Case

EN BANC
[G.R. No. 125334. January 28, 1998.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CRESENCIO TABUGOCA, AccusedAppellant.
DECISION
PER CURIAM:
This is an automatic review of the joint decision 1 rendered by Branch 18 of the Regional Trial Court
of Ilagan, Isabela in Criminal Cases Nos. 2386 and 2387 finding accused-appellant Cresencio
Tabugoca guilty of two counts of rape committed against his very own daughters and imposing upon
him the penalty of reclusion perpetua in the first case and the death penalty in the
second.chanroblesvirtual|awlibrary
In two informations simultaneously filed on January 20, 1995 in the aforesaid trial court, Accusedappellant was accused of raping his daughters in two separate incidents. The information in Criminal
Case No. 2386 charges him as follows:chanrob1es virtual 1aw library
That on or about the 28th day of March, 1992 in the municipality of Naguilian, province of Isabela,
Philippines and within the jurisdiction of this Honorable Court, the said accused, did then and there
willfully, unlawfully and feloniously, by means of force, intimidation and with lewd designs, have
carnal knowledge with his own daughter JACQUELINE A. TABUGOCA, a girl of 14 years old (sic),
against the latters will and consent. 2
The information in Criminal Case No. 2387 alleges:chanrob1es virtual 1aw library
That on or about the 9th day of December, 1994, in the municipality of Naguilian, province of Isabela,
Philippines and within the jurisdiction of this Honorable Court, the said accused, did then and there
willfully, unlawfully and feloniously, by means of force, intimidation and with lewd designs, have
carnal knowledge with his own daughter JINKY A. TABUGOCA, a girl of 12 years old (sic), against
the latters will and consent. 3
Accused-appellant pleaded not guilty when duly arraigned separately on the two indictments with the
assistance of counsel de oficio. 4 After a consolidated trial on the merits, on March 15, 1996 the court
a quo rendered the decision now under mandatory review. 5 The commission of the two felonies was
found by the lower court to have been attended by the aggravating circumstances of relationship and
intoxication purposely sought by accused-appellant to embolden him to commit the same.
In Criminal Case No. 2386, Accused-appellant was sentenced to suffer the penalty of reclusion
perpetua and directed to indemnify Jacqueline Tabugoca in the sum of P50,000.00. In Criminal Case
No. 2387, wherein the crime charged was committed after the effectivity of Republic Act No. 7659 on
December 31, 1993, 6 he was condemned to suffer the capital punishment of death and ordered to
indemnify Jinky Tabugoca in the sum of P50,000.00.
The trial court arrived at the conclusion that, beyond reasonable doubt, Accused-appellant had
committed the crimes charged on the bases of the testimonies of the victims, as corroborated by the
medical reports, and the testimony of the physician who examined them.
The respective complainants in Criminal Cases Nos. 2386 and 2387, namely, Jacqueline Tabugoca and
Jinky Tabugoca, are the daughters of Accused-Appellant. 7 This was not denied by him. He even
expressly declared during his testimony that Jacqueline 8 and Jinky 9 are his daughters.
Complainant Jacqueline testified that she and her three younger sisters, Janet, Jinky and Jewel, lived
under the sole care of their father after their mother died on August 28, 1991. While she and her sisters
were sleeping in their house at Barangay Roxas, Naguilian, Isabela at around 10 oclock in the
evening of March 28, 1992, she was roused by her father who asked her to scratch his back. It turned
out, however, that accused-appellant had other intentions that night aside from relief from his itchy
discomfort.
While Jacqueline was thus scratching her fathers back, he told her to stay and wait for a while.
Without any intimation, Accused-appellant then removed her shorts and underwear and made her lie
down beside him. Jacqueline could only cry at this point. As soon as she was completely disrobed,
Accused-appellant inserted his penis into her vagina. With his manhood inside his daughter, Accusedappellant warned her not to tell anyone of his dastardly act if she would not want to be harmed
(makaala ka kaniak). Complainant was so petrified with fear that she did not even dare ask her father
why he was sexually molesting her. 10
Jacqueline was twelve years and three months old at the time of the incident, she having been born on
December 27, 1979. 11
Because of the incident, Jacqueline harbored ill-feelings against her father, and she reportedly became
the object of gossip by her classmates in school. 12 However, she did not tell anyone about her ordeal
at the hands of her own father until she learned that the same misfortune had befallen her sister, Jinky.
In Criminal Case No. 2387, complainant Jinky declared in the court below that her father tried to rape
her in the early morning of December 9, 1994. While she was cleaning some articles in their house,
Accused-appellant approached her and then took off his clothes. He then ordered Jinky to lie down and
he removed her shorts and panty. Thereafter, he inserted his penis into her vagina. Jinky cried and
complained to her father that she was in pain. Accused-appellant explained that it is ordinary to feel
pain because it was her first time to experience coitus.
After a while, he did not persist any more in his sexual pursuit. Appellant lay down beside Jinky and
told her that they will continue the following day. At dawn of December 10, 1994, Accused-appellant
made another attempt to carnally molest Jinky. This time, however, Jinky resisted, thereby causing
appellant to just lie down and leave her alone. 13
Jinky was only 12 years and nine months old at the time of the incident, she having been born on
March 5, 1982. 14
Later, on the same day, while Jacqueline and Jinky were watching television at their grandmothers
house nearby, Jinky confided to her grandmother about the sexual abuses of her father against her.
Upon hearing the revelations of her sister, Jacqueline also disclosed to her grandmother her own
experience with her father two years before. 15
The victims grandmother, Perlita Alejandro, forthwith brought her granddaughters to the police
authorities and then to the Municipal Health Officer of Naguilian for physical examination. The two
were examined on December 12, 1994 by Dr. Maryann M. Fontanares. 16
For Criminal Case No. 2386, with respect to Jacqueline, the doctor reduced her findings into a
medico-legal certificate 17 attesting as follows:chanrob1es virtual 1aw library
LEGAL FINDINGS:chanrob1es virtual 1aw library
1. PE findings: essentially normal except for the anxiety that
the victim exhibited
2. Internal Examination: multiple healed
lacerations/scars at 3,
5, 6 and 9 oclock
positions of the hymen.
: introitus admits two
fingers with ease
. . . no other findings
noted . . .
RECOMMENDATIONS:chanrob1es virtual 1aw library
Impression: The above findings suggest that the
victim was forcibly abused and the
incident, the first one happened long
ago based on the healed scars of the
hymen.
For Criminal Case No. 2387, regarding Jinky, the medico-legal certificate 18 of the doctor
states:chanrob1es virtual 1aw library
LEGAL FINDINGS:chanrob1es virtual 1aw library
1. The vulva is edematous although the hymen is intact,. . . no other findings noted . . .
RECOMMENDATIONS:chanrob1es virtual 1aw library
The above findings suggest that full penetration was not successful although attempts were done based
on the swelling vulva of the victim.
During her testimony in court, Dr. Fontanares explained that the lacerations found on Jacquelines
hymen were the result of sexual intercourse which happened approximately on the date alleged. She
added that, aside from the swelling of Jinkys labia, she also found out that they were tender and
reddish. 19
After the examination, Jacqueline executed a criminal complaint 20 for rape against accusedappellant, while Jinky charged accused-appellant with frustrated rape in her own criminal complaint.
21
At the trial, Accused-appellant raised the defense of his having been completely unaware of what
transpired on March 28, 1992 and on December 9, 1994 as he was very drunk on those occasions.
According to him, he does not know if he had sexually assaulted his daughter, Jacqueline. He only
came to know of the complaint of Jacqueline against him after the policeman who arrested him on
December 10, 1994 told him thereof. On the same day, Jacqueline allegedly informed him that he was
drunk on March 28, 1992, but he claimed that he could not recall if indeed he drank liquor that day. He
then surmised that perhaps he did drink liquor based only on the supposed statement of Jacqueline. 22
With regard to the complaint of Jinky, Accused-appellant similarly declared in the lower court that he
drank liquor in their house on December 9, 1994. Again, he claimed that he could not recollect the
ensuing events after he had finished drinking. He was allegedly merely informed by the arresting
policemen on December 10, 1994 that Jinky was accusing him of attempted rape.
Jacqueline, on cross-examination, stated that her father smelled of liquor and may have taken some
drinks at the time of the incident. 23 On the part of Jinky, she testified in turn that her father was drunk
on the night of December 9, 1994. 24
Accused-appellant claimed that he learned to drink liquor after his wife died on August 28, 1991. Prior
to his wifes death, he was not used to drinking alcoholic beverages. He later resorted to alcohol
whenever he would remember his deceased wife, but he allegedly drank only once in a while.
Accused-appellant also opined that Jacqueline and Jinky have filed their respective complaints in
order to get back at him for castigating or whipping them whenever they committed mistakes.
In view of the gravity of the crimes charged and of the penalty imposable therefor, we patiently
considered and thoroughly deliberated on all the arguments and defenses presented by defendantappellant not only in his brief but even in his memorandum before the trial court, with all the possible
implications and possibilities thereof, no matter how specious and ridiculous some of them may
appear to be. We have likewise taken into account the socio-economic status and the apparent
intellectual level of accused-appellant as may be gleaned from the record.
After much thought and reflection, we find no reason to depart from the judgment of the court a quo.
On its own, the defense presented by accused-appellant before the lower court is pitifully and
completely unavailing. In law and in truth, he neither denied the charges against him nor raised any
absolutory cause in his defense. His feeble excuse of having been under the influence of liquor in
order to disclaim knowledge of his felonious acts does not inspire belief at all. The defense did not
even comply with the evidentiary elements whereby he could claim intoxication as a mitigating
circumstance. The categorical and untraversed testimonies of his daughters as to how he committed
the bestial outrage, and their identification of accused-appellant as their defiler, remain uncontroverted
and fully establish the charges.
Accused-appellants pretext that he could not remember the events of March 28, 1992 and December
9, 1994 is rendered more effete in light of the arguments in his memorandum 25 submitted before the
lower court. There, he claimed exemption from criminal liability on the ground of insanity brought
about by intoxication, invoking therefor some dicta in American jurisprudence.
We have held that the law presumes every man to be sane. A person accused of a crime who pleads the
exempting circumstance of insanity has necessarily the consequence burden of proving it. 26 Further,
in order that insanity may be taken as an exempting circumstance, there must be complete depreciation
of intelligence in the commission of the act or that the accused acted without the least discernment.
Mere abnormality of his mental faculties does not preclude imputability. 27
Accused-appellant has utterly failed to overthrown the presumption of sanity. The defense did not
present any expert witness, any psychiatric evaluation report, or any psychological findings or
evidence regarding his mental condition at the time of the commission of the offenses. Accusedappellants charade of amnesia is evidently a desperate gambit for exculpation. Yet, amnesia, in and of
itself, is no defense to a criminal charge unless it is shown by competent proof that the accused did not
know the nature and quality of his action and that it was wrong. Failure to remember is in itself no
proof of the mental condition of the accused when the crime was performed. 28
Also in the same memorandum, Accused-appellant posits that he cannot be prosecuted for rape in
Criminal Case No. 2386 because the criminal complaint of Jinky only accuses him of frustrated rape.
With such a charge, he argues that the trial courts jurisdiction to punish him is limited only to said
offense and cannot cover consummated rape.
This is a meritless argument. When it is said that the ruling of the complaint by the offended party in
cases of rape is jurisdictional, what is meant is that it is the complaint that starts the prosecutory
proceeding, but it is not complaint which confers jurisdiction on the court to try the case. The courts
jurisdiction is vested in it by the Judiciary Law. 29 Since the penalty for the rape in Criminal Case No.
2387 is properly within the jurisdiction of the regional trial court, 30 then Branch 18 of the Regional
Trial Court of Ilagan, Isabela may hear and try the offense charged in the information and impose the
punishment for it.
In People v. Bangalao, Et Al., 31 we convicted an accused of rape committed against a minor as
charged in the information, despite the allegation in the complaint that the rape was committed
through force and intimidation, on this ratiocination:chanrob1es virtual 1aw library
It must be borne in mind that Complaints are prepared in municipalities, in most cases without the
advice or help of competent counsel. When the case reaches the Court of First Instance, the Fiscal
usually conducts another investigation, and thereafter files the information which the results thereof
justify. The right and power of the court to try the accused for the crime of rape attaches upon the
filing of the complaint, and a change in the allegations thereof as (to) the manner of committing the
crime should not operate to divest the court of jurisdiction already acquired.
In his brief, 32 accused-appellant contends that his guilt has not been proved beyond reasonable doubt
by the prosecution. In support of this lone assignment of error, he seeks to capitalize, among others, on
the failure of Jacqueline to immediately report the crime. Such failure, appellant contends, renders
doubtful the truth of her accusation.
The failure of complainant Jacqueline to immediately report the incident to the authorities does not
necessarily cast doubt on the credibility of the charge in Criminal Case No. 2386. It is a settled
decisional rule that delay in reporting a rape case committed by a father against his daughter due to
threats is justified. 33 In the numerous cases of rape that have reached this Court, we find that it is not
uncommon for young girls to conceal, for some time, the assaults on their honor because of the
rapists threat on their lives. 34
In many instances, rape victims simply suffer in silence. With more reason would a girl ravished by
her own father keep quiet about what befell her. Furthermore, it is unfair to judge the action of
children who have undergone traumatic experiences by the norms of behavior expected of mature
individuals under the same circumstance. 35
In People v. Melivo, 36 we declared that:chanrob1es virtual 1aw library
. . . Delay in reporting rape incidents, in the face of threats of physical violence, cannot be taken
against the victim. A rape victims actions are oftentimes overwhelmed by fear rather than by reason.
It is this fear, springing from the initial rape, that the perpetrator hopes to build a climate of extreme
psychological terror, which would, he hopes, numb his victim into silence and submissiveness.
Incestuous rape magnifies this terror, because the perpetrator is a person normally expected to give
solace and protection to the victim. Furthermore, in incest, access to the victim is guaranteed by the
blood relationship, proximity magnifying the sense of helplessness and the degree of fear.
This Court further trenchantly observed in the same decision that: chanrob1es virtual 1aw library
In all of these and other cases of incestuous rape, the perpetrator takes full advantage of his blood
relationship, ascendancy and influence over the victim, both to commit the sexual assault and to
intimidate the victim into silence. Unfortunately for some perpetrators of incestuous rape, their victims
manage to break out from the cycle of fear and terror. In People v. Molero we emphasized that "an
intimidated person cowed into submitting to a series of repulsive acts may acquire some courage as
she grows older and finally state that enough is enough, the depraved malefactor must be
punished."cralaw virtua1aw library
We cannot therefore expect young Jacqueline to disregard the threat to her life and immediately cry
rape in the face of the threats of her father and his constant presence in their home.
Accused-appellant next asserts in his brief that Jacqueline filed her complaint in Criminal Case No.
2386 only out of sympathy with, and by way of revenge for what her father had done to, her younger
sister. We find it opportune to discuss, together with this contention, the lame excuse of the defense
before the trial court that Jacqueline and Jinky filed their complaints because they suffered beatings
from Accused-Appellant. We find that the motive imputed to the sisters are grossly implausible and
insufficient to make them falsely charge their own father. It is highly inconceivable that they would
claim having been raped just because their father spanks them whenever they commit mistakes.
Mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a
charge that would only bring shame and humiliation upon them and their own family and make them
the object of gossip among their classmates and friends. It is unbelievable that Jacqueline would
fabricate a serious criminal charge just to get even with her father and to empathize with her sister.
The sisters would not contrive stories of defloration and charge their own father with rape unless these
stories are true. For that matter, no young Filipina of decent repute would falsely and publicly admit
that she had been ravished and abused considering the social stigma thereof. 37
At their tender age, Jacqueline and Jinky needed sustenance and support from their father. They
certainly were aware that they would be deprived of a provider their accusations against him are
proven. In fact, the consequences of filing a case of rape are so serious that an ordinary woman would
have second thoughts about filing charges against her assailant. It requires much more for a thirteenyear old or a twelve-year old provincial lass to devise a story of rape, have her private parts examined,
subject herself to the indignity of a public trial and endure a lifetime of ridicule. Even when consumed
with revenge, it takes a certain amount of psychological depravity for a young woman to concoct a
story which would at the least put her own father for the rest of his remaining life in jail and drag
herself and the rest of her family into a lifetime of shame. 38
Thus, the unfounded claim of evil motives on the part of the victims would not destroy the credibility
reposed upon them by the trial court because, as we have held, a rape victims testimony is entitled to
greater weight when she accuses a close relative of having raped her, as in the case of a daughter
against her father. 39 Furthermore, the testimony of the victim who was only twelve years old at the
time of the rape as to the circumstances thereof must be given weight, for it is an accepted rule that
testimonies of rape victims who are young and of tender age are credible. 40
Accused-appellant also faults the trial court for not duly appreciating the testimony of Jinky to the
effect that he only attempted to rape her and then desisted after she felt some pain. In relation to this,
appellant maintains that there was no rape in Criminal Case No. 2387 because of the absence of
lacerations on Jinkys vagina as found after medico legal examination.
It is axiomatic in criminal law that in order to sustain a conviction for rape, full penetration of the
female genital organ is not required. It is enough that there is proof of the entrance of the male organ
within the labia of the pudendum of the female organ. Penetration of the penis by entry into the lips of
the vagina, even without rupture or laceration of the hymen, suffices to warrant conviction for rape.
The rupture of the hymen or laceration of any part of the womans genitalia is not indispensable to a
conviction for rape. Thus, a finding that the victims hymen is intact and has no sign of laceration does
not negate a finding that rape was committed. 41
Jinky, being young and unschooled in the ways of the law, may have entertained the notion that
complete penile penetration is necessary when she declared that her father only attempted to rape her.
She was, of course, not in any position to legally distinguish consummated from attempted rape. This
matter concerns a conclusion of law addressed to the judgment of the courts. The declaration of Jinky
that her father inserted his penis into her vagina and the finding of swelling in her labia are enough to
prove that rape was committed as these are telltale signs of entry into the vaginal lips.
Accused-appellant contends in his memorandum that the prosecution failed to prove the employment
of force and intimidation against complainants in both criminal cases. Corollary to his reliance on the
absence of force or intimidation, he asseverates in his brief that the absence of resistance from Jinky
suffices to hold that the sexual intercourse was voluntary. The defense then begs for this Courts
liberality in considering that Jinky was moved to engage in copulation by a spirit of
adventurousness.chanrobles lawlibrary : rednad
There is no doubt that the appellant had carnal knowledge of his two daughters. The fact of sexual
intercourse was indubitably shown by the testimonies of the complainants, the medical report and
testimony of Dr. Fontanares, and even by the alternative submission of appellant that his sexual
intercourse with Jinky was consensual. Clinging to his vain hope for acquittal, he then claims that the
element of force or intimidation essential in rape is lacking in the cases filed against him.
In direct refutation of appellants theory, we once again declare that in incestuous rape, it is not
necessary that actual force and intimidation be employed. It is sufficient that the accused exercised a
pervasive influence and control over the victim. 42 Even if there was no violence employed in the
sexual congress, the moral influence of appellant over the complainant suffices to constitute it into the
crime of rape. 43
In People v. Mabunga, 44 where we convicted the accused for raping his thirteen-year old daughter,
we held that:chanrob1es virtual 1aw library
. . . Hence, even assuming that force or intimidation had not been actually employed, the crime of rape
was nevertheless committed. The absence of violence or offer of resistance would not be significant
because of the overpowering and overbearing moral influence of the father over the daughter which
takes the place of violence and offer of resistance required in rape cases committed by an accused
having no blood relationship with the victim.
The rationale for such a ruling can be found in our discourse in People v. Matrimonio 45 to the effect
that:chanrob1es virtual 1aw library
In a rape committed by a father against his own daughter, the formers moral ascendancy and
influence over the latter substitutes for violence or intimidation. That ascendancy or influence
necessarily flows from the fathers parental authority, which the Constitution and the laws recognize,
support and enhance, as well as from the childrens duty to obey and observe reverence and respect
towards their parents. Such reverence and respect are deeply ingrained in the minds of Filipino
children and are recognized by law. Abuse of both by a father can subjugate his daughters will,
thereby forcing her to do whatever he wants.
Thus two forms of intimidation under Article 335 of the Revised Penal Code were recognized in
matrimonio, that is (1) threats and (2) overpowering moral influence. Accused-appellant exercised
such moral influence over herein complainants. Being the victims father, Accused-appellant had that
moral ascendancy and influence over his daughters which, in itself, was sufficient to intimidate and
force them to submit to his desires. 46 The fact that no resistance was offered by Jinky did not any
way qualify the coitus as freely consented to by her. Judging accused-appellants threats and
intimidation in the context of Jinkys understanding at the time of the rape, it can readily be concluded
that her will to resist was overcome by her fathers strong parental authority.
As we held in the aforecited case of Mabunga, in case the manner, form and tenacity of resistance of
the victim therein are dependent on a number of factors, among which are the age and size of the
victim, as well as of the aggressor himself; the degree of actual force and intimidation employed; and,
of utmost importance, the relationship between the rapist and his prey. Complementary thereto, we
ruled in People v. Navarrete 47 that
It must be emphasized also that considering the relationship between father and daughter, the degree
of force or intimidation need not be the same as in other cases of rape where the parties involved have
no relationship at all with each other; because the father exercises strong moral and physical control
over his daughter.
Parenthetically, we digress to observe that for rape to exist it is not necessary that the intimidation
employed be so great or of such character as could not be resisted. It is only necessary that the
intimidation be sufficient to consummate the purpose which the accused had in mind. Intimidation
must be viewed in light of the victims perception and judgment at the time of rape and not by any
hard and fast rule. It is therefore enough that it produces fear fear that if the victim does not yield to
the bestial demands of the accused, something would happen to her at the moment or thereafter, as
when she is threatened with death if she reports the incident. Intimidation would also explain why
there are no traces of struggle which would indicate that the victim fought off her attacker. 48
With the previous beatings Jinky received from accused-appellant, resistance could not have been
expected from her. She dared not risk another whipping from her father should she defy his advances.
Coupled with the respect demanded from Jinky by her father no matter how unreasoning, the gap
between their ages, and Jinkys own youthful immaturity, the lack of resistance from Jinky becomes
easily understandable. And, if resistance would after all be futile because of continuing intimidation,
as in the strong moral dominance of accused-appellant, then offering none at all would not mean
consent to the assault as to make the victims participation in the sexual act voluntary. 49
The insistence of accused-appellant that Jinky consented to his advances is downright ridiculous. It is
hard to believe that a daughter would simply give in to her fathers lascivious designs had not her
resistance been overpowered. 50 If Jinky had consented to the sexual intercourse, she would have kept
it to herself and not denounce it immediately as rape. Jinkys crying during the sexual act, and her
evasion of her fathers advances the following day, belie his pretense that she voluntarily participated
in the intercourse. There is no showing whatsoever that complainant Jinky is a sexually perverted
woman or one of extremely loose morals.
Consent obtained by fear of personal violence is no consent at all. Though a man puts no hand on a
woman, yet if by the use of mental and moral coercion the accused so overpowers her mind out of fear
that as a result she dare not resist the dastardly act inflicted on her person, Accused is guilty of the
crime imputed to him. 51 On the other hand, it is hard to accept that Jinky was that audacious as to
seek and satisfy worldly pleasures from her own father. To cite Navarrete again, no daughter in her
right mind would voluntarily submit herself to her own father unless there was force or intimidation,
as a sexual act between a father and a daughter is extremely revolting.
On the matter of the imposable penalties in the crime of rape when attended by modifying
circumstances, it is opportune to make some clarifications in light of succeeding amendments to
Article 335 of the Code. With respect to simple rape, whether in the original codal provision or after
the amendments thereto, the penalty being the single indivisible penalty of reclusion perpetua is not
affected by the presence of ordinary mitigating or aggravating circumstances. However, under the
amendments introduced by Republic Act No. 4111 consisting of the so-called "qualified" form of rape
committed with the use of a deadly weapon or by two or more persons, or when an attempted or
frustrated rape is accompanied by homicide, for which the penalty is reclusion perpetua to death, the
presence of generic mitigating or aggravating circumstances will determine whether the lesser or the
higher penalty will be imposed. 52
Republic Act No. 7659 has added seven more attendant circumstances which, in effect also create
other variants of "qualified" rape punishable with the single indivisible penalty of death. In line with
the immediately preceding observation, the presence of ordinary mitigating or aggravating
circumstances would be of no moment since the death penalty shall be imposed regardless of the
number of any of them. 53 The only possible basis for a reduction of such penalty under the rules for
graduating penalties under the Code is the presence of a privileged mitigating circumstance. 54
Now, it used to be the accepted doctrine that in crimes against chastity, such as rape, relationship was
always aggravating. 55 However, among the "qualifying" circumstances introduce; by Republic Act
No. 7659 is the situation when the victim is under eighteen years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or
the common-law spouse of the parent of the victim. Obviously, in such a factual milieu, relationship
having been used as an element in that "qualified" form of rape, the same circumstance cannot be used
again to aggravate the penalty to be imposed on the offender. 56
In the case at bar, therefore, relationship cannot be applied as an aggravating circumstance. However,
we are persuaded to affirm the attendance of intoxication as an aggravating circumstance on the
additional finding that it was habitual on the part of Accused-Appellant. Indeed, he admitted in his
memorandum 57 that he took liquor to forget the memory of his wife ever since she died on August
28, 1991. Such admission, together with the declarations of his daughters and his own testimony in
court that he was also inebriated on the two occasions when he separately raped the victims,
reasonably yields the inference that accused-appellant was a habitual drunkard.
Yet, even on the remote assumption ex gratia argumenti that intoxication can be considered as a
mitigating circumstance in his favor, its presence would not affect the two penalties imposed by the
court below. Being indivisible penalties, reclusion perpetua and death must be applied by the courts
regardless of any mitigating or aggravating circumstances that may have attended the commission of
the deed. The rule, however, is slightly different with respect to the civil liability. chanrobles.com.ph
: virtual law library
On this point, we note that the lower court did not award moral and exemplary damages to either
Jacqueline or Jinky Tabugoca. Having suffered wounded feelings and social humiliation, 58
Jacqueline is entitled to an award of moral damages therefor. 59 In view of the presence of an
aggravating circumstance, exemplary damages should also be awarded to her. 60 An appellate
proceeding in a criminal case, whether at the instance of the accused or by mandatory provision of
law, throws the whole case open for review, hence this modification by reason of the oversight of the
trial court.
On the other hand, while Jinky is entitled to actual or compensatory damages, no moral damages may
be awarded to her because no sufficient evidence was introduced in the court a quo which would have
entitled her thereto. 61 However, exemplary damages can be awarded to her since she has been
correctly granted compensatory damages and the offense against her was committed with an
aggravating circumstance. 62
WHEREFORE, the judgment of Branch 18 of the Regional Trial Court of Ilagan, Isabela, in Criminal
Cases Nos. 2386 and 2387 is hereby AFFIRMED, with the modification that accused-appellant
Cresencio Tabugoca is further ordered (1) in Criminal Case No. 2386, to pay Jacqueline Tabugoca the
additional amounts of P25,000.00 as moral damages and P25,000.00 as exemplary damages; and (2) in
Criminal Case No. 2387, to pay Jinky Tabugoca the further amount of P25,000.00 by way of
exemplary damages.
Two Members of the Court voted to impose on appellant the penalty of reclusion perpetua.
In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act
No. 7659, upon the finality of this decision, let the records of this case be forwarded immediately to
the Office of the President of the Philippines for possible exercise of the pardoning power.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, Panganiban and Martinez, JJ., concur.
Endnotes:
1. Penned by Judge Juan A. Bigornia, Jr.
2. Original Record, Criminal Case No. 2386, p. 24.
3. Ibid., Criminal Case No. 2387, p. 21.
4. Original Records, Criminal Case No. 2386, p. 27, and Criminal Case No. 2387, p. 25.
5. Rollo, pp. 42-47.
6. People v. Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555; People v. Godoy, G.R. Nos. 115908-09, December 6, 1995, 250 SCRA
676,
7. Original Records, Criminal Case No. 2386, Exhibit E, p. 65, and Criminal Case No. 2387, Exhibit D, p. 46; TSN, June 7, 1995, p. 7 and July
25, 1995, p. 4.
8. TSN, November 15, 1995. p. 4.
9. Ibid., id., p. 7.
10. Ibid., June 7, 1995, pp. 5-26.
11. Original Record, Criminal Case No. 2386, Exhibit E, p. 65.
12. TSN, June 7, 1995, p. 21.
13. TSN, July 25, 1995, pp. 2-16.

