[G.R. No. 135981.

January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC
GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for
acquittal on a novel theory -- the battered woman syndrome (BWS), which
allegedly constitutes self-defense. Under the proven facts, however, she is
not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her battererhusband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or
incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant
constituted a form of cumulative provocation that broke down her
psychological resistance and self-control. This psychological paralysis she
suffered diminished her will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. The acute battering she
suffered that fatal night in the hands of her batterer-spouse, in spite of the
fact that she was eight months pregnant with their child, overwhelmed her
and put her in the aforesaid emotional and mental state, which overcame her
reason and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating circumstances arising
from BWS, as well as the benefits of the Indeterminate Sentence Law, she
may now apply for and be released from custody on parole, because she has
already served the minimum period of her penalty while under detention
during the pendency of this case.
The Case
For automatic review before this Court is the September 25, 1998
Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable
doubt of parricide. The decretal portion of the Decision reads:

WHEREFORE, after all the foregoing being duly considered, the Court finds
the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the
crime of Parricide as provided under Article 246 of the Revised Penal Code as
restored by Sec. 5, RA No. 7659, and after finding treachery as a generic
aggravating circumstance and none of mitigating circumstance, hereby
sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
currency as moral damages.[2]
The Information[3] charged appellant with parricide as follows:
That on or about the 15 th day of November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to
kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA,
her legitimate husband, with the use of a hard deadly weapon, which the
accused had provided herself for the purpose, [causing] the following
wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes
protruding from its sockets and tongue slightly protrudes out of the
mouth.
Fracture, open, depressed, circular located at the occipital bone of
the head, resulting [in] laceration of the brain, spontaneous rupture
of the blood vessels on the posterior surface of the brain, laceration
of the dura and meningeal vessels producing severe intracranial
hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]

With the assistance of her counsel, [5] appellant pleaded not guilty during
her arraignment on March 3, 1997.[6] In due course, she was tried for and
convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecutions
version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19, 1983
in Ormoc City. Thereafter, they lived with the parents of Ben in their house
at Isabel, Leyte. For a time, Bens younger brother, Alex, and his wife lived
with them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived
with their two children, namely: John Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight after
receiving their salary. They each had two (2) bottles of beer before heading
home. Arturo would pass Bens house before reaching his. When they
arrived at the house of Ben, he found out that appellant had gone to Isabel,
Leyte to look for him. Ben went inside his house, while Arturo went to a store
across it, waiting until 9:00 in the evening for the masiao runner to place a
bet. Arturo did not see appellant arrive but on his way home passing the
side of the Genosas rented house, he heard her say I wont hesitate to kill
you to which Ben replied Why kill me when I am innocent? That was the
last time Arturo saw Ben alive. Arturo also noticed that since then, the
Genosas rented house appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend
and neighbor living about fifty (50) meters from her house, to look after her
pig because she was going to Cebu for a pregnancy check-up. Appellant
likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie
Dayandayan who unfortunately had no money to buy it.
That same day, about 12:15 in the afternoon, Joseph Valida was waiting for
a bus going to Ormoc when he saw appellant going out of their house with
her two kids in tow, each one carrying a bag, locking the gate and taking her
children to the waiting area where he was. Joseph lived about fifty (50)
meters behind the Genosas rented house. Joseph, appellant and her
children rode the same bus to Ormoc. They had no conversation as Joseph
noticed that appellant did not want to talk to him.

On November 18, 1995, the neighbors of Steban Matiga told him about the
foul odor emanating from his house being rented by Ben and appellant.
Steban went there to find out the cause of the stench but the house was
locked from the inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel saw. He was able
to get inside through the kitchen door but only after destroying a window to
reach a hook that locked it. Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There, he saw the lifeless body
of Ben lying on his side on the bed covered with a blanket. He was only in
his briefs with injuries at the back of his head. Seeing this, Steban went out
of the house and sent word to the mother of Ben about his sons misfortune.
Later that day, Iluminada Genosa, the mother of Ben, identified the dead
body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
assigned at the police station at Isabel, Leyte, received a report regarding
the foul smell at the Genosas rented house. Together with SPO1 Millares,
SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house
and went inside the bedroom where they found the dead body of Ben lying
on his side wrapped with a bedsheet. There was blood at the nape of Ben
who only had his briefs on. SPO3 Acodesin found in one corner at the side of
an aparador a metal pipe about two (2) meters from where Ben was, leaning
against a wall. The metal pipe measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2) inches. It had an open end
without a stop valve with a red stain at one end. The bedroom was not in
disarray.
About 10:00 that same morning, the cadaver of Ben, because of its stench,
had to be taken outside at the back of the house before the postmortem
examination was conducted by Dr. Cerillo in the presence of the police. A
municipal health officer at Isabel, Leyte responsible for medico-legal cases,
Dr. Cerillo found that Ben had been dead for two to three days and his body
was already decomposing. The postmortem examination of Dr. Cerillo
yielded the findings quoted in the Information for parricide later filed against
appellant.
She concluded that the cause of Bens death was
cardiopulmonary arrest secondary to severe intracranial hemorrhage due to
a depressed fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after work
on November 15, 1995, she got worried that her husband who was not home
yet might have gone gambling since it was a payday. With her cousin Ecel
Arao, appellant went to look for Ben at the marketplace and taverns at
Isabel, Leyte but did not find him there. They found Ben drunk upon their
return at the Genosas house. Ecel went home despite appellants request
for her to sleep in their house.

Then, Ben purportedly nagged appellant for following him, even challenging
her to a fight. She allegedly ignored him and instead attended to their
children who were doing their homework. Apparently disappointed with her
reaction, Ben switched off the light and, with the use of a chopping knife, cut
the television antenna or wire to keep her from watching television.
According to appellant, Ben was about to attack her so she ran to the
bedroom, but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed
clothes upon his return home, Ben allegedly flew into a rage, dragged
appellant outside of the bedroom towards a drawer holding her by the neck,
and told her You might as well be killed so nobody would nag me. Appellant
testified that she was aware that there was a gun inside the drawer but since
Ben did not have the key to it, he got a three-inch long blade cutter from his
wallet. She however, smashed the arm of Ben with a pipe, causing him to
drop the blade and his wallet. Appellant then smashed Ben at his nape with
the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly distorted the drawer where the gun was and
shot Ben.
He did not die on the spot, though, but in the
bedroom.[7] (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
1.
Marivic and Ben Genosa were allegedly married on November 19,
1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu
City, obtaining a degree of Bachelor of Science in Business Administration,
and was working, at the time of her husbands death, as a Secretary to the
Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.
2.
Marivic and Ben had known each other since elementary school;
they were neighbors in Bilwang; they were classmates; and they were third
degree cousins. Both sets of parents were against their relationship, but Ben
was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.
3.
After their marriage, they lived first in the home of Bens parents,
together with Bens brother, Alex, in Isabel, Leyte. In the first year of

marriage, Marivic and Ben lived happily. But apparently, soon thereafter,
the couple would quarrel often and their fights would become violent.
4.
Bens brother, Alex, testified for the prosecution that he could not
remember when Ben and Marivic married. He said that when Ben and
Marivic quarreled, generally when Ben would come home drunk, Marivic
would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week, she
returned apparently having asked for Bens forgiveness. In another incident
in May 22, 1994, early morning, Alex and his father apparently rushed to
Bens aid again and saw blood from Bens forehead and Marivic holding an
empty bottle. Ben and Marivic reconciled after Marivic had apparently again
asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that
Ben and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc
City. She said as the marriage went along, Marivic became already very
demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two
sons, there were three (3) misunderstandings. The first was when Marivic
stabbed Ben with a table knife through his left arm; the second incident was
on November 15, 1994, when Marivic struck Ben on the forehead using a
sharp instrument until the eye was also affected. It was wounded and also
the ear and her husband went to Ben to help; and the third incident was in
1995 when the couple had already transferred to the house in Bilwang and
she saw that Bens hand was plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.
5.
Arturo Basobas, a co-worker of Ben, testified that on November
15, 1995 After we collected our salary, we went to the cock-fighting place of
ISCO. They stayed there for three (3) hours, after which they went to
Uniloks and drank beer allegedly only two (2) bottles each. After drinking
they bought barbeque and went to the Genosa residence. Marivic was not
there. He stayed a while talking with Ben, after which he went across the
road to wait for the runner and the usher of the masiao game because
during that time, the hearing on masiao numbers was rampant. I was
waiting for the ushers and runners so that I can place my bet. On his way
home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one Fredo who is used by
Ben to feed his fighting cocks. Basobas testimony on the root of the quarrel,
conveniently overheard by him was Marivic saying I will never hesitate to kill
you, whilst Ben replied Why kill me when I am innocent. Basobas thought
they were joking.

He did not hear them quarreling while he was across the road from the
Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben
before when he was stricken with a bottle by Marivic Genosa that he should
leave her and that Ben would always take her back after she would leave him
so many times.
Basobas could not remember when Marivic had hit Ben, but it was a long
time that they had been quarreling. He said Ben even had a wound on the
right forehead. He had known the couple for only one (1) year.
6.
Marivic testified that after the first year of marriage, Ben became
cruel to her and was a habitual drinker. She said he provoked her, he would
slap her, sometimes he would pin her down on the bed, and sometimes beat
her.
These incidents happened several times and she would often run home to
her parents, but Ben would follow her and seek her out, promising to change
and would ask for her forgiveness. She said after she would be beaten, she
would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
These doctors would enter the injuries inflicted upon her by Ben into their
reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.
7.
In her defense, witnesses who were not so closely related to
Marivic, testified as to the abuse and violence she received at the hands of
Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas,
testified that on November 15, 1995, he overheard a quarrel between Ben
and Marivic. Marivic was shouting for help and through the open jalousies,
he saw the spouses grappling with each other. Ben had Marivic in a choke
hold. He did not do anything, but had come voluntarily to testify. (Please
note this was the same night as that testified to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the night
of November 15, 1995. He peeped through the window of his hut which is
located beside the Genosa house and saw the spouses grappling with each
other then Ben Genosa was holding with his both hands the neck of the
accused, Marivic Genosa. He said after a while, Marivic was able to
extricate he[r]self and enter the room of the children. After that, he went
back to work as he was to go fishing that evening. He returned at 8:00 the
next morning. (Again, please note that this was the same night as that
testified to by Arturo Basobas).

7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they
were living in Isabel, Leyte. His house was located about fifty (50) meters
from theirs. Marivic is his niece and he knew them to be living together for
13 or 14 years. He said the couple was always quarreling. Marivic confided
in him that Ben would pawn items and then would use the money to
gamble. One time, he went to their house and they were quarreling. Ben
was so angry, but would be pacified if somebody would come. He testified
that while Ben was alive he used to gamble and when he became drunk, he
would go to our house and he will say, Teody because that was what he
used to call me, mokimas ta, which means lets go and look for a whore.
Mr. Sarabia further testified that Ben would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed
to his right breast) as according to her a knife was stricken to her. Mr.
Sarabia also said that once he saw Ben had been injured too. He said he
voluntarily testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house because she might be battered by her husband. When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said that
her husband was already there and was drunk. Miss Arano knew he was
drunk because of his staggering walking and I can also detect his face.
Marivic entered the house and she heard them quarrel noisily. (Again, please
note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep
in the house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened at
10:00 in the evening when Ben arrived because the couple were very noisy
in the sala and I had heard something was broken like a vase. She said
Marivic ran into her room and they locked the door. When Ben couldnt get
in he got a chair and a knife and showed us the knife through the window
grill and he scared us. She said that Marivic shouted for help, but no one
came. On cross-examination, she said that when she left Marivics house on
November 15, 1995, the couple were still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times
and had also received treatment from other doctors. Dr. Caing testified that
from July 6, 1989 until November 9, 1995, there were six (6) episodes of
physical injuries inflicted upon Marivic. These injuries were reported in his
Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.

xxx

xxx

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Dr. Caings clinical history of the tension headache and hypertention of

Marivic on twenty-three (23) separate occasions was marked at Exhibits 2
and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all
the consultations made by Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he could
not say whether the injuries were directly related to the crime
committed. He said it is only a psychiatrist who is qualified to examine the
psychological make-up of the patient, whether she is capable of committing
a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas
resided, testified that about two (2) months before Ben died, Marivic went to
his office past 8:00 in the evening. She sought his help to settle or confront
the Genosa couple who were experiencing family troubles. He told Marivic
to return in the morning, but he did not hear from her again and assumed
that they might have settled with each other or they might have forgiven
with each other.
xxx

xxx

xxx

Marivic said she did not provoke her husband when she got home that night
it was her husband who began the provocation. Marivic said she was
frightened that her husband would hurt her and she wanted to make sure
she would deliver her baby safely. In fact, Marivic had to be admitted later at
the Rizal Medical Centre as she was suffering from eclampsia and
hypertension, and the baby was born prematurely on December 1, 1995.
Marivic testified that during her marriage she had tried to leave her
husband at least five (5) times, but that Ben would always follow her and
they would reconcile. Marivic said that the reason why Ben was violent and
abusive towards her that night was because he was crazy about his recent
girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said
that he died in the bedroom; that their quarrels could be heard by anyone
passing their house; that Basobas lied in his testimony; that she left for
Manila the next day, November 16, 1995; that she did not bother anyone in
Manila, rented herself a room, and got herself a job as a field researcher
under the alias Marvelous Isidro; she did not tell anyone that she was
leaving Leyte, she just wanted to have a safe delivery of her baby; and that
she was arrested in San Pablo, Laguna.

Answering questions from the Court, Marivic said that she threw the gun
away; that she did not know what happened to the pipe she used to smash
him once; that she was wounded by Ben on her wrist with the bolo; and that
two (2) hours after she was whirled by Ben, he kicked her ass and dragged
her towards the drawer when he saw that she had packed his things.
9.
The body of Ben Genosa was found on November 18, 1995 after
an investigation was made of the foul odor emitting from the Genosa
residence. This fact was testified to by all the prosecution witnesses and
some defense witnesses during the trial.
10.
Dra. Refelina Y. Cerillo, a physician, was the Municipal Health
Officer of Isabel, Leyte at the time of the incident, and among her
responsibilities as such was to take charge of all medico-legal cases, such as
the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not
a forensic pathologist. She merely took the medical board exams and
passed in 1986. She was called by the police to go to the Genosa residence
and when she got there, she saw some police officer and neighbor around.
She saw Ben Genosa, covered by a blanket, lying in a semi-prone position
with his back to the door. He was wearing only a brief.
xxx

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xxx

Dra. Cerillo said that there is only one injury and that is the injury involving
the skeletal area of the head which she described as a fracture. And that
based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did
not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11.
The Information, dated November 14, 1996, filed against Marivic
Genosa charged her with the crime of PARRICIDE committed with intent to
kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her legitimate husband, with
the use of a hard deadly weapon x x x which caused his death.
12.
Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July
1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16
December 1997, 22 May 1998, and 5 and 6 August 1998.
13.
On 23 September 1998, or only fifty (50) days from the day of the
last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35,
Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond reasonable
doubt of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the ultimate penalty of
DEATH.

14.
The case was elevated to this Honorable Court upon automatic
review and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil
Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching
thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he
had prepared for Marivic which, for reasons of her own, were not conformed
to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and
permitted the entry of appearance of undersigned counsel.
15.
Without the knowledge of counsel, Marivic Genosa wrote a letter
dated 20 January 2000, to the Chief Justice, coursing the same through Atty.
Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office,
wherein she submitted her Brief without counsels to the Court.
This letter was stamp-received by the Honorable Court on 4 February 2000.
16.
In the meantime, under date of 17 February 2000, and stampreceived by the Honorable Court on 19 February 2000, undersigned counsel
filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow
the exhumation of Ben Genosa and the re-examination of the cause of his
death; allow the examination of Marivic Genosa by qualified psychologists
and psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take
the testimony of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel
Fortun, then the only qualified forensic pathologist in the country, who
opined that the description of the death wound (as culled from the postmortem findings, Exhibit A) is more akin to a gunshot wound than a beating
with a lead pipe.
17.
In a RESOLUTION dated 29 September 2000, the Honorable Court
partly granted Marivics URGENT OMNIBUS MOTION and remanded the case
to the trial court for the reception of expert psychological and/or psychiatric
opinion on the battered woman syndrome plea, within ninety (90) days from
notice, and, thereafter to forthwith report to this Court the proceedings
taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.
18.
On 15 January 2001, Dra. Natividad A. Dayan appeared and
testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews

were done at the Penal Institution in 1999, but that the clinical interviews
and psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty (20)
years with her own private clinic and connected presently to the De La Salle
University as a professor. Before this, she was the Head of the Psychology
Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Josephs College; and
was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in
Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P.
She was the past president of the Psychological Association of the Philippines
and is a member of the American Psychological Association. She is the
secretary of the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and a member
of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and
psychological profile of families involved in domestic violence and nullity
cases. She was with the Davide Commission doing research about Military
Psychology. She has written a book entitled Energy Global Psychology
(together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the
first time she has testified as an expert on battered women as this is the first
case of that nature.
Dra. Dayan testified that for the research she conducted, on the sociodemographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that there are lots of variables that cause all
of this marital conflicts, from domestic violence to infidelity, to psychiatric
disorder.
Dra. Dayan described domestic violence to comprise of a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse
and also sexual abuse.
xxx

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Dra. Dayan testified that in her studies, the battered woman usually has a
very low opinion of herself. She has a self-defeating and self-sacrificing
characteristics. x x x they usually think very lowly of themselves and so
when the violence would happen, they usually think that they provoke it, that
they were the one who precipitated the violence, they provoke their spouse
to be physically, verbally and even sexually abusive to them. Dra. Dayan
said that usually a battered x x x comes from a dysfunctional family or from
broken homes.

Dra. Dayan said that the batterer, just like the battered woman, also has a
very low opinion of himself. But then emerges to have superiority complex
and it comes out as being very arrogant, very hostile, very aggressive and
very angry. They also had (sic) a very low tolerance for frustrations. A lot of
times they are involved in vices like gambling, drinking and drugs. And they
become violent. The batterer also usually comes from a dysfunctional
family which over-pampers them and makes them feel entitled to do
anything. Also, they see often how their parents abused each other so there
is a lot of modeling of aggression in the family.
Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked
the violence, the cycle itself which makes her hope her husband will change,
the belief in her obligations to keep the family intact at all costs for the sake
of the children.
xxx

xxx

xxx

Dra. Dayan said that abused wives react differently to the violence: some
leave the house, or lock themselves in another room, or sometimes try to
fight back triggering physical violence on both of them. She said that in a
normal marital relationship, abuses also happen, but these are not
consistent, not chronic, are not happening day in [and] day out. In an
abnormal marital relationship, the abuse occurs day in and day out, is long
lasting and even would cause hospitalization on the victim and even death
on the victim.
xxx

xxx

xxx

Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because inspite of her feeling of self-confidence which we can see at
times there are really feeling (sic) of loss, such feelings of humiliation which
she sees herself as damaged and as a broken person. And at the same time
she still has the imprint of all the abuses that she had experienced in the
past.
xxx

xxx

xxx

Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at
the time of the tragedy that Marivic then thought of herself as a victim.
xxx

xxx

xxx

19.
On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has
since passed away, appeared and testified before RTC-Branch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow
of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry
Association. He was in the practice of psychiatry for thirty-eight (38) years.
Prior to being in private practice, he was connected with the Veterans
Memorial Medical Centre where he gained his training on psychiatry and
neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years.
Prior to his retirement from government service, he obtained the rank of
Brigadier General. He obtained his medical degree from the University of
Santo Tomas. He was also a member of the World Association of Military
Surgeons; the Quezon City Medical Society; the Cagayan Medical Society;
and the Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954 1978 which was
presented twice in international congresses. He also authored The Mental
Health of the Armed Forces of the Philippines 2000, which was likewise
published internationally and locally. He had a medical textbook published
on the use of Prasepam on a Parke-Davis grant; was the first to use
Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of
the drug Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder of
the mind and neurology deals with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo
had already encountered a suit involving violent family relations, and
testified in a case in 1964. In the Armed Forces of the Philippines, violent
family disputes abound, and he has seen probably ten to twenty thousand
cases. In those days, the primordial intention of therapy was reconciliation.
As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita
Deproza.
As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal
abuse, battering and boxing a woman even to an unconscious state such
that the woman is sometimes confined. The affliction of Post-Traumatic
Stress Disorder depends on the vulnerability of the victim. Dr. Pajarillo said
that if the victim is not very healthy, perhaps one episode of violence may

induce the disorder; if the psychological stamina and physiologic

constitutional stamina of the victim is stronger, it will take more repetitive
trauma to precipitate the post-traumatic stress disorder and this x x x is very
dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the
anxiety neurosis or neurologic anxcietism. It is produced by overwhelming
brutality, trauma.
xxx

xxx

xxx

Dr. Pajarillo explained that with neurotic anxiety, the victim relives the
beating or trauma as if it were real, although she is not actually being beaten
at that time. She thinks of nothing but the suffering.
xxx

xxx

xxx

A woman who suffers battery has a tendency to become neurotic, her

emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her selfworld is damaged.
Dr. Pajarillo said that an abnormal family background relates to an
individuals illness, such as the deprivation of the continuous care and love of
the parents. As to the batterer, he normally internalizes what is around him
within the environment. And it becomes his own personality. He is very
competitive; he is aiming high all the time; he is so macho; he shows his
strong faade but in it there are doubts in himself and prone to act without
thinking.
xxx

xxx

xxx

Dr. Pajarillo emphasized that even though without the presence of the
precipator (sic) or the one who administered the battering, that reexperiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.
xxx

xxx

xxx

Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to
defend themselves, and primarily with knives. Usually pointed weapons or
any weapon that is available in the immediate surrounding or in a hospital x
x x because that abound in the household. He said a victim resorts to
weapons when she has reached the lowest rock bottom of her life and there
is no other recourse left on her but to act decisively.

xxx

xxx

xxx

Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview
he conducted for two (2) hours and seventeen (17) minutes. He used the
psychological evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.
xxx

xxx

xxx

On cross-examination by the private prosecutor, Dr. Pajarillo said that at the

time she killed her husband Marivicc mental condition was that she was reexperiencing the trauma. He said that we are trying to explain scientifically
that the re-experiencing of the trauma is not controlled by Marivic. It will just
come in flashes and probably at that point in time that things happened
when the re-experiencing of the trauma flashed in her mind. At the time he
interviewed Marivic she was more subdued, she was not super alert
anymore x x x she is mentally stress (sic) because of the predicament she is
involved.
xxx

xxx

xxx

20.
No rebuttal evidence or testimony was presented by either the
private or the public prosecutor. Thus, in accord with the Resolution of this
Honorable Court, the records of the partially re-opened trial a quo were
elevated.[9]
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave
credence to the prosecution evidence that appellant had killed the deceased
while he was in bed sleeping. Further, the trial court appreciated the
generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed -- lying in bed asleep when
Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this
Court for automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying
that this Court allow (1) the exhumation of Ben Genosa and the
reexamination of the cause of his death; (2) the examination of appellant by

qualified psychologists and psychiatrists to determine her state of mind at

the time she had killed her spouse; and (3) the inclusion of the said experts
reports in the records of the case for purposes of the automatic review or, in
the alternative, a partial reopening of the case for the lower court to admit
the experts testimonies.
On September 29, 2000, this Court issued a Resolution granting in part
appellants Motion, remanding the case to the trial court for the reception of
expert psychological and/or psychiatric opinion on the battered woman
syndrome plea; and requiring the lower court to report thereafter to this
Court the proceedings taken as well as to submit copies of the TSN and
additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs. Natividad
Dayan[10] and Alfredo Pajarillo,[11] supposedly experts on domestic violence.
Their testimonies, along with their documentary evidence, were then
presented to and admitted by the lower court before finally being submitted
to this Court to form part of the records of the case.[12]
The Issues
Appellant assigns the following alleged errors of the trial court for this
Courts consideration:
1.
The trial court gravely erred in promulgating an obviously hasty
decision without reflecting on the evidence adduced as to self-defense.
2.
The trial court gravely erred in finding as a fact that Ben and
Marivic Genosa were legally married and that she was therefore liable for
parricide.
3.
The trial court gravely erred finding the cause of death to be by
beating with a pipe.
4.
The trial court gravely erred in ignoring and disregarding evidence
adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely erred in
concluding that Ben Genosa was a battered husband.
5.
The trial court gravely erred in not requiring testimony from the
children of Marivic Genosa.

6.
The trial court gravely erred in concluding that Marivics flight to
Manila and her subsequent apologies were indicia of guilt, instead of a clear
attempt to save the life of her unborn child.
7.
The trial court gravely erred in concluding that there was an
aggravating circumstance of treachery.
8.
The trial court gravely erred in refusing to re-evaluate the
traditional elements in determining the existence of self-defense and defense
of foetus in this case, thereby erroneously convicting Marivic Genosa of the
crime of parricide and condemning her to the ultimate penalty of death.[13]
In the main, the following are the essential legal issues: (1) whether
appellant acted in self-defense and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.
The Courts Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if
not collateral to the resolution of the principal issues. As consistently held by
this Court, the findings of the trial court on the credibility of witnesses and
their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge
gravely abused his discretion or overlooked, misunderstood or misapplied
material facts or circumstances of weight and substance that could affect the
outcome of the case.[14]
In appellants first six assigned items, we find no grave abuse of
discretion, reversible error or misappreciation of material facts that would
reverse or modify the trial courts disposition of the case. In any event, we
will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously
hasty decision without reflecting on the evidence adduced as to selfdefense. We note that in his 17-page Decision, Judge Fortunito L. Madrona
summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on
record -- made his evaluation, findings and conclusions. He wrote a 3-page
discourse assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the trial judges

conclusions, we cannot peremptorily conclude, absent substantial evidence,

that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an
obviously hasty manner. The Information had been filed with the lower
court on November 14, 1996. Thereafter, trial began and at least 13
hearings were held for over a year. It took the trial judge about two months
from the conclusion of trial to promulgate his judgment. That he conducted
the trial and resolved the case with dispatch should not be taken against
him, much less used to condemn him for being unduly hasty. If at all, the
dispatch with which he handled the case should be lauded. In any case, we
find his actions in substantial compliance with his constitutional obligation. [15]
Second, the lower court did not err in finding as a fact that Ben Genosa
and appellant had been legally married, despite the non-presentation of their
marriage contract. In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship of the offender with the
victim. In the case of parricide of a spouse, the best proof of the relationship
between the accused and the deceased is the marriage certificate. In the
absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected
to.
Two of the prosecution witnesses -- namely, the mother and the brother
of appellants deceased spouse -- attested in court that Ben had been
married to Marivic.[17] The defense raised no objection to these testimonies.
Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial
admission is conclusive upon the party making it, except only when there is a
showing that (1) the admission was made through a palpable mistake, or (2)
no admission was in fact made. [19] Other than merely attacking the nonpresentation of the marriage contract, the defense offered no proof that the
admission made by appellant in court as to the fact of her marriage to the
deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of
Bens death -- whether by a gunshot or by beating with a pipe -- has no legal
consequence. As the Court elucidated in its September 29, 2000 Resolution,
[c]onsidering that the appellant has admitted the fact of killing her husband
and the acts of hitting his nape with a metal pipe and of shooting him at the
back of his head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the victims
death. Determining which of these admitted acts caused the death is not
dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence
that Ben was a drunk, gambler, womanizer and wife-beater. Until this case

came to us for automatic review, appellant had not raised the novel defense of
battered woman syndrome, for which such evidence may have been
relevant. Her theory of self-defense was then the crucial issue before the trial
court. As will be discussed shortly, the legal requisites of self-defense under
prevailing jurisprudence ostensibly appear inconsistent with the surrounding
facts that led to the death of the victim. Hence, his personal character,
especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony
from appellants children. As correctly elucidated by the solicitor general, all
criminal actions are prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.[20] As the former further points out,
neither the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the
flight of Marivic to Manila and her subsequent apologies to her brother-in-law
are indicia of her guilt or are attempts to save the life of her unborn child.
Any reversible error as to the trial courts appreciation of these
circumstances has little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability,
invokes self-defense and/or defense of her unborn child. When the accused
admits killing the victim, it is incumbent upon her to prove any claimed
justifying circumstance by clear and convincing evidence. [21] Well-settled is
the rule that in criminal cases, self-defense (and similarly, defense of a
stranger or third person) shifts the burden of proof from the prosecution to
the defense.[22]
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered
woman syndrome. While new in Philippine jurisprudence, the concept has
been recognized in foreign jurisdictions as a form of self-defense or, at the
least, incomplete self-defense.[23] By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their
understanding of the justifiably fearful state of mind of a person who has
been cyclically abused and controlled over a period of time.[24]
A battered woman has been defined as a woman who is repeatedly
subjected to any forceful physical or psychological behavior by a man in

order to coerce her to do something he wants her to do without concern for

her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she is defined as a
battered woman.[25]
Battered women exhibit common personality traits, such as low selfesteem, traditional beliefs about the home, the family and the female sex
role; emotional dependence upon the dominant male; the tendency to
accept responsibility for the batterers actions; and false hopes that the
relationship will improve.[26]
More graphically, the battered woman syndrome is characterized by the
so-called cycle of violence,[27] which has three phases: (1) the tensionbuilding phase; (2) the acute battering incident; and (3) the tranquil, loving
(or, at least, nonviolent) phase.[28]
During the tension-building phase, minor battering occurs -- it could
be verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence exhibited by
the batterer. This wish, however, proves to be double-edged, because her
placatory and passive behavior legitimizes his belief that he has the right
to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate
him are not usually successful, and the verbal and/or physical abuse
worsens. Each partner senses the imminent loss of control and the growing
tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally
unavailable, the more the batterer becomes angry, oppressive and abusive.
Often, at some unpredictable point, the violence spirals out of control and
leads to an acute battering incident.[29]
The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be
as unpredictable as the time of its explosion, and so are his reasons for
ending it. The battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the
terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus:

the batterer is almost always much stronger physically, and she knows from
her past painful experience that it is futile to fight back. Acute battering
incidents are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to
beat her again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her partner
will change for the better; and that this good, gentle and caring man is the
real person whom she loves.
A battered woman usually believes that she is the sole anchor of the
emotional stability of the batterer. Sensing his isolation and despair, she
feels responsible for his well-being. The truth, though, is that the chances of
his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does
he seek professional help as a way of getting her back. Yet, it is in this phase
of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in a battered
womans psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of tension, violence and
forgiveness, each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other.[31]
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense
presented several witnesses. She herself described her heart-rending
experience as follows:
ATTY. TABUCANON
Q

How did you describe your marriage with Ben Genosa?

In the first year, I lived with him happily but in the subsequent
year he was cruel to me and a behavior of habitual drinker.

You said that in the subsequent year of your marriage, your

husband was abusive to you and cruel. In what way was this
abusive and cruelty manifested to you?

He always provoke me in everything, he always slap me and

sometimes he pinned me down on the bed and sometimes beat
me.

How many times did this happen?

Several times already.

What did you do when these things happen to you?

I went away to my mother and I ran to my father and we

separate each other.

What was the action of Ben Genosa towards you leaving home?

He is following me, after that he sought after me.

What will happen when he follow you?

He said he changed, he asked for forgiveness and I was

convinced and after that I go to him and he said sorry.

During those times that you were the recipient of such cruelty
and abusive behavior by your husband, were you able to see a
doctor?

Yes, sir.

Who are these doctors?

The company physician, Dr. Dino Caing, Dr. Lucero and Dra.
Cerillo.
xxx

xxx

xxx

You said that you saw a doctor in relation to your injuries?

Yes, sir.

Who inflicted these injuries?

Of course my husband.

You mean Ben Genosa?

Yes, sir.
xxx

xxx

xxx

[Court] /to the witness

Q

How frequent was the alleged cruelty that you said?

Everytime he got drunk.

A
Q

No, from the time that you said the cruelty or the infliction of
injury inflicted on your occurred, after your marriage, from that
time on, how frequent was the occurrence?
Everytime he got drunk.
Is it daily, weekly, monthly or how many times in a month or in a
week?

Three times a week.

Do you mean three times a week he would beat you?

Not necessarily that he would beat me but sometimes he will just

quarrel me. [32]

Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos

Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic
battery in this manner:
Q

So, do you have a summary of those six (6) incidents which are
found in the chart of your clinic?

Yes, sir.

Who prepared the list of six (6) incidents, Doctor?

I did.

Will you please read the physical findings together with the
dates for the record.

1.
May 12, 1990 - physical findings are as follows: Hematoma
(R) lower eyelid and redness of eye. Attending physician: Dr.
Lucero;
2.
March 10, 1992 - Contusion-Hematoma (L) lower arbital
area, pain and contusion (R) breast. Attending physician: Dr.
Canora;
3.

