Republic of the Philippines

Department of Justice
OFFICE OF THE PROVINCIAL PROSECUTOR
Province of Antique

FILBERT D. PAUNON,
Complainant,
-versus00093

NPS NO. VI-02-INV-11DFor: Frustrated Murder

WILFREDO P. UY,
Respondent.
x----------------------------------x

COUNTER-AFFIDAVIT
I, WILDREDO UY, Filipino, 63 years old, and a resident of T.A.
Fornier Street, Antique, after having been sworn in accordance with
law, hereby depose and state that:

PREFATORY STATEMENT

At the outset, it is stressed that this malicious and baseless

complaint for Frustrated Murder against me is but part of Complainant
Filbert Paunons (Paunon) continuing effort to harass me and to
malign my name.

Prior to this incredible accusation, Paunon had already filed

several complaints against me. These include a complaint for Tumults
and Other Disturbances of Public Order, a complaint for Grave Threats,
and a complaint for Malicious Mischief. These complaints have either
been dismissed, or in the process of being dismissed.

This time, Paunon has come up with the most incredible tale and
charged me with Frustrated Murder which I allegedly committed when I
grabbed him and head-locked him by forcefully gripping his neck. 1
Now, even assuming, without conceding, that his allegations in his
Complaint are true, they would still not support a finding of probable
cause for the crime of Frustrated Murder. Through the following
discussion, I will demonstrate that these allegations are mere
exaggerations and blatant lies concocted by Paunon to harass me and
to cover up his own criminal actions.

The allegations in Paunons

Complaint are nothing but
exaggerations and blatant lies.
1.

In order to justify his incredible and baseless accusation

against me, Paunon has resorted to outright exaggerations and blatant

lies in his Complaint Affidavit.

2.

First of all, Paunon claimed that at around 4:30 oclock in the

afternoon of 31 March 2011, I barged into the premises of the new

MEDICUS building, and seething with rage, looked for him. 2 This is
simply not true.

3.
Uy,

had

I went to the office of Medicus because my wife, Melinda M.

previously

leased

commercial

building

to

Medicus

Philippines, Inc. (Medicus). The building is located on Lot Bo. 2009A7,

T.A. Fornier Street, Barangay Atabay, San Jose de Buenavista, Antique.
The term of the lease was for ten (10) years commencing on April 1,
1
2

Par. 26 of the Complaint.

Par. 3 of the Counter-Affidavit.

2001 and expiring on April 1, 2011. However, it was previously agreed

that the turnover of the leased premises will be done at 12:00 pm of 31
March 2011.

4.

When that said date and time arrived, I went to the leased

premises and found the doors still closed and locked by chains. I
decided to wait a few hours more, but there was still no one who
approached us for the turnover of the property.

5.

At around 4:00 P.M., I decided to visit the new office of

Medicus to finally inquire about the turn over. I looked for Paunon since
he was the manager of that particular branch. Contrary to Paunons
claims, I was not seething with rage. Instead, I cordially spoke with the
personnel remaining in the building.

6.

In his Complaint Affidavit, Paunon claimed that when I spoke

to him over the phone, I screamed at him and uttered invectives and
scurrilous and defamatory words at him and Dr. Vicente E. Villareal, the
President of Medicus.3 Again, these are blatant lies.

7.

When I went to Medicus that day, I was informed that

Paunon had already left. I requested a member of the staff to call him
so I can ask him about the turn over. I merely spoke to Paunon over the
phone and reminded him of the previously agreed upon time of the
turn-over of the leased premises. Since I had waited the whole day for
the turn-over, I was a little disappointed, but, contrary to Paunons
allegations, I did not angrily shout at him. Neither did I direct invectives
and scurrilous and defamatory words at him or Dr. Vicente Villareal.
3

Par. 6 of the Counter-Affidavit.

8.

It should be stressed that Paunons allegations are even

belied by his own actions. A few minutes after I allegedly threatened

him, Paunon went to my home to speak with me personally. It is not
normal for a person who was allegedly shouted at, and even
threatened with bodily harm, to voluntarily enter the home of the
person who threatened him. Yet in this case, Paunon, on his own
volition, went to my home just a few minutes after I allegedly maligned
him verbally and threatened him with physical harm.

9.

