Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 153875 August 16, 2006
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ROLANDO DAGANI y REYES and OTELLO SANTIANO Y LEONIDA, AccusedAppellants.
DECISION
AUSTRIA-MARTINEZ, J.:
For review before the Court is the Decision dated June 20, 20021 of the Court of
Appeals (CA) which affirmed the Decision of the Regional Trial Court of the City of
Manila, Branch 12 (RTC), dated February 18, 1993, in Criminal Case No. 89-77467,
finding the accused-appellants Otello Santiano y Leonida (Santiano) and Rolando
Dagani y Reyes (Dagani) guilty of the crime of Murder.

entered the canteen and approached the group. Appellant Dagani shoved Miran,
causing the latter to fall from his chair. Dagani then held Javier while Santiano shot
Javier twice at his left side, killing the latter.
The defense proceeded to prove their version of the facts:
Appellants testified that they were ordered by their desk officer to investigate a
commotion at the canteen. Upon reaching the place, Santiano ordered his coaccused, Dagani, to enter, while the former waited outside.
Dagani approached Javier who had been striking a bottle of beer on the table. Javier
then pulled out a .22 caliber revolver and attempted to fire at Dagani, but the gun
failed to go off. Then suddenly, while outside the canteen, Santiano heard gunfire
and, from his vantage point, he saw Javier and Dagani grappling for a .22 caliber gun
which belonged to Javier. During the course of the struggle, the gun went off, forcing
Santiano to fire a warning shot. He heard Javiers gun fire again, so he decided to
rush into the canteen. Santiano then shot Javier from a distance of less than four
meters.
Appellants invoked the justifying circumstances of self-defense and lawful
performance of official duty as PNR security officers. They also argued that the
prosecution failed to establish treachery and conspiracy.

The accusatory portion of the Information reads:

The RTC rendered its Decision, the dispositive portion of which reads:

That on or about September 11, 1989, in the City of Manila, Philippines, the said
accused conspiring and confederating together and mutually helping each other did
then and there, willfully, unlawfully and feloniously, with intent to kill, evident
premeditation and treachery, attack, assault and use of personal violence upon one
ERNESTO JAVIER Y FELIX by then and there shooting him with a .38 caliber
revolver, thereby inflicting upon the said ERNESTO JAVIER Y FELIX mortal gunshot
wounds which were the direct and immediate cause of his death thereafter.

WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando Dagani
y Reyes guilty beyond reasonable doubt of the crime of Murder defined and punished
under Art. 248, RPC, with the presence of the mitigating circumstance of voluntary
surrender and granting them the benefit of [the] Indeterminate Sentence Law, both
accused are hereby sentenced to each suffer an Indeterminate prison term of TEN
(10) YEARS and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN (18)
YEARS and ONE (1) DAY of reclusion temporal x x x.

CONTRARY TO LAW.2

Both accused are hereby ordered to indemnify the heirs of the victim the sum
of P50,000.00 as death indemnity, the sum of P31,845.00 as funeral and burial
expenses, the sum of

Upon arraignment, the appellants pleaded not guilty. Trial ensued where the
prosecution adduced evidence to establish the following:
At about 4:45 in the afternoon of September 11, 1989, a group composed of Ernesto
Javier (Javier), Lincoln Miran (Miran), and two other individuals had been drinking at
the canteen located inside the compound of the Philippine National Railways (PNR)
along C.M. Recto Avenue, Tondo, Manila. All of a sudden, appellants, who were
security officers of the PNR and covered by the Civil Service Rules and Regulations,

P30,000.00 as and for [sic] attorneys fees and the further sum of P1,000.00 per
appearance of counsel.
Both accused shall be credited with the full extent of their preventive imprisonment.
Both accused are hereby committed to the Director, National Penitentiary, Muntinlupa,
Metro Manila for service of Sentence.

SO ORDERED.3

The CA rendered its Decision, the dispositive portion of which states:

In brief, the RTC held that appellants failed to prove that Javier attempted to squeeze
the trigger of the .22 caliber gun when he pointed it at Dagani; that during the course
of the struggle for the possession of the .22 caliber gun, the danger to the life of the
accused ceased to be imminent; that in grappling for the weapon, Dagani "controlled"
the hands of Javier and pushed them away from his body; that the appellants failed to
produce the two empty shells as physical evidence of the gunfire allegedly caused by
Javier; that no points of entry or bullet markings on the walls of the canteen were
shown; that, in light of these findings, no unlawful aggression was present on the part
of the victim; that the appellants failed to prove that they were on official duty at the
time of the incidence; that, since it was not established that Javier actually fired his
gun, the injury inflicted upon him cannot be regarded as a necessary consequence of
the due performance of an official duty; that the appellants were acting in conspiracy;
that the qualifying circumstance of treachery attended the killing, considering that
Javier had been shot while his hands were being held by Dagani and as his body was
out of balance and about to fall; and that the mitigating circumstance of voluntary
surrender should be appreciated in favor of the appellants.

WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants are

hereby sentenced to reclusion perpetua. The award for attorneys fees and
appearance fees for counsel are hereby deleted. In all the other aspects, the
appealed decision is maintained.

The appellants appealed to the CA and assigned the following errors:

I
THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE
ON THE PART OF THE ACCUSED.
II
THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT
THE ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE OF AN
OFFICIAL DUTY.
III
THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT
THERE WAS CONSPIRACY.

Let the entire records of the case be elevated to the Supreme Court for the mandated
review.
SO ORDERED.5
The CA affirmed the findings of fact as well as the salient portions of the RTC
Decision, but deleted the award of attorneys fees and the per appearance fees of
counsel since, the CA reasoned, the instant case is criminal in nature which is under
the control of the public prosecutor, and, additionally, the RTC failed to justify this
award in the body of its Decision. And last, the CA found that the RTC erroneously
applied the Indeterminate Sentence Law since the penalty for Murder, at the time of
the incident, was reclusion perpetua which is an indivisible penalty to be imposed in
its entirety, regardless of the attending mitigating circumstance of voluntary surrender.
Appellants are now before this Court submitting for resolution the same matters
argued before the CA. Through their Manifestation dated February 11,
2003,6 appellants prayed to dispense with the filing of additional briefs.
As of date, the records show that despite the efforts exerted by the surety and the
responsible law officers to locate the appellants, the latter could not be found and
have jumped bail.7
The appeal is partly meritorious.
Appellants argue that the courts a quo misappreciated the facts and erred in finding
that there was no unlawful aggression on the part of the victim. They insist that the
victim, Javier, had been armed with a revolver at the time he was struggling with
appellant Dagani; that the former "could have easily killed the latter;" that, given the
fact that Javier had been drinking, "it is quite probable for Javier to act harshly and
aggressively towards

IV
THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION
WAS ABLE TO ESTABLISH BEYOND REASONABLE DOUBT THAT THE ACCUSED
ARE GUILTY OF MURDER.4

peace officers such as the accused;"8 and that Javier actually fired three shots from
his .22 caliber gun.9
We are not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show
that the killing was legally justified. Having owned the killing of the victim, the accused
should be able to prove to the satisfaction of the Court the elements of self-defense in
order to avail of this extenuating circumstance. He must discharge this burden by
clear and convincing evidence. When successful, an otherwise felonious deed would
be excused, mainly predicated on the lack of criminal intent of the accused. Selfdefense requires that there be (1) an unlawful aggression by the person injured or
killed by the offender, (2) reasonable necessity of the means employed to prevent or
repel that unlawful aggression, and (3) lack of sufficient provocation on the part of the
person defending himself. All these conditions must concur.10
Unlawful aggression, a primordial element of self-defense, would presuppose an
actual, sudden and unexpected attack or imminent danger on the life and limb of a
person not a mere threatening or intimidating attitude11 but most importantly, at
the time the defensive action was taken against the aggressor.12 To invoke selfdefense successfully, there must have been an unlawful and unprovoked attack that
endangered the life of the accused, who was then forced to inflict severe wounds
upon the assailant by employing reasonable means to resist the attack.13
In the instant case, the assertions that it was "quite probable" that Javier, during the
course of the struggle for the firearm, "could have easily killed" the appellants are
uncertain and speculative. There is aggression in contemplation of the law only when
the one attacked faces real and immediate threat to ones life. The peril sought to be
avoided must be imminent and actual, not just speculative.14
To sum up the matter, we quote the findings of the CA:
The defense was unable to prove that there was unlawful aggression on the part of
Javier. They were unable to present evidence that the victim actually fired his gun. No
spent shells from the .22 caliber pistol were found and no bullets were recovered from
the scene of the incident. Javier also tested negative for gunpowder residue.
Moreover, the trial court found appellant Daganis account of the incident to be
incredible and self-serving. In sum, the defense presented a bare claim of selfdefense without any proof of the existence of its requisites.15
Even if it were established that Javier fired his gun as the appellants so insist, the
imminence of the danger to their lives had already ceased the moment Dagani held
down the victim and grappled for the gun with the latter. After the victim had been
thrown off-balance, there was no longer any unlawful aggression that would have
necessitated the act of killing.16 When an unlawful aggression that has begun no
longer exists, the one who resorts to self-defense has no right to kill or even to wound
the former aggressor.17 When Javier had been caught in the struggle for the
possession of the gun with appellant Dagani, the grave peril envisaged by appellant
Santiano, which impelled him to fire at the victim, had then ceased to a reasonable

