G.R. No.

140550

February 13, 2002

PEOPLE OF THE PHILIPPINES, appellee, vs. EDGAR AYUPAN, GERRY HABLONA (at large), accused, EDGAR AYUPAN, appellant. When the evidence does not establish how the aggression commenced, treachery cannot be appreciated to qualify a killing to murder. In the present case, the lone prosecution witness did not see how the attack on the victim was initiated. Hence, the crime is only homicide, not murder. The Case Edgar Ayupan appeals the August 12, 1999 Decision1 of the Regional Trial Court (RTC) of Iloilo City (Branch 33) in Criminal Case No. 32949, finding him guilty of murder and sentencing him to reclusion perpetua. The Information, dated April 17, 1989 and signed by Second Assistant Provincial Prosecutor Irene S. Panigbatan, charged appellant as follows: "That on or about the 27th day of June, 1984 in the Municipality of Batad, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, conspiring, confederating and cooperating, with an unidentified companion, with treachery, evident premeditation and taking advantage of their superior strength, and a decided purpose to kill, did then and there wilfully, unlawfully and feloniously, attack, assault and stab several times the victim FRANCISCO MENDOZA using the bladed weapon the accused were provided at that time, thereby hitting him and inflicting upon FRANCISCO MENDOZA several stab wounds on different parts of his body which caused his death."2 With the assistance of counsel,3 appellant pleaded not guilty when arraigned on November 28, 1995.4 After trial, the RTC rendered its Decision, the dispositive portion of which reads: "Based on the foregoing, this Court hereby decrees that: "1. Accused Edgar Ayupan is guilty of the crime of Murder as defined and penalized by paragraph 1, Article 248 in its further relation to paragraph 16, article 14 of the Revised Penal Code, as proven beyond reasonable doubt; "2. Accused Edgar Ayupan is meted the penalty of reclusion perpetua by reason of the absence of any aggravating or mitigating circumstance; "3. Accused Edgar Ayupan is directed to indemnify the heirs of deceased-victim Francisco Mendoza [in] the amount of P50,000.00 without subsidiary imprisonment in case of insolvency; "4. The Director of [the] Bureau of Correction, Muntinlupa City is directed to credit in favor of the accused Edgar Ayupan the duration of his preventive detention reckoned from 24 January 1995 until the promulgation of this Decision. "SO ORDERED."5 The Facts Version of the Prosecution The prosecutions version of the facts is summarized by the Office of the Solicitor General, as follows:6 "On June 26, 1984, prosecution witness Helen Batislaong accompanied by her younger sister, Juvy, and her cousin, Joseph, arrived at the dance hall of Crossing Hamod, Batad, Iloilo Province at around 9:00 p.m. At around 12:00 oclock midnight,

Batislaong heard a commotion inside the dance hall. Concerned that her cousin might be involved in the fight, since he was no longer near her, Batislaong ran to the center of the dance floor. She did not see her cousin but instead, it was the sight of a bloodied Francisco Mendoza lying down on the floor which confronted her. Francisco Mendoza, who is also her relative since her mother and his father are cousins was being stabbed repeatedly in the chest by appellant Edgar Ayupan who was kneeling over the victim. Batislaong knows appellant since they both reside in Batad. Batislaong saw everything clearly since she was only four (4) meters away from the attacker and the victim. Furthermore, there was a light bulb brightly illuminating the scene. "Horrified, Batislaong shouted at appellant, demanding why he was stabbing Francisco Mendoza when as far as she knew her relative had done no wrong. She shouted for people to help Mendoza. But since most of the people ran away, nobody assisted them. Appellant and his companions ran away after stabbing the victim. Finally, the barangay captain came and investigated the incident. Weak after witnessing the stabbing incident, Batislaong was brought home by the barangay captain. "Batislaong was not able to report the incident immediately because at that time she was nervous and afraid. A week after the incident, she was able to relate the circumstances surrounding the killing to Atty. Teodosio. Atty. Teodosio told her that they ha[d] two other witnesses to the killing which he felt were quite sufficient in prosecuting appellant. But he told her that he would call her if the need arises. "Dr. Noel C. Posadas, a retired rural health physician and a resident of Batad, conducted the autopsy on the cadaver of the victim. He testified that the victim received three (3) stab wounds on the chest, the third of which was fatal. The immediate cause of death was shock and hemorrhage." (Citations omitted) Version of the Defense Appellant, on the other hand, presented the following version of the facts:7 "Accused Edgar Ayupan testified that he did kn[o]w the victim but he did not stab him. On June 26, 1984, he and his companions Gerry Hablona, Roquito Penuela and Efren Hablona were at the dance party. Before entering the dance hall, the barangay tanod at the gate, frisked him and his companions. Once inside the hall, he invited a lady to dance with him. At said instance, the victim slapped his hand. When he turned his head, he saw the victim and the latter immediately boxed him. Hit at the bridge of his nose, he lost his consciousness. Gerry Hablona and Roquito Penuela brought him out of the dance hall when he regained his consciousness. He did not know Helen Batislaong; he did not leave his barangay. He only learned of the charge against him when he was arrested on June 21, 1995. "Roquito Penuela corroborated the testimony of accused Ayupan that before they entered the dance hall on June 26, 1984 at Barangay Hamod, they were bodily frisked. At about 1:00 early morning of June 27, 1984, accused Ayupan approached a woman. At said instance, the hand of the x x x victim slapped the hand of the accused. Accused Ayupan then boxed the latter on the nose. Accused fell down. When the victim went away and walked towards the center of the dance hall, somebody met him and stabbed him many times and [a] commotion took [place] and people were running. At that time, accused Ayupan was still lying down. He carried the accused out of the dance hall and went home when [the] accused regained his consciousness." Ruling of the Trial Court Giving full faith and credence to the testimony of Helen Batislaong, the trial court held that the witness, having been at the locus criminis had the opportunity to see and observe the specific details of the crime. The RTC disbelieved appellants defense of denial and rejected the evidence of good moral character offered by the defense witnesses. It held that this defense was based purely on conjecture and might have even been fabricated, since it was unsubstantiated by concrete details.8 Further, it ruled

that the flight of appellant after the commission of the crime was an indication of his guilt. Hence, this appeal.9 The Issue Appellant raises this lone assignment of error for our consideration: "The trial court erred in convicting the accused-appellant Edgar Ayupan of the crime of murder despite the insufficient, unreliable testimony of prosecution lone witness Helen Batislaong."10 This Courts Ruling

COURT: (to witness) Where is that dance hall? THE WITNESS: At Hamod, Batad, Iloilo. xxx xxx xxx

Q In going [to] the dance hall from your house, [did] you have any companions? A My younger sister and my cousin. xxx Q A xxx xxx

The appeal is partly meritorious. Appellant should be convicted only of homicide. Main Issue: Credibility of Lone Witness Appellant argues that the lower court erred in relying on the testimony of the lone prosecution witness, Helen Batislaong, because her testimony was not corroborated by other witnesses. We disagree.11 It is well-settled that the testimony of a lone witness if found by the trial court to be positive, categorical and credible is sufficient to support a conviction. This is so, especially if the testimony bore the earmarks of truth and sincerity and was delivered spontaneously, naturally and in a straightforward manner.12 Corroborative evidence is necessary only when there are reasons to suspect that the witness bent the truth, or that his or her observation was inaccurate.13 Evidence is assessed in terms of quality, not quantity. It is to be weighed, not counted.14 Therefore, it is not uncommon to reach a conclusion of guilt on the basis of the testimony of a lone witness.15 In the case at bar, the prosecution could have presented two other witnesses, Rodrigo L. Demayo and Noel T. Estebal, but both died before they could testify.16 Be that as it may, the trial court found Batislaongs narration of the incident straightforward and categorical. She testified thus: "ATTY TEODOSIO ON DIRECT EXAMINATION: May it please the honorable court. Q Miss Batislaong, you said you are a resident of Batad, Iloilo[;] since when have you been a resident of Batad, Iloilo? A Q A Since I was small. Do you know the accused in this case Edgar Ayupan? Yes, sir. Q Q If he is present inside this courtroom will you please point to us Edgar Ayupan? A Q Yes, sir. Where is he? A Q A

What was your purpose in going to the dance hall? To watch the dance.

Q At about 12:00 oclock midnight[,] June 26, 1984, could you tell us if there was anything unusual that happened in that dance hall? A There was a commotion.

Q Where were you when you noticed that there was a commotion? A I was inside the dance hall on the bench.

Q And because you notice that there was a commotion, what did you do if any? A I ran [to] the center of the dance hall to see x x x what happened. Q Why did you r[u]n towards the middle of the dance hall to see what happened? A Because I ha[d] to see x x x who were fighting because my cousin was no longer with me. Q And what did you observe when you proceeded to the middle portion of the dance hall? A I saw Francisco Mendoza lying [down while] being stabbed by Edgar. What is the family name of this Francisco? Mendoza. And what is the family name of this Edgar? Ayupan.

A (Witness pointing to a person inside the courtroom who upon being asked his name, x x x answered Edgar Ayupan) Q On the evening of June 26, 1984, do you remember where were you? A I was at the dance hall.

Q This Edgar Ayupan whom you said was stabbing Francisco Mendoza, was he the same Edgar Ayupan whom you identified a while ago as the accused in this case? A Yes, sir.

Q And do you know what kind of weapon was being used by Edgar Ayupan when you saw him [stabbing] Francisco Mendoza?

A knife.

Q Now you said what happened to the companions of Edgar Ayupan after Edgar Ayupan ran away? ATTY. LAUREA: Incompetent, your honor, he would be incompetent as to what happened to the companions of Edgar Ayupan after he ran away. COURT: What happened to the companions after he ran away? ATTY. TEODOSIO: What happened to the companions of Edgar after Edgar Ayupan ran away? A They ran away together.

Q What was the position of Francisco Mendoza when he was stabbed by Edgar Ayupan? A Q A He was lying [down]. Where was he lying [down]? At the center of the dance hall.

Q And how about this Edgar Ayupan[,] where was he situated in relation to Francisco Mendoza when he stabbed Francisco Mendoza while the latter was lying on the ground? A Near the knee and he was kneeling. xxx xxx xxx

Q How many times did Edgar Ayupan stab Francisco Mendoza? A Many times.

Q Now after Edgar Ayupan and his companions ha[d] left, what did you do? A I shouted and cried for help for Francisco Mendoza. Then what next happened when you were there?

Q Now what did you do when you saw Edgar Ayupan kneeling somewhere on the knee portion of the body of Francisco Mendoza, at the same time stabbing Francisco Mendoza? A I shouted why he stabbed Francisco Mendoza because he ha[d] no fault. Q In what part of the body of . . Were you able to see if Francisco Mendoza was hit when he was stabbed for several times by Edgar Ayupan? A Yes, sir.

