miyake, 2 is as follows:
On 17 August 1981, at around 9 o'clock in the evening,
Hikaru Miyake, a Japanese national, residing with his
Filipina wife and children in Gem Village, Ma-a, Davao
City was taking his usual "Japanese-style" bath in a
drum behind his house. As he soaked his body inside
the drum filled with warm water, he heard a sound
which made him turn to the direction where it came
from. Miyake sensed that there was something wrong,
so he hurriedly got out of the drum. He then saw
petitioner about one and a half meters away rushing
towards him with a bolo. Petitioner attacked Miyake
who fought and grappled with the former for the
possession of the bolo. The struggle lasted for about
two (2) minutes. TSIDEa

Petitioner fled when he lost possession of the bolo. As

a result of the attack, Miyake sustained injuries on the
different parts of his body. Miyake's security guard
arrived to give assistance to his employer. The security
guard saw petitioner flee towards the direction of his
house. Miyake was immediately brought to the
Brokenshire Hospital where he was confined for ten
(10) days.
Miyake further testified that petitioner and his wife
used to perform services to his (Miyake's) family.
Petitioner was hired to bring the Miyake children to
their school while petitioner's wife gave them piano
lessons. This cordial relationship between Miyake and
petitioner, however, abruptly ended when their
respective wives quarreled with each other over a sum
of money which Mrs. Miyake loaned to petitioner's
wife. Since then, petitioner became hostile towards
the Miyakes.
On one occasion, petitioner threw stones at the house
of Miyake. In the afternoon of that same day, Miyake
went to his (petitioner's) house, which was just about
fifty (50) meters away, to try to patch things up with
him. Nonetheless, on account of the strained relations
between them, Miyake terminated the services of
petitioner and his wife. Thereafter, petitioner, while
riding on his motorcycle, would stop in front of the
Miyake residence and shout, "I want to fight and I will
kill you." Miyake ignored these threats to avoid any
trouble. Then came that fateful day of 17 August 1981.
ACEIac
 

In his defense, petitioner interposed alibi. He claimed

that on 17 August 1981, at about 5 o'clock in the
afternoon, he met Vicente Panes while he (petitioner)
was buying a newspaper at the corner of Bolton and
San Pedro Streets in Davao City. Panes asked
petitioner to accompany him to Sigaboy, Governor
Generoso, Davao Oriental to get coconut seedlings.
Petitioner readily agreed and after obtaining
permission from his wife, he went to Sigaboy with
Panes. They arrived in Sigaboy at around 9 o'clock in
the evening. From there, they traveled another thirty
(30) kilometers on motorcycle to reach the place of
Fernando Perez in Luzon, Governor Generoso, Davao
Oriental where they were supposed to get the
seedlings. When they arrived in Luzon, however, Perez
was not around. They decided to stay there and wait
for Perez. They waited for a few days as Perez arrived
in Luzon only on 30 August 1981. Petitioner and Panes
returned to Davao City on that same day at around 3
or 4 o'clock in the afternoon. 3
Vicente Panes testified for the defense. He
substantially corroborated petitioner's alibi, i.e., he
(petitioner) was in Sigaboy, Governor Generoso,
Davao Oriental from 17 August 1981 up to 30 August
1981. The two of them were there together to get
coconut seedlings from Panes' brother-in-law. 4 Emma
Rabor, wife of petitioner, also claimed that petitioner
was in Sigaboy, Governor Generoso, Davao Oriental at
the time. 5
After trial, the court a quo rendered judgment
convicting petitioner of the crime of frustrated
murder. The dispositive portion of the judgment reads
as follows:
WHEREFORE, the accused Solomon Rabor is found
guilty beyond reasonable doubt as
principal of the crime of Frustrated Murder
and he is hereby sentenced to suffer an
indeterminate sentence for four years, two
months and one day of prision
correccional, as its minimum, to ten years
and one day of prision mayor, as its
 maximum, and to pay the victim Hikaru
Miyake the total sum of P12,000.00 for
actual, moral and exemplary damages, plus
costs. HCTAEc

SO ORDERED. 6

Petitioner appealed his conviction to the Court of

Appeals. The appellate court, upon review of the
records, affirmed the judgment of the trial court. The
dispositive portion of the CA decision reads as follows:
WHEREFORE, the decision of the court a quo,
finding the accused guilty of the offense of
frustrated murder is AFFIRMED. 7

