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Fantastico vs, Malicse, Sr.
G.R. No. 190912
January 12, 2015
Facts:
On June 12, 1993, Elpidio Malicse, Sr. was outside of the house of his sister when he heard Winston,
his sister’s son, throwing invectives at him. Elpidio confronted her sister but she also cursed him, which
prompted the former to slap the latter.
Elpidio was persuaded to go home by the Barangay Captain who tried to stop the commotion.
Thereafter, Elpidio went back to his sister’s house to offer reconciliation. Upon reaching the house, he saw
his sister’s son, Titus and her son-in-law, Gary. He asked the two where he can find their mother but they
answered using foul words. In his anger with the response of Titus and Gary, Elpidio kicked the door to open
it but he saw Salvador, his sister’s elder son, behind the door holding a rattan stick. The latter hits Elpidio on
the latter’s head and another blow that hits Elpidio on his eyebrow. Elpidio was able to stop the third attack
and the two wrestled on the floor.
Gary hit Elpidio on the right side of his head with a toma-hack axe. Elpidio tried to defend himself but
was not able to do so. Elpidio pretended to be dead so that they will stop attacking him. Concerned neighbors
approached him and rushed him to the emergency room of the PGH.
A case for attempted Murder was filed against Salvador, Titus, Saligan, Iguiron, Tommy Ballesteros,
Eugune Surigao and Gary Fantastico and Rolando Villanueva.
Durint the trial, one of the accused, Salvador Iguiron died. The trial court, in its decision, acquitted
Titus, Saligan Iguiron and Tomy Ballesteros but found Gary Fantastico and Rolando Villanueva guilty beyond
reasonable doubt for Attempted Murder. On an appeal, the Court of Appeals affirmed the said decision.
Issue:
Whether or not the prosecution failed to prove the presence of treachery or any other qualifying
circumstances
Ruling:
No, the prosecution did not fail to prove the presence of treachery because prima facie, there was
no treachery.
There are two elements before a treachery can concur; first, the employment of means of execution
that gives the persons attacked no opportunity to defend themselves or retaliate; and the means of execution
were deliberately or consciously adopted.
In applying the two elements in the given facts, the incident was spontaneous, thus, the second
requisite of treachery is wanting. There is no treachery where the attack was not preconceived and
deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of
the provocative act of the victim. The incident negates the possibility that the petitioner consciously adopted
means to execute the crime committed.

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Fantastico vs, Malicse, Sr. G.R. No. 190912 January 12, 2015 Facts: On June 12, 1993, Elpidio Malicse, Sr. was outside of the house of his sister when he heard Winston, his sister’s son, throwing invectives at him. Elpidio confronted her sister but she also cursed him, which prompted the former to ...
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