There is also no truth to Paunons allegations that when he

arrived at our house, I told him that I would have boxed him if he had
been in the premises of Medicus. 4 Together with my wife, Melinda, and
our son, Phillip, I met Paunon in our home. We were all very cordial
with him. I chided him a bit for failing to turn over the property at the
agreed upon time, but I did not threaten to box him. I even jokingly put
my right arm around his shoulder and pulled him closer to me when I
spoke to him. My behavior was observed by both my wife, Melinda and
son, Phillip.5

10. Paunon also lied when he stated that there was an

agreement between himself, my wife and me that Medicus would only
install two (2) bulb outlets and one (1) electrical outlet on the
commercial building subject of the lease. 6 In fact, I insisted that all
eight (8) fluorescent bulbs, together with their respective outlet
receptacles and switches, be reinstalled by Medicus.

4
5

Complaint, par. 12.

The affidavits of Melinda Uy and Phillip Uy are attached hereto as
Annexes A and B respectively.
Complaint, par. 19.

11. I was already very lenient with Medicus when I did not insist
that they demolish a number of permanent structures they had built in
the leased property without our permission. But when I noticed that
eight (8) fluorescent bulbs, together with their respective outlet
receptacles and switches were missing, I insisted that all eight
fluorescent bulbs, together with their outlet receptacles and switches,
be re-installed before the official turnover. The bulbs, receptacles and
switches were all previously installed in the leased premises and were
all in place when the leased premises were turned over to Medicus at
the commencement of the term of the lease. Since these materials
were all previously attached to the leased premises, Medicus had no
right to remove them.

12. I reiterate that there was never any agreement between

myself, my wife and Paunon that only two (2) bulbs and one (1)
electrical outlet would be installed in the premises. In fact, Paunon
even promised to re-install all eight fluorescent bulbs, their outlet
receptacles and switches as we required. Since we took Paunons word
for it, my wife signed the turn over form. Little did we know that he
would later renege on that promise.
13. The fact that there was never any agreement between
myself, my wife and Paunon is supported by wife who similarly stated
in her affidavit that there was no agreement with Paunon.

14. In fact, when we later discovered after the turn-over of the

property that not only were the fluorescent bulbs, outlet receptacles
and switches not replaced, but the electrical wiring of these outlets
5

were also missing, we filed a criminal complaint for Qualified Theft

against Paunon on 12 April 2011.7

15. Lastly, I vehemently deny that I attempted to murder him by

head-locking him by forcefully gripping his neck. This accusation is a
blatant lie, and the events of that afternoon grossly exaggerated by
Paunon.

16. In truth, I encountered Paunon when I returned to the leased

premises in the afternoon of 1 April 2011. I was with our carpenter,
Paulino Magbanua, since I wanted to discuss with him the removal of
the structures which Medicus refused to remove. Paunon soon arrived
and asked me if the bulbs he installed were satisfactory. I reminded
him that all of the eight (8) bulbs should be installed together with
their outlet receptacles and switches. He however stated that he was
instructed to re-install only two (2) of the bulbs. He claimed that he
could not do anything more since those were the instructions given to
him.

17. I insisted that the eight (8) bulbs and their outlet receptacles
and switches were part of the leased premises and should be
reinstalled. However, I did not forcefully grip his neck. I merely chided
him by putting my right arm over his shoulders and pulling him closer
to me, as I had done on the day he visited my house. My actions were
witnessed by our carpenter Paulino Magbanua, which he narrated in his
affidavit.8

7
8

A copy of the Complaint is attached hereto as Annex C.

A copy of Paulino Magbanuas Affidavit is attached hereto as Annex D.

18. I stress that at no point was Paunons life in danger.

Moreover, Paunons companion did not embrace me or use physical
force on me to help Paunon escape. He merely placed his hand on my
arm and told me to calm down and I voluntarily relaxed my arm on
Paunons shoulder.

19. Paunon also grossly exaggerates the fact that I am a bigger

man than him. Solely because of the fact that I was a bigger man, he
concludes that I could have readily broken his neck. 9 He regrets to take
into account, however, that although I am physically taller than
Paunon, I am much older than him. I am more than twice Paunons age
I am already sixty-three (63) years old, while Paunon is only around
thirty (30) years old. There was no possibility that I could put a much
younger man in mortal danger just by using my bare hands.

20. As can be seen, the allegations in Paunons Complaint

Affidavit are either blatant lies or gross exaggerations. I did not scream
at him, utter invectives or defamatory words at him, neither did I
threaten him. Most important of all, I did not head-lock him by gripping
his neck. All of these were concocted by Paunon merely to harass me.

There is no basis to support

the
charge
of
Frustrated
Murder
21. As I earlier explained, I never placed Paunon in any danger
at any point on 31 March and 1 April 2011. I did not head lock him by
gripping his neck. He was not mortally wounded or hurt in any way. It is

Complaint, par. 27.

thus incredibly malicious and absurd of him to charge me with

Frustrated Murder.