14. Original Record, Criminal Case No. 2387, Exhibit D, p. 46.
15. TSN, June 7, 1995, pp. 17-18.
16. TSN, July 26, 1995, pp. 15-16.
17. Original Record, Criminal Case No. 2386, Exhibit A, p. 3.
18. Ibid., Criminal Case No. 2387, Exhibit A, p. 4.
19. TSN, June 14, 1995, pp. 3-18.
20. Ibid., Criminal Case No. 2386, Exhibit F, p. 2.
21. Ibid., Criminal Case No. 2387, Exhibit C, p. 2.
22. TSN, November 15, 1995, pp. 3-17.
23. Ibid., June 7, 1995, p. 24.
24. Ibid., July 25, 1995, p. 8.
25. Original Records, Criminal Case No. 2386, pp. 79-84, and Criminal Case No. 2387, pp. 54-58-B.
26. People v. Catanyag, G.R. No. 103974, September 10, 1993, 226 SCRA 293.
27. People v. So, G.R. No. 104664, August 28, 1995, 247 SCRA 708.
28. Thomas v. State, 310 S. W. 2d 358.
29. People v. Leoparte, G.R. No. 85328, July 4, 1990, 187 SCRA 190.
30. Section 20, Batas Pambansa Blg. 129.
31. 94 Phil. 354 (1954).
32. Rollo, pp. 30-41.
33. People v. Matrimonio, G.R. Nos. 82223-24, November 3, 1992, 215 SCRA 613.
34. People v. Mabunga, G.R. No. 96441, November 13, 1992, 215 SCRA 694; People v. Leoterio, G. R. Nos. 119405-06, November 21, 1996,
264 SCRA 608.
35. People v. Alimon, 87758, June 28, 1996, 257 SCRA 658.
36. G.R. No. 113029, February 8, 1996, 253 SCRA 347.
37. People v. Matrimonio, supra, Fn. 33; People v. Echegaray, G.R. No. 117472, June 25, 1996, 257 SCRA 561.
38. See People v. Melivo, supra, Fn. 36.
39. People v. Matrimonio, supra, Fn. 33; People v. Villanueva, G.R. Nos. 112164-65, February 28, 1996, 254 SCRA 22; People v. Gaban, G.R.
Nos. 116716-18, September 30, 1996, 262 SCRA 593.
40. See People v. Gagto, G.R. No. 113345, February 9, 1996, 253 SCRA 455.
41. People v. Pastores, Et Al., G.R. No. L-29800, August 31, 1971, 40 SCRA 498, People v. Gagto, supra, People v. Galimba, G.R. Nos.
111563-64, February 20, 1996, 253 SCRA 722.
42. People v. Dusohan, G.R. No. 97307, October 5, 1993, 227 SCRA 87.
43. People v. Bugarin, G.R. Nos. 110817-22 June 13, 1997.
44. Ante, Fn. 34.
45. Supra, Fn. 33.
46. See People v. Lucas, G.R. No. 80102, January 22, 1990, 181 SCRA 316.
47. G.R. No. L-43833, November 28, 1980, 101 SCRA 394.
48. People v. Caada, G.R. No. 112176, February 6, 1996, 253 SCRA 277.
49. People v. Bayani, G.R. No. 120894, October 3, 1996, 262 SCRA 660.
50. See People v. Lucas, supra., Fn. 46.
51. People v. Pea, Jr., G.R. No. 72354, June 30, 1987, 151 SCRA 638.
52. Article 63, Revised Penal Code.
53. The rule in Article 64(5) of the Code, which provides for the reduction of the penalty when there are two or more mitigating and no
aggravating circumstances, is applicable only when divisible penalties are involved.
54. See Articles 68 and 69, Revised Penal Code.
55. People v. Porras, 58 Phil. 578 (1933); People v. Lucas, supra, Fn. 46; People v. Dusohan, supra, Fn. 42; People v. Matrimonio, supra, Fn.
33.
56. Article 62 (5), Revised Penal Code.
57. Original Records, Criminal Case No. 2386, p. 80, and Criminal Case No. 2387, p. 55.
58. TSN, June 7, 1995, p. 21.
59. Article 2217, Civil Code.
60. Article 2230, id.
61. People v. Caballes and Mabini, G.R. Nos. 102723-24, June 19, 1997.
62. Articles 2230 and 2234, Civil Code.
ACCUDENT
EN BANC
[G.R. NO. 137347 - March 4, 2004]
PEOPLE OF THE PHILIPPINES, Appellee, v. PO3 FERDINAND FALLORINA Y
FERNANDO, Appellant.
DECISION
CALLEJO, SR., J.:
For automatic review is the Decision 1 of the Regional Trial Court of Quezon City, Branch 95,
convicting appellant PO3 Ferdinand Fallorina y Fernando of murder for the killing of eleven-year-old
Vincent Jorojoro, Jr. while the latter was flying his kite on top of a roof. The court a quo sentenced the
appellant to suffer the death penalty.
The accusatory portion of the Information charging the appellant with murder reads:
That on or about the 26th day of September 1998, in Quezon City, Philippines, the said accused, with
intent to kill, by means of treachery and taking advantage of superior strength, did then and there,
wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of
VINCENT JOROJORO, JR. y MORADAS, a minor, eleven (11) years of age, by then and there,
shooting him with a gun, hitting him on the head, thereby inflicting upon him serious and mortal
wound which was the direct and immediate cause of his death, to the damage and prejudice of the
heirs of the said offended party.
CONTRARY TO LAW.2
Upon arraignment on October 20, 1998, the appellant, with the assistance of counsel, pleaded not
guilty. Thereafter, trial ensued.
Case for the Prosecution3 rll

Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and Felicisima Jorojoro. The
family lived at Sitio Militar, Barangay Bahay Toro, Project 8, Quezon City. Vincent, nicknamed
"Hataw," was a grade three pupil whose education was sponsored by the Spouses Petinato, an
American couple, through an educational foundation.4 rll
The appellant was an officer of the Philippine National Police detailed in the Traffic Management
Group (TMG) based in Camp Crame, Quezon City, but was on detached service with the Motorcycle
Unit of the Metropolitan Manila Development Authority (MMDA).
At about 2:30 p.m. of September 26, 1998, Vincent asked permission from his mother Felicisima if he
could play outside. She agreed.5 Together with his playmate Whilcon "Buddha" Rodriguez, Vincent
played with his kite on top of the roof of an abandoned carinderia beside the road in Sitio Militar,
Barangay Bahay Toro. Beside this carinderia was a basketball court, where fourteen-year-old Ricardo
Salvo and his three friends, nicknamed L.A., Nono and Puti, were playing backan, a game of
basketball.
Ricardo heard the familiar sound of a motorcycle coming from the main road across the basketball
court. He was nonplussed when he looked at the person driving the motorcycle and recognized the
appellant. Ricardo knew that the appellant abhorred children playing on the roof of the carinderia and
berated them for it. His friend Ong-ong had previously been scolded by the appellant for playing on
the roof.
Ricardo called on Vincent and Whilcon to come down from the roof. When the appellant saw Vincent
and Whilcon, the former stopped his motorcycle and shouted at them, "Putang inang mga batang ito,
hindi kayo magsibaba d'yan!" After hearing the shouts of the appellant, Whilcon immediately jumped
down from the roof.6 Vincent, meanwhile, was lying on his stomach on the roof flying his kite.
When he heard the appellant's shouts, Vincent stood up and looked at the latter. Vincent turned his
back, ready to get down from the roof. Suddenly, the appellant pointed his .45 caliber pistol 7
towards the direction of Vincent and fired a shot. Vincent was hit on the left parietal area. He fell from
the roof, lying prostrate near the canal beside the abandoned carinderia and the basketball court.8
rll
Whilcon rushed to help Vincent up but was shocked when he saw blood on the latter's head. Whilcon
retreated and left his friend.9 The appellant approached Vincent and carried the latter's hapless body
in a waiting tricycle and brought him to the Quezon City General Hospital. Vincent was pronounced
dead on arrival.
Meantime, word reached Vincent's parents that their son was shot and brought to the hospital. They
rushed to the hospital, only to see their son's already lifeless body. The appellant was nowhere to be
found.
Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National Bureau of Investigation
(NBI) conducted an autopsy where he made the following findings:
Cyanosis, lips and nailbeds.
Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral aspect.
Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall, right side.
Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with irregular edges, abrasion collar
widest postero-inferiorly, located at the head, left parietal area, 9.0 cms. above and 8.0 cms. behind the
left external auditory meatus, directed forward upward and from left to right, involving the scalp,
fracturing the left parietal bone (punched-in), lacerating the left and right cerebral hemispheres of the
brain, fracturing the right parietal bone (punched-out), lacerating the scalp, making an Exit wound, 3.3
x 1.0 cms., stellate with everted and irregular edges, 12.0 cms. above and 2.0 cms. in front of the right
external auditory meatus.
Intracranial hemorrhage, subdural and subarachnoid, extensive, bilateral.
Scalp hematoma, fronto-parietal areas, bilateral.
Visceral organs, congested.
Stomach, one-fourth (1/4) filled with partially digested food particles.
CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10

Dr. Baluyot testified that the victim died from a single gunshot wound in the head. The bullet entered
the left upper back portion of the head (above the level of the left ear) 11 and exited to the right
side.12 Dr. Baluyot signed Vincent's certificate of death.13 rll
At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P. Aquino proceeded to the
scene of the shooting but failed to find the victim and the appellant. They proceeded to the Quezon
City General Hospital where they heard that the victim had died. They returned to the crime scene and
recovered an empty shell from a .45 caliber gun.14 rll
On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA Motorcycle Unit to which the
appellant was assigned on detached service, reported to the Sangandaan Police Station that the
appellant had not reported for duty.15 At 2:10 p.m. of September 29, 1998, Police Senior
Superintendent Alfonso Nalangan, the Regional Director of the PNP-TMG, NCR, surrendered the
appellant to the Sangandaan Police Station together with his .45 caliber pistol bearing Serial No.
AOC-38701.16 rll
Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the Department of Justice
where he was enrolled under its Witness Protection Program. He gave his sworn statement to NBI
Special Agent Roberto Divinagracia on September 29, 1998. 17 On the same date, P/Insp. Abelardo
Aquino wrote the Chief of the PNP Crime Laboratory Examination Unit requesting for the ballistic
examination of the .45 caliber pistol with Serial No. AOC-38701 and the empty shell of a .45 caliber
gun found at the scene of the shooting.18 Before noon on September 30, 1998, Divinagracia arrived
at the station and turned over two witnesses, Raymond Castro and Ricardo Salvo. He also turned over
the witnesses' sworn statements.19 On October 2, 1998, on orders of the police station
commander,20 Pajarillo took pictures of the crime scene, including the carinderia and the roof with
a bullet hole as part of the office filing. 21 He did not inform the prosecution that he took such
pictures, nor did he furnish it with copies thereof. However, the appellant's counsel learned of the
existence of the said pictures.
On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification Report No. FAIB-124-98
stating that:
FINDINGS:
Microscopic examination and comparison of the specimen marked "FAP" revealed the same individual
characteristics with cartridge cases fired from the above-mentioned firearm.
CONCLUSION:
The specimen marked "FAP" was fired from the above-mentioned caliber .45 Thompson Auto
Ordnance pistol with serial number AOC-38701.22
Vincent's family suffered mental anguish as a result of his death. As evidenced by receipts, they spent
P49,174 for the funeral.23
Case for the Appellant
The appellant denied shooting Vincent. He testified that at about 1:30 p.m. of September 26, 1998,
Macario Ortiz, a resident of Sitio San Jose, Quezon City, asked for police assistance; Macario's
brother-in-law was drunk and armed with a knife, and was creating trouble in their house. The
appellant's house was located along a narrow alley (eskinita) perpendicular to the main road. It was
200 meters away from Macario's house. 24 Responding to the call, the appellant took his .45 service
revolver, cocked it, put the safety lock in place and tucked the gun at his right waistline. He brought
out his motorcycle from the garage and slowly negotiated the bumpy alley leading to the main road.
Macario, who was waiting for him at the main road, called his attention to his revolver which was
about to fall off from his waist. The appellant got distracted and brought his motorcycle to the right
side of the road, near the abandoned carinderia where he stopped. As he stepped his right foot on the
ground to keep himself from falling, the appellant lost his balance and slipped to the right. At this
point, the revolver fell to the ground near his foot and suddenly went off. Bystanders shouted, " Ano
yon, ano yon, mukhang may tinamaan." He picked up his gun and examined it. He put the safety latch
back on and tucked it at his right waistline. He then told Macario to wait for a while to check if
somebody was really hit. He went near the abandoned carinderia and saw Vincent sprawled to the
ground. He picked up the bloodied child, boarded him on a tricycle on queue and instructed its driver,
Boy Candaje, to bring the boy to the hospital. 25 On board the tricycle were Jeffrey Dalansay and
Milbert Doring.
The appellant rode his motorcycle and proceeded to his mother's house in Caloocan City but did not
inform her of the incident. He then called his superior officer, Major Isidro Suyo, at the Base 103,
located at Roces Avenue, Quezon City. The appellant informed Major Suyo that he met an accident;
that his gun fell and fired; and, that the bullet accidentally hit a child. He also told his superior that he
might not be able to report for work that day and the following day. He assured his superior that he
would surrender later. He then went to Valenzuela City to the house of his friend PO3 Angelito Lam,
who was a motorcycle unit cop. The appellant stayed there for three days. He also visited friends
during that time.
On September 29, 1998, he went to the office of Major Suyo and surrendered his .45 caliber pistol.
Major Suyo accompanied and turned over the appellant to the commanding officer at Camp Crame,
Quezon City. The appellant was subjected to a neuro and drug test. He stated that the results of the
drug test were negative. The appellant was then referred to the Sangandaan Police Station for
investigation.26 The pictures27 of the crime scene were given to him by Barangay Tanod Johnny
Yaket, shown in one of the pictures pointing to a bullet hole. The appellant's testimony was
corroborated in pari materia by Macario Ortiz.
Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that at 1:30 p.m. of September
26, 1998, he was playing basketball at Barangay Bahay Toro, at the basketball court along the road
beside the chapel. With him were Ricardo, Puti and Nono. Vincent was on the rooftop of the
carinderia with Whilcon. While Puti was shooting the ball, an explosion ensued. He and Ricardo ran
beside the chapel near the basketball court. He looked back towards the basketball court and saw the
appellant, about 15 meters away from the canal, holding the prostrate and bloodied Vincent. He did
not see the appellant shoot Vincent. He did not report what he saw to the police authorities. He was
ordered by his father to testify for the appellant. He also testified that his mother was related to Daniel,
the appellant's brother.
On January 19, 1999, the trial court rendered judgment convicting the appellant of murder, qualified
by treachery and aggravated by abuse of public position. The trial court did not appreciate in favor of
the appellant the mitigating circumstance of voluntary surrender. The decretal portion of the decision
reads:
WHEREFORE, judgment is hereby rendered finding the accused PO3 Ferdinand Fallorina y Fernando
GUILTY beyond reasonable doubt of the crime of Murder defined in and penalized by Article 248 of
the Revised Penal Code, as amended by Republic Act No. 7659, and in view of the presence of the
aggravating circumstance of taking advantage by the accused of his public position (par. 1, Art. 14,
Revised Penal Code), is hereby sentenced to suffer the penalty of DEATH.
The accused is hereby ordered to indemnify the heirs of the late Vincent Jorojoro, Jr. the amounts of
P49,174.00, as actual damages; P50,000.00, as moral damages; P25,000.00, as exemplary damages;
and, P50,000.00, as death indemnity.
The accused is to pay the costs.
The .45 caliber pistol, service firearm (Exh. "R") of the accused, shall remain under the custody of the
Court and shall be disposed of in accordance with the existing rules and regulations upon the finality
of this decision.28
The appellant assigned the following errors for resolution:
1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING DUE CREDENCE TO RELEVANT
PHYSICAL EVIDENCE, WHICH IF CONSIDERED COULD HAVE ALTERED THE
CONCLUSIONS ARRIVED AT BY THE COURT AND THE OUTCOME OF THE CASE.
2. THE COURT A QUO SERIOUSLY ERRED BY OVERSTEPPING THE LINE OF JUDGING
AND ADVOCACY, AND GOING INTO THE REALM OF SPECULATION, PATENTLY
DEMONSTRATING BIAS AND PARTIALITY.
3. THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE TESTIMONY OF
RICARDO SALVO, ALLEGED PROSECUTION EYEWITNESS, WHOSE TESTIMONY IS