extent,18 and undoubtedly, Santiano went beyond the call of self-preservation when he
proceeded to inflict the excessive and fatal injuries on Javier, even when the alleged
unlawful aggression had already ceased.19
The second element of self-defense demands that the means employed to neutralize
the unlawful aggression are reasonable and necessary. It is settled that reasonable
necessity of the means employed does not imply material commensurability between
the means of attack and defense. What the law requires is rational equivalence.20 The
circumstances in their entirety which surround the grappling of the firearm by Dagani
and Javier, such as the nature and number of gunshot wounds sustained by the
victim21 which amounted to two fatal wounds,22 that Dagani was able to restrain the
hands of Javier and push them away from his body,23 that Dagani was larger than
Javier and had finished Special Weapons and Tactics (SWAT) hand-to-hand combat
training,24 and Javier, as admitted by the appellants, was inebriated at the time of the
incident,25 do not justify appellant Santianos act of fatally shooting the victim twice.26
All things considered, the appellants plea of self-defense is not corroborated by
competent evidence. The plea of self-defense cannot be justifiably entertained where
it is not only uncorroborated by any separate competent evidence but is in itself
extremely doubtful.27 Whether the accused acted in self-defense is a question of fact.
Like alibi, the affirmative defense of self-defense is inherently weak because, as
experience has demonstrated, it is easy to fabricate and difficult to disprove.28 This
Court, therefore, finds no reversible error on the part of the courts a quo in rejecting
the claim of self-defense.
Appellants set up the defense that they were in the lawful performance of their official
duties. They specifically aver that they had been ordered by their desk officer to
proceed to the canteen in response to a telephone call stating that there was a group
"creating trouble;" that they were in the call of duty and exercising their functions and
responsibilities as members of the PNR Civil Security Office to preserve peace and
order and protect the lives and property in the PNR Compound;29 and that, invoking
jurisprudence, as security officers in the performance of duty, like the police, they
must stand their ground and overcome the opponent, and the force that may be
exerted must differ from that which ordinarily may be offered in self-defense.30
Article 11 of the Revised Penal Code provides that a person who acts in the fulfillment
of a duty or in the lawful exercise of a right or office does not incur any criminal
liability. Two requisites must concur before this defense can prosper: 1) the accused
must have acted in the performance of a duty or in the lawful exercise of a right or
office; and 2) the injury caused or the offense committed should have been the
necessary consequence of such lawful exercise.31 These requisites are absent in the
instant case.
As found by the CA:

The defense failed to prove that the security officers were in fact on duty at the time
they were at the canteen. The trial court gave weight to the fact that the appellants
were unable to submit their daily time records to show that they were on duty at the
time. Appellants assertion that they were ordered to go on 24-hour duty was belied by
PNR Security Investigator Rolando Marinays testimony that PNR security officers
work in two 12-hour shifts, from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to 7:00
a.m.
Moreover, since it was not established that Javier fired his gun, the injury inflicted
upon him cannot be regarded as a necessary consequence of appellants due
performance of an official duty.32
As stated, considering that the imminent or actual danger to the life of the appellants
had been neutralized when Dagani grappled with Javier and restrained his hands;
that Javier had been thrown off-balance; that Dagani had been specially trained for
these purposes; and that Javier had been drinking immediately prior to the scuffle,
this Court holds that the fatal injuries that appellant Santiano inflicted on the victim
cannot be deemed to be necessary consequences of the performance of his duty as
a PNR security officer.33 While it is recognized that police officers if indeed the
appellants can be likened to them must stand their ground and overwhelm their
opponents, in People v. Ulep,34 this Court counseled:
The right to kill an offender is not absolute, and may be used only as a last resort, and
under circumstances indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to arbitrarily judge
the necessity to kill. It may be true that police officers sometimes find themselves in a
dilemma when pressured by a situation where an immediate and decisive, but legal,
action is needed. However, it must be stressed that the judgment and discretion of
police officers in the performance of their duties must be exercised neither
capriciously nor oppressively, but within reasonable limits. In the absence of a clear
and legal provision to the contrary, they must act in conformity with the dictates of a
sound discretion, and within the spirit and purpose of the law. We cannot
countenance trigger-happy law enforcement officers who indiscriminately employ
force and violence upon the persons they are apprehending. They must always bear
in mind that although they are dealing with criminal elements against whom society
must be protected, these criminals are also human beings with human rights.35
But this Court cannot agree with the findings of the courts a quo that the appellants
were in conspiracy.
The RTC simply held:

