Doctrine: Not alleged treachery (Alevosia under RPC Art.14 (16)Title:People vs. Raquinio, 17 SCRA 914Nature of Action:Direct appeal on questions of law

FACTS: Juan Raquinio, is guilty of frustrated homicide with the aggravating circumstance of treachery offset by voluntary surrender in mitigation.Early afternoon of November 8, 1957, complainant Apolonio Ravina, with his helper Luciano, drove his jeep to the river bank to load and transport to market the fish catch for today. Agustin Raquinio, local barrio lieutenant and head-man of the fishermen, told Ravina that he promised to load the fishes to Gaspar Retutal, in which the defendant Juan Raquinio is a helper. Agustin Raquinio and the complainant engaged in defeated discussion, the latter reminded Agustin that he should be given the preference to transport and told Agustin: We did not come here to force ourselves to you.Complainants mother, sensing trouble, called him. And when he turned to go to his mother, defendant stabbed him at the stomach with a small bolo. Complainant took to his heels, collapsed at the ground at a distance about 25 meters. Defendant wanted to pursue him, but Agustin Raquinio held him fast, grabbed the bolo in his hand.In Appellants brief, hopes that the Supreme Court may spotlight his theory that the crime committed falls under the level of physical injuries. A direct appeal on questions of law precludes a review of the facts. The defendant waived his right to inquiry into these facts.ISSUES: Whether or not the lower court erred in finding of frustrated homicide for lack of intention to kill? And Whether or not the lower court erred in considering treachery as an aggravating circumstance when it is not alleged in the criminal charge against him?HELD: Appellant used a lethal weapon, a bolo. The thrust, sudden and unexpected- was directed to a vital part of the body, the abdomen. If Agustin did not hold him fast, he would have finished his victim. The wounds suffered by the latter would have been fatal, were it not for the timely and adequate medical assistance. Intention to kill, a mental process, may be inferred from the nature of weapon used, the place of wound, the seriousness thereof and the persistence to kill the victim. Be it all present, the crime is frustrated homicide.Had treachery been claimed, the crime would have risen to the level of frustrated murder. But the information did not allege treachery. How the act was perpetrated has to be proved to achieve this end, it is inescapable that the act be described. To show the conditions under which the attack was perpetrated, an aggravating circumstance which is part of the act may be related. Else, a gap may result, the narrative incomplete. So it is, that evidence of an aggravating circumstance is not intended to bring about a change in the nature of that crime averred, for the worse. Rather, it serves the purpose of aiding the court in assessing the penalty to be imposed "in a more or less severe form, within the limits prescribed for the offense charged in the complaint or information". The decision appealed from is not infirm. It is accordingly affirmed. Costs against appellant.