WANTING IN PROBABILITY, AS IT IS CONTRARY TO THE COMMON EXPERIENCE OF
MANKIND.
4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY APPRECIATING EXCULPATORY
AND INCULPATORY FACTS AND CIRCUMSTANCES WHICH SHOULD HAVE BEEN
CONSIDERED IN FAVOR OF THE ACCUSED.
5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE MITIGATING
CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED.
6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING
CIRCUMSTANCE OF TAKING ADVANTAGE OF HIS POSITION BY ACCUSED.29
The appellant asserts that the trial court failed to appreciate in his favor the physical evidence, viz., the
hole found on the rooftop of the carinderia where Vincent was when he was shot. The appellant
contends that the picture30 taken on October 2, 1998 by no less than SPO2 Felix Pajarillo, one of
the principal witnesses of the prosecution, and the pictures 31 showing Barangay Tanod Yaket
pointing to a hole on the roof buttress the defense of the appellant that the shooting was accidental.
The appellant maintains that his service revolver fell to the ground, hit a hard object, and as the barrel
of the gun was pointed to an oblique direction, it fired, hitting the victim who was on the rooftop. The
bullet hit the back portion of the victim's head, before exiting and hitting the rooftop. The appellant
posits that the pictures belie Ricardo's testimony that he deliberately shot the victim, and, instead,
complements Dr. Baluyot's testimony that the gunshot wound came from somewhere behind the
victim, somewhere lower than the point of entrance. The appellant invokes P/Insp. Mario Prado's
testimony that if a gun hits the ground in an oblique position, the gun will fire and the bullet will exit
in the same position as the gun, that is, also in an oblique position.
The Office of the Solicitor General, for its part, asserts that the contention of the appellant is based on
speculations and surmises, the factual basis for his conclusion not having been proven by competent
and credible evidence. There is no evidence on record that the hole shown in the pictures 32 was
caused by a bullet from a .45 caliber pistol. The appellant did not present Barangay Tanod Johnny
Yaket, who was shown in the pictures, to testify on the matter. The appellant failed to prove that any
slug was found on the rooftop or under the roof which came from the appellant's .45 caliber pistol.
According to the Solicitor General, the pictures relied upon by the appellant cannot overcome the
positive and straightforward testimony of the young eyewitness Ricardo Salvo.
We agree with the Office of the Solicitor General. Whether or not the appellant is exempt from
criminal liability is a factual issue. The appellant was burdened to prove, with clear and convincing
evidence, his affirmative defense that the victim's death was caused by his gun accidentally going off,
the bullet hitting the victim without his fault or intention of causing it; hence, is exempt from criminal
liability under Article 12, paragraph 4 of the Revised Penal Code which reads
The following are exempt from criminal liability: rbl r l l
lbrr
4. Any person who, while performing a lawful act with due care, causes an injury by mere accident
without fault or intention of causing it.
The basis for the exemption is the complete absence of intent and negligence on the part of the
accused. For the accused to be guilty of a felony, it must be committed either with criminal intent or
with fault or negligence.33 rll
The elements of this exempting circumstance are (1) a person is performing a lawful act; (2) with due
care; (3) he causes an injury to another by mere accident; and (4) without any fault or intention of
causing it.34 An accident is an occurrence that "happens outside the sway of our will, and although
it comes about through some act of our will, lies beyond the bounds of humanly foreseeable
consequences." If the consequences are plainly foreseeable, it will be a case of negligence.
In Jarco Marketing Corporation v. Court of Appeals,35 this Court held that an accident is a
fortuitive circumstance, event or happening; an event happening without any human agency, or if
happening wholly or partly through human agency, an event which under the circumstance is unusual
or unexpected by the person to whom it happens. Negligence, on the other hand, is the failure to
observe, for the protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand without which such other person suffers injury.
Accident and negligence are intrinsically contradictory; one cannot exist with the other. 36 In
criminal negligence, the injury caused to another should be unintentional, it being simply the incident
of another act performed without malice. 37 The appellant must rely on the strength of his evidence
and not on the weakness of that of the prosecution because by admitting having caused the death of
the victim, he can no longer be acquitted.
In this case, the appellant failed to prove, with clear and convincing evidence, his defense.
First. The appellant appended to his counter-affidavit in the Office of the Quezon City Prosecutor the
pictures showing the hole on the roof of the carinderia38 to prove that he shot the victim
accidentally. However, when the investigating prosecutor propounded clarificatory questions on the
appellant relating to the pictures, the latter refused to answer. This can be gleaned from the resolution
of the investigating prosecutor, thus:
Classificatory questions were propounded on the respondent but were refused to be answered. This
certainly led the undersigned to cast doubt on respondent's allegations. The defenses set forth by the
respondent are evidentiary in character and best appreciated in a full-blown trial; and that the same is
not sufficient to overcome probable cause.39
Second. The appellant did not see what part of the gun hit the victim. 40 There is no evidence
showing that the gun hit a hard object when it fell to the ground, what part of the gun hit the ground
and the position of the gun when it fell from the appellant's waist.
Third. In answer to the clarificatory questions of the court, the appellant testified that the chamber of
his pistol was loaded with bullets and was cocked when he placed it on his right waistline. 41 He
also testified that the gun's safety lock was on. He was asked if the gun would fire if the hammer is
moved backward with the safety lock in place, and the appellant admitted that even if he pulled hard
on the trigger, the gun would not fire:
Q &nbsp &nbsp &nbsp Is this your service firearm?chanroblesvirtualawlibrary
A &nbsp &nbsp &nbsp Yes, Your Honor.
Q &nbsp &nbsp &nbsp So the chamber might have been loaded when you went out of the house?
chanroblesvirtualawlibrary
Q &nbsp &nbsp &nbsp What about the hammer, how was the hammer at that time when you tucked
the gun in your waistline?chanroblesvirtualawlibrary
A &nbsp &nbsp &nbsp The hammer was cocked like this.
COURT:rbl r l l lbrr
Can you not stipulate that the hammer is moved backwards near the safety grip.
ATTY. AND PROS. SINTAY:rbl r l l lbrr
Admitted, Your Honor.
ATTY. PEREZ:rbl r l l lbrr
Yes, Your Honor.
COURT: (to the witness)
Q &nbsp &nbsp &nbsp You are a policeman, if there is a bullet inside the barrel of the gun and then
the hammer is moved backwards and therefore it is open, that means that if you pull the trigger, the
bullet will fire because the hammer will move forward and then hit the base of the bullet?
Q &nbsp &nbsp &nbsp Therefore,
the
gun
was
cocked
when
you
came
out?
Q &nbsp &nbsp &nbsp You did not place the safety lock before you went out of your house?
A &nbsp &nbsp &nbsp I safety (sic) it, sir.
Q &nbsp &nbsp &nbsp So when you boarded the motorcycle, the gun was on a safety lock?
Q &nbsp &nbsp &nbsp Will you please place the safety lock of that gun, point it upwards.
(witness did as instructed)
It is now on a safety locked (sic) ?chanroblesvirtualawlibrary
Q &nbsp &nbsp &nbsp Pull the trigger if the hammer will move
forward?
A &nbsp &nbsp &nbsp It will not, Your Honor.
COURT: (to the parties)
Q &nbsp &nbsp &nbsp Can you not admit that at this position, the accused pulled the trigger, the
hammer did not move forward?chanroblesvirtualawlibrary
PROS. SINTAY AND ATTY. PRINCIPE:rbl r l l lbrr
Admitted, Your Honor.
Q &nbsp &nbsp &nbsp And therefore at this position, even if I pull the trigger many times, a bullet
will not come out from the muzzle of the gun because the hammer is on a safety locked (sic) ?
Q &nbsp &nbsp &nbsp Even if I pushed it very hard, it will not fire the gun?
Q &nbsp &nbsp &nbsp Alright, I will ask you again a question. If the hammer of the gun is like this
and therefore it is open but it is on a safety lock, there is space between the safety grip which is found
below the hammer, there is a space, is it not?chanroblesvirtualawlibrary
Q &nbsp &nbsp &nbsp That even if I pushed the safety grip forward, like this.
The Court gave the gun to the accused for him to demonstrate.
(to the witness)
You push it forward in order to push the hammer. Hard if you want but do not remove the safety lock.
The witness tried to push the safety grip and it does not touch the hammer even if the hammer is
cocked.42
Fourth. The trial court was witness as the appellant's counsel himself proved that the defense proffered
by the appellant was incredible. This can be gleaned from the decision of the trial court:
3. More importantly, and which the Court considers it as providential, when the counsel of the accused
was holding the gun in a cocked position and the safety lock put in place, the gun accidentally dropped
on the cemented floor of the courtroom and the gun did not fire and neither was the safety lock moved
to its unlock position to cause the hammer of the gun to move forward. The safety lock of the gun
remained in the same position as it was when it dropped on the floor.43
Fifth. After the shooting, the appellant refused to surrender himself and his service firearm. He hid
from the investigating police officers and concealed himself in the house of his friend SPO3 Angelito
Lam in Valenzuela City, and transferred from one house to another for three days to prevent his arrest:
Q &nbsp &nbsp &nbsp So did you surrender that afternoon of September 26, 1998?
A &nbsp &nbsp &nbsp No, Your Honor.
Q &nbsp &nbsp &nbsp I thought
you
were
surrendering
to
Major
A &nbsp &nbsp &nbsp I was but I was not able to surrender to Major Suyo, Your Honor.
Suyo?
&nbsp
&nbsp
&nbsp
Why,
you
were
already
able
to
talk
to
Major
Suyo?
A &nbsp &nbsp &nbsp Because at that time I was already confused and did not know what to do,
Your Honor.
ATTY. PRINCIPE: (to the witness)
Q &nbsp &nbsp &nbsp What is your relation with PO3 Angelito Lam of Valenzuela?
A &nbsp &nbsp &nbsp Just my co-motorcycle unit cop in the TMG, sir.
Q &nbsp &nbsp &nbsp Did I hear you right that you slept at the residence of PO3 Lam for three days?
A &nbsp &nbsp &nbsp Yes, sir.
Q &nbsp &nbsp &nbsp Why instead of going home to your residence at Bahay Toro?
A &nbsp &nbsp &nbsp Because I am worried, sir.
Q &nbsp &nbsp &nbsp So what did you do for three days in the house of PO3 Lam?
A &nbsp &nbsp &nbsp During daytime, I go to my friends, other friends and in the evening, I go back
to the house of PO3 Lam, Your Honor.
Q &nbsp &nbsp &nbsp So if you were able to visit your friends on September 27 or 28, 1998 and then
returned to the house of PO3 Lam in the evening, why did you not go to Major Suyo or to your 103
Base?chanroblesvirtualawlibrary
A &nbsp &nbsp &nbsp Your Honor, during those days I am really calling Major Suyo.
Q &nbsp &nbsp &nbsp Why did you not go to your office at Camp Crame, Quezon City?
A &nbsp &nbsp &nbsp At that time, I did not have money, Your Honor.
Q &nbsp &nbsp &nbsp What is the connection of you having money to that of informing your officer
that you will surrender?chanroblesvirtualawlibrary
A &nbsp &nbsp &nbsp What I know, Your Honor, is that if I do that I will already be detained and
that I will have no money to spend.
Q &nbsp &nbsp &nbsp Mr. Witness, from the time of the incident up to Sept. 29, 1998, you did not
even visit your family in Barangay Bahay Toro?chanroblesvirtualawlibrary
A &nbsp &nbsp &nbsp No, sir.
Q &nbsp &nbsp &nbsp Did you send somebody to visit your family? chanroblesvirtualawlibrary
A &nbsp &nbsp &nbsp No, Your Honor.
Q &nbsp &nbsp &nbsp Did you cause to blotter the shooting incident of Vincent?
A &nbsp &nbsp &nbsp I was not able to do that, sir.
Q &nbsp &nbsp &nbsp You did not even talk to the Bgy. Officials in Bgy. Bahay Toro?
A &nbsp &nbsp &nbsp No sir, because I already brought the child to the hospital.44
The conduct of the appellant after the shooting belies his claim that the death of the victim was
accidental and that he was not negligent.
We agree with the encompassing disquisitions of the trial court in its decision on this matter:
The coup de grace against the claim of the accused, a policeman, that the victim was accidentally shot
was his failure to surrender himself and his gun immediately after the incident. As a police officer, it is
hard to believe that he would choose to flee and keep himself out of sight for about three (3) days if he
indeed was not at fault. It is beyond human comprehension that a policeman, who professes innocence
would come out into the open only three (3) days from the incident and claim that the victim was
accidentally shot. Human behavior dictates, especially when the accused is a policeman, that when one
is innocent of some acts or when one is in the performance of a lawful act but causes injury to another
without fault or negligence, he would, at the first moment, surrender to the authorities and give an
account of the accident. His failure to do so would invite suspicion and whatever account or statement
he would give later on becomes doubtful.
For the accused, therefore, to claim that Vincent was accidentally shot is odious, if not, an insult to
human intelligence; it is incredible and unbelievable, and more of a fantasy than a reality. It was a
deliberate and intentional act, contrary to accused's claim, that it happened outside the sway of his
will.45
It is a well-entrenched rule that findings of facts of the trial court, its calibration of the testimonies of
the witnesses, its assessment of the credibility of the said witnesses and the probative weight of their
testimonies are accorded high respect, if not conclusive effect by the appellate court, as the trial judge
was in a better position to observe the demeanor and conduct of the witnesses as they testified. 46
We have carefully reviewed the records of the case and found no reason to deviate from the findings
of the trial court.
The testimony of prosecution witness Ricardo Salvo deserves credence. He testified in a positive and
straightforward manner, which testimony had the earmarks of truth and sincerity. Even as he was
subjected to a grueling cross-examination by the appellant's counsel, he never wavered in his
testimony. He positively identified the appellant as the assailant and narrated in detail how the latter
deliberately aimed his gun and shot the victim. The relevant portions of his testimony are quoted:
Q: &nbsp &nbsp &nbsp While playing basketball with Nono, LA and Puti, do you remember of any
unusual incident which took place?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp Yes, sir.
Q: &nbsp &nbsp &nbsp What was that unusual incident?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp When Vincent was shot, sir.
Q: &nbsp &nbsp &nbsp Who shot Vincent?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp Ferdinand Fallorina, sir.
Q: &nbsp &nbsp &nbsp And in what place that Vincent was shot by Fallorina?
A: &nbsp &nbsp &nbsp He was at the roof of the karinderia, sir.
Q: &nbsp &nbsp &nbsp Was there any companion of Vincent?chanroblesvirtualawlibrary
Q: &nbsp &nbsp &nbsp What was the position of Vincent at that time that you saw him and Fallorina
shot him?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp "Nakatalikod po siya."
Q: &nbsp &nbsp &nbsp You included in this Exhibit O your drawing the figure of a certain Jeffrey
and you and his tricycle? Why did you include this drawing? chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp Because it was in the tricycle where Vincent was boarded to and brought to
the hospital.
(Witness referring to Exhibit O-11)
Q: &nbsp &nbsp &nbsp And who was the driver of that tricycle? chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp It was Jeffrey who drove the tricycle, sir.
Q: &nbsp &nbsp &nbsp You also drew here a motorcycle already marked as Exhibit O-7. Why did
you include the motorcycle?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp Because Fallorina was riding on that motorcycle at that time.
Q: &nbsp &nbsp &nbsp So when Ferdinand Fallorina shot the boy, the motorcycle was moving?
A: &nbsp &nbsp &nbsp It was stationary, your Honor.
Q: &nbsp &nbsp &nbsp Did you see where he came from, I am referring to Fallorina before you saw
him shot the boy?chanroblesvirtualawlibrary

A: &nbsp &nbsp &nbsp He came from their house, Your Honor.
Q: &nbsp &nbsp &nbsp What was his attire, I am referring to Ferdinand Fallorina?
A: &nbsp &nbsp &nbsp He was wearing white shirt and blue pants, Your Honor.
Q: &nbsp &nbsp &nbsp At that time that Fallorina shot the victim, was Buddha still there?
A: &nbsp &nbsp &nbsp He ran, sir. He jumped in this place, sir.
(Witness is pointing to a place near the canal already marked as Exhibit O-14).
Q: &nbsp &nbsp &nbsp Now from the witness stand that you are now seated. Can you tell the Court
how far where (sic) you from Fallorina at that time of the shooting? chanroblesvirtualawlibrary
Can the prosecution and the accused stipulate that the distance pointed to by the witness is more or
less 7 meters.
Q: &nbsp &nbsp &nbsp How about the distance of Fallorina from Vincent, can you tell that?
Can you point a distance between Fallorina and the boy at that time the body (sic) was shot?
10 meters more or less?chanroblesvirtualawlibrary
Q: &nbsp &nbsp &nbsp How long have you known Ferdinand Fallorina before the incident?
A: &nbsp &nbsp &nbsp More or less two years, sir.
Q: &nbsp &nbsp &nbsp Why do you know him? chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp I usually see him in that place at Sitio Militar, especially on Sundays, sir.
Q: &nbsp &nbsp &nbsp How many shots did you hear?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp Only one, sir.
Q: &nbsp &nbsp &nbsp Do you recognize the gun used by Fallorina? chanroblesvirtualawlibrary
Q: &nbsp &nbsp &nbsp What was that gun?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp .45 cal., sir.
Q: &nbsp &nbsp &nbsp Are you familiar with .45 cal.?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp No, sir.
Q: &nbsp &nbsp &nbsp Why do you know that it was .45 cal.?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp Because that kind of gun, I usually see that in the movies, sir.
Q: &nbsp &nbsp &nbsp Ricardo, you said that you have known Fallorina for two (2) years and you
saw him shot Vincent on September 26, 1998 at around 2:30 in the afternoon. Please look around the
courtroom now and point at the person of PO3 Ferdinand Fallorina?chanroblesvirtualawlibrary
CT. INTERPRETER:rbl r l l lbrr
Witness is pointing to a male person the one seated at the back of the lady and wearing a yellow shirt
and maong pants and when asked of his name, he stated his name as Ferdinand Fallorina.
Q: &nbsp &nbsp &nbsp Can you tell to the Court whether you heard utterances at that time that he
shot the victim?chanroblesvirtualawlibrary
Q: &nbsp &nbsp &nbsp What was that?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp "Putang inang mga batang ito, hindi kayo magsisibaba diyan!"
Q: &nbsp &nbsp &nbsp After Fallorina shot Vincent Jorojoro, you saw Vincent Jorojoro falling from
the roof, what about Fallorina, what did he do?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp He was still on board his motorcycle and then he went at the back of the
karinderia where Vincent fell, Your Honor.
Q: &nbsp &nbsp &nbsp And after he went at the back of the karinderia and looked at Vincent
Jorojoro, what did he do?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp He carried Vincent, Your Honor.
Q: &nbsp &nbsp &nbsp And after carrying Vincent, what did he do?chanroblesvirtualawlibrary
A: &nbsp &nbsp &nbsp He boarded Vincent in the tricycle.
Q: &nbsp &nbsp &nbsp What about the gun, what did he do with the gun?
A: &nbsp &nbsp &nbsp I do not know anymore.47

The appellant even uttered invectives at the victim and Whilcon before he shot the victim. In fine, his
act was deliberate and intentional.
It bears stressing that of the eyewitnesses listed in the Information as witnesses for the prosecution,
only Ricardo Salvo remained steadfast after he was brought under the Witness Protection Program of
the Department of Justice. He explained that the reason why he testified for the prosecution, despite
the fact that the appellant was a policeman, was because he pitied the victim's mother who was always
crying,48 unable to obtain justice for her son. We find no ill motive why Ricardo would falsely
testify against the appellant. It was only his purest intention of ferreting out the truth in this incident
and that justice be done to the victim. 49 Hence, the testimony of Ricardo is entitled to full faith and
credence.
The Crime Committed by the Appellant
We agree with the trial court that the appellant committed murder under Article 248 of the Revised
Penal Code qualified by treachery. As the trial court correctly pointed out, Vincent was shot
intentionally while his back was turned against the appellant. The little boy was merely flying his kite
and was ready to get down from the roof when the appellant fired a shot directed at him. The essence
of treachery is the sudden and unexpected attack on an unsuspecting victim without the slightest
provocation on his part.50 Nonetheless, Vincent was an eleven-year-old boy. He could not possibly
put up a defense against the appellant, a police officer who was armed with a gun. It is not so much as
to put emphasis on the age of the victim, rather it is more of a description of the young victim's state of
helplessness.51 Minor children, who by reason of their tender years, cannot be expected to put up a
defense. When an adult person illegally attacks a child, treachery exists. 52 The abuse of superior
strength as alleged in the Information is already absorbed by treachery and need not be considered as a
separate aggravating circumstance.53 rll
We, however, note that the trial court appreciated the aggravating circumstance of abuse of public
position in this case. We reverse the trial court on this score.
There is no dispute that the appellant is a policeman and that he used his service firearm, the .45
caliber pistol, in shooting the victim. However, there is no evidence on record that the appellant took
advantage of his position as a policeman when he shot the victim. 54 The shooting occurred only
when the appellant saw the victim on the rooftop playing with his kite. The trial court erred in
appreciating abuse of public position against the appellant.
The trial court did not, however, err in ruling that the appellant is not entitled to the mitigating
circumstance of voluntary surrender. Surrender is said to be voluntary when it is done by the accused
spontaneously and made in such a manner that it shows the intent of the accused to surrender
unconditionally to the authorities, either because he acknowledges his guilt or he wishes to save them
the trouble and expense necessarily incurred in his search and capture.55 rll
In this case, the appellant deliberately evaded arrest, hid in the house of PO3 Lam in Valenzuela City,
and even moved from one house to another for three days. The appellant was a policeman who swore
to obey the law. He made it difficult for his brother-officers to arrest him and terminate their
investigation. It was only after the lapse of three days that the appellant gave himself up and
surrendered his service firearm.

Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to death.
Since there is no modifying circumstance in the commission of the crime, the appellant should be
sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal
Code.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Quezon City,
Branch 95, is AFFIRMED WITH MODIFICATION. The appellant PO3 Ferdinand Fallorina y
Fernando is found guilty beyond reasonable doubt of the crime of murder under Article 248 of the
Revised Penal Code and, there being no modifying circumstances in the commission of the crime, is
hereby sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay the heirs of the
victim Vincent Jorojoro, Jr. the amount of P49,174 as actual damages; P50,000 as moral damages;
P50,000 as civil indemnity; and P25,000 as exemplary damages.
SO ORDERED.
Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, and TINGA, JJ., concur.
Puno, J., on leave.
Panganiban,J., on official leave.
Endnotes:
THIRD DIVISION
[G.R. NO. 126171 - March 11, 2004]
PEOPLE OF THE PHILIPPINES, Appellee, v.
FEDERICO GENITA, JR. y CULTURA, Appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
Challenged in this appeal is the Decision 1 dated June 14, 1996 of the Regional Trial Court, Branch
4, Butuan City in Criminal Case No. 4954 finding Federico Genita, Jr., appellant herein, guilty beyond
reasonable doubt of two counts of murder and sentencing him to suffer reclusion perpetua for each
count.
Appellant was charged in an Information which reads:
"That on or about the evening of December 17, 1991 in Barangay Bugsukan, Butuan City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and
with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and shot with the use of a high powered firearm one Jesus Bascon thereby hitting him
on both legs, and Reynaldo Timbal who was hit on his head which caused their subsequent death." 2
On arraignment, petitioner pleaded "not guilty." Forthwith, trial ensued. The prosecution presented
Danilo Timbal, Vicente Olaco and Dr. Elsie Caballero as its witnesses. Appellant took the witness
stand for the defense.
The version of the prosecution is as follows: rbl r l l
lbrr
On December 17, 1991, at around 8:00 oclock in the evening, while the victims Reynaldo Timbal and
Jesus Bascon were loading firewood in a truck in Barangay Bugsukan, Butuan City, appellant who
was drunk and armed with an M-14 rifle, asked Reynaldo for a Christmas gift. Reynaldo told him to
just come back because they were still loading firewood. Appellant left the place. Not long after, he
returned and fired his gun at Jesus feet, hitting his left leg. He immediately jumped into the truck.
Appellant then went near its bumper and fired at the tire near the chassis. Then he changed the
magazine of his gun and fired again at Jesus, this time, hitting his right leg. Reynaldo ran away, his
right hand covering his head. Appellant chased him and fired at him, hitting his nape and right hand.
After the commotion, the victims co-workers who were able to take refuge from the cascade of bullets
returned to the scene and found the dead body of Reynaldo. Jesus was immediately brought to the
Butuan City General Hospital but died thereafter.3 rll
Dr. Elsie Caballero, City Health Officer of Butuan City, who conducted the post mortem examination
of the body of Reynaldo, found that he died of "shock, gunshot wound in the neck with avulsion of
brain tissues."4 On the other hand, the Death Certificate 5 issued by Dr. Raul Monton, Medical
Specialist II of the Butuan City General Hospital, attributed Jesus death to "compound fractures, (R) &
(L) Legs, and Hypovolemic Shock."
Appellant, relying on the exempting circumstance of accident as his defense, presented a different
version. He testified that he was a member of the Civilian Armed Forces Geographical Unit (CAFGU)
stationed at Bugsukan, Butuan City, hence, he was officially issued an M-14 rifle. On the evening of
December 17, 1991, while on his way to his camp, he saw a truck parked at the right side of the road
with its rear lights on. While approaching the vehicle, somebody grasped his neck. As a consequence,
he accidentally pulled the trigger of the M-14 rifle slung on his shoulder. The weapon automatically
fired. At this instance, his assailant set him free. Immediately he rushed to the camp and reported the
incident to Sgt. Montealto who placed the camp on alert. Appellant stayed in the camp during the
entire evening. The following morning, he learned that two persons were killed. 6 rll
On June 14, 1996, the trial court rendered the assailed Decision, the dispositive portion of which
reads:
"WHEREFORE, finding accused FEDERICO GENITA, JR. y CULTURA guilty beyond reasonable
doubt for the death of the two (2) victims:rbl r l l lbrr
(1) He is hereby sentenced to reclusion perpetua with its accessory penalties for the death of Reynaldo
Timbal which penalty entails imprisonment for at least thirty (30) years.
(2) For the death of Jesus Bascon, the said accused, FEDERICO GENITA, JR. y CULTURA is also
sentenced to another penalty of reclusion perpetua with its accessory penalties which penalty entails
another imprisonment of at least thirty (30) years.
Both sentences shall be served by the accused successively at the Davao Prison and Penal Farm at
Panabo, Davao del Norte.
Accused is also ordered to indemnify the Heirs of Reynaldo Timbal the sum of Fifty Thousand
(P50,000.00) pesos and another Fifty Thousand (P50,000.00) pesos for the Heirs of Jesus Bascon plus
costs of suit.
IT IS SO ORDERED."7
Hence, this appeal anchored on the following assignments of error:
"I
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE
EXEMPTING CIRCUMSTANCE OF ACCIDENT INTERPOSED BY THE ACCUSEDAPPELLANT
"II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF THE PROSECUTION TO PROVE
ITS ATTENDANCE ON THE ASSUMPTION THAT THE KILLING OF THE VICTIM WAS NOT
ACCIDENTAL."8
Appellant contends that he was performing a lawful act with due care when the victims were killed.
He was then on his way to the CAFGU station to report for duty. He had no intention to kill the
victims. He accidentally pulled the trigger of the rifle and the bullets hit the victims. Thus, he should
have been exempted from any criminal liability. Even assuming that he is liable for the death of the
victims, he contends that the trial court erred in appreciating the qualifying circumstance of treachery.
The Solicitor General maintains that considering the number of gunshot wounds inflicted on the
victims, the shooting could not have been an accident. Nonetheless, the Solicitor General agrees with
appellant that the qualifying circumstance of treachery was not sufficiently proven, stressing that the
latter was drunk when he approached Reynaldo. This should have put the victims on guard as it was
established during the hearing that appellant tends to be cantankerous and out of control when he is
drunk. Also, it was not proven that he consciously adopted the means of executing the crime.
Appellants version that he "accidentally shot" the two victims is incredible. Accident is an exempting
circumstance under Article 12 of the Revised Penal Code. It must be stressed that in raising this
defense, appellant has the burden of the evidence and it was incumbent upon him to establish that he
was exempt from criminal liability.9 He must show with clear and convincing proofs that: 1) he was
performing a lawful act with due care, 2) the injury caused was by a mere accident, and 3) he had no
fault or intention of causing the injury. Considering appellants evidence, it is clear that the requisites
of accident as an exempting circumstance were not proven. First, appellants manner of carrying his
M-14 rifle negates his claim of "due care" in the performance of an act. Knowing that his rifle was
automatic, he should have seen to it that its safety lock was intact. Worse, he admitted that his finger
was constantly on the trigger. With the safety lock released and his finger on the trigger, how can we
conclude that he acted with due care? We cannot accept his version that he was just following his
trainers instruction to release the safety lock while in a critical area. 10 For one, he never presented
his trainer to corroborate his statement; and for another, he was not in a critical area. Second, the
number of wounds sustained by the victims shows that the shooting was not merely accidental. Both
victims sustained more than one wound. While it could have been possible that the first wound
sustained by both victims was by accident, however, the subsequent wounds sustained by them in
different parts of their bodies could not have been similarly inflicted. And third, appellant manifested
an unmistakable intent to kill the victims when he reloaded his rifle after his first unsuccessful attempt
to kill them. Jesus had already sought refuge by jumping into the truck when another bullet hit his
right leg. Reynaldo was already running away when he was shot on his nape and right hand. That
appellant chased the victims and shot them several times clearly show that he had the intent to kill
them.11 His defense must necessarily fail.
Moreover, if it were true that someone attacked appellant, thus causing him to accidentally pull the
trigger of his rifle, then his natural reaction should have been to defend himself. Instead, he rushed
towards the camp. Furthermore, he did not present any evidence to support his allegation that the
CAFGU was placed on alert. And not a single witness corroborated his version of accidental shooting,
an indication that it is fabricated.
The trial court found the testimonies of the prosecution witnesses credible. We stamp our agreement to
such finding. Woven in the fabric of our jurisprudence is that the findings of the trial court are
accorded not only the highest respect, but also finality, unless some weighty circumstance has been
ignored or misunderstood but which could alter the result and could affect the judgment to be
rendered. Given the direct opportunity to observe the witness on the stand, the trial judge was in a
vantage position to assess the demeanor of the witnesses and determine if they were telling the truth or
not.12 Here, the trial court keenly observed:
"The defense counsel attempted to force into the mouth of the accused the answer counsel wanted
accused to respond to his questions. During the direct examination, for instance, defense counsel
propounded this question:rbl r l l lbrr
Atty. Dagani:
Q It appears from your testimony that while you were walking from your house to the camp, you
seemed to be prepared for fight, do you agree with me on that?
It is obvious that this leading question was propounded to explain why the finger of the accused was
on the trigger of the weapon. The attempt of the defense counsel to elicit the desired answer was
apparently to support the theory that the accused was on alert that evening with the safety lock of his
rifle released.
Pitted against the clear, positive and impressive account narrated by the prosecution witnesses, the
claim of accidental shooting is exposed of what it is a farce, an invention of the imagination."
Furthermore, the trial court found that the prosecution witnesses were not motivated by any ill desire
to implicate appellant with a serious charge. The absence of motive on their part lends more credence
to their testimonies.
However, we find that the trial court erred in finding that treachery exists in the commission of the
crime. There is treachery when the offender commits any of the crimes against persons employing
means, methods or forms in the execution thereof, which tend directly and especially to insure its
execution, without risk to himself arising from the defense which the offended party might make.
Thus, for the crime to be qualified by treachery the following elements must be proved: (1) the means
of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and
(2) the means of execution were deliberately or consciously adopted. 13 Treachery cannot be
presumed but must be proved by clear and convincing evidence or as conclusively as the killing itself.
Hence, where no particulars are shown as to the manner by which the aggression was commenced or
how the act which resulted in the death of the victim began and developed, treachery can in no way be
established from mere suppositions, drawn solely from circumstances prior to the killing. 14 In the
instant case, it appears from the record that the attack was not so swift so as to render the victims off
guarded. Contrary to the finding of the trial court, appellant could not have managed to "stealthily
approach" and suddenly fire at the victims. Therefore the means in executing the crime cannot be
considered deliberate. Besides, Jesus had the chance to jump into the truck after he was hit at the left
leg. Reynaldo, on the other hand, was able to run away and take cover, though unsuccessful. As a
matter of fact, the other laborers who were with the victims managed to evade the volley of bullets. It
cannot be said, therefore, that the victims were unprepared to put up a defense.
Since the aggravating circumstance of treachery was not proven, appellant can only be convicted of
two separate crimes of homicide punishable under Article 249 of the Revised Penal Code. The
Solicitor General maintains that he should be convicted of double homicide, a complex crime
punishable under Article 48 of the Revised Penal Code which provides:
ARTICLE 48. Penalty for complex crimes. When a single act constituted two or more grave or less
grave felonies or when an offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, the same to be applied in its maximum period.
The instant case does not fall under the above provision. The finding of the trial court tells why, thus:
"Let it be noted, though, that herein accused killed both deceased one after the other. As described by
witness Danilo Timbal accused Genita first fired at Jesus Bascon who was in the truck. He then shot
the front tire of the truck. After reloading, he went back to Bascon and shot him again. During this
time Reynaldo Timbal was at the back of the truck. When Reynaldo Timbal ran away, accused fired at
him hitting the deceased on the head and wounding the deceaseds right hand which covered his head
while he was running. For each death, therefore, accused shall be held criminally liable."
Appellant, therefore, must be convicted of two separate crimes of homicide.
The penalty for homicide is reclusion temporal. In view of the absence of the qualifying circumstance
of treachery, appellant can only be convicted of homicide punishable by reclusion temporal.15
There being neither mitigating nor aggravating circumstance that attended the commission of the
crime, the imposable penalty is the medium period of reclusion temporal.16 Applying the
Indeterminate Sentence Law, appellant should be meted out the indeterminate sentence of ten (10)
years and one (1) day of prision mayor maximum, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal medium, as maximum.
With regard to civil liability, no proof was presented as to the actual or moral damages. The trial court,
however, ordered appellant to indemnify the heirs of each of the victims the amount of P50,000.00,
which we affirm. Unlike the award of actual damages, the award of civil indemnity need no proof
other than the death of the victim. 17 In addition, temperate damages may be recovered under Article
2224 of the Civil Code, as it cannot be denied that the heirs suffered some pecuniary loss although the
exact amount was not proved with certainty. Hence, an award of P25,000.00 by way of temperate
damages would be appropriate.18 The heirs of Reynaldo and Jesus are awarded P50,000.00 each as
civil indemnity and P25,000.00 as temperate damages.
WHEREFORE, the Decision of the trial court is MODIFIED in the sense that appellant is hereby
found guilty beyond reasonable doubt of two crimes of homicide. He is sentenced to suffer (10) years
and one (1) day of prision mayor maximum, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal medium, as maximum, for each crime of homicide.
The appellant is ordered to pay the heirs of each of the victims, Reynaldo Timbal and Jesus Bascon,
the amounts of P50,000.00 as civil indemnity for their deaths and P25,000.00 as temperate damages.
With costs de oficio.
SO ORDERED.
Vitug, (Chairman), Corona, and Carpio-Morales, JJ., concur.
Endnotes:
1 Penned by Judge Cipriano B. Alvizo, Jr.
2 Records at 1.
3 Transcript of Stenographic Notes (TSN), December 8, 1993 at 3-7; TSN, June 28, 1995 at 4-8.
4 Records at 12, Necropsy report dated December 18, 1991; Exh. "A."
5 Id., Exhibit "B".
6 TSN, August 30, 1995 at 3-12.
7 Record at 82-83.
8 Rollo at 46.
9 People v. Janairo , G.R. No. 129254, July 22, 1999, 311 SCRA 58; People v. Cariquez ,
G.R. No. 129304, September 27, 1999, 315 SCRA 247.
10 TSN, August 30, 1995 at 18.
11 People v. Taylaran , G.R. No. L-49149, October 23, 1981, 108 SCRA 373.
12 People v. Valla , G.R. No. 111285, January 24, 2000, 323 SCRA 74; People v. Fuensalida
, G.R. No. 119963, November 6, 1997, 281 SCRA 452.
13 People v. Annibong , G.R. No. 139879, May 8, 2003.
14 People v. Cario , G.R. No. 123325, March 31, 1998, 288 SCRA 404.
15 Article 249, Revised Penal Code.
16 Article 64 (1), id.
17 People v. De la Cruz , G.R. No. 128362, January 16, 2001, 349 SCRA 124.
18 People v. Abrazaldo , G.R. No. 124392, February 7, 2003; People v. Ronas , G.R. NOS.
128088 & 146639, January 31, 2001, 350 SCRA 663.
THIRD DIVISION
[G.R. No. 140794. October 16, 2001.]
PEOPLE OF THE PHILIPPINES, Appellee, v. RICARDO AGLIDAY y TOLENTINO,
Appellant.
DECISION
PANGANIBAN, J.:
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which
material damage results by reason of an inexcusable lack of precaution on the part of the person
performing or failing to perform such act. Malice is the antithesis of reckless imprudence. Once
malice is proven, recklessness disappears.chanrob1es virtua1 1aw 1ibrary
The Case
Before us is an appeal from the September 14, 1997 Decision 1 of the Regional Trial Court of San
Carlos City (Branch 57) in Criminal Case No. SCC 3054. The assailed Decision disposed as
follows:jgc:chanrobles.com.ph
"WHEREFORE, in the light of the foregoing consideration, the court finds the accused Ricardo T.
Agliday guilty beyond reasonable doubt of parricide and hereby sentences him to suffer the penalty of
reclusion perpetua and to indemnify the heirs of the victim in the amount of fifty thousand pesos
(50,000.00).
"The PNP Bayambang[,] Pangasinan is directed to turn over the shotgun to the Firearm and Explosive
Division, Camp Crame, Quezon City." 2
This case originated from the April 22, 1999 Information, 3 in which Ricardo Aglida y Tolentino was
accused of parricide, allegedly committed as follows:jgc:chanrobles.com.ph
"That on or about February 25, 1999, in the evening, at [B]arangay Nalsian Sur, [M]unicipality of
Bayambang, [P]rovince of Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, did then and there, wil[l]fully, unlawfully and
feloniously shoot his son Richard V. Agliday with a shotgun, unlicensed causing his death shortly
thereafter due to [c]ardio respiratory arrest, hypovolemic shock, gunshot wound, pt. of entry at the
(L) upper inner quadrant of gluteus, 3 x 3 cm. (+) contusion collar, as per Certificate of Death issued
by Dr. Rod Alden Tamondong, M.D., medical officer III, Region I Medical Center, Arellano St.,
Dagupan City, to the damage and prejudice of his legal heirs." 4
On arraignment, appellant, assisted by Atty. Bernardo S. Valdez, pleaded not guilty. 5 After trial in due
course, the lower court rendered the assailed Decision. Atty. Carlito M. Soriano, counsel for appellant,
filed the Notice of Appeal on September 22, 1999. 6
The Facts
Version of the Prosecution
In its Brief, 7 the Office of the Solicitor General summarized the prosecutions version of the facts as
"Prosecution witness Conchita Agliday, wife of appellant Reynaldo Agliday, testified that about 8:00
oclock on the evening of February 25, 1999 while washing dishes in the kitchen of their house, her
son Richard Agliday was shot with a shotgun by her husband-appellant Ricardo Agliday (pp. 4-5, tsn,
July 5, 1999). As a result, her son Richard fell on his belly; her husband-appellant ran away. Although
shocked, Conchita was able to rush out of her house to call for help. Richard was first brought to the
Sto. Nio Hospital, then to the San Carlos General Hospital, and finally to the Region I Hospital in
Dagupan City (pp. 5-6, id.).chanrob1es virtua1 1aw 1ibrary
"Before the shooting, Conchita and her husband quarreled over her working as a laundry woman (p. 7,
id.). Her son, Richard, at the time of his death, was only nineteen (19) years old and in 4th year
college (p. 9, id.).
"Prosecution witness Rey Agliday, another son of appellant, testified that he was in their house resting
on a wooden bed at the time of the incident in question (p. 3, tsn, June 18, 1999). Rey saw his fatherappellant shoot his brother Richard with a shotgun, as he was about four (4) meters from them (p. 4,
id.).
"Before the shooting incident, Rey recounted [that] his mother and his father-appellant had a quarrel,
but he did not interfere. His brother Richard, on the other hand, intervened and for that reason
appellant got his shotgun and shot Richard. Appellant surrendered to the barangay captain who
accompanied him to the police authorities. Rey executed a sworn statement (Exhibit A) on the
shooting incident (p. 5, id.).
"Dr. Rod Alden Tamondong, medical health officer, Region I Medical Center, Dagupan City declared
that he attended to the medical needs of Richard Agliday. Richard came in looking very pale, weak,
and semi-conscious (p. 3, tsn, July 13, 1999). He died at the emergency room.
"Dr. Tamondong found a gunshot wound at the left buttock of the victim which had no point of exit;
he also found multiple metallic objects therein based on the contusion color of the wound and the xray result (pp. 4-5, id.). He stated that the cause of the victims death was cardio-respiratory arrest
secondary to the decrease of the circulating blood of the victim (pp. 4-5, id.). But he did not issue a
medical certificate as he was then on official leave; he only issued a death certificate (Exhibit D) (p.
5, id.)." 8
Version of the Defense
Appellant, in his Brief, 9 submits his own narration of the events:jgc:chanrobles.com.ph
"Appellant Ricardo T. Agliday is a barangay tanod of Nalsian Sur, Bayambang, Pangasinan.
"Sometime on February 25, 1999, at or about 8:00 oclock in the evening, appellant was at the first
floor of his house. He was cleaning a homemade shotgun which he intended to bring to [his] night
patrol in their barangay, with fellow barangay tanods.chanrobles virtuallawlibrary:red
"While his wife Conchita and his son Richard were about to go upstairs, and while appellant was
cleaning the homemade shotgun, the gun accidentally went off and Richards buttock was hit.
"Appellant went near his son and embraced him. Appellant and some relatives brought Richard to the
Sto. Nio Hospital at Bayambang, Pangasinan. They later transferred him to the San Carlos General
Hospital. Finally, they brought him to the Region I Medical Center at Dagupan City, where he expired.
"Thereafter, appellant returned to Bayambang, Pangasinan. He directly went to the house of Barangay
Captain Jose Matabang, Jr. to whom he voluntarily surrendered. The barangay captain brought the
appellant to [the] policy station of Bayambang, Pangasinan, with the homemade shotgun which [had]
accidentally hit Richard." 10
Ruling of the Trial Court
Faced with two conflicting versions of the facts, the trial court gave credence to the prosecution
witnesses who gave straightforward, spontaneous, sincere and frank accounts of the events that had
unfolded before their very eyes. Because of their relationship with appellant, there was no reason for
them to testify falsely against him. The first witness (Rey) was appellants son who was the victims
brother, while the other witness (Conchita) was appellants wife who was the victims mother.
The defense of appellant that what happened was an accidental shooting was disbelieved by the trial
court. It viewed such stance as his desperate attempt to exculpate himself from the consequences of
his acts.chanrob1es virtua1 1aw 1ibrary
Hence, this appeal. 11
The Issues
Appellant submits the following issues:jgc:chanrobles.com.ph
"First Assignment of Error
"The Honorable Court a quo erred in its findings of facts which[,] had they been in accordance with
the evidence adduced, will suffice to support a judgment of acquittal for Accused-Appellant." 12
"Second Assignment of Error
"The Honorable Court a quo erred in convicting accused-appellant [of] parricide." 13
This Courts Ruling
The appeal is devoid of merit.
First Issue:chanrob1es virtual 1aw library
Credibility of Witnesses
Appellant contends that the trial court erred in giving credence to the prosecution witnesses despite his
avowals to the contrary. He claims that it should have believed him because he had absolutely no
reason or motive to kill, much less shoot, his own son whom he considered to have had a very bright
future. He further alleges that the corroborating testimonies of Jose Matabang and SPO1 Emilio
Opina, who were not related to the parties and had absolutely no motive to testify falsely against him,
were more credible than those of his wife and other son.chanrob1es virtua1 1aw 1ibrary
We disagree. Long settled is the rule in criminal jurisprudence that when the issue is one of credibility
of witnesses, an appellate court will normally not disturb the factual findings of the trial court. 14 That
is, unless the lower court has reached conclusions that are dearly unsupported by evidence, or unless it
has overlooked some facts or circumstances of weight and influence which, if considered, would
affect the results. 15
Matabangs testimony was basically what appellant had told him and, hence, biased and limited. The
testimony of Opina that he had been told by Conchita that the shooting was accidental was
contradicted by her own statements in open court that she was still in shock when the police officer
conducted the preliminary investigation. Such statements taken ex parte, like affidavits, are held as
inferior to testimonies given in open court. 16 Thus, we find no ground in the case at bar to overturn
the factual findings of the trial court.
Second Issue:chanrob1es virtual 1aw library

Accident as an Exempting Circumstance
Appellant protests the trial courts ruling that his defense of accidental shooting was fabricated.
According to him, he was cleaning the shotgun that he would have used for the evening patrol with
other barangay tanods when he accidentally touched the trigger and hit Richard, who was going up the
stairs into the house with Conchita. 17 He therefore contends that he should be acquitted on the basis
of the exempting circumstance of accident under Article 12 (paragraph 4) of the Revised Penal Code.
We are not persuaded. Both the trial court and the solicitor general rejected this defense on the basis of
the eyewitness testimonies of Conchita and Rey. Under Article 12 (paragraph 4) of the Code, criminal
liability does not arise in case a crime is committed by [a]ny person who, while performing a lawful
act due care, causes an injury by mere accident without fault or intention of causing it." The
exemption from criminal liability under the circumstance showing accident is based on the lack of
criminal intent.chanrob1es virtua1 1aw 1ibrary
The declarations of innocence by appellant are contradicted by the testimonies of his wife and son. On
the witness stand, Conchita recounts the incident as follows:jgc:chanrobles.com.ph
"Q: You said that you were at home on February 25, 1999 at about 8:00 oclock in the evening; what
were you doing if you can still remember?
A: I was washing dishes, sir.
Q: While doing so, do you recall if there was any unusual incident that happened?
A: Yes, sir.
Q: What was that unusual incident?
A: My son was shot by my husband, sir.
Q: Where did your husband [shoot] your son?
A: In the kitchen, sir.
Q: What weapon did your husband use in shooting your son?
A: Shotgun, sir." 18
In her Sworn Statement given to SPO1 Emilio Opina of the Bayambang Police Station, she
declared:jgc:chanrobles.com.ph
"04. Q: Will you please narrate to me briefly all you know about the incident you are referring to?
chanrob1es virtua1 1aw 1ibrary

A: That on or about 8:00 oclock in the evening o[n] February 25, 1999 while I and my husband
Ricardo Agliday y Tolentino were quarreling in connection [with] his drinking (liquor) habit[,] my son
Richard V. Agliday tried to [pacify] us but my husband, instead of listening, . . . got his gun [from] the
bed where we are sleeping and shot our son Richard V. Agliday." 19
Rey corroborated his mothers testimony that his brother was shot by their father. His testimony
proceeded as follows:jgc:chanrobles.com.ph
"Q: On February 25, 1999 at about 8:00 oclock in the evening, do you remember where you were?
A: Yes, sir.
Q: Where were you on that day and [at that] time?
A: I was under the house resting on a wooden bed, sir.
x
Q: While you were under your house resting do you remember if there was any unusual incident that
happened?
A: Yes, sir.
Q: What was that unusual incident?
A: My brother was shot by my father, sir.
Q: How far where you when your father shot your brother?
A: About four (4) meters, sir.
Q: What weapon did your father use in shooting your brother?
A: Shotgun, sir.
x
Q: Where was your mother, Conchita at the time your father shot your brother Richard?
A: She was there and they were both quarreling, sir.
Q: They were both quarreling before the incident happened?
A: Yes, sir.chanrob1es virtua1 1aw 1ibrary
Q: And while your father and mother were quarreling what did you do?
A: I did not interfere[;] it was my brother who intervene[d] between them that is why my father got his
gun and shot my brother, sir." 20
Before the accused may be exempted from criminal liability by reason of Article 12 (paragraph 4), the
following elements must concur: (1) a person is performing a lawful act (2) with due care, and (3) he
causes an injury to another by mere accident and (4) without any fault or intention of causing it. 21
For an accident to become an exempting circumstance, the act has to be lawful. 22 The act of firing a
shotgun at another is not a lawful act.chanrob1es virtua1 1aw 1ibrary

An accident is an occurrence that "happens outside the sway of our will, and although it comes about
through some act of our will, lies beyond the bounds of humanly foreseeable consequences." 23 It
connotes the absence of criminal intent. Intent is a mental state, the existence of which is shown by a
persons overt acts. 24 In the case at bar, appellant got his shotgun and returned to the kitchen to shoot
his son, who had intervened in the quarrel between the former and Conchita. It must also be pointed
out that the firearm was a shotgun that would not have fired off without first being cocked.
Undoubtedly, appellant cocked the shotgun before discharging it, showing a clear intent to fire it at
someone.
The Resolution 25 dated April 22, 1999, filed by 4th Asst. Provincial Prosecutor Emilio R. Soriano,
reads thus:jgc:chanrobles.com.ph
" [O]n the evening of February 25, 1999 at about 8:00 oclock, complainant and her husband were
then quarreling in connection with his liquor drinking habit. While they were quarreling, their son
Richard intervened and tried to pacify his father who [was] under the influence of liquor. Apparently
angered and not listening to his son, he proceeded inside their bedroom and took his gun and thereafter
shot his son Richard who was trying to pacify them. After seeing her son being shot by her husband,
complainant ran outside and called for help. . . .
"After carefully considering the uncontroverted evidence adduced by complainant, undersigned
sufficiently finds a probable cause for [p]arricide with the use of an unlicensed firearm . . .." 26
Appellant contends that since he was only negligent, he should have been convicted, not of parricide,
but only of reckless imprudence resulting in homicide. 27
We disagree. Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act
from which material damage results by reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act. Past jurisprudential cases of reckless imprudence
resulting in homicide were as follows: (1) exhibiting a loaded revolver to a friend, who got killed by
the accidental discharge arising from negligent handling; (2) discharging a firearm from the window of
ones house and killing a neighbor who, at just that moment, leaned over a balcony front; and (3)
firing a .45 caliber pistol twice in the air to stop a fist fight; and, as the fight continued, firing another
shot at the ground but, after the bullet ricocheted, hitting a bystander who died thereafter. 28
Intent is not lacking in the instant case. Appellants external acts prove malice or criminal intent. A
deliberate intent to do an unlawful act is inconsistent with reckless imprudence. 29
In People v. Belbes, 30 the Court found no reckless imprudence in the shooting of a student who, in
the act of destroying the schools bamboo wall, had been caught by a policeman who was responding
to a report that somebody was causing trouble in a school affair. The policemans action cannot be
characterized as reckless imprudence, because the shooting was intentional. The accused had intended
to fire at the victim and in fact hit only the latter. In this case, resenting his sons meddling in his
argument with his wife, appellant purposely took his gun and shot his son. chanrob1es virtua1 1aw
1ibrary
WHEREFORE, the appeal is hereby DENIED and the assailed Decision AFFIRMED. Costs against
Appellant.
SO ORDERED.
Melo, Vitug and Sandoval-Gutierrez, JJ., concur.
Endnotes:
FIRST DIVISION
[G.R. No. 130489. February 19, 2002.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JESUS JAVIER a.k.a. JESSIE,
Accused-Appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant was charged with Murder for the fatal shooting of Romeo Jumao-as in an
Information, 1 which alleges:chanrob1es virtual 1aw library
That on or about the 29th day of September of 1996, at about 9:30 A.M., in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a
handgun, with treachery and evident premeditation, with deliberate intent, with intent to kill, did then
and there attack, assault and shoot one Romeo Fernandez Jumao-as with the use of said weapon
thereby inflicting upon said Romeo Fernandez Jumao-as fatal wounds which caused his death a few
minutes later.
CONTRARY TO LAW.
On September 29, 1996 at around 7:00 in the morning, Nestor Fernandez Miraflor, a barangay tanod
of Pasil, Cebu City, was informed by his neighbor, Mina Garcia, that Romeo "Bobby" Jumao-as and
Jesus "Jessie" Javier had been engaged in a fist fight. 2 He knew both protagonists since Bobby was
his cousin while Jessie was his neighbor. 3 Nestor convinced Jessie to settle his differences with
Bobby. 4 He brought Jessie to the house of Ramon Cabugason, another barangay tanod, to seek
assistance in resolving the dispute between Bobby and Jessie. Ramon suggested that Nestor bring
Bobby to his house. 5 Before leaving, Nestor asked Ramon to frisk Jessie for firearms. 6
Nestor went to see Bobby, who agreed to the proposed meeting. Nestor returned to Ramons house and
informed him that Bobby had agreed to come to his house. 7 Again, Nestor asked Ramon to frisk
Jessie. However, he did not see whether Ramon actually frisked Jessie. 8 Nestor then left to fetch
Bobby. Before going to Ramons house, Nestor told Bobby not to bring any weapon and to take off his
shirt, since the purpose of the meeting was to settle the dispute between him and Jessie. Bobby thus
took off his shirt and wrapped it around his head like a turban. 9
When Nestor and Bobby reached Ramons house, they saw Ramon and Jessie sitting on a bench
outside the house. Ramon got up to meet them and inform them that the meeting will be held at the
barangay hall instead. 10 Suddenly, Jessie drew a gun from his waist and pointed it at Nestor and
Bobby. Nestor raised his right hand and told Jessie, "Jess, dont. Lets talk about it." 11 Jessie fired his
handgun, hitting Bobby on the right calf. Bobby ran away and Jessie went after him. 12 When Bobby
was about sixteen meters away, Nestor heard three more gunshots. 13 Nestor ran to the house of
Patricio Abesia, a policeman, when Jessie aimed the gun at him.