A When I was there[,] the barangay captain also went there and [saw] who was there and he was left there and I was brought by the barangay captain, because I was crying[;] since I [could] not walk, they just brought me home. Q A cousin. Were you able to reach your house? Yes, sir, I was brought by my younger sister and my

Q And could you tell the Court in what part of the body of Francisco Mendoza was hit when he was stabbed for several times by Edgar Ayupan? A On the chest.

Q Could you tell the Court how were you able to recognize Edgar Ayupan as the person whom you saw [stab] for several times Francisco Mendoza, considering that it was night? A Because I already knew him and he is also from Batad."17

Q Now after you shouted considering that you saw Edgar Ayupan [stab] Francisco Mendoza for several times what next happened? A Q A I shouted for help [for] Francisco Mendoza. Then what happened next? Nobody help[ed] us because most people ran away.

Moreover, Batislaong had a clear view of the stabbing incident as shown by the following: "ATTY. TEODOSIO: How far were you from Edgar Ayupan and Francisco Mendoza when you saw Edgar Ayupan [stab] Francisco Mendoza? A Four (4) meters.

Q After Edgar Ayupan stabbed Francisco Mendoza for several times[,] what [happened next]? A He ran away.

Q And where were you situated in relation to Francisco Mendoza who was lying on the ground when he was stabbed by Edgar Ayupan? A Somewhere on the head of Francisco Mendoza. xxx xxx xxx

Q Aside from do you know if Edgar Ayupan had other companions? A Yes, sir.

Q And where [were] his companions at that time that he was stabbing Francisco Mendoza? A Just near him.

Q What was a condition of the light at that time in that dance hall when you saw Edgar Ayupan [stab] Francisco Mendoza? A The light was bright.

And from where [did] this brightness come x x x?

THE WITNESS: Because the light [was] near x x x them because they [were] in the center of the dance hall. ATTY. TEODOSIO: That would be all for the witness. xxx That would be all."18 Based, on the foregoing, we find no reason to disturb the factual findings of the RTC. Time and time again, we have held that the credibility of witnesses is a matter best left to the determination of the trial court because of its unique advantage of observing them firsthand; and of noting their demeanor, conduct and attitude.19 It is aided by various indicia that could not be readily seen on the records. The "candid answer, the hesitant pause, the nervous voice, the undertone, the befuddled look, the honest gaze, the modest blush, or the guilty blanch"20 these reveal if the witness is reciting the whole truth or merely weaving a web of lies and deceptions. Positive Identification Well-settled is the rule that the positive identification of the accused when categorical and consistent and without any ill motive on the part of the eyewitness testifying on the matter prevails over alibi and denial which are negative and self-serving, undeserving of weight in law.21 In the present case, there is no doubt that Batislaongs testimony positively identified appellant as the perpetrator of the crime. First, she had a clear view of the stabbing incident, as she was standing just four (4) meters from the victim. Moreover, the dance hall was sufficiently illuminated. As a witness to a violent incident, she strove to see the appearance of the perpetrators of the crime and observe the manner in which it was committed.22 Second, the medicolegals testimony23 and Medical Report24 corroborated her recollection of the specific details of the crime the stabbing of the victim on the chest several times, the use of a knife, and the position of the assailant. A detailed testimony acquires greater weight and credibility when confirmed by autopsy findings.25 The fact that Batislaong is a relative of the victim does not necessarily taint her testimony. We have held that blood relationship between a witness and the victim does not, by itself, impair the formers credibility. On the contrary, relationship may strengthen credibility, for it is unnatural for an aggrieved relative to falsely accuse someone other than the real culprit.26 On the other hand, while appellant denies being the perpetrator of the crime, he admits that he was in the dance hall where the victim was stabbed to death. His claim that he was unconscious at that particular instant does not persuade. The denial by appellant is inherently weak and must fail vis--vis Batislaongs positive declaration affirming that he was at the scene of the crime and was its perpetrator.27 It was not physically impossible for him to be at the locus criminis.28 More so, undisputed is his admission that, prior to the stabbing incident, his hand was slapped by the victim when the former asked a lady for a dance.29 When there is no evidence to indicate that the principal witness for the prosecution was moved by an improper motive, the presumption is that such motive was absent, and that the witness testimony is entitled to full faith and credit.30 Between appellants denial and the witness positive testimony, there is no doubt that the latter is entitled to credence. Delay in Reporting In a futile attempt to discredit Batislaong, appellant argues that since she did not immediately report the incident to the police, her testimony deserves scant consideration. We are not convinced. xxx xxx

We have held that different people react differently to a given stimulus or type of situation, and there is no standard form of behavioral response when one is confronted with a strange, startling or frightful experience.31 Delay in a witness reporting of a crime to police authorities, when adequately explained, does not impair that witness credibility.32 In the present case, Batislaong explained that, initially, she was nervous and afraid to report the incident.33 In fact, she had to be brought home, as she was weak from crying after witnessing the stabbing incident.34 Thus, it was quite understandable that she did not immediately report the identity of the offender after the startling occurrence, which became an even more traumatic experience because she was related to the victim.35 Moreover, there is no rule that the suspect in a crime should be immediately named by a witness.36 Appellants Flight The crime happened in June 1984, and the indictments against appellant commenced only in 1995. In addition, he claims that the prosecution has no record to show that the facts of the case have been preserved. We disagree. First, as correctly pointed out by the solicitor general,37 the relevant documents had been preserved before the case was archived. Second, appellant is to blame for the delay in the prosecution of this case. A review of the records reveals that an Order for his arrest was issued on July 24, 1984.38 For failure to serve the warrant of arrest, another Order was issued on November 22, 1984, implementing an alias warrant of arrest against him.39 Because he remained at large, another alias warrant of arrest was issued on August 20, 1987.40 Thereafter, the case was archived on November 29, 1989, in view of several failed attempts to apprehend him. It was only in 1995 ten years after the commission of the crime that he was arrested by the police, although in connection with another crime attributed to him. In criminal law, flight means the act of evading the course of justice by voluntarily withdrawing oneself to avoid arrest or detention or the institution or continuance of criminal proceedings. The unexplained flight of the accused may, as a general rule, be taken as evidence tending to establish guilt.41 In the present case, it is interesting to note that as soon as the Information was filed and the corresponding warrant of arrest issued, appellant could not be found in Batad, resulting in the archiving of the case. It is thus plain that he left the place to avoid arrest and prosecution.42 If it were true that he never left Batad, as he claims, he should have been apprehended by the police a long time ago. Indeed, his flight to Masbate is an indication of his guilt. Treachery In his Reply,43 appellant argues that if he was responsible for the death of the victim, he would be guilty only of homicide, because the qualifying circumstance of treachery was not proven. We are convinced. Well-settled is the rule that treachery must be proved by clear and convincing evidence as conclusively as the killing itself.44 Any doubt as to the existence of treachery must be resolved in favor of the accused. 45 There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof, tending directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make.46 To appreciate treachery, two conditions must be present: (1) the employment of means of execution that gives the person attacked no opportunity for selfdefense or for retaliation and (2) the deliberate or conscious adoption of the means of execution.47 The RTC explained that the crime had been attended by treachery because, at the moment of its commission, appellant stabbed the victim who was lying on the ground. It rationalized that such a situation propelled the method of attack to a successful accomplishment of the criminal act without exposing the accused to any possible retaliation from the victim.48 True, the essence of treachery is the swiftness and the unexpectedness of an attack upon an unsuspecting and unarmed victim who has not given the slightest provocation.49 However, the suddenness of the attack does not by itself suffice to support a finding of alevosia, even if the purpose is to kill, so

long as the decision is sudden and the victims helpless position is accidental.50 In order to appreciate treachery as a modifying circumstance in a continuous aggression, as in the present case, it must be shown to have been present at the inception of the attack.51 We hold that the second requisite was not sufficiently established by the prosecution. It was not able to show that appellant had deliberately adopted the attack, considering that it was executed during a commotion and as a result of it.52 The lower court failed to consider that the lone eyewitness could not have had any knowledge of it. She arrived at the scene sometime after the stabbing started; thus, she could not testify on whether there was provocation on the part of the victim.53 It must be pointed out that appellant and the victim had an altercation prior to the stabbing incident. Indeed, the attack could have been done on impulse as a reaction to the latters actual or imagined provocation. Such provocation negated the presence of treachery, even if the attack may have been sudden and unexpected.54 Further, the mere fact that, according to the testimony of the medicolegal officer, several stab wounds were inflicted on the victim who was either sitting or lying down did not show treachery unless there was evidence that such form of attack had purposely been adopted by the accused.55 Also, the fact that a bladed weapon was used did not per se make the attack treacherous.56 Absent any particulars as to the manner in which the aggression commenced, treachery cannot be appreciated.57 One cannot substitute mere suppositions for a hiatus in the prosecutions evidence, as the trial court apparently did.58 Since the lone prosecution witness failed to see how the attack had been initiated on the victim, the qualifying circumstance of treachery cannot be applied.59 Thus, appellant can be convicted only of homicide,60 for which the imposable penalty under the Revised Penal Code is reclusion temporal. Applying the Indeterminate Sentence Law and considering the absence of aggravating or mitigating circumstances, the proper penalty is prision mayor in its medium period, as minimum, to reclusion temporal in its medium period, as maximum.61 WHEREFORE, the appealed Decision is hereby MODIFIED. Appellant is CONVICTED of homicide and sentenced to an indeterminate penalty of eight (8) years and one (1) day of prision mayor medium, as minimum to 14 years eight (8) months and one (1) day of reclusion temporal medium, as maximum. The civil indemnity awarded by the RTC is AFFIRMED. No pronouncement as to costs. SO ORDERED.