March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4.
August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma.
Attending physician: Dr. Caing;
5.
April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending
physician: Dr. Canora; and
6.
June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion
Pregnancy. Attending physician: Dr. Canora.
Q
A

Among the findings, there were two (2) incidents wherein you
were the attending physician, is that correct?
Yes, sir.

Did you actually physical examine the accused?

Yes, sir.

Now, going to your finding no. 3 where you were the one who
attended the patient. What do you mean by abrasion furuncle left
axilla?

Abrasion is a skin wound usually when it comes in contact with

something rough substance if force is applied.

What is meant by furuncle axilla?

It is secondary of the light infection over the abrasion.

What is meant by pain mastitis secondary to trauma?

So, in this 4th episode of physical injuries there is an

inflammation of left breast. So, [pain] meaning there is
tenderness. When your breast is traumatized, there is tenderness
pain.

So, these are objective physical injuries. Doctor?

xxx

xxx

xxx

Were you able to talk with the patient?

Yes, sir.

What did she tell you?

As a doctor-patient relationship, we need to know the cause of

these injuries. And she told me that it was done to her by her
husband.

You mean, Ben Genosa?

Yes, sir.
xxx

xxx

xxx

ATTY. TABUCANON:
Q

By the way Doctor, were you able to physical examine the

accused sometime in the month of November, 1995 when this
incident happened?

As per record, yes.

What was the date?

It was on November 6, 1995.

So, did you actually see the accused physically?

A
Q
A
Q

Yes, sir.
On November 6, 1995, will you please tell this Honorable Court,
was the patient pregnant?
Yes, sir.
Being a doctor, can you more engage at what stage of pregnancy
was she?

Eight (8) months pregnant.

So in other words, it was an advance stage of pregnancy?

Yes, sir.

What was your November 6, 1995 examination, was it an

examination about her pregnancy or for some other findings?

No, she was admitted for hypertension headache which

complicates her pregnancy.

When you said admitted, meaning she was confined?

Yes, sir.

For how many days?

One day.

Where?

At PHILPHOS Hospital.
xxx

xxx

xxx

Lets go back to the clinical history of Marivic Genosa. You said

that you were able to examine her personally on November 6,
1995 and she was 8 months pregnant.

What is this all about?

A

Because she has this problem of tension headache secondary to

hypertension and I think I have a record here, also the same
period from 1989 to 1995, she had a consultation for twenty-three
(23) times.

For what?

Tension headache.

Can we say that specially during the latter consultation, that the
patient had hypertension?

The patient definitely had hypertension. It was refractory to our

treatment. She does not response when the medication was given

to her, because tension headache is more or less stress related

and emotional in nature.
Q

What did you deduce of tension headache when you said is

emotional in nature?

From what I deduced as part of our physical examination of the

patient is the family history in line of giving the root cause of what
is causing this disease. So, from the moment you ask to the
patient all comes from the domestic problem.

You mean problem in her household?

Probably.

Can family trouble cause elevation of blood pressure, Doctor?

Yes, if it is emotionally related and stressful it can cause

increases in hypertension which is unfortunately does not
response to the medication.

In November 6, 1995, the date of the incident, did you take the
blood pressure of the accused?

On November 6, 1995 consultation, the blood pressure was

180/120.

Is this considered hypertension?

Yes, sir, severe.

Q
A

Considering that she was 8 months pregnant, you mean this is

dangerous level of blood pressure?
It was dangerous to the child or to the fetus. [34]

Another defense witness, Teodoro Sarabia, a former neighbor of the

Genosas in Isabel, Leyte, testified that he had seen the couple quarreling
several times; and that on some occasions Marivic would run to him with
bruises, confiding that the injuries were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times she had been asked
by Marivic to sleep at the Genosa house, because the latter feared that Ben
would come home drunk and hurt her. On one occasion that Ecel did sleep
over, she was awakened about ten oclock at night, because the couple
were very noisy and I heard something was broken like a vase. Then
Marivic came running into Ecels room and locked the door. Ben showed up
by the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -this time to find Ben -- but they were unable to. They returned to the Genosa
home, where they found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his state of

drunkenness, Ecel hesitated; and when she heard the couple start arguing,
she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least
three other witnesses saw or heard the couple quarreling. [37] Marivic relates
in detail the following backdrop of the fateful night when life was snuffed out
of him, showing in the process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:
Q

Please tell this Court, can you recall the incident in November 15,
1995 in the evening?

Whole morning and in the afternoon, I was in the office working

then after office hours, I boarded the service bus and went to
Bilwang. When I reached Bilwang, I immediately asked my son,
where was his father, then my second child said, he was not
home yet. I was worried because that was payday, I was
anticipating that he was gambling. So while waiting for him, my
eldest son arrived from school, I prepared dinner for my children.

This is evening of November 15, 1995?

Yes, sir.

What time did Ben Genosa arrive?

When he arrived, I was not there, I was in Isabel looking for him.

So when he arrived you were in Isabel looking for him?

Yes, sir.

Did you come back to your house?

Yes, sir.

By the way, where was your conjugal residence situated this

time?

Bilwang.

Is this your house or you are renting?

Renting.

What time were you able to come back in your residence at

Bilwang?

I went back around almost 8:00 oclock.

What happened when you arrived in your residence?

When I arrived home with my cousin Ecel whom I requested to

sleep with me at that time because I had fears that he was again
drunk and I was worried that he would again beat me so I

requested my cousin to sleep with me, but she resisted because

she had fears that the same thing will happen again last year.
Q

Who was this cousin of yours who you requested to sleep with
you?

Ecel Arao, the one who testified.

Did Ecel sleep with you in your house on that evening?

No, because she expressed fears, she said her father would not
allow her because of Ben.

During this period November 15, 1995, were you pregnant?

Yes, 8 months.

How advance was your pregnancy?

Eight (8) months.

Was the baby subsequently born?

Yes, sir.

Whats the name of the baby you were carrying at that time?

Marie Bianca.

What time were you able to meet personally your husband?

Yes, sir.

What time?

When I arrived home, he was there already in his usual behavior.

Will you tell this Court what was his disposition?

He was drunk again, he was yelling in his usual unruly behavior.

What was he yelling all about?

His usual attitude when he got drunk.

You said that when you arrived, he was drunk and yelling at you?
What else did he do if any?

He is nagging at me for following him and he dared me to quarrel

him.

What was the cause of his nagging or quarreling at you if you

know?

He was angry at me because I was following x x x him, looking

for him. I was just worried he might be overly drunk and he would
beat me again.

You said that he was yelling at you, what else, did he do to you if
any?

He was nagging at me at that time and I just ignore him because

I want to avoid trouble for fear that he will beat me again.
Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, why did
you switch off the light when the children were there. At that
time I was also attending to my children who were doing their
assignments. He was angry with me for not answering his
challenge, so he went to the kitchen and [got] a bolo and cut the
antenna wire to stop me from watching television.

What did he do with the bolo?

He cut the antenna wire to keep me from watching T.V.

What else happened after he cut the wire?

He switch off the light and the children were shouting because
they were scared and he was already holding the bolo.

How do you described this bolo?

1 1/2 feet.

What was the bolo used for usually?

For chopping meat.

You said the children were scared, what else happened as Ben
was carrying that bolo?

He was about to attack me so I run to the room.

What do you mean that he was about to attack you?

When I attempt to run he held my hands and he whirled me and I

fell to the bedside.

So when he whirled you, what happened to you?

I screamed for help and then he left.

You said earlier that he whirled you and you fell on the bedside?

Yes, sir.

You screamed for help and he left, do you know where he was
going?

Outside perhaps to drink more.

When he left what did you do in that particular time?

I packed all his clothes.

What was your reason in packing his clothes?

I wanted him to leave us.

During this time, where were your children, what were their
reactions?

After a couple of hours, he went back again and he got angry

with me for packing his clothes, then he dragged me again of the
bedroom holding my neck.

You said that when Ben came back to your house, he dragged
you? How did he drag you?

COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)
A

And he dragged me towards the door backward.

ATTY. TABUCANON:
Q

Where did he bring you?

Outside the bedroom and he wanted to get something and then

he kept on shouting at me that you might as well be killed so
there will be nobody to nag me.

So you said that he dragged you towards the drawer?

Yes, sir.

What is there in the drawer?

I was aware that it was a gun.

COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q

Were you actually brought to the drawer?

Yes, sir.

What happened when you were brought to that drawer?

He dragged me towards the drawer and he was about to open

the drawer but he could not open it because he did not have the
key then he pulled his wallet which contained a blade about 3
inches long and I was aware that he was going to kill me and I
smashed his arm and then the wallet and the blade fell. The one
he used to open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the blade, I

smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the
feeling I had on that very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx

xxx

xxx

ATTY. TABUCANON:
Q

Talking of drawer, is this drawer outside your room?

Outside.

In what part of the house?

Dining.

Where were the children during that time?

My children were already asleep.

You mean they were inside the room?

Yes, sir.

You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?

Three (3) inches long and 1/2 inch wide.

Is it a flexible blade?

Its a cutter.

How do you describe the blade, is it sharp both edges?

Yes, because he once used it to me.

How did he do it?

He wanted to cut my throat.

With the same blade?

Yes, sir, that was the object used when he intimidate me. [38]

In addition, Dra. Natividad Dayan was called by the RTC to testify as an

expert witness to assist it in understanding the psyche of a battered person.
She had met with Marivic Genosa for five sessions totaling about seventeen
hours. Based on their talks, the former briefly related the latters ordeal to
the court a quo as follows:

Q: What can you say, that you found Marivic as a battered wife?
Could you in laymans term describe to this Court what her life
was like as said to you?
A:

What I remember happened then was it was more than ten years,
that she was suffering emotional anguish. There were a lot of
instances of abuses, to emotional abuse, to verbal abuse and to
physical abuse. The husband had a very meager income, she was
the one who was practically the bread earner of the family. The
husband was involved in a lot of vices, going out with barkadas,
drinking, even womanizing being involved in cockfight and going
home very angry and which will trigger a lot of physical abuse.
She also had the experience a lot of taunting from the husband for
the reason that the husband even accused her of infidelity, the
husband was saying that the child she was carrying was not his
own. So she was very angry, she was at the same time very
depressed because she was also aware, almost like living in
purgatory or even hell when it was happening day in and day
out. [39]

In cross-examining Dra. Dayan, the public prosecutor not merely elicited,

but wittingly or unwittingly put forward, additional supporting evidence as
shown below:
Q

In your first encounter with the appellant in this case in 1999,

where you talked to her about three hours, what was the most
relevant information did you gather?

The most relevant information was the tragedy that happened.

The most important information were escalating abuses that she
had experienced during her marital life.

Before you met her in 1999 for three hours, we presume that you
already knew of the facts of the case or at least you have
substantial knowledge of the facts of the case?

I believe I had an idea of the case, but I do not know whether I

can consider them as substantial.
xxx

xxx

xxx

Did you gather an information from Marivic that on the side of her
husband they were fond of battering their wives?

I also heard that from her?

You heard that from her?

Yes, sir.

Did you ask for a complete example who are the relatives of her
husband that were fond of battering their wives?

What I remember that there were brothers of her husband who

are also battering their wives.

Did she not inform you that there was an instance that she stayed
in a hotel in Ormoc where her husband followed her and battered
[her] several times in that room?

She told me about that.

Did she inform you in what hotel in Ormoc?

Sir, I could not remember but I was told that she was battered in
that room.

Several times in that room?

Yes, sir. What I remember was that there is no problem about

being battered, it really happened.

Being an expert witness, our jurisprudence is not complete on

saying this matter. I think that is the first time that we have this
in the Philippines, what is your opinion?

Sir, my opinion is, she is really a battered wife and in this kind
happened, it was really a self-defense. I also believe that there
had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because of
all the battering that happened and so she became an abnormal
person who had lost shes not during the time and that is why it
happened because of all the physical battering, emotional
battering, all the psychological abuses that she had experienced
from her husband.

I do believe that she is a battered wife. Was she extremely

battered?

Sir, it is an extreme form of battering. Yes.[40]

Parenthetically, the credibility of appellant was demonstrated as follows:

Q

And you also said that you administered [the] objective

personality test, what x x x [is this] all about?

The objective personality test is the Millon Clinical Multiaxial

Inventory. The purpose of that test is to find out about the lying
prone[ne]ss of the person.

What do you mean by that?

Meaning, am I dealing with a client who is telling me the truth, or

is she someone who can exaggerate or x x x [will] tell a lie[?]

And what did you discover on the basis of this objective

personality test?

She was a person who passed the honesty test. Meaning she is a
person that I can trust. That the data that Im gathering from her
are the truth.[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo,
testified on his Psychiatric Report, [42] which was based on his interview and
examination of Marivic Genosa. The Report said that during the first three
years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until Ben started to be attracted to other girls and
was also enticed in[to] gambling[,] especially cockfighting. x x x. At the
same time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he showed
toward his family, particularly to his wife. The Report continued: At first, it
was verbal and emotional abuses but as time passed, he became physically
abusive. Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal Marivic had to
anticipate whenever she suspected that her husband went for a drinking
[spree]. They had been married for twelve years[;] and practically more than
eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in vain.
Further quoting from the Report, [s]he also sought the advice and help of
close relatives and well-meaning friends in spite of her feeling ashamed of
what was happening to her. But incessant battering became more and more
frequent and more severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt in the
Courts mind that Appellant Marivic Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused
woman, her state of mind metamorphoses. In determining her state of mind,
we cannot rely merely on the judgment of an ordinary, reasonable person
who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the
psychological effect of battering on wives and common law partners are both
relevant and necessary. How can the mental state of the appellant be
appreciated without it? The average member of the public may ask: Why
would a woman put up with this kind of treatment? Why should she continue
to live with such a man? How could she love a partner who beat her to the
point of requiring hospitalization? We would expect the woman to pack her

bags and go. Where is her self-respect? Why does she not cut loose and
make a new life for herself? Such is the reaction of the average person
confronted with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint should
not be drawn from that of an ordinary, reasonable person. What goes on in
the mind of a person who has been subjected to repeated, severe beatings
may not be consistent with -- nay, comprehensible to -- those who have not
been through a similar experience. Expert opinion is essential to clarify and
refute common myths and misconceptions about battered women.[45]
The theory of BWS formulated by Lenore Walker, as well as her research
on domestic violence, has had a significant impact in the United States and
the United Kingdom on the treatment and prosecution of cases, in which a
battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon
the battered woman immobilizes the latters ability to act decisively in her
own interests, making her feel trapped in the relationship with no means of
escape.[46] In her years of research, Dr. Walker found that the abuse often
escalates at the point of separation and battered women are in greater
danger of dying then.[47]
Corroborating these research findings, Dra. Dayan said that the battered
woman usually has a very low opinion of herself. She has x x x selfdefeating and self-sacrificing characteristics. x x x [W]hen the violence
would happen, they usually think that they provoke[d] it, that they were the
one[s] who precipitated the violence[; that] they provoke[d] their spouse to
be physically, verbally and even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a battered
woman does not readily leave an abusive partner -- poverty, self-blame and
guilt arising from the latters belief that she provoked the violence, that she
has an obligation to keep the family intact at all cost for the sake of their
children, and that she is the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He
had previously testified in suits involving violent family relations, having
evaluated probably ten to twenty thousand violent family disputes within
the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City. As such, he got
involved in about forty (40) cases of severe domestic violence, in which the
physical abuse on the woman would sometimes even lead to her loss of
consciousness.[50]
Dr. Pajarillo explained that overwhelming brutality, trauma could result
in posttraumatic stress disorder, a form of anxiety neurosis or neurologic
anxietism.[51] After being repeatedly and severely abused, battered persons
may believe that they are essentially helpless, lacking power to change

their situation. x x x [A]cute battering incidents can have the effect of

stimulating the development of coping responses to the trauma at the
expense of the victims ability to muster an active response to try to escape
further trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the University
of Pennsylvania, found that even if a person has control over a situation, but
believes that she does not, she will be more likely to respond to that
situation with coping responses rather than trying to escape. He said that it
was the cognitive aspect -- the individuals thoughts -- that proved allimportant. He referred to this phenomenon as learned helplessness.
[T]he truth or facts of a situation turn out to be less important than the
individuals set of beliefs or perceptions concerning the situation. Battered
women dont attempt to leave the battering situation, even when it may
seem to outsiders that escape is possible, because they cannot predict their
own safety; they believe that nothing they or anyone else does will alter their
terrible circumstances.[54]
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes that he
is capable of killing her, and that there is no escape. [55] Battered women feel
unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.[56] Unless a shelter is available, she stays with her husband, not
only because she typically lacks a means of self-support, but also because
she fears that if she leaves she would be found and hurt even more.[57]
In the instant case, we meticulously scoured the records for specific
evidence establishing that appellant, due to the repeated abuse she had
suffered from her spouse over a long period of time, became afflicted with
the battered woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More specifically, we failed
to find ample evidence that would confirm the presence of the essential
characteristics of BWS.
The defense fell short of proving all three phases of the cycle of
violence supposedly characterizing the relationship of Ben and Marivic
Genosa. No doubt there were acute battering incidents. In relating to the
court a quo how the fatal incident that led to the death of Ben started,
Marivic perfectly described the tension-building phase of the cycle. She was
able to explain in adequate detail the typical characteristics of this stage.
However, that single incident does not prove the existence of the syndrome.
In other words, she failed to prove that in at least another battering episode
in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior
to acute battering? How did Marivic normally respond to Bens relatively

minor abuses? What means did she employ to try to prevent the situation
from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third
phase of the cycle. She simply mentioned that she would usually run away
to her mothers or fathers house;[58]that Ben would seek her out, ask for her
forgiveness and promise to change; and that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the violent incidents between her
and her spouse? Did she believe that she was the only hope for Ben to
reform? And that she was the sole support of his emotional stability and
well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as
preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual
experiences and thoughts that would clearly and fully demonstrate the
essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses
for the defense. Indeed, they were able to explain fully, albeit merely
theoretically and scientifically, how the personality of the battered woman
usually evolved or deteriorated as a result of repeated and severe beatings
inflicted upon her by her partner or spouse. They corroborated each others
testimonies, which were culled from their numerous studies of hundreds of
actual cases. However, they failed to present in court the factual
experiences and thoughts that appellant had related to them -- if at all -based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying
circumstance must be proven in order to be appreciated. To repeat, the
records lack supporting evidence that would establish all the essentials of
the battered woman syndrome as manifested specifically in the case of the
Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in
itself establish the legal right of the woman to kill her abusive partner.
Evidence must still be considered in the context of self-defense.[59]
From the expert opinions discussed earlier, the Court reckons further that
crucial to the BWS defense is the state of mind of the battered woman at the
time of the offense[60] -- she must have actually feared imminent harm from
her batterer and honestly believed in the need to kill him in order to save her
life.

Settled in our jurisprudence, however, is the rule that the one who resorts
to self-defense must face a real threat on ones life; and the peril sought to
be avoided must be imminent and actual, not merely imaginary.[61] Thus, the
Revised Penal Code provides the following requisites and effect of selfdefense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any criminal
liability:
1.
Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
Unlawful aggression is the most essential element of self-defense. [63] It
presupposes actual, sudden and unexpected attack -- or an imminent danger
thereof -- on the life or safety of a person. [64] In the present case, however,
according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon
him. She had already been able to withdraw from his violent behavior and
escape to their childrens bedroom. During that time, he apparently ceased
his attack and went to bed. The reality or even the imminence of the danger
he posed had ended altogether. He was no longer in a position that
presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their childrens
bedroom -- and based on past violent incidents, there was a great probability
that he would still have pursued her and inflicted graver harm -- then, the
imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already suffering from BWS, further evidence
of actual physical assault at the time of the killing is not required. Incidents
of domestic battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before she can defend
her life would amount to sentencing her to murder by installment. [65] Still,
impending danger (based on the conduct of the victim in previous battering
episodes) prior to the defendants use of deadly force must be shown.
Threatening behavior or communication can satisfy the required imminence
of danger.[66] Considering such circumstances and the existence of BWS, selfdefense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not
warrant self-defense.[67] In the absence of such aggression, there can be no

self-defense -- complete or incomplete -- on the part of the victim. [68] Thus,

Marivics killing of Ben was not completely justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any
other modifying circumstances that would alter her penalty, we deem it
proper to evaluate and appreciate in her favor circumstances that mitigate
her criminal liability. It is a hornbook doctrine that an appeal in a criminal
case opens it wholly for review on any issue, including that which has not
been raised by the parties.[69]
From several psychological tests she had administered to Marivic, Dra.
Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated
battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological resistance and
natural self-control. It is very clear that she developed heightened sensitivity
to sight of impending danger her husband posed continuously. Marivic truly
experienced at the hands of her abuser husband a state of psychological
paralysis which can only be ended by an act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that
the effect of repetitious pain taking, repetitious battering, [and] repetitious
maltreatment as well as the severity and the prolonged administration of
the battering is posttraumatic stress disorder. [71] Expounding thereon, he
said:
Q What causes the trauma, Mr. Witness?
A

What causes the trauma is probably the repetitious battering.

Second, the severity of the battering. Third, the prolonged
administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the
victim and another one is the public and social support available
to the victim. If nobody is interceding, the more she will go to that
disorder....
xxx

xxx

xxx

You referred a while ago to severity. What are the qualifications in

terms of severity of the postraumatic stress disorder, Dr. Pajarillo?

The severity is the most severe continuously to trig[g]er this

post[t]raumatic stress disorder is injury to the head, banging of
the head like that. It is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder. Others are
suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and boxing
the individual. In this situation therefore, the victim is heightened
to painful stimulus, like for example she is pregnant, she is very
susceptible because the woman will not only protect herself, she
is also to protect the fetus. So the anxiety is heightened to the
end [sic] degree.

But in terms of the gravity of the disorder, Mr. Witness, how do

you classify?

We classify the disorder as [acute], or chronic or delayed or

[a]typical.

Can you please describe this pre[-]classification you called

delayed or [atypical]?

The acute is the one that usually require only one battering and
the individual will manifest now a severe emotional instability,
higher irritability remorse, restlessness, and fear and probably in
most [acute] cases the first thing will be happened to the
individual will be thinking of suicide.

And in chronic cases, Mr. Witness?

The chronic cases is this repetitious battering, repetitious

maltreatment, any prolonged, it is longer than six (6) months. The
[acute] is only the first day to six (6) months. After this six (6)
months you become chronic. It is stated in the book specifically
that after six (6) months is chronic. The [a]typical one is the
repetitious battering but the individual who is abnormal and then
become normal. This is how you get neurosis from neurotic
personality of these cases of post[t]raumatic stress disorder. [72]

Answering the questions propounded by the trial judge, the expert

witness clarified further:
Q

But just the same[,] neurosis especially on battered woman

syndrome x x x affects x x x his or her mental capacity?

Yes, your Honor.

As you were saying[,] it x x x obfuscated her rationality?

Of course obfuscated.[73]

In sum, the cyclical nature and the severity of the violence inflicted upon
appellant resulted in cumulative provocation which broke down her

psychological resistance and natural self-control, psychological paralysis,

and difficulty in concentrating or impairment of memory.
Based on the explanations of the expert witnesses, such manifestations
were analogous to an illness that diminished the exercise by appellant of her
will power without, however, depriving her of consciousness of her acts.
There was, thus, a resulting diminution of her freedom of action, intelligence
or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised
Penal Code, this circumstance should be taken in her favor and considered as
a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. It has been held that this state
of mind is present when a crime is committed as a result of an uncontrollable
burst of passion provoked by prior unjust or improper acts or by a legitimate
stimulus so powerful as to overcome reason. [77] To appreciate this
circumstance, the following requisites should concur: (1) there is an act,
both unlawful and sufficient to produce such a condition of mind; and (2) this
act is not far removed from the commission of the crime by a considerable
length of time, during which the accused might recover her normal
equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was the unlawful
aggressor, preceded his being killed by Marivic. He had further threatened
to kill her while dragging her by the neck towards a cabinet in which he had
kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus. [79]His
abusive and violent acts, an aggression which was directed at the lives of
both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to retreat to
a separate room, her emotional and mental state continued. According to
her, she felt her blood pressure rise; she was filled with feelings of self-pity
and of fear that she and her baby were about to die. In a fit of indignation,
she pried open the cabinet drawer where Ben kept a gun, then she took the
weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that there was
no considerable period of time within which Marivic could have recovered her
normal equanimity. Helpful is Dr. Pajarillos testimony[80] that with neurotic
anxiety -- a psychological effect on a victim of overwhelming brutality [or]
trauma -- the victim relives the beating or trauma as if it were real, although
she is not actually being beaten at the time. She cannot control reexperiencing the whole thing, the most vicious and the trauma that she
suffered. She thinks of nothing but the suffering. Such reliving which is
beyond the control of a person under similar circumstances, must have been
what Marivic experienced during the brief time interval and prevented her

from recovering her normal equanimity. Accordingly, she should further be

credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological
paralysis as well as passion and obfuscation -- did not arise from the same
set of facts.
On the one hand, the first circumstance arose from the cyclical nature
and the severity of the battery inflicted by the batterer-spouse upon
appellant. That is, the repeated beatings over a period of time resulted in
her psychological paralysis, which was analogous to an illness diminishing
the exercise of her will power without depriving her of consciousness of her
acts.
The second circumstance, on the other hand, resulted from the violent
aggression he had inflicted on her prior to the killing. That the incident
occurred when she was eight months pregnant with their child was deemed
by her as an attempt not only on her life, but likewise on that of their unborn
child. Such perception naturally produced passion and obfuscation on her
part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons
by employing means, methods or forms in the execution thereof without risk
to oneself arising from the defense that the offended party might make. [81] In
order to qualify an act as treacherous, the circumstances invoked must be
proven as indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation of
evidence.[82] Because of the gravity of the resulting offense, treachery must
be proved as conclusively as the killing itself.[83]
Ruling that treachery was present in the instant case, the trial court
imposed the penalty of death upon appellant. It inferred this qualifying
circumstances merely from the fact that the lifeless body of Ben had been
found lying in bed with an open, depressed, circular fracture located at the
back of his head. As to exactly how and when he had been fatally attacked,
however, the prosecution failed to establish indubitably. Only the following
testimony of appellant leads us to the events surrounding his death:
Q

You said that when Ben came back to your house, he dragged
you? How did he drag you?

COURT:
The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)
A

And he dragged me towards the door backward.

ATTY. TABUCANON:
Q

Where did he bring you?

Outside the bedroom and he wanted to get something and then

he kept on shouting at me that you might as well be killed so
there will be nobody to nag me

So you said that he dragged you towards the drawer?

Yes, sir.

What is there in the drawer?

I was aware that it was a gun.

COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q

Were you actually brought to the drawer?

Yes, sir.

What happened when you were brought to that drawer?

He dragged me towards the drawer and he was about to open

the drawer but he could not open it because he did not have the
key then he pulled his wallet which contained a blade about 3
inches long and I was aware that he was going to kill me and I
smashed his arm and then the wallet and the blade fell. The one
he used to open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the
feeling I had on that very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxx
Q

xxx

xxx

You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?

Three (3) inches long and inch wide.

It is a flexible blade?

Its a cutter.

How do you describe the blade, is it sharp both edges?

Yes, because he once used it to me.

How did he do it?

He wanted to cut my throat.

With the same blade?

Yes, sir, that was the object used when he intimidate me.

xxx

xxx

xxx

ATTY. TABUCANON:
Q

You said that this blade fell from his grip, is it correct?

Yes, because I smashed him.

What happened?

Ben tried to pick-up the wallet and the blade, I pick-up the pipe
and I smashed him and I ran to the other room.

What else happened?

When I was in the other room, I felt the same thing like what
happened before when I was admitted in PHILPHOS Clinic, I was
about to vomit. I know my blood pressure was raised. I was
frightened I was about to die because of my blood pressure.

COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him,
the witness at the same time pointed at the back of her neck or
the nape).
ATTY. TABUCANON:
Q

You said you went to the room, what else happened?

Considering all the physical sufferings that Ive been through with
him, I took pity on myself and I felt I was about to die also
because of my blood pressure and the baby, so I got that gun and
I shot him.

COURT
/to Atty. Tabucanon
Q

You shot him?

Yes, I distorted the drawer.[84]

The above testimony is insufficient to establish the presence of

treachery. There is no showing of the victims position relative to appellants
at the time of the shooting. Besides, equally axiomatic is the rule that when
a killing is preceded by an argument or a quarrel, treachery cannot be
appreciated as a qualifying circumstance, because the deceased may be said
to have been forewarned and to have anticipated aggression from the
assailant.[85]
Moreover, in order to appreciate alevosia, the method of assault adopted
by the aggressor must have been consciously and deliberately chosen for the
specific purpose of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked. [86] There is no showing,
though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the
thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any
convincing proof that she consciously and deliberately employed the method
by which she committed the crime in order to ensure its execution, this Court
resolves the doubt in her favor.[87]
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal
Code is reclusion perpetua to death. Since two mitigating circumstances and
no aggravating circumstance have been found to have attended the
commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 5 [88] of the same Code.[89] The penalty
ofreclusion temporal in its medium period is imposable, considering that two
mitigating circumstances are to be taken into account in reducing the
penalty by one degree, and no other modifying circumstances were shown to
have attended the commission of the offense.[90] Under the Indeterminate
Sentence Law, the minimum of the penalty shall be within the range of that
which is next lower in degree -- prision mayor -- and the maximum shall be
within the range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and
proper to impose the penalty of prision mayor in its minimum period, or six
(6) years and one (1) day in prison as minimum; to reclusion temporal in its
medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for
and be released from detention on parole.[91]
Epilogue

Being a novel concept in our jurisprudence, the battered woman

syndrome was neither easy nor simple to analyze and recognize vis--vis the
given set of facts in the present case. The Court agonized on how to apply
the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and
jurisprudence applicable to the proven facts. To give a just and proper
resolution of the case, it endeavored to take a good look at studies
conducted here and abroad in order to understand the intricacies of the
syndrome and the distinct personality of the chronically abused person.
Certainly, the Court has learned much. And definitely, the solicitor general
and appellants counsel, Atty. Katrina Legarda, have helped it in such
learning process.
While our hearts empathize with recurrently battered persons, we can
only work within the limits of law, jurisprudence and given facts. We cannot
make or invent them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense
arising from the battered woman syndrome. We now sum up our main
points. First, each of the phases of the cycle of violence must be proven to
have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode
preceding the killing of the batterer must have produced in the battered
persons mind an actual fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order to save her life. Third, at
the time of the killing, the batterer must have posed probable -- not
necessarily immediate and actual -- grave harm to the accused, based on the
history of violence perpetrated by the former against the latter.
Taken
altogether, these circumstances could satisfy the requisites of self-defense.
Under the existing facts of the present case, however, not all of these
elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is
hereby AFFIRMED. However, there being two (2) mitigating circumstances
and no aggravating circumstance attending her commission of the offense,
her penalty is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal as
maximum.
Inasmuch as appellant has been detained for more than the minimum penalty
hereby imposed upon her, the director of the Bureau of Corrections may
immediately RELEASE her from custody upon due determination that she is
eligible for parole, unless she is being held for some other lawful cause.
Costs de oficio.
SO ORDERED.

G.R. No. 123137

October 17, 2001

PEOPLE
OF
THE
vs.
PO2 ALBERT ABRIOL, MACARIO
DOSDOS, accused-appellants.

PHILIPPINES, plaintiff-appellee,
ASTELLERO,

and

JANUARIO

QUISUMBING, J.:
On appeal is the decision dated May 17, 1995, of the Regional Trial Court of
Cebu City, Branch 10, in Criminal Cases Nos. CBU-30350 for murder and
CBU-33664 for illegal possession of firearms, finding appellants Albert Abriol,
Macario Astellero, and Januario Dosdos guilty beyond reasonable doubt of
murder and violation of Presidential Decree No. 1866 on Illegal Possession of
Firearms. Its decretal portion reads:
WHEREFORE, judgment is hereby rendered:
In Criminal Case No. CBU-30350 for Murder, the Court finds accused
Albert Abriol, Macario Astellero and Januario Dosdos, GUILTY of murder
beyond reasonable doubt and each is hereby sentenced to reclusion
perpetua, with the accessory penalties provided by law; to indemnify
the heirs of deceased Alejandro Flores the sum of P50,000.00; actual
damages of P30,000.00, representing a reasonable amount for the
embalming, vigil, wake, and burial expenses; P30,000.00 for attorney's
fees; and to pay the costs.
For insufficiency of evidence, accused Gaudioso Navales is hereby
ACQUITTED with costs de officio.
In Criminal Case No. CBU-33664 for Illegal Possession of Firearms,
accused Albert Abriol, Macario Astellero and Januario Dosdos, are
hereby sentenced to suffer an indeterminate penalty of 14 years, 8
months and 1 day to 17 years and 4 months and to pay the costs.
The .38 caliber revolver, SN P08445 and the two .45 caliber pistols with
SN PGO 13506 and SN 52469, are hereby confiscated and forfeited in
favor of the Government and accordingly, the Clerk of Court of this
Branch is directed to turn over the said firearms to the Chief of Police,
Cebu City, or to the Firearms and Explosives Office (FEO) of the PNP
Region 7, upon proper receipt.

