This case has been cited 2 times or more.
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2001-11-14 |
PER CURIAM |
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| The information in this case alleged that in the commission of the crime, the qualifying circumstances of treachery and evident premeditation and the aggravating circumstance of abuse of superior strength attended the commission of the crime. The trial court was correct in not appreciating evident premeditation as a qualifying circumstance since this is inherent in the crime of robbery.[29] The trial court was likewise correct in not appreciating the qualifying circumstance of treachery. Although the victim was caught by surprise when he received the first stab on his left thigh, the evidence shows that the victim was not caught completely off guard. For the fact is that the victim, accused-appellant, and the latter's co-accused engaged in combat for several minutes before the former received the fatal stab wounds. This negates the existence of the first element of treachery, i.e., a sudden attack giving the victim no opportunity to defend himself or retaliate. The existence of a struggle before the fatal blows were dealt on the victim shows he was forewarned of the impending attack and that he was afforded the opportunity to put up a defense.[30] However, despite the absence of treachery, the factual circumstances of the crime show that the killing of the victim was qualified by abuse of superior strength, which is expressly alleged in the Information. Accused-appellant and his co-accused did not only enjoy superiority in number but they also used knives and a stone while their victim was unarmed. Thus, there was physical disparity between the protagonists and abuse of superior strength was obvious. The force used by the aggressors was out of proportion to the means of defense available to the victim.[31] | |||||