22. My lawyers informed me that in order to be held liable for

Frustrated Murder, the accused must perform all of the acts
which he believes necessary to consummate the crime, it is
only that death fails to follow for causes entirely apart from his
will.10 They also informed me that in order to qualify homicide
into murder, any of the following circumstances must be
present:

Art. 248. Murder. Any person who,

not falling within the provisions of Article 246
shall kill another, shall be guilty of murder and
shall be punished by reclusion temporal in its
maximum period to death, if committed with
any of the following attendant circumstances:
1. With treachery, taking advantage of
superior strength, with the aid of armed men,
or employing means to weaken the defense or
of means or persons to insure or afford
impunity.
2. In consideration of a price, reward, or
promise.
3. By means of inundation, fire, poison,
explosion, shipwreck, stranding of a vessel,
derailment or assault upon a street car or
locomotive, fall of an airship, by means of
motor vehicles, or with the use of any other
means involving great waste and ruin.
4. On occasion of any of the calamities
enumerated in the preceding paragraph, or of
an earthquake, eruption of a volcano,
destructive cyclone, epidemic or other public
calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and
inhumanly augmenting the suffering of the
10

People vs. Dagman, G.R. No. L-23133 August 20, 1925.

victim, or outraging or scoffing at his person or

corpse.11

23. In this case, there was no allegation that any of the above
circumstances was present. In fact, even assuming all the allegations
in the Complaint were true, there is nothing to show that any of the
above circumstances could even be remotely considered.

24. There is also nothing to show that I performed all of the

acts necessary to consummate the crime of murder. I did not
inflict any mortal wound or injury upon Paunon which would
likely cause his death. In fact, he even went to the police
station to record the incident. At the police station, he was
even reprimanded by a policewoman for causing such a loud
commotion. These are obviously not the actions of a man in
the throes of death.
25. I reiterate that I did not head lock Paunon and neither
did I grip his neck. I merely placed my right hand over his
shoulders and pulled him closer to me. In Filipino, my action
could be described as inakbayan ko lang siya.

26. Such act of putting my arm around Paunon could not

have produced the mortal wound or injury which would likely
cause death, which is a requirement in the crime of Frustrated
Murder. In order to justify his charge, Paunon claims that since
I was a big man, I could have readily broken his neck which
would result in instantaneous death.12 Again, this is a baseless
11
12

Art. 248 of the Revised Penal Code.

Complaint, par. 27.

and grossly exaggerated conclusion. It takes more than

speculation to justify an indictment for murder. The fact that I
could have committed murder is not relevant. What is relevant
is if I did something to Paunon that could have caused his
death, and I certainly did nothing of the sort.

27. I was made aware that an essential element of murder and

homicide, whether in their consummated, frustrated or attempted
stage, is intent of the offender to kill the victim immediately before or
simultaneously with the infliction of injuries. 13 In this case, it is readily
apparent that I had no intention to kill Paunon.

28. At the time of the alleged incident, there were four (4)
people inside the leased premises myself, Paulino Magbanua, Paunon
and his companion. If I had any intention of killing Paunon, I would not
do so in front of such witnesses. I also reiterate that I merely put my
hands over his shoulder. There was actually no intention to physically
harm Paunon, much more kill him. In addition, when Paunons
companion touched my arm and told me to calm down, I deliberately
and immediately relaxed my arm, at which point Paunon moved away
from me. This would not be consistent with the actions of a person who
had intent to kill.

29. Moreover, I reiterate that I am a much older man than

Paunon, being more than twice his age. I am also suffering from
hypertension. I could not have gravely injured a much younger man by
my bare hands.

13

Rivera vs. People of the Philippines, G.R. No. 166326 25 January 2006.