Bobby was brought to the Cebu City Medical Center, where he was declared dead on arrival. 14 Dr.
Jesus P. Cernan, a medico-legal officer, stated that the cause of death was shock secondary to multiple
gunshot wounds. 15
The defense, on the other hand, endeavored to prove that Jessie Javier acted in self-defense. 16 Jessie
alleged that after Nestor Miraflor learned of the fistfight between him and Bobby, Nestor brought him
to the house of Ramon Cabugason and left to look for Bobby. 17 While waiting for Nestor and Bobby
to arrive, he narrated to Ramon that Bobby mauled him the night before because he caused the arrest
of the latters cousin, Daylin Miraflor, for selling drugs. 18 Daylins husband is the brother of Nestor
Miraflor. 19 When Nestor and Bobby arrived, the latter attempted to pull a gun from his back. Jessie
hugged Bobby to prevent him from drawing his gun. The gun fired, hitting Bobby on the right side
and killing him. 20 Jessie immediately walked away and surrendered to the National Bureau of
Investigation. 21
After trial on the merits, a judgment of conviction was handed down by the Regional Trial Court of
Cebu City, Branch 15, to wit:chanrob1es virtual 1aw library
WHEREFORE, in view of all the foregoing evidence, arguments and considerations, this court hereby
finds the accused JESUS JAVIER alias Jessie GUILTY beyond reasonable doubt of the crime of
Murder as penalized under Article 248 of the Revised Penal Code as amended by R.A. 7659. But
considering that the accused has voluntarily surrendered, he is hereby sentenced to Reclusion
Perpetua, together with all the accessory penalties provided for by law. The accused is also hereby
ordered to indemnify the next of kin of the victim the sum of P50,000.00.
SO ORDERED. 22
Hence, the instant appeal based on the following assignment of errors: chanrob1es virtual 1aw
library
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF
MURDER ON THE BASIS OF THE INCREDIBLE AND BIASED TESTIMONIES OF THE
PROSECUTION WITNESSES.
II
THE TRIAL COURT GRAVELY ERRED IN NOT BELIEVING THE DEFENSE OF THE
ACCUSED-APPELLANT THAT THE VICTIM WAS SHOT ACCIDENTALLY.
The issues raised by accused-appellant rest entirely on the question of credibility. In this regard, it has
been consistently held that the nature of assigning values to declarations on the witness stand is best
and most competently performed by the trial judge who had the opportunity to observe the witnesses
and to assess their credibility. 23 The general rule is that the trial courts are in a better position to
decide questions of credibility since they have heard the witnesses and observed their deportment and
manner of testifying during the trial. 24 The findings of the trial courts with respect to credibility of
the witnesses will not be disturbed by the appellate court unless there are factors of weight and
influence which have been overlooked or the significance of which have been misinterpreted by the
trial courts.25cralaw:red
In the case at bar, the trial court found that the testimonies of the two prosecution witnesses "were very
convincing and straightforward, and they appear to the court as very truthful and honest in the way
they narrated to the court what they saw with their own eyes and what they heard with their own ears."
26 We agree.
Accused-appellant claims that the prosecution witnesses, Nestor F. Miraflor and Vicente Torrejas, are
closely related to the victim. 27 Relationship does not necessarily give rise to a presumption of bias or
ulterior motive, nor does it impair the credibility or tarnish the testimony of a witness. 28 The
relationship of the witness to the victim does not automatically affect the truthfulness of the testimony
of the former. There is no legal provision that disqualifies the relatives of the victim of a crime from
testifying. 29 Indeed, it has been ruled that there is absolutely nothing in this jurisdiction which
disqualifies a person from testifying in a criminal case in which a relative is involved, if the former
was really at the scene of the crime and witnesses the execution of the criminal act. 30 The natural
interest of witnesses who are relatives of the victim in securing the conviction of the guilty party
would prevent them from implicating persons other than the culprits. Otherwise, the latter would
thereby go unpunished. 31 We are is aware of the fact that now and then crimes are committed with
just the relatives of the victim as witnesses. 32
In the second assignment of error, Accused-appellant claims that the trial court erred in not believing
the defense that the victim was shot accidentally. 33 In the course of the trial in the court a quo,
Accused-appellant invoked self-defense. 34 Accident and self-defense do not have the same meaning
or legal effect. Self-defense is a justifying circumstance under paragraph 1 of Article 11, while
accident is an exempting circumstance under paragraph 4 of Article 12, both of the Revised Penal
Code. 35
It is a cardinal principle in criminal law that self-defense must be established as convincingly as
possible. 36 Although the prosecution has the burden of proving the guilt of the accused, this rule is
reversed where the accused interposes self-defense. The burden is shifted to the accused to prove the
following elements of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the
part of the person defending himself. 37 Unlawful aggression has been defined as an actual, sudden
and unexpected attack, or an imminent danger thereof, and not merely a threatening or intimidating
attitude. 38 Unlawful aggression is a condition sine qua non for the justifying circumstance of selfdefense. 39 Therefore, unlawful aggression is indispensable, it being the main ingredient to selfdefense. 40
In the case at bar, Accused-appellant failed to prove that the killing was justified and that, therefore, no
criminal liability has attached. Accused-appellant failed to prove unlawful aggression. Self-defense
cannot be justifiably entertained where it is not only uncorroborated by competent evidence but is
seriously doubtful. 41 Accused-appellants invocation of self-defense therefore deserves scant
consideration.
As correctly observed by the trial court:chanrob1es virtual 1aw library
Unfortunately for the accused, he was making barefaced lies when he testified and claimed that he
only heard one burst of gunfire. And yet, the victim died from multiple gunshot wounds. Upon
coaxing to tell the truth, on being confronted with the physical evidence from the multiple gunshot
wounds sustained by the victim, the accused readily admitted that he heard 3 more shots from the
same gun.
Moreover, it is amazing how the accused could describe the gun in its minute and particular details
when all along, he claimed that he never got hold of the fatal gun, even after he has killed the victim
and leaving only after he made sure that he was already dead, instead of bringing him to the hospital if
he did not really kill the victim with deliberate intent. 42
Furthermore, it is a well-settled rule that the nature and number of wounds inflicted by the assailant
are considered important indicators which belie a plea of self-defense. 43 In the instant case, the cause
of the victims death was shock secondary to multiple gunshot wounds, as evidenced by the postmortem examination conducted by Dr. Jesus P. Cernan, the medico-legal officer. 44
The trial court correctly appreciated the presence, of the circumstance of treachery, which qualified the
offense to Murder. There is treachery when the offender commits any of the crimes against persons
employing means, methods or forms in the execution thereof which tend directly and specially to
insure its execution without the risk to himself arising from the defense, which the offended party
might make. 45 For treachery or alevosia to be properly considered as a qualifying circumstance, two
conditions must be present, to wit: (1) the employment of means of execution that give the person
attacked no opportunity to defend himself; and (2) that the offender deliberately or consciously
adopted the particular means, method or form of attack employed by him. 46
In the case before us, the victim was half-naked while walking towards the house of Ramon
Cabugason to attend a reconciliatory meeting with accused-appellant, when the latter, suddenly and
without warning, drew his gun and shot the victim on the right calf. Moreover, Accused-appellant
pursued the wounded victim and continued shooting at the latter when he started to run away.
The suddenness of an attack without the slightest provocation from the victim who was unarmed and
had no opportunity to repel the aggression or defend himself necessarily qualifies the crime with
treachery. 47 A frontal attack could be treacherous when unexpected and the unarmed victim would be
in no position to repel the attack or avoid it. 48
The killing was further attended by the aggravating circumstance of evident premeditation. For
evident premeditation to be properly appreciated, it must be clearly shown as the crime itself. 49
Consequently, the following elements must be competently proven: (1) the time the accused decided to
commit the crime; (2) an overt act manifestly indicating that he clung to his determination; and (3)
sufficient lapse of time between the decision and the execution to allow the accused to reflect upon the
consequence of his act. 50
It was clearly established by the prosecution that accused-appellant decided to commit the crime when
Nestor Miraflor approached him for the purpose of reconciling accused-appellant and the victim.
Sufficient time had elapsed from the decision and the execution for the accused-appellant to reflect
upon the consequences of his act, as shown by the following: (1) accused-appellant had to wait while
Miraflor convinced Cabugason to help him with the reconciliation; (2) accused-appellant had to wait
with Cabugason for Miraflor to return to Cabugasons house to inform them that the victim agreed to
reconcile; and (3) accused-appellant had to wait again for Miraflor to go back to the house of the
victim in order to bring him to the house of Cabugason.
The trial court was correct in appreciating the mitigating circumstance of voluntary surrender, which
requires the following: (1) the offender has not actually been arrested; (2) the offender surrenders
himself to a person in authority or the latters agent; and (3) the surrender is voluntary. 51 Voluntary
surrender must be spontaneous and the intent of the accused to surrender unconditionally to the
authorities must be shown because he has acknowledged his guilt or he wished to save the authorities
the trouble and expenses necessarily incurred in his search or capture. 52
Accused-appellant surrendered to the National Bureau of Investigation (NBI) on the same day that the
incident occurred. The fact that he surrendered to the NBI instead of the nearest police station is of no
moment since it is sufficient that the accused surrenders to a person in authority or his agent. 53
The penalties imposed by the trial court on accused-appellant were likewise correct. Since treachery
qualified the offense to Murder, the penalty imposable is reclusion perpetua to death. 54 The
aggravating circumstance of evident premeditation was clearly evidenced by the facts and the
mitigating circumstance of voluntary surrender was sufficiently proven. In cases where the law
prescribes a penalty composed of two indivisible penalties, and where both mitigating and aggravating
circumstances attended the commission of the act, the court shall reasonably allow them to offset one
another in consideration of their number and importance. 55 In this case, the aggravating circumstance
of evident premeditation was offset by the mitigating circumstance of voluntary surrender. Thus,
Accused-appellant was correctly sentenced to suffer reclusion perpetua, the lesser of the two
indivisible penalties. 56
The prosecution prayed that the civil indemnity for the death of the victim be increased from Fifty
Thousand Pesos (P50,000.00) to Seventy-five Thousand Pesos (P75,000.00) pursuant to the ruling in
People v. Victor. 57 However, the amount of P75,000.00 as civil indemnity is awarded only to rape
victims where the penalty imposed is death. Thus, the sum of P50,000.00 awarded by the trial court as
civil indemnity is in line with the policy of the Courts 58
Finally, we note that the trial court failed to award actual damages for burial expenses, which was
stipulated by the prosecution and the defense in the amount of P15,000.00. 59 In this connection, we
have held that although receipts should ordinarily support claims of actual damages, the same may be
awarded where the defense stipulated thereon. 60 Therefore, Accused-appellant must be ordered to pay
the further amount of P15,000.00, as burial expenses.
WHEREFORE, based on the foregoing, the decision of the Regional Trial Court of Cebu City, Branch
15 in Criminal Case No. CBU-42577, finding accused-appellant Jesus Javier @ Jessie guilty beyond
reasonable doubt of Murder, sentencing him to suffer the penalty of Reclusion Perpetua, and ordering
him to pay the heirs of the victim, Romeo Jumao-as, the amount of P50,000.00 as civil indemnity, is
AFFIRMED with the MODIFICATION that accused-appellant is further ordered to pay the heirs of
the victim burial expenses in the stipulated amount of P15,000.00.
SO ORDERED.
Davide, Jr., C.J., Puno and Kapunan, JJ., concur.
Endnotes:
IRRESISTIBLE FORCE
EN BANC
[G.R. NO. 148518 : April 15, 2004]
PEOPLE OF THE PHILIPPINES, Appellee, v.NARCISO SALDAA (At Large), ELMER
ESGUERRA (At Large), FERNANDO MORALES, and ARTURO MALIT,Accused,
FERNANDO MORALES and ARTURO MALIT,Appellants.
DECISION
PER CURIAM:
On automatic review is the decision 1 dated February 2, 1999 of the Regional Trial Court of San
Fernando, Pampanga, Branch 47, in Criminal Case No. 8371, finding appellants Fernando Morales
and Arturo Malit, and their co-accused Narciso Saldaa and Elmer Esguerra guilty of the crime of
kidnapping for ransom and imposing on them the penalty of death.
The crime was allegedly committed as follows: rbl r l l
lbrr
That on or about the 9thday of November, 1994, in the municipality of Bacolor, province of Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping one another, did then and there wilfully, unlawfully
and feloniously, abduct and kidnap Jefferson C. Tan, Joanna C. Tan, Jessie Anthony C. Tan, Malou
Ocampo and Cesar Quiroz, while the latter were on board a L-300 van with Plate No. CKW-785 at
San Vicente, Bacolor, Pampanga, for the purpose of extorting ransom money from the parents of the
said victims with threat to kill the said victims if their parents failed to deliver the ransom money, that
said victims were brought and detained in Bataan until the father of victims, Feliciano Tan, paid and
delivered to the aforesaid accused the amount of P92,000. 00, Philippine Currency.
All contrary to law.2 rll
Upon arraignment, all four accused pleaded not guilty to the offense charged. On October 9, 1995,
three (3) of the accused, namely, Narciso Saldaa, Elmer Esguerra and appellant Fernando Morales,
escaped from the Provincial Jail of Pampanga. However, appellant Morales appeared a month later
and was arrested. Narciso Saldaa and Elmer Esguerra remained at large. As to both, the trial proceeded
in absentia.3 rll
The prosecution presented four witnesses, namely, Jefferson Tan, Feliciano Tan, Senior Police Officer
Antonio Dizon, Assistant Provincial Prosecutor Roman Razon, and Atty. Eligio Mallari.
JEFFERSON TAN, one of the victims, testified that the kidnapping happened on November 9, 1994,
around 6:30 a. m. He was then on his way to DonBoscoAcademyin Bacolor, Pampanga, on board their
family L-300 van with plate no. CKW-785.4 With him were his brother, Jessie Anthony, his sister,
Joanna, his cousin, Malou Ocampo, and their driver, Cesar Quiroz. 5 Jeffersonnarrated that along the
highway in San Vicente, Bacolor, Pampanga, the vehicle slowed down to steer clear of a damaged
portion of the road. Suddenly a manlater identified as appellant Arturo Malitpoked a gun at their
driver.6 Simultaneously, three other men entered the van. These three were later identified as
appellant Fernando Morales, Elmer Esguerra, and Narciso Saldaa.7 rll
While appellant Arturo Malit trained his gun at the driver, Elmer Esguerra took the drivers seat. The
other two malefactors blindfolded the five victims. 8 The vehicle then sped off and later stopped for
fuel at a gasoline station.9 At that point, one Romeo10 Bautista joined the group.11 After one
hour and thirty minutes of driving, they arrived at their destination. The blindfolds of the victims were
removed, and Narciso Saldaa ushered them into a small house located in a hilly area.12 rll
Sensing that their kidnappers would talk to his father, Jefferson Tan decided to write a note to his
father.13 Romeo Bautista and Narciso Saldaa then left to see his father. An hour later, three of their
kidnappersappellant Arturo Malit, appellant Fernando Morales, and Elmer Esguerraushered the five of
them back into the vehicle.14 They proceeded to a beach littered with big rocks. Subsequently, two
women came and fed them lunch.15 rll
At 7:30 p. m., Saldaa and Bautista arrived at the beach and took the victims to a small house in Orani,
Bataan, where they spent the night. 16 They left Orani around 4:00 a. m. the following day and
proceeded to an uninhabited place full of trees and grass.17 rll
Jeffersonfurther testified that he requested Bautista to allow him to speak with his father and so later
that morning, Bautista and Saldaa escorted him to Balanga, Bataan, to a PLDT office. 18 He told his
father that their abductors planned to send him home to get the P2 million ransom.19 His father then
negotiated with Romeo Bautista who agreed to reduce the ransom to P1. 5 million.20 Subsequently,
Bautista and Saldaa took Jeffersonto Guagua, Pampanga, aboard a minibus. 21 Bautista alighted at
Cleluz, Lubao, while Saldaa remained with him until they reached Sta. Cruz, Lubao. At Sta. Cruz,
Saldaa transferred him onto a jeepney going to the town proper of Guagua. 22 Before disembarking
at San Pabloin Guagua, Saldaa instructed Jeffersonto bring the ransom to the St. Peter and
PaulSnackCenterat 1:00 p. m. later that day.23 rll
According to Jefferson, he arrived home about 10:30 a. m. and lost no time relaying to his father,
Feliciano Tan, and the police the directives the kidnappers gave him. 24 Upon the advice of the
police, however, his father no longer allowed him leave to deliver the ransom money. 25 Later,
around 3:00 p. m., the kidnappers called and demanded an explanation from Feliciano Tan why the
money was not delivered.26 He heard his father request for a lower ransom. The amount finally
agreed upon was only P92,000.27 rll
FELICIANO TAN, the father of the victims Jessie, Joanna, and Jefferson, testified that on November
9, 1994while he was tending to their grocery store at Sto. Nio, Guagua, Pampanga, an unknown
person handed to him a handwritten letter from Jefferson. 28 The letter informed him that his
children had been kidnapped. He immediately called his wife, Nenita Co-Tan, and a family friend, Dr.
Ernesto Santos, and all three of them went to CampCrameto report the incident. 29 Colonel Asel Tor
was assigned by the Presidential Anti-Crime Commission (PACC) to handle the case. Col. Tor then
dispatched a unit headed by Maj. Rey Aquino to investigate.30 rll
At 8:05the next morning, Feliciano received a long distance call from Jeffersonin Bataan. 31
Jeffersonsaid that the kidnappers planned to use him to get the ransom money. 32 Feliciano added
that he talked with one of the kidnappers to negotiate a lower ransom. 33 At 10:00 a. m. of
November 10, 1994, Jeffersonarrived and narrated their ordeal. 34 rll
Since Feliciano could not afford the ransom demanded, he did not let Jeffersongo anymore. 35 At
3:00 p. m. on November 10, 1994, the kidnappers called asking for an explanation why Jeffersonwas
not at the pickup site. He explained that Jeffersonwas in shock and could not return. When asked about
the ransom money, he told the caller that he could only give P92,000. The caller agreed.36 He was
then instructed to bring the ransom to Cleluz, Sta. Cruz, Lubao, Pampanga, at 7:00 p. m. of the same
day.37 rll
Later, their driver, Cesar Quiroz, arrived and relayed new instructions from the kidnappers that the
meeting was no longer going to be at Cleluz but at the bridgeof Sta. Cruz, Lubao. 38 According to
Feliciano, they proceeded to Sta. Cruz as instructed, arriving thirty minutes early. 39 He asked Cesar
to look for the kidnappers. A few minutes later, Cesar returned to tell him to proceed to Gumi, Lubao,
which was on the other side of the bridge.40 There, appellant Malit boarded the vehicle followed by
appellant Morales.41 The two told him that his children were in Gumi, about a kilometer away.
When they reached Gumi, Malit asked for the money. Before showing the money, however, Feliciano
asked about the whereabouts of his children. Appellant Malit replied they were inside the L-300 van
parked in front of them.42 rll
The exchange took place and Elmer Esguerra handed him the keys to the L-300 van. 43 When
Feliciano got home, he called Maj. Rey Aquino of the PACC and told him that the children were
already safe.44 After that, he reported the incident to the police authorities in Guagua who took his
sworn statement.45 rll
SPO4 ANTONIO DIZON, PNP Provincial Command, Brgy. Sto. Nio, San Fernando, Pampanga,
testified that at 10:00 a. m. of November 18, 1994, he investigated the kidnapping for ransom of
Jefferson C. Tan, Joanna C. Tan, Jessie Anthony C. Tan, Malou Ocampo, and Cesar Quiroz. 46
During said investigation, Narciso Saldaa, one of the suspects in the case, admitted participation in the
kidnapping and revealed the identities of his cohorts. 47 SPO4 Dizon averred that because there was
no available lawyer from the Public Attorneys Office at the time, he requested a certain Atty. Eligio
Mallari, who was then following up on a case at the office, to assist Narciso Saldaa. 48 Saldaas
sister-in-law was also present.49 After Saldaa signed the sworn statement, it was sworn and
subscribed to before Asst. Provincial Prosecutor Roman Razon. 50 rll