Petitioner filed a motion for reconsideration thereof

but the same was denied for lack of merit. 8
In this petition for review on certiorari, petitioner
raises the following issues:
A. WHETHER OR NOT THE DECISION OF THE COURT OF
APPEALS FINDING THE PETITIONER GUILTY OF
FRUSTRATED MURDER IS CONTRARY TO LAW;
B. WHETHER OR NOT THE MEDICAL CERTIFICATE
PRESENTED BY THE PROSECUTION IS
HEARSAY.
C. WHETHER OR NOT THE CONCLUSION OF THE
COURT OF APPEALS IN THE APPLICATION
OF EVIDENT PREMEDITATION IN THE
INSTANT CASE IS A FINDING GROUNDED
ON SPECULATION, SURMISES,
CONJECTURES, AND IS MANIFESTLY
MISTAKEN.

D. WHETHER OR NOT THE COURT OF APPEALS IN

DISREGARDING THE ALIBI OF THE
PETITIONER HAS DECIDED QUESTIONS OF
SUBSTANCE NOT IN ACCORD WITH LAW
AND THE APPLICABLE DECISION OF THE
HONORABLE COURT.

E. WHETHER OR NOT THE PROSECUTION IS GUILTY

OF SUPPRESSION OF EVIDENCE. 9

The petition is partly meritorious.

The first three issues shall be discussed jointly as they
are interrelated. They all pertain to petitioner's
contention that he was wrongly convicted of the crime
of frustrated murder. Petitioner maintains that the
wounds sustained by the victim were not fatal; hence,
the crime committed was merely attempted not
frustrated. Further, the qualifying circumstance of
evident premeditation was not allegedly sufficiently
proven in this case. Petitioner thus is of the view that
the crime should be homicide and not murder.
Contrary to petitioner's insistence, some of the
wounds inflicted on the victim were fatal. This was
sufficiently established by the testimony of Dr.
Bernardo Adolfo who, together with Dr. Virgilio S.
Durban, Jr., attended to the victim when he was
confined at the Brokenshire Hospital after the hacking
incident. As stated in the trial court's decision:
Dr. Adolfo testified that the first wound may not be
fatal, it is at the back of the left ear; the
second wound could be fatal, it is at the
back left side; the third wound may not be
fatal, it is at the back of the neck; the fourth
wound may not be fatal, it is at the left
waist; the fifth wound may not be fatal, it is
at the right back above the waist; and the
sixth wound at the "posterior left elbow 6
cm. long, 3-4 cm. deep with chip fracture of
lateral epicondyle of the Humerus (L)," is
fatal. If no medical treatment were applied
the victim could have died. 10

Given the foregoing testimony that Miyake could have

died if not for the timely medical treatment, the trial
court correctly held that the stage of execution of the
crime was frustrated. A felony is "frustrated when the
offender performs all the acts of execution which
would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator." 11
There is merit, however, to petitioner's assertion that
the trial court and the CA erroneously appreciated
evident premeditation in the commission of the
offense. In holding that petitioner committed the
offense with evident premeditation, the trial court
considered his act prior to the hacking incident of
shouting at Miyake, "I want to fight and I will kill you."
According to the trial court, this showed that
petitioner had long planned to kill Miyake.
On the other hand, the CA merely made a cursory
statement that "in qualifying the crime as frustrated
murder the trial court considered the circumstance of
evident premeditation and not treachery" 12 without
elaborating on the bases for the appreciation of the
qualifying circumstance of evident premeditation.
In order that evident premeditation may be properly
considered in imposing the proper penalty, the
following requisites must be established: (a) the time
when the accused determined to commit the crime;
(b) an act manifestly indicating that the accused clung
to his determination; and (c) a sufficient lapse of time
between such determination and execution to allow
him to reflect upon the consequences of his act. 13
None of these requisites can be inferred from the
facts of this case. For one, the records do not show
the time when petitioner resolved to commit the
crime. The date and, if possible, the time when the
offender determined to commit the crime is essential,
because the lapse of time for the purpose of the third
requisite is computed from date and time. 14 Absent
this first requisite, evident premeditation was thus
incorrectly appreciated in this case.
Further, the second requisite is wanting. The fact that
petitioner was heard to have shouted at Miyake, "I
want to fight and I will kill you" does not necessarily
prove evident premeditation without showing that
petitioner performed acts manifestly indicating that
he clung to his determination. Petitioner's threat,
unsupported by other evidence which would disclose
his true criminal state of mind, will only be construed
as a casual remark naturally emanating from a feeling
of rancor and not a resolution of the character
involved in evident premeditation. 15
Evident premeditation having been wrongly
appreciated in this case and there being no other
qualifying circumstance established during the trial,
the Court now holds that the crime committed in this
case is frustrated homicide.
With respect to the fourth issue raised by petitioner,
i.e., the appellate court erred in disregarding his
defense of alibi, suffice it to say, that this defense
cannot prevail over the victim's positive identification
of petitioner as the person who attacked him. 16
Miyake could not have been mistaken about
petitioner's identity as he is no stranger to the former.
They knew each other quite well. Miyake identified
petitioner in a categorical, straightforward and
consistent manner, thus:
xxx xxx xxx