sharp bladed instrument, did then and there willfully, unlawfully and criminally attack, assault and stab CONCORDIO SULOGAN, inflicting upon the latter mortal wounds which caused the instantaneous death of CONCORDIO SULOGAN; to the damage and prejudice of the legal heirs of CONCORDIO SULOGAN in such amount as may be allowed by law. Contrary to and in violation of Republic Act No. 7659.2 Upon his arraignment, the accused, assisted by counsel, pleaded not guilty to the charges. Trial thereafter ensued. The Case for the Prosecution3 Concordio Sulogan and his wife Wilma resided at Zone 2, Kalasungay, Malaybalay City, Bukidnon. Concordio was a corn farmer by profession and tilled his own land, which was about 5.8 hectares. The couple had three children.4 At around 10:00 to 10:45 p.m. on December 28, 1996, Diocrly5 Binayao was standing by the Syre Highway at Kalasungay, City of Malaybalay. He and Concordio Sulogan, were watching a disco party being held at the plaza of Kalasungay, which was about thirty meters6 from where they were. The plaza was adorned with brightly colored blinking lights. There was a gate surrounding the area of the party place, and an area where the partygoers had to pay their entrance fees.7 Concordio and Diocrly sat down beside each other, cross-legged, by the side of the asphalt pavement and talked as they watched the ongoing party.8 An electric light post, which was about ten meters away, illuminated the street. Also about ten meters from where Concordio and Diocrly were sitting was a nearby store, across the street and opposite to the plaza, which was likewise lighted.9 The store was owned by SPO1 Ersie Paano.10 Jerryvie Gumayao approached the two and joined them. In a squatting position, he sat beside Concordio, to the latters right. Edmund Paano had known Concordio since he was seven years old. 11 They were first cousins12 and lived near each other in Zone 2, Kalasungay. That fateful night, Edmund was with his other cousin Kenneth in their aunties house, which was located near the plaza.13 Edmund and Kenneth decided to go to the plaza to check out the ongoing disco party. On the way, they passed by the Syre highway and saw Diocrly, Concordio, and Jerryvie, who were sitting at the edge of the asphalt road.14 Edmund walked towards them and shook Concordios hand, and thereafter proceeded to the disco place.15 When Edmund and Kenneth left, Jerryvie suddenly took out a seven-and-ahalf-inch-long knife16 with his right hand and stabbed Concordio on the left side of the chest, and again on the abdomen, also on the left side.17 Concordio fell, mortally wounded, on his back, the knife still embedded in his body. Jerryvie hurriedly left the scene, going towards the direction of their house in Zone 4.18 Diocrly walked away, and sought help to aid the fallen Concordio, in the direction of the nearby store.19 Edmund and Kenneth did not enjoy the disco because there were no ladies there for them.20 They stayed for only about fifteen minutes and headed back in the direction of the highway.21 They saw Concordio lying on his back, bloodied all over.22 Edmund ran towards the direction of his aunties house and informed the victims brother, Christopher, that Concordio was stabbed.23 Edmund went back to the scene of the crime, and found that Concordio had already been brought to the hospital. He later learned that Concordio had succumbed to his injuries and had died in the hospital. SPO1 Paano was fast asleep inside his house. He was suddenly awakened by one of his daughters and his wife, who informed him that a stabbing incident had occurred right in front of his residence.24 He immediately proceeded to the area, and saw the victim lying prostrate on the ground, beside the road.25 A crowd had by then already gathered around the crime scene. SPO1 Paanos brother Edmund revealed that the persons who were with the victim before the incident were Diocrly and Jerryvie.26 Because he was more interested in apprehending the suspect and getting on with the investigation, SPO1 Paano instructed the persons present to bring the victim to the hospital.27 SPO1 Paano immediately went to Diocrlys house and inquired about the incident. Diocrly told him that the person responsible for the stabbing of

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX G.R. No. 138933 October 28, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. JERRYVIE GUMAYAO y DAHAO @ BIVIE, appellant. DECISION This is an appeal from the Decision1 dated March 31, 1999 of the Regional Trial Court, Branch 8, Malaybalay City, Bukidnon, convicting appellant Jerryvie Gumayao of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua, and to indemnify the heirs of his victim Concordio Sulogan in the sum of P50,000. The appellant was charged in an Information, docketed as Criminal Case No. 8437-97 which reads: That on or about the 28th day of December, 1996, in the evening at Purok 2, barangay Kalasungay, municipality of Malaybalay, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill by means of treachery, with the use of a

Concordio was Jerryvie.28 SPO1 Paano then proceeded to look for Jerryvie in Purok 4, Kalasungay, City of Malaybalay, where the latters father lived. Jerryvie was not there, but his father accompanied SPO1 Paano to his residence, which was about fifty meters away.29 Jerryvie was nowhere to be found. At around 6:00 a.m. the next day, December 29, 1996, SPO1 Paano went to the Malaybalay Police Station to verify if the incident had already been recorded in the police blotter. At around 7:10 that same morning, SPO1 Boy Solito brought Jerryvie to the Malaybalay Police Station.30 Wilma Sulogan, the victims widow, testified that her husband sustained two stab wounds on the chest, above his left nipple.31 Her husband was buried on December 31, 1996. They spent P1,500 for the embalmment, and P30,000 for the wake. The coffin was a donation from the barangay.32 She also suffered sleepless nights and mental anguish upon her husbands untimely death. The Evidence for the Defense33 Jerryvie denied the charges against him. He testified that he was a long-time resident of Kalasungay, City of Malaybalay.34 He was married to Josalyn Binayao, and they lived with his mother. Jerryvie testified that he and a certain Popoy Helacio were enemies.35 The misunderstanding apparently came about when Jerryvies cousin drove without permission the motorcycle of Helacios uncle, about two years ago.36 On December 24, 1996, Jerryvie had an "encounter" with Helacio.37 At 7:00 p.m. of December 28, 1996, Jerryvie was in his aunties house, which was about 2 kilometers away from the plaza. He and three others were having a drinking spree.38 At around 9:00 p.m., Jerryvie and his companions thereafter proceeded to the plaza to participate in the ongoing disco. Upon entering the area, Jerryvie came face to face with Helacio, who challenged him to a fight.39 Jerryvie gamely asked where, and Helacio replied, "On the portion outside by (sic) this disco place."40 A fight ensued. Jerryvie punched Helacio, and the latter fell. When he got up, Jerryvie saw that he was armed with a knife and declared, "We will kill you now."41 Jerryvie replied, "Wait for me" and ran towards his mother-in-laws house. When he returned, he saw that Helacio had summoned two more companions, Edmund and Concordio. The three men surrounded him. Sulogan was able to take hold of him, twist his head, and say, "We will kill him."42 Jerryvie struggled to free himself, and was able to do so. He then took hold of Concordio and stabbed the latter with the knife, which he had tucked by his waist. Jerryvie testified that he could no longer remember how many times he stabbed Concordio.43 Jerryvie fled from the scene and went to his godfather, George. He told George that he had stabbed a person in the plaza whose identity he did not know.44 Jerryvies father thereafter arrived and told him to surrender to the authorities. Jerryvie decided to follow his fathers advice and surrendered to Boy Solito, the husband of his mothers niece, who also happened to be a policeman. On Solitos advice, Jerryvie surrendered the following morning where he was brought to the CID to be investigated. Jerryvie also testified that prosecution witness Diocrly Binayao was his brother-in-law, and that the two of them had differences because the latter did not want him to marry her sister in the first place.45 He insisted that he did not intend to kill anyone that fateful night, but when Concordio held him, he had no choice but to stab the latter.46 Lilency Liman-ay testified that Jerryvie was her nephew and that she had known him since he was a small boy. His misunderstanding with Helacio started during a drinking spree at the house of Lilencys niece. Lilencys son, along with Jerryvie, apparently used a motorcycle parked near the house. The motorcycle was owned by Helacios relative, Arlene. Arlene got angry, and Helacio joined in the fray. On December 29, 1996, Lilency woke up very early and found out that the authorities were looking for Jerryvie. She assisted the latters mother in the search, and they found Jerryvie in Lumayagan, near the BFI Nursery at Kalasungay, about two kilometers away from the latters residence. The Verdict of the Trial Court

The trial court rendered a decision on March 31, 1999, finding the accused guilty beyond reasonable doubt of the crime of murder. The dispositive portion reads as follows: WHEREFORE, the court finds accused Jerryvie Gumayao guilty of murder and penalized under Republic Act No. 7659. Considering the mitigating circumstance of voluntary surrender which is not offset by any generic aggravating circumstance, said accused is hereby sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of his victim Concordio Sulogan in the sum of P50,000.00. SO ORDERED.47 The Case on Appeal The appellant assails the decision of the trial court contending that: I THE TRIAL COURT ERRED IN NOT APPRECIATING ACCUSEDAPPELLANTS CLAIM OF SELF-DEFENSE ANENT THE STABBING INCIDENT; II THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE UNCONTROVERTED EVIDENCE ADDUCED BY ACCUSED-APPELLANT AND HIS WITNESS; III ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT ERRED IN CONVICTING HIM OF MURDER AS THE CRIME COMMITTED WAS ONLY HOMICIDE.48 According to the appellant, his passive stance, when Helacios group confronted him, proved the fact that he was not the unlawful aggressor as the prosecutions evidence tends to establish. He was surrounded by three men; Helacio was armed with a knife, and Concordio was backing up the latter. The use of a knife in inflicting the fatal blow on Concordio was justified, as it was reasonable under the circumstances then prevailing. The appellants also points out that he was clearly outnumbered and literally pushed to the limit, without any means to choose what kind of weapon with which to defend himself. Popoy Helacio, who was accompanied by the victim, was determined to attack the appellant, owing to the long-standing feud between them. That the appellant acted in self-defense in stabbing the victim is clear and convincing, as the prosecution did not present rebuttal witnesses to assail the same. The claim of self-defense is further strengthened by the fact that the appellant voluntarily surrendered to the authorities after the stabbing incident. In fact, the trial court had no other recourse but to accept the fact of voluntary surrender when the prosecution admitted the same during the trial. The appellant further insists that there was a fight between the appellant and Helacio prior to the stabbing incident. Thus, when the appellant returned to the scene, armed with a knife, the victim and his companions were forewarned of an impending danger. Thus, should the Court render a verdict of conviction, the crime committed by the appellant would only be homicide. The Office of the Solicitor General, for its part, contends that the appellants claim that he acted in self-defense when he stabbed the victim is belied by the location, nature and number of wounds inflicted. The appellant stabbed the victim on the chest and the abdomen, and the wounds proved to be fatal. Furthermore, the appellants attack on the victim was sudden, without affording opportunity on the part of the victim to defend himself. As such, the appellant committed murder, not homicide. The Courts Ruling The appellants contentions are devoid of merit.