ASST. PROVINCIAL PROSECUTOR ROMAN S. RAZON testified that he was with SPO4 Dizon
when Narciso Saldaas confession was taken and that he apprised Saldaa of the consequences of his
confession.51 After Saldaa admitted the signature in the confession as his own and that it was
signed with the assistance of Atty. Eligio Mallari, he administered the oath and affixed his signature
thereon as administering officer.52 rll
ATTY. ELIGIO P. MALLARI, a practicing lawyer who later became a Commissioner of Human
Rights, testified that in the morning of November 18, 1994, while he was in the PNP Investigation
Unit office located at Capitol Compound, San Fernando, Pampanga, following up a personal case, Sgt.
Antonio Dizon approached him and informed him that Narciso Saldaa, a suspect in a kidnapping case,
wanted the assistance of counsel. 53 He requested an opportunity to confer with Saldaa, and after
hearing that Saldaa wanted his assistance during the investigation, he advised Saldaa of his
constitutional rights in the Tagalog dialect.54 He also testified that after he signed under the
notation Kaantabay nior Assisted by, they went to the office of Assistant Provincial Prosecutor Roman
Razon.55 rll
Appellant FERNANDO MORALES testified for the defense. He denied under oath that he willingly
participated in the kidnapping. He interposed the defense of having acted under the impulse of an
uncontrollable fear. He averred that a day before the incident, his brother-in-law, Elmer Esguerra,
offered to help him secure a construction job at Floridablanca with a daily wage of P150. 00.56 He
and Elmer Esguerra planned to go together to ask permission from the contractor to start working.
They agreed to meet at 6:00 a. m. on November 9, 1994, at Plaza Guagua, Pampanga.57 rll
At the appointed time and place, Elmer Esguerra arrived with another person, whom appellant
Morales later came to know as Arturo Malit, now his co-appellant. 58 They waited some more until
two (2) more persons arrived. Appellant Morales identified these two as Narciso Saldaa and Romeo
Bautista.59 Shortly afterwards, they all took a jeepney to San Vicente, Bacolor, Pampanga. When
they got there, Saldaa ordered the driver to stop. Esguerra then told appellants Morales and Malit to
alight and wait at the corner of the street for the contractor.60 rll
A few minutes later, Narciso Saldaa flagged an L-300 van and poked a gun at its driver. 61 He and
appellant Malit got scared so they tried to walk away but they didnt get very far because Elmer
Esguerra, Romeo Bautista, and Narciso Saldaa, after taking over said vehicle, chased them. 62
Bautista threatened to shoot them both if they didnt board the vehicle, so they did. 63 rll
On the way to Mariveles, Bataan, according to Morales, they pleaded to be released because they did
not want any involvement with the crime. However, Narciso Saldaa and his companions responded
with more threats.64 rll
They stayed in Mariveles for an hour and a half before proceeding to Orani, Bataan, where they spent
the night in a house belonging to Saldaas brother.65 According to appellant Morales, both he and
appellant Malit were allowed to sleep in the same room as the children and the driver.66 He added
that he and Malit cooked food for and attended to the needs of the children. 67 The next morning,
they left for Lubao, Pampanga. In the afternoon of November 10, 1994, he and Malit alighted at
Lubao because Narciso Saldaa and Romeo Bautista told them to go home.68 rll
Appellant Morales stated that prior to November 8, 1994, he did not know his co-accused Arturo
Malit, Narciso Saldaa, and Romeo Bautista.69 Neither did he know Feliciano Tan or any of his
children before the incident.70 He testified to knowing Elmer Esguerra since the latter is his
brother-in-law.71 rll
On cross-examination, appellant Morales declared that on November 22, 1994, he surrendered to the
police after his parents came to inform him that the police were looking for him. 72 Later, he learned
that Romeo Bautista was killed in an encounter with PACC agents.
Appellant ARTURO MALIT testified also for the defense. He interposed the defense of uncontrollable
fear of an equal or greater injury. He testified that on November 8, 1994, Romeo Bautista went to his
house and invited him to work in a construction job the next day in Floridablanca, Pampanga. Having
known Romeo Bautista for almost a month since they had occasion to work together on a construction
job at his sisters house in Sta. Cruz, Lubao, Pampanga, he accepted the offer. At 5:00 a. m. the next
day, both of them went to Guagua, Pampanga, to fetch some more companions.73 rll
At Guagua, they met three persons whom he came to know as Elmer Esguerra, Narciso Saldaa, and
appellant Fernando Morales.74 They proceeded to a waiting shed near Cabalantian supposedly to
wait for their additional companions.75 Thirty (30) minutes had barely gone by when Narciso
Saldaa then flagged down a passing L-300 van and poked a gun at its driver. 76 That caused him and
Morales to get so scared that they started walking away. Hardly reaching a distance of twenty (20)
meters, they were noticed by Saldaa, Esguerra and Bautista. The three chased them by using the van.
Bautista then forced both of them into the van at gunpoint.77 rll
According to appellant Malit, when he saw that the children were scared, he talked to them and asked
them to pray.78 He did not try to stop or tell his companions not to pursue their nefarious plan
because he could not overcome his fear brought by the threats earlier made on him by Esguerra,
Saldaa, and Bautista.79 rll
Appellant Malit further testified that they were transported to Mariveles, Bataan, where they had lunch
in a small house.80 Later, they were taken to Orani, Bataan, to a house owned by Saldaas in-laws
arriving there early in the evening of that same day.81 He tried to escape, but he saw Saldaa and
Bautista posted at the door.82 He did not talk to any of the three who abducted them because he was
mad at them.83 He also did nothing to tell Saldaas in-laws that he was not a willing participant in
the kidnapping.84 But when he heard Saldaa say something about killing the driver and one of the
children, he interceded and pleaded with Bautista not to proceed with the killing.85 rll
Appellant Malit also testified that in the afternoon of the following day, Saldaa and Bautista brought
him and appellant Morales back to Lubao, Pampanga, where they were allowed to alight at Sta. Cruz
and go home.86 Then, Saldaa threatened to kill him if he reported the incident to the police. 87
Since then, he had seen neither appellant Morales nor Romeo Bautista.
Appellant Malit asserted that he was not with the group that went back to Lubao to receive the ransom
money from Mr. Tan.88 He denied that he knew Jefferson or his father, Feliciano Tan, before
November 9, 1994.89 He claimed that the only reason he and Morales were implicated in the
kidnapping was because Bautista brought him along. 90 He also denied poking a gun at Cesar
Quiroz, insisting that it was Saldaa who did.91 rll
On cross-examination, appellant Malit reiterated that prior to November 9, 1994 he did not know
Elmer Esguerra, Fernando Morales, or Narciso Saldaa.92 rll
On February 2, 1999, the trial court rendered its decision, disposing as
follows:rbl r l l lbrr
WHEREFORE, and in the light of all the foregoing discussions, the Court renders judgment finding
the accused Narciso Saldaa, Elmer Esguerra, Arturo Malit and Fernando Morales guilty beyond
reasonable doubt of the crime charged and imposes upon the aforenamed accused the penalty of
DEATH. The said accused are likewise ordered to indemnify the complainant the amount of P92,000.
00, which represents the ransom money the latter parted with. No other civil indemnification may be
made as no other evidence on this aspect was adduced.
SO ORDERED.93 rll
On February 17, 1999, appellant Malit filed a motion for reconsideration and new trial. 94 Appellant
Malit contended that the trial courts decision did not clearly and distinctly state the facts and the law
upon which it is based, and that the trial court overlooked facts and circumstances which if considered
would alter the result. In his supplemental motion for new trial, appellant Malit further sought to
introduce Cesar Quirozs testimony.
On July 20, 1999, the trial court denied the motion. 95 The trial court ruled that appellant Malits
motion was simply asking the trial court to give a second look on the evidence it has passed upon and
clearly contained in its decision. It further found that the grounds invoked do not justify a new trial as
it did not require the presentation of newly discovered evidence.
Before this Court for automatic review of the death sentence imposed on each of them, appellants
Arturo Malit and Fernando Morales filed separate briefs.
Appellant Malit submits the following assignment of errors: rbl r l
l lbrr
I. THE HONORABLE COURT A QUO ABUSED ITS POWER AND DISCRETION WHEN IT
TOTALLY DISREGARDED THE TESTIMONY OF ARTURO MALIT WHICH WAS NOT
REBUTTED BY THE PROSECUTION.
II. THE HONORABLE COURT A QUO ABUSED ITS POWER AND DISCRETION WHEN IT
DEPRIVED ACCUSED ARTURO MALIT THE RIGHT TO A NEW TRIAL.
III. THE HONORABLE COURT A QUO SHOULD NOT HAVE GIVEN WEIGHT TO THE
EXTRAJUDICIAL CONFESSION OF NARCISO SALDAA SINCE IT VIOLATED THE BASIC
CONSTITUTIONAL REQUIREMENT OF THE RIGHT TO COUNSEL OF CHOICE.
IV. THE PROSECUTION DID NOT PERFORM ITS DUTY FAIRLY AND IMPARTIALLY BY
SUPPRESSING IMPORTANT AND VITAL EVIDENCE AND TESTIMONY OF WITNESSES IN
ORDER TO ATTAIN A FAIR TRIAL AND DISPENSATION OF JUSTICE.96 rll
Appellant Fernando Morales assigns two errors, contending that the trial court erred
I. IN FAILING TO APPRECIATE THE EXEMPTING CIRCUMSTANCES OF IRRESISTIBLE
FORCE AND/OR UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER INJURY.
II. IN CONVICTING THE ACCUSED-APPELLANTS WHEN CONSPIRACY WAS NOT PROVEN
BEYOND REASONABLE DOUBT.97 rll
Briefly put, in our view, the main issues for resolution are (1) whether the trial court erred in not
appreciating in appellants favor the defense of uncontrollable fear of an equal or greater injury; (2)
whether conspiracy was adequately proven; and (3) whether appellants guilt has been established
beyond reasonable doubt.
Appellant Arturo Malit contends that the trial court erred in giving weight and value to the testimonies
of prosecution witnesses particularly Jefferson Tan and his father, Feliciano Tan. He insists that the
evidence sufficiently proves that he was merely forced to join the group at gunpoint.
He also contends that the trial court committed a grave error in relying on the extrajudicial confession
of Narciso Saldaa to prove conspiracy. According to him, the testimonies of Atty. Eligio Mallari, the
counsel who assisted Saldaa, and Asst. Provincial Prosecutor Roman Razon, before whom the
extrajudicial confession was acknowledged, reveal that at no time was Narciso Saldaa informed of his
constitutional right to counsel of choice. Therefore, the confession was inadmissible in evidence.
Appellant Fernando Morales similarly maintains that he acted due to an uncontrollable fear of an
equal or greater injury. He argues that Romeo Bautistas threat against him and appellant Malit
constituted a clear and imminent danger to their lives and instilled fear in them which made them
incapable of acting with deliberate or criminal intent. This fear existed even at the time they received
the ransom from Feliciano Tan because at that time, accused Narciso Saldaa, Elmer Esguerra, and
Romeo Bautista were only one (1) kilometer away. Had he not joined the group that met Feliciano Tan
to get the ransom money as instructed, or had anything gone wrong at that time, their lives or the lives
of their families would have been endangered.
In addition, appellant Morales submits that conspiracy has not been adequately proven. Narciso
Saldaas confession, not having been identified in open court, is inadmissible in evidence. The
testimonies of Jefferson Tan and his father, Feliciano Tan, likewise do not prove conspiracy. These two
prosecution witnesses did not know that he and appellant Malit were subjected to uncontrollable fear
by Saldaa, Esguerra and Bautista.
Appellants pleas are without sufficient merit. We find no reason to reverse the trial courts judgment of
conviction. A thorough review of the evidence presented in this case leads to no other conclusion than
that the crime of kidnapping for ransom as defined and penalized in Article 267 98 of the Revised
Penal Code has been committed beyond reasonable doubt against the victims Jefferson C. Tan, Jessie
C. Tan, Joanna C. Tan, Malou Ocampo, and Cesar Quiroz.
To begin with, we are not persuaded to overturn the sworn statement of accused Narciso Saldaa, who
admitted his participation in the kidnapping of the victims. Extrajudicial confessions are presumed to
be voluntary, and, in the absence of conclusive evidence showing that the declarants consent in
executing the same has been vitiated, the confession will be sustained. 99 The fact that it was the
investigating officer, SPO4 Antonio Dizon, who requested Atty. Eligio Mallari to assist Saldaa does
not cast doubt on Atty. Mallaris impartiality during the custodial investigation. Since there was no
available lawyer from the Public Attorneys Office and Saldaa had expressed his inability to procure
the services of a lawyer, it was incumbent upon the government, particularly the investigating officer,
to provide Saldaa with a lawyer. Moreover, appellants do not cite bias or incompetence on the part of
Atty. Mallari to assist as counsel for the accused Saldaa. In fact, it clearly appears that Atty. Mallari
duly performed his duty to advise Saldaa on his constitutional rights to silence and to counsel. But
Saldaa insisted on making the extrajudicial confession in the presence of his sister-in-law, voluntarily.
His conviction is in order.
As for accused Elmer Esguerra, we find that the testimonies of prosecution witnesses Jefferson Tan
and Feliciano Tan on his criminal participation in the kidnapping were fully corroborated by the
testimonies of appellants Malit and Morales. There is no doubt, in our mind, as to his culpability for
the crime charged.
As to herein appellants Morales and Malit, we find here a fit occasion to reiterate our ruling in the case
of People v. Del Rosario.100 Under Article 12 of the Revised Penal Code, 101 a person is exempt
from criminal liability if he acts under the compulsion of an irresistible force, or under the impulse of
an uncontrollable fear of equal or greater injury, because such person does not act with freedom. 102
In Del Rosario,103 however, we held that for such defense to prosper the duress, force, fear or
intimidation must be present, imminent and impending, and of such nature as to induce a wellgrounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is
not enough.104 rll
In this case, the evidence on record shows that at the time the ransom money was to be delivered,
appellants Arturo Malit and Fernando Morales, unaccompanied by any of the other accused, entered
the van wherein Feliciano Tan was. At that time Narciso Saldaa, Elmer Esguerra and Romeo Bautista
were waiting for both appellants from a distance of about one (1) kilometer.105 By not availing of
this chance to escape, appellants allegation of fear or duress becomes untenable. 106 We have held
that in order that the circumstance of uncontrollable fear may apply, it is necessary that the compulsion
be of such a character as to leave no opportunity to escape or self-defense in equal combat. 107
Moreover, the reason for their entry to the van, where the father of the victims was, could be taken as
their way of keeping Feliciano Tan under further surveillance at a most critical time.
Appellant Morales contention that their families were similarly threatened finds no support in the
evidence. The records are bereft of any showing that such threats to appellants families were made at
all. We have held in People v. Borja108 that duress as a valid defense should not be speculative or
remote. Even granting arguendothat Saldaa, Bautista, and Esguerra threatened to harm appellants
families to coerce appellants to receive the ransom money at Gumi, Lubao, such threats were not of
such imminence as to preclude any chance of escape. In fact, as already discussed, appellants had a
real chance to escape when they went to Felicianos van. Under the circumstances, even if true, the fear
that appellants allegedly suffered would not suffice to exempt them from incurring criminal liability.
Moreover, kidnap victim Jefferson Tan categorically testified that each of the kidnappers acted of his
own accord and that nobody commanded anyone. 109 According to Jefferson, while appellant Malit
trained the gun on driver Cesar Quiroz, appellant Morales opened the right-side front door of the van
at the same time that accused Elmer Esguerra took the wheel.110 The trial court found Jeffersons
testimony worthy of credence. It disbelieved appellants attempts, while on the witness stand, to put all
the blame on co-accused Narciso Saldaa and Elmer Esguerra who, up to now, remain at large.
Based on the evidence at hand, we find no sufficient reason to disturb the trial courts assessment of the
defense presented by Appellants. The crime of kidnapping is not committed on impulse. It requires
meticulous planning to determine who would be the prospective victim or victims. Its execution needs
precise timing and coordination among the malefactors. It is improbable that a group of kidnappers
would risk the success of their well-planned criminal scheme by involving unwilling persons, much
less strangers, who could abort the kidnapping by refusing to cooperate in its execution. 111 Worse,
such unwilling companions could easily expose their plan to the authorities and subsequently even
testify against them in court. Thus, we find the defense claimed by appellants neither logical nor
satisfactory, much less consistent with human experience and knowledge. For this reason, we also
agree that appellants version of the facts is unworthy of credence, in the light of candid testimonies
given by prosecution witnesses.
Moreover, the assessment of the credibility of witnesses and their testimonies is a matter best
undertaken by the trial court, who had a unique opportunity to observe the witnesses firsthand and to
note their demeanor, conduct and attitude. 112 Findings of the trial court on such matters are binding
and conclusive on the appellate court, unless some facts or circumstances of weight and substance
have been overlooked, misapprehended, or misinterpreted.113 As reiterated in numerous cases, a
witness who testifies in a clear, positive, and convincing manner and remains consistent on crossexamination is a credible witness.114 This is especially so in this case, since prosecution witnesses
Jefferson Tan and Feliciano Tan were not shown to have any ill motive to testify against either
appellant. When there is no evidence to indicate that the witness for the prosecution was moved by
improper motive, the presumption is that such motive was absent, and that his testimony is entitled to
full faith and credit.115 rll
Appellant Arturo Malits insistence that the trial courts appreciation of the testimonies by prosecution
witnesses was faulty deserves scant consideration. He failed to specify any reason why the testimonies
of prosecution witnesses are not entitled to full faith and credit. Neither was it shown that their
testimonies materially contradict each other, or that their testimonies were unbelievable and would not
conform to human experience. Against appellant Malits bare assertions, we find Jefferson Tans
testimony on the kidnapping straightforward and consistent even on cross-examination. In contrast,
appellants testimonies are conflicting. Thus, on one hand, appellant Malit testified that their alleged
captors, their own co-accused, had released him and appellant Morales in Lubao, Pampanga. On the
other hand, appellant Morales declared in his brief that both of them were present in the van with
Feliciano Tan to receive the ransom. Considering the manner by which the offense was executed and
the ransom collected, we entertain no doubt that appellants were willing participants in the kidnapping
of Florencio Tans children.
Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.116 Where all the accused acted in concert at the time of the
commission of the offense, and it is shown by such acts that they had the same purpose or common
design and were united in its execution, conspiracy is sufficiently established. 117 It must be shown
that all participants performed specific acts with such closeness and coordination as to indicate a
common purpose or design to commit the felony.118 rll
In the present case, the evidence shows that all the accused waited near a damaged portion of the
highway in San Vicente, Bacolor, Pampanga. Said spot was chosen deliberately because the van in
which they expected the victims to be would logically slow down to avoid the damaged part of the
road. Appellant Arturo Malit poked a gun at the driver to stop the vehicle and enable appellant
Fernando Morales and their co-accused, Elmer Esguerra and Narciso Saldaa, to board the vehicle. 119
While appellant Malit had his gun still trained on the driver, Esguerra took over the wheel while the
others including appellant Fernando Morales blindfolded the occupants of the van.
When Romeo Bautista and Narciso Saldaa accompanied Jefferson Tan to Balanga, Bataan, to arrange
for the delivery of the ransom, appellants Arturo Malit and Fernando Morales with their co-accused
Elmer Esguerra, guarded the victims. Appellants attended to the needs of the victims. At the bridge in
Sta. Cruz, Lubao, appellants gave Feliciano Tan additional instructions to proceed to Gumi where
Elmer Esguerra waited with the children. There, appellant Malit received the ransom and Esguerra
handed the keys to the van where the children were. These acts point to a close coordination indicating
a common purpose or design to commit the felony of kidnapping for ransom. The circumstances under
which appellants Malit and Morales participated in the commission of the kidnapping for ransom
would not justify in any way their belated claim that they acted under an uncontrollable fear of being
killed by the other kidnappers. Rather, these circumstances establish the fact that appellants
consciously concurred with the acts of the other malefactors to kidnap the children of Feliciano Tan.
Appellant Malit stresses that he did not try to escape from jail during the height of the lahar flow in
Pampanga on October 9, 1995. This is proof, according to him, that he was innocent of the crime
charged.120 But this argument is untenable, an obvious non-sequitur.It is true that flight has been
held to be an admission of guilt yet it is also well settled that non-flight is not proof, much less
conclusive proof, of innocence.121 rll
Appellant Malit also faults the prosecution for not presenting driver Cesar Quirozs affidavit, which
fails to name him (appellant Malit) as one of the abductors. 122 Similarly, he assails the trial courts
order denying his motion for new trial based on newly discovered evidence.
As held by the trial court, however, appellant Malits contentions are unfounded. The matter of
presentation of witnesses by the prosecution is not for appellant or even the trial court to decide. 123
Section 5,124 Rule 110 of the Rules of Court expressly vests in the prosecutor the direction and
control over the prosecution of a case. The determination of which evidence to present rests upon him.
As the prosecution had other witnesses who could sufficiently prove the kidnapping for ransom, it
could dispense with the evidence to be provided by Cesar Quiroz.
Appellant Malits insistence that the trial court erroneously denied him his right to new trial to present
the testimony of Cesar Quiroz is likewise without merit. A motion for new trial based on newly
discovered evidence may only be granted if the following concur: (a) the evidence is discovered after
trial; (b) such evidence could not have been discovered and produced at the trial even with the
exercise of reasonable diligence; and (c) the evidence is material, not merely cumulative,
corroborative, or impeaching and of such weight that, if admitted, could probably change the
judgment.125 rll
In this case, the records show that even before the trial, the Sinumpaang Salaysay of Cesar Quiroz
dated November 18, 1994 was already available to appellant Malit. In fact, during the inquest
investigation, appellant Malit opted for a preliminary investigation. As early as that stage, Cesar
Quiroz as well as his salaysaywas already available and by reasonable diligence could have been
obtained, discovered, and produced at the trial. The records are bereft of any showing that appellant
Malit exerted efforts to secure the attendance of Cesar Quiroz for the purpose of using him as defense
witness.
For this Court to allow a motion for new trial on grounds other than those provided in Section 2, 126
Rule 121 of the Rules of Court,127 the movant must cite peculiar circumstances obtaining in the
case sufficient to warrant a new trial, if only to give the accused an opportunity to establish his
innocence of the crime charged. Appellant Malit, however, does not cite any exceptional circumstance.
In any case, we scrutinized the contents of Quirozs affidavit, but nowhere does it categorically declare
that appellant Malit did not participate in the commission of the crime. Under the circumstances, the
trial court properly denied his motion for new trial.
The elements of the crime of kidnapping and serious illegal detention are the following: (a) the
accused is a private individual; (b) the accused kidnaps or detains another, or in any manner deprives
the latter of his liberty; (c) the act of detention or kidnapping is illegal; and (d) in the commission of
the offense, any of the four circumstances mentioned in Article 267 128 of the Revised Penal Code
are present. The imposition of the death penalty is mandatory if the kidnapping was committed for the
purpose of extorting ransom. In the instant case, appellants cannot escape the penalty of death,
inasmuch as it was sufficiently alleged and indubitably proven that the kidnapping had been
committed for the purpose of extorting ransom.129 rll
Three (3) members of this Court, although maintaining their adherence to the separate opinion
expressed in People v. Echegaray,G. R. No. 117472, February 7, 1997, 267 SCRA 682, that R. A.
7659, insofar as it prescribes the penalty of death is unconstitutional, nevertheless submit to the ruling
of the majority that the law is constitutional, and that the death penalty should accordingly be
imposed.
As to the award of damages, aside from the P92,000 in actual damages which represent the amount of
the ransom money Feliciano Tan paid to appellants and their cohorts, exemplary damages in the
amount of P25,000 should be paid by the appellants and their co-accused to the victims, by way of
public example and to serve as a deterrent against malefactors who prey on children and other
defenseless victims.