The Cebu City Chief of Police is directed to release immediately upon

receipt hereof, the person of Gaudioso Navales, unless there be any
other valid reason for his continued detention.
SO ORDERED.1
This judgment was the culmination of proceedings beginning with the
Amended Information dated September 6, 1993, docketed as Criminal Case
No. CBU-30350, wherein appellants PO2 Albert Abriol of the Philippine
National Police (PNP), Macario Astellero, Januario Dosdos, and PNP P/Chief
Inspector Gaudioso Navales were charged with murder allegedly committed
as follows:
That on or about the 5th day of June, 1993, at about 11:50 P.M., in the
City of Cebu, Philippines and within the jurisdiction of this Honorable
Court, the said accused, armed with handguns, conniving and
confederating together and mutually helping one another, with
treachery and evident premeditation, with deliberate intent, with intent
to kill, did then and there shot one Alejandro Flores alias Alex with the
said handguns, hitting him on the different parts of his body, thereby
inflicting upon him the following physical injuries:
CARDIO
RESPIRATORY
ARREST
DUE
TO
SHOCK
AND
HEMORRHAGE SECONDARY TO MULTIPLE GUNSHOT WOUNDS TO
THE TRUNK AND THE HEAD
as a consequence of which the said Alejandro Flores alias Alex died
later.
CONTRARY TO LAW.2
At the time of the incident, appellant Abriol, a policeman previously detailed
as a jailguard at the Bagong Buhay Rehabilitation Center (BBRC) in Cebu
City, was himself a detention prisoner in BBRC. He was charged with murder,
a non-bailable offense, in Criminal Case No. CBU-28843 before the RTC of
Cebu City, Branch 14.3
Appellant Astellero was a former prisoner at BBRC, who had served time for
grave threats.4 The warden then, Chief Inspector Navales,5 employed him as
his personal driver and general factotum. 6 Navales was found guilty of grave
misconduct in Administrative Case No. 01-93 for allowing Abriol and Dosdos

out of BBRC on the day of the murder and was summarily dismissed from the
police force.
Dosdos had been convicted by the RTC of Cebu City, Branch 10, of highway
robbery in Criminal Case No. CBU-18152 but Navales failed to act on the
mittimus ordering Dosdos' transfer to the national penitentiary, and he
remained in BBRC.7 Abriol and Dosdos enjoyed special privileges at BBRC as
the warden's errand boys8 or "trustees."
The victim, Alejandro Flores alias "Alex," was a former policeman. He was
dismissed from the PNP in August 1992 after testing positive for prohibited
drugs.9
Abriol, Astellero, and Dosdos were also indicted for illegal possession of
firearms in Criminal Case No. CBU-33664. The charge sheet reads:
That on or about the 5th day of June 1993 at about 11:48 P.M. in the
City of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, conniving and confederating together and
mutually helping one another, with deliberate intent, did then and
there keep under their control and possession the following:
1. one (1) .38 cal. revolver (Armscor) with SN P08445 with six empty
shells;
2. one (1) .45 cal. pistol (Colt) with SN P6013506 with 9 live
ammunitions (sic);
3. one (1) .45 cal. Pistol (Colt) with SN 52469 with five live ammunition.
without first obtaining a permit or license therefor from competent
authority.
CONTRARY TO LAW.10
When arraigned, all the accused pleaded not guilty to both charges. Since
the indictments arose from the same incident, the cases were jointly tried.
The facts of the case are as follows:

At around 11:50 P.M., June 5, 1993, Romeo Sta. Cruz, Jr., a radio news
reporter then aboard his jeep, had just reached the ABS-CBN compound in P.
del Rosario Street, Cebu City, when he heard a couple of gunshots. He looked
around and saw a man running unsteadily towards the intersection of P. del
Rosario Street and Jones Avenue (Osmea Boulevard). The man was shouting
"Tabang, tabang!" ("Help! Help!"). Sta. Cruz, Jr., saw a red "Jiffy" make a Uturn near the gate of the city central school that nearly ran over the man
shouting for help. The man turned back and staggered towards the direction
of Bacalso Avenue and Urgello Private Road, but after a few meters on
wobbly legs, he stopped and collapsed.
Meanwhile, the "Jiffy" followed. It stopped beside the fallen figure and a tall,
thin man alighted. The man fired several shots at the prostrate figure. He
boarded the "Jiffy" which sped away towards Leon Kilat Street. Romeo Sta.
Cruz, Jr., moved his jeep and focused its headlights on the victim.
In the meantime, PO3 Alexander Rustela was at a vulcanizing shop near the
intersection of Bacalso Avenue and Leon Kilat Street, when he heard
gunshots coming from the north. He ran towards where the gunshots came
and saw people scampering. All of a sudden, the "Jiffy" with three persons on
board sped past him and made an abrupt left turn at Leon Kilat Street.
Rustela immediately radioed for assistance. Minutes later, patrol car No. 201
with PO2 Herbert Ramos on board arrived. Rustela boarded the car and they
followed the "Jiffy," while broadcasting an alarm to police headquarters and
other mobile patrol cars.
On nearby Colon Street, SPO1 Eleazar Abrigana and PO2 Romeo Abellana
were cruising aboard patrol car No. 208, when they heard a radio message
that the suspects in the shooting incident were aboard a "Jiffy." As they
turned left at Leon Kilat Street, they saw the "Jiffy" heading towards Carbon
Market. They pursued the "Jiffy" which stopped in front of the Don Bosco
Building near BBRC, when police car No. 205, with PO Eugenio Badrinas and
PO2 Gerald Cue aboard, blocked the "Jiffy's" path. Cue fired a warning shot
and three persons alighted. The driver was appellant Astellero, whom Cue
had recognized and seen before at the BBRC. Abrigana and Cue approached
the trio who stood a meter away from the "Jiffy." SPO1 Abrigana frisked Abriol
and seized from his waist a .38 caliber revolver with serial number PO8485
with six (6) empty shells in its cylinder. 11 Under Abriol's seat, the police also
found a .45 caliber pistol bearing serial number PGO 13506 with nine (9) live

rounds in its magazine and another .45 caliber pistol with serial number
52469 loaded with five (5) unfired bullets.12
While the patrol cars were chasing the "Jiffy," another police team proceeded
to the crime scene in response to the alarm. This team from Police Station
No. 3 in San Nicolas, Cebu City rushed the victim to the Cebu City Medical
Center, where he was pronounced dead on arrival. Meanwhile, PO3 Celso
Seville, Jr., a homicide investigator of Police Station No. 3 found four (4) .45
caliber shells some four (4) feet away from the victim's body, and two (2)
deformed slugs where the victim had lain, and submitted them to the Region
7 PNP Crime Laboratory for ballistics testing.13
Dr. Ladislao Diola, Jr., Chief of the PNP Region 7 Crime Laboratory autopsied
the victim's body. He found that the cause of the victim's death was
"cardiorespiratory arrest due to shock and hemorrhage secondary to multiple
gunshot wounds to the trunk and head.'' 14 Dr. Diola recovered a .38 caliber
slug from the corpse, which he later submitted for ballistics examination.
SPO4 Lemuel Caser, ballistician of the PNP Crime Laboratory, reported the
following:
1. Fired cartridge cases marked "JA-1" to "JA-3" possesses similar
individual characteristics markings with the test cartridge cases fired
from cal .45 with SN: PGO13506;
2. Fired cartridge cases marked "JA-4" and "E-69-6" possesses similar
individual characteristics markings with the test cartridge cases fired
from cal .45 pistol with SN: 52469;
3. Fired bullet metal jacket marked "JA-5" possesses similar individual
characteristics markings with test bullets fired from cal .45 pistol with
SN: PGO13506;
4. Fired cartridge cases marked "E-45-1 " to "E-45-6" possesses similar
individual characteristics markings with the test cartridge cases fired
from cal .38 Rev. SN: P8445;
5. Fired bullets marked as "JA-6" and "LD" possesses similar individual
characteristic markings with the test bullets fired from cal .38 Rev. SN:
P8445.15

The following day, appellants underwent a paraffin test. The hands of

appellants were found positive for gunpowder residues. A chemistry test on
the firearms showed that the three handguns were also positive. Inspector
Myrna Areola, Chief of the Chemistry Section of the PNP Region 7 Crime
Laboratory, stated in her testimony that the firearms had been fired, 16 and
that appellants had fired the guns within a period of seventy-two (72) hours
prior to the examination.
The widow and relatives of the victim testified on the possible motive behind
the killing. They claimed the victim, a confessed drug user, may have been
"rubbed out" on the orders of Navales for failure to remit P31,000 as
proceeds from pushing prohibited drugs. After failing to deliver the drug
money to Navales, for whom he was repeatedly pushing drugs, the victim
went into hiding, but later returned to Cebu City because he missed his
family.17
Appellants deny the accusations. Abriol averred that he and Dosdos were
among the several "trustees" at BBRC assigned to work in the kitchen.
Appellant Astellero, who was the warden's driver, was also in charge of
marketing for the prisoners' food. On the day of the incident, Astellero
realized that there was no money for the next day's marketing so he asked
Abriol to accompany him to the house of Navales, but since he was not in,
they returned to BBRC and saw Navales an hour later. After they received the
money from Navales' niece on their way back to BBRC, Dosdos heard
gunshots. Abriol ordered Astellero, who was driving, to turn back. Then Abriol
claimed he saw a tall, slim man alight from a "Jiffy" and shoot at a prone
figure on the ground. Seconds later, the gunman returned to the "Jiffy,"
which sped off. Abriol said he ordered Astellero to chase that "Jiffy" but it had
too much of a headstart and they lost sight of it. Abriol ordered Astellero to
proceed to BBRC. At Colon Street, they heard gunshots behind them and the
blaring siren of a police car. They explained that since they were detention
prisoners, they had to evade meeting the police. They heard more gun shots.
Upon reaching BBRC, the gates were closed, so they drove to the old airport.
On their way back to BBRC several police cars blocked them and arrested
them. SPO4 Eleazar Abrigana frisked him and took the .38 service revolver
from his waist.18
Abriol also testified that he surrendered his service firearm to the BBRC
Administrative Officer when he was served a warrant of arrest for murder in
Criminal Case No. CBU-28843. However, the handgun was defective and it

was returned to him for repair by Armscor, and upon repair he handed it over
to the BBRC armory. The armorer returned it to him since there was no place
to keep it. He said that although he was a detention prisoner, he had yet to
be discharged from the service. He was assigned guard and escort duties by
the warden.19 Abriol said that on the day of the incident he was, as a BBRC
jailguard, authorized to carry his service firearm. 20 He presented a
Memorandum Receipt21 authorizing him to carry the government-issued .38
revolver.22
On the witness stand, Astellero and Dosdos narrated a similar version of the
incident as did Abriol. Both vehemently denied having any knowledge of the
two .45 caliber pistols found by PO3 Cue in the "Jiffy."23
The defense also presented Dr. Jesus P. Cerna, medico-legal officer of the
Cebu City PNP Command, to testify on the caliber of the firearms which
might have caused the gunshot wounds of the victim. Relying on the
Necropsy Report prepared by Dr. Diola, Dr. Cerna declared that wound nos. 1
and 2, which each measured 0.6 cm. by 0.6 cm., may have been caused by a
.38 caliber firearm. As to wound nos. 3 and 4, which each measured 0.5 cm.
by 0.5 cm., it was possible that a .38 handgun was used, or one with a
smaller bore. Dr. Cerna opined that a .45 pistol could not have inflicted all
the foregoing wounds, as the entry points were too small for a .45 caliber
bullet. With respect to the grazing wounds found on the victim's body, Dr.
Cerna testified that it was impossible to determine the caliber of the firearm
used.24
The trial court found appellants' version of the incident neither convincing
and credible and, as earlier stated, it believed the prosecution's version.
Petitioners' were convicted of the offenses charged.
Hence, this appeal, with appellants assigning the following errors:
I
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF
THE CRIMES OF MURDER AND ILLEGAL POSSESSION OF FIREARMS DESPITE
THE FLIMSY AND UNRELIABLE EVIDENCE PRESENTED BY THE PROSECUTION.
II

THE LOWER COURT ERRED IN FINDING THE GUILT OF THE ACCUSEDAPPELLANTS OF THE CRIME OF MURDER AND ILLEGAL POSSESSION OF
FIREARMS BEYOND REASONABLE DOUBT.
At issue is whether the prosecution's evidence, which is mainly
circumstantial, suffices to convict appellants for murder and violation of
Presidential Decree No. 1866, beyond reasonable doubt.
A. Criminal Case No. CBU-30350
On their conviction for murder, appellants argue that the prosecution's
circumstantial evidence against them is weak, ambiguous, and inconclusive.
Specifically, appellants contend that they should be acquitted because:
First, eyewitness Romeo Sta. Cruz, Jr., did not personally identify them as the
culprits. At no point in his testimony did eyewitness Sta. Cruz, Jr., positively
identify any of the appellants or appellant Abriol as the gunman. Sta. Cruz, Jr.
only gave a general description of the assailants, despite attempts to make
him give a categorical identification. He admitted he found out the name of
Abriol from television and news reports and could not identify Abriol as the
one whom he saw shot the victim. The transcript of his testimony is
revealing.
Q:
Then after the Jiffy stopped in front of the fallen victim, what
happened next?
A:
I saw that there was a man who disembarked from the Jiffy. He
was a tall, thin fellow who disembarked from the Jiffy and at the same
time, he shot the fallen victim.
Q:

How many times did he shoot the victim?

A:

I cannot count attorney but I saw him shooting the victim.

Q:
In your affidavit, you said that the person who disembarked
from the Jiffy, whose name you know later on as PO2 Albert Abriol,
PNP, shot the victim in the different parts of his body. If Albert Abriol is
now in the courtroom, will you please point to him?
A:
I will know him attorney because of the TV shows and
newspapers.

COURT: (TO WITNESS)

Q:
You are referring to the name of that man who disembarked
from the Jiffy and fired several shots at the fallen victim?
A:

Yes, I know his name Your Honor on (sic) the news cast.

COURT: (TO WITNESS)

Q:
Alright, forget the news. The man you saw when he alighted
from the Jiffy and poured (sic) several bullets on the fallen man, look
around if he is in the courtroom?
A:

I cannot identify Your Honor.

COURT:
Q:

You cannot?

A:
But [because] what I saw is a man who is tall and thin because
it was dark.
xxx

xxx

xxx

Q:

How many persons fired a shot at the fallen man?

A:

I only saw that man Your Honor who alighted from the Jiffy.

Q:

Did you see his physical features?

A:
Only (t)his, I can only tell his height, he was tall and his body
build is thin. Tall and thin. (Emphasis supplied)25
Since the sole eyewitness could not identify the gunman and his
companions, the prosecution relied on circumstantial evidence from which
the
trial
court
could
draw
its
findings
and
conclusion
of
26
culpability. Circumstantial evidence may be relied upon, as in this case,
when to insist on direct testimony would result in setting felons free.
Second, appellants assert that the paraffin tests are judicially recognized as
unreliable and inconclusive. A paraffin test could establish the presence or
absence of nitrates on the hand. However, it cannot establish that the source

of the nitrates was the discharge of firearms. Nitrates are also found in
substances other than gunpowder. A person who tests positive may have
handled one or more substances with the same positive reaction for nitrates
such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco, and
leguminous plants. Hence, the presence of nitrates should only be taken as
an indication of a possibility that a person has fired a gun. 27However, it must
be borne in mind that appellants were not convicted on the sole basis of the
paraffin test.
Third, appellants claim that the autopsy report of prosecution witness Dr.
Ladislao Diola revealed serious ambiguities. 28 Dr. Jesus P. Cerna, using the
same autopsy report, said that the gunshot wounds measuring 0.6 x 0.6
centimeters could not have been caused by a .45 caliber pistol because an
entrance wound of that size was too small for a .45 caliber bullet. 29 Dr. Cerna
claimed that a wound inflicted by a .45 pistol would have an entry point of
anywhere from 1.1 to 1.3 centimeters. He declared that it was with more
reason that an entrance wound measuring .5 x .5 centimeters could not be
caused by a caliber .45 bullet. 30 Since no firearm smaller than a .38 caliber
pistol was seized from appellants, they claim the observation of Dr. Cerna
only shows that they could not have shot the victim.
We note, however, that during cross-examination, Dr. Diola carefully
explained that a firearm's caliber is not the only basis for determining the
cause of the gunshot wound. He said:
ATTY. REMOTIQUE:
Q:
So, normally the size of .5 cm x .5 cm which is the point of
entry of gunshot wound No. 3 this may have been caused by a firearm
of lesser caliber than caliber .38?
A:
Not necessarily. There is a very small difference in the size and
this does not preclude that gunshot wound No. 3 may have also been
caused by the same firearm which caused gunshot wounds Nos. 1 and
2.There are factors which often affect the size of the wounds at the
time of the examination, perhaps a recission (sic) of the skin in the
area where gunshot Wound No. 3 was inflicted so that gunshot wound
becomes smaller.
Q:
Did you not say that normally the point of entry of the gunshot
wounds vary with the caliber of the firearm which caused it, so that the

point of entry caused by one firearm of a particular caliber may be

bigger than the point of entry of a gunshot wound caused by another
firearm of lesser caliber?
A:
I told you of other factors that often affect the size of the entry
of the bullet although the caliber is one basis of the size of the wounds.
xxx

xxx

xxx

Q:
Will you explain further on that because my understanding is
that .5 cm wound must perforce be caused by a firearm of lesser
caliber than that which caused the .6 cm wound?
A:
As I said there are ranges in the size of the wounds. The
variance in the size of the wound when it is minimal does not exclude
the possibility that a wound with a .5 cm size and .6 cm size could
have been caused by the same caliber. (Emphasis supplied).31
The Office of the Solicitor General points out that Dr. Diola's testimony is
supported by Dr. Pedro P. Solis, a medical expert, in his book entitled Legal
Medicine. The factors which could make the wound of entrance bigger than
the caliber include: (1) shooting in contact or near fire; (2) deformity of the
bullet which entered; (3) a bullet which might have entered the skin
sidewise; and (4) an acute angular approach of the bullet. However, where
the wound of entrance is smaller than the firearm's caliber, the same may be
attributed to the fragmentation of the bullet before entering the skin or to
a contraction of the elastic tissues of the skin (stress supplied).32 Dr. Diola
testified that a .45 caliber pistol could have caused the grazing wounds on
the victim's head and extremities.33 Dr. Cerna corroborated Dr. Diola's
findings in this regard.34 Such expert opinions disprove appellants' theory
that the .45 caliber handguns confiscated from them could not have been
used in killing the victim.
Fourth, appellants allege that the testimony of P/Inspector Lemuel Caser, the
prosecution's ballistics expert, clearly shows that: (1) He is ignorant about
such ballistics instruments such as the micrometer, goniometer, and
pressure barrel.35 (2) He is not conversant with "the required references
concerning ballistics," particularly books on the subject by foreign
authorities.36 (3) He could not "scientifically determine the caliber of a
bullet."37 Since P/Inspector Caser lacked adequate training and expertise in
ballistics, they claim that his opinion that the test bullets and cartridges

matched the slugs and cartridges recovered from the scene of the crime was
not reliable. Appellants also assail Caser's failure to take the necessary
photographs to support his findings.
An expert witness is "one who belongs to the profession or calling to which
the subject matter of the inquiry relates and who possesses special
knowledge on questions on which he proposes to express an opinion." 38There
is no definite standard of determining the degree of skill or knowledge that a
witness must possess in order to testify as an expert. It is sufficient that the
following factors be present: (1) training and education; (2) particular, firsthand familiarity with the facts of the case; and (3) presentation of authorities
or standards upon which his opinion is based. 39 The question of whether a
witness is properly qualified to give an expert opinion on ballistics rests with
the discretion of the trial court.40
In giving credence to Caser's expert testimony, the trial court explained:
The defense downgraded the capability of Caser in forensics ballistics
and identifying firearms. Much stress is given to the absence of
photographs of his examination. Nonetheless, the Court is satisfied
(with) Caser's examination, findings and conclusions with the use of a
microscope. Caser's conclusion based on his examination deserves
credit. He found the impressions on the primer of the fired cartridges
that were test-fired to have the same characteristics with those
recovered at the scene of the crime. Whenever a triggerman pumps a
bullet (into) the body of his victim, he releases a chunk of concrete
evidence that binds him inseparably to his act. Every gun barrel deeply
imprints on every bullet its characteristic marking peculiar to that gun
and that gun alone. These marking might be microscopic but they are
terribly vocal in announcing their origin. And they are as infallible for
purposes of identification, as the print left by the human finger.41
We agree with the trial court that P/Inspector Caser qualifies as a ballistics
expert. He is a licensed criminologist, trained at the Ballistics Command and
Laboratory Center in Fort Bonifacio, in the PNP Crime Laboratory in Camp
Crame, and in the National Bureau of Investigation. He had previously
testified as an expert witness in at least twenty-seven (27) murder and
homicide cases all over the country.42 An expert witness need not present
comparative microphotographs of test bullets and cartridges to support his
findings.43 Examination under a comparison microscope showing that the test

bullet and the evidence bullet both came from the same gun is
sufficient.44 Moreover,
the
ballistician
conclusively
found
similar
characteristic markings in the evidence, test cartridges and slugs.
Fifth, appellants aver that the prosecution failed to show any plausible
motive for appellants to kill the victim. The prosecution tried to prove that
their co-accused Navales instigated them to kill the victim because Navales
had a grudge against him. However, as Navales was acquitted, appellants
insist that Navales' acquittal should redound to their benefit since no motive
was imputed on their part.
Motive is not an essential element of a crime, 45 particularly of murder.46 It
becomes relevant only where there is no positive evidence of an accused's
direct participation in the commission of a crime. 47 Stated otherwise, proof of
motive becomes essential to a conviction only where the evidence of an
accused's participation in an offense is circumstantial. 48 A careful perusal of
the State's evidence reveals that the prosecution had established sufficient
motive why appellants killed the victim, independent of any grudge which
Navales may have had against the latter. At the time of the incident,
appellants Abriol and Dosdos were both BBRC detention prisoners during
Navales' term as warden. Abriol and Dosdos were treated as highly favored
"trustees" of Navales and were never locked up. Abriol and Dosdos were
even allowed to go out of BBRC to do the marketing for the prison's kitchen.
Appellant Astellero, a former detention prisoner, was also a recipient of
Navales' favors. Navales hired Astellero as his personal driver after the latter
served his sentence. Navales and the victim, a former BBRC jailguard, were
associates in dealing with prohibited drugs, until they had a falling out
allegedly after the victim failed to remit to Navales proceeds from the sale of
illegal drugs amounting to P31,000. Appellants apparently killed the victim to
return the "special favors" Navales had showered them. Lack of a motive
does not necessarily preclude conviction. Persons have been killed or
assaulted for no reason at all, and friendship or even relationship is no
deterrent to the commission of a crime.49
Sixth, in the present case, appellants contend that the PNP cannot be
presumed to have done their work since it committed errors and blunders in
transferring possession and custody of the physical evidence. They allege
there was a possibility that the evidence was tainted, planted, or
manufactured. Besides, appellants point out that the presumption of

regularity cannot prevail over the constitutional presumption of innocence of

the accused.
The record shows that the police officers did not issue acknowledgment
receipts in some instances. However, minor lapses do not mean that the
State had failed to show an unbroken chain of custody of the subject firearms
and ammunition, nor that said firearms and ammunition were tampered. The
slugs and spent shells recovered from the scene of the crime and the victim's
corpse were plainly identified in open court by the PNP investigators. The
ballistician testified that the bullets and cartridges recovered from the crime
scene had been fired from the subject handguns. Under these circumstances,
we must respect the presumption of the regularity in the performance of
duties.
Seventh, appellants insist that the prosecution failed to show that the red
"Jiffy" used by them and seized by the police officers was the same vehicle
used by the gunmen who killed Alejandro Flores. Appellants point out that
PO3 Rustela, who was aboard police car No. 201, testified that they lost sight
of the red "Jiffy" while chasing it along Leon Kilat Street. Appellants argue
that the "Jiffy" which was chased by patrol car No. 208 until it was cornered
near BBRC by the other pursuing patrol cars was not the same vehicle
originally sighted and tailed by patrol car No. 201.
In rejecting this theory, the trial court stated that:
. . . PO3 Rustela who was nearby, immediately ran to the scene of the
crime and met the red jiffy with three persons on board, that speedily
passed by him proceeding towards Leon Kilat Street. Car 208 readily
picked up the trail and pursued the red jiffy from Leon Kilat, then
making abrupt turns on downtown streets until other patrol cars joined
the chase and captured them in Lahug, near the BBRC. The identity of
the red jiffy was never interrupted. Members of the Mobile Patrol Cars
identified in court without batting an eyelash, the red jiffy which was
the object of the shooting alarm. There was no interruption, no let-up
in the chase, right after Alejandro Flores was shot and there was no
other red jiffy that the crews of the (pursuing) patrol cars noticed.
The Court rejects their claim of innocence, for their very acts belied the
same.

Astellero could have stopped the jeep upon noticing that patrol cars
were already running after them with sirens, blinkers and warning
shots fired. From Leon Kilat Street to Lahug airport, there were several
police stations that they could have sought shelter and police
assistance. Guilt has many ways of surfacing. Instead of stopping,
Abriol ordered Astellero to accelerate their speed. Their obvious
purpose was to elude the patrol cars. Flight is indicative of guilt.50
But, in this case, is the totality of the circumstantial evidence relied upon by
the trial court sufficient to support a conviction?
Circumstantial evidence is that which indirectly proves a fact in issue. For
circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with each other, consistent with the
theory that the accused is guilty of the offense charged, and at the same
time inconsistent with the hypothesis that he is innocent and with every
other possible, rational hypothesis, except that of guilt. 51 An accused can be
convicted on the basis of circumstantial evidence where all the
circumstances constitute an unbroken chain leading to one fair and
reasonable conclusion pointing to the accused, to the exclusion of all others,
as the culprit.52
In our assessment, the prosecution's evidence constitutes an unbroken chain
of events leading to the inevitable conclusion of guilt on the part of
appellants. First, the fatal shooting of Alejandro Flores occurred at around
11:50 P.M. of June 5, 1993 in front of the ABS-CBN compound in Cebu City.
The gunman, who was tall and thin, alighted from a red "Jiffy," pumped
several bullets into the prone victim, and got back aboard the "Jiffy" which
then sped towards Leon Kilat Street. Second, eyewitness Romeo Sta. Cruz,
Jr.'s description of the gunman as "tall and thin" perfectly matches the
physique of appellant Abriol. Third, PO3 Alexander Rustela, who was close to
the crime scene, heard the gunshots and ran towards the place where the
sound of gunshots emanated. A red "Jiffy" with three persons aboard whizzed
by him and abruptly turned at Leon Kilat Street. After Sta. Cruz, Jr. informed
him that the gunmen were aboard a red "Jiffy," Rustela boarded patrol car
No. 201, radioed an alarm, and commenced a pursuit of the fleeing vehicle.
Police car no. 208 received the alarm, and on turning into Leon Kilat Street,
encountered the speeding red "Jiffy." They immediately chased the "Jiffy" but
failed to catch it. Police cars Nos. 208 and 205 cornered the vehicle in front
of the Don Bosco building near BBRC. PO2 Gerald Cue, on patrol car no. 205

fired a warning shot at the vehicle and directed all those aboard to
disembark. Three men got out, with their hands raised. SPO1 Abrigana, on
patrol car no. 208 and PO2 Cue approached the trio. Abrigana frisked the
man who was seated in the front passenger seat, who turned out to be
appellant Abriol, and recovered from his waist a .38 caliber revolver with six
empty shells. Cue searched the red "Jiffy" and found two loaded .45 caliber
pistols under the front seat where Abriol had sat. Other police officers
immediately went to the crime scene where they found the victim barely
alive. PO3 Seville retrieved four .45 caliber slugs and two deformed slugs at
the spot where the victim was shot. The autopsy of the victim's remains
showed that he died of cardio respiratory arrest due to shock and
hemorrhage secondary to gunshot wounds. A deformed metal jacket of a .38
caliber slug was recovered from the corpse. Ballistics tests showed that the
bullets and cartridges had identical individual characteristics with those of
the test bullets and cartridges. Paraffin tests conducted on each of the
appellants, one day after the incident, revealed that all were positive for
gunpowder residues. The subject firearms were also chemically examined
and found positive for gunpowder residue. Before the shooting incident,
appellants were seen at Navales' house until around 7:30 P.M., when they left
aboard Navales' red "Jiffy" with Astellero driving, Abriol in the front passenger
seat, and Dosdos in the back seat.53 Appellants' seating arrangements were
exactly the same, several hours later, after they were pursued and cornered
by police cars near BBRC. Appellants admitted that they dropped by the
Navales residence at around 7:00 P.M. and 11:00 P.M.
These unbroken chain of events prove not only appellants' identities but also
their participation and collective responsibility in the murder of Alejandro
Flores. They reveal a unity of purpose and concerted action evidencing their
conspiracy to kill him. Against this matrix of facts and circumstances,
appellants' bare denials cannot stand. Their story of chasing a red "Jiffy" is
merely a disingenuous diversion of no evidentiary value for the defense.
Finally, the information for murder alleged treachery and evident
premeditation. We note, though, that the trial court did not state which
circumstance qualified the killing into murder.
A review of the record would reveal that there was no evident premeditation.
There is evident premeditation when the following are shown: (a) the time
when the accused determined to commit the crime; (b) an act or acts
manifestly indicating that the accused has clung to his determination; and

(c) a lapse of time between the determination to commit the crime and the
execution thereof sufficient to allow him to reflect upon the consequences of
his act.54 Evident premeditation indicates deliberate planning and
preparation. Nowhere in the record is it shown when and how appellants
planned and prepared to kill the victim.
Concerning treachery, however, it was shown that: (1) the means of
execution employed gave the person attacked no opportunity to defend
himself or retaliate; and (2) the means of execution was deliberately or
consciously adopted.55 These twin requisites were adequately proved.
Appellants had superiority in numbers and weapons. The victim was without
any means to defend himself as no weapon was found or even intimated to
be in his possession. The victim was running away from the "Jiffy" prior to the
killing. That he was warned or threatened earlier is of no moment. Even
when the victim is warned of danger to his person, if the execution of the
attack made it impossible for the victim to defend himself or to retaliate,
treachery can still be appreciated.56 The victim was lying prostrate on the
ground when he was deliberately and mercilessly riddled with bullets. The
weapons used, the number of assailants, the swift and planned manner of
the attack, and the multiple number of wounds inflicted upon the victim all
demonstrate a determined assault with intent to kill the victim. No doubt
there was treachery.
B. Criminal Case No. CBU-33664
On their conviction for illegal possession of firearms, appellants contend that
the handguns and ammunition allegedly taken from them by the police
officers were illegally seized. They assert that the police had no warrant to
effect a search and seizure, such that these illegally seized firearms were
inadmissible as evidence, and it was error for the trial court to admit them.
There are eight (8) instances where a warrantless search and seizure is valid.
They are: (1) consented searches;57 (2) as an incident to a lawful arrest; 58 (3)
searches of vessels and aircraft for violation of immigration, customs, and
drug laws;59 (4) searches of moving vehicles;60 (5) searches of automobiles at
borders or constructive borders; (6) where the prohibited articles are in "plain
view;"61 (7) searches of buildings and premises to enforce fire, sanitary, and
building regulations; and (8) "stop and frisk" operations.62

In this case, the warrantless search and seizure of the subject handguns and
ammunition is valid for two reasons. It was a search incidental to a lawful
arrest. It was made after a fatal shooting, and pursuit of a fast-moving
vehicle seeking to elude pursuing police officers, and a more than reasonable
belief on the part of the police officers that the fleeing suspects aboard said
vehicle had just engaged in criminal activity. The urgent need of the police to
take immediate action in the light of the foregoing exigencies clearly satisfies
the requirements for warrantless arrests under the Rules of
Court.63 Moreover, when caught in flagrante delicto with firearms and
ammunition which they were not authorized to carry, appellants were
actually violating P.D. No. 1866, another ground for valid arrest under the
Rules.64
Appellants further contend that the trial court erred in convicting appellants
Astellero and Dosdos of illegal possession of firearms. They point out that the
.38 caliber revolver was recovered from appellant Abriol, who as a policeman
was authorized to carry and possess said firearm, as evidenced by his
Memorandum Receipt (MR), which had "not been recalled, cancelled or
revoked until the time of the trial of these cases." Appellants claim that the
two .45 caliber pistols could have been left in the vehicle by PNP personnel
assigned at BBRC, considering that the red "Jiffy" was generally used as a
service vehicle by BBRC personnel. They also argue that the prosecution
failed to prove appellants' ownership, control, and possession of the .45
caliber pistols, considering that appellants were six meters away from the
"Jiffy" when said handguns were allegedly found.
To sustain a conviction for violation of P.D. No. 1866, the prosecution must
prove two elements of the offense: (1) the existence of the subject firearm;
(2) the fact that the accused who owned or possessed the firearm does not
have the corresponding license or permit to possess it. 65 These the
prosecution did. It presented a .38 caliber revolver with serial number
PO8445, a .45 caliber pistol with serial number PGO 13506 Para Ordinance,
and a .45 caliber pistol with serial number 52469. The .38 caliber handgun
was recovered from appellant Abriol, while the two .45 caliber automatics
were found and seized from under the front passenger seat of appellants'
vehicle. SPO4 Aquilles Famoso of the Cebu City PNP Metropolitan District
Command's Firearms and Explosive Unit testified that appellants were not
listed as licensed firearm owners in Cebu City.66 The prosecution also
presented a certification from P/Senior Inspector Edwin Roque of the Firearms
and Explosives Division of PNP Headquarters at Camp Crame, Quezon City

that appellant Abriol is not licensed to hold any firearm; that the .45 caliber
pistols were unlicensed; and that a certification from the PNP Firearms and
Explosives Office attesting that a person is not a licensee of any firearm,
proves beyond reasonable doubt the second element of illegal possession of
firearm.67
Abriol insists that he had a valid MR authorizing him to carry the .38 revolver.
We agree with the observation of the trial court that:
The claim of Abriol that .38 caliber was issued to him, as evidenced by
the corresponding receipt (MR), is of no moment. While an MR is an
authority of Abriol to possess the government firearm that was issued
to him, when he was charged and detained at BBRC for an earlier case
of murder, other than the case at bar, he was already then at that
moment a detained prisoner and therefore, (un)authorized to carry a
firearm. A military man or a member of the PNP who commits a crime,
is immediately disarmed upon his arrest and stripped of all the rights
and privileges that go with the function of his office, and this includes,
in the case of Abriol, his MR. Thus, when he shot Alejandro Flores with
his .38 caliber revolver, this firearm was already unauthorized and its
use and possession illegal.68
Even if Abriol's MR was valid, said authorization was limited only to the .38
caliber revolver and not the two .45 caliber automatic pistols found under the
front passenger seat of the "Jiffy." Appellants were still in the unlawful
possession of the .45 caliber pistols. Under P.D. No. 1866, possession is not
limited to actual possession.69 In this case, appellants had control over the
pistols. They were all liable since conspiracy was established and the act of
one is the act of all.70
Appellants claim that they were six meters away from the "Jiffy" when it was
searched and the two .45 caliber pistols were seized. They suggest that the
policemen who searched the vehicle could have planted said firearms. The
trial court found that they were in fact only one meter away from the vehicle.
Findings of fact of the trial court, when supported by the evidence on record,
are binding and conclusive upon appellate courts.71
All told, on the charge of illegal possession of firearms, no reversible error
was committed by the trial court when it found appellants guilty beyond
reasonable doubt.