The Court has consistently held that like alibi, self-defense is an inherently weak defense because it is easy to fabricate.49 In a case where self-defense is invoked by the accused, the burden of evidence is shifted on him to prove, with clear and convincing evidence, the following essential requisites: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to repel or prevent it; and (c) lack of sufficient provocation on the part of the person defending himself. There can be no complete or incomplete self-defense unless the accused proves unlawful aggression on the part of the victim.50 The accused must rely on the strength of his evidence and not on the weakness of the evidence of the prosecution. This is so because in pleading self-defense, the accused thereby admits to the killing and can no longer be exonerated of the crime charged if he fails to prove the confluence of the essential requisites of self-defense.51 The appellant failed to discharge his burden. First. After stabbing Concordio, the appellant fled from the situs criminis. Flight is a veritable badge of guilt and negates the plea of self-defense. Second. Although the appellant surrendered to the police authorities early the next day, he failed to inform them that he acted in self-defense when he stabbed the victim. Moreover, the records show that the Municipal Circuit Trial Court of Malaybalay issued a subpoena on January 10, 1997, requiring the appellant to submit his counter-affidavit, but the latter failed to do so. It was only during the trial that the appellant, for the first time, invoked selfdefense. Third. The appellant stabbed the victim twice on the chest, and both wounds proved fatal. As correctly contended by the prosecution, the nature and the number of the wounds of the victim negate the appellants claim that he acted in self-defense. On the contrary, they prove that the appellant was determined to kill the victim.52 Fourth. As found by the trial court, the appellant made inconsistent and conflicting statements. During the direct examination, the accused told the court that it was only with Popoy Helacio that he was to have a confrontation. It was only when he went back to the plaza with a knife that he found that Helacio had already summoned two companions.53 However, when the court questioned the appellant how he and Helacio met that fateful night at the disco entrance, the appellants version of the story changed, such that the victim was already a participant in the fray, even before the appellant went back to the plaza to get a knife.54 Thus, the appellants testimony is inconsistent on material points, and cannot be given credence. Case law has it that the trial courts findings of facts, its calibration of the collective testimonies of witnesses, its assessment of the probative weight of the evidence of the parties, as well as its conclusions anchored on the said findings, are accorded great weight, and even conclusive effect, unless the trial court ignored, misunderstood or misinterpreted cogent facts and circumstances of substance which, if considered, would alter the outcome of the case. This is because of the unique advantage of the trial court to observe, at close range, the conduct, demeanor and the deportment of the witnesses as they testify.55 Upon careful review of the records of the case, the Court finds no cogent reason to overrule the trial courts finding that the appellant stabbed the victim in cold blood. An eyewitness account, coupled with the fact of the victims death, are sufficient proof of the guilt of the appellant, beyond cavil of doubt, for the crime of murder.56 In this case, the appellant failed to show any ill or improper motive on the part of Diocrly to impute the crime of murder to the appellant, for which the latter could be sentenced to reclusion perpetua. As this Court had the occasion to state in People v. Sibonga:57 This Court has consistently ruled that the testimony of a single prosecution witness, as long as it is positive, clear and credible is sufficient on which to anchor a judgment of conviction. Corroborative or cumulative evidence is not a prerequisite to the conviction of the accused. Truth is established not by the number of witnesses but by the quality of their testimonies.58 The trial court found Diocrly to be a credible witness. He testified that he was very sure that Jerryvie was Concordios assailant, since the scene of the crime was adequately lighted: Q: Now, considering that, that was 10:45 in the evening already of December 28, 1996, how were you able to really recognize Jerryvie to be the one who stabbed Concordio?

A: I saw him. Q: That is why, why were you very sure that, that was he who stabbed? A: The moon was bright. Q: Other than the moon was bright what light [sic], if there was any? A: The electric lights coming from the electric bulb of the store and the disco dance area. Q: Now you mentioned of [the] street lights a little while ago, what kind of light installed in that street light [sic]? A: A big lamp. Q: Have you seen a very big lamp along Fortich Street, is that a big lamp also at Kalasungay? A: Yes.59 The Crime Committed by the Appellant The trial court correctly convicted the appellant of murder, qualified by treachery under Article 248 of the Revised Penal Code. There is treachery in the commission of the crime when (a) at the time of the attack, the victim was not in a position to defend himself; (b) the offender consciously and deliberately adopted the particular means, method and form of attack employed by him. Even a frontal attack may be considered treacherous when sudden and unexpected, and employed on an unarmed victim who would not be in a position to repel the attack or to avoid it.60 In this case, the victim was merely sitting on the pavement at the edge of the road, chatting with a friend as they watched an on-going disco party. The appellant joined them, without giving the victim any inkling as to the tragedy that was about to befall the latter. Suddenly, and without warning, the appellant pulled out the knife hidden in his waist, and stabbed the victim twice, on vital parts of the body, ensuring the latters immediate death. Thus, the appellant killed the victim in a treacherous manner. Reclusion perpetua is an indivisible penalty.61 As such, the circumstance of voluntary surrender will not affect the penalty to be meted on the appellant, since under Article 63 of the Revised Penal Code, the penalty of reclusion perpetua must be applied regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime. Civil Liabilities of the Appellant The trial court correctly awarded to the heirs of the victim civil indemnity in the amount of P50,000, which needs no other proof than the death of the victim.62 The trial court was, likewise, correct in not awarding actual damages to the said heirs, considering that there were no receipts to support them.63 The heirs are, nevertheless, entitled to temperate damages in the amount of P25,000.64 Finally, the trial court was correct in not awarding damages for lost earnings. The prosecution merely relied on Wilma Sulogans self-serving statement, that her husband was earning more or less P40,000 a year as a corn farmer. Compensation for lost income is in the nature of damages, and requires adequate proof thereof. For loss of income due to death, there must be unbiased proof of the deceaseds average income as well as proof of average expenses. The award for lost income refers to the net income of the deceased; that is, the total income less average expenses. No proof of the victims average expenses were adduced in evidence; as such, there can be no reliable estimate of lost earnings.65 WHEREFORE, the assailed Decision of the Regional Trial Court, Branch 8, Malaybalay City, Bukidnon, in Criminal Case No. 8437-97 is AFFIRMED with MODIFICATION. Appellant Jerryvie Gumayao y Dahao is found GUILTY of murder, qualified by treachery, penalized under Republic Act No. 7659, and is sentenced to reclusion perpetua. The appellant is ordered to pay the heirs

of the victim Concordio Sulogan P50,000 as civil indemnity; P50,000 as moral damages; and P25,000 as temperate damages. SO ORDERED.

Fernando, Pampanga, where she was examined.10 The Medico Legal O.B. Gyne Report indicated multiple superficial healed lacerations.11 The victim, who was already six years old when she testified in court,12 positively identified the appellant during the trial and testified on the affidavit she executed before the police officers of xxx, Pampanga.13 Appellant's version of the incident is one of denial and alibi. He testified that he was the driver of BBB who lived in Barangay xxx, xxx, Pampanga which is a kilometer away from his place in Sulipan.14 Appellant usually leaves his house at 7:00 a.m. and stays at his workplace up to 7:30 p.m. or sometimes even up to 10:00 p.m. when necessary.15 His job was to drive his employer whenever the latter had appointments in Manila.16 When BBB had no appointments, he drove a passenger jeepney plying San Fernando, Pampanga and Malolos, Bulacan, a route which passed Sulipan.17 On July 17, 1999, appellant drove his employer to the Wheels Motor Shop at E. Rodriguez Avenue, Quezon City leaving Apalit at 9:00 a.m. and returning at 8:30 p.m. On July 18, 1999, appellant left his house at 6:00 a.m. arriving at his workplace at 7:30 a.m. and from there he delivered surplus bumpers to Malinta, Manila.18 On July 19, 20, 21 and 22, 1999, appellant plied the San Fernando-Malolos route on board his passenger jeepney.19 On July 23, 1999, appellant went to Makati leaving xxx at 10:00 a.m., returning only at 10:00 p.m.20 On July 30, 1999, between 6:30 to 7:30 a.m.,21 he was sweeping the ground in front of his house when a white car pulled over.22 The vehicle's occupants introduced themselves as police officers and asked him if he was Rene Santos.23 Thereafter, he was taken to the police headquarters for questioning. Once they arrived at the headquarters, he was detained and remained in detention up to the time of his trial.24 We have examined the evidence on record and find no cogent reason to disturb the findings of the trial court and the Court of Appeals. We accord great respect on the findings of the trial court on the credibility of witnesses and their testimonies, for the trial judge observes the behavior and demeanor of the witnesses in court. His evaluation or assessment of the credibility of witnesses and of testimony acquires greater significance in rape cases because from the nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the victim's testimony."25 This credibility given by the trial court to the rape victim is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe the witnesses, particularly their demeanor, conduct and attitude during the direct and cross-examination by counsel.26 It is likewise well established that the testimony of a rape victim is generally given full weight and credit, more so, if she is a 5-year-old child as in this case. The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint. In so testifying, she could only have been impelled to tell the truth, especially in the absence of proof of ill motive.27 The trial court and the Court of Appeals gave credence to the testimony of AAA who was only six years old when she narrated the sordid details of her ravishment, viz: FISCAL PINEDA Questioning If Rene Santos is inside this courtroom, can you point at him?

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX G.R. No. 172322 September 8, 2006

PEOPLE OF THE PHILIPPINES, appellee, vs. RENE SANTOS, appellant. For allegedly sexually assaulting 5-year-old AAA, Rene Santos was charged with Rape in an Information1 alleging That on or about in the afternoon of between 17th and 23rd of July 1999 in the [B]arangay of xxx, [M]unicipality of xxx, [P]rovince of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, RENE SANTOS, with lewd designs and by means of deceit, force and intimidation, did then and there willfully, unlawfully and feloniously succeeded in having carnal knowledge with AAA, 5 years of age, against her will. Contrary to law. Upon arraignment, appellant pleaded not guilty to the charge.2 Trial thereafter ensued, after which the Regional Trial Court of Macabebe, Pampanga, Branch 55, rendered judgment3 imposing the death penalty thus: WHEREFORE, on the basis of all the foregoing, the Court finds the accused guilty beyond reasonable doubt of the crime of Rape penalized under Article 335 of the Revised Penal Code, and as a consequence of which, this Court hereby sentences him to suffer the mandatory penalty of death and to indemnify the offended party in the amount of P75,000.00 and to pay the costs of the proceedings. SO ORDERED.4 Owing to the imposition of the death penalty, the case was elevated to the Court for automatic review. Pursuant, however, to the ruling in People v. Mateo,5 the case was referred to the Court of Appeals for evaluation in a Resolution dated September 7, 2004.6 In his appeal, appellant alleged that 1. THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE OF THE ACCUSED THAT WOULD EXCULPATE HIM FROM THE CRIME OF RAPE. 2. THE TRIAL COURT ERRED WHEN IT IMPOSED UPON THE ACCUSED THE MAXIMUM PENALTY OF DEATH. In its Decision7 dated October 19, 2005, the appellate court affirmed the judgment of conviction and, in addition to the P75,000.00 civil indemnity imposed, ordered appellant to pay P50,000.00 as moral damages and P25,000.00 as exemplary damages. The prosecution's version of the incident narrates that sometime between July 17 and 23, 1999, AAA was playing at the northern portion of xxx Bridge, xxx, Pampanga, when she was taken by appellant and brought to his house, which is about one kilometer away from AAA's residence. While inside the house, appellant took off the clothes of AAA and had sexual intercourse with her.8 The victim felt pain and her vagina bled.9 After a complaint was lodged with the barangay and the police authorities, AAA was brought to the Jose B. Lingad Memorial Regional Hospital in San

WITNESS Answering Yes, sir. Q Please point at him? A There he is, sir. INTERPRETER

Witness pointed to a person inside the courtroom who [when] asked gave his name as Rene Santos. Q Between the period of July 17 to 23, 1999, do you remember where were you? A Yes, sir. Q Where were you then? A... Q You said you know this Rene Santos, why do you know him? A Because he raped me, sir. Q Can you remember when was that? A Yes, sir. Q When? WITNESS Answering

