Treachery = Preparation to Kill

In treachery, the mode of attack must be consciously adopted. This means that the accused must make some preparation to kill the deceased in such a manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. The mode of attack, therefore, must be planned by the offender, and must not spring from the unexpected turn of events. A killing done at the spur of the moment is not treacherous.

But was appellant properly convicted of murder? The information against appellant alleged both treachery and evident premeditation. The lower courts decision, however, is silent as to the circumstances that qualified the killing. Thus, it behooves us to make the needed determination concerning these alleged circumstances.

The essence of treachery is the sudden and unexpected attack by the aggressor against the unsuspecting victim without the slightest provocation on the latters part, thus depriving the latter of any real chance of defending himself. Otherwise stated, there is treachery when the following conditions concur: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (b) the means of execution was deliberately or consciously adopted.

In our view, treachery has been adequately proved in the present case. The records show that appellant obtained a firearm from his co-workers, proceeded to the victims house, roused him from his sleep by calling out his name, and without hesitation, barged into the sala of the newly awakened victim and shot him without warning or provocation. That the victim and his assailant come face to face at the time of the shooting would not negate treachery, in our view, where it appears that the attack was not preceded by a dispute and the offended party was unable to prepare for his defense.
As to evident premeditation, however, we find that the evidence on record fails to bear out the following elements: (1) the time when the offender determined or conceived to commit the crime; (2) an act manifestly indicating that the offender had clung to his determination; and (3) a sufficient lapse of time between the determination and the execution, to allow the accused time to reflect upon the consequences of his act. Stated differently, the prosecution failed to establish clearly that the victims killing was a preconceived plan. Hence, evident premeditation should be ruled out in the present case.
While the trial court considered dwelling as aggravating circumstance, the information is silent, however, on this matter. Under the 2000 Rules of Criminal Procedure, the qualifying as well as aggravating circumstances must be expressly and specifically alleged in the complaint or information, otherwise the same will not be considered by the court even if proved during trial. Since the procedural rule is favorable to appellant, it must apply to this case. Dwelling ought not be considered to aggravate his offense.

In sum, we hold that appellant is liable for murder, qualified only by treachery. Murder is punishable by reclusion perpetua to death. There being neither mitigating nor aggravating circumstances, the penalty imposed by the trial court, i.e., reclusion perpetua, should be sustained.

READ: People vs. Delmindo, G.R. No. 146810, 27 May 2004, 429 SCRA 546