The Office of the Solicitor General recommends that although appellants

were charged with and convicted of two separate offenses of murder and
violation of P.D. No. 1866, R.A. No. 8294, which amended said decree, should
be applied to appellants retroactively, citing People v. Molina, 292 SCRA 742,
779 (1998) interpreting R.A. No. 8294.
We agree. We ruled in Molina that with the passage of R.A. No. 8294 on June
6, 1997, the use of an unlicensed firearm in murder or homicide is not a
separate crime, but merely a special aggravating circumstance. This was
recently reiterated in People v. Castillo, G.R. Nos. 131592-93, February 15,
2000.72 Appellants are thus guilty only of murder with the special
aggravating circumstance of use of unlicensed firearms. The imposition of
the penalty of reclusion perpetua cannot however be modified since the
murder took place before the effectivity of R.A. No. 7659.
A final word on the damages. In addition to the award of P50,000 as
indemnity ex delicto, the trial court awarded P30,000 in actual damages,
"representing a reasonable amount for the embalming, vigil, wake and burial
expenses," and P30,000 as attorney's fees. To be entitled to actual damages,
it is necessary to prove the actual amount of loss with a reasonable degree
of certainty, premised upon competent proof, and on the best evidence
obtainable by the injured party.73 No such evidence was offered. The award of
actual damages must, therefore, be deleted. However, temperate damages
may be awarded since the family of the victim has demonstrably spent for
the wake, funeral and burial arrangements. The amount of P20,000 should
suffice as temperate damages. In addition, we find an award of exemplary
damages in order, pursuant to Article 2230 of the Civil Code. 74 The killing was
attended by the special aggravating circumstance of use of unlicensed
firearms. Moreover, the public good demands that detained prisoners should
not abuse their status as "trustees." Had the police been unsuccessful in
their pursuit of appellants, the latter would have used the BBRC as shelter
and as an alibi that they could not have committed the crime since they
were then in detention. Thus, we find an award of P10,000 as exemplary
damages in order. Accordingly, the award of attorney's fees is sustained.75
WHEREFORE, the assailed Decision of the Regional Trial Court of Cebu City,
Branch 10, in Criminal Cases Nos. CBU-30350 and CBU-33664 is hereby
MODIFIED. Appellants Albert Abriol, Macario Astellero, and Januario Dosdos
are hereby found GUILTY of murder, qualified by treachery, with the special
aggravating circumstance of use of unlicensed firearms and are hereby

sentenced to suffer the penalty of reclusion perpetua with the accessory

penalties provided for by law. Appellants Abriol, Astellero, and Dosdos are
also ordered to pay, jointly and severally, the heirs of Alejandro Flores the
sum of P50,000 as death indemnity, P20,000 as temperate damages,
P10,000 as exemplary damages, and P30,000 as attorney's fees, as well as
the costs.
SO ORDERED.
SECOND DIVISION

ROWENA PADILLA-RUMBAUA,
Petitioner,

G.R. No. 166738

Present:
*

- versus

CARPIO-MORALES, J.,
Acting Chairperson,
**
CARPIO,
***
CHICO-NAZARIO,
****
LEONARDO-DE
CASTRO,
and
BRION, JJ.

EDWARD RUMBAUA,

Promulgated:
Respondent.

August 14, 2009

x --------------------------------------------------------------------------------------- x
DECISION
BRION, J.:
Petitioner Rowena Padilla-Rumbaua (petitioner) challenges, through her
petition for review on certiorari,[1] the decision dated June 25, 2004 [2] and the
resolution dated January 18, 2005[3] of the Court of Appeals (CA) in CA-G.R.
CV No. 75095. The challenged decision reversed the decision [4] of the
Regional Trial Court (RTC) declaring the marriage of the petitioner and
respondent Edward Rumbaua (respondent) null and void on the ground of the

latters psychological incapacity. The assailed resolution, on the other hand,

denied the petitioners motion for reconsideration.
ANTECEDENT FACTS
The present petition traces its roots to the petitioners complaint for
the declaration of nullity of marriage against the respondent before the RTC,
docketed as Civil Case No. 767. The petitioner alleged that the respondent
was psychologically incapacitated to exercise the essential obligations of
marriage as shown by the following circumstances: the respondent reneged
on his promise to live with her under one roof after finding work; he failed to
extend financial support to her; he blamed her for his mothers death; he
represented himself as single in his transactions; and he pretended to be
working in Davao, although he was cohabiting with another woman in
Novaliches, Quezon City.
Summons was

served

on

the

respondent

through

substituted

service, as personal service proved futile.[5] The RTC ordered the provincial
prosecutor to investigate if collusion existed between the parties and to
ensure that no fabrication or suppression of evidence would take place.
[6]

Prosecutor Melvin P. Tiongsons report negated the presence of collusion

between the parties.[7]

The Republic of the Philippines (Republic), through the office of the
Solicitor General (OSG), opposed the petition.[8] The OSG entered its
appearance and deputized the Provincial Prosecutor of Nueva Vizcaya to
assist in all hearings of the case.[9]
The petitioner presented testimonial and documentary evidence to
substantiate her charges.

The petitioner related that she and the respondent were childhood
neighbors in Dupax del Norte, Nueva Vizcaya. Sometime in 1987, they met
again and became sweethearts but the respondents family did not approve
of their relationship. After graduation from college in 1991, the respondent
promised to marry the petitioner as soon as he found a job. The job came in
1993, when the Philippine Air Lines (PAL) accepted the respondent as a
computer engineer. The respondent proposed to the petitioner that they first
have a secret marriage in order not to antagonize his parents. The
petitioner agreed; they were married in Manila on February 23, 1993. The
petitioner and the respondent, however, never lived together; the petitioner
stayed with her sister in Fairview, Quezon City, while the respondent lived
with his parents in Novaliches.
The petitioner and respondent saw each other every day during the
first six months of their marriage. At that point, the respondent refused to
live with the petitioner for fear that public knowledge of their marriage would
affect his application for a PAL scholarship. Seven months into their
marriage, the couples daily meetings became occasional visits to the
petitioners house in Fairview; they would have sexual trysts in motels. Later
that year, the respondent enrolled at FEATI University after he lost his
employment with PAL.[10]
In 1994, the parties respective families discovered their secret
marriage. The respondents mother tried to convince him to go to the United
States, but he refused. To appease his mother, he continued living
separately from the petitioner. The respondent forgot to greet the petitioner
during her birthday in 1992 and likewise failed to send her greeting cards on
special occasions. The respondent indicated as well in his visa application
that he was single.

In April 1995, the respondents mother died. The respondent blamed

the petitioner, associating his mothers death to the pain that the discovery
of his secret marriage brought. Pained by the respondents action, the
petitioner severed her relationship with the respondent. They eventually
reconciled through the help of the petitioners father, although they still lived
separately.
In 1997, the respondent informed the petitioner that he had found a
job in Davao. A year later, the petitioner and her mother went to the
respondents house in Novaliches and found him cohabiting with one Cynthia
Villanueva (Cynthia). When she confronted the respondent about it, he
denied having an affair with Cynthia.[11] The petitioner apparently did not
believe the respondents and moved to to Nueva Vizcaya to recover from the
pain and anguish that her discovery brought.[12]
The

petitioner

disclosed

during

her

cross-examination

that

communication between her and respondent had ceased. Aside from her
oral testimony, the petitioner also presented a certified true copy of their
marriage

contract;[13] and

the

testimony, curriculum

vitae,[14] and

psychological report[15] of clinical psychologist Dr. Nedy Lorenzo Tayag (Dr.

Tayag).
Dr. Tayag declared on the witness stand that she administered the
following tests on the petitioner: a Revised Beta Examination; a Bender
Visual Motor Gestalt Test; a Rorschach Psychodiagnostic Test; a Draw a
Person Test; a Sachs Sentence Completion Test; and MMPI. [16] She thereafter
prepared a psychological report with the following findings:
TEST RESULTS AND EVALUATION

Psychometric tests data reveal petitioner to operate

in an average intellectual level. Logic and reasoning
remained intact. She is seen to be the type of woman who
adjusts fairly well into most situations especially if it is
within her interests. She is pictured to be faithful to her
commitments and had reservations from negative
criticisms such that she normally adheres to social norms,
behavior-wise. Her age speaks of maturity, both
intellectually and emotionally. Her one fault lies in her
compliant attitude which makes her a subject for
manipulation and deception such that of respondent. In all
the years of their relationship, she opted to endure his
irresponsibility largely because of the mere belief that
someday things will be much better for them. But upon the
advent of her husbands infidelity, she gradually lost hope
as well as the sense of self-respect, that she has finally
taken her tool to be assertive to the point of being
aggressive and very cautious at times so as to fight with
the frustration and insecurity she had especially regarding
her failed marriage.
Respondent in this case, is revealed to operate
in a very self-centered manner as he believes that
the world revolves around him. His egocentrism
made it so easy for him to deceitfully use others for
his own advancement with an extreme air of
confidence and dominance. He would do actions
without any remorse or guilt feelings towards others
especially to that of petitioner.
REMARKS
Love happens to everyone. It is dubbed to be
boundless as it goes beyond the expectations people
tagged with it. In love, age does matter. People love in
order to be secure that one will share his/her life with
another and that he/she will not die alone. Individuals who
are in love had the power to let love grow or let love die it
is a choice one had to face when love is not the love he/she
expected.
In the case presented by petitioner, it is very
apparent that love really happened for her towards the
young respondent who used love as a disguise or
deceptive tactic for exploiting the confidence she extended
towards him. He made her believe that he is responsible,

true, caring and thoughtful only to reveal himself

contrary to what was mentioned. He lacked the
commitment, faithfulness, and remorse that he was able to
engage himself to promiscuous acts that made petitioner
look like an innocent fool. His character traits reveal him to
suffer Narcissistic Personality Disorder - declared to be
grave, severe and incurable.[17] [Emphasis supplied.]

The RTC Ruling

The RTC nullified the parties marriage in its decision of April 19,
2002. The trial court saw merit in the testimonies of the petitioner and Dr.
Tayag, and concluded as follows:
xxxx
Respondent was never solicitous of the welfare and wishes
of his wife. Respondent imposed limited or block [sic] out
communication with his wife, forgetting special occasions, like
petitioners birthdays and Valentines Day; going out only on
occasions despite their living separately and to go to a motel to
have sexual intercourse.
It would appear that the foregoing narration are the
attendant facts in this case which show the psychological
incapacity of respondent, at the time of the celebration of the
marriage of the parties, to enter into lawful marriage and to
discharge his marital responsibilities (See Articles 68 to 71,
Family Code). This incapacity is declared grave, severe and
incurable.
WHEREFORE, in view of the foregoing, the marriage
between petitioner Rowena Padilla Rumbaua and respondent
Edwin Rumbaua is hereby declared annulled.
SO ORDERED.[18]

The CA Decision

The Republic, through the OSG, appealed the RTC decision to the CA.
[19]

The CA decision of June 25, 2004 reversed and set aside the RTC

decision, and denied the nullification of the parties marriage.[20]

In its ruling, the CA observed that Dr. Tayags psychiatric report did not
mention the cause of the respondents so-called narcissistic personality
disorder; it did not discuss the respondents childhood and thus failed to
give the court an insight into the respondents developmental years. Dr.
Tayag likewise failed to explain why she came to the conclusion that the
respondents incapacity was deep-seated and incurable.
The CA held that Article 36 of the Family Code requires the incapacity
to be psychological, although its manifestations may be physical. Moreover,
the evidence presented must show that the incapacitated party was mentally
or physically ill so that he or she could not have known the marital
obligations assumed, knowing them, could not have assumed them. In other
words, the illness must be shown as downright incapacity or inability, not a
refusal, neglect, or difficulty to perform the essential obligations of
marriage. In

the

present

case,

the

petitioner

suffered

because

the

respondent adamantly refused to live with her because of his parents

objection to their marriage.
The petitioner moved to reconsider the decision, but the CA denied her
motion in its resolution of January 18, 2005. [21]
The Petition and the Issues
The petitioner argues in the present petition that
1.

the

OSG

certification

requirement

under Republic

v.

Molina[22] (the Molina case) cannot be dispensed with because A.M.

No. 02-11-10-SC, which relaxed the requirement, took effect only

on March 15, 2003;
2.

vacating the decision of the courts a quo and remanding the case
to the RTC to recall her expert witness and cure the defects in her
testimony, as well as to present additional evidence, would temper
justice with mercy; and

3.

Dr. Tayags testimony in court cured the deficiencies in her

psychiatric report.

The petitioner prays that the RTCs and the CAs decisions be reversed
and set aside, and the case be remanded to the RTC for further proceedings;
in the event we cannot grant this prayer, that the CAs decision be set aside
and the RTCs decision be reinstated.
The Republic maintained in its comment that: (a) A.M. No. 02-11-10-SC
was applicable although it took effect after the promulgation of Molina; (b)
invalidating the trial courts decision and remanding the case for further
proceedings were not proper; and (c) the petitioner failed to establish
respondents psychological incapacity.[23]
The parties simply reiterated their arguments in the memoranda they
filed.
THE COURTS RULING
We resolve to deny the petition for lack of merit.
A.M. No. 02-11-10-SC is applicable

In Molina, the Court emphasized the role of the prosecuting attorney or

fiscal and the OSG;

they are to appear as counsel

for

the State

in proceedings for annulment and declaration of nullity of marriages:

(8) The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the
state. No decision shall be handed down unless the
Solicitor General issues a certification, which will be
quoted in the decision, briefly stating therein his reasons
for his agreement or opposition, as the case may be, to
the petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within fifteen
(15) days from the date the case is deemed submitted for
resolution of the court. The Solicitor General shall discharge the
equivalent function of the defensor vinculi contemplated under
Canon 1095. [Emphasis supplied.]

A.M. No. 02-11-10-SC[24] -- which this Court promulgated on March 15,

2003 and duly published -- is geared towards the relaxation of the OSG
certification that Molinarequired. Section 18 of this remedial regulation
provides:
SEC. 18. Memoranda. The court may require the parties
and the public prosecutor, in consultation with the Office of the
Solicitor General, to file their respective memoranda in support
of their claims within fifteen days from the date the trial is
terminated. It may require the Office of the Solicitor General to
file its own memorandum if the case is of significant interest to
the State. No other pleadings or papers may be submitted
without leave of court. After the lapse of the period herein
provided, the case will be considered submitted for decision, with
or without the memoranda.
The petitioner argues that the RTC decision of April 19, 2002 should be
vacated for prematurity, as it was rendered despite the absence of the
required

OSG

certification

specified

in Molina. According

to

the

petitioner, A.M. No. 02-11-10-SC, which took effect only on March 15, 2003,

cannot overturn the requirements of Molina that was promulgated as early

as February 13, 1997.
The petitioners argument lacks merit.
The amendment introduced under A.M. No. 02-11-10-SC is procedural
or remedial in character; it does not create or remove any vested right, but
only operates as a remedy in aid of or confirmation of already existing rights.
The settled rule is that procedural laws may be given retroactive effect, [25] as
we held in De Los Santos v. Vda. de Mangubat:[26]
Procedural Laws do not come within the legal conception of
a
retroactive law,
or
the
general
rule
against
the
retroactive operation of statues - they may be given
retroactive effect on actions pending and undetermined at the
time of their passage and this will not violate any right of a
person who may feel that he is adversely affected, insomuch as
there are no vested rights in rules of procedure.
A.M. No. 02-11-10-SC, as a remedial measure, removed the mandatory
nature of an OSG certification and may be applied retroactively to pending
matters. In effect, the measure cures in any pending matter any procedural
lapse on the certification prior to its promulgation. Our rulings in Antonio v.
Reyes[27] and Navales v. Navales[28] have since confirmed and clarified that
A.M. No. 02-11-10-SC has dispensed with the Molina guideline on the matter of
certification, although Article 48 mandates the appearance of the prosecuting
attorney or fiscal to ensure that no collusion between the parties would take
place. Thus, what is important is the presence of the prosecutor in the case, not
the remedial requirement that he be certified to be present. From this perspective,
the petitioners objection regarding the Molina guideline on certification lacks merit.
A Remand of the Case to the RTC is Improper

The petitioner maintains that vacating the lower courts decisions and the
remand of the case to the RTC for further reception of evidence are procedurally
permissible. She argues that the inadequacy of her evidence during the trial was
the fault of her former counsel, Atty. Richard Tabago, and asserts that remanding
the case to the RTC would allow her to cure the evidentiary insufficiencies. She
posits in this regard that while mistakes of counsel bind a party, the rule should be
liberally construed in her favor to serve the ends of justice.
We do not find her arguments convincing.
A remand of the case to the RTC for further proceedings amounts to the
grant of a new trial that is not procedurally proper at this stage. Section 1 of Rule 37
provides that an aggrieved party may move the trial court to set aside a judgment
or final order already rendered and to grant a new trial within the period for
taking an appeal. In addition, a motion for new trial may be filed only on the
grounds of (1) fraud, accident, mistake or excusable negligence that could
not have been guarded against by ordinary prudence, and by reason of
which the aggrieved partys rights have probably been impaired; or (2) newly
discovered evidence that, with reasonable diligence, the aggrieved party
could not have discovered and produced at the trial, and that would probably
alter the result if presented.
In the present case, the petitioner cites the inadequacy of the
evidence presented by her former counsel as basis for a remand. She did
not, however, specify the inadequacy. That the RTC granted the petition for
declaration of nullity prima facie shows that the petitioners counsel had not
been negligent in handling the case. Grantingarguendo that the petitioners
counsel had been negligent, the negligence that would justify a new trial
must be excusable, i.e. one that ordinary diligence and prudence could not
have guarded against. The negligence that the petitioner apparently adverts

to is that cited in Uy v. First Metro Integrated Steel Corporation where we

explained:[29]
Blunders and mistakes in the conduct of the proceedings in
the trial court as a result of the ignorance, inexperience or
incompetence of counsel do not qualify as a ground for new
trial. If such were to be admitted as valid reasons for re-opening
cases, there would never be an end to litigation so long as a new
counsel could be employed to allege and show that the prior
counsel had not been sufficiently diligent, experienced or
learned. This will put a premium on the willful and intentional
commission of errors by counsel, with a view to securing new
trials in the event of conviction, or an adverse decision, as in the
instant case.
Thus, we find no justifiable reason to grant the petitioners requested
remand.
Petitioner failed to establish the
respondents psychological incapacity

A petition for declaration of nullity of marriage is anchored on Article

36 of the Family Code which provides that a marriage contracted by any
party who, at the time of its celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be
void

even

if

such

incapacity becomes

manifest

only

after

its

solemnization. In Santos v. Court of Appeals,[30] the Court first declared that

psychological incapacity must be characterized by (a) gravity; (b) juridical
antecedence; and (c) incurability. The defect should refer to no less than a
mental (not physical) incapacity that causes a party to be truly incognitive of
the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage. It must be confined to the most
serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage.
We laid down more definitive guidelines in the interpretation and
application of Article 36 of the Family Code in Republic v. Court of
Appeals where we said:
(1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor of
the existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and
unity of the family. Thus, our Constitution devotes an entire
Article on the Family, recognizing it as the foundation of the
nation. It decrees marriage as legally inviolable, thereby
protecting it from dissolution at the whim of the parties. Both the
family and marriage are to be protected by the state.
The Family Code echoes this constitutional edict on
marriage and the family and emphasizes their permanence,
inviolability and solidarity.
(2) The root cause of the psychological incapacity must
be
(a) medically or clinically identified, (b) alleged in the
complaint,
(c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family Code requires
that the incapacity must be psychological - not physical,
although its manifestations and/or symptoms may be physical.

The evidence must convince the court that the parties, or one of
them, was mentally or psychically ill to such an extent that the
person could not have known the obligations he was assuming,
or knowing them, could not have given valid assumption thereof.
Although no example of such incapacity need be given here so
as not to limit the application of the provision under the principle
of ejusdem generis, nevertheless such root cause must be
identified as a psychological illness and its incapacitating nature
fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at the
time of the celebration of the marriage. The evidence must
show that the illness was existing when the parties exchanged
their I do's. The manifestation of the illness need not be
perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption
of marriage obligations, not necessarily to those not related to
marriage, like the exercise of a profession or employment in a
job. x x x
(5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage. Thus, mild characteriological peculiarities, mood
changes, occasional emotional outbursts cannot be accepted as
root causes. The illness must be shown as downright
incapacity or inability, not a refusal, neglect or difficulty, much
less ill will. In other words, there is a natal or supervening
disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person
from really accepting and thereby complying with the obligations
essential to marriage.
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as regards
the husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children. Such noncomplied marital obligation(s) must also be stated in the petition,
proven by evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the Philippines,

while not controlling or decisive, should be given great respect

by our courts
(8) The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the state.
No decision shall be handed down unless the Solicitor General
issues a certification, which will be quoted in the decision, briefly
stating therein his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor General, along
with the prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The Solicitor
General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.

These Guidelines incorporate the basic requirements we established

in Santos. To reiterate, psychological incapacity must be characterized
by:

(a) gravity; (b) juridical antecedence; and (c) incurability. [31] These

requisites must be strictly complied with, as the grant of a petition for nullity
of marriage based on psychological incapacity must be confined only to the
most serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage.
Furthermore, since the

Family

Code does

not

define

psychological

incapacity, fleshing out its terms is left to us to do so on a case-to-case

basis through jurisprudence.[32] We emphasized this approach in the recent
case of Ting v. Velez-Ting[33] when we explained:
It was for this reason that we found it necessary to
emphasize in Ngo Te that each case involving the application of
Article 36 must be treated distinctly and judged not on the basis
of a priori assumptions, predilections or generalizations but
according to its own attendant facts. Courts should interpret the
provision on a case-to-case basis, guided by experience, the
findings of experts and researchers in psychological disciplines,
and by decisions of church tribunals.
In the present case and using the above standards and approach, we
find the totality of the petitioners evidence insufficient to prove that the

respondent is psychologically unfit to discharge the duties expected of him

as a husband.
a.

Petitioners testimony did not prove the root cause, gravity

and incurability of respondents condition
The

petitioners

respondent:

evidence

merely

showed

that

the

(a) reneged on his promise to cohabit with her; (b) visited

her occasionally from 1993 to 1997; (c) forgot her birthday in 1992, and did
not send her greeting cards during special occasions; (d) represented himself
as single in his visa application; (e) blamed her for the death of his mother;
and (f) told her he was working in Davao when in fact he was cohabiting with
another woman in 1997.
These acts, in our view, do not rise to the level of the psychological
incapacity that the law requires, and should be distinguished from
the difficulty, if not outright refusal or neglect in the performance of
some marital obligations that characterize some marriages. In Bier v. Bier,
[34]

we ruled that it was not enough that respondent, alleged to be

psychologically incapacitated, had difficulty in complying with his marital

obligations, or was unwilling to perform these obligations. Proof of a natal or
supervening

disabling

factor

an

adverse

integral

element

in

the

respondent's personality structure that effectively incapacitated him from

complying with his essential marital obligations had to be shown and was
not shown in this cited case.
In the present case, the respondents stubborn refusal to cohabit with
the petitioner was doubtlessly irresponsible, but it was never proven to be
rooted

in

some

psychological

reveals, respondent merely

illness. As

refused to

the

cohabit

petitioners
with

her

for

testimony
fear

of

jeopardizing his application for a scholarship, and later due to his fear of
antagonizing his family. The respondents failure to greet the petitioner on

her birthday and to send her cards during special occasions, as well as his
acts of blaming petitioner for his mothers death and of representing himself
as single in his visa application, could only at best amount to forgetfulness,
insensitivity

or

emotional

immaturity,

not

necessarily

psychological

incapacity. Likewise, the respondents act of living with another woman four
years

into

the

marriage

cannot

automatically

be

equated

with

psychological disorder, especially when no specific evidence was shown that

promiscuity was a trait already existing at the inception of marriage. In fact,
petitioner herself admitted that respondent was caring and faithful when
they were going steady and for a time after their marriage; their problems
only came in later.
To be sure, the respondent was far from perfect and had some
character flaws. The presence of these imperfections, however, does not
necessarily warrant a conclusion that he had a psychological malady at the
time of the marriage that rendered him incapable of fulfilling his duties and
obligations. To use the words of Navales v. Navales:[35]
Article 36 contemplates downright incapacity or inability to take
cognizance of and to assume basic marital obligations. Mere
difficulty, refusal or neglect in the performance of marital
obligations or ill will on the part of the spouse is different from
incapacity rooted on some debilitating psychological condition or
illness. Indeed, irreconcilable differences, sexual infidelity or
perversion, emotional immaturity and irresponsibility, and the
like, do not by themselves warrant a finding of psychological
incapacity under Article 36, as the same may only be due to a
person's refusal or unwillingness to assume the essential
obligations of marriage and not due to some psychological
illness that is contemplated by said rule.

b.

Dr. Tayags psychological report and court testimony

We cannot help but note that Dr. Tayags conclusions about the

respondents psychological incapacity were based on the information fed to

her by only one side the petitioner whose bias in favor of her cause
cannot be doubted. While this circumstance alone does not disqualify the
psychologist for reasons of bias, her report, testimony and conclusions
deserve the application of a more rigid and stringent set of standards in the
manner we discussed above.[36] For, effectively, Dr. Tayag only diagnosed the
respondent from the prism of a third party account; she did not actually hear,
see and evaluate the respondent and how he would have reacted and
responded to the doctors probes.
Dr. Tayag, in her report, merely summarized the petitioners narrations,
and on this basis characterized the respondent to be a self-centered,
egocentric, and unremorseful person who believes that the world revolves
around him; and who used love as adeceptive tactic for exploiting the
confidence [petitioner] extended towards him. Dr. Tayag then incorporated
her own idea of love; made a generalization that respondent was a person
who lacked commitment, faithfulness, and remorse, and who engaged in
promiscuous acts that made the petitioner look like a fool; and finally
concluded that the respondents character traits reveal him to suffer
Narcissistic Personality Disorder with traces of Antisocial Personality Disorder
declared to be grave and incurable.
We find these observations and conclusions insufficiently in-depth and
comprehensive to warrant the conclusion that a psychological incapacity
existed that prevented the respondent from complying with the essential
obligations of marriage. It failed to identify the root cause of the respondent's
narcissistic personality disorder and to prove that it existed at the inception
of the marriage. Neither did it explain the incapacitating nature of the
alleged disorder, nor show that the respondent was really incapable of
fulfilling

his

duties

due

to

some

incapacity of

psychological,

not

physical, nature. Thus, we cannot avoid but conclude that Dr. Tayags

conclusion in her Report i.e., that the respondent suffered Narcissistic

Personality Disorder with traces of Antisocial Personality Disorder declared to
be grave and incurable is an unfounded statement, not a necessary
inference from her previous characterization and portrayal of the respondent.
While the various tests administered on the petitioner could have been used
as a fair gauge to assess her own psychological condition, this same
statement cannot be made with respect to the respondents condition. To
make conclusions and generalizations on the respondents psychological
condition based on the information fed by only one side is, to our mind, not
different from admitting hearsay evidence as proof of the truthfulness of the
content of such evidence.
Petitioner nonetheless contends that Dr. Tayags subsequent testimony
in court cured whatever deficiencies attended her psychological report.
We do not share this view.
A careful reading of Dr. Tayags testimony reveals that she failed to
establish the fact that at the time the parties were married, respondent was
already suffering from a psychological defect that deprived him of the ability
to assume the essential duties and responsibilities of marriage. Neither did
she adequately explain how she came to the conclusion that respondents
condition was grave and incurable. To directly quote from the records:
ATTY. RICHARD TABAGO:
Q:

I would like to call your attention to the Report

already marked as Exh. E-7, there is a statement to
the effect that his character traits begin to suffer
narcissistic personality disorder with traces of
antisocial personality disorder. What do you mean?
Can you please explain in laymans word, Madam
Witness?

DR. NEDY LORENZO TAYAG:

A:

Actually, in a laymans term, narcissistic

personality disorder cannot accept that there is
something
wrong
with
his
own
behavioral
manifestation. [sic] They feel that they can rule the
world; they are eccentric; they are exemplary,
demanding financial and emotional support, and this
is clearly manifested by the fact that respondent
abused and used petitioners love. Along the line, a
narcissistic person cannot give empathy; cannot give
love simply because they love themselves more than
anybody else; and thirdly, narcissistic person cannot
support his own personal need and gratification
without the help of others and this is where the
petitioner set in.

Q:

Can you please describe the personal [sic]

disorder?

A:

Clinically, considering that label, the respondent

behavioral manifestation under personality disorder
[sic] this is already considered grave, serious, and
treatment will be impossible [sic]. As I say this, a
kind of developmental disorder wherein it all started
during the early formative years and brought about
by one familiar relationship the way he was reared
and cared by the family. Environmental exposure is
also part and parcel of the child disorder. [sic]

Q:

You mean to say, from the formative [years] up

to the present?

A:

Actually, the respondent behavioral manner was

[present] long before he entered marriage.
[Un]fortunately, on the part of the petitioner, she
never realized that such behavioral manifestation of
the respondent connotes pathology. [sic]

Q:

So in the representation of the petitioner that

the respondent is now lying [sic] with somebody else,
how will you describe the character of this
respondent who is living with somebody else?

xxxx

A:

This is where the antisocial personality trait of

the respondent [sic] because an antisocial person is
one who indulge in philandering activities, who do
not have any feeling of guilt at the expense of
another person, and this [is] again a buy-product of
deep seated psychological incapacity.

Q:

And this psychological incapacity based on this

particular deep seated [sic], how would you describe
the psychological incapacity? [sic]

A:

As I said there is a deep seated psychological

dilemma, so I would say incurable in nature and at
this time and again [sic] the psychological pathology
of the respondent. One plays a major factor of not
being able to give meaning to a relationship in terms
of sincerity and endurance.

Q:

And if this psychological disorder exists before

the marriage of the respondent and the petitioner,
Madam Witness?

A:

Clinically, any disorder are usually rooted from

the early formative years and so if it takes enough
that such psychological incapacity of respondent
already existed long before he entered marriage,
because if you analyze how he was reared by her
parents particularly by the mother, there is already
an unhealthy symbiosis developed between the two,
and this creates a major emotional havoc when he
reached adult age.

