G.R. No. 190861
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In finding that appellant is guilty of homicide, instead of murder, the CA ruled that there was an absence of the qualifying circumstances of evident premeditation and treachery. The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment.[23] For it to be appreciated, the following must be proven beyond reasonable doubt: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused clung to his determination; and (3) sufficient lapse of time between such determination and execution to allow him to reflect upon the circumstances of his act.[24] On the other hand, to appreciate treachery, two (2) conditions must be present, namely, (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate, and (b) the means of execution were deliberately or consciously adopted.[25] The CA, therefore, did not err when it ruled that the killing of the victim was neither attended by evident premeditation nor treachery, thus:
The element of evident premeditation is manifested by the careful planning and preparation undertaken by the offender prior to the commission of the crime. A perusal of the evidence on record shows that the altercation between appellant Duavis and Dante Largado, Sr. took place at around 3:00 o'clock in the afternoon of May 2, 2003, and the hacking incident took place at around 5:30 in the afternoon of the same day. To the mind of the Court, the lapse of time between the decision and the execution is not sufficient to allow appellant to fully reflect upon the consequences of his act and to effectively and efficiently prepare and plan his actions prior to the commission of the crime. Although it may be argued that there was some kind of premeditation on the part of appellant Duavis, it was not proved to be evident.
This Court further finds that the qualifying circumstance of treachery is not present in the instant case because evidence on record show that appellant Duavis chased Dante Largado, Sr. before the latter was hacked; hence, it cannot be concluded that appellant Duavis employed means of execution which gives Dante Largado, Sr. no opportunity to retaliate or escape. Moreover, the location of the hack wound on the left side of the face of the victim will also show that a frontal attack was made.
Thus, in the absence of any circumstance which would qualify the killing of Dante Largado, Sr., appellant Duavis can only be convicted of Homicide, not murder.[26] (Emphasis supplied.)
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