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Arnel Colinares vs.

G.R. No. 182748.December 13, 2011.*

At around 7:00 in the evening on June 25, 2000, Rufino and Jesus
Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took
a leak by the roadside with Rufino waiting nearby. From nowhere, Arnel sneaked
behind and struck Rufino twice on the head with a huge stone, about 15 inches in
diameter. Rufino fell unconscious as Jesus fled.
The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel)
with frustrated homicide before the Regional Trial Court (RTC) of San Jose,
Camarines Sur.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond
reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment
from two years and four months of prision correccional, as minimum, to six years
and one day of prision mayor, as maximum. Since the maximum probationable
imprisonment under the law was only up to six years, Arnel did not qualify for
Arnel appealed to the Court of Appeals (CA), invoking self-defense and,
alternatively, seeking conviction for the lesser crime of attempted homicide with the
consequent reduction of the penalty imposed on him. The CA entirely affirmed the
RTC decision but deleted the award for lost income in the absence of evidence to
support it. Not satisfied, Arnel comes to this Court on petition for review.
(1)W/N Arnel acted in self-defense when he struck Rufino on the head
with a stone?
(2)W/N Arnel is guilty of frustrated homicide?

W/N he may still apply for probation on remand of the case to the trial

(1) No, Arnel failed to prove the element of unlawful aggression.
Unlawful aggression contemplates an actual, sudden, and unexpected attack or an
imminent danger of such attack. A mere threatening or intimidating attitude is not
enough. The victim must attack the accused with actual physical force or with a
(2) No, The court finds the accused guilty of attempted homicide, There is a
dearth of medical evidence on record to support the prosecutions claim that Rufino
would have died without timely medical intervention. When the accused intended to
kill his victims as a shown by his use of a deadly weapon and the wounds he
inflicted but the victim did not die because of timely medical assistance, the crime
is frustrated murder or frustrated homicide, if the victims wounds are not fatal, the
crime is only attempted murder or attempted homicide.

(3) Yes, An accused may be allowed to apply for probation even if he has filed
a notice of appeal, provided that his appeal is limited to the following grounds: 1.
When the appeal is merely intended for the correction of the penalty imposed by
the lower court, which when corrected would entitle the accused to apply for
probation; and 2. When the appeal is merely intended to review the crime for which
the accused was convicted and that the accused should only be liable to the lesser
offense which is necessarily included in the crime for which he was originally
convicted and the proper penalty imposable is within the probationable period.

Doctrine: In view of the provision in Section 4 of the Probation Law that no

application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction, prevailing jurisprudence
treats appeal and probation as mutually exclusive remedies because the law is
unmistakable about it.

Penalty: Four months of arresto mayor, as minimum, to two years and four months
of prision correccional, as maximum, without prejudice to petitioner applying for
probation within 15 days from notice that the record of the case has been remanded
for execution to the Regional Trial Court. 1

Section 4 of the Probation Law provides that the application for probation must be filed with the trial
court within the 15-day period for perfecting an appeal. The need to file it within such period is
intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail themselves
of probation at the first opportunity. If the application for probation is filed beyond the 15-day period,
then the judgment becomes final and executory and the lower court can no longer act on the
application for probation. On the other hand, if a notice of appeal is perfected, the trial court that
rendered the judgment of conviction is divested of any jurisdiction to act on the case, except the
execution of the judgment when it has become final and executory.