Q:
A:

xxxx

How about the gravity?

This is already grave simply because from the
very start respondent never had an inkling that his
behavioral manifestation connotes pathology and
second ground [sic], respondent will never admit
again that such behavior of his connotes again
pathology simply because the disorder of the
respondent is not detrimental to himself but, more
often than not, it is detrimental to other party
involved.

PROSECUTOR MELVIN TIONGSON:

Q:

You were not able to personally examine the

respondent here?

DR. NEDY TAYAG:

A:

Efforts were made by the psychologist but

unfortunately, the respondent never appeared at my
clinic.

Q:

On the basis of those examinations conducted

with the petitioning wife to annul their marriage with
her husband in general, what can you say about the
respondent?

A:

That from the very start respondent has no

emotional intent to give meaning to their
relationship. If you analyze their marital relationship
they never lived under one room. From the very start
of the [marriage], the respondent to have petitioner
to engage in secret marriage until that time their
family knew of their marriage [sic]. Respondent
completely refused, completely relinquished his
marital obligation to the petitioner.

xxxx
COURT:
Q:

Because you have interviewed or you have

questioned the petitioner, can you really enumerate
the specific traits of the respondent?

DR. NEDY TAYAG:

A:

One is the happy-go-lucky attitude of the

respondent and the dependent attitude of the
respondent.

Q:

Even if he is already eligible for employment?

A:

He remains to be at the mercy of his mother. He

is a happy-go-lucky simply because he never had a
set of responsibility. I think that he finished his

education but he never had a stable job because he

completely relied on the support of his mother.
Q:

You give a more thorough interview so I am

asking you something specific?

A:

The
happy-go-lucky
attitude;
the
overly
dependent attitude on the part of the mother merely
because respondent happened to be the only son. I
said that there is a unhealthy symbiosis relationship
[sic] developed between the son and the mother
simply because the mother always pampered
completely, pampered to the point that respondent
failed to develop his own sense of assertion or
responsibility particularly during that stage and there
is also presence of the simple lying act particularly
his responsibility in terms of handling emotional
imbalance and it is clearly manifested by the fact
that respondent refused to build a home together
with the petitioner when in fact they are legally
married. Thirdly, respondent never felt or completely
ignored the feelings of the petitioner; he never felt
guilty hurting the petitioner because on the part of
the petitioner, knowing that respondent indulge with
another woman it is very, very traumatic on her part
yet respondent never had the guts to feel guilty or to
atone said act he committed in their relationship,
and clinically this falls under antisocial personality. [37]

In terms of incurability, Dr. Tayags answer was very vague and inconclusive,
thus:
xxxx
ATTY. RICHARD TABAGO
Q:

Can this personally be cured, madam witness?

DR. NEDY TAYAG
A:

Clinically, if persons suffering from personality

disorder curable, up to this very moment, no
scientific could be upheld to alleviate their kind of
personality disorder; Secondly, again respondent or
other person suffering from any kind of disorder
particularly narcissistic personality will never admit

that they are suffering from this kind of disorder, and

then
again curability
will
always
be
a
question. [sic][38]

This testimony shows that while Dr. Tayag initially described the
general characteristics of a person suffering from a narcissistic personality
disorder, she did not really show how and to what extent the respondent
exhibited these traits. She mentioned the buzz words that jurisprudence
requires for the nullity of a marriage namely, gravity, incurability, existence
at the time of the marriage, psychological incapacity relating to marriage
and in her own limited way, related these to the medical condition she
generally described. The testimony, together with her report, however,
suffers from very basic flaws.
First, what she medically described was not related or linked to the
respondents exact condition except in a very general way. In short, her
testimony and report were rich in generalities but disastrously short on
particulars, most notably on how the respondent can be said to be suffering
from narcissistic personality disorder; why and to what extent the disorder is
grave and incurable; how and why it was already present at the time of the
marriage; and the effects of the disorder on the respondents awareness of
and

his

capability

to

undertake

the

duties

and

responsibilities

of

marriage. All these are critical to the success of the petitioners case.
Second, her testimony was short on factual basis for her diagnosis
because it was wholly based on what the petitioner related to her. As the
doctor admitted to the prosecutor, she did not at all examine the respondent,
only

the

petitioner. Neither

of course, that

the

person

the

law

sought

to

nor
be

jurisprudence
declared

requires,

psychologically

incapacitated should be personally examined by a physician or psychologist

as

condition sine

qua

non to

arrive

at

such

declaration. [39] If

psychological disorder can be proven by independent means, no reason

exists why such independent proof cannot be admitted and given credit.
[40]

No such independent evidence, however, appears on record to have been

gathered in this case, particularly about the respondents early life and
associations, and about events on or about the time of the marriage and
immediately thereafter. Thus, the testimony and report appear to us to be
no more than a diagnosis that revolves around the one-sided and meager
facts that the petitioner related, and were all slanted to support the
conclusion that a ground exists to justify the nullification of the marriage. We
say this because only the baser qualities of the respondents life were
examined and given focus; none of these qualities were weighed and
balanced with the better qualities, such as his focus on having a job, his
determination to improve himself through studies, his care and attention in
the first six months of the marriage, among others. The evidence fails to
mention also what character and qualities the petitioner brought into her
marriage, for example, why the respondents family opposed the marriage
and what events led the respondent to blame the petitioner for the death of
his mother, if this allegation is at all correct. To be sure, these are important
because not a few marriages have failed, not because of psychological
incapacity of either or both of the spouses, but because of basic
incompatibilities

and

marital

developments

that

do

not

amount

to

psychological incapacity. The continued separation of the spouses likewise

never appeared to have been factored in. Not a few married couples have
likewise permanently separated simply because they have fallen out of
love, or have outgrown the attraction that drew them together in their
younger years.
Thus, on the whole, we do not blame the petitioner for the move to
secure a remand of this case to the trial courts for the introduction of
additional evidence; the petitioners evidence in its present state is woefully

insufficient to support the conclusion that the petitioners marriage to the

respondent

should

be

nullified

on

the

ground

of

the

respondents

psychological incapacity.
The Court commiserates with the petitioners marital predicament. The
respondent may indeed be unwilling to discharge his marital obligations,
particularly the obligation to live with ones spouse. Nonetheless, we cannot
presume psychological defect from the mere fact that respondent refuses to
comply with his marital duties. As we ruled inMolina, it is not enough to
prove that a spouse failed to meet his responsibility and duty as a
married person; it is essential that he must be shown to be
incapable of doing so due to some psychological illness. The
psychological illness that must afflict a party at the inception of the
marriage should be a malady so grave and permanent as to deprive
the party of his or her awareness of the duties and responsibilities
of the matrimonial bond he or she was then about to assume.[41]
WHEREFORE, in view of these considerations, we DENY the petition
and AFFIRM the decision and resolution of the Court of Appeals dated June
25, 2004 andJanuary 18, 2005, respectively, in CA-G.R. CV No. 75095.
SO ORDERED.

[G.R. No. 132164. October 19, 2004]

CIVIL

SERVICE
COMMISSION, petitioner,
BELAGAN, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:

vs.

ALLYSON

When the credibility of a witness is sought to be impeached by proof of

his reputation, it is necessary that the reputation shown should be that which
existed before the occurrence of the circumstances out of which the litigation
arose,[1] or at the time of the trial and prior thereto, but not at a period
remote from the commencement of the suit.[2] This is because a person of
derogatory character or reputation can still change or reform himself.
For our resolution is the petition for review on certiorari of the Court of
Appeals Decision[3] dated January 8, 1998, in CA-G.R. SP. No. 44180, the
dispositive portion of which reads:
WHEREFORE, Resolution No. 966213 dated September 23, 1996 and
Resolution No. 972423 dated April 11, 1997 of the respondent Civil Service
Commission are hereby set aside. The complaint against petitioner Allyson
Belagan filed by Magdalena Gapuz is hereby DISMISSED.
The dismissal of petitioner Belagan is lifted and he is hereby ordered to be
immediately reinstated to his position without loss of seniority, retirement,
backwages and other rights and benefits.
SO ORDERED.
The instant case stemmed from two (2) separate complaints filed
respectively by Magdalena Gapuz, founder/directress of the Mother and
Child Learning Center, and Ligaya Annawi, a public school teacher at Fort
Del Pilar Elementary School, against respondent Dr. Allyson Belagan,
Superintendent of the Department of Education, Culture and Sports (DECS),
all from Baguio City. Magdalena charged respondent with sexual indignities
and harassment, while Ligaya accused him of sexual harassment and various
malfeasances.
Magdalenas sworn complaint alleges that sometime in March 1994, she
filed an application with the DECS Office in Baguio City for a permit to
operate a pre-school. One of the requisites for the issuance of the permit
was the inspection of the school premises by the DECS Division Office. Since
the officer assigned to conduct the inspection was not present, respondent
volunteered his services. Sometime in June 1994, respondent and
complainant visited the school. In the course of the inspection, while both
were descending the stairs of the second floor, respondent suddenly placed
his arms around her shoulders and kissed her cheek. Dumbfounded, she
muttered, Sir, is this part of the inspection? Pati ba naman kayo sa DECS

wala ng values? Respondent merely sheepishly smiled. At that time, there

were no other people in the area.
Fearful that her application might be jeopardized and that her husband
might harm respondent, Magdalena just kept quiet.
Several days later, Magdalena went to the DECS Division Office and
asked respondent, Sir, kumusta yung application ko? His reply was Magdate muna tayo. She declined, explaining that she is married. She then left
and reported the matter to DECS Assistant Superintendent Peter Ngabit.
Magdalena never returned to the DECS Division Office to follow up her
application. However, she was forced to reveal the incidents to her husband
when he asked why the permit has not yet been released. Thereupon, they
went to the office of the respondent. He merely denied having a personal
relationship with Magdalena.
Thereafter, respondent forwarded to the DECS Regional Director his
recommendation to approve Magdalenas application for a permit to operate
a pre-school.
Sometime in September 1994, Magdalena read from a local newspaper
that certain female employees of the DECS in Baguio City were charging a
high-ranking DECS official with sexual harassment. Upon inquiry, she
learned that the official being complained of was respondent. She then
wrote a letter-complaint for sexual indignities and harassment to former
DECS Secretary Ricardo Gloria.
On October 4, 1994, respondent was placed under suspension.
On the part of Ligaya Annawi, she alleged in her complaint that on four
separate occasions, respondent touched her breasts, kissed her cheek,
touched her groins, embraced her from behind and pulled her close to him,
his organ pressing the lower part of her back.
Ligaya also charged respondent with: (1) delaying the payment of the
teachers salaries; (2) failing to release the pay differentials of substitute
teachers; (3) willfully refusing to release the teachers uniforms,
proportionate allowances and productivity pay; and (4) failing to constitute
the Selection and Promotion Board, as required by the DECS rules and
regulations.

The DECS conducted a joint investigation of the complaints of Magdalena

and Ligaya. In his defense, respondent denied their charge of sexual
harassment. However, he presented evidence to disprove Ligayas
imputation of dereliction of duty.
On January 9, 1995, the DECS Secretary rendered a Joint
Decision[4] finding respondent guilty of four (4) counts of sexual indignities
or harassments committed against Ligaya; and two (2) counts of sexual
advances or indignities against Magdalena. He was ordered dismissed from
the service. The dispositive portion of the Joint Decision reads:
WHEREFORE, foregoing disquisitions duly considered, decision is hereby
rendered in the two above-entitled cases, finding:
a)

Respondent Dr. Allyson Belagan, Superintendent of the DECS

Baguio City Schools Division GUILTY of the four counts of sexual
indignities or harassments committed against the person and
honor of complainant Miss Ligaya Annawi, a Baguio City public
school teacher, while in the performance of his official duties and
taking advantage of his office. He is, however, ABSOLVED of all
the other charges of administrative malfeasance or
dereliction of duty.

b) Respondent Baguio City Superintendent Allyson Belagan likewise

GUILTY of
the two
counts of
sexual
advances
or
indignities committed against the person and honor of
complainant Mrs. Magdalena Gapuz, a private school teacher of
Baguio City, while in the performance of his official duties and
taking advantage of his office.
Consequently, respondent Allyson Belagan is HEREBY ORDERED
DISMISSED from the government service, with prejudice to reinstatement
and all his retirement benefits and other remunerations due him are HEREBY
DECLARED FORFEITED in favor of the government.
SO ORDERED.[5]
Upon appeal, the Civil Service Commission (CSC), on September 23,
1996, promulgated Resolution No. 966213[6] affirming the Decision of the
DECS Secretary in the case filed by Magdalena but dismissing the complaint

of Ligaya. The CSC ruled that respondents transgression against Magdalena

constitutes grave misconduct. Thus:
The acts of Belagan are serious breach of good conduct since he was
holding a position which requires the incumbent thereof to maintain a high
degree of moral uprightness. As Division Superintendent, Belagan represents
an institution tasked to mold the character of children. Furthermore, one of
his duties is to ensure that teachers in his division conduct themselves
properly and observe the proper discipline. Any improper behavior on his
part will seriously impair his moral ascendancy over the teachers and
students which can not be tolerated. Therefore, his misconduct towards
an applicant for a permit to operate a private pre-school cannot be
treated lightly and constitutes the offense of grave misconduct.
WHEREFORE, respondent Allyson Belagan is hereby found guilty of grave
misconduct and imposed the penalty of DISMISSAL from the service with
all the accessory penalties. The decision of the DECS Secretary is modified
accordingly.[7]
On October 29, 1996, respondent seasonably filed a motion for
reconsideration, contending that he has never been charged of any offense
in his thirty-seven (37) years of service. By contrast, Magdalena was
charged with several offenses before the Municipal
Trial Court (MTC) of Baguio City, thus:
1.

Criminal Case No. 43416 for LIGHT ORAL DEFAMATION

(December 3, 1980)

2.

Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES

(May 13, 1982)

3.

Criminal Case No. 45630 for GRAVE THREATS (May 13,

1982)

4.

Criminal Case No. 45914 for GRAVE THREATS (June 24,

1982)

5.

Criminal Case No.

(January 25, 1985)

51532

for

MALICIOUS

MISCHIEF

6.

Criminal Case No. 51533 for LIGHT THREATS (January 25,

1985)

7.

Criminal Case No. 51556 for GRAVE ORAL DEFAMATION

(January 30, 1985)

8.

Criminal Case No. 51818 for LIGHT ORAL DEFAMATION

(March 18, 1985)

9.

Criminal Case No. 51819 for GRAVE ORAL DEFAMATION

(March 18, 1985)

10.

Criminal Case No. 51820 for MALICIOUS MISCHIEF (March

18, 1985)

11.

Criminal Case No. 51821 for UNJUST VEXATION (March

18, 1985)

12.

Criminal Case No. 62173 for UNJUST VEXATION (May 29,

1991)

13.

Criminal Case No. 62172 for GRAVE ORAL DEFAMATION

(May 29, 1991)

14.

Criminal Case No. 62754 for GRAVE ORAL DEFAMATION

(December 2, 1986)

15.

Criminal Case No. 55642 for GRAVE ORAL DEFAMATION

(December 2, 1986)

16.

Criminal Case No. 55423 for GRAVE ORAL DEFAMATION

(October 24, 1986)

17.

Criminal Case No. 55846 for GRAVE ORAL DEFAMATION

(November 4, 1986)

18.

Criminal Case No. 55800 for GRAVE ORAL DEFAMATION

(January 7, 1987)

19.

Criminal Case No.

(November 29, 1987)

57312

for

UNJUST

VEXATION

20.

Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES

(December 13, 1985)

21.

Criminal Case No.

(December 13, 1985)

22.

Criminal Case No. 55422 for UNJUST VEXATION (October

24, 1986) [8]

53404

for

UNJUST

VEXATION

In addition, the following complaints against Magdalena were filed with

the Barangay Chairmen of Barangay Gabriela Silang and Barangay Hillside,
both in Baguio City:
1.

Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE

THREATS, UNJUST VEXATION, RUMOR MONGERING

2.

Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8)

for GRAVE THREATS & ORAL DEFAMATION

3.

Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case

for ORAL DEFAMATION and FALSE ACCUSATION

4.

Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030) for
HARASSMENT and THREATS

5.

GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031)

for HABITUAL TROUBLE MAKER

6.

Pablo Ortiz vs. Gapuz (November 1, 1979) for ORAL

DEFAMATION

7.

C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL

DEFAMATION

8.

Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for

RUMOR MONGERING

9.

Mr. Pananin (Beneco Personnel) (October 8, 1978) for

ORAL DEFAMATION

10.

Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL

DEFAMATION

No. 029)

11.

12.

WOMENS CLUB vs. GAPUZ (February 9, 1979) for ORAL

DEFAMATION
Vistro Salcedo case (May 8, 1979)
Where Mrs. Gapuz was spreading rumors against Barangay
Captain and Police Chief

13.

Demolition Scandal (May 10, 1979)

Where she called all the residents of their Barangay for an
emergency meeting and where she shouted invectives against
the residents

14.

Incident of June 13, 1979

Mrs. Gapuz shouted invectives against the Barangay Sanitary
Inspector

15.

Incident of August 25, 1979

Mrs. Gapuz shouted invectives against the servants of Mr. De
Leon

16.

Incident of August 26, 1979

Mrs. Gapuz terrorized the council meeting

17.

Incident of September 2, 1978

Mrs. Clara Baoas was harassed by Mrs. Gapuz

18.

Incident of September 9, 1979

Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the
council meeting

19.

Incident of September 10, 1979

Mrs. Gapuz was hurling invectives along her alley in the early
morning

20.

Incident of September 13, 1979

Mrs. Gapuz tapped electric wire from Mrs. Tessie de los
Santos with the latters consent

21.

Incident of September 21, 1979

Mrs. Gapuz was shouting and hurling invectives scandalously
around her residence

22.

Incident of September 21, 1979

Mrs. Gapuz was shouting, complaining about alleged
poisoned sardines near the premises of her residence which
killed her hen.

23.

Incident of September 23, 1979

Mrs. Gapuz was shouting unpleasant words around the
neighborhood. She did not like the actuations of a bayanihan
group near the waiting shed.[9]

Respondent claimed that the numerous cases filed against Magdalena

cast doubt on her character, integrity, and credibility.
In its Resolution No. 972423[10] dated April 11, 1997, the CSC denied
respondents motion for reconsideration, holding that:
The character of a woman who was the subject of a sexual assault
is of minor significance in the determination of the guilt or
innocence of the person accused of having committed the offense.
This is so because even a prostitute or a woman of ill repute may
become a victim of said offense.
As such, the fact that complainant Magdalena Gapuz is shown to have had
cases before the regular courts for various offenses and was condemned by
her community for wrongful behavior does not discount the possibility that
she was in fact telling the truth when she cried about the lecherous advances
made to her by the respondent. x x x

Respondent then filed with the Court of Appeals a petition for review. As
stated earlier, it reversed the CSC Resolutions and dismissed Magdalenas
complaint.
The Appellate Court held that Magdalena is an unreliable witness, her
character being questionable. Given her aggressiveness and propensity for
trouble, she is not one whom any male would attempt to steal a kiss. In
fact, her record immediately raises an alarm in any one who may cross her
path.[11] In absolving respondent from the charges, the Appellate Court
considered his unblemished service record for 37 years.
Unsatisfied, the CSC, through the Solicitor General, filed the instant
petition raising the following assignments of error:
I. The Supreme Court may rule on factual issues raised on
appeal where the Court of Appeals misappreciated the
facts. Furthermore, where the findings of the Court of
Appeals and the trial court are contrary to each other, the
Supreme Court may review the record and evidence. The
Court of Appeals erred in not giving credence to the
testimony of complainant Magdalena Gapuz despite
convincing and overwhelming signs of its truthfulness.
II. The Court of Appeals committed reversible error when it
failed to give due weight to the findings of the DECS, which
conducted the administrative investigation, specifically
with respect to the credibility of the witnesses presented.
III. The Court of Appeals erred in ruling that respondent
should be penalized under Sec. 22 (o) of the Omnibus Rules
Implementing Book V and not Sec. 22 (e) of said rules.[12]
In his comment, respondent maintains that Magdalenas derogatory
record undermines the verity of her charge and that the Court of Appeals is
correct in dismissing it.
The petition is impressed with merit.
The pivotal issue before us is whether complaining witness, Magdalena
Gapuz, is credible. This is a question of fact which, as a general rule, is not
subject to this Courts review.

It is a rule of long standing that factual findings of the Court of Appeals, if

supported by substantial evidence, are conclusive and binding on the parties
and are not reviewable by this Court. [13] This Court is, after all, not a trier of
facts. One of the exceptions, however, is when the findings of the Court of
Appeals are contrary to those of the trial court or a quasi-judicialbody, like
petitioner herein.[14]
Here, the Court of Appeals and the CSC are poles apart in their
appreciation of Magdalenas derogatory record. While the former considered
it of vital and paramount importance in determining the truth of her
charge, the latter dismissed it as of minor significance. This contrariety
propels us to the elusive area of character and reputation evidence.
Generally, the character of a party is regarded as legally irrelevant in
determining a controversy.[15] One statutory exception is that relied upon by
respondent, i.e., Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence,
which we quote here:
SEC. 51. Character evidence not generally admissible; exceptions.
(a) In Criminal Cases:
xxx

xxx
(3) The good or bad moral character of the offended party
may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense
charged.

It will be readily observed that the above provision pertains only to

criminal cases, not to administrative offenses. And even assuming that this
technical rule of evidence can be applied here, still, we cannot sustain
respondents posture.
Not every good or bad moral character of the offended party may be
proved under this provision. Only those which would establish the
probability or improbability of the offense charged. This means that the
character evidence must be limited to the traits and characteristics involved
in the type of offense charged.[16] Thus, on a charge of rape - character for
chastity, on a charge of assault - character for peaceableness or violence,
and on a charge of embezzlement - character for honesty. [17] In one rape

case, where it was established that the alleged victim was morally loose and
apparently uncaring about her chastity, we found the conviction of the
accused doubtful.[18]
In the present administrative case for sexual harassment, respondent did
not offer evidence that has a bearing on Magdalenas chastity. What he
presented are charges for grave oral defamation, grave threats, unjust
vexation, physical injuries, malicious mischief, etc. filed against her.
Certainly, these pieces of evidence are inadmissible under the above
provision because they do not establish the probability or improbability of
the offense charged.
Obviously, in invoking the above provision, what respondent was trying to
establish is Magdalenas lack of credibility and not the probability or the
improbability of the charge. In this regard, a different provision applies.
Credibility means the disposition and intention to tell the truth in the
testimony given. It refers to a persons integrity, and to the fact that he is
worthy of belief.[19] A witness may be discredited by evidence attacking his
general reputation for truth,[20] honesty[21] or integrity.[22] Section 11, Rule 132
of the same Revised Rules on Evidence reads:
SEC. 11. Impeachment of adverse partys witness. A witness may be
impeached by the party against whom he was called, by contradictory
evidence, by evidence that his general reputation for truth, honesty,
or integrity is bad, or by evidence that he has made at other times
statements inconsistent with his present testimony, but not by evidence
of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he has
been convicted of an offense.
Although she is the offended party, Magdalena, by testifying in her own
behalf, opened herself to character or reputation attack pursuant to the
principle that a party who becomes a witness in his own behalf places
himself in the same position as any other witness, and may be
impeached by an attack on his character or reputation.[23]
With the foregoing disquisition, the Court of Appeals is correct in holding
that the character or reputation of a complaining witness in a sexual charge
is a proper subject of inquiry. This leads us to the ultimate question is

Magdalenas
credibility?

derogatory

record

sufficient

to

discredit

her

A careful review of the record yields a negative answer.

First, most of the twenty-two (22) cases filed with the MTC of Baguio City
relate to acts committed in the 80s, particularly, 1985 and 1986. With
respect to the complaints filed with the Chairmen of Barangay Gabriela
Silang and Barangay Hillside, the acts complained of took place in 1978 to
1979. In the instant administrative case, the offense was committed
in 1994. Surely, those cases and complaints are no longer reliable proofs of
Magdalenas character or reputation. The Court of Appeals, therefore, erred
in according much weight to such evidence. Settled is the principle that
evidence of ones character or reputation must be confined to a
time not too remote from the time in question. [24] In other words,
what is to be determined is the character or reputation of the
person at the time of the trial and prior thereto, but not at a period
remote from the commencement of the suit. [25] Hence, to say that
Magdalenas credibility is diminished by proofs of tarnished reputation
existing almost a decade ago is unreasonable. It is unfair to presume that a
person who has wandered from the path of moral righteousness can never
retrace his steps again. Certainly, every person is capable to change or
reform.
Second, respondent failed to prove that Magdalena was convicted in any
of the criminal cases specified by respondent. The general rule prevailing in
a great majority of jurisdictions is that it is not permissible to show that a
witness has been arrested or that he has been charged with or
prosecuted for a criminal offense, or confined in jail for the purpose of
impairing his credibility.[26] This view has usually been based upon one or
more of the following grounds or theories: (a) that a mere unproven charge
against the witness does not logically tend to affect his credibility, (b) that
innocent persons are often arrested or accused of a crime, (c) that one
accused of a crime is presumed to be innocent until his guilt is legally
established, and (d) that a witness may not be impeached or discredited by
evidence of particular acts of misconduct. [27] Significantly, the same Section
11, Rule 132 of our Revised Rules on Evidence provides that a witness may
not be impeached by evidence of particular wrongful acts. Such evidence is
rejected because of the confusion of issues and the waste of time that would
be involved, and because the witness may not be prepared to expose the

falsity of such wrongful acts.[28] As it happened in this case, Magdalena was

not able to explain or rebuteach of the charges against her listed by
respondent.
But more than anything else, what convinces us to sustain the Resolution
of the CSC is the fact that it is supported by substantial evidence. As aptly
pointed out by the Solicitor General, Magdalena testified in a straightforward,
candid and spontaneous manner. Her testimony is replete with details, such
as the number of times she and respondent inspected the pre-school, the
specific part of the stairs where respondent kissed her, and the matter about
her transient boarders during summer. Magdalena would not have normally
thought about these details if she were not telling the truth. We quote her
testimony during the cross-examination conducted by DECS Assistant
Secretary Romeo Capinpin and Undersecretary Antonio Nachura, thus:
Q

Was there any conversation between you and Dr. Belagan during
the inspection on the first floor and the second floor?

There was, sir. It was a casual conversation that we had with

regard to my family, background, how the school came about, how
I started with the project. That was all, sir.

Nothing about any form of sexual harassment, in words or in

deeds?

Sir, because he inspected the second floor twice, sir. We went up

to the stairs twice, sir.

Why?

I really dont know what was the reason behind, sir. But on the
second inspection, sir, I told him that as of that time I had some
transients with me. I was making use of the premises for
transients because that was summer then, sir. And I already
started paying the place so I said, Sir, I have some transients with
me in the evening and he said, You know Mrs. Gapuz, I am
interested to stay in one of the rooms as one your boarders. But I
respectfully declined saying, Sir, I think for delicadeza I cannot
accept you. Not that I dont want you to be here but people might
think that I am keeping you here and that would prejudice my
permit, sir.

ASEC R. CAPINPIN:
Q

When did the alleged kissing occur? Was it during the

first time that you went up with him or the second time?

No, sir, on the second time, sir.

Second time?

Yes, sir. We were going down, sir.

And you were going down?

Yes, sir.

Do you recall what portion of the stairs where you were

during the alleged kissing?

Sir, on the topmost of the stairs.

Before you went down?

Yes, sir. At the topmost because there is a base floor

going up to the stairs and it has 16 steps.

So, it was not on the 16th step but still on the topmost?

Yes sir.

Part of the floor of the building?

Yes, sir. Topmost, sir?

ASEC R. CAPINPIN:
Q

Will you kindly tell us your relative position at that time?

Sir, on the second time that we went up and I mentioned

about these transients that I had then and he wanted to
stay in the place in one of the rooms and then I declined
and I was still showing the rooms simultaneously. On the
last, the biggest room that I had, he said, No. Never

mind, I am not going to see that anymore. So he waited

for me there and upon reaching the place, as I was to step
down on the first step going down, he placed his arm and
held me tightly and planted the kiss on my cheek, sir.
Q

You said that he wanted to stay in one of the rooms?

Yes, sir, as a boarder.

Is that room used for transients?

During that time, sir, during the summertime, I made use of the
time to get some transients.

And he was telling you that he wanted to occupy one of the

rooms?

Yes, but I declined, sir for delicadeza.

At that time, there were no transients yet.

When he came over for the inspection sir, nobody was there.[29]

The above testimony does not stand in isolation. It is corroborated by

Peter Ngabit, DECS Assistant Division Superintendent. Ngabit testified that
Magdalena reported to him that respondent kissed her and asked her for a
date.
Q

I would like to call your attention to Exhibit A which is the

affidavit of Mrs. Magdalena B. Gapuz, particularly item no. 8, and
may I read for your information That the Monday after the
incident, I went to the DECS Division Office expecting to get
favorable recommendation from the DECS Regional Office for the
issuance of my permit. That I proceeded to the Superintendent
and asked him, Sir, kumusta yung application ko and he said,
mag date muna tayo but I refused and explained that I am
married, after which I proceeded to the Office of Asst.
Superintendent Peter Ngabit to relate the incident and then left
the Division Office. Do you remember if Mrs. Gapuz went to your
Office on the particular day?

Yes, sir.

What time was that?

I cannot remember, sir.

Was it morning, afternoon?

I think it was in the morning, sir.

Morning.

Yes, sir.

Early morning?

About noon, sir.

What transpired between you and Mrs. Gapuz in your office?

When she came to my Office, she was relating about that and
she was even insulting me saying among others that I was a
useless fixture in that Office because I cannot do anything with
the processing of her paper or application.

It says here that she would relate the incident to you. Did
she relate any incident?

Yes, she did sir.

What was that incident all about?

She was saying that when Mr. Belagan went to visit her
school, he stole a kiss from her and that she was saying
that when she asked Supt. Belagan for her papers, she
was asked for a date before the Indorsement. After that,
she left.[30]

With Magdalenas positive testimony and that of Ngabit, how can we

disregard the findings of the DECS and the CSC? Surely, we cannot debunk it
simply because of the Court of Appeals outdated characterization of
Magdalena as a woman of bad reputation. There are a number of cases

where the triers of fact believe the testimony of a witness of bad

character[31] and refuse to believe one of good character. [32] As a matter of
fact, even a witness who has been convicted a number of times is worthy of
belief, when he testified in a straightforward and convincing manner.[33]
At this juncture, it bears stressing that more than anybody else, it is the
DECS investigating officials who are in a better position to determine
whether Magdalena is telling the truth considering that they were able to
hear and observe her deportment and manner of testifying.[34]
In reversing the CSCs Resolutions, the Court of Appeals ruled that there
is ample evidence to show that Magdalena had a motive in accusing
respondent, i.e., to pressure him to issue a permit. This is unconvincing. The
record shows that respondent had already issued the permit when
Magdalena filed her letter-complaint. Indeed, she had no more reason to
charge respondent administratively, except of course to vindicate her honor.
Petitioner prays that we sustain its ruling penalizing respondent for grave
misconduct and not merely for disgraceful or immoral conduct which is
punishable by suspension for six (6) months and one (1) day to one (1) year
for the first offense.[35] Misconduct means intentional wrongdoing or
deliberate violation of a rule of law or standard of behavior, especially by a
government official.[36] To constitute an administrative offense, misconduct
should relate to or be connected with the performance of the official
functions and duties of a public officer.[37]In grave misconduct as
distinguished from simple misconduct, the elements of corruption, clear
intent to violate the law or flagrant disregard of established rule, must be
manifest.[38]Corruption as an element of grave misconduct consists in the act
of an official or fiduciary person who unlawfully and wrongfully uses his
station or character to procure some benefit for himself or for another
person, contrary to duty and the rights of others.[39] This is apparently
present in respondents case as it concerns not only a stolen kiss but also a
demand for a date, an unlawful consideration for the issuance of a permit
to operate a pre-school. Respondents act clearly constitutes grave
misconduct, punishable by dismissal.[40]
We are, however, not inclined to impose the penalty of dismissal from the
service. Respondent has served the government for a period of 37 years,
during which, he made a steady ascent from an Elementary Grade School
Teacher to Schools Division Superintendent. In devoting the best years of his

life to the education department, he received numerous awards. [41]This is the

first time he is being administratively charged. He is in the edge of
retirement. In fact, he had filed his application for retirement when
Magdalena filed her complaint. Section 16, Rule XIV, of the Rules
Implementing Book V of Executive Order No. 292 provides:
SEC. 16. In the determination of penalties to be imposed,
mitigating and aggravating circumstances may be considered. x x x.
The mitigating circumstances are enumerated in Section 53, Rule IV, of
the Uniform Rules on Administrative Cases in the Civil Service, [42] which reads
in part:
SEC.
53. Extenuating,
Mitigating,
Aggravating,
or
Alternative
Circumstances. In the determination of the penalties to be imposed,
mitigating, aggravating and alternative circumstances attendant to the
commission of the offense shall be considered.
The following circumstances shall be appreciated:
xxxxxx
j. length of service
xxxxxx
l. and other analogous cases.
Conformably with our ruling in a similar case of sexual harassment,
and respondents length of service, unblemished record in the past and
numerous awards,[44] the penalty of suspension from office without pay for
one (1) year is in order.
[43]

While we will not condone the wrongdoing of public officers and

employees, however, neither will we negate any move to recognize and
remunerate their lengthy service in the government.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals dated January 8, 1998 in CA-G.R. SP No. 44180 is REVERSED. The
CSC Resolution Nos. 966213 and 972423 are AFFIRMED, subject to the

modification that respondent ALLYSON BELAGAN is SUSPENDED from office

without pay for ONE (1) YEAR, with full credit of his preventive suspension.
SO ORDERED.