Q You said that Rene Santos inserted his penis into your vagina, what did you feel? A I felt pain, sir. Q When he inserted his penis into your vagina did he have any clothings (sic)? A... ATTY. VIOLA Leading, Your Honor. COURT Reform the question. FISCAL PINEDA Questioning When he inserted his penis into your vagina, what was his appearance? WITNESS

I do not know when, sir. Answering FISCAL PINEDA It was hard, sir. Questioning Q What was hard? Do you recall where? A His penis, sir. A In their house, sir. COURT Q And where is that house? Questioning A In Sulipan, sir. Is this Rene Santos inside this courtroom? Q In Apalit, Pampanga? WITNESS A Yes, sir. Answering Q You said that this Rene Santos raped you, what particular actuations did he do? A He inserted his penis, sir. Q Where? A Here, sir, in my vagina. INTERPRETER Witness pointing to her private organ. Q Where did that happen? A In their house, sir. Q In what portion of his house? A Inside their house, sir. Yes, sir. Q Point to him? A There he is, sir. INTERPRETER Witness pointed to a person inside the courtroom who when asked gave his name as Rene Santos.28 (Emphasis and italics supplied) Counsel for the defense attempted, albeit futilely, to impeach the credibility of the victim.29 We have held time and again that testimonies of rape victims who are young and immature, as in this case, deserve full credence considering that no young woman, especially one of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subject to a public trial if she was not motivated solely by the desire to obtain justice for the wrong committed against her. It is highly improbable for an innocent girl of tender years like the victim, who is very naive to the things of this world, to fabricate a charge so humiliating not only to herself but also to her family. Stated succinctly, it is

beyond the mind-set of a six-year old child, like the offended party herein, to fabricate a malicious accusation against appellant if the crime did not truly transpire.30 Verily, when a guileless girl of six credibly declares that she has been raped, she has said all that is necessary to prove the ravishment of her honor.31 Appellant's reliance on the corroboration by his wife of his alibi cannot overturn the clear and categorical declarations of the victim identifying him as the perpetrator of the crime. The corroboration should, furthermore, be received with caution coming as it does from appellant's spouse whose emotional ties and interest in his acquittal cannot be gainsaid. Indeed, it has even been held that some wives are overwhelmed by emotional attachment to their husbands such that they knowingly or otherwise suppress the truth and act as a medium for injustice to preponderate.32 In addition to his defense of alibi, appellant further faults the trial court with "acting as the prosecutor and the judge at the same time"33 for allegedly initiating and propounding "the questions, short of supplying the desired answer from the witness."34 The argument is tenuous. As has been pointed out in People v. Guambor:35 The trial judge is accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability and willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. (Emphasis supplied) The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a child witness. 36 Under Sections 19 to 21 of the Rules on Examination of a Child Witness,37 child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice.38 It must be borne in mind that the offended party in this case is a 6-year old minor who was barely five when she was sexually assaulted. As a child of such tender years not yet exposed to the ways of the world, she could not have fully understood the enormity of the bestial act committed on her person. Indeed Studies show that children, particularly very young children, make the "perfect victims." They naturally follow the authority of adults as the socialization process teaches children that adults are to be respected. The child's age and developmental level will govern how much she comprehends about the abuse and therefore how much it affects her. If the child is too young to understand what has happened to her, the effects will be minimized because she has no comprehension of the consequences. Certainly, children have more problems in providing accounts of events because they do not understand everything they experience. They do not have enough life experiences from which to draw upon in making sense of what they see, hear, taste, smell and feel. Moreover, they have a limited vocabulary. With her limited comprehension, the child could not have a perfect way of relating that she had been sexually abused. 39 (Emphasis and italics supplied) The record discloses that the questions propounded by the judge were intended to elicit the truth from the child witness. This perceived undue inquisitiveness of the judge did not unduly harm the substantial rights of the appellant. In fact, it is only to be expected from the judge who, with full consciousness of his responsibilities could not, and should not, easily be satisfied with incompleteness and obscurities in the testimonies of the witness.40

While judges should as much as possible refrain from showing partiality to one party and hostility to another, it does not mean that a trial judge should keep mum throughout the trial and allow parties to ask questions that they desire, on issues which they think are important, when the former are improper and the latter immaterial. If trials are to be expedited, judges must take a leading part therein, by directing counsel to submit evidence on the facts in dispute by asking clarifying questions, and by showing an interest in a fast and fair trial. Judges are not mere referees like those of a boxing bout, only to watch and decide the results of a game; they should have as much interest as counsel in the orderly and expeditious presentation of evidence, calling attention of counsel to points at issue that are overlooked, directing them to ask the question that would elicit the facts on the issues involved, and clarifying ambiguous remarks by witnesses. Unless they take an active part in trials in the above form and manner, and allow counsel to ask questions whether pertinent or impertinent, material or immaterial, the speedy administration of justice which is the aim of the Government and of the people cannot be attained.41 Appellant also invites the Court's attention to what he perceives as uncharacteristic behavior of the victim who, according to him, should be traumatized after undergoing "the onslaught of sexual molestation."42 He insists that it is unnatural for the 6-year old victim to go to school the day following her supposedly shocking experience. He also points out that "she was answering not as seriously as one who has been sexually molested."43 The contention is neither novel nor persuasive. There is no standard form of behavior that can be expected of rape victims after they have been defiled because people react differently to emotional stress.44 Nobody can tell how a victim of sexual aggression is supposed to act or behave after her ordeal.45 Certainly, it is difficult to predict in every instance how a person especially a 6-year old child, as in this case would react to a traumatic experience.46 It is not proper to judge the actions of rape victims, especially children, who have undergone the harrowing experience of being ravished against their will by the norms of behavior expected under such circumstances from mature persons.47 Indeed, the range of emotions shown by rape victims is yet to be captured even by calculus.48 It is thus unrealistic to expect uniform reactions from them.49 In fact, the Court has not laid down any rule on how a rape victim should behave immediately after her ravishment.50 In his attempt to extricate himself from criminal liability, appellant further insinuates that his sons may be the possible perpetrators of the felony saying that "it could have been Rene Santos, Jr. or Michael Santos who could have raped the victim" considering that AAA and her sister CCC allegedly complained earlier that they were raped by the two brothers.51 If at all, the foregoing suggestion that his sons may have been the malefactors who sexually assaulted the victim and her sister only succeeds in underscoring his moral depravity and his capacity to commit the crime. Only one whose degree of wickedness plumbs the deepest depths of criminal perversity would have no qualms of laying the onus of his guilt even on his own offspring and, worse, blacken the memory of one of them who is already dead in his endeavor to exculpate himself from the consequences of his felonious acts. Much less convincing is appellant's proposition that ill feelings and ill motives of the victim's mother impelled the filing of the charges against him. Illmotives become inconsequential where there are affirmative or categorical declarations establishing appellant's accountability for the felony.52 We have, furthermore, observed not a few persons convicted of rape have attributed the charges against them to family feuds, resentment or revenge.53 However, as borne out by a plethora of cases, family resentment, revenge or feuds have never swayed us from giving full credence to the testimony of a complainant for rape, especially a minor who remained steadfast and unyielding throughout the direct and cross-examination that she was sexually abused.54 It would take a certain degree of perversity on the part of a parent, especially a mother, to concoct a false charge of rape and then use her daughter as an instrument to settle her grudge.55 Given the foregoing factual, legal and jurisprudential scenario, we agree with both the trial and appellate courts that the appellant is guilty as charged. He was, likewise, correctly meted the penalty of death because rape committed against a "child below seven (7) years old" is a dastardly and repulsive crime which merits no less than the imposition of capital punishment under Article 266-B of the Revised Penal Code.56 That AAA was only five years old when she was ravished is clear from her birth certificate.57

However, with the passage of Republic Act No. 9346 entitled "An Act Prohibiting The Imposition Of The Death Penalty In The Philippines," the penalty that should be meted is reclusion perpetua, thus: SEC. 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Pursuant to the same law, appellant shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law. In line with prevailing jurisprudence, the Court affirms the award of P75,000.00 as civil indemnity and P25,000.00 as exemplary damages; and increases the Court of Appeals' award of moral damages from P50,000.00 to P75,000.00.58 WHEREFORE, the Decision of the Court of Appeals in CA-G.R. H.C. No. 01424 finding appellant Rene Santos guilty beyond reasonable doubt of the crime of rape and odering him to indemnify the victim the amounts of P75,000.00 as civil indemnity and P25,000.00 as exemplary damages, is AFFIRMED with the MODIFICATION that the award of moral damages is increased to P75,000.00 and that in lieu of the death penalty, appellant Rene Santos is hereby sentenced to suffer the penalty of reclusion perpetua without possibility of parole. SO ORDERED.

Q Why did you stab your wife? A Because of problems in the family. Q What do you think, will you die from your wounds? A No. Q Was it really your intention to kill your wife? A Yes, I want to die with her. The statement was not signed by Jose. On Bermas's request, it was witnessed by the barangay captain, Salustiano Botin, who was present during the recorded conversation. Jose survived to face prosecution for parricide two months later. He was convicted on July 18, 1985. 2 The principal evidence presented against him at the trial was the abovequoted statement, which was offered as a dying declaration or as part of the res gestae. Also submitted as an exhibit was the 8-inch bolo-knife used in the killing, which was turned over by Botin to the police at seven o' clock that same morning. He had received it from a neighbor of the couple who had picked it up at the scene of the killing. 3 The police had evidently neglected to look for it when they went to investigate. In his defense, Jose gave a different version of the killing of his wife. He said that he had gone to sleep early that night but was awakened when he felt a stab wound in his stomach. He could not see his assailant because it was dark. He covered the wound with his right hand but there was a second thrust that wounded him again almost in the same place. Instinctively, he curled himself into a fetal position with his hands at the back of his neck and asked, "Why did you stab me?" He received no answer but soon enough a third thrust sliced through his left arm and pierced the right part of his chest. It was then that he grabbed the fist of his attacker and the two of them wrestled in the dark for possession of the weapon. He could not recall what happened afterwards as he must have fainted. He said he also had no recollection of the statement he supposedly made before he was brought to the hospital. He recovered consciousness there only on May 4, 1980, and was then told that his wife had tried to kill him. 4 His statements were corroborated by his 18-year old son, Edwin, who testified that there was no quarrel between his parents when his father went to sleep early that night of April 29, 1980. His mother was in her usual angry mood, however. After studying his lessons, he himself went to sleep while his mother continued folding clothes. He was awakened later by the sound of a scuffle, and when he turned on his flashlight he saw his mother stabbing his father. He amplified his testimony with gestures, swinging his right arm downward in simulation of stabbing. Afraid to succor his father, he woke up his two brothers and rushed with them to their grandfather's house to seek his help. On their way out, they heard his father say, "Why did you stab me?"
5

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX G.R. No. 72244 May 8, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. JOSE AGRIPA, accused-appellant. A grisly sight awaited the authorities who had come to investigate reports of a stabbing in the house of Jose and Adelfa Agripa at barangay Humapon in Legazpi City. On the floor awash with blood, Jose was locked in a final embrace with his wife, who was already dead. Adelfa had sustained fifteen wounds and had expired due to shock and massive hemorrhage. Jose himself had four wounds in his body and was hardly alive. Because he refused to release his hold on his dead wife, the couple was rolled in a mat and rushed to the hospital. All this occurred at about one o'clock in the morning of April 30, 1980. That same morning, Corporal Wilfredo Bermas, a member of the investigating team took down the following exchange between him and Jose, 1 whom he believed to be on the verge of death: Q What is your name please? A Jose Agripa. Q Who stabbed you? A I myself. Q Who stabbed your wife? A I myself.

