This case has been cited 2 times or more.
|
2003-01-28 |
CALLEJO, SR., J. |
||||
| Qualifying circumstances such as treachery and abuse of superior strength must be alleged and proved clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions are utterly insufficient and cannot produce the effect of qualifying the crime.[68] As this Court held: "No matter how truthful these suppositions or presumptions may seem, they must not and cannot produce the effect of aggravating the condition of defendant."[69] Article 14, paragraph 16 of the Revised Penal Code provides that there is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. For treachery to be appreciated as a qualifying circumstance, the prosecution is burdened to prove the following elements: (a) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of execution is deliberately or consciously adopted.[70] Although the victim may have been defenseless at the time he was seized but there is no evidence as to the particulars of how he was assaulted and killed, treachery cannot be appreciated against the accused.[71] In this case, the victim was defenseless when seized by Marlon and Ronald. However, the prosecution failed to present any witness or conclusive evidence that Modesto was defenseless immediately before and when he was attacked and killed. It cannot be presumed that although he was defenseless when he was seized the victim was in the same situation when he was attacked, shot and stabbed by the malefactors. To take advantage of superior strength means to purposely use force that is out of proportion to the means of defense available to the person attacked.[72] What is primordial, this Court held in People v. Rogelio Francisco[73] is that the assailants deliberately took advantage of their combined strength in order to consummate the crime. It is necessary to show that the malefactors cooperated in such a way as to secure advantage from their superiority in strength.[74] In this case, the prosecution failed to adduce evidence that Marlon and Ronald deliberately took advantage of their numerical superiority when Modesto was killed. The barefaced facts that the malefactors outnumbered Modesto and were armed while Modesto was not does not constitute proof that the three took advantage of their numerical superioty and their handguns when Modesto was shot and stabbed.[75] | |||||