G.R. No. 130601. December 4, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL DIOPITA
y GUZMAN, accused-appellant.
DECISION
BELLOSILLO, J.:
RAFAEL DIOPITA y GUZMAN appeals from the Decision of the Regional
Trial Court of Davao City finding him guilty of Robbery with Rape, imposing
upon him the penalty of reclusion perpetua and ordering him to pay the
victim, Dominga Pikit-pikit, P8,500.00 for actual damages and P50,000.00 for
moral damages.[1]
Culled principally from the testimonies of Dominga Pikit-pikit and PO3
Steve dela Cruz, the inculpatory facts follow: At about 9:00 o'clock in the
evening of 16 April 1995 complaining witness Dominga Pikit-pikit, 24 years
old, was walking towards Emiville Subdivision, Diversion Road, Sasa, Davao
City, on her way home from work. Suddenly, a man appeared from behind,
looped his arm around her neck and warned her not to shout or else she
would die.[2] The man then dragged her through the banana plantation
towards the cornfields where the plants were a meter high and far apart.
[3]
When Dominga shouted for help, the man pushed her to the ground and
punched her on the stomach saying, "Leche ka, why are you shouting? What
do you want me to do, make you unconscious?"[4]
Dominga Pikit-pikit got a good look at the man, who turned out to be
accused-appellant Rafael Diopita y Guzman, as he sat on her thighs and
proceeded to divest her of her belongings - ladies watch, bracelet, ring with
russian diamonds, wedding ring and P1,000.00 cash. With the full moon
shining on his face, the victim clearly saw Diopita place the items on the
right pocket of his shorts.[5]

Thereafter, accused-appellant Diopita announced his desire to have

carnal knowledge of Dominga. Forthwith, he pulled up her t-shirt and
unfastened her brassiere. He also loosened her belt, unzipped her pants
and struggled to pull it down, nearly ripping her zipper. Annoyed at the
tightness of her pants, Diopita hit her and ordered her to help him pull them
down.[6]Dominga, fearing for her life and thinking of Diopitas punches,
obeyed. She pulled her pants to her hips. Then accused-appellant forcibly
pulled them down further and got irritated in fact when he was told that she
was wearing a girdle and panty. In frustration, he punched her repeatedly
and kept on muttering, "Why is this very tight? What kind of panty is
this?" Finally, he succeeded in pulling the girdle and panty down.[7]
Accused-appellant Diopita then took off his shorts. He kissed the victim,
lasciviously caressed her breasts, bit her nipples, and fornicated with
her. As he was sexually assaulting her, Dominga made desperate struggles
and frantic calls for help but her efforts proved futile until he finally satiated
his lust. He then warned Dominga not to tell anyone and that should he
hear that she told anybody about the incident he would shoot her to
death. Then he dressed up and left, walking casually to the opposite
direction of the subdivision before disappearing in the darkness.[8]
Exhausted, Dominga slowly stood up, put on her clothes and walked
away in the direction of her house. Finding it locked, she asked help from
her neighbors who called the police. Thereafter, Dominga was brought to
Precinct No. 4 of Sasa, Davao City, where SPO1 Stephen Batacan entered her
complaint in the police blotter. Later, she was examined by Dr. Floranne
Lam-Vergara at the Davao Medical Center who found her "positive for
spermatocytes."[9]
PO3 Steve dela Cruz, who was on duty at the Intelligence and
Investigation Section, made a follow-up on the case. He went to the victims
house and interviewed her between the hours of 1:00 oclock and 3:00
oclock in the morning of the following day, 17 April 1995. Dominga gave a
description of the suspect and his possible whereabouts. [10] Acting on that
information, PO3 dela Cruz went to the scene of the crime to investigate and
there he recovered a colored white/yellow, size ten (10) slipper. Since the
victim earlier disclosed that the suspect headed north after committing the
crime, he proceeded to that direction where he came upon four (4) houses
about fifteen (15) to fifty (50) meters away from the scene of the crime. A
back-up team was called and they rounded up all the residents

therein. Afterwards, four (4) men who fitted the description of the suspect
were invited to the police station for questioning. They were Placido Laput,
William Silvano, Vicente Silvano and accused-appellant Rafael Diopita y
Guzman.[11]
At about 6:00 oclock in the morning of 17 April 1995, the police invited
Dominga to identify the suspect at the police station. Thereat, Dominga saw
the four (4) men in a police line-up and readily pointed at accused-appellant.
[12]
The police then had him try on the recovered slipper; it easily fitted him.
[13]
Thus, Diopita was detained while the others were released.
The defense denied the charge and invoked alibi. Accused-appellant
claimed that between 8:30 to 12:00 oclock in the evening of 16 April 1995
he was with his wife Flora, son Ryan and fellow Jehovahs Witnesses Roger
Custorio and Ruben Suarez at the house of Eulalio Nisnisan for an informal
Bible session upon the invitation of Juan Nisnisan.[14] Accused-appellant also
claimed that during those hours, he never left the place. Flora, Roger,
Ruben, Eulalio and Juan corroborated his alibi and testified on his good moral
character as a ministerial servant of their faith.
On 18 June 1997, the trial court formally rejected his defense of alibi and
convicted him of the crime charged; consequently, accused-appellant is now
before us on appeal. The trial court ruled Alibi is a weak defense because it can easily be fabricated that it is so easy
for witnesses to get confused as to dates and time. The precision with
which the witnesses for the defense, who are his co-members in the
Jehovahs Witnesses, quoted the respective hours when the participants in
the Bible sharing session supposedly arrived is, at best, self-serving and
deserves scant consideration because of the facility with which it may be
concocted and fabricated.
On the other hand, private complainant Dominga Pikit-Pikit positively
identified Rafael Diopita as the person who robbed and raped her on April 16,
1995. She testified in a clear, straightforward and convincing manner and
no ill-motive on her part had been shown to have prompted her to testify
falsely. The failure of the defense to attribute any ill-motive on the part of
Pikit-Pikit to pin responsibility on Diopita adds more credence to
complainants testimony.

In a long line of cases, it has been held that the defense of alibi cannot
prevail over the positive identification of the accused by the victim. PikitPikit testified that she was able to see the face of her attacker because the
moon was shining brightly that evening. This Court takes judicial notice of
the fact that in the month of April 1995 the full moon came out on April 15,
1995, a day before the date of the crime.
We affirm his conviction; the guilt of accused-appellant has been
established by the evidence beyond reasonable doubt.
First. Complaining
witness
Dominga
Pikit-pikit
positively
and
categorically identified accused-appellant as her assailant, first during the
police line-up where she singled him out from among the four (4) suspects
and, later during the trial where she pointed at accused-appellant as the one
who robbed and sexually molested her Q: Where did you go?
A: To the Police Station, there were four persons who lined up
for
identification.
Q: And then?
A: First, when I arrived, I peeped behind the place where there were four
persons lining up. After that I went to the place where they were
receiving visitors and I saw the four persons who were there already
and lined up.
Q: And then?
A: After that the police told me to identify the person who
molested
me, and I pointed to that person there (witness pointing to the accused
whom she previously identified).[15]
From the circumstances of this case, it cannot be denied that complaining
witness Dominga Pikit-pikit had a good look at the face and physical features
of accused-appellant during the commission of the crime. While the robbery
was in progress, the moonlight sufficiently illumined his face and clothes,
thus making it possible for private complainant to identify him. [16]During the
rape, private complainant was as close to accused-appellant as was
physically possible, for a man and a woman cannot be more physically close

to each other than during a sexual act.[17] Victims of criminal violence

naturally strive to know the identity of their assailants and observe the
manner the crime was perpetrated, creating a lasting impression which may
not be erased easily in their memory. [18] There is therefore no reason to doubt
the accuracy of private complainants visual perception of accused-appellant
as the criminal. Nor is there any reason to doubt her honesty of intention
for there is no showing that she implicated accused-appellant due to an evil
or corrupt motive.
We do not subscribe to accused-appellants contentions that the
complaining witness hesitated to point at him during the police line-up, and
that she was just forced by the police to choose him from among the four (4)
suspects. The identification was made with such certainty by the
complaining witness that even accused-appellant had to comment on it Atty. Galicia: What made you say she was hesitant to point at you? x x x x
Rafael Diopita: Because during that time, sir, when we confronted each
other in the police station, she was looking at me when there were four
of us there. So, I asked why x x x x[19]
The foregoing testimony belied the allegation of hesitancy on the part of
Dominga Pikit-pikit to pinpoint accused-appellant during the line-up. His
very own words project his guilt as well. Only the guilty experiences
neurotic fear in the face of imminent discovery of his malefaction. His
paranoia colors his interpretation of the events during the line-up. Consider
accused-appellants assertion that Dominga Pikit-pikit was forced by the
police to point at him, and Prosecutor Esparagoza's objection thereto Sur-rebuttal of Atty. Galicia: Mr. Diopita, according to private complainant
Dominga Pikit-pikit during her rebuttal testimony that she was not forced
by the police to point at you when you were in the police station. What
can you say to that?
Rafael Diopita: That woman hesitated to point at me but the police said
you point at him.
Q: What made you say she was hesitant to point at you?
Prosecutor Esparagoza: The witness said ITUDLO! ITUDLO! (YOU POINT!
YOU POINT!). He did not say he was the one pointed to, your Honor.[20]

Gleaned from the aforequoted testimony was the absence of

suggestiveness in the identification process. There were four (4) men in the
line-up and the police did not specifically suggest to Dominga to point
particularly at accused-appellant. Not even the shodding of the slipper
recovered from the scene of the crime could provide any suggestiveness to
the line-up as it came after accused-appellant was already identified by
Dominga Pikit-pikit.
Second. In light of this positive and direct evidence of accusedappellants culpability, the trial court correctly discarded his defense of
alibi. It is an elementary rule that alibi cannot prevail over the clear and
positive identification of the accused as the very person who committed the
crime. Moreover, in order to justify an acquittal based on this defense, the
accused must establish by clear and convincing evidence that (a) he was in
another place at the time of the commission of the offense; and, (b) it was
physically impossible for him to be at the scene of the crime at the time it
was committed.[21] This, accused-appellant miserably failed to do.
Accused-appellant admitted that at the time in question he was with his
wife, son and fellow members of the Jehovahs Witnesses at the house of one
Eulalio Nisnisan supposedly attending Bible studies, which is merely fifteen
(15) to fifty (50) meters away from the crime scene. Considering the short
and insignificant distance, it was not impossible for accused-appellant
to surreptitiously slip away
from the house of Nisnisan, commit
the crime and then return without arousing the suspicion of his companions
who were then busy with their Bible session. This is obviously the situation
in this case and, taken together with the preceding considerations, we
likewise reject this poor and discredited defense as did the trial court. Verily,
even if the defense of alibi is corroborated by the testimony of the friends of
accused-appellant, it deserves the barest consideration and will not be given
weight if it would not preclude any doubt that he could have been physically
present at the locus criminis or its immediate vecino at the time of its
commission.[22]
Third. Perhaps aware of the crushing impact of complainants positive
identification of accused-appellant, the defense attacked the supposed
inconsistencies and discrepancies in her testimony in a vain attempt to make
it completely unreliable, claiming that: (a) the victim declared that the
culprit wore short pants with a zipper, and he had no short pants with zipper;
(b) the yellow slipper retrieved by the police did not belong to him as his

slippers were colored blue, with his initials inscribed thereon; and, (c) the
description given by complainant in the police blotter did not fit the physical
appearance of accused-appellant.
We are not persuaded. Suffice it to say that these are mere trifles which
do not detract from complainants straightforward and consistent
identification of accused-appellant as the one who robbed and raped
her. Trivial inconsistencies do not shake the pedestal upon which the
complainants credibility rests. On the contrary, they are taken as badges of
truth rather than as indicia of falsehood for they manifest spontaneity and
erase any suspicion of a rehearsed testimony. [23] Furthermore, entries in
police blotters should not be given undue significance or probative value for
they are normally incomplete and inaccurate, sometimes from either partial
suggestion or want of suggestion or inquiry.[24]
Fourth. We now deal with the more substantial arguments raised by
accused-appellant in his brief. He tenaciously maintains that it was
impossible for him to have committed the crime charged since he is a person
of good moral character, holding as he does the position of "Ministerial
Servant" in the congregation of Jehovahs Witnesses, and that he is a godly
man, a righteous person, a responsible family man and a good Christian who
preaches the word of God.
We are not impressed. The fact that accused-appellant is endowed with
such "sterling" qualities hardly justifies the conclusion that he is innocent of
the crime charged. Similarly, his having attained the position of "Ministerial
Servant" in his faith is no guarantee against any sexual perversion and
plunderous proclivity on his part. Indeed, religiosity is not always an
emblem of good conduct, and it is not the unreligious alone who succumbs to
the impulse to rob and rape. An accused is not entitled to an acquittal
simply because of his previous good moral character and exemplary
conduct. The affirmance or reversal of his conviction must be resolved on
the basic issue of whether the prosecution had discharged its duty of proving
his guilt beyond any peradventure of doubt. Since the evidence of the crime
in the instant case is more than sufficient to convict, the evidence of good
moral character of accused-appellant is unavailing.
Accused-appellant likewise bewails and assigns as reversible error the
failure of the trial court to give credence to the testimonies of the defense
witnesses. He argues that these are Jehovahs Witnesses, and as such, they

are God-fearing people who would never lie as to his whereabouts at the
time in question. This argument is as puerile as the first. We quote once
more, and with approval, the pertinent portion of the trial courts ruling on
this point x x x x it is so easy for witnesses to get confused as to dates and time. The
precision with which the witnesses for the defense, who are his co-members
in the Jehovahs Witnesses, quoted the respective hours when the
participants in the Bible sharing session supposedly arrived is, at best, selfserving and deserves scant consideration because of the facility with which it
may be concocted and fabricated (underscoring supplied).
The matter of assigning values to the declarations of witnesses is best
and most competently performed by the trial court who had the unmatched
opportunity to observe the demeanor of witnesses while testifying, and to
assess their credibility using various indicia available but not reflected in the
records.[25] Hence, the court a quo's appraisal on the matter is entitled to the
highest respect, and will not be disturbed on appeal unless there is a clear
showing that it overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance that would affect the result of the
case.[26] There is no compelling reason in the present case to depart from this
rule.
In sum, we find that all the elements of robbery with rape are present in
this case. There was asportation of the jewelry and cash of the victim by
means of force and violence on her person, showing the initial animus
lucrandi of accused-appellant,[27] and then his lecherous intent when he
raped his victim. Accordingly, we hold that the court below did not commit
any reversible error in ruling that the requisite quantum of evidence for a
finding of guilt has been sufficiently met by the prosecution as to call for our
affirmance of the judgment of the court a quo.[28]
However, in addition to the actual and moral damages awarded by the
trial court in the amounts of P8,500.00 and P50,000.00, respectively, another
amount of P50,000.00 should have also been awarded to the victim Dominga
Pikit-pikit for civil indemnity, as it is mandatory upon a conviction of
rape. Such indemnity is distinct from moral damages and based on different
jural foundations.[29]
WHEREFORE, the assailed Decision of the Regional Trial Court of Davao
City, convicting accused-appellant RAFAEL DIOPITA y GUZMAN of ROBBERY

WITH RAPE, sentencing him to reclusion perpetua, and ordering him to pay
DOMINGA PIKIT-PIKIT the sums of P8,500.00 for actual damages
and P50,000.00 for moral damages, is AFFIRMED with the MODIFICATION
that, in addition, civil indemnity of another P50,000.00 is further awarded to
her. Costs against accused-appellant.
SO ORDERED.

[G.R. No. 144773. May 16, 2005]

AZNAR BROTHERS REALTY COMPANY, petitioner, vs. LAURENCIO
AYING, IN HIS OWN BEHALF AND IN BEHALF OF THE OTHER
HEIRS OF EMILIANO AYING, PAULINO AYING, IN HIS OWN
BEHALF AND IN BEHALF OF THE OTHER HEIRS OF SIMEON
AYING, AND WENCESLAO SUMALINOG, IN HIS OWN BEHALF AND
IN
BEHALF
OF
THE
OTHER
HEIRS
OF
ROBERTA
AYING, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
This resolves the petition for review on certiorari seeking the modification
of the Decision[1] of the Court of Appeals (CA) dated March 7, 2000 which
affirmed with modification the Decision of the Regional Trial Court (RTC) of
Lapu-Lapu City, Branch 27 in Civil Case No. 2930-L; and the Resolution dated
August 2, 2000 denying petitioners motion for reconsideration of the
aforementioned decision.
The antecedent facts are as follows:
The disputed property is Lot No. 4399 with an area of 34,325 square
meters located at Dapdap, Lapu-Lapu City. Crisanta Maloloy-on petitioned
for the issuance of a cadastral decree in her favor over said parcel of land.
After her death in 1930, the Cadastral Court issued a Decision directing the
issuance of a decree in the name of Crisanta Maloloy-ons eight children,
namely: Juan, Celedonio, Emiliano, Francisco, Simeon, Bernabe, Roberta and

Fausta, all surnamed Aying. The certificate of title was, however, lost during
the war.
Subsequently, all the heirs of the Aying siblings executed an Extra-Judicial
Partition of Real Estate with Deed of Absolute Sale dated March 3, 1964,
conveying the subject parcel of land to herein petitioner Aznar Brothers
Realty Company. Said deed was registered with the Register of Deeds of
Lapu-Lapu City on March 6, 1964 under Act No. 3344 (the law governing
registration for unregistered land), and since then, petitioner had been
religiously paying real property taxes on said property.
In 1988, herein petitioner filed a Petition for Reconstitution of the Original
Title as the original title over the subject property had been lost during the
war. On April 12, 1988, the court granted said petition, thereby directing the
Register of Deeds of Lapu-Lapu City to issue a reconstituted title in the name
of the abovementioned Aying siblings. Thus, Original Certificate of Title
(OCT) No. RO-2856 was issued.
In 1991, petitioner, claiming to be the rightful owner of the subject
property, sent out notices to vacate, addressed to persons occupying the
property. Unheeded, petitioner then filed a complaint for ejectment against
the occupants before the Metropolitan Trial Court (MTC), Lapu-Lapu City.
On February 1, 1994, the MTC ordered the occupants to vacate the
property. The case eventually reached this Court, docketed as G.R. No.
128102, entitled Aznar Brothers Realty Company vs. Court of Appeals, Luis
Aying, Demetrio Sida, Felomino Augusto, Federico Abing, and Romeo
Augusto.[2] On March 7, 2000, a Decision was promulgated in favor of herein
petitioner, declaring it as the rightful possessor of the parcel of land in
question.
Meanwhile, herein respondents, along with other persons claiming to be
descendants of the eight Aying siblings, all in all numbering around 220
persons, had filed a complaint for cancellation of the Extra-Judicial Partition
with Absolute Sale, recovery of ownership, injunction and damages with the
RTC of Lapu-Lapu City. The complaint was dismissed twice without
prejudice. Said complaint was re-filed on August 19, 1993, docketed as Civil
Case No. 2930-L.
In their amended complaint, herein respondents (plaintiffs before the
RTC) alleged that: they are co-owners of subject property, being descendants

of the registered owners thereof under OCT No. RO-2856; they had been in
actual, peaceful, physical, open, adverse, continuous and uninterrupted
possession in concept of owner of subject parcel of land since time
immemorial; their possession was disturbed only in the last quarter of 1991
when some of them received notices to vacate from petitioner and several
weeks thereafter, earthmoving equipment entered the disputed land,
bulldozing the same and destroying plants, trees and concrete monuments
(mohon); respondents discovered that such activities were being
undertaken by petitioner together with Sta. Lucia Realty and Development,
Inc.; petitioner claimed to be the owner of subject property by virtue of an
extra-judicial partition of real estate with deed of absolute sale executed in
petitioners favor by the alleged heirs of Crisanta Maloloy-on; the
aforementioned extra-judicial partition of real estate with deed of absolute
sale is a fraud and is null and void ab initio because not all the co-owners of
subject property affixed their signature on said document and some of the
co-owners who supposedly signed said document had been dead at the time
of the execution thereof; petitioner entered subject land in bad faith,
knowing fully well that it did not have any right to the land and used force,
threat and intimidation against respondents; and they suffered moral
damages.[3]
Petitioner (defendant before the RTC) filed its Answer, denying that
respondents are the lawful owners of subject parcel of land by virtue of their
being descendants or heirs of the registered owners of subject property.
Instead, petitioner alleged that it had been in actual possession of subject
land as owner thereof by virtue of the extra-judicial partition of real property
and deed of absolute sale executed in its favor; that in fact, it had been
paying taxes thereon religiously; that it tolerated about 6 persons to live on
said land but said persons were eventually ejected by court order. Petitioner
then raised the affirmative defenses of failure to state cause of action and
prescription, as it took respondents 27 years, 10 months and 27 days to file
the action to recover subject property, when an action to recover property
based on an implied trust should be instituted within 4 years from discovery
of the fraud.[4]
In the Pre-Trial Order dated January 30, 1995 of the RTC, the issues were
narrowed down to the following:
1.
Whether or not the plaintiffs [herein respondents] are the heirs of
the registered owners of Lot No. 4399.

2.

Whether or not plaintiffs are the owners of Lot No. 4399.

3.
Whether or not the defendant Aznar [herein petitioner] is estopped
to make any claim on Lot No. 4399.
4.

Whether or not the defendant Aznar is a builder in bad faith.

5.
Whether or not the defendants are liable for damages and
attorneys fees in favor of the plaintiffs.
6.
Whether or not the Extra-Judicial Partition of Real Estate with Deed
of Absolute Sale is valid and had, in effect, validly conveyed to defendant
Aznar Lot No. 4399.
7.

Whether or not the plaintiffs action has prescribed.[5]

After trial, the RTC rendered a Decision dated July 4, 1997, ruling that
respondents evidence failed to prove that the extra-judicial partition with
deed of absolute sale was a totally simulated or fictitious contract and
concluded that said document is valid, thus, effectively conveying to
petitioner the property in question. It further held that respondents action
had prescribed in that the action is considered as one for reconveyance
based on implied or constructive trust, it prescribed in 10 years from the
registration of the deed on March 6, 1964; and if the action is considered as
one for annulment of contract on the ground of fraud, it should have been
filed within 4 years from discovery of the fraud. The trial court also ruled
that respondents failed to present any admissible proof of filiation, hence,
they were not able to prove that they are indeed heirs of the eight Aying
siblings who appear as the registered owners under OCT No. RO-2856.
The dispositive portion of the RTC Decision reads as follows:
WHEREFORE, judgment is hereby rendered dismissing the amended
complaint on the ground of prescription, and declaring the Extra-Judicial
Partition of Real Estate with Deed of Absolute Sale dated March 3, 1964 as
valid and binding, adjudging that Lot 4399 with an area of 34,325 square
meters located at Dapdap, Mactan, Lapu-Lapu City had been validly
conveyed to and in favor of Aznar Brothers Realty Company, and directing
the Register of Deeds of Lapu-Lapu City to register the above-mentioned
deed in accordance with law and to cancel Original Certificate of Title No.
RO-2856, and to issue a transfer certificate of title in the name of Aznar

Brothers Realty Company upon payment of the necessary registration fees

pursuant thereto.
The Writ of Preliminary Injunction issued in this case is hereby ordered
dissolved.
The Motion for Contempt filed by the plaintiffs against defendants is
dismissed for want of factual and legal basis.
Costs against the plaintiffs.
SO ORDERED.[6]
Herein respondents appealed the foregoing decision to the CA and on
March 7, 2000, said court promulgated its Decision, the dispositive portion of
which is reproduced hereunder:
THE FOREGOING CONSIDERED, the contested Decision while AFFIRMED is
hereby MODIFIED. The heirs of Emiliano Aying, Simeon Aying and Roberta
Aying are hereby declared as the lawful owners of the contested property but
equivalent only to 3/8.
SO ORDERED.
In modifying the RTC judgment, the CA ratiocinated that an action for
recovery of possession of registered land never prescribes in view of the
provision of Section 44, Act No. 496 (now Sec. 47, PD 1520), to the effect
that no title to registered land in derogation to that of a registered owner
shall be acquired by prescription. The CA further ruled that even if the
action is deemed to be based on implied trust, prescription did not begin to
run since there is no evidence that positive acts of repudiation were made
known to the heirs who did not participate in the execution of the ExtraJudicial Partition of Real Estate with Deed of Absolute Sale. Thus, striking
down the RTCs ruling that the respondents complaint is dismissible on the
ground of prescription, the CA held instead that herein respondents action
had not prescribed but upheld the validity of the Extra-Judicial Partition of
Real Estate with Deed of Absolute Sale, except as to the shares of the heirs
of Emiliano, Simeon and Roberta, who did not participate in the execution of
said document.

Herein petitioners motion for reconsideration of the CA decision was

denied per Resolution dated August 2, 2000.
Hence, the present petition for review on certiorari assailing the CA
decision on the following grounds:
I
THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT AN HEIR
OF THE ORIGINAL REGISTERED OWNER MAY LOSE HIS RIGHT TO RECOVER A
TITLED PROPERTY BY REASON OF LACHES;
II
THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT THE
ACT OF REGISTRATION OF THE DEED OF PARTITION WITH SALE MAY BE
CONSIDERED AN UNEQUIVOCAL REPUDIATION OF THE TRUST GIVING RISE TO
PRESCRIPTION;
III
THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE PROVISIONS OF
ARTICLE 1104 OF THE CIVIL CODE TO THE EFFECT THAT IN THE ABSENCE OF
BAD FAITH OR FRAUD, THE PARTITION WITH PRETERITION OF ANY
COMPULSORY HEIR SHALL NOT BE RESCINDED.[7]
In their Comment, respondents argue that this case is an action to
declare as null and void the Extra-Judicial Partition of Real Estate with Deed
of Absolute Sale, hence, under Article 1410 of the Civil Code, an action for
declaration of an inexistent contract does not prescribe. Respondents
further posit that the principle of laches should be applied against petitioner
and not against them, as they (respondents) had been in actual possession
of the subject property, while petitioner merely brought action to eject them
more than 29 years after the alleged execution of the Extra-Judicial Partition
of Real Estate with Deed of Absolute Sale. They also refuted petitioners
arguments regarding the application of the principles of implied and
constructive trusts in this case.
At the outset, it should be stressed that not all the plaintiffs who filed the
amended complaint before the trial court had been impleaded as
respondents in the present petition. The only parties impleaded are the heirs

of Emiliano, Simeon and Roberta Aying, whom the CA adjudged as owners of

a 3/8 portion of the land in dispute for not having participated in the
execution of the Extra-Judicial Partition of Real Estate with Deed of Absolute
Sale.
It is significant to note that herein petitioner does not question the CA
conclusion that respondents are heirs of the aforementioned three Aying
siblings. Hence, the trial court and appellate courts findings that the ExtraJudicial Partition of Real Estate with Deed of Absolute Sale was not forged nor
simulated and that the heirs of Emiliano, Simeon and Roberta Aying did not
participate in the execution thereof, are now beyond cavil.
The issues raised by petitioner for the Courts resolution are (1) whether
or not respondents cause of action is imprescriptible; and (2) if their right to
bring action is indeed imprescriptible, may the principle of laches apply.
Respondents alleged in their amended complaint that not all the coowners of the land in question signed or executed the document conveying
ownership thereof to petitioner and made the conclusion that said document
is null and void. We agree with the ruling of the RTC and the CA that the
Extra-Judicial Partition of Real Estate with Deed of Absolute Sale is valid and
binding only as to the heirs who participated in the execution thereof, hence,
the heirs of Emiliano, Simeon and Roberta Aying, who undisputedly did not
participate therein, cannot be bound by said document.
However, the facts on record show that petitioner acquired the entire
parcel of land with the mistaken belief that all the heirs have executed the
subject document. Thus, the trial court is correct that the provision of law
applicable to this case is Article 1456 of the Civil Code which states:
ART. 1456. If property is acquired through mistake or fraud, the person
obtaining it is, by force of law, considered a trustee of an implied trust for the
benefit of the person from whom the property comes.
In Vda. De Esconde vs. Court of Appeals,[8] the Court expounded thus:
Construing this provision of the Civil Code, in Philippine National Bank v.
Court of Appeals, the Court stated:
A deeper analysis of Article 1456 reveals that it is not a trust in the technical
sense for in a typical trust, confidence is reposed in one person who is

named a trustee for the benefit of another who is called the cestui que trust,
respecting property which is held by the trustee for the benefit of the cestui
que trust. A constructive trust, unlike an express trust, does not emanate
from, or generate a fiduciary relation. While in an express trust, a
beneficiary and a trustee are linked by confidential or fiduciary relations, in a
constructive trust, there is neither a promise nor any fiduciary relation to
speak of and the so-called trustee neither accepts any trust nor intends
holding the property for the beneficiary.[9]
The concept of constructive trusts was further elucidated in the same
case, as follows:
. . . implied trusts are those which, without being expressed, are deducible
from the nature of the transaction as matters of intent or which are
superinduced on the transaction by operation of law as matters of equity,
independently of the particular intention of the parties. In turn, implied
trusts are either resulting or constructive trusts. These two are differentiated
from each other as follows:
Resulting trusts are based on the equitable doctrine that valuable
consideration and not legal title determines the equitable title or interest and
are presumed always to have been contemplated by the parties. They arise
from the nature of circumstances of the consideration involved in a
transaction whereby one person thereby becomes invested with legal title
but is obligated in equity to hold his legal title for the benefit of another. On
the other hand, constructive trusts are created by the construction of
equity in order to satisfy the demands of justice and prevent unjust
enrichment. They arise contrary to intention against one who, by
fraud, duress or abuse of confidence, obtains or holds the legal right
to property which he ought not, in equity and good conscience, to
hold.[10] (Emphasis supplied)
Based on such concept of constructive trusts, the Court ruled in said case
that:
The rule that a trustee cannot acquire by prescription ownership over
property entrusted to him until and unless he repudiates the trust, applies to
express trusts and resulting implied trusts. However, in constructive implied
trusts, prescription may supervene even if the trustee does not repudiate the
relationship. Necessarily, repudiation of said trust is not a condition
precedent to the running of the prescriptive period.[11]

The next question is, what is the applicable prescriptive period?

In Amerol vs. Bagumbaran,[12] the Court expounded on the prescriptive
period within which to bring an action for reconveyance of property based on
implied or constructive trust, to wit:
. . . under the present Civil Code, we find that just as an implied or
constructive trust is an offspring of the law (Art. 1456, Civil Code), so is the
corresponding obligation to reconvey the property and the title thereto in
favor of the true owner. In this context, and vis--vis prescription, Article
1144 of the Civil Code is applicable.
Article 1144. The following actions must be brought within ten years from
the time the right of action accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment.
xxx

xxx

xxx

An action for reconveyance based on an implied or constructive trust must

perforce prescribe in ten years and not otherwise. A long line of decisions of
this Court, and of very recent vintage at that, illustrates this rule.
Undoubtedly, it is now well-settled that an action for reconveyance based on
an implied or constructive trust prescribes in ten years from the issuance of
the Torrens title over the property.[13]
It has also been ruled that the ten-year prescriptive period begins to run
from the date of registration of the deed or the date of the issuance of the
certificate of title over the property, but if the person claiming to be the
owner thereof is in actual possession of the property, the right to seek
reconveyance, which in effect seeks to quiet title to the property, does not
prescribe.[14]
In the present case, respondents Wenceslao Sumalinog, an heir of
Roberta Aying; Laurencio Aying, an heir of Emiliano Aying; and Paulino Aying,
an heir of Simeon Aying, all testified that they had never occupied or been in

possession of the land in dispute. [15] Hence, the prescriptive period of ten
years would apply to herein respondents.
The question then arises as to the date from which the ten-year period
should be reckoned, considering that the Extra-Judicial Partition of Real
Estate with Deed of Absolute Sale was registered under Act No. 3344 and not
under Act No. 496 (Land Registration Act), despite the fact the land in
dispute was already titled under Act No. 496 in the names of the Aying
siblings at the time the subject document was executed.
In Spouses Abrigo vs. De Vera,[16] it was held that registration of
instruments must be done in the proper registry, in order to affect and bind
the land and, thus, operate as constructive notice to the world. [17] Therein,
the Court ruled:
x x x If the land is registered under the Land Registration Act (and has
therefore a Torrens Title), and it is sold but the subsequent sale is registered
not under the Land Registration Act but under Act 3344, as amended, such
sale is not considered REGISTERED x x x .[18]
In this case, since the Extra-Judicial Partition of Real Estate with Deed of
Absolute Sale was registered under Act No. 3344 and not under Act No. 496,
said document is deemed not registered. Accordingly, the ten-year
prescriptive period cannot be reckoned from March 6, 1964, the date of
registration of the subject document under Act No. 3344. The prescriptive
period only began to run from the time respondents had actual notice of the
Extra-Judicial Partition of Real Estate with Deed of Absolute Sale.
The only evidence on record as to when such prescriptive period
commenced as to each of the respondents are Wenceslao Sumalinogs (heir
of Roberta Aying) testimony that about three years after 1964, they already
learned of the existence of the Extra-Judicial Partition of Real Estate with
Deed of Absolute Sale;[19] and Laurencio Ayings (heir of Emiliano Aying)
admission that he found out about the sale of the land in dispute a long time
ago and can only estimate that it must be after martial law. [20] Paulino Aying
(heir of Simeon Aying) gave no testimony whatsoever as to when the
children of Simeon Aying actually learned of the existence of the document
of sale. On the other hand, petitioner did not present any other evidence to
prove the date when respondents were notified of the execution of the
subject document.