Edwin identified the bolo-knife as belonging to his mother, who he said usually carried it on her person for cutting leaves to cover herself whenever it rained. On two occasions, however, she used it for a different purpose. The first incident was when Adelfa stabbed Jose on the right side of his body, and the second was when she hacked Jose's upper right arm. Both incidents were reported to the barangay captain. 6 Edwin admitted loving his father more than his mother. He recalled that when he was in Grade I, his mother hanged him by the neck from a coconut tree with a piece of katsa cloth. 7 The violent nature of Adelfa was affirmed by another witness, Manuel Cardel, who testified that he was in the store of one Macedonio in the afternoon of April 29, 1980, when he heard Adelfa say she would stab Jose if he came home without any money. (As it turned out, Jose did come home without his salary, saying he would collect it the following day. This could have been the reason why Edwin observed his mother to be in a sullen mood that night.)

Cardel also recalled one time when Adelfa ran after her husband with a bolo in her hand. 8 The trial court correctly rejected the above-quoted interrogation as a dying declaration because it did not comply with all the requirements of this particular exception to the hearsay rule. The statement does not show that it was made by the declarant under the consciousness of impending death (although it is true that Jose was near death at that time). Nevertheless, it was correctly admitted as part of the res gestae, having been made soon after the startling occurrence of the multiple stabbing of Jose and Adelfa. But the mere fact that evidence is admissible does not necessarily mean that it is also credible. The testimony of a competent witness may be admissible if relevant but it is not for this reason alone believable. According to Rule 128, Sec. 3, "evidence is admissible if it is relevant to the issue and is not excluded by the law or these rules." Credibility depends on the evaluation given to the evidence by the court in accordance with the guidelines provided in Rule 133 of the Rules of Court and the doctrines laid down by this Court. 9 As the Court sees it, Jose's statement, while admissible as part of the res gestae, is not credible evidence of his criminal liability. It is quite obvious that he was not in full possession of his faculties when he made that statement, which, significantly, he did not sign. We note that when the authorities came upon the wounded couple, Jose refused to let go of his dead wife and was rolled up with her cadaver in a mat to be brought to the hospital. That was not the conduct of a rational man. Moreover, Jose was himself suffering from four stab wounds which could have cost him his life had he not been treated immediately. Given the condition of his mind and body at the time the statement was made, Jose could not be expected to think clearly and to willingly make the serious and damning confession now imputed to him. It is true that when the accused invokes the justifying circumstance of selfdefense, he loses the constitutional presumption of innocence and assumes the burden of proving, with clear and convincing evidence, the justification for his act. 10 The essential elements of self-defense, according to Article 11(1) of the Revised Penal Code, are: a) unlawful aggression: b) reasonable necessity of the means employed to prevent or repel it; and c) lack of sufficient provocation on the part of the person defending himself. We feel that all these requisites are present and have been sufficiently established in the case at bar. The accused-appellant was sound asleep when he was suddenly attacked by his wife, who fell upon him with intent to kill. There was no warning at all of the deadly assault. There was no provocation either, unless it be her frenetic anger over his failure to bring home his salary, which was not the sufficient provocation required by the law. Jose was totally unprepared for the knife thrusts in his stomach and chest that posed an immediate threat and danger to his life. Under this vicious attack, he had no choice but to defend himself against his unknown assailant and by the only means available to him. He grabbed the knife from his maddened wife and struck wildly at his would-be killer. He stabbed blindly, thinking only to save his life even as it drained from the wounds he had sustained. If it appeared later that he had wounded his wife no less than fifteen times, it was not because he was a cruel and bloodthirsty killer. The only reason was that he was fighting desperately for his very life and, animated only by his mortal fear of his unknown aggressor and moved like a wild beast by the elemental instinct for survival, did not know when to stop. Jose Agripa was a peaceful law-abiding person with no known police record. He pursued the humble tenor of his life, working quietly as a lowly laborer, struggling as best he could to provide for his wife and children. If suddenly he became a killer, it was not by inclination or design or with malice aforethought. He was merely a hapless pawn of fortune, an unfortunate victim of tragic circumstances, more so, indeed, than the wife he killed. The Court sees in this case a man dominated if not terrified by a wife given to cruelty and violence. It is not unlikely that she was paranoid. Twice before, she had hacked her husband with her bolo, and there was also that time he ran for dear life as she chased him with her trusty weapon. The act of hanging a small child by the neck from a coconut tree can hardly be called the manifestation of a normal psyche. It was this woman who, heeding the urgings of her twisted mind, decided to kill her sleeping husband in the dark even as her children slumbered peacefully nearby. A Higher Tribunal shall judge Adelfa Agripa. But this Court need not wait a minute longer to absolve the accused-appellant. Jose Agripa is innocent. There is no stronger instinct than the instinct for survival, which moved him without fault to do what he did.

WHEREFORE, the appealed decision is REVERSED and accused-appellant Jose Agripa is ACQUITTED on the ground of self-defense. It is the order of this Court that he be released immediately. No costs.

XXXXXXXXXXXXXXXXXXXXXXXXXXXX G.R. No. 181037 January 19, 2009

PEOPLE OF THE PHILIPPINES, Appellee, vs. SAIDAMEN MACATINGAG y NAMRI alias SAI, Appellant. For review is the Decision1 of the Court of Appeals in CA-G.R. CR-HC No. 01487, which affirmed in toto the June 16, 2005 Decision2 of the Regional Trial Court of San Pablo, Laguna, Branch 32 in Criminal Case No. 14730SP(04), finding appellant Saidamen Macatingag y Namri guilty beyond reasonable doubt of the crime of Violation of Section 5, Article II of Republic Act No. 9165, also known as the "Comprehensive Dangerous Drugs Act of 2002." In its Brief for the Appellee,3 the Office of the Solicitor General (OSG) presents the prosecutions version of the facts as follows: On January 17, 2004, about 8:00 oclock in the morning, the members of the Philippine National Police (PNP) in Camp Vicente Lim in Canlubang, Calamba City formed a buy-bust team because of a report from a confidential informant about the drug pushing activities of a certain "Sai," who later turned out to be appellant. The team was composed of P/Sr. Insp. Julius Cesar V. Ablan, as leader, and PO3 Marino A. Garcia as the poseur-buyer and PO3 Danilo Leona as the arresting officer, as well as two police officers. After discussing the buy-bust procedure including the pre-arranged signal which is the removal of PO3 Garcias cap, and the preparation of two P500.00 bills initialed with "MAG," the police authorities immediately proceeded to the target area at the vicinity of Phase I, Villa Antonio, San Pablo City. Upon arriving thereat about 11:30 oclock in the morning of that day, PO3 Garcia and the confidential informant waited for appellant at the entrance gate of Villa Antonio Subdivision in San Pablo City. Some twenty (20) minutes later, appellant arrived sporting black pants and dark gray t-shirt. PO3 Garcia was introduced to appellant as the prospective buyer. Appellant, on the other hand, asked PO3 Garcia about the money amounting to P52,500.00. PO3 Garcia then pulled out an envelope containing the two P500.00 bills with the boodle money from his pocket, and demanded the drugs. Appellant thereafter pulled out from his pocket one plastic sachet and handed it to PO3 Garcia. Immediately upon giving appellant the marked money, PO3 Garcia lost no time in giving the pre-arranged signal to PO3 Leona. PO3 Leona thereupon hurriedly seized from appellant the marked money, while PO3 Garcia recovered the plastic sachet containing suspected shabu from appellant. The policemen thereafter brought appellant to their station in Canlubang, Calamba City. PO3 Garcia marked the seized plastic sachet with markings "A" and "MAG" representing his initials, and the date and time of arrest. After making an inventory on the seized suspected shabu, the police authorities requested for the laboratory examination thereof with the PNP Crime Laboratory. The seized suspected sachet of shabu was shown positive for Methamphetamine Hydrochloride weighing 25.23 grams per Chemistry Report No. D-54-04 issued by P/Insp. Lorna R. Tria, Forensic Chemical Officer of PNP Crime Laboratory.4 On January 19, 2004, appellant was charged with Violation of Section 5, Article II of R.A. No. 9165,5 in an Information6 that reads: That on or about January 17, 2004, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above-named, did then and there willfully, unlawfully and feloniously sell 25.23 grams of Methamphetamine Hydrochloride (shabu), a dangerous drug, without being authorized by law. CONTRARY TO LAW.7 Appellant pleaded not guilty to the offense charged.8 He maintained that he was at home with his wife on January 17, 2004 when four armed men

suddenly entered their house, seized his money, placed handcuffs on his wrists, and forcibly brought him to the police headquarters in Bgy. Canlubang. He averred that he was not allowed to talk with anybody when he was incarcerated for two days and that he was alone during the preliminary investigation. Thereafter, he was transferred to the Bureau of Jail Management and Penology (BJMP) in San Pablo City, where he was formally charged with selling shabu. On June 16, 2005, the trial court rendered judgment convicting appellant of Violation of Section 5, Article II of R.A. No. 9165, the dispositive portion of which reads: WHEREFORE, IN VIEW OF THE FOREGOING CONSIDERATIONS, accused SAIDAMEN MACATINGAG Y NAMRI alias "SAI" is found GUILTY beyond reasonable doubt of the crime of Violation of Section 5, Article II of Republic Act 9165 also known as the "Comprehensive Dangerous Drugs Act of 2002", and there being no mitigating circumstance, accused is hereby sentenced to suffer a penalty of LIFE IMPRISONMENT and a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00), and to pay the costs. The effects of the crime are ordered confiscated in favor of the government. The custodian of the shabu subject of the case is hereby ordered to submit the same to the Dangerous Drugs Board for proper disposition within 48 hours from receipt of a copy of this judgment and the latter is given 48 hours from receipt of the same to submit an acknowledgment receipt to this Court to form part of the records of this case. SO ORDERED.9 The trial court found that all the elements of the crime charged were present and proven beyond reasonable doubt by the evidence of the prosecution and the testimonies of the poseur-buyer and the arresting officer who are presumed to have performed their duties regularly. It disregarded the allegations of the defense that appellant was a victim of a frame-up and that he was not arrested pursuant to a valid buy-bust operation. On July 31, 2007, the Court of Appeals rendered the assailed Decision which affirmed in toto the ruling of the trial court. The appellate court held that the constitutional right of appellant against warrantless arrest and search was not violated; that appellant failed to assail the legality of the arrest and the seizure of the sachet of shabu prior to his arraignment or at any stage in the proceedings of the trial court; that the arrest was pursuant to a buy-bust operation which is a valid form of entrapment of felons in the execution of their criminal plan; and that the search conducted on appellant was incidental to a lawful arrest.10 The appellate court also gave more weight and credence to the testimonies of the members of the buy-bust team because they were not shown to have been impelled by ill-motives in testifying against appellant. Hence, this petition.11

