ROGELIO ROQUE, Petitioner, v.

 PEOPLE OF THE
PHILIPPINES, Respondent. CA correctly affirmed the RTC’s ruling. As aptly stated by the CA:
G.R. No. 193169. April 06, 2015. SECOND DIVISION. DEL
CASTILLO, J
In attempted or frustrated homicide, the offender must have the intent
FACTS
to kill the victim.  If there is no intent to kill on the part of the offender,
Petitioner Rogelio Roque was charged with the crime of frustrated
he is liable for physical injuries only.  Vice-versa, regardless of whether
homicide, which when he was arraigned, the petitioner plead “not
the victim only suffered injuries that would have healed in nine to thirty
guilty.”
days, if intent to kill is sufficiently borne out, the crime committed is
frustrated homicide (Arts. 263-266).
The prosecution averred that on November 22, 2001, while brothers
Reynaldo and Rodolfo Marquez were in the house of Bella Salvador-
Usually, the intent to kill is shown by the kind of weapon used by the
Santos in Pandi, Bulacan,  Rodolfo spotted Rogelio dela Cruz and
offender and the parts of the victim’s body at which the weapon was
shouted to him to join them.  At that instant, petitioner and his wife
aimed, as shown by the wounds inflicted.  Hence, when a deadly
were passing-by on board a tricycle.  Believing that Rodolfo’s shout was
weapon, like a bolo, is used to stab the victim in the latter’s abdomen,
directed at him, petitioner stopped the vehicle and cursed the former. 
the intent to kill can be presumed (Reyes, The Revised Penal Code,
Reynaldo apologized for the misunderstanding but petitioner was
13TH  ED., P. 431).
unyielding.  Before leaving, he warned the Marquez brothers that
something bad would happen to them if they continue to perturb him.
It is worth highlighting that the victim received two gunshot wounds in
the head.  Indeed the location of the wounds plus the nature of the
Bothered, Rodolfo went to the house of Brgy. Chairman Tayao to ask for
weapon used are ready indications that the accused-appellant’s objective
assistance in settling the misunderstanding. Because of this, Reynaldo,
is not merely to warn or incapacitate a supposed aggressor.  Verily, had
was fetched by dela Cruz and brought to the house of Tayao, and later
the accused-appellant been slightly better with his aim, any of the two
on proceeded to petitioner’s house to follow Tayao and Rodolfo who had
bullets surely would have killed him outright.  Also, the intent to kill is
already gone ahead.  Upon arriving at petitioner’s residence, Reynaldo
further exhibited by the fact that the accused-appellant even prevented
again apologized to petitioner but the latter did not reply.  Instead,
barangay officials from intervening and helping x x x the bleeding
petitioner entered the house and when he came out, he was already
victim.  Indeed, the fact that Reynaldo Marquez was miraculously able
holding a gun which he suddenly fired at Reynaldo who was hit in his
to live through the ordeal and sustain only modicum injuries does not
right ear.  Petitioner then shot Reynaldo who fell to the ground after
mean that the crime ought to be downgraded from frustrated homicide
being hit in the nape.  Unsatisfied, petitioner kicked Reynaldo on the
to less serious physical injuries.  After all, as was mentioned above, what
face and back.  Reynaldo pleaded Tayao for help but to no avail since
should be determinative of the crime is not the gravity of the resulting
petitioner warned those around not to get involved. Fortunately,
injury but the criminal intent that animated the hand that pulled the
Reynaldo’s parents arrived and took him to a local hospital for
trigger.
emergency medical treatment.  He was operated on and confined for
three weeks. 
WHEREFORE, the Petition is DENIED.  The Decision dated February
27, 2009 of the Court of Appeals in CA-G.R. CR No. 31084 affirming in its
The defense claimed that on November 22, 2001, petitioner went to the
entirety the March 12, 2007 Decision of the Regional Trial Court of
house of Bella on board a tricycle to fetch his child.  While driving, he
Malolos, Bulacan, Branch 84 in Criminal Case No. 3486-M-2002
was cursed by brothers Reynaldo and Rodolfo who were visibly
convicting petitioner Rogelio Roque of the crime of frustrated homicide,
intoxicated.  Petitioner ignored the two and just went home.  Later,
is AFFIRMED with the MODIFICATION that the petitioner is ordered
however, the brothers appeared in front of his house still shouting
to pay the victim Reynaldo Marquez moral damages and temperate
invectives against him.  Petitioner’s brother tried to pacify Rodolfo and
damages in the amount of P25,000,00 each, with interest at the legal
Reynaldo who agreed to leave but not without threatening that they
rate of 6% per annum from the date of finality of this Resolution until
would return to kill him.  Petitioner thus asked someone to call Tayao. 
fully paid.
Not long after, the brothers came back, entered petitioner’s yard, and
challenged him to a gun duel.  Petitioner requested Tayao to stop and
pacify them but Reynaldo refused to calm down and instead fired his
gun.  Hence, as an act of self-defense, petitioner fired back twice.

RTC finds the petitioner guilty beyond reasonable doubt of the crime of
frustrated homicide. It was affirmed by the CA in toto.

ISSUE
Whether or Not the accused petitioner was guilty of the crime of
frustrated homicide? (YES)

RULING

Procedural
The errors petitioner imputes upon the CA all pertain to “appreciation of
evidence” or factual errors which are not within the province of a
petition for review on certiorari under Rule 45. Petitioner’s assigned
errors, requiring as they do a re-appreciation and re-examination of the
evidence, are evidentiary and factual in nature.  The Petition must
therefore be denied on this basis because “one, the petition for review
thereby violates the limitation of the issues to only legal questions, and,
two, the Court, not being a trier of facts, will not disturb the factual
findings of the CA, unless they were mistaken, absurd, speculative,
conflicting, tainted with grave abuse of discretion, or contrary to the
findings reached by the court of origin,” which was not shown to be the
case here.

Substantive