In view of the lack of unambiguous evidence of when the heirs of

Emiliano Aying and Simeon Aying discovered the existence of the document
of sale, it must be determined which party had the burden of proof to
establish such fact.
The test for determining where the burden of proof lies is to ask which
party to an action or suit will fail if he offers no evidence competent to show
the facts averred as the basis for the relief he seeks to obtain. [21] Moreover,
one alleging a fact that is denied has the burden of proving it and unless the
party asserting the affirmative of an issue sustains the burden of proof of
that issue by a preponderance of the evidence, his cause will not succeed.
[22]
Thus, the defendant bears the burden of proof as to all affirmative
defenses which he sets up in answer to the plaintiffs claim or cause of
action; he being the party who asserts the truth of the matter he has alleged,
the burden is upon him to establish the facts on which that matter is
predicated and if he fails to do so, the plaintiff is entitled to a verdict or
decision in his favor.[23]
In the case at bar, it was petitioner, as the defendant before the RTC,
which set up in its Answer the affirmative defense of prescription. It was,
therefore, incumbent upon petitioner to prove the date from which the
prescriptive period began to run. Evidence as to the date when the ten-year
prescriptive period began exists only as to the heirs of Roberta Aying, as
Wenceslao Sumalinog admitted that they learned of the existence of the
document of sale in the year 1967. As to the heirs of Emiliano Aying and
Simeon Aying, there is no clear evidence of the date when they discovered
the document conveying the subject land to petitioner. Petitioner miserably
failed to adduce proof of when the heirs of Emiliano Aying and Simeon Aying
were notified of the subject document. Hence, with regard to said heirs, the
Court may consider the admission in the amended complaint that they
learned of the conveyance of the disputed land only in 1991 when petitioner
sent notices to vacate to the occupants of the subject land, as the date from
which the ten-year prescriptive period should be reckoned.
Respondents filed their Amended Complaint on December 6, 1993.
Thus, with regard to respondent heirs of Roberta Aying who had
knowledge of the conveyance as far back as 1967, their cause of action is
already barred by prescription when said amended complaint was filed as
they only had until 1977 within which to bring action. As to the respondent
heirs of Emiliano and Simeon Aying, they were able to initiate their action for
[24]

reconveyance of property based on implied or constructive trust well within

the ten-year prescriptive period reckoned from 1991 when they were sent by
petitioner a notice to vacate the subject property.
Evidently, laches cannot be applied against respondent heirs of Emiliano
and Simeon Aying, as they took action to protect their interest well within the
period accorded them by law.
With regard to petitioners argument that the provision of Article 1104 of
the Civil Code, stating that a partition made with preterition of any of the
compulsory heirs shall not be rescinded, should be applied, suffice it to say
that the Extra-Judicial Partition of Real Estate with Deed of Absolute Sale is
not being rescinded. In fact, its validity had been upheld but only as to the
parties who participated in the execution of the same. As discussed above,
what was conveyed to petitioner was ownership over the shares of the heirs
who executed the subject document. Thus, the law, particularly, Article 1456
of the Civil Code, imposed the obligation upon petitioner to act as a trustee
for the benefit of respondent heirs of Emiliano and Simeon Aying who, having
brought their action within the prescriptive period, are now entitled to the
reconveyance of their share in the land in dispute.
IN VIEW OF THE FOREGOING, the petition is PARTIALLY GRANTED and
the Decision of the Court of Appeals dated March 7, 2000 is MODIFIED, as
follows: The amended complaint of the heirs of Roberta Aying is DISMISSED
on the ground of prescription. However, the heirs of Emiliano Aying and
Simeon Aying, having instituted the action for reconveyance within the
prescriptive period, are hereby DECLARED as the LAWFUL OWNERS of a 2/8
portion of the parcel of land covered by Original Certificate of Title No. RO2856.
SO ORDERED.

G.R. No. 156320

February 14, 2007

RODOLFO
ABENES
vs.
HE
HON.
COURT
OF
PHILIPPINES, Respondents.

y
APPEALS

GACUTAN, Petitioner,
and

PEOPLE

OF

THE

DECISION
AUSTRIA-MARTINEZ, J.:
For review before the Court is the Decision 1 dated November 29, 2002 of the
Court of Appeals (CA) which affirmed the Joint Decision of the Regional Trial
Court (RTC) of Pagadian City, Branch 19, dated June 5, 2000, finding Rodolfo
Abenes y Gacutan (petitioner) guilty beyond reasonable doubt of Illegal
Possession of High Powered Firearm and Ammunition under Presidential
Decree No. 1866 (P.D. No. 1866) in Criminal Case No. 4559-98, and of
violating Section 261(q) of Batas Pambansa Blg. 881 (B.P. Blg. 881),
otherwise known as the Omnibus Election Code, vis--vis COMELEC
Resolution No. 2958 (Gun Ban) in Criminal Case No. 4563-98.
Petitioner was charged under the following Informations:
In Criminal Case No. 4559-98
The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES
Y GACUTAN of the offense of ILLEGAL POSSESSION OF HIGH POWERED
FIREARM & ITS AMMUNITIONS (Violation of P.D. No. 1866, as amended by R.A.
No. 8294), committed as follows:
On May 8, 1998, at about 10:30 a.m., in Danlugan, Pagadian City,
Philippines, within the jurisdiction of this Honorable Court, said RODOLFO
ABENES Y GACUTAN did, then and there, willfully, unlawfully, and without any
prior authority, license or permit to possess or carry the firearm hereunder
described, have in his possession and control the following firearm classified
as high powered, with its corresponding ammunitions and accessory, viz:
- one (1) cal. 45 pistol (NORINCO) bearing SN 906347;
- one (1) magazine for pistol cal. 45
- seven (7) rounds live ammunitions for cal. 45,
in gross violation of P.D. No. 1866 as amended by R.A. No. 8294.
CONTRARY TO LAW.2
In Criminal Case No. 4563-98

The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES

Y GACUTAN of Election Offense in violation of Sec. 261 (9) 3 , BP 881
(OMNIBUS ELECTION CODE), vis--vis COMELEC RESOLUTION # 1958 (GUN
BAN), committed as follows:
On May 8, 1998, at about 10:30 a.m. within the Election period which is from
January 11, 1998 to June 30, 1998, in Danlugan, Pagadian City, Philippines,
within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y
GACUTAN did, then and there, willfully, and unlawfully, carry in his person a
cal. .45 (NORINCO) pistol, bearing serial number 906347, and loaded with
seven (7) rounds of live ammunitions, without any prior authority from the
COMELEC in gross violation of Sec. 261 (9) of BP 881 (OMNIBUS ELECTION
CODE) in relation to COMELEC RESOLUTION No. 2958 (GUN BAN).
CONTRARY TO LAW.4
Upon arraignment, the petitioner pleaded not guilty. Trial ensued.
The facts, as found by the RTC and summarized by the CA, are as follows:
The prosecution showed that three days prior to the May 11, 1998 national
and local elections, the Philippine National Police (PNP) of Pagadian City,
through its Company Commander Major Pedronisto Quano, created a team
composed of seven policemen with a directive to establish and man a
checkpoint in Barangay Danlugan at said city, for the purpose of enforcing
the Gun Ban which was then being implemented by the COMELEC. SPO3
Cipriano Q. Pascua was the designated team leader.
The team proceeded to Barangay Danlugan, arriving thereat at 8:15 in the
morning of May 8, 1998. Team leader SPO3 Pascua coordinated with the
Barangay Chairman of Danlugan, and the team put up a road block with the
marking "COMELEC GUN BAN". Vehicles passing through the road block were
required by the team to stop and their occupants were then politely
requested to alight in order to allow routine inspection and checking of their
vehicles. Motorists who refused the request were not forced to do so.
At about 10:30 in the morning of the same day, a red Tamaraw FX trying to
pass through the check point was stopped by the team and directed to park
at the side of the road. As the occupants within the vehicle could not be seen
through its tinted windows, SPO1 Eliezer Requejo, a member of the team,
knocked on the vehicles window and requested the occupants to step down

for a routine inspection. The eight occupants, which included the accusedappellant Rodolfo Abenes who is the Barangay Chairman of Tawagan Norte,
Labangan, Zamboanga Del Sur, alighted from the vehicle. At this juncture,
SPO1 Requejo and SPO3 Pascua noticed that a holstered firearm was tucked
at the right waist of Abenes. The firearm was readily visible to the policemen;
it was not covered by the shirt worn by Abenes. Abenes was then asked by
SPO3 Pascua whether he had a license and authority to carry the firearm,
and whether his possession was exempted from the Gun Ban being enforced
by the COMELEC. Accused answered in the affirmative. The policemen then
demanded for the pertinent documents to be shown to support Abenes
claim. He could not show any. Hence, SPO1 Requejo confiscated Abenes
firearm, which was later identified as a Norinco .45 caliber pistol bearing
Serial No. 906347, including its magazine containing seven live ammunitions.
Subsequently SPO3 Pascua, using his privately owned jeep, brought Abenes
to the PNP Headquarters at Camp Abelon in Pagadian City. Upon reaching the
Headquarters, SPO3 Pascua indorsed Abenes to Major Quano who in turn
referred Abenes to a certain SPO2 Benvienido Albon for further investigation
(TSN, August 24, 1998 [SPO3 Cipriano Q. Pascua] pp. 5-27, [SPO1 Eliezer
Requejo] pp. 29-50).
A certification dated May 18, 1998 from the Firearms and Explosives License
Processing Section of the PNP, Pagadian City disclosed that Abenes is not a
registered nor a licensed firearm holder (Record of Criminal Case No. 455998, p. 56).
After the prosecution presented its evidence, [the] accused filed a Demurrer
to Evidence with Motion to Dismiss (supra, pp. 72-79), which was denied by
the trial court in a Resolution dated March 5, 1999 (supra, pp. 80-82).
In his defense, accused-appellant tried to establish that the firearm did not
belong to and was not recovered from him; that the firearm was recovered
by the policemen from the floor of the vehicle inside a clutch bag which was
allegedly left by an unidentified person who hitched a ride somewhere along
the national highway of Tawagan Norte Zamboanga Del Sur and alighted
near the Mabuhay Bazaar in Pagadian City (TSN, July 12, 1999 [Noel Rivera],
pp. 7-13; September 15, 1999 [Rodolfo Abenes], pp. 11-15; September 27,
1999 [Manuel Sabado Gengania], pp. 9-16).5
On June 5, 2000, the RTC rendered its Joint Decision convicting the petitioner
on both charges, the dispositive portion of which states:

WHEREFORE, in view of all the foregoing discussion, this Court hereby finds
accused Rodolfo Abenes y Gacutan GUILTY beyond reasonable doubt for
Violation of P.D. No. 1866, as amended by Republic Act No. 8294, having
been found in possession without license/permit of a Norinco .45 caliber
pistol bearing Serial No. 906347 and 7 rounds of ammunitions and sentences
him to imprisonment ranging from TWO (2) YEARS, FOUR (4) MONTHS and
ONE (1) DAY of PRISION CORRECCIONAL in its MEDIUM PERIOD, as MINIMUM,
to EIGHT (8) YEARS of PRISION MAYOR in its MINIMUM, as MAXIMUM and a
FINE of THIRTY THOUSAND PESOS (P30,000.00), Philippine currency. Insofar
as Criminal Case No. 4559-98 is concerned. The .45 Caliber Pistol
aforementioned and the seven (7) rounds of ammunitions are hereby
forfeited in favor of the government the same being effects of the Violation
of P.D. 1866, amended.
As regards Criminal Case No. 4563-98, this Court also finds herein accused
Rodolfo Abenes y Gacutan GUILTY of Violation of Section 264, in relation to
Section 261, paragraphs (p) and (q) of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code and sentences him to imprisonment for
a period of ONE (1) YEAR, and in addition thereto, herein accused is
disqualified to hold any public office and deprived [of] the right of suffrage. It
shall be understood that the sentence herein imposed shall be served
simultaneously with the sentence imposed in Criminal Case No. 4559-98.
SO ORDERED.6
The RTC found that, as between the positive and categorical assertions of
facts by the two policemen the witnesses for the prosecution and the
mere denial of the accused and his witnesses, the former must prevail over
the latter; that the prosecution successfully proved that the petitioner had no
license or permit to carry the firearm through the officer-in-charge of the
firearms and explosives office who testified that, based on his records, the
petitioner had not been issued a license, and whose testimony had not been
impugned by the defense; and that the testimonies of the accused and his
two witnesses to the effect that while aboard their private vehicle and on
their way to attend an election campaign meeting, they simply stopped and
allowed a complete stranger to hitch a ride who was carrying a clutch bag,
left the same in the vehicle when he alighted, and which later turned out to
contain the subject firearm, were flimsy and unbelievable. The RTC ruled that
the defense of alibi or denial cannot prevail over the positive identification by
eyewitnesses who have no improper motive to falsely testify against the

petitioner, especially where the policemen and the petitioner do not know
each other; and, that the petitioner failed to show any license or any other
document to justify his lawful possession of the firearm.
The petitioner appealed to the CA claiming that the checkpoint was not
shown to have been legally set up, and/or that the frisking of the petitioner
who was ordered to alight from the Tamaraw FX, along with his companions
in the vehicle, violated his constitutional right against unlawful search and
seizure; and, that the trial court erred in believing the version of the incident
as testified to by the policemen instead of the version presented by the
defenses witness which is more consistent with truth and human
experience.7
On November 29, 2002, the CA rendered its Decision, the dispositive portion
of which reads:
WHEREFORE, premises considered, the Joint Decision appealed from is
AFFIRMED with the MODIFICATION that with respect to Criminal Case No.
4559-98, accused-appellant is sentenced to an indeterminate penalty of 4
years, 2 months and 1 day of prision correccional as minimum to 7 years and
4 months of prision mayor as maximum.
SO ORDERED.8
With respect to the validity of the checkpoint, the CA found that not only do
the police officers have in their favor the presumption that official duties
have been regularly performed, but also that the proximity of the day the
checkpoint had been set up, to the day of the May 11, 1998 elections,
specifically for the purpose of enforcing the COMELEC gun ban, gives a
strong badge of the legitimacy of the checkpoint; that after a review of the
records, the evidence adduced by the prosecution prevails over the selfserving and uncorroborated claim of the petitioner that he had been
"framed"; and, that with respect to the admissibility of the firearm as
evidence, the prosecution witnesses convincingly established that the .45
caliber pistol, tucked into the right waist of the petitioner when he alighted
from the vehicle, was readily visible, and, therefore, could be seized without
a search warrant under the "plain view" doctrine.
The petitioner is now before this Court, raising the following issues:
I.

Given the circumstances, and the evidence adduced, was the checkpoint validly established?
II.
Given the circumstances, and the evidence adduced, was the
petitioners constitutional right against unlawful search and seizure
violated?
III.
Given the circumstances, and the evidence adduced, did not the
honorable court of appeals commit a grave abuse of discretion for
adopting the trial courts unsubstantiated findings of fact?
IV.
Given the circumstances, and the evidence adduced, is not the
petitioner entitled to an acquittal, if not on the ground that the
prosecution failed to prove guilt beyond reasonable doubt, on the
ground of reasonable doubt itself . . . as to where the gun was taken:
from the floor of the vehicle or from the waist of petitioner? 9
The appeal is partly meritorious. The Court reverses the CAs finding of his
conviction in Criminal Case No. 4559-98.
After a thorough review of the records, this Court is of the view that the
courts a quo except for a notable exception with respect to the negative
allegation in the Information are correct in their findings of fact. Indeed, the
version of the defense, as found by the lower courts, is implausible and
belies the common experience of mankind. Evidence to be believed must not
only proceed from the mouth of a credible witness but it must be credible in
itself such as the common experience and observation of mankind can
approve as probable under the circumstances.10 In addition, the question of
credibility of witnesses is primarily for the trial court to determine. 11For this
reason, its observations and conclusions are accorded great respect on
appeal.12
The trial court's assessment of the credibility of a witness is entitled to great
weight. It is conclusive and binding unless shown to be tainted with
arbitrariness or unless, through oversight, some fact or circumstance of

weight and influence has not been considered. 13 Absent any showing that the
trial judge overlooked, misunderstood, or misapplied some facts or
circumstances of weight which would affect the result of the case, or that the
judge acted arbitrarily, his assessment of the credibility of witnesses
deserves high respect by appellate courts.14 Thus, the Court finds no cogent
reason to disturb the findings of the lower courts that the police found in
plain view a gun tucked into the waist of the petitioner during the Gun Ban
period enforced by the COMELEC.
So too must this Court uphold the validity of the checkpoint. The petitioner
insists that the prosecution should have produced the mission order
constituting the checkpoint, and invokes Aniag, Jr. v. Comelec, 15 where the
Court purportedly held that firearms seized from a motor vehicle without a
warrant are inadmissible because there was no indication that would trigger
any suspicion from the policemen nor any other circumstance showing
probable cause.
On both points the petitioner is wrong. In the present case, the production of
the mission order is not necessary in view of the fact that the checkpoint was
established three days before the May 11, 1998 elections; and, the
circumstances under which the policemen found the gun warranted its
seizure without a warrant.
In People v. Escao,16 the Court, through the ponencia of Chief Justice Hilario
G. Davide, Jr., held:
Accused-appellants assail the manner by which the checkpoint in question
was conducted. They contend that the checkpoint manned by elements of
the Makati Police should have been announced. They also complain of its
having been conducted in an arbitrary and discriminatory manner.
We take judicial notice of the existence of the COMELEC resolution imposing
a gun ban during the election period issued pursuant to Section 52(c) in
relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg.
881). The national and local elections in 1995 were held on 8 May, the
second Monday of the month. The incident, which happened on 5 April 1995,
was well within the election period.
This Court has ruled that not all checkpoints are illegal. Those which are
warranted by the exigencies of public order and are conducted in a way least
intrusive to motorists are allowed. For, admittedly, routine checkpoints do

intrude, to a certain extent, on motorists right to "free passage without

interruption," but it cannot be denied that, as a rule, it involves only a brief
detention of travelers during which the vehicles occupants are required to
answer a brief question or two. For as long as the vehicle is neither searched
nor its occupants subjected to a body search, and the inspection of the
vehicle is limited to a visual search, said routine checks cannot be regarded
as violative of an individuals right against unreasonable search. In fact,
these routine checks, when conducted in a fixed area, are even less
intrusive.
The checkpoint herein conducted was in pursuance of the gun ban enforced
by the COMELEC. The COMELEC would be hard put to implement the ban if
its deputized agents were limited to a visual search of pedestrians. It would
also defeat the purpose for which such ban was instituted. Those who intend
to bring a gun during said period would know that they only need a car to be
able to easily perpetrate their malicious designs.
The facts adduced do not constitute a ground for a violation of the
constitutional rights of the accused against illegal search and seizure. PO3
Suba admitted that they were merely stopping cars they deemed suspicious,
such as those whose windows are heavily tinted just to see if the passengers
thereof were carrying guns. At best they would merely direct their flashlights
inside the cars they would stop, without opening the cars doors or
subjecting its passengers to a body search. There is nothing discriminatory in
this as this is what the situation demands.17(Emphasis supplied)
Thus, the Court agrees with the Solicitor General that petitioners reliance on
Aniag is misplaced.
In Aniag, the police officers manning the checkpoint near the Batasang
Pambansa complex stopped the vehicle driven by the driver of Congressman
Aniag. After stopping the vehicle, the police opened a package inside the car
which contained a firearm purportedly belonging to Congressman Aniag. In
declaring the search illegal, the Supreme Court stated that the law enforcers
who conducted the search had no probable cause to check the content of the
package because the driver did not behave suspiciously nor was there any
previous information that a vehicle hiding a firearm would pass by the
checkpoint.
In the instant case, the firearm was seized from the petitioner when in plain
view, the policemen saw it tucked into his waist uncovered by his shirt.

Under the plain view doctrine, objects falling in the "plain view" of an officer
who has a right to be in the position to have that view are subject to seizure
and may be presented as evidence.18 The "plain view" doctrine applies when
the following requisites concur: (a) the law enforcement officer in search of
the evidence has a prior justification for an intrusion or is in a position from
which he can view a particular area; (b) the discovery of the evidence in
plain view is inadvertent; and (c) it is immediately apparent to the officer
that the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure.19
All the foregoing requirements are present in the instant case. The law
enforcement officers lawfully made an initial intrusion because of the
enforcement of the Gun Ban and were properly in a position from which they
particularly viewed the area. In the course of such lawful intrusion, the
policemen came inadvertently across a piece of evidence incriminating the
petitioner where they saw the gun tucked into his waist. The gun was in plain
view and discovered inadvertently when the petitioner alighted from the
vehicle.
As accurately found by the CA:
xxx It must be emphasized that the policemen discovered the firearm [on]
the person of the [petitioner] shortly after he alighted from the vehicle and
before he was frisked. SPO3 Pascuas testimony[,] corroborated by that of
SPO1 Requejo[,] convincingly established that the holstered .45 caliber pistol
tucked at the right waist of the [petitioner] was readily visible to the
policemen (TSN, August 24, 1998, pp. 18, 37). Thus, notwithstanding the
absence of a Search Warrant, the policemen may validly seize the firearm
and the same is admissible in evidence against the [petitioner] pursuant to
the "plain view doctrine" xxx.20
Nor can the Court believe petitioners claim that he could not have freely
refused the "police orders" issued by the police team who were "armed to
the teeth" and "in the face of such show of force." The courts a quo
consistently found that the police team manning the checkpoint politely
requested the passengers to alight from their vehicles, and the motorists
who refused this request were not forced to do so. These findings of fact are
fully supported by the evidence in the record.

However, the Court must underscore that the prosecution failed to

satisfactorily prove the negative allegation in the Information that the
petitioner possessed no license or permit to bear the subject firearm.
It is a well-entrenched rule "that in crimes involving illegal possession of
firearm, the prosecution has the burden of proving the elements
thereof, viz: the existence of the subject firearm, and the fact that the
accused who owned or possessed the firearm does not have the
corresponding license or permit to possess the same."21
Undoubtedly, it is the constitutional presumption of innocence that lays such
burden upon the prosecution. The absence of such license and legal
authority constitutes an essential ingredient of the offense of illegal
possession of firearm, and every ingredient or essential element of an
offense must be shown by the prosecution by proof beyond reasonable
doubt.22
Witness for the prosecution SPO4 Gilbert C. Senados admitted that his
records were outdated, i.e., that his Master List of holders of firearms only
covered licenses up to 1994; that it was possible for the petitioner to acquire
a license after 1994; and that he issued the Certification, dated May 18,
1998, stating that the petitioner carried no license or permit to possess the
guns because he was ordered to do so by his superiors.23
There is no evidence that between 1994 and May 8, 1998, the date the crime
was allegedly committed, no license was issued to petitioner.
While the prosecution was able to establish the fact that the subject firearm
was seized by the police from the possession of the petitioner, without the
latter being able to present any license or permit to possess the same, such
fact alone is not conclusive proof that he was not lawfully authorized to carry
such firearm. In other words, such fact does not relieve the prosecution from
its duty to establish the lack of a license or permit to carry the firearm by
clear and convincing evidence, like a certification from the government
agency concerned.24
Thus, for failure of the prosecution to prove beyond reasonable doubt that
petitioner was carrying a firearm without prior authority, license or permit,
the latter must be exculpated from criminal liability under P.D. No. 1866, as
amended.

With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as
amended, otherwise known as the Omnibus Election Code, the Court is
constrained to affirm the conviction of the petitioner, since the prosecution
successfully discharged its burden of proof.
Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded,
provides:
Sec. 261. Prohibited Acts. The following shall be guilty of an election
offense:
(q) Carrying firearms outside residence or place of business. Any person
who, although possessing a permit to carry firearms, carries any firearms
outside his residence or place of business during the election period, unless
authorized in writing by the Commission: Provided, That a motor vehicle,
water or air craft shall not be considered a residence or place of business or
extension hereof.
x x x x (Emphasis supplied)
Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261
of the Omnibus Election Code, provides:
SEC. 32. Who May Bear Firearms. During the election period, no person
shall bear, carry or transport firearms or other deadly weapons in public
places, including any building, street, park, private vehicle or public
conveyance, even if licensed to possess or carry the same, unless authorized
in writing by the Commission. The issuance of firearm licenses shall be
suspended during the election period. (Emphasis supplied)
In view of the foregoing provisions, while it is well-settled that under P.D. No.
1866, as amended, the burden to prove the negative allegation that the
accused has no license or permit to carry a firearm lies with the prosecution;
under the Omnibus Election Code, however, the burden to adduce evidence
that accused is exempt from the COMELEC Gun Ban, lies with the accused.
Section 32 of R.A. No. 7166 is clear and unequivocal 25 that the prohibited act
to which this provision refers is made up of the following elements: 1) the
person is bearing, carrying, or transporting firearms or other deadly
weapons; 2) such possession occurs during the election period; and, 3) the
weapon is carried in a public place. Under said provision, it is explicit that

even if the accused can prove that he is holding a valid license to possess
such firearm, this circumstance by itself cannot exculpate him from criminal
liability. The burden is on the accused to show that he has a written authority
to possess such firearm issued by no less than the COMELEC.
On this point, the petitioner failed to present any form of such authority, and,
therefore, his conviction must be affirmed.
Section 264 of the Omnibus Election Code provides:
Sec. 264. Penalties. Any person found guilty of any election offense under
this Code shall be punished with imprisonment of not less than one year
but not more than six years and shall not be subject to probation. In
addition, the guilty party shall be sentenced to suffer disqualification to hold
public office and deprivation of the right of suffrage. If he is a foreigner, he
shall be sentenced to deportation which shall be enforced after the prison
term has been served.
The CA affirmed the penalty imposed by the RTC. However, the RTC failed to
apply Section 1 of the Indeterminate Sentence Law26 which provides:
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished
by the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed by the Code for
the offense; and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the same.
Thus, the penalty that should be meted out to petitioner should have a
minimum and a maximum period. The Court deems it reasonable that
petitioner should suffer imprisonment for a period of one (1) year as the
minimum and two (2) years, as the maximum.
Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be
disposed of according to existing laws, which, in this case, must be read in
light of Article 45 of the Revised Penal Code, to wit:

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the

crime. Every penalty imposed for the commission of a felony shall carry
with it the forefeiture of the proceeds of the crime and the instruments or
tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in
favor of the Government, unless they be the property of a third person not
liable for the offense, but those articles which are not subject of lawful
commerce shall be destroyed.1awphi1.net
WHEREFORE, the petition is partly GRANTED. The Decision dated
November 29, 2002 of the Court of Appeals isREVERSED and SET
ASIDE insofar as Criminal Case No. 4559-98 is concerned. Petitioner Rodolfo
Abenes Y Gacutan is ACQUITTED from the charge of illegal possession of
firearm under P.D. No. 1866, as amended, for failure of the prosecution to
prove his guilt beyond unreasonable doubt.
With respect to Criminal Case No. 4563-98, the assailed Decision of the Court
of Appeals is AFFIRMED with MODIFICATIONS that petitioner is sentenced
to an indeterminate sentence of one year of imprisonment as minimum to
two years of imprisonment as maximum, not subject to probation; and he
shall sufferDISQUALIFICATION to hold public office and DEPRIVATION of
the
right
of
suffrage.
The
subject
firearm
isCONFISCATED and FORFEITED in favor of the Government.
SO ORDERED.
GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and
MA. THERESA ALMONTE, respondents.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity, needs special
safeguard and care, including appropriate legal protection before as well as
after birth.[1] In case of assault on his rights by those who take advantage of
his innocence and vulnerability, the law will rise in his defense with the
single-minded purpose of upholding only his best interests.