Q You were waiting for the suspects at the entrance of Villa San Antonio and then what else transpired next? A After more or less 20 minutes of waiting maam we saw a man wearing a black pants and dark gray t-shirts arrived in our position, it was introduced our confidential informant, he was introduced our confidential that as the poseur, likewise I was also introduced as the seller, [sic] I was also introduced by the confidential informant as the buyer. Q Who are the supposed to be the buyer, you were introduced as a buyer? A Yes, maam. FISCAL LAGMAN Q And this suspect who was the seller, is he present in Court today? A Yes, maam. Q Would you kindly point to him? A The 6th man from the Steel Cabinet. INTERPRETER Makikitayo, anong pangalan mo? ACCUSED Saidamen Macatingag po. xxxx FISCAL LAGMAN Q So, after the introductions were made what happened? A The seller identified the money, maam, which is amounting to P52,500.00. FISCAL LAGMAN

Appellant avers that the trial court and the Court of Appeals gravely erred in giving undue credence to the testimonies of the police officers and in upholding the presumption of regularity in the performance of their official functions. He also assails the validity of his arrest because the police officers were not armed with any warrant when he was arrested. Finally, he assails the propriety of the chain of custody of the shabu allegedly seized from him due to the non-observation of Section 21, Article II of R.A. No. 9165.12 The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.13 These elements have been proven to be present in the instant case. PO3 Garcia who acted as the poseur-buyer, categorically testified about the buybust operation from the time he was introduced by the informant to appellant as the buyer of the shabu; to the time when appellant agreed to the sale; to the actual exchange of the marked money and the heat-sealed sachet containing a white crystalline substance; and until the apprehension of appellant, to wit: A I myself together with confidential informant just walked, as well as the area and waited the poseur at the agreed place situated at the vicinity of entrance of Villa Antonio, San Pablo City.

Q What did you do? A I immediately pull out from my pocket the envelope which is contained the 2 pieces of P500 bills and the bodol money as agreed amount of P52,500. Likewise as also the seller if it has a dangerous drugs, maam. Q And then what happened? A I immediately pulled out 1 plastic sachet from his pocket and handed it over to me maam. Q One (1) plastic sachet was handed to you? A Yes, maam. Q After you handed that money? A No, maam we handed first to me the sachet and he demanded the payment of sachet, maam. xxxx

FISCAL LAGMAN Q What happened after the exchanged of the money and plastic sachet? A After I gave him the buy bust money as agreed upon before we discovered as the bodol money, I immediately executed the prearranged signal which is remove my cap, maam. Q After you removed your cap, what happened? A I saw PO3 Leona arrived and assisted me, after the arresting. Q While you were arresting this Saidamen, this accused, what did you do as a matter of procedure, what did you tell him? A We informed him the constitutional rights, maam. PO2 Leona was able to recovered this custody control of bodol money. xxxx Q So, after that, where did you bring Saidamen? A We immediately brought him at our office at Camp Vicente Lim, Canlubang, Laguna together with confiscated pieces of evidence for proper disposition. Q You said that you were able to buy 1 plastic sachet of shabu that was supposed to be worth of P52,500, would you be able to identify the plastic sachet if you will be shown to you? A Yes, maam. Q What markings did you place if any? A I put my exhibit A, my initials, the date and time of arrest included the month and year, maam. Q I am showing to you exhibit F, would you kindly tell us if this is the one that you brought from Saidamen Macatingag? A Yes, maam.14 PO3 Leona, the back-up arresting officer during the buy-bust operation corroborated PO3 Garcias testimony, thus: Q After you placed yourself 10 meters a way from the house, from the site and likewise Marino Garcia and the informant and the fence near the site, what happened thereafter? A I saw a person came out from that way near the hollow blocks fence wearing black pants and green t-shirt and I saw they were talking with our confidential informant. FISCAL COMILANG Q Could you see the person who just arrived and talked with your confidential informant on said occasion, is he in Court? A Yes, sir. Q Could you please point to him if he is present? INTERPRETER Witness pointed to a person who gave us his name as Saidamen Macatingag.

FISCAL COMILANG Q Now, Mr. Witness after the confidential informant and the accused had a conversation what did if any transpired after this conversation? A After 30 minutes I saw the pre-arranged signal that this PO3 Marino Garcia will remove his cap. Q You mean to say or to impress this court that Mr. Witness that the informant and Mr. Garcia were together when they had a transaction with the accused? A Yes, sir because the confidential informant introduced Mr. Marino Garcia to the accused. xxxx FISCAL COMILANG Q After you saw PO3 Marino Garcia removed his cap, what did you do after that? A I went to the area to help PO3 Garcia. Q What if any did you find out after helping PO3 Marino Garcia? A I arrested Saidamen and I removed from him the 2 pieces of P500 the bodol money. xxxx Q Now after recovering that 2 P500 bills from the accused what will be, were you able to recover? A I recovered from the accused the money and it was SPO3 Marino Garcia who recovered the 25 grams of shabu conducted.15 Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation.16 It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors; gross misapprehension of facts; or speculative, arbitrary, and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during the trial. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.17 The testimonies of police officers Garcia and Leona, and the sachet of shabu sold by appellant sufficiently proved the crime charged. Moreover, the prosecution was able to establish that the substance recovered from appellant was indeed shabu.18 In view of these testimonies and evidence of the prosecution, appellants denial must fail. The Court has consistently stressed that denial, like alibi, is a weak defense that becomes even weaker in the face of positive identification of the accused by prosecution witnesses.19 Moreover, appellant failed to adduce clear and convincing evidence to overturn the presumption that the arresting officers regularly performed their duties. It was not shown, by any satisfactory degree of proof, that said policemen were impelled by ill-motives to testify against him. There is, therefore, no basis to suspect the veracity of their testimonies. With regard to the validity of his arrest, evidence shows that appellant was the subject of a buy-bust operation. In this jurisdiction, the conduct of a buybust operation is a common and accepted mode of apprehending those involved in illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity.20 It catches the violator in flagrante delicto and the police officers conducting the operation are not only authorized but duty-

bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime.21 Finally, this Court likewise finds no merit in appellants contention that the police officers failed to comply with the guidelines on the chain of custody and disposition of the seized sachet of shabu as provided in Section 21, Article II of R.A. No. 9165. Testimonies of prosecution witnesses convincingly state that the integrity and the evidentiary value of the seized item was properly preserved by the apprehending officers. P03 Garcia testified that he marked the sachet of shabu with his initials, and the date and time of appellants arrest.22 PO3 Leona confirmed that he had seen PO3 Garcia mark the same sachet of shabu sold by appellant; that a letter of request for the examination of said sachet was made; and such request was received by the regional crime laboratory office. Thus: Q Were you able to see that the shabu was actually was you said that recovered PO3 Marino Garcia from the accused? A Yes, sir. COURT Q Did you put your initial in the specimen? A I was only accompanied Marino Garcia in bringing to the crime lab. FISCAL COMILANG Q Since you have seen Mr. Witness the actual shabu was taken from the accused, do you know if Mr. Garcia placed any reference on the said article, if any? A Yes, sir, the initial of Marino Garcia. Q What is that initial? A MAG. Q Mr. Witness, why do you know that police officer Marino Garcia actually placed his initial on the said specimen or item? A Everytime that we conducted the buy bust, it is our SOP to place the marking. Q Mr. Witness I will show you that item confiscated Marino Garcia from the accused on the alleged of the item, could you identify it? A Yes, sir. Q I will show to you now the plastic sachet big plastic sachet which contained white crystalline substance, could you please tell us what is the relationship of this item from that item allegedly taken by Marino Garcia from the accused on which marking was placed? A This is the item which is recovered from the accused. Mr. Garcia placed his initial. Q What is MAG? A MAG referred to Marino A. Garcia. xxxx Q After the specimen and the accused were transferred to the investigator of Regional director what happened to the accused and the specimen?

A The investigator prepared a paper for the filing of theand prepared a letter request for the examination. Q Would you specify what are those documents prepared by the investigator as pre-requisite of filing of this case? A We prepared the letter request for the crime lab request for the accused we first report to the effectdid not suffer physical injury. xxxx Q Do you know if this document was actually received by the addressee? A Yes, sir, because I was with them. Q What proof that this document was actually received by the addressee? A There was a stamp marked of receipt, sir.23 As can be gleaned from the foregoing, the seized sachet of shabu was immediately marked for proper identification and, thereafter, forwarded to the Crime Laboratory for examination. The Chemistry Report of the Regional Crime Laboratory Office stated that the specimen submitted by the apprehending officers indeed bore the marking "Exh A MAG 171200-01-14" and that the same gave positive result to the tests for the presence of Methamphetamine Hydrochloride. Forensic Chemical Officer Tria confirmed on the witness stand that she examined the specimen submitted by the PDEA and that she was the one who prepared the Chemistry Report No. D54-04.24 It is thus evident that the identity of the corpus delicti has been properly preserved and established by the prosecution. Besides, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. The appellant in this case has the burden to show that the evidence was tampered or meddled with to overcome a presumption of regularity in the handling of exhibits by public officers and a presumption that public officers properly discharge their duties.25 Appellant failed to discharge such burden. This Court has held that non-compliance with Section 21, Article II of R.A. No. 9165 will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.26 In People of the Philippines v. Del Monte,27 it was held that: Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the courts. One example is that provided in Section 31 of Rule 132 of the Rules of Court wherein a party producing a document as genuine which has been altered and appears to be altered after its execution, in a part material to the question in dispute, must account for the alteration. His failure to do so shall make the document inadmissible in evidence. This is clearly provided for in the rules. We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight evidentiary merit or probative value to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case.28 All told, We see no reason to disturb the findings of the trial court that appellant is guilty beyond reasonable doubt of illegal sale of a dangerous drug, as defined and penalized in Section 5, Article II of R.A. No. 9165. Under said provision, the illegal sale of any dangerous drug, regardless of its

quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00. For illegally selling 25.23 grams of shabu, and there being no modifying circumstance alleged in the Information, the trial court, as sustained by the Court of Appeals, correctly imposed the penalty of life imprisonment in accordance with Article 63 (2) of the Revised Penal Code29 and a fine of P500,000.00. WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 01487 dated July 31, 2007, sustaining the conviction of appellant Saidamen Macatingag y Namri for violation of Section 5, Article II of Republic Act No. 9165, and imposing upon him the penalty of life imprisonment and a fine of P500,000.00 is hereby AFFIRMED. SO ORDERED.

