Attempted Murder Involving a Firearm in the Philippines
A comprehensive substantive-and-procedural guide
1. Governing Statutes & Rules
| Topic | Key Provisions |
|---|---|
| Attempt, Frustration & Consummation | Art. 6 & Art. 51, Revised Penal Code (RPC) |
| Murder (qualifying circumstances) | Art. 248, RPC |
| Homicide (for possible plea-bargain) | Art. 249, RPC |
| Illegal / unlawful possession & use of firearms | Republic Act (RA) 10591 (2013 Firearms & Ammunition Regulation Act), esp. §29 & §30 (historical: PD 1866; RA 8294 (1997) which absorbed the gun-possession offense and made the use of an unlicensed gun a mere aggravating circumstance) |
| Rules on Criminal Procedure | Rules 112–122, 1997 Rules of Criminal Procedure |
| Ballistics, forensic evidence | NBI, PNP Crime Laboratory Manual (administrative issuances) |
| Bail schedule & guidelines | A.M. 12-11-2-SC (as amended) |
2. Substantive Law
2.1 Elements of Attempted Murder
- The offender commences the commission of murder directly by overt acts;
- All acts of execution which would produce the felony as a consequence are not performed by reason of some cause or accident other than his own spontaneous desistance (Art. 6);
- The acts are committed with intent to kill;
- Any of the qualifying circumstances of Murder under Art. 248 is present (e.g., treachery, evident premeditation, superior strength, dwelling, etc.);
- Death does not result.
Intent to kill is usually inferred from (a) the weapon used (a handgun is per se deadly), (b) the location and number of wounds, and (c) the manner of attack (People v. Domasian, G.R. 132805, 13 Mar 2001).
2.2 Use of a Firearm
Licensed firearm – the gun is simply the means; it does not itself qualify or aggravate unless used to ensure treachery or other qualifiers.
Loose (unlicensed) firearm – under RA 10591 §29, separate felony of Unlawful Possession of Firearm continues to exist in addition to the underlying crime.
- Penalty: prisión mayor (6 yrs 1 day–12 yrs) if no aggravating circumstance; raised to the next higher penalty if the firearm is used in furtherance of or incident to another crime (thus prisión mayor max to reclusión temporal min for attempted murder).
- The gun-possession count does not merge (contrast with RA 8294, 1997-2013).
Aggravating effect – RA 10591 §29(c) adds one degree higher penalty on the underlying felony when a loose firearm is used, similar to Art. 14(10) “means to weaken defense”.
2.3 Penalty Computation
| Stage of felony | Base penalty for Murder | Two degrees lower (Art. 51) | Range |
|---|---|---|---|
| Attempted | reclusión temporal-max to death | prisión mayor-min to reclusión temporal-med | 8 yrs 1 day – 14 yrs 8 mos 20 days |
- Indivisible penalties do not apply because the resulting range after mitigating or aggravating factors remains divisible; thus the Indeterminate Sentence Law applies.
- When §29(a) RA 10591 (loose gun) is proven, court adds one degree → reclusión temporal-max (17 yrs 4 mos 1 day – 20 yrs).
3. Procedural Road-Map
| Stage | Core Rules | Practical Notes |
|---|---|---|
| Arrest | Rule 113.5(b): warrantless arrest in flagrante or “hot pursuit” | Firearm usually seized incident to arrest; mark, photograph, and inventory in the presence of barangay official/Witness per §21, RA 9165 practice adopted by PNP |
| Inquest / Preliminary Investigation | Rule 112 §§5–7 | Because the penalty is bailable, the prosecutor must resolve PI within 15 days or file inquest information if custody is valid |
| Filing of Information | Secures jurisdiction of Regional Trial Court (RTC) | Attempted murder falls within RTC, regardless of penalty, per BP 129 §20 |
| Bail | Art III, §13 Constitution; Rule 114 | Attempted murder is bailable as a matter of right before conviction, because the penalty does not exceed reclusión perpetua |
| Arraignment & Plea | Rule 116 | Plea bargaining: accused may plead guilty to Attempted Homicide (Art. 249 in relation to Art. 6) subject to prosecutor/complainant consent (See A.M. 18-03-16-SC) |
| Pre-Trial | Rule 118 | Mark exhibits (gun, slugs), stipulate ballistics chain-of-custody, explore settlement of civil damages |
| Trial | Rules 119 & 132-133 | Key prosecution proofs: ① Intent to kill (medical testimony, ballistics angle); ② Qualifying circumstance (treachery—sudden, unexpected gunfire); ③ Identity of shooter; ④ Loose-firearm certification from FEO-PNP (if separate §29 charge) |
| Judgment | Rule 120 | Court must articulate why the facts constitute attempted (not frustrated) murder; must apply RA 10591 enhancement expressly |
| Promulgation & Mittimus | Rule 120.6-7 | Failure of accused to appear results in promulgation in absentia and re-arrest warrant |
| Appeal | Rule 122 | To Court of Appeals; automatic review not available because penalty < reclusión perpetua |
| Execution & Civil Liability | Art. 100 RPC; Rules 39 & 144 | Damages for medical expenses, lost earnings, moral, exemplary; court often orders P40,000 temperate damages if medical receipts missing (consistent w/ People v. Jugueta, 2016) |
4. Evidentiary & Forensic Highlights
- Ballistics Examination – tests slug-to-barrel match; result required to (a) prove identity of firearm used; (b) link loose-gun count.