This is the story of petitioner Gerardo B. Concepcion and private

respondent Ma. Theresa Almonte, and a child named Jose Gerardo. Gerardo
and Ma. Theresa were married on December 29, 1989. [2] After their marriage,
they lived with Ma. Theresas parents in Fairview, Quezon City. [3] Almost a
year later, on December 8, 1990, Ma. Theresa gave birth to Jose Gerardo.[4]
Gerardo and Ma. Theresas relationship turned out to be short-lived,
however. On December 19, 1991, Gerardo filed a petition to have his
marriage to Ma. Theresa annulled on the ground of bigamy. [5] He alleged that
nine years before he married Ma. Theresa on December 10, 1980, she had
married one Mario Gopiao, which marriage was never annulled. [6] Gerardo
also found out that Mario was still alive and was residing in Loyola Heights,
Quezon City.[7]
Ma. Theresa did not deny marrying Mario when she was twenty years old.
She, however, averred that the marriage was a sham and that she never
lived with Mario at all.[8]
The trial court ruled that Ma. Theresas marriage to Mario was valid and
subsisting when she married Gerardo and annulled her marriage to the latter
for being bigamous. It declared Jose Gerardo to be an illegitimate child as a
result. The custody of the child was awarded to Ma. Theresa while Gerardo
was granted visitation rights.[9]
Ma. Theresa felt betrayed and humiliated when Gerardo had their
marriage annulled. She held him responsible for the bastardization of
Gerardo. She moved for the reconsideration of the above decision INSOFAR
ONLY as that portion of the decision which grant(ed) to the petitioner socalled visitation rights between the hours of 8 in the morning to 12:00
p.m. of any Sunday.[10] She argued that there was nothing in the law
granting visitation rights in favor of the putative father of an illegitimate
child.[11] She further maintained that Jose Gerardos surname should be
changed from Concepcion to Almonte, her maiden name, following the rule
that an illegitimate child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights and the
retention of Concepcion as Jose Gerardos surname.
Applying the best interest of the child principle, the trial court denied
Ma. Theresas motion and made the following observations:

It is a pity that the parties herein seem to be using their son to get at or to
hurt the other, something they should never do if they want to assure the
normal development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the minor needs
a father, especially as he is a boy, who must have a father figure to
recognize something that the mother alone cannot give. Moreover, the
Court believes that the emotional and psychological well-being of the boy
would be better served if he were allowed to maintain relationships with his
father.
There being no law which compels the Court to act one way or the other on
this matter, the Court invokes the provision of Art. 8, PD 603 as amended,
otherwise known as the Child and Youth Welfare Code, to wit:
In all questions regarding the care, custody, education and property of the
child, his welfare shall be the paramount consideration.
WHEREFORE, the respondents Motion for Reconsideration has to be, as it is
hereby DENIED.[12]
Ma. Theresa elevated the case to the Court of Appeals, assigning as error
the ruling of the trial court granting visitation rights to Gerardo. She likewise
opposed the continued use of Gerardos surname (Concepcion) despite the
fact that Jose Gerardo had already been declared illegitimate and should
therefore use her surname (Almonte). The appellate court denied the
petition and affirmed in toto the decision of the trial court.[13]
On the issue raised by Ma. Theresa that there was nothing in the law that
granted a putative father visitation rights over his illegitimate child, the
appellate court affirmed the best interest of the child policy invoked by the
court a quo. It ruled that [a]t bottom, it (was) the childs welfare and not
the convenience of the parents which (was) the primary consideration in
granting visitation rights a few hours once a week.[14]
The appellate court likewise held that an illegitimate child cannot use the
mothers surname motu proprio. The child, represented by the mother,
should file a separate proceeding for a change of name under Rule 103 of
the Rules of Court to effect the correction in the civil registry.[15]

Undaunted, Ma. Theresa moved for the reconsideration of the adverse

decision of the appellate court. She also filed a motion to set the case for
oral arguments so that she could better ventilate the issues involved in the
controversy.
After hearing the oral arguments
parties, the appellate court resolved
reversed its earlier ruling and held that
Theresa by Gerardo but by Mario during

of the respective counsels of the

the motion for reconsideration. It
Jose Gerardo was not the son of Ma.
her first marriage:

It is, therefore, undeniable established by the evidence in this case that

the appellant [Ma. Theresa] was married to Mario Gopiao, and that she had
never entered into a lawful marriage with the appellee [Gerardo] since the
so-called marriage with the latter was void ab initio. It was [Gerardo]
himself who had established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose Gerardo was born
on December 8, 1990. Therefore, the child Jose Gerardo under the law is
the legitimate child of the legal and subsisting marriage between [Ma.
Theresa] and Mario Gopiao; he cannot be deemed to be the illegitimate child
of the void and non-existent marriage between [Ma. Theresa] and
[Gerardo], but is said by the law to be the child of the legitimate and existing
marriage between [Ma. Theresa] and Mario Gopiao (Art. 164, Family Code).
Consequently, [she] is right in firmly saying that [Gerardo] can claim neither
custody nor visitorial rights over the child Jose Gerardo. Further, [Gerardo]
cannot impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146, The Family
Code]); it would tend to destroy the existing marriage between [Ma. Theresa]
and Gopiao, would prevent any possible rapproachment between the married
couple, and would mean a judicial seal upon an illegitimate relationship.[16]
The appellate court brushed aside the common admission of Gerardo and
Ma. Theresa that Jose Gerardo was their son. It gave little weight to Jose
Gerardos birth certificate showing that he was born a little less than a year
after Gerardo and Ma. Theresa were married:
We are not unaware of the movants argument that various evidence exist
that appellee and the appellant have judicially admitted that the minor is
their natural child. But, in the same vein, We cannot overlook the fact that
Article 167 of the Family Code mandates:

The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an
adulteress. (underscoring ours)
Thus, implicit from the above provision is the fact that a minor cannot be
deprived of his/her legitimate status on the bare declaration of the mother
and/or even much less, the supposed father. In fine, the law and only the
law determines who are the legitimate or illegitimate children for
ones legitimacy or illegitimacy cannot ever be compromised. Not
even the birth certificate of the minor can change his status for the
information contained therein are merely supplied by the mother and/or the
supposed father. It should be what the law says and not what a
parent says it is.[17] (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the above
decision but the same was denied.[18] Hence, this appeal.
The status and filiation of a child cannot be compromised. [19] Article 164
of the Family Code is clear. A child who is conceived or born during the
marriage of his parents is legitimate.[20]
As a guaranty in favor of the child [21] and to protect his status of
legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as an
adulteress.
The law requires that every reasonable presumption be made in favor of
legitimacy.[22] We explained the rationale of this rule in the recent case
of Cabatania v. Court of Appeals[23]:
The presumption of legitimacy does not only flow out of a declaration in the
statute but is based on the broad principles of natural justice and the
supposed virtue of the mother. It is grounded on the policy to protect the
innocent offspring from the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He
has no standing in law to dispute the status of Jose Gerardo. Only Ma.
Theresas husband Mario or, in a proper case, [25] his heirs, who can contest
the legitimacy of the child Jose Gerardo born to his wife. [26] Impugning the

legitimacy of a child is a strictly personal right of the husband or, in

exceptional cases, his heirs.[27] Since the marriage of Gerardo and Ma.
Theresa was void from the very beginning, he never became her husband
and thus never acquired any right to impugn the legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union in
marriage, particularly during the period of conception. [28] To overthrow this
presumption on the basis of Article 166 (1)(b) of the Family Code, it must be
shown beyond reasonable doubt that there was no access that could have
enabled the husband to father the child. [29] Sexual intercourse is to be
presumed where personal access is not disproved, unless such presumption
is rebutted by evidence to the contrary.[30]
The presumption is quasi-conclusive and may be refuted only by the
evidence of physical impossibility of coitus between husband and wife within
the first 120 days of the 300 days which immediately preceded the birth of
the child.[31]
To rebut the presumption, the separation between the spouses must be
such as to make marital intimacy impossible. [32] This may take place, for
instance, when they reside in different countries or provinces and they were
never together during the period of conception. [33] Or, the husband was in
prison during the period of conception, unless it appears that sexual union
took place through the violation of prison regulations.[34]
Here, during the period that Gerardo and Ma. Theresa were living
together in Fairview, Quezon City, Mario was living in Loyola Heights which is
also in Quezon City. Fairview and Loyola Heights are only a scant four
kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city but also
that no evidence at all was presented to disprove personal access between
them. Considering these circumstances, the separation between Ma. Theresa
and her lawful husband, Mario, was certainly not such as to make it
physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat
the assumption should be presented by him who asserts the contrary. There
is no such evidence here. Thus, the presumption of legitimacy in favor of
Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario,
stands.

Gerardo relies on Ma. Theresas statement in her answer [35] to the petition
for annulment of marriage[36] that she never lived with Mario. He claims this
was an admission that there was never any sexual relation between her and
Mario, an admission that was binding on her.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose Gerardo is not
her legitimate son with Mario but her illegitimate son with Gerardo. This
declaration an avowal by the mother that her child is illegitimate is the
very declaration that is proscribed by Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the mother
against the legitimacy of her child cannot affect the legitimacy of a child
born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that
there was never an instance where Ma. Theresa could have been together
with Mario or that there occurred absolutely no intercourse between them.
All she said was that she never lived with Mario. She never claimed that
nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during the
time material to Jose Gerardos conception and birth. Far from foreclosing
the possibility of marital intimacy, their proximity to each other only serves
to reinforce such possibility. Thus, the impossibility of physical access was
never established beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow her to
arrogate unto herself a right exclusively lodged in the husband, or in a proper
case, his heirs.[37] A mother has no right to disavow a child because maternity
is never uncertain.[38] Hence, Ma. Theresa is not permitted by law to question
Jose Gerardos legitimacy.
Finally, for reasons of public decency and morality, a married woman
cannot say that she had no intercourse with her husband and that her
offspring is illegitimate.[39] The proscription is in consonance with the
presumption in favor of family solidarity. It also promotes the intention of the
law to lean toward the legitimacy of children.[40]

Gerardos insistence that the filiation of Jose Gerardo was never an issue
both in the trial court and in the appellate court does not hold water. The
fact that both Ma. Theresa and Gerardo admitted and agreed that Jose
Gerardo was born to them was immaterial. That was, in effect, an
agreement that the child was illegitimate. If the Court were to validate that
stipulation, then it would be tantamount to allowing the mother to make a
declaration against the legitimacy of her child and consenting to the denial
of filiation of the child by persons other than her husband. These are the very
acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and
filiation of a child.[41] Otherwise, the child will be at the mercy of those who
may be so minded to exploit his defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It
has no evidentiary value in this case because it was not offered in evidence
before the trial court. The rule is that the court shall not consider any
evidence which has not been formally offered.[42]
Moreover, the law itself establishes the status of a child from the moment
of his birth.[43] Although a record of birth or birth certificate may be used as
primary evidence of the filiation of a child, [44] as the status of a child is
determined by the law itself, proof of filiation is necessary only when the
legitimacy of the child is being questioned, or when the status of a child born
after 300 days following the termination of marriage is sought to be
established.[45]
Here, the status of Jose Gerardo as a legitimate child was not under
attack as it could not be contested collaterally and, even then, only by the
husband or, in extraordinary cases, his heirs. Hence, the presentation of
proof of legitimacy in this case was improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of the facts
contained therein.[46] As prima facie evidence, the statements in the record of
birth may be rebutted by more preponderant evidence. It is not conclusive
evidence with respect to the truthfulness of the statements made therein by
the interested parties.[47] Between the certificate of birth which isprima
facie evidence of Jose Gerardos illegitimacy and the quasi-conclusive
presumption of law (rebuttable only by proof beyond reasonable doubt) of his
legitimacy, the latter shall prevail. Not only does it bear more weight, it is

also more conducive to the best interests of the child and in consonance with
the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press
for Jose Gerardos illegitimacy while claiming that they both had the childs
interests at heart. The law, reason and common sense dictate that a
legitimate status is more favorable to the child. In the eyes of the law, the
legitimate child enjoys a preferred and superior status. He is entitled to bear
the surnames of both his father and mother, full support and full inheritance.
[48]
On the other hand, an illegitimate child is bound to use the surname and
be under the parental authority only of his mother. He can claim support only
from a more limited group and his legitime is only half of that of his
legitimate counterpart.[49] Moreover (without unwittingly exacerbating the
discrimination against him), in the eyes of society, a bastard is usually
regarded as bearing a stigma or mark of dishonor. Needless to state, the
legitimacy presumptively vested by law upon Jose Gerardo favors his
interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter
squabble between the very persons who were passionately declaring their
concern for him. The paradox was that he was made to suffer supposedly for
his own sake. This madness should end.
This case has been pending for a very long time already. What is specially
tragic is that an innocent child is involved. Jose Gerardo was barely a year
old when these proceedings began. He is now almost fifteen and all this time
he has been a victim of incessant bickering. The law now comes to his aid to
write finis to the controversy which has unfairly hounded him since his
infancy.
Having only his best interests in mind, we uphold the presumption of his
legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the
surnames of his father Mario and mother Ma. Theresa, in conformity with the
provisions of the Civil Code on surnames. [50] A persons surname or family
name identifies the family to which he belongs and is passed on from parent
to child.[51] Hence, Gerardo cannot impose his surname on Jose Gerardo who
is, in the eyes of the law, not related to him in any way.

The matter of changing Jose Gerardos name and effecting the

corrections of the entries in the civil register regarding his paternity and
filiation should be threshed out in a separate proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article
49 of the Family Code grants visitation rights to a parent who is deprived of
custody of his children. Such visitation rights flow from the natural right of
both parent and child to each others company. There being no such parentchild relationship between them, Gerardo has no legally demandable right to
visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603,
otherwise known as the Child and Youth Welfare Code, is clear and
unequivocal:
Article 8. Childs Welfare Paramount. In all questions regarding the care,
custody, education and property of the child, his welfare shall be the
paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of a Child of
which the Philippines is a signatory is similarly emphatic:
Article 3
1.

In all actions concerning children, whether undertaken by public

or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child
shall be a primary consideration.

The State as parens patriae affords special protection to children from

abuse, exploitation and other conditions prejudicial to their development. It
is mandated to provide protection to those of tender years. [52] Through its
laws, the State safeguards them from every one, even their own parents, to
the end that their eventual development as responsible citizens and
members of society shall not be impeded, distracted or impaired by family
acrimony. This is especially significant where, as in this case, the issue
concerns their filiation as it strikes at their very identity and lineage.
WHEREFORE, the petition is hereby DENIED. The September 14, 1995
and January 10, 1996 resolutions of the Court of Appeals in CA-G.R. CV No.
40651 are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.

G.R. No. L-60101 August 31, 1983

EASTERN
SHIPPING
vs.
JOSEPHINE LUCERO, respondents.

LINES,

INC., petitioner,

Valera, Cainglet & Dala Law Office for petitioner.

Jose R. Millares for private respondent.

ESCOLIN, J.:
Petition for review filed by the Eastern Shipping Lines, Inc. to set aside the
decision of the National Labor Relations Commission, which affirmed the
judgment rendered by the National Seamen Board, the dispositive portion of
which reads as follows:
WHEREFORE, respondent is hereby ordered to pay complainant
her monthly allotments from March, 1980 up to the amount of
P54,562.00 within ten (10) days from receipt of this decision.
Respondent is likewise further ordered to pay complainant her
future monthly allotment up to the arrival of the M/V EASTERN
MINICON in the port of Manila or after four (4) years when the
presumptive death established by law takes effect.
The material facts that gave rise to this petition are as follows: On October
31, 1979, Capt. Julio J. Lucero, Jr. was appointed by petitioner Eastern
Shipping Lines, Inc., Company for short, as master/captain to its vessel M/V
Eastern Minicon plying the HongkongManila route, with the salary of
P5,560.00 exclusive of ship board allowances and other benefits. Under the
contract, his employment was good for one (1) round trip only, i.e., the
contract would automatically terminate upon arrival of the vessel at the Port
of Manila, unless renewed. It was further agreed that part of the captain's

salary, while abroad, should be paid to Mrs. Josephine Lucero, his wife, in
Manila.
On February 16, 1980, while the vessel was enroute from Hongkong to
Manila where it was expected to arrive on February 18, 1980, Capt. Lucero
sent three (3) messages to the Company's Manila office:
First Message:

February l6,1980 0700 GMT Via Intercom

EMINICON
Urgent Eastship Manila
REGRET TO INFORM YOU ENCOUNTERED BOISTEROUS WEATHER
WITH STRONG NORTHEASTERLY WINDS WITH GAIL FORCE
CAUSING THE VESSEL ROLLING AND PITCHING VIOLENTLY
VESSEL NOW INCLINING 15 TO 20 DEGREES PORT FEARING
MIGHT JETTISON CARGO ON DECK IF EVERYTHING COME TO
WORSE SITUATION HOWEVER TRYING UTMOST BEST TO
FACILITATE EVERYTHING IN ORDER STOP NO FIX POSITIONS FROM
NOON 15th UP TO 0600 HRS TO DATE NEED ASSISTANCE
APPROXIMATE DR POSITIONS AT 0600 HRS 10TH WITHIN THE
VICINITY LATITUDE 20-02, ON LONGTITUDE 110-02, OE COURSE
120 DEGREES REGARDS ...
LUCERO
Second Message:

February l6/80 1530 GMT VIA INTERCOM

EMICON
EAST SHIP MANILA
RYC NOTED ACCORDINGLY SINCE WASTE PAPER CARGO ON PORT
SIDE AND HAD BEEN WASH OUT VESSEL AGAIN LISTING ON
STARBOARD SIDE REGRET WE HAVE TO JETTISON STARBOARD
SIDE WASTE PAPER CARGO IN ORDER TO BALANCE THE VESSEL

NOW ALMOST BACK TO NORMAL POSITION HOWEVER VESSEL

STILL LABORING VIOLENTLY REGARDS
LUCERO
Third Message:

FEBRUARY 16/80 2150 HRS

PHILIPPINE COAST GUARD
NEED IMMEDIATE ASSISTANCE POSITION 19-35 N 116-40 E
SEAWATER ENTERING INSIDE HATCH VESSEL INCLINING 15 TO 20
DEGREES PORT IF POSSIBLE SEND IMMEDIATE ASSISTANCE
VESSEL IN DANGER PREPARING TO ABANDON ANYTIME
MASTER
Acting on these radio messages, the Company, respondent below, took the
following steps:
RESPONDENT informed of the grave situation, immediately
reported the matter to the Philippine Coast Guard for search and
rescue operation and the same was coordinated with the U.S. Air
Force based at Clark Air Base. Respondent also released radio
messages to all vessels passing the Hongkong/Manila route
requesting them to be very cautious and vigilant for possible
survivors and to scan the area whether there are signs of debris
from the ill-fated vessel "EASTERN MINICON" which has
foundered In the meantime, two (2) vessels of the respondent
were also dispatched to the area last reported by the Master for
search and rescue operation, but the collective efforts of all
parties concerned yielded negative results, (p. 79, Rollo)
Subsequently, the Lloyds of London, insurer of the M/V Eastern Minicon
through its surveyors, confirmed the loss of the vessel. Thereafter, the
Company paid the corresponding death benefits to the heirs of the crew
members, except respondent Josephine Lucero, who refused to accept the
same.

On July 16, 1980, Mrs. Lucerofiled a complaint with -the National Seamen
Board, Board for short, for payment of her accrued monthly allotment of
P3,183.00, which the Company had stopped since March 1980 and for
continued payment of said allotments until the M/V Minicon shall have
returned to the port of Manila. She contended that the contract of
employment entered into by her husband with the Company was on a
voyage-to-voyage basis, and that the same was to terminate only upon the
vessel's arrival in Manila.
Upon the other hand, the Company maintained that Mrs. Lucero was no
longer entitled to such allotments because: [a] the Lloyds of London had
already confirmed the total loss of the vessel and had in fact settled the
company's insurance claim and [b] the Company, with the approval of the
Board, had likewise paid the corresponding death benefits to the heirs of the
other seamen The Company further invoked the provisions of Article 643 of
the Code of Commerce, to wit:
Art. 643. If the vessel and her cargo should be totally lost, by
reason of capture or wreck, all rights shall be extinguished, both
as regards the crew to demand any wages whatsoever, and as
regards the ship agent to recover the advances made.
xxx xxx xxx
On May 19, 1981, the Board rendered the aforecited judgment in favor of
Mrs. Josephine Lucero and against petitioner Company. The Board held that
the presumption of death could not be applied because the four-year period
provided for by Article 391(l) of the Civil Code had not yet expired; and that
the payment of death benefits to the heirs of the other crew 'members was
based upon a voluntary agreement entered into by and between the heirs
and the Company, and did not bind respondent Mrs. Lucero who was not a
party thereto.
On appeal, the respondent National Labor Relations Conunission affirmed the
said decision. It held that:
Within the context of the foregoing circumstances, the only
recourse is to presume the vessel totally lost and its crew
members dead. But in this connection, the question that comes
to the fore is: When will the presumption arise? Article 391 of the
Civil Code provides the answer, to wit:

Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs: (1) A person
on board a vessel lost during a sea voyage, or an aeroplane
which is missing, who has not been heard of for four years since
the loss of the vessel or aeroplane;...
By the aforequoted law, it is quite clear that the person to be
presumed dead should first "not been heard of for four years
since the loss of the vessel" before he can be presumed dead for
all purposes. Applied to Capt. LUCERO, it is evidently premature
to presume him dead as four years has not yet expired. Thus,
even in Judge Advocate General vs. Gonzales, et al., (CA) 48 O.G.
5329, the very case cited by the respondent herein, the court Id.
in the case of the missing soldier that although nothing was
heard of him since 7 May 1942, the fact of his death is not
presumed until seven years after 1942.
Since Capt. LUCERO cannot yet be presumed dead as
demonstrated hereinabove, it logically follows that as of now, he
is presumed have It is of no moment to Us that the vessel was
conceded by the Lloyds of London to have been totally lost
which, in the first place, was admittedly merely based on
presumption as even the whereabouts of the vessel remains
unknown. Similarly, even the agreement, which formed the basis
of the Decision of the NSB ordering payment of death benefits to
the heirs of some of the crew must have been predicated upon a
presumption of death of the crew members concerned. Such
circumstances do not suffice to establish the actual death of
Capt. LUCERO.
xxx xxx xxx
Indeed, by the terms of the appointment of Capt. LUCERO, his
engagement terminates upon the return of the vessel at the Port
of Manila. He is considered to be still working entitling his spouse
to allotment until the vessel returns or until it is officially
declared totally lost, or until the presumption of his death
becomes effective in which case the burden of proving that he is
alive is shifted to his wife for purposes of continuing her
allotment.

We are unable to agree with the reasoning and conclusion of the respondent
NLRC.
It is undisputed that on February 16, 1980, the Company received three (3)
radio messages from Capt. Lucero on board the M/V Eastern Minicon the last
of which, received at 9:50 p.m. of that day, was a call for immediate
assistance in view of the existing "danger": "sea water was entering the
hatch"; the vessel "was listing 50 to 60 degrees port," and they were
"preparing to abandon the ship any time.' After this message, nothing more
has been heard from the vessel or its crew until the present time.
There is thus enough evidence to show the circumstances attending the loss
and disappearance of the M/V Eastern Minicon and its crew. The foregoing
facts, quite logically. are sufficient to lead Us to a moral certainty that the
vessel had sunk and that the persons aboard had perished with it. upon this
premise, the rule on presumption of death under Article 391 (1) of the Civil
Code must yield to the rule of preponderance of evidence. As this Court said
in Joaquin vs. Navarro 4 "Where there are facts, known or knowable, from
which a rational conclusion can be made, the presumption does not step in,
and the rule of preponderance of evidence controls."
Of similar import
Jurisprudence: 5

is

the

following

pronouncement

from

American

Loss of Vessel. Where a vessel sets out on a voyage and

neither the vessel nor those who went in her are afterward heard
of, the presumption arises, after the utmost limit of time for her
to have completed the voyage and for news of her arrival at any
commercial port of the world to have been received, that the
vessel has been lost and that all on board have perished. The
presumption of death in such cases does not rest on the fact
alone that the person in question has been absent and unheard
from for a specific length of time, but also on the fact that the
vessel has not been heard front The question, moreover, is not
whether it is impossible that the person may be alive, but
whether the circumstances do not present so strong a probability
of his death that a court should act thereon. The presumption of
death from absence of tidings of the vessel on which the
absentee sailed is strengthened by proof of a storm to which the
vessel probably was exposed. The presumption is even stronger

where it appears affirmatively that the vessel was lost at sea,

that nothing has been heard of a particular person who sailed
thereon, and that a sufficient time has elapsed to permit the
receipt of news of any possible survivors of the disaster.
In People vs. Ansang 6 where, in open sea, the appellant aboard a vinta
ignited three home-made bombs and threw them at the boat occupied by the
victims, and the said boat was later washed ashore and the passengers
thereof were never heard or seen again by anybody, this Court convicted the
appellant of multiple murder, holding that the victims were dead.
Similarly, in People vs. Sasota, 7 the claim of the appellants therein that
there was no conclusive evidence of death of the victim because his body
was never found was overruled by this Court in this wise:
In a case of murder or homicide, it is not necessary to recover
the body or to show where it can be found. 'Mere are cases like
death at sea, where the finding or recovery of the body is
impossible. It is enough that the death and the criminal agency
be proven. There are even cases where said death and the
intervention of the criminal agency that caused it may be
presumed or established by circumstantial evidence.
Moreover, it may be remembered that in several treason cages
decided by this Court, where besides the act of treason the
accused is held responsible for the death of persons he had or
tortured and later taken away, where the victims were never
later seen or heard from, it has been presumed that they were
lulled or otherwise criminally disposed of or liquidated by the
accused this, for the purpose of fixing the penalty.
If in the foregoing criminal cases, where the proof required for conviction
must be beyond reasonable doubt, the rule of presumption was not applied
and the fact of death was deemed established, with more reason is this Court
justified in entering a finding of death. Indeed, We cannot permit Article 391
to override, or be substituted for, the facts established in this case which
logically indicate to a moral certainty that Capt. Lucero died shortly after he
had sent his last radio message at 9:50 p.m. on February 16, 1980.

In view of the conclusion arrived at above, We deem it unnecessary to

discuss the other issued raised in this case, they being mere adjuncts to the
principa issue already disposed of.
WHEREFORE, the decision of the NLRC subject of this petition is hereby set
aside, and the complaint of respondent Josephine Lucero dismissed.
However, Mrs. Lucero is entitled to death benefits. No costs.
SO ORDERED.

BLUE CROSS HEALTH CARE,

G.R. No. 169737

INC.,
Petitioner,

Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,
-versus-

CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.

NEOMI* and DANILO OLIVARES,

Respondents.

Promulgated:

February 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CORONA, J.:

This is a petition for review on certiorari[1] of a decision[2] and

resolution[3] of the Court of Appeals (CA) dated July 29, 2005 and September
21, 2005, respectively, in CA-G.R. SP No. 84163 which affirmed the decision
of the Regional Trial Court (RTC), Makati City, Branch 61 dated February 2,
2004 in Civil Case No. 03-1153, [4] which in turn reversed the decision of the
Metropolitan Trial Court (MeTC), Makati City, Branch 66 dated August 5,
2003 in Civil Case No. 80867.[5]

Respondent Neomi T. Olivares applied for a health care program with

petitioner Blue Cross Health Care, Inc., a health maintenance firm. For the
period October 16, 2002 to October 15, 2003, [6] she paid the amount
of P11,117. For the same period, she also availed of the additional service of
limitless consultations for an additional amount ofP1,000. She paid these
amounts in full on October 17, 2002. The application was approved on
October 22, 2002. In the health care agreement, ailments due to preexisting conditions were excluded from the coverage.[7]

On November 30, 2002, or barely 38 days from the effectivity of her

health insurance, respondent Neomi suffered a stroke and was admitted at

the

Medical

City

which

was

one

of

the

hospitals

accredited

by

petitioner. During her confinement, she underwent several laboratory tests.

On December 2, 2002, her attending physician, Dr. Edmundo Saniel,
[8]

informed her that she could be discharged from the hospital. She incurred

hospital expenses amounting to P34,217.20. Consequently, she requested

from the representative of petitioner at Medical City a letter of authorization
in order to settle her medical bills. But petitioner refused to issue the letter
and suspended payment pending the submission of a certification from her
attending physician that the stroke she suffered was not caused by a preexisting condition.[9]

She was discharged from the hospital on December 3, 2002. On

December 5, 2002, she demanded that petitioner pay her medical bill. When
petitioner still refused, she and her husband, respondent Danilo Olivares,
were constrained to settle the bill.[10] They thereafter filed a complaint for
collection of sum of money against petitioner in the MeTC on January 8,
2003.[11] In its answer dated January 24, 2003, petitioner maintained that it
had not yet denied respondents' claim as it was still awaiting Dr. Saniel's
report.

In a letter to petitioner dated February 14, 2003, Dr. Saniel stated that:
This is in response to your letter dated February 13,
2003. [Respondent] Neomi T. Olivares called by phone on
January 29, 2003. She stated that she is invoking patientphysician confidentiality. That she no longer has any relationship
with [petitioner]. And that I should not release any medical
information concerning her neurologic status to anyone without

her approval. Hence, the same day I instructed my secretary to

inform your office thru Ms. Bernie regarding [respondent's]
wishes.

xxx

xxx

xxx[

12]

In a decision dated August 5, 2003, the MeTC dismissed the complaint

for lack of cause of action. It held:

xxx the best person to determine whether or not the stroke she
suffered was not caused by pre-existing conditions is her
attending physician Dr. Saniel who treated her and conducted
the test during her confinement. xxx But since the evidence on
record reveals that it was no less than [respondent Neomi]
herself who prevented her attending physician from issuing the
required certification, petitioner cannot be faulted from
suspending payment of her claim, for until and unless it can be
shown from the findings made by her attending physician that
the stroke she suffered was not due to pre-existing conditions
could she demand entitlement to the benefits of her policy.[13]

On appeal, the RTC, in a decision dated February 2, 2004, reversed the

ruling of the MeTC and ordered petitioner to pay respondents the following
amounts: (1)P34,217.20 representing the medical bill in Medical City
and P1,000 as reimbursement for consultation fees, with legal interest from
the filing of the complaint until fully paid; (2) P20,000 as moral damages;

(3) P20,000 as exemplary damages; (4) P20,000 as attorney's fees and (5)
costs of suit.[14] The RTC held that it was the burden of petitioner to prove
that the stroke of respondent Neomi was excluded from the coverage of the
health care program for being caused by a pre-existing condition. It was not
able to discharge that burden.[15]

Aggrieved, petitioner filed a petition for review under Rule 42 of the

Rules of Court in the CA. In a decision promulgated on July 29, 2005, the CA
affirmed the decision of the RTC. It denied reconsideration in a resolution
promulgated on September 21, 2005. Hence this petition which raises the
following issues: (1) whether petitioner was able to prove that respondent
Neomi's stroke was caused by a pre-existing condition and therefore was
excluded from the coverage of the health care agreement and (2) whether it
was liable for moral and exemplary damages and attorney's fees.

The health care agreement defined a pre-existing condition as:

x x x a disability which existed before the commencement date

of membership whose natural history can be clinically
determined, whether or not the Member was aware of such
illness or condition. Such conditions also include disabilities
existing prior to reinstatement date in the case of lapse of an
Agreement. Notwithstanding, the following disabilities but not to
the exclusion of others are considered pre-existing conditions
including their complications when occurring during the first year
of a Members coverage:

I.

Tumor of Internal Organs

II.

Hemorrhoids/Anal Fistula

III.
IV.
V.

Diseased tonsils and sinus conditions requiring

surgery
Cataract/Glaucoma
Pathological Abnormalities of nasal septum or
turbinates

VI.

Goiter and other thyroid disorders

VII.

Hernia/Benign prostatic hypertrophy

VIII.
IX.
X.
XI.
XII.

Endometriosis
Asthma/Chronic Obstructive Lung disease
Epilepsy
Scholiosis/Herniated disc and other Spinal
column abnormalities
Tuberculosis

XIII.

Cholecysitis

XIV.

Gastric or Duodenal ulcer

XV.
XVI.
XVII.
XVIII.
XIX.
XX.

Hallux valgus
Hypertension
diseases

and

other

Cardiovascular

Calculi
Tumors of skin, muscular tissue, bone or any
form of blood dyscracias
Diabetes Mellitus
Collagen/Auto-Immune disease

After the Member has been continuously covered for 12 months,

this pre-existing provision shall no longer be applicable except
for illnesses specifically excluded by an endorsement and made
part of this Agreement.[16]

Under

this

provision,

disabilities

which

existed

before

the

commencement of the agreement are excluded from its coverage if they

become manifest within one year from its effectivity. Stated otherwise,
petitioner is not liable for pre-existing conditions if they occur within one
year from the time the agreement takes effect.

Petitioner

argues

that

respondents

prevented

Dr.

Saniel

from

submitting his report regarding the medical condition of Neomi. Hence, it

contends that the presumption that evidence willfully suppressed would be
adverse if produced should apply in its favor.[17]

Respondents counter that the burden was on petitioner to prove that

Neomi's stroke was excluded from the coverage of their agreement because
it was due to a pre-existing condition. It failed to prove this.[18]

We agree with respondents.

In Philamcare Health Systems, Inc. v. CA,[19] we ruled that a health care

agreement is in the nature of a non-life insurance. [20] It is an established rule
in insurance contracts that when their terms contain limitations on liability,
they should be construed strictly against the insurer. These are contracts of
adhesion the terms of which must be interpreted and enforced stringently
against the insurer which prepared the contract. This doctrine is equally
applicable to health care agreements.[21]

Petitioner never presented any evidence to prove that respondent

Neomi's stroke was due to a pre-existing condition. It merely speculated that
Dr. Saniel's report would be adverse to Neomi, based on her invocation of the
doctor-patient privilege. This was a disputable presumption at best.

Section 3 (e), Rule 131 of the Rules of Court states:

Sec. 3. Disputable presumptions. The following presumptions

are satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:

xxx

xxx

xxx

(e)
That evidence willfully suppressed would be adverse if
produced.

Suffice it to say that this presumption does not apply if (a) the evidence is at
the disposal of both parties; (b) the suppression was not willful; (c) it is
merely corroborative or cumulative and (d) the suppression is an exercise
of a privilege.[22] Here, respondents' refusal to present or allow the
presentation

of

Dr.

Saniel's

report

was

justified. It

was

privileged

communication between physician and patient.

Furthermore, as already stated, limitations of liability on the part of the

insurer or health care provider must be construed in such a way as to
preclude it from evading its obligations. Accordingly, they should be
scrutinized by the courts with extreme jealousy[23] and care and with a
jaundiced eye.[24] Since petitioner had the burden of proving exception to
liability, it should have made its own assessment of whether respondent
Neomi had a pre-existing condition when it failed to obtain the attending
physician's report. It could not just passively wait for Dr. Saniel's report to
bail it out. The mere reliance on a disputable presumption does not meet the
strict standard required under our jurisprudence.

Next, petitioner argues that it should not be held liable for moral and
exemplary damages, and attorney's fees since it did not act in bad faith in
denying respondent Neomi's claim. It insists that it waited in good faith for
Dr. Saniel's report and that, based on general medical findings, it had
reasonable ground to believe that her stroke was due to a pre-existing
condition, considering it occurred only 38 days after the coverage took
effect.[25]

We disagree.

The RTC and CA found that there was a factual basis for the damages
adjudged against petitioner. They found that it was guilty of bad faith in
denying a claim based merely on its own perception that there was a preexisting condition:

[Respondents] have sufficiently shown that [they] were

forced to engage in a dispute with [petitioner] over a legitimate
claim while [respondent Neomi was] still experiencing the effects
of a stroke and forced to pay for her medical bills during and
after her hospitalization despite being covered by [petitioners]
health care program, thereby suffering in the process extreme
mental anguish, shock, serious anxiety and great stress. [They]
have shown that because of the refusal of [petitioner] to issue a
letter of authorization and to pay [respondent Neomi's] hospital
bills, [they had] to engage the services of counsel for a fee
of P20,000.00. Finally, the refusal of petitioner to pay
respondent Neomi's bills smacks of bad faith, as its refusal
[was] merely based on its own perception that a stroke is a preexisting condition. (emphasis supplied)
This is a factual matter binding and conclusive on this Court. [26] We see
no reason to disturb these findings.

WHEREFORE, the petition is hereby DENIED. The July 29, 2005

decision and September 21, 2005 resolution of the Court of Appeals in CAG.R. SP No. 84163 areAFFIRMED.

Treble costs against petitioner.

SO ORDERED.