utilizes them in the interest of truth and fairness and the even handed administration of justice. (2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in admitting evidence adduced during trial. The ruling on admissibility is interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the ruling should be questioned in the appeal from the judgment on the merits and not through the special civil action of certiorari. The error, assuming gratuitously that it exists, cannot be anymore than an error of law, properly correctible by appeal and not by certiorari. Otherwise, we will have the sorry spectacle of a case being subject of a counterproductive "ping-pong" to and from the appellate court as often as a trial court is perceived to have made an error in any of its rulings with respect to evidentiary matters in the course of trial. This we cannot sanction. WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED. 1 From this adverse judgment, petitioner filed the present petition for review, stating: Grounds for Allowance of the Petition 10. The decision of respondent [Court of Appeals] has no basis in law nor previous decision of the Supreme Court. 10.1 In affirming the questioned order of respondent judge, the Court of Appeals has decided a question of substance not theretofore determined by the Supreme Court as the question of admissibility in evidence of tape recordings has not, thus far, been addressed and decided squarely by the Supreme Court. 11. In affirming the questioned order of respondent judge, the Court of Appeals has likewise rendered a decision in a way not in accord with law and with applicable decisions of the Supreme Court. 11.1 Although the questioned order is interlocutory in nature, the same can still be [the] subject of a petition for certiorari.
2

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX G.R. No. 110662 August 4, 1994 TERESITA SALCEDO-ORTANEZ, petitioner, vs. COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and RAFAEL S. ORTANEZ, respondents. This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of respondent Court of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez". The relevant facts of the case are as follows: On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner. The complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City presided over by respondent Judge Romeo F. Zamora. Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to "M". Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner and unidentified persons. Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June 1992; on the same day, the trial court admitted all of private respondent's offered evidence. A motion for reconsideration from petitioner was denied on 23 June 1992. A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in evidence of the aforementioned cassette tapes. On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present petition, which in part reads: It is much too obvious that the petition will have to fail, for two basic reasons: (1) Tape recordings are not inadmissible per se. They and any other variant thereof can be admitted in evidence for certain purposes, depending on how they are presented and offered and on how the trial judge

The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of Court was properly availed of by the petitioner in the Court of Appeals. The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory order. However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress. 3 In the present case, the trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when private respondent allowed his friends from the military to wire tap his home telephone. 4 Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for other

purposes" expressly makes such tape recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. . . . Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for violation of said Act. 5 We need not address the other arguments raised by the parties, involving the applicability of American jurisprudence, having arrived at the conclusion that the subject cassette tapes are inadmissible in evidence under Philippine law. WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET ASIDE. The subject cassette tapes are declared inadmissible in evidence. SO ORDERED.

where authorities are supposed to be engaged in the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when the said victim fell, by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral concussion and shock which directly caused his death. The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique "Ike" Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the Entertainment City following reports that it was showing the nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.2 At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and demanded to know why he took a picture.3 Jalbuena replied: "Wala kang pakialam, because this is my job."4 Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him.5 When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.6 Jalbuena and his companions went to the police station to report the matter. Three of the policeman on duty, including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.7 Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen minutes.8 Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: "Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?"9 Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said "Ano, uutasin na kita?"10 At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyan pumarito kami para magpa-blotter, I am here to mediate."11 Petitoner Navarro replied: "Walang press, press, mag-sampu pa kayo."12 He then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and Lingan.13 This angered Lingan, who said: "O, di ilagay mo diyan"14 Petitioner Navarro retorted: "Talagang ilalagay ko."15 The two then had a heated exchange.16 Finally, Lingan said: "Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo."17 Petitioner Navarro replied: "Ah, ganoon?"18 As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow on the forehead which floored him.19 Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si Ike Lingan and naghamon."20 He said to Sgt. Aonuevo: "Ilagay mo diyan sa blotter sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon."21 He then poked his gun at the right temple of Jalbuena and made him sign his name on the blotter.22 Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in print.23 Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy, Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries.24 Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the deceased.25 The following is an excerpt from the tape recording: Lingan: Pare, you are abusing yourself. Navarro: Who is that abusing?

XXXXXXXXXXXXXXXXXXXXXXXXXX G.R. No. 121087 August 26, 1999

FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents. This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years and eight (8) months, and (1) day of reclusion temporal, as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique "Ike" Lingan, from P30,000.00 to P50,000.00. The information against petitioner alleged That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Lucena Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters,

Lingan: I'm here to mediate. Do not include me in the problem. I'm out of the problem. xxx xxx xxx

distort the truth, testify falsehood or cause accusation of one who had neither brought him harm or injury. Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed account given by Stanley Jalbuena on how Lingan sustained head injuries. Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the head injuries of deceased Lingan were caused by the latter's falling down on the concrete pavement head first. The Court of Appeals affirmed: We are far from being convinced by appellant's aforesaid disquisition. We have carefully evaluated the conflicting versions of the incident as presented by both parties, and we find the trial court's factual conclusions to have better and stronger evidentiary support. In the first place, the mere fact that Jalbuena was himself a victim of appellant's aggression does not impair the probative worth of his positive and logical account of the incident in question. In fact, far from proving his innocence, appellant's unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly betrays his violent character or disposition and his capacity to harm others. Apparently, the same motivation that led him into assailing Jalbuena must have provoked him into also attacking Lingan who had interceded for Jalbuena and humiliated him and further challenged to a fist fight. xxx xxx xxx

Navarro: Wala sa akin yan. Ang kaso lang . . . Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here to ayusin things. Do not say bad things against me. I'm the number one loko sa media. I'm the best media man. . . . Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka! Lingan: I'm brave also. Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko. Lingan: You are challenging me and him. . . . Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh. Lingan: Pati ako kalaban ninyo. Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw! Lingan: You are wrong. Bakit kalaban nyo ang press? Navarro: Pulis ito! Aba! Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige. Navarro: Mayabang ka ah!

On the other hand, appellant's explanation as how Lingan was injured is too tenuous and illogical to be accepted. It is in fact contradicted by the number, nature and location of Lingan's injuries as shown in the post-mortem report (Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and right eyebrows, and contusion in the right temporal region of the head (Exh. E.). Certainly, these injuries could not have been resulted from Lingan's accidental fall. Hence, this appeal. Petitioner Navarro contends:

(Sounds of a scuffle) Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan. Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the concrete.26 In giving credence to the evidence for the prosecution, the trial court stated: After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the court that accused herein is criminally responsible. The defense's evidence which consists of outright denial could not under the circumstance overturn the strength of the prosecution's evidence. This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false accusation, THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD. The appeal is without merit. First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of the accused is not, for this reason alone, unreliable.27 Trial courts, which have the opportunity observe the facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her testimony should be given credence.28 In the instant case, petitioner Navarro has not shown that the trial court erred in according weight to the testimony of Jalbuena. Indeed, Jalbuena's testimony is confirmed by the voice recording had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as dictaphone or dictagraph of dectectaphone or walkietalkie or tape-recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. xxx xxx xxx

CAUSE OF DEATH: = CEREBRAL CONCUSSION & SHOCK = BLOW ON THE HEAD Dr. Yamamato testified: Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from the forehead? A It may be due to a blow on the forehead or it bumped to a hard object, sir. Q Could a metal like a butt of a gun have caused this wound No. 1.? A It is possible, sir. Q And in the alternative, could have it been caused by bumping on a concrete floor? A Possible, sir. FISCAL: What could have been the cause of the contusion and swelling under your findings No. 2 doctor? WITNESS: It may be caused by bumping to a hard object, sir.

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or investigation. Thus, the law prohibits the overhearing, intercepting, or recording of private communications.29 Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a witness (1) that he personally recorded the conversations; (2) that the tape played in the court was the one he recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong.30 In the instant case, Jalbuena testified that he personally made the voice recording;31 that the tape played in the court was the one he recorded;32 and that the speakers on the tape were petitioner Navarro and Lingan.33 A sufficient foundation was thus laid for the authentication of the tape presented by the prosecution. Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it. Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the medical certificate,34 dated February 5, 1990, containing the following findings: Post Mortem Findings: = Dried blood, forehead & face = No blood oozed from the ears, nose & mouth = Swelling, 3 cm x 2 cm, temporal region, head, right = Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left = Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow = Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left = Cyanosis of the tips of fingers & toes

Q Could a butt of a gun have caused it doctor? A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir. Q How about this findings No. 4? A By a bump or contact of the body to a hard object, sir. Q And findings No. 5 what could have caused it? A Same cause, sir. Q This findings No. 6 what could have caused this wound? A Same thing sir. Q How about the last finding, cyanosis of tips of fingers and toes, what could have caused it doctor? WITNESS: It indicates there was cardiac failure, sir. FISCAL: In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral concussion and Shock, will you explain it? A Cerebral concussion means in Tagalog "naalog ang utak" or jarring of the brain, sir. Q What could have been the cause of jarring of the brain?

A It could have been caused by a blow of a hard object, sir. Q What about the shock, what could have caused it? A It was due to peripheral circulatory failure, sir. Q Could any one of both caused the death of the victim? A Yes, sir. Q Could cerebral concussion alone have caused the death of the deceased? A May be, sir. FISCAL: Which of these two more likely, to cause death? WITNESS: Shock, sir. Q Please explain further the meaning of the medical term shock? A It is caused by peripheral circulatory failure as I have said earlier sir. xxx FISCAL: Could a bumping or pushing of one's head against a concrete floor have caused shock? WITNESS: Possible, sir. How about striking with a butt of a gun, could it cause shock? A Possible, sir.35 The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist. Third. It is argued that the mitigating circumstances of sufficient provocation or threat on the part of the offended party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone.36 The provocation must be sufficient and should immediately precede the act.37 To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity.38 And it must immediately precede the act so much so that there is no interval between the provocation by the offended party and the commission of the crime by the accused.39 In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient provocation. In People v. Macaso,40 we appreciated this mitigating circumstance in favor of the accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered in favor of petitioner Navarro. Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into account xxx xxx

in determining the penalty that should be imposed on petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended.41 In People v. Castro,42 the mitigating circumstance of lack of intent to commit so grave a wrong as that committed was appreciated in favor of the accused while finding him guilty of homicide. However, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case was committed right in the police station where policemen were discharging their public functions.43 The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstances, the penalty should be fixed in its minimum period.44 Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum period.45 The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with the current jurisprudence.46 WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison terms of 18 years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum. SO ORDERED.