10

30. The gross exaggeration of charging me with Frustrated

Murder is also evident from a perusal of the medical certificate he
attached to his Complaint. According to the medical certificate, Paunon
merely had an Erythema on the left side of the neck. Erythema is
nothing but a simple rash or redness of the skin. It may be caused by
anything

like

infection,

massage,

electrical

treatment,

acne

medication, allergies, exercise, solar radiation (sunburn), or waxing and

plucking of the hairs. This is evident from the following articles on
Erythema:

Erythema (from the Greek erythros,

meaning red) is redness of the skin, caused by
hyperemia of the capillaries in the lower
layers of the skin. It occurs with any skin injury,
infection, or inflammation. Examples of
erythema not associated with pathology
include nervous blushes.
It can be caused by infection, massage,
electrical
treatment,
acne
medication,
allergies, exercise, solar radiation (sunburn),
cutaneous radiation syndrome, or waxing and
plucking of the hairsany of which can cause
the capillaries to dilate, resulting in redness.
Erythema is a common side effect of
radiotherapy
treatment
due
to
patient
exposure to ionizing radiation.14
Erythema
is
a
skin
condition
characterized by redness or rash. There are
many
types
of
erythema,
including
photosensitivity, erythema multiforme, and
erythema nodusum. Photosensitivity is caused
by a reaction to sunlight and tends to occur
when something, such as an infection or a
medication, increases your sensitivity to
ultraviolet radiation. Erythema multiforme is
characterized by raised spots or other lesions
on the skin. It is usually caused by a reaction to
medications, infections, or illness. Erythema
nodosum is a form of erythema that is
accompanied by tender lumps, usually on the
legs below the knees, and may be caused by
certain medications or diseases. 15
14

http://en.wikipedia.org/wiki/Erythema, last visited on 29 May 2010.

11

31. Considering that an Erythema may result from any such

mundane causes, there is even no certainty that the Erythema on
Paunons neck was caused by my alleged head lock.

32. Moreover, a perusal of the alleged medical certificate would

also show that the alleged Erythema was found on the left side of
Paunons neck. I am, however, right handed. If it were true that I had
head locked Paunon at that time, then any injury, bruise or mark
resulting from such head lock would likewise be on the right side of his
neck. From this alone, there is sufficient ground to doubt the veracity
and accuracy of the medical certificate and the alleged injury suffered
by Paunon.

33. As can be seen, there is nothing which would support

Paunons Frustrated Murder charge against me. His allegations are
composed of blatant lies and gross exaggerations. Even the evidence
he had submitted to substantiate his alleged injuries are highly suspect
and unreliable.

The allegations and evidence

presented by Pauonon are
similarly insufficient to support
a finding of probable cause for
lighter offenses

34. It is also stressed that the allegations of Paunon in his

Complaint and the evidence he presented are similarly insufficient to

15

http://www.umm.edu/altmed/articles/erythema-000154.htm,
visited on 29 May 2011.

last

12

support a finding of probable cause for lighter offenses, as can be seen

below:

34.1. The allegations in Paunons Complaint are insufficient

to support a finding of probable for attempted or frustrated
homicide. As I already explained, an essential element of
homicide, whether in its consummated, frustrated or attempted
stage, is intent of the offender to kill the victim immediately
before or simultaneously with the infliction of injuries. 16 My
lawyers have informed me that as an essential element of the
crime, the intent to kill must also be proved by clear and
convincing evidence and with the same degree of certainty as is
required of the other elements of the crime. 17 In this case, there
was no intent to kill Paunon. The intention to kill was merely the
result of speculation and conjectures on the part of Paunon. This
does not satisfy the stringent requirement of the law.

34.2. The allegations in Paunons Complaint are also

insufficient to support a finding of probable for physical injuries.
First of all, in order to be liable for serious physical injuries, the
following should have been the extent of the injury:

Art. 263. Serious physical injuries.

Any person who shall wound, beat, or assault
another, shall be guilty of the crime of serious
physical injuries and shall suffer:
1. The penalty of prision mayor, if in
consequence of the physical injuries inflicted,
the injured person shall become insane,
imbecile, impotent, or blind;
16
17

Rivera vs. People of the Philippines, G.R. No. 166326 25 January 2006.
Alcaraz vs. Gonzalez, G.R. No. 164715, September 20, 2006

13

2. The penalty of prision correccional in

its medium and maximum periods, if in
consequence of the physical injuries inflicted,
the person injured shall have lost the use of
speech or the power to hear or to smell, or
shall have lost an eye, a hand, a foot, an arm,
or a leg or shall have lost the use of any such
member, or shall have become incapacitated
for the work in which he was therefor habitually
engaged;
3. The penalty of prision correccional in
its minimum and medium periods, if in
consequence of the physical injuries inflicted,
the person injured shall have become
deformed, or shall have lost any other part of
his body, or shall have lost the use thereof, or
shall have been ill or incapacitated for the
performance of the work in which he as
habitually engaged for a period of more than
ninety days;
4. The penalty of arresto mayor in its
maximum period to prision correccional in its
minimum period, if the physical injuries
inflicted shall have caused the illness or
incapacity for labor of the injured person for
more than thirty days.18

34.3. In this case, it is readily apparent that Paunon did not

suffer any of the above injuries. Thus, there is no basis for finding
probable cause for serious physical injuries.