Q Alright, you said you smell something wrong so

you went out from the gasoline
drum and clean your body?

A I felt something wrong I heard some sound so I turn

over and at that time Mr. Rabor was almost 1-1/2
meters from me and suddenly attacked me.
Q You said when he attacked you, you saw him to
be Solomon Rabor?

A Very clear. 17
xxx xxx xxx
Q Were you investigated by any police officer in
connection with this case?

A Yes, sir. I think August 19 in the morning I was

investigated by two policemen.
Q And what did you tell these police officers?

A I explained to the police officers about the hacking

incident.
Q If the accused Solomon Rabor alias Boy is in
Court can you identify him?

A Yes sir.
Q Will you kindly look around the courtroom if he is
around?

A He is Mr. Rabor. (The witness pointing to Mr.

Solomon Rabor and when the accused was asked he
answered that he is Solomon Rabor).
Q You said you told the police officer of what
happened to you did you tell them
who hacked you?
A Yes sir, because I clearly saw the face so I informed
the policeman that I was hacked by Solomon Rabor. 18
Finally, petitioner impugns the alleged non-
presentation of Sammy Babael and one Mr. Tan by
the prosecution. Babael and Tan were named by
Miyake as the persons who brought him to the
hospital. Petitioner is of the view that the prosecution
should have presented them as witnesses as their
testimonies are vital to the case. This proposition is
untenable. The non-presentation of certain witnesses
by the prosecution is not a plausible defense and the
matter of whom to present as witnesses lies in the
sound discretion of the prosecutor handling the case.
19 Besides, as correctly observed by the Office of the
Solicitor General in its Comment, assuming that the
testimonies of these persons were material and
relevant, nothing could have prevented petitioner
from presenting them as his witnesses in order to
discredit the testimonies of those who testified for the
prosecution. 20 The presumption of suppressed
evidence does not apply when the same is equally
accessible or available to the defense. 21
 
In fine, the guilt of petitioner for the crime of
frustrated homicide had been sufficiently established
beyond reasonable doubt. The penalty imposed on
him shall be modified accordingly. Article 249 of the
Revised Penal Code provides the penalty of reclusion
temporal for the crime of homicide. Under Article 50
of the Revised Penal Code, the penalty for a frustrated
crime is one degree lower than that prescribed by law.
Frustrated homicide is thus punishable by prision
mayor. Applying the Indeterminate Sentence Law, the
minimum penalty to be meted out on petitioner
should be anywhere within the range of six (6) months
and one (1) day to six (6) years of prision correccional,
and the maximum should be taken from the medium
period of prision mayor (Article 64, par. 1 of the
Revised Penal Code) the range of which is eight (8)
years and one (1) day to ten (10) years. Considering
that no aggravating or mitigating circumstance
attended the commission of the crime of frustrated
homicide, petitioner shall be sentenced to an
indeterminate prison term of one (1) year and one (1)
day of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor medium, as
maximum.
WHEREFORE, premises considered, the assailed
Decision, dated 11 March 1997, is hereby MODIFIED.
Petitioner is found guilty of FRUSTRATED HOMICIDE
and sentenced to a prison term of one (1) year and
one (1) day of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor
medium, as maximum.
SO ORDERED.