VELASCO v.

PEOPLE (2006)

Article 6. xxx There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his own
spontaneous desistance.

FACTS: Frederick Maramba was cleaning and washing his owner type jeep in front of
his house when a motorized tricycle stopped near him. Thereafter, Rodolfo Velasco
dashed out of the tricycle, approached the complainant and fired at him several times
with a .45 caliber pistol. Velasco missed with his first shot but the second one hit
Maramba at the upper arm, causing him to stumble on the ground. Maramba stood up
and ran, while the Velasco continued firing at him but missed.

Velasco was later apprehended. He was charged with the crime of Attempted Murder.
Subsequently, the trial court convicted him as charged. The CA, on appeal, affirmed the
decision of the RTC.

ISSUE: Whether Velasco only committed the crime of attempted homicide? (Velasco
maintains there was no sudden firing because the victim testified he was observing him
for a period of ten seconds before the latter finally drew his .45 caliber pistol and fired at
him. After the first shot, the victim was able to run away.)

RATIO: There was an attempted murder since the essential elements of treachery
are present. First, at the time of the attack, the victim was not in a position to defend
himself. It was clearly established that Maramba, while washing his jeep, was suddenly
fired upon by Velasco for no reason at all. The suddenness of the shooting and the fact
that he was unarmed left Maramba with no option but to run for his life. And second, the
accused consciously and deliberately adopted the particular means, methods or forms
of attack employed by him. The swift and unexpected attack was to make sure that
Maramba will have no chance to defend himself. Though Maramba was looking at him,
the former was not forewarned by any outward sign that an attack was forthcoming. It
was only after the first shot that he felt his life was in danger.

Having commenced the criminal act by overt acts but failing to perform all acts of
execution as to produce the felony by reason of some cause other than his own
desistance, Velasco committed an attempted felony. He failed to perform all the acts of
execution by reason of causes independent of his will, that is, poor aim and the
swiftness of the latter. Maramba then sustained a wound on the left arm that is not
sufficient to cause his death. The settled rule is that where the wound inflicted on
the victim is not sufficient to cause his death, the crime is only attempted murder,
since the accused did not perform all the acts of execution that would have
brought about death.