34.4. The allegations in Paunons Complaint are also

insufficient to support a finding of probable cause for less serious
physical injuries. To be held liable for less serious physical
injuries, the offended party must have been incapacitated for
labor for ten (10) days or more. 19 In this case, the veracity of the
medical certificate attesting to Paunons alleged injuries is
doubtful at best. Even assuming that it can be given credence,
the medical certificate clearly states that the healing period for
18
19

Revised Penal Code.

Article 265 of the Revised Penal Code.

14

such injury is from seven (7) to ten (10) days. This falls short of
the requirement to be liable for less serious physical injuries.

34.5.

The allegations in Paunons Complaint are also

insufficient to support a finding of probable cause for slight

physical injuries and maltreatment. The law provides for three
ways by which this provision is violated. They are:

1. Physical injuries which incapacitated the

offended party for labor from one (1) to nine
(9) days, or required medical attendance
during the same period;
2. Physical injuries which did not prevent the
offended party from engaging in his habitual
work or which did not require medical
attendance;
3. Ill-treatment of another by deed without
causing any injury.

34.6. In this case, Paunons allegations in his Complaint are

insufficient to support a finding of probable cause for all of the
ways mentioned above. First of all, it is emphasized that Paunon
did not actually suffer any injury. As I already explained, I merely
put my arm around his shoulders and pulled him closer to me. No
injury would have been inflicted by such an act. Second, my
lawyers have informed me of the oft-repeated maxim "Actus non
facit, nisi mens sit rea," which expounds a basic principle in
criminal law that a crime is not committed if the mind of the

15

person performing the act complained of be innocent. 20 In this

case, there was no criminal intention on my part when I put my
arm around Paunons shoulders and pulled him closer to me.
Without said intention, there could be no criminal act.

CONCLUSION

35. Based on all the foregoing, it is readily apparent that there is

no basis to support Paunons charge of Frustrated Murder against me. I
reiterate that I did not shout invectives at him, verbally threaten him,
nor did I intend to kill him by head locking him by gripping his neck.
The medical certificate he submitted showing his alleged injuries only
supports my contention that this charge is but a laughable attempt to
harass me and malign my name.

36. Moreover, there was no criminal intent on my part to inflict

harm on Paunon. Without such criminal mind, there can be no criminal
act.

37. Although this case is only in the Preliminary Investigation

stage and all that is sought to be established is probable cause, my
lawyers have advised me that sufficient proof of the guilt of the
accused must nevertheless be adduced so that when the case is tried,
the trial court may not be bound as a matter of law to order an
acquittal. This was explained by the Supreme Court in the case of
Duterte v. Sandiganbayan,21 where it was held that:
20

21

Manzanaris vs. People, G.R. No. L-64750, January 30, 1984.

G. R. No. 130191, April 27, 1998.

16

Although
such
a
preliminary
investigation is not a trial and is not intended
to usurp the function of the trial court, it is not
a casual affair. The officer conducting the same
investigates or inquires into the facts
concerning the commission of the crime with
the end in view of determining whether or not
an information may be prepared against the
accused. Indeed, a preliminary investigation is
in effect a realistic judicial appraisal of the
merits of the case. Sufficient proof of the
guilt of the accused must be adduced so
that when the case is tried, the trial court
may not be bound as a matter of law to
order
an
acquittal.
A
preliminary
investigation has then been called a judicial
inquiry. It is a judicial proceeding. An act
becomes judicial when there is opportunity to
be heard and for the production and weighing
of evidence, and a decision is rendered
thereof. (Emphasis ours.)

38. Given the obvious paucity and insufficiency of the evidence

presented against me, which was only made particularly to harass me,
I humbly and respectfully request the Honorable Prosecutor to dismiss
the criminal case against me.

39. I execute this Counter Affidavit to attest to the truth of the

foregoing and to refute the allegations against me in the Complaint.

IN WITNESS WHEREOF, I hereunto set my hand on this 1 st day of

June 2011.
WILFREDO UY
Affiant
SUBSCRIBED AND SWORN TO BEFORE ME on this 1 st day of
June 2011 in the Province of Antique.

17

ASSISTANT

PROVINCIAL

PROSECUTOR

CERTIFICATION
I hereby certify that I have personally examined the affiant and
am satisfied that he voluntarily executed and understood his affidavit.

ASSISTANT PROVINCIAL PROSECUTOR

18