WHEREFORE, the Decision dated February 2, 1999, of the Regional Trial Court of San Fernando,
Pampanga, Branch 47, in Criminal Case No. 8371, finding accused NARCISO SALDAA and ELMER
ESGUERRA and appellants FERNANDO MORALES and ARTURO MALIT GUILTY beyond
reasonable doubt of the crime of kidnapping for ransom and sentencing each of them to death is
hereby AFFIRMED. They are likewise ordered to pay, jointly and severally, actual damages in the
amount of P92,000. 00 representing the amount of ransom paid by the victims father, as well as the
sum of P25,000. 00 as exemplary damages.
Let alias warrants issue for the immediate arrest by the NBI and the PNP of accused Narciso Saldaa
and Elmer Esguerra, now at large.
In accordance with Section 25 of Republic Act No. 7659 amending Section 83 of the Revised Penal
Code, let the records of this case be forthwith forwarded, upon finality of this decision, to the Office of
the President for the possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and TINGA, JJ., concur.
Vitug, J., on official leave.
Endnotes:
EN BANC
[G.R. No. L-43957. February 10, 1981.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ANTONIO ONG Y LAXAMANA,
Defendant-Appellant.
The Solicitor General for Plaintiff-Appellee.
Salvador H. Laurel, for Defendant-Appellant.
SYNOPSIS
Four persons surreptitiously boarded the baggage car of a PNR train which was slowly departing from
the station in Bian, Laguna. In the baggage car were employees of the PNR and the steel safe where
the collections for the day were kept. Minutes later, shots rang out and after sometime the four person
jumped off. At the Paco station, the lifeless body of a PNR employee was found in the baggage car
and the contents of the steel safe and two guns were missing. The rest of the employees were found
under a pile of boxes with their hand tied. Among the four persons who boarded the train and who
were charged with robbery in band with homicide in connection with the incident was appellant Ong.
Ong admitted having joined in the conspiracy to commit the robbery and having actually participated
in the robbery but claimed that immediately before they boarded the train was already desisting from
participating in the robbery but a co-accused had intimidated him and force him at gun point to board
the train. He averred that he was unarmed and was not responsible for the shooting and killing of the
PNR employee and that he later refused to receive his share of the loot. The trial court did not find
appellants defense credible because of evidence showing that he could have easily desisted from
participating in the commission of the crime if he really wanted to. He was found guilty as charged
with the attendant aggravating circumstances of nocturnity and use of a motor vehicle, and was
sentenced to death as a principal.
On automatic review, the Supreme Court held that appellants allegation of fear and duress failed to
meet the test that in order to be a valid defense it should based on real, imminent, or reasonable fear
for ones life or limb and should not be inspired by speculative, fanciful, or remote fear; and that since
the conspiracy to commit the robbery is clear and convincing, it matters not who of the four persons
who boarded the train shot and killed the victim.
Judgment affirmed but for lack of the necessary votes the appellant was sentenced to reclusion
perpetua.
SYLLABUS
1. CRIMINAL LAW; ATTENDANT CIRCUMSTANCE; EXEMPTING CIRCUMSTANCE; FEAR
AND DURESS MUST BE REAL AND IMMINENT. Fear and duress as a valid defense should be
based on real, imminent, or reasonable fear for ones life or limb. It should not be inspired by
speculative, fanciful, or remote fear. (People v. Semaada, Et Al., 103 Phil. 790 [1958].)
2. ID.; CONSPIRACY; LIABILITY OF CONSPIRATORS; CASE AT BAR. Where the conspiracy
to commit the robbery is clear and convincing, it matters not who of the four persons that boarded the
train to rob it shot and killed the PNR employee on the occasion of the said robbery.
3. ID.; ROBBERY WITH HOMICIDE WITH AGGRAVATING CIRCUMSTANCE OF
NOCTURNITY AND USE OF MOTOR VEHICLE; FURTHER PROOF OF ITS COMMISSION BY
A BAND WILL NOT AFFECT IMPOSABLE PENALTY. Where the conspiracy to commit the
robbery which resulted in a homicide and attended by two aggravating circumstance has been
established, to prove whether or not it was committed by more than three armed male factors is
immaterial and will not affect the imposable penalty. (People v. Espejo, Et Al., L-27708, Dec 1970, 36
SCRA 400.)
DECISION
ABAD SANTOS, J.:
In the evening of March 16, 1972, at about 10:00 oclock, Philippine National Railways (PNR) train
No. 512 was slowly departing from the station in Bian, Laguna, to continue its trip to Manila. Train
No. 512 was the Bicol Express and it picked up not only passengers but also collections for the day of
the stations along the way. Four persons surreptitiously boarded one of the baggage cars hooked to the
train. The car had PNR employees Guillermo Lopez, Juan Macapagal, Gregorio Juguilon, Benjamin
Guinto and Mauricio Costales plus cargo and a steel safe where the collections were kept. Minutes
later, shots rang out and after sometime the four persons who had boarded the car jumped off. When
the train stopped at the Paco Station in Manila and nobody in the baggage car appeared to receive the
stations collection for the day, the PNR police entered it to investigate. There Juan Macapagal was
found sprawled on the floor already dead. According to Dr. Angelo Singian of the Manila
Metropolitan Police, Macapagal died from two gunshot wounds. (Exh. A.) Benjamin Guinto and the
others were found under a pile of boxes with their hands tied.chanrobles virtual lawlibrary
In an investigation made by PNR police, it was found that the contents of the steel safe had been taken
which according to Exh. B amounted to P32,326.68. Also missing were the guns of Juan Macapagal
and Guillermo Lopez.
The Interpol Section of the National Bureau of Investigation conducted an investigation and as a result
thereof the following information was filed in the Court of First Instance of Laguna and denominated
as Criminal Case No. 252-B, to wit:jgc:chanrobles.com.ph
"The undersigned 1st Assistant Provincial Fiscal accused ALFREDO LARIOZA, ANTONIO ONG,
FAUSTINO BUENCONSEJO, FRANCISCO LARIOZA, RICARDO GONZALES, FLORENTINO
RODRIGUEZ (at large), ELINO CRESPO (at large), MAXIMO CASIPIT (at large), CLEMENTE
CILLOCO, JR. (at large) and JOHN DOE (at large) of the crime of `ROBBERY IN BAND WITH
HOMICIDE (Article 294 in relation to Article 296 of the Revised Penal Code), committed as
follows:chanrob1es virtual 1aw library
That on or about March 16, 1972, in the Municipality of Bian, Province of Laguna, Republic of the
Philippines and within the jurisdiction of this Honorable Court the accused above-named conspiring,
confederating and mutually helping one another boarded PNR Train 512 at Bian, Laguna bound for
Manila; that accused Florentino Rodriguez, Antonio Ong, Elino Crespo and Jesus Mendiola
(deceased) were armed with unlicensed firearms of different calibers; that accused with intent of gain
and by means of violence, force and intimidation of persons, did then and there wilfully, unlawfully
and feloniously take, steal and carry away P39,595.29 in cash and checks; two 22 caliber revolvers,
and other personal articles from the Route Agents and belonging to the Philippine National Railways;
that by reason and on the occasion of the robbery Route Agent Juan Macapagal was shot by the
accused for which he sustained two (2) gunshot wounds which caused his death.
With the aggravating circumstances that the crime was committed with the use of motor vehicle, night
time and use of unlicensed firearms."cralaw virtua1aw library
What took place thereafter is
narrated
in
the
decision
of
the
trial
court
as
"Upon being arraigned on August 14, 1972, the accused Alfredo Larioza y Soriano, Antonio Ong y
Laxamana, Faustino Buenconsejo y Ramos, Ricardo Gonzales y Jocson and Frank Larioza y Soriano
pleaded not guilty to the offense charged and the trial of the case against them started.
While the trial was in progress, the accused Florentino Rodriguez y de la Paz was apprehended and
brought to the jurisdiction of this Court after preliminary investigation was conducted with respect to
him by the Municipal Court. After withdrawing the plea of not guilty he had earlier interposed and
substituting, in lieu thereof, a plea of guilty to the crime charged, he was sentenced accordingly in a
decision rendered by this Court on May 25, 1973, ...
Again, when the trial of the case was about to be terminated, the accused Clemente M. Silloco, Jr. was
arrested by agents of the law. As it was already during the late stages of the proceedings when this
accused was placed under custody, his motion for separate trial was granted. However, since the
prosecutions principal witness Ricardo Gonzales can no longer be located and his whereabouts cannot
be ascertained notwithstanding efforts exerted, the case against Clemente Silloco, Jr. was provisionally
dismissed, with his express consent, pursuant to the order of this Court dated April 18, 1974.
At the outset, in a motion dated September 13, 1972, the prosecution sought the discharge of the
accused Faustino Buenconsejo y Ramos and Ricardo Gonzales y Jocson from the information in order
that they may be utilized as witness for the government. In their written opposition dated October 25,
1972, the accused Alfredo Larioza, Frank Larioza and Antonio Ong, thru counsel, offered no objection
to the discharge of the accused Faustino Buenconsejo but vehemently opposed the discharge of the
accused Ricardo Gonzales. In its order dated October 27, 1972, this Court discharged the accused
Faustino Buenconsejo from the information but held in abeyance its resolution on the motion to
discharge the accused Gonzales until after it has heard the other witnesses for the prosecution. Finally,
in its order dated January 11, 1973, this Court likewise allowed the discharge of the accused Ricardo
Gonzales after it was convinced of the propriety thereof. This ruling of this Court was contested by the
defense of the accused Alfredo Larioza, Frank Larioza and Antonio Ong by filing with the Supreme
Court a Petition for Certiorari, Prohibition with Prayer for a Writ of Preliminary Injunction, which
petition, however, was denied by the Supreme Court in a resolution rendered by it on May 7, 1973.
In view of these circumstances, the trial of this case proceeded only against the accused Alfredo
Larioza y Soriano, Frank Larioza y Soriano and Antonio Ong y Laxamana." cralaw virtua1aw
library
After trial, Frank (Francisco) Larioza was acquitted. According to the trial court, "he was an innocent
participant in the commission of the offense." Antonio Ong was found guilty as principal of the crime
of robbery in band with homicide and sentenced to DEATH while Alfredo Larioza was found guilty as
an accessory after the fact and sentenced to an indeterminate penalty of four (4) years, two (2) months
and one (1) day of prision correccional to ten (10) years and one (1) day of prision mayor. Both of
them were also "ordered to indemnify, jointly and severally, the heirs of Juan Macapagal in the sum of
P15,000.00 and P800.00, the latter amount being the value fixed by the Court of his .22 caliber
firearm, Guillermo Lopez in the sum of P800.00, value of the .22 caliber firearm taken from him, and
the Philippine National Railways in the sum of P32,326.82, to suffer the accessory penalties
prescribed by law and to pay the proportionate costs of the proceedings."cralaw virtua1aw library
Alfredo Larioza did not appeal his conviction. Hence, only the case of Antonio Ong is before us on
automatic review.
The four persons who surreptitiously boarded train No. 512 as it was leaving Bian, Laguna, in the
evening of March 16, 1972, were Antonio Ong, Jesus Mendiola (who died at the Trece Martires
Hospital from a gunshot wound during the robbery), Elino Crespo (still at large) and Florentino
Rodriguez (who pleaded guilty and was sentenced as above stated).
That Ong boarded the train was proved not only by the testimony of Benjamin Guinto, Guillermo
Lopez, Mauricio Costales and Gregorio Juguilon, the PNR employees who were with Juan Macapagal
in the baggage car, but also by Ong himself. The testimony of Ong as summarized by the trial court is
as follows:jgc:chanrobles.com.ph
"Testifying for his defense, he declared that he came to know Florentino Rodriguez about the month of
January, 1972; that Ricardo Gonzales was introduced to him by Rodriguez in Malabon, Rizal about
February of 1972; that he came to know Faustino Buenconsejo, Maximo Casipit and Elino Crespo
only in the house of Ricardo Gonzales when the robbery was being planned; that he came to know
Alfredo Larioza after the train hold-up already; that he came to know Francisco Larioza only on the
day of the robbery; that he was brought by Rodriguez to Gonzales because he was looking for work as
his wife was on the family way and when they talked to Gonzales, the latter talked to them about the
hold-up of the train from Bicol; that sometime later, Gonzales sent for him and when he arrived in the
formers house, Rodriguez, Buenconsejo, Mendiola, Casipit and Gonzales himself were there and they
planned the robbery with Gonzales giving the instructions; that Alfredo Larioza and Francisco Larioza
were not present during the meeting; that their first attempt to hold-up the train did not push through
because the train had already passed the Bian station when they arrived; that they agreed to execute
their plan the following day so together with Gonzales, Rodriguez, Mendiola, Casipit, and Crespo,
they boarded the jeep of Francisco Larioza, driven by the latter, and they proceeded to Bian station
again; that Gonzales told them inside the house not to talk about the plan because Francisco Larioza
did not know it; that they were not able to carry out their plan because of the presence of PC men so
Gonzales said that they will proceed with the hold-up the following day; that in their group this time
were Gonzales, Rodriguez, Casipit, Mendiola, Crespo, Frank Larioza and himself and they were again
riding in the jeep driven by Larioza; that they never talked about their plan during their trip to Bian;
that they arrived in Bian at 8:00 oclock in the evening and the train arrived past 10:00 oclock; that
it was Mendiola, Rodriguez, Crespo and himself who boarded the train but before they did, he had a
quarrel with Mendiola near the railroad tracks because he was already withdrawing as he was scared
and besides his wife was about to give birth and if it comes to the knowledge of his wife, she might
have a miscarriage; that Mendiola got angry and told him, with his gun drawn and pointed against
him, that if he will not board the train, he will kill him right then and there; that he was not carrying
any gun at that moment and he got scared of Mendiola, hence, he was forced to board the train, that it
was he who first boarded the train, followed by Mendiola, then Crespo and Rodriguez; that he did not
have any gun and was carrying only a bag but his three companions were all armed; that once aboard
the baggage car, he was asked by one of the guards where they were going and he answered that he
will get off at Paco station; that they were asked whether they were carrying anything and when they
answered that they were not, one of the guards told his companion to search them; that when Ben
Guinto, one of the train personnel, was approaching him, he (Ong) was pushed by Mendiola and as a
result, he and Guinto fell down; that after they fell, Rodriguez shouted that that was a hold-up and then
a commotion ensued; that he then heard a shot fired by Rodriguez and then he heard (2) more shots
fired by Mendiola and Juan Macapagal, the train employee who died; that after the shooting, Crespo
ordered all the train personnel to lie down, one on top of the other, then his companions took the
money from the safe and placed it in the bag he was carrying and later they jumped off the train one
by one at the designated spot; that he did not do anything inside the train during the commotion
because he was scared and he just kept on sitting in the place where he landed after he was pushed by
Mendiola; that they later saw the jeep of Francisco Larioza waiting for them and they boarded the
same and proceeded to the house of Alfredo Larioza upon request of Mendiola who had a gunshot
wound and wanted a doctor to be called; that Alfredo Larioza was not in the house and he was
summoned by his son and when he came, he protested the bringing of Mendiola to his house claiming
that he might be implicated but he was forced to quiet down when Gonzales, drawing his pistol, told
him to keep quiet; that the money was then counted and divided but the brothers Francisco and
Alfredo refused to accept any part of it; that he also did not accept the share being offered to him as he
was afraid he cannot reason out to his wife how he got the money; that he was arrested by the agents
of the NBI on June 20, 1972 and like Alfredo Larioza, he was tortured and subjected to all kinds of
maltreatment to make him confess to the hold-up; that finally, he was forced to sign an already
prepared written statement which he was not even allowed to read; that when he was brought before
the Municipal Judge of Bian, Laguna, he told the judge that he did not know the contents of the
statement, so it was read to him and he thereafter signed it, but he did not report the maltreatment he
suffered because before he was brought to the Municipal Court he was warned by an NBI agent that if
he will not sign the statement, he will be tortured again."cralaw virtua1aw library
The defense of Ong can be denominated as "confession and avoidance." He admitted his participation
in the robbery but nonetheless claims exemption from liability because he allegedly acted "under the
compulsion of an irresistible force" or "under the impulse of an uncontrollable fear of an equal or
greater injury." (Art. 12, pars. 5 and 6, Revised Penal Code.) And according to him, the one who was
the cause of it all was Jesus Mendiola who died as aforesaid.
It has been held that fear or duress as a valid defense should be based on real, imminent, or reasonable
fear for ones life or limb. It should not be inspired by speculative, fanciful, or remote fear. (People v.
Semaada, Et Al., 103 Phil. 790 [1958].) Does the appellants defense meet this test? The answer is in
the negative and again we quote with approval from the well-written and well-reasoned decision of the
trial court:jgc:chanrobles.com.ph
"The evidence presented by both the prosecution and the defense establish the fact that Ong was with
the group that originally discussed the plan to rob the PNR train. It is not disputed that he was present
during the meetings held in the house of Ricardo Gonzales on March 14, 15 and 16, 1972. He likewise
admitted that he was with the group who went to Bian on March 14, 1972 and he was among those
supposed to board the train and stage the hold-up. Again, on March 15, 1972, he was with the party
that was supposed to climb the train. Finally, on March 16, 1972, when the robbery was carried out, he
was among the four who boarded the baggage car. He claims, however, that before he boarded the
train, he was already withdrawing from the plan as he was afraid because something might happen to
him and his wife might learn about it and she might have a miscarriage as she was then pregnant.
Because he was already desisting from taking part in the robbery, he had a quarrel with Jesus
Mendiola in the presence of Florentino Rodriguez near the railroad station of Bian. Finally, Mendiola
got angry and told him that if he will not board the train, he will kill him "right then and there", Jesus
Mendiola at the same time pulling out his gun and pointing it at him. He got scared and for this reason,
he was forced to obey Mendiola and he boarded the train. He claims, however, that inside the train, he
did not do anything in pursuance of the robbery. He did not fire any shot; he did not tie anybody; and
he did not take anything from the train. He likewise denied having received any amount from the
proceeds of the robbery because he refused as he might not be able to justify, in case his wife inquires,
where he got the money.
It is surprising why, after Ong was all set to participate in the robbery, as shown by his readiness on
two previous occasions which did not materialize, he would suddenly change his mind and desist from
doing so. The reasons he had given do not seem plausible enough. He stated before that he agreed to
participate in the robbery because he needed money as his wife was on the family way. Later he claims
that he was desisting because of the same reason that his wife was about to give birth and he was
ashamed she might learn about it. Moreover, had he really wanted to back out from the plan, he could
have not proceeded to the house of Gonzales on that evening of March 16, 1972. He admitted that
even before he went to Gonzales house, he was already thinking about his wife. Thus, he
stated:jgc:chanrobles.com.ph
"FISCAL:chanrob1es virtual 1aw library
Q Were you already afraid when you started from the house of Carding going to Bian?
A Yes, sir.
Q Were you already thinking of your family when you left the house of Carding going to Bian?
A Yes, sir.
Q And you were already thinking about your wife who was going to deliver a baby and you might
be killed?
A Yes, sir.
Q All those thoughts were with you when you went to the house of Carding?
A Yes, sir.
Q As a matter of fact, before you arrived to the house of Carding, those thoughts were already in
your mind?
A Yes, sir.
Q And despite all those thoughts that were already in your mind, you still went to the house of
Carding?
A Yes, sir.
Q You were alone when you went to the house of Carding?
A Yes, sir.
Q Nobody forced you to go to the house of Carding?
A None, sir.
Q You voluntarily went to the house of Carding?
A Yes, sir.
Q And you know that when you go to the house of Carding, you and your companions will proceed
to Bian to proceed with the hold-up?
A Yes, sir.
It is also absurd to think that Ong would not accept his share in the loot after he had undergone all the
dangers in committing the offense. His primary purpose in participating therein, as he had admitted in
Court, was for him to have money as his wife was about to give birth. Can he resist his share when
offered to him?
Had Ong really wanted to desist from participating in the robbery, he could have done so without fear
from anybody. He admitted that even before going to Bian that evening of the robbery, he was
already scared to participate in it. No one among his companions knew about this intention of his to
withdraw from the plan. As a matter of fact, they were about to board the train when he told this to
Mendiola. He did not have to tell any of his companions about his plan of backing out. According to
him the group arrived at Bian station at about 8:00 p.m. and the train arrived at 10:00 p.m. (tsn, Nov.
9, 1973, p. 62) and during the two-hour period that they were waiting, he could have easily
disassociated from the group and simply returned to Manila. Nobody, particularly Jesus Mendiola,
would be watching him as he did not know that he was desisting. Furthermore, Ong admitted that
there were many people milling at the station on that evening, only a few meters away from the place
where he and Mendiola were allegedly quarreling. He could have easily attracted the attention of those
people and resisted the threat being made on him by Mendiola.
In his statement given before the agents of the NBI, Ong made no mention of the fact that while at
Bian, he was already desisting from participating in the robbery. Neither did he make it appear
therein that Mendiola forced him to board the train against his will. There was no indication
whatsoever in said statement that he was an unwilling perpetrator of the hold-up. He claims that he
was forced to sign the said statement by the NBI agents who used all forms of maltreatment against
him and that he did not even know the contents of the statement when he signed it. But this is negated
by his own testimony in Court wherein he admitted that when he was brought before Judge Leonardo
Paner of the Municipal Court of Bian, Laguna, he did not tell the Judge that he was maltreated by the
NBI agents and he was forced to sign the statement. Instead, notwithstanding that Judge Paner told
him that because they were alone in the room and nobody will harm him so he can tell him the truth,
he just affirmed the contents of his statement and took his oath on it (tsn, Feb. 22, 1974, p. 22).
Moreover, the occupants of the ill-fated baggage car disprove Ongs claim that he did not do anything
after he boarded the same. Prosecution witnesses Ben Guinto, Guillermo Lopez, Melencio Costales
and Gregorio Juguilon corroborated one another in testifying that it was Ong who tried to make
Macapagal believe that they were merely hitch-hiking up to Paco station because they had no money.
It was also Ong who tried to hit Guinto with a gun at his forehead. This was not denied by Ong in the
course of his testimony. Are these the acts of a person who wanted to stay within the folds of the law
as claimed by him?"
The conspiracy to commit the robbery is clear and convincing. So it matters not who of the four
persons that boarded Train No. 512 shot and killed Juan Macapagal. (People v. Espejo, Et Al., L27708, Dec. 1970, 36 SCRA 400.)
The aggravating circumstances of use of a motor vehicle (a jeep owned and driven by Francisco
Larioza) and nocturnity which were found to be present by the trial court have not been contested by
the Appellant.
What he contests is the finding of the trial court that the crime was committed by a band. To discuss
this matter seems to be a useless exercise on a legal point for the conspiracy to commit the robbery
which resulted in a homicide and attended by two aggravating circumstances has been established.
Whether or not it was committed by more than three armed malefactors is immaterial and will not
affect the imposable penalty. (People v. Espejo, Et Al., supra.) In any event, the evidence shows that
Ong, Mendiola, Crespo and Rodriguez were all armed.
WHEREFORE, the judgment of the lower court finding the appellant guilty of the crime of robbery in
band with homicide is hereby affirmed. However, for lack of the required number of votes, the penalty
imposed by the lower court is hereby reduced from death to reclusion perpetua; the judgment is
affirmed in all other respects.chanrobles.com:cralaw:red
SO ORDERED.
Fernando, C.J., Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero, De Castro and MelencioHerrera, JJ., concur.
TEEHANKEE, J.:
Considering that the herein accused was not shown to have a direct active participation in the
commission of the robbery, much less in the exchange of gunshots which resulted in the deaths of the
PNR employee Juan Macapagal and Jesus Mendiola who appeared to be the gang leader, I vote for the
imposition of the lesser penalty of reclusion perpetua.
EN BANC
[G.R. No. L-32265. May 16, 1983.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ERNESTO RAMOS y ANTONIO,