- Para-paraffin / gun-shot residue (GSR) – corroborative, not conclusive of firing.
- Trajectory Analysis – helps show alevosía (treachery) when shot from behind / elevated position.
- Firearms Records Verification – Certification from Firearms & Explosives Office (FEO-PNP) whether serial number is registered.
- Chain of Custody – same best practices as in drug cases: initial marking, inventory, turnover to evidence custodian.
5. Aggravating & Mitigating Factors
| Circumstance | Effect | Note |
|---|---|---|
| Use of loose firearm (RA 10591 §29) | One degree higher in the principal penalty | Separate info filed for §29; conviction on both does not violate double jeopardy |
| Treachery | Qualifier → Murder | Shooting a sleeping or unsuspecting victim |
| Dwelling, Nighttime, Band | Ordinary aggravating under Art. 14 | Court must allege in the information |
| Voluntary surrender, plea of guilty | Mitigating under Art. 13(7)(10) | Plea to attempted murder before trial may still mitigate |
| Justifying/exempting (self-defense, insanity) | Absolves criminal liability | Burden shifts to accused to prove w/ clear & convincing evidence |
6. Selected Supreme Court Decisions
| Case | G.R. No. / Date | Doctrinal Point |
|---|---|---|
| People v. Domasian | G.R. 132805, 13 Mar 2001 | Intent to kill can be inferred from use of a .45 pistol at vital body part even if victim survives |
| People v. Molina | G.R. 144595, 19 Feb 2004 | Under RA 8294 (pre-10591), illegal-possession count is absorbed; still cited for historical contrast |
| People v. Salazar | G.R. 175832, 14 Jan 2015 | Distinction between attempted and frustrated; medical testimony that wound was non-fatal makes the crime attempted |
| People v. Valdez | G.R. 222225, 17 Jan 2018 | After RA 10591, separate conviction for §29 allowed; no double jeopardy |
| People v. Gahid | G.R. 237380, 07 Sept 2020 | Gun fired from ambush position establishes treachery; conviction for attempted murder affirmed |
| People v. Purganan | G.R. 247229, 27 Apr 2022 | One-degree penalty increase under §29 applied even when the loose gun is also charged separately |
7. Frequently Litigated Issues
- Attempted vs. Frustrated – Frustrated requires that victim receives mortal wound; if the bullet grazes or misses vital organ, the offense is attempted.
- Single vs. Separate Informations – Best practice: file two separate informations (Attempted Murder & §29 RA 10591). Consolidation for joint trial is routine.
- Bail for Dual Charges – Bail is as of right for Attempted Murder; bail for §29 depends on the imposable penalty (usually also bailable).
- Effect of Pardon or Amnesty on the Gun Charge – Executive clemency for the main offense does not ipso facto expunge §29 conviction (requires separate grant).
- Civil Action – Surviving victim may file separate civil case for damages; but Art. 100 RPC deems civil action impliedly instituted unless reserved.
8. Plea Bargaining & Diversion
- Attempted Murder → Attempted Homicide (penalty: prisión correccional max). Allowed if (a) prosecutor & offended party consent, (b) court approves.
- Attempted Murder → Serious Physical Injuries rarely accepted because statutory ranges too low; victim reparation concerns.
- DOJ Circular #27-2019 encourages prosecutors to evaluate for attempted homicide deals where no qualifying circumstance is iron-clad.
9. Sentencing Template (illustrative)
WHEREFORE, the Court finds accused JUAN DELA CRUZ GUILTY beyond reasonable doubt of Attempted Murder under Art. 248 in relation to Art. 6 & 51, and, there being one generic aggravating circumstance (use of loose firearm under §29 RA 10591) without any mitigating, hereby imposes an indeterminate sentence of twelve (12) years, one (1) day of reclusión temporal as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusión temporal as maximum, plus accessory penalties; and orders him to pay the victim ₱50,000 civil indemnity, ₱50,000 moral, and ₱30,000 exemplary damages, all with interest at 6% per annum from finality until fully paid.
(Separate judgment for §29 RA 10591 follows.)
10. Practical Checklist for Practitioners
| Prosecution | Defense |
|---|---|
| Secure Incident Report, Sworn Statements quickly | Scrutinize qualifying circumstances – treachery must be proved |
| Coordinate with PNP-CrimeLab for same-day ballistics, GSR | Challenge chain of custody of firearm & slugs |
| Obtain FEO-PNP Certification on firearm registration | Explore plea to Attempted Homicide |
| Allegation of loose-firearm aggravation must appear in the information | Raise demurrer to evidence if intent to kill weak |
| Prepare medical records & doctor testimony to establish seriousness | Argue incomplete elements → possibly only Serious Physical Injuries |
11. Conclusion
Attempted murder involving a firearm in the Philippines straddles both classic penal-code doctrine (attempt stages, qualifying circumstances, penalties) and modern firearm-control policy via RA 10591. Practitioners must:
- Plead with specificity – state the qualifying circumstance and whether the firearm is loose.
- Observe dual-track charging under §29 RA 10591 when the gun is unlicensed.
- Anticipate bail – the accused is generally entitled, so evidence preservation is vital.
- Master forensic protocols – ballistics and firearm-registry certificates often decide the case.
- Compute penalties precisely – account for Art. 51 downgrades and RA 10591 upgrades.
With these moving parts in place, the justice system can balance the constitutional rights of the accused with society’s interest in deterring gun-related violence.