ELADIO CALUYA y BINUYA, SIXTO GABORNE y LLUADER and EDUARDO
SUBLECHERO y GABUAT, Defendants-Appellants.
The Solicitor General for Plaintiff-Appellee.
Amado Sison for E. Sublechero.
Ernesto C.S. Sibal for E. Ramos, Defendants-Appellants.
SYLLABUS
1. CRIMINAL LAW; EXEMPTING CIRCUMSTANCES; IRRESISTIBLE FORCE AND
UNCONTROLLABLE FEAR; ABSENCE THEREOF. We find no reason to differ from the
conclusions reached by the trial court in finding herein appellants guilty beyond reasonable doubt of
the crime charged. The defense invoked by the appellants that they acted in view of the irresistible
force and uncontrollable fear of Boy Andy in the unfortunate incident which resulted in the death of
Dr. Mariano Gana is devoid of merit. Basis of these two exempting circumstances is the complete
absence of freedom. In the case at bar, appellants Ramos, Sublechero and Caluya failed to show that
they resisted the threats of Boy Andy and that in spite of their resistance they were still forced to act in
accordance with his wishes. Their fear of Boy Andy was merely speculative and there was complete
absence of real or reasonable fear for ones life. Had appellants wanted to, they could have easily
overpowered Boy Andy who was alone.
2. ID.; ROBBERY WITH HOMICIDE; CONSPIRACY; COMMUNITY OF DESIGN APPARENT IN
THE MANNER CRIME WAS EXECUTED. On the other hand, the manner in which the crime
was executed shows that appellants had community of design and that they cooperated and helped
each other in the commission thereof. They met in Samson Road, Caloocan City and from there
proceeded to the scene of the crime. In the presence of the appellants, Boy Andy bought a rope from a
store. Upon entering the house, each one performed his assigned task and after the commission of the
crime, they left the scene of the crime and met in the place of Boy Andy to get their respective shares.
3. ID.; ID.; PENALTY; DEATH PENALTY REDUCED TO RECLUSION PERPETUA IN THE
ABSENCE OF THE NECESSARY VOTES. The peoples evidence is sufficient to sustain the
judgment appealed from. However, in the absence of the necessary votes, the Supreme Court had to
impose the penalty lower than death which is reclusion perpetua.
DECISION
RELOVA, J.:
Automatic review of the decision of the Court of First Instance of Rizal, Branch XIV at Caloocan City,
for robbery with homicide, sentencing Ernesto Ramos, Eladio Caluya, Eduardo Sublechero, and Sixto
Gaborne "to suffer the supreme penalty of death by electrocution, and to indemnify the heirs of Dr.
Mariano Gana jointly and severally the sum of P12,200.00, without subsidiary imprisonment in case
of insolvency and to pay the costs."cralaw virtua1aw library
With respect to the accused Sixto Gaborne who, upon arraignment, pleaded guilty to the charge and
was sentenced accordingly, this Court on July 25, 1974 set aside the decision of the lower court of
March 5, 1970 and granted him a new trial "to enable him to be afforded the opportunity to be heard in
accordance with the guidelines set forth by this Court from Apduhan and the subsequent cases." Thus,
this appeal concerns the accused Ernesto Ramos y Antonio, Eladio Caluya y Binuya and Eduardo
Sublechero y Gabuat only.
Evidence shows that about nine oclock in the evening of December 8, 1967, Vilma Pitelo and
Milagros Bural, housemaids of Dr. and Mrs. Mariano Gana whose residence is at 139 Tirad Pass,
Balintawak, Caloocan City were in the kitchen of the said Gana residence. Vilma was scrubbing the
kitchen floor while Milagros was putting water in bottles near the kitchen sink. Suddenly, appellant
Ernesto Ramos came from behind Milagros Bural, held her left shoulder and tied a handkerchief over
her mouth. A companion of Ernesto Ramos helped in tying her hands behind her back, following
which Vilma Pitelo was also tied, her mouth with a twisted shirt and her hands and feet tied with a
rope. Upon hearing the footsteps from the other side of the kitchen, Milagros Bural and Vilma Pitelo
saw Ernesto Ramos and the other appellants who had entered the kitchen door, hide behind the door
near the refrigerator. Dr. Gana entered the kitchen and got a bottle of water inside the refrigerator. He
then went back to the sala and listened to the radio.chanrobles virtual lawlibrary
Appellants entered the sala, except Ernesto Ramos who stayed and stood guard in the kitchen.
Suddenly, Mrs. Rosario Bella-Gana who at the time was resting in her bedroom at the ground floor of
their residence heard a groan and thinking that her husband, Dr. Gana, might be suffering from
"bangungot", shouted: "Manoy, Manoy, may sakit ka ba? Ano ang nangyari?" and immediately rushed
to leave her room to give her husband a glass of water. As she opened the door, she met appellants
Caluya, Sublechero, Gaborne and another one she described as tall and thin. These four men led her
back to her room and demanded money. Mrs. Gana told them they can get every thing and pleaded not
to hurt her. Appellant Sublechero asked for the key to the aparador while the tall one took the money
which is a little over P200.00.
Thereafter, the four men led Mrs. Gana to the kitchen where they tied her hands behind her back with
a rope. She was made to join her two maids who were tied to the ricesack near the cupboard. The five
men including Ernesto Ramos fled from the house.
Mrs. Gana managed to go up to the second floor of the house where she called her daughter-in-law,
Sarah Florentino Gana, who untied her. They went down the ground floor where they saw Dr. Gana
slumped at the foot of the stairs, soaked with blood. Sarah went to the kitchen and untied the maids,
following which, they returned to the sala and found Dr. Gana already dead.
The matter was reported to the police who came to investigate and ordered the members of the
household not to touch anything. Vilma then and there told the police that she knew one of the five
men, Eduardo Sublechero, because the latter used to play basketball in their yard.
After the statements of the other witnesses had been taken, appellants Ernesto Ramos, Eladio Caluya
and Eduardo Sublechero were investigated by the police of Caloocan City before whom they gave
their respective statements which were subscribed and sworn to before the inquest fiscal. Sixto
Gaborne refused to give a statement.
Dr. Plaridel Vidal of the National Bureau of Investigation conducted the examination on the body of
the deceased Dr. Mariano Gana. Necropsy report shows that the victim died of" [h]emorrhage,
meningeal, subdural, subarachnoidal, extensive and generalized, traumatic." (Exhibit "F")
In his defense, Ernesto Ramos professed innocence of the crime charged due to the exempting
circumstance of irresistible force and uncontrollable fear. His evidence tends to show
that:chanrobles.com:cralaw:red
" [O]n December 8, 1967, at about 7:00 oclock in the evening, Accused-appellant Ernesto Ramos was
fetched from his house at 109 G. de Jesus, Caloocan City by co-accused Eduardo Sublechero and
brought to the house of the latter at General Tirona, Bagong Barrio, Caloocan City to fill out
application forms for overseas employment. While thus preparing their application forms, two other
co-accused, Sixto Gaborne and Boy Andy came and invited them to eat in a restaurant for they won in
gambling. (t.s.n., p. 3, March 19, 1969). Thereafter, they proceeded to a store at Bagong Barrio where
Boy Andy bought a rope. Upon seeing the rope, Accused-appellant Ernesto Ramos became curious
and asked Boy Andy what he will do with the rope and he was told to keep quiet but after about two
minutes Ernesto Ramos insisted in knowing what the rope was for. Finally Boy Andy told them if they
really want to have money. Ernesto Ramos protested and said what they were thinking was not good
and that he wanted to go home. Boy Andy prevented him from leaving for he had already known of
their evil scheme and was afraid he might ten the police. When Ernesto Ramos refused to join them,
and was insisting to go home, Boy Andy held him by the collar of his shirt at the same time pulling out
a dagger which he pointed to Ramos and told him if Ramos will not go with him he will kill him. For
fear, Ramos went with them to Samson Road where they waited for Jojo, From there, they proceeded
to the house of Dr. Mariano Gana. After cutting the wire fence, Boy Andy pushed Eduardo Sublechero
inside. When they were all inside, Ramos was forced by Andy to go inside too. Ramos knees were
trembling (t.s.n., p. 4, March 19, 1969) Ramos saw the two housemaids hogtied but he could not see
clearly who hogtied them for it was dark inside the lights were off. Boy Andy ordered Ramos to
stand guard and threatened him not to leave or he will kill him. After a while he heard banging noises
inside and then saw all the others running towards the kitchen so all of them ran outside of the house,
and proceeded to Boy Andys house where the loot of P200.00 was divided. At first Ramos refused to
accept his share of P40.00 by saying they could keep it and he will just go home. When Boy Andy
suspected that Ramos might tell the police of the incident, the latter got nervous and afraid so for fear
of his life, he accepted the money and went home. The following day, they were arrested by the police
and investigated at the police headquarters." (pp. 3 & 4, Appellant Ernesto Ramos Brief)
The defense of Eduardo Sublechero is as follows: On December 8, 1967, he and Ernesto Ramos were
preparing their applications for overseas employment. Boy Andy arrived and invited them to go to
Bagong Barrio. On the way, and in front of the house of Dr. Mariano Gana, Boy Andy held Sublechero
by the collar of his shirt, poked a three-bladed instrument at him and ordered him to enter the
residence of Dr. Mariano Gana. While inside the residence of the victim, Sublechero did not have the
chance to go out of the house because Boy Andy was always beside him. In short, this appellant
claims exemption from any criminal liability because his acts and/or participation in the criminal
design of Boy Andy, who up to then remains at large, was under compulsion of an irresistible force
and under the impulse of an uncontrollable fear of an equal or greater injury.
Likewise, Eladio Caluya claims that on December 8, 1967, at about 8:00 in the evening he was on his
way to his residence at Bagong Barrio, Caloocan City, from work at the Asiatic Shoe Factory and met
Boy Andy, Gaborne, Sublechero and Ramos waiting for him at Samson Road. He claimed no
conversation took place among them and they walked towards Bagong Barrio until they reached the
residence of Dr. Mariano Gana. They stopped in front of said house and he claimed he was surprised
when Boy Andy told them that they would enter the said house to rob. He remonstrated but Boy Andy
threatened to kill him if he would not join. His testimony follows:chanrobles law library
"Q When he told you would rob said house, what did you do, you particularly?
A I told him that I would not go with him.
Q When you told him you would not go with him, what happened?
A He threatened me if I would not go with them, he would kill me.
Q When he threatened you, did he have any weapon with him then?
A He had.
Q What was with him?
A A knife this long (Witness demonstrating a foot long).
ATTY. BALGONA:chanrob1es virtual 1aw library
Q Did he threatened you with that knife?
A Yes, sir, by poking the same at my side.
Q Did you finally enter the premises of the house of Doctor Gana?
A Yes, sir." (tsn. p. 21, March 19, 1969 hearing).
He claimed, however, that he did not do anything while inside the house of Dr. Gana.
"Q What did you do when you were already at the premises of the house of Doctor Gana?
A None, sir." (tsn. p. 21, March 19, 1969 hearing)
On December 9, 1967, at about 3:00 in the morning, he was apprehended at his residence by
policemen and brought to the Caloocan City Police Headquarters for investigation.
The trial court, with valid reason, refused to accept the alleged threat employed by Boy Andy to kill
them if they would not join him and considered the same as flimsy and in adequate so as to strike fear
in their hearts and compel them to obey and commit the heinous crime. "Even if Boy Andy was armed
with a knife, he was alone and the three accused could manage to overpower him if not escape from
the scene of the crime. It is evident that accused Ramos, Sublechero and Caluya were willing
participants in the pursuit of their criminal design to rob and kill. The excuses of the defendants cannot
prevail over the clear, conclusive and positive evidence of the prosecution. Moreover, the crime
committed was proven independently of the extra-judicial confessions of the accused thru the
testimonies of the prosecution witnesses beyond reasonable doubt. It is further observed by the Court
that the evidence on record offers sufficient and ample ground to conclude that the accused committed
the crime of robbery with homicide pursuant to a conspiracy. The circumstance of their meeting
together one night in one place from which they proceeded to the scene of the crime; the taking along
with them a newly bought rope; their separate, individual and assigned tasks in the commission of the
crime; the almost militant dispatch and precision in the perpetration of the crime; and their departure
together from the scene of the crime and meeting in one place to divide the loot all these facts and
circumstances taken together clearly manifest a preconceived, well-planned and concerted action on
the part of the accused in pursuance of their common and evil design to rob and kill." (Decision, pp.
27- 28)chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
We find no reason to differ from the conclusions reached by the trial court in finding herein appellants
guilty beyond reasonable doubt of the crime charged. The defense invoked by the appellants that they
acted in view of the irresistible force and uncontrollable fear of Boy Andy in the unfortunate incident
which resulted in the death of Dr. Mariano Gana is devoid of merit. Basis of these two exempting
circumstances is the complete absence of freedom. In the case at bar, appellants Ramos, Sublechero
and Caluya failed to show that they resisted the threats of Boy Andy and that in spite of their
resistance they were still forced to act in accordance with his wishes. Their fear of Boy Andy was
merely speculative and there was complete absence of real or reasonable fear for ones life. Had
appellants wanted to, they would have easily overpowered Boy Andy who was alone.
On the other hand, the manner in which the crime was executed shows that appellants had community
of design and that they cooperated and helped each other in the commission thereof. They met in
Samson Road, Caloocan City and from there proceeded to the scene of the crime. In the presence of
the appellants, Boy Andy bought a rope from a store. Upon entering the house, each one performed his
assigned task and after the commission of the crime, they left the scene of the crime and met in the
place of Boy Andy to get their respective shares.
By and large, the peoples evidence is sufficient to sustain the judgment appealed from. However, in
the absence of the necessary votes, We have to impose the penalty lower than death which is reclusion
perpetua.
WHEREFORE, as modified in the sense that the penalty imposed on herein appellants Ernesto Ramos
y Antonio, Eladio Caluya y Binuya and Eduardo Sublechero y Gabuat is reduced to reclusion
perpetua, the appealed judgment is AFFIRMED in all other respects.
SO ORDERED.
Teehankee, (Actg. C.J.), Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro,
Melencio-Herrera, Plana, Escolin, Vasquez and Gutierrez, Jr., JJ., concur.
Fernando, C.J., is on official leave.
UNCONMTROLABLE FEAR
SECOND DIVISION
[G.R. No. L-30609. September 28, 1976.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROBERTO ABANES and MELECIO
BENITEZ, Defendants-Appellants.
Jose T. de los Santos for appellant Roberto Abanes.
Honorio Poblador, Jr. for appellant Melecio Benitez.
Solicitor General Felix Q. Antonio, Assistant Solicitor Crispin V. Bautista and Solicitor
Leonardo I. Cruz for Appellee.
DECISION
CONCEPCION, JR., J.:
Defendants were convicted of the crime of murder with the qualifying circumstance of treachery and
sentenced to suffer the penalty of life imprisonment, and to indemnify the heirs of the late Eustaquio
Colobong in the amount of P12,000.00, jointly and severally. From this decision, they appealed.
Benitez subsequently withdrew his appeal; hence only the appeal of Abanes is before Us. chanrobles
virtual lawlibrary
The incident in question took place in Bo. Banawang, San Roque, Agoo, La Union, on October 9,
1967. At about 5:00 oclock in the afternoon of that day, appellant Roberto Abanes and victim
Eustaquio Colobong, a half-wit, were in the yard of one Rolly Laroza. Melecio Benitez was also
present, talking with Laroza. Moments later, Abanes and Colobong were seen walking together
towards the north direction of Bo. Banawang, San Roque, followed by Benitez. That was the last time
Eustaquio Colobong was seen alive. An hour later, his body was found near the bridge of San Roque
under a bamboo tree. As shown in the autopsy report 1 of Dr. Fidel Verceles, the deceased sustained
five stab wounds from which he died. The incident was reported to the police authorities who lost no
time in going to the scene of the crime. With the aid of a brother of Roberto Abanes, policeman
Alejandro Ulat found the fatal weapon 2 a three-bladed-edge sharp instrument, known locally in that
area as "tres cantos", about ten meters from the house of appellant Abanes. Because he was one of the
two persons last seen with the victim while the latter was still alive, and because of the discovery of
the weapon near his house, Abanes was apprehended and brought to the municipal building for
questioning. At that investigation, he admitted in writing 3 having stabbed the deceased and implicated
Melecio Benitez in the commission of the crime.chanrobles virtual lawlibrary
How did the victim die?
The evidence of record establishes that on the day in question Abanes, Benitez and the deceased were
on their way to the house of the barrio captain because the deceased had told the two of them that
there were raw shrimps to be eaten thereat. Benitez was in an ugly mood, considering that before they
left the yard of Laroza, he (Benitez) uttered the following words: "If somebody will make trouble in
San Roque, I will kill him." While the three were thus walking along the dike with the deceased
leading the way, Benitez told Abanes to ask the deceased if indeed there were raw shrimps to be eaten
at the house of the barrio captain, and if the deceased was just fooling them to stab him. Without much
ado, Abanes suddenly stabbed from behind the unarmed and unsuspecting Colobong who had not
given any provocation whatsoever for the attack. Immediately thereafter, Benitez grabbed the weapon
from Abanes and himself stabbed the victim three times without giving the latter a chance to evade the
attack or make any defense whatsoever. These stab wounds were the direct and immediate cause of the
victims death.
When Abanes testified in his own behalf, he denied having signed a written confession. He stated that
on the date and time in question, while he was walking along the dike towards the house of the barrio
captain with Eustaquio Colobong ahead of him and Melecio Benitez behind him, he was enticed by
the latter to stab the victim if the latter was just fooling them in stating that there were raw shrimps to
be eaten in the house of the barrio captain. Abanes claimed that Benitez threatened to kill him if he
(Abanes) would not stab the victim; and that out of fear of Benitez whom he knew to be a tough guy
and quite capable of killing him, he was forced to follow the order.cralawnad
In this appeal, Roberto Abanes insists on his plea that he stabbed the deceased under the compulsion
of an irresistible force and/or an uncontrollable fear of an equal or greater injury and, furthermore, that
if found guilty, he should be entitled to, as mitigating, the alternative circumstance of degree of
instruction and education for the reason that he studied only up to Glade One.
There is nothing in the record to sustain this allegation. While Abanes claims that Benitez was armed
with a brass knuckle, there is no showing that he ever tried to use it against Abanes nor did he ever lift
a finger to exact the latters cooperation in the execution of the crime. Before a force can be
considered to be an irresistible one, it must produce such an effect upon the individual that, inspite of
all resistance, it reduced him to a mere instrument and, as such, incapable of committing a crime. It
must be such that, inspite of the resistance of the person on whom it operates, it compels his members
to act and his mind to obey. 4 Neither can we consider the claim of uncontrollable fear of an equal or
greater injury in favor of Abanes. A mere threat of a future injury is not enough. Fear in order to be a
valid defense, should be based on a real, imminent or reasonable fear for ones life or limb. In this
case, the fear, if any, harbored by Abanes was imaginary and speculative. This is not the
uncontrollable fear contemplated by law. Furthermore, when Benitez allegedly gave the order to stab
the deceased, Abanes was armed and yet he did not offer any resistance. Neither did he warn the
intended victim of the impending peril. And finally, the act of Abanes in not fleeing but instead of
waiting for Benitez while the latter was stabbing the victim belies his claim of fear of Benitez.
Likewise, lack of instruction or education can not be appreciated in favor of Roberto Abanes as a
mitigating circumstance. The criteria in determining lack of education is not illiteracy alone, but rather
lack of sufficient intelligence. 5 The record discloses that far from his claim that he suffers from lack
of education, appellant possesses an intelligence worthy of an educated man. In fact, the trial court
observed that he talked as if he were a doctor. 6
WHEREFORE, finding the appealed decision to be in accordance with the law and the evidence, we
hereby affirm the same without costs. Abanes should be credited in full for the period of his preventive
imprisonment, if he agreed voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoners; otherwise, with four-fifths thereof. 7
SO ORDERED.
Fernando (Chairman), Barredo, Aquino and Martin, JJ., concur.
Antonio, J., took no part.
Martin, J., was designated to sit in the Second Division.
Endnotes:
EN BANC
[G.R. No. 145731. June 26, 2003.]
PEOPLE OF THE PHILIPPINES, Appellee, v. GREGORIO GERAL Y FERNANDEZ AND
MARCOS USNAN Y BUSTAMANTE, Appellants.
LORETO SANTAN (at large), Accused.
DECISION
BELLOSILLO, J.:
ON AUTOMATIC REVIEW is the Decision of the Regional Trial Court of Davao City finding the
accused GREGORIO GERAL Y FERNANDEZ and MARCOS USNAN Y BUSTAMANTE, in
conspiracy with accused Loreto Santan, who remains at large, GUILTY of Robbery with Homicide for
having forcibly carted away assorted articles belonging to one Mary Ann Estoce, and in pursuance of
such felonious deed, slashed the throat of her grandmother Josefina Estoce which caused her death.
Accordingly, Accused Geral and Usnan were each sentenced to suffer the penalty of "reclusion
perpetua to death" and ordered to indemnify solidarily the heirs of Josefina Estoce P50,000.00 for her
death and P30,000.00 for funeral expenses. 1
Mary Ann Estoce, a computer operator, lived with her grandmother Josefina Estoce whom she called
"Nanay" at Km. 19, Los Amigos, Tugbok, Davao City.chanrob1es virtua1 1aw 1ibrary
On 18 August 1996, Sunday, at around 6:40 in the evening, Mary Ann was in their sala preparing to
watch television when she heard someone knocking at the door. When she opened the door, she was
met by three (3) rugged and apparently inebriated individuals who inquired from her if she knew one
Roel Daban. When she told them that she was not familiar with the person and pointed to another
house where they could inquire about him, the three (3) men entered the house while pointing a gun at
Mary Ann. Two (2) of the intruders approached her grandmother Josefina Estoce and took turns
manhandling her, while a certain Boy 2 brought Mary Ann upstairs and tried to rape her. But failing to
rape her, Boy ordered Mary Ann to hand him over her money.
After taking some P500.00 from her, Boy boxed Mary Ann on the stomach causing her to lose
consciousness. When she recovered some three (3) minutes later, Mary Ann saw her Nanay lying in a
pool of blood and no longer responding to her frantic cries. Accompanied by their neighbors, Mary
Ann went to her relatives to seek their help.
On the witness stand, complaining witness Mary Ann Estoce testified that some articles, particularly
pieces of jewelry, their TV remote control, a bag, an umbrella, her passbook, an ATM card, all valued
at approximately P6,000.00, and P500.00 in cash were taken by the robbers. 3
During the trial, Mary Ann Estoce positively identified Gregorio Geral as one of those who robbed
them and killed her grandmother Josefina Estoce in the early evening of 18 August 1996. 4
Another prosecution witness, Edgar Sab-owan; testified that sometime on 7 August 1996 while
attending the wake of his grandfather, he met Marcos Usnan alias Dodong who told him matter of
factly that he and some companions were planning to rob somebody at Km. 20. On 9 August 1996 he
again met Usnan who pointed to him the house that his group was intending to rob which, according
to Usnan, was occupied by an old woman and a young lady. He further stated that on 18 August 1996
at around 8:30 to 9:00 oclock in the evening Gregorio Geral alias Gorio and Loreto Santan alias Boy
arrived at his house. Both wore muddied clothes and talked to each other in whispers. Edgar also said
that Boy told him that their job was finished and that the old woman was dead.
The following morning, 19 August, Ireneo Juesan alias Onyot arrived at his house carrying with him a
camera and a TV remote control and wearing a ring on one of his fingers. chanrob1es virtua1 1aw
1ibrary
Accused-appellant Gregorio Geral denied the accusations against him. He insisted that in the morning
of 18 August 1996 he was on the way home after buying food from the market when three (3)
individuals accosted him introducing themselves as Edgar, Onyot and Loreto. At about 3:00 oclock in
the afternoon, the three (3) went back to his house and asked for something to eat since they were
hungry. When asked what their business was, they told him that they were waiting for the buyer of
gold bars. Since he was in a hurry to get a hilot for his pregnant wife who was in labor, he then asked
to be excused. However, the three (3) followed him. One of them whose name he later learned to be
Edgar, pointed a gun at his head and forced him to go with them, otherwise, he would kill him and his
family.
All four (4) walked towards Calinan and took a truck towards Tugbok. Arriving in Tugbok at around
5:00 oclock in the afternoon, they alighted in front of a house where Loreto asked the occupants, a
young lady and an old woman, if they knew a certain Roel Daban. Suddenly, Loreto seized the old
woman and Onyot the young lady. Edgar, who was standing beside the door, pushed him (Geral)
inside the house. It was then that he saw Loreto stab the old woman. He rushed out of the house and
waited for a passenger jeepney bound for Wangan but the three (3) robbers chased him. As soon as
they caught up with him, they warned him not to tell anybody what he had just witnessed. According
to Gregorio, he decided not to tell the authorities about the grisly incident for fear that Edgar would
make good his threat to kill him and his family.
At the trial, Accused-appellant Gregorio Geral denied that Marcos Usnan was one of the malefactors;
instead, he affirmed and reaffirmed that it was Edgar, Onyot and Loreto who perpetrated the hideous
killing. 5
For his part, Accused-appellant Marcos Usnan refused to admit that he was a party to the killing and
robbery of 18 August 1996. According to him, on that date, he was at home the whole day. He denied
knowing his accuser Edgar Sab-owan, or his co-accused Gregorio Geral whom he met for the first
time only on 19 August at the detention cell. 6
After trial, the court a quo adjudged both accused-appellants Gregorio Geral and Marcos Usnan guilty
of robbery with homicide on the basis of their identification by prosecution witnesses Mary Ann
Estoce and Edgar Sab-owan. According to the trial court 7
Accused Geral claimed he was in his house (in) the whole day and night of August 18, 1996. Alibi is
one of the weakest defenses and should be rejected when the identity of the accused has been
sufficiently established (P v. Remollo, 213 SCRA 218; P v. Sambangan, 125 SCRA 726; P v. Regalo,
127 SCRA 287).chanrob1es virtua1 1aw 1ibrary
Accused Usnan claimed Loreto Santan, Ireneo Juesan and Edgar Sab-owan forced him to go with
them to the victims house. He is saying he has nothing to do with the crime but admits that he was in
the house of the victim with the accused when the crime was committed. The statement of Prosecution
witness Edgar Sab-owan plainly pointed to the accused Usnan as one of the three who robbed and
killed Josefina Estoce.
Accused-appellants Geral and Usnan now implore this Court to take a second hard look at their
conviction on the ground that the court a quo erred in: (a) giving weight and credence to the
testimonies of the prosecution witnesses; (b) finding the guilt of accused-appellant Usnan despite the
failure of Mary Ann Estoce to identify him in open court; (c) finding that Edgar Sab-owan positively,
identified Usnan as one of the three (3) men who robbed and killed Josefina Estoce; (d) finding that
the guilt of accused-appellant Geral for the crime charged has been proved beyond reasonable doubt;
and, (e) imposing the penalty of reclusion perpetua to death. 8
Discussing jointly the first four (4) assigned errors, Accused-appellants argue that, contrary to the
finding of the trial court, Sab-owan did not identify accused-appellant Usnan as one of those who
robbed and killed Josefina Estoce, but rather as the one who proposed to him the plan to rob a house
occupied by an old woman and a young lady. Even principal witness Mary Ann Estoce was not able to
identify Usnan when she testified in court. She only identified accused-appellant Geral.
Accused-appellants also deplore the failure of the trial court to consider the more credible evidence of
the defense vis-a-vis that of the prosecution. According to them, had the trial court only considered the
fact that accused-appellant Geral was merely threatened and compelled by the real culprits to join
them, thus depriving him of the freedom to act, he should have been exempted from criminal liability.
Accused-appellant Usnan anchors his defense on the theory that the prosecution failed to establish
with certitude his identity as one of the gang of robbers who burglarized the Estoce residence and
killed Josefina Estoce. On the part of accused-appellant Geral, he bases his plea for acquittal on the
alleged failure of the trial court to give credence to his assertion that he was deprived of the freedom
to act and was never a willing participant in the commission of the crime charged.
The rule is, in every criminal prosecution the identity of the accused as the perpetrator of the crime is
crucial to establish his guilt beyond reasonable doubt. This much is required to overcome the
presumption of innocence guaranteed by the Constitution in favor of the accused. The failure of the
prosecution to discharge this onus is fatal to its cause and calls for an acquittal, at least insofar as
regards the accused whose identity is not established.chanrob1es virtua1 1aw 1ibrary
Where, as here, principal witness Mary Ann Estoce who could be expected to ensure that the guilty
would not go unpunished, failed to identify accused-appellant Usnan despite his presence in the
courtroom, his guilt is at once beclouded by a heavy pall of doubt. Even the testimony of Sab-owan,
the sole basis for his conviction in the lower court, is fatally flawed. It will be seen that Sab-owans
uncorroborated testimony in no way establishes the identity of the accused beyond reasonable doubt.
It does not place Usnan at the scene of the crime at the time of its commission nor can a reasonable
inference be made to ascertain his complicity in the crime charged. The statement of witness Sabowan to accused Usnan, which was timely objected to by the defense counsel as hearsay, could not be
used against him unless it be fully established by other evidence that Sab-owan was privy to the crime
or had personal knowledge of its commission. Even accused-appellant Geral himself, Usnans coaccused, affirmed and reaffirmed during his examination that at gunpoint he was coerced by Sabowan, Juesan, and Santan into joining them in their looting foray. He was emphatic however that
Usnan was not involved in the robbery.
But accused-appellant Gerals case is a different matter altogether. His defense that he was deprived of
the freedom to act because of uncontrollable fear does not inspire our serious consideration. For this
defense to prosper, it is incumbent for him to prove that the duress must not be speculative, fanciful, or
a remote fear for ones life and limb. Even assuming that this tale was not a mere figment of his
imagination, the records are bereft of any evidence to support his claim. He averred that during the
robbery he was told, but he refused, to give assistance to the malefactors in their malevolent activity.
He managed to "escape" even as an armed robber was standing near the door. Worse, the culprits
supposedly chased and caught up with him only to tell him never to report the incident to the
authorities. All these circumstances show that the presence of uncontrollable fear, so doggedly insisted
by accused-appellant Geral, was speculative, remote or, at the most, illusory.
A person should not commit a very serious crime on account of a feeble kind of fear. If we were to
take seriously Gerals account, there would be no explaining why three (3) persons bent on
committing a crime would place a total stranger in their confidence, force him to witness their wicked
deed for no apparent purpose, and let him go with nothing more than a flimsy threat. Overshadowing
all these considerations however was the positive identification made by complainant Mary Ann
Estoce of accused-appellant Geral as an active participant in the burglary which resulted in the killing
of Josefina Estoce. Complainant, who has no known impure motive against accused-appellant Geral,
would not impute a serious offense against him had it not been for her singular intention to bring to the
bar of justice the men who dispossessed her of her valuables and forever deprived her of her Nanays
loving presence.chanrob1es virtua1 1aw 1ibrary
On the penalty imposed by the court a quo, we agree, as pointed out by accused-appellants and by the
Office of the Solicitor General, that the same should not be "reclusion perpetua to death." This penalty
is not in accord with Art. 63 of The Revised Penal Code providing the rules for the application of
indivisible penalties. The crime of robbery with homicide is punishable by reclusion perpetua to death
under Art. 294, par. (1), of The Revised Penal Code. In the absence of an aggravating or mitigating
circumstance, the lower penalty, which is reclusion perpetua, should be imposed.
With respect to the amount of P30,000.00 awarded by the trial court representing funeral and other
expenses, apart from the barren testimony of prosecution witness Teodoro Estoce who testified on
damages, none was duly supported by receipts. Consequently, the Court can only allow those expenses
properly receipted or duly proved and genuinely incurred in connection with the death, wake, and
burial of the deceased, unlike the indemnity for the death of the victim which is automatically awarded
to the heirs of the deceased. In addition, the sum of P6,500.00 must be paid as it represents the total
value of the items taken during the incident. Moreover, moral damages must be awarded without need
of further proof other than the fact of the killing.
A final word. In writing a decision, we do not necessarily require the judge to adopt a florid and
dramatic style such as would appeal to the Shakespearean in us, yet, we deem it of the essence that the
decision be lucidly crafted, complete in all its vital details, to enable the parties involved to clearly
understand how the judge arrived at his conclusions. Sadly, the decision of the trial court, the ratio
decidendi in particular, is not exactly an exemplar in thoroughness and perspicacity but is rather an
expression of slapdashness and lack of interest, giving the impression that the author was more after
bare compliance than the need to explain the verdict of the court in a clear and convincing manner.
WHEREFORE, the Decision of the RTC-Br. 15, Davao City, finding accused-appellant GERARDO
GERAL Y FERNANDEZ guilty beyond reasonable doubt of the crime of robbery with homicide is
AFFIRMED. Accordingly, he is sentenced to suffer the penalty of reclusion perpetua. He is further
ordered to pay the heirs of the deceased Josefina Estoce the amount of P50,000.00 as indemnity for
her death and the additional sum of P50,000.00 as moral damages. He is also ordered to pay the heirs
the amount of P6,500.00 which represents the value of the items asported during the robbery.
However, Accused-appellant MARCOS USNAN Y BUSTAMANTE is ACQUITTED on the ground
that his guilt has not been proved beyond reasonable doubt, and hence, is ordered immediately
released unless there are other legal grounds for his continued detention. chanrob1es virtua1 1aw
1ibrary
The Director of Prisons is DIRECTED to implement this Decision forthwith and to inform this Court
within five (5) days from receipt hereof of the date accused-appellant Marcos Usnan y Bustamante
shall have been actually released from confinement.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Corona, Carpio Morales, Callejo, Sr. and Azcuna, JJ., concur.
Austria-Martinez, J., on official leave.
Endnotes:

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EN BANC

[G.R. No. 125334. January 28, 1998.]

: virtual law library

13. TSN, July 25, 1995, pp. 2-16.

guilty. Thereafter, trial ensued.

Case for the Prosecution3 rll

CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10

RICARDO SALVO, ALLEGED PROSECUTION EYEWITNESS, WHOSE TESTIMONY IS

him shot the boy?chanroblesvirtualawlibrary

A: &nbsp &nbsp &nbsp I do not know anymore.47

surrendered his service firearm.

Second Issue:chanrob1es virtual 1aw library

chanrob1es virtua1 1aw 1ibrary

shotgun at another is not a lawful act.chanrob1es virtua1 1aw 1ibrary

Melo, Vitug and Sandoval-Gutierrez, JJ., concur.

Patricio Abesia, a policeman, when Jessie aimed the gun at him.

subscribed to before Asst. Provincial Prosecutor Roman Razon. 50 rll

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ERNESTO RAMOS y ANTONIO,

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