The Information cited conspiracy of the accused. Since it can also be committed thru
simultaneous/concerted action and considering that Javier was shot by Santiano
while being held by Dagani, under jurisprudence, conspiracy is present.36
The tenor of the factual findings of the CA is equally unsatisfactory:
Moreover, the facts show that Javier was shot by appellant Santiano as he was being
subdued by appellant Dagani. The trial court held that the manner of the attack was
indicative of a joint purpose and design by the appellants.37
Courts must judge the guilt or innocence of the accused based on facts and not on
mere conjectures, presumptions, or suspicions.38 Other than the plain fact that the
victim had been shot by one of the accused while being held by a co-accused, there
is no other evidence that the appellants were animated by the same purpose or were
moved by a previous common accord. It follows that the liability of the accused must
be determined on an individual basis. While no formal agreement is necessary to
establish conspiracy because conspiracy may be inferred from the circumstances
attending the commission of the crime, yet, conspiracy must be established by clear
and convincing evidence.39
This Court has held that even if all the malefactors joined in the killing, such
circumstance alone does not satisfy the requirement of conspiracy because the rule is
that
neither joint nor simultaneous action is per se sufficient proof of conspiracy.
Conspiracy must be shown to exist
as clearly and convincingly as the commission of the offense itself.40 Thus, even
assuming that Javier was simultaneously attacked, this does not prove conspiracy.
No evidence was presented to show that the appellants planned to kill Javier or that
Daganis overt acts facilitated that alleged plan. The prosecution did not establish that
the act of Dagani in trying to wrestle the gun from Javier and in the process, held the
latters hands, was for the purpose of enabling Santiano to shoot at Javier. The
prosecution had the burden to show Daganis intentional participation to the
furtherance of a common design and purpose41 or that his action was all part of a
scheme to kill Javier. That Dagani did not expect Santiano to shoot the victim is
established when Santiano testified that Dagani "seem[ed] to be shocked, he was
standing and looking at the victim" as Javier gradually fell to the ground.42 And since
Daganis conviction can only be sustained if the crime had been carried out through a
conspiracy duly proven, in view of the failure of the prosecution to discharge that
burden, this Court is constrained to acquit him.
And this Court cannot say that treachery attended the attack. The RTC declared:

[T]he Court believes that Javier was shot while his body was out-balanced and about
to fall to the right side and while his hands were being held by Dagani. Javier,
therefore, was shot at when he has no means to defend himself, hence, the killing
was attended by the qualifying circumstance of treachery.43
which the CA affirmed as follows:
The findings of the court a quo clearly showed that Javier was being held down and
could not effectively use his weapon. As such, the trial court held that Javier could not
be considered to be an armed man as he was being held down and was virtually
helpless.
It has been held that when an assault is made with a deadly weapon upon an
unarmed and unsuspecting victim who [was] given no immediate provocation for the
attack and under conditions which made it impossible for him to evade the attack, flee
or make [a] defense, the act is properly qualified as treachery, and the homicide
resulting therefrom is classified as murder.44 x x x
Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the
deliberate employment of means, methods or forms in the execution of a crime
against persons which tend directly and specially to insure its execution, without risk
to the offender arising from the defense which the intended victim might raise.
Treachery is present when two conditions concur, namely: (1) that the means,
methods and forms of execution employed gave the person attacked no opportunity
to defend himself or to retaliate; and (2) that such means, methods and forms of
execution were deliberately and consciously adopted by the accused without danger
to his person.45
This Court has held that the suddenness of the attack, the infliction of the wound from
behind the victim, the vulnerable position of the victim at the time the attack was
made, or the fact that the victim was unarmed, do not by themselves render the
attack as treacherous.46 This is of particular significance in a case of an instantaneous
attack made by the accused whereby he gained an advantageous position over the
victim when the latter accidentally fell and was rendered defenseless.47 The means
employed for the commission of the crime or the mode of attack must be shown to
have been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk of
retaliation from the intended victim.48 For the rules on treachery to apply, the sudden
attack must have been preconceived by the accused, unexpected by the victim, and
without provocation on the part of the latter.49 Treachery is never presumed. Like the
rules on conspiracy, it is required that the manner of attack must be shown to have
been attended by treachery as conclusively as the crime itself.50

The prosecution failed to convincingly prove that the assault by the appellants had
been deliberately adopted as a mode of attack intended to insure the killing of Javier
and without the latter having the opportunity to defend himself. Other than the bare
fact that Santiano shot Javier while the latter had been struggling with Dagani over
the possession of the .22 caliber gun, no other fact had been adduced to show that
the appellants consciously planned or predetermined the methods to insure the
commission of the crime, nor had the risk of the victim to retaliate been eliminated
during the course of the struggle over the weapon, as the latter, though struggling,
had not been completely subdued. As already stated, this Court must emphasize that
the mere suddenness of the attack, or the vulnerable position of the victim at the time
of the attack, or yet even the fact that the victim was unarmed, do not by themselves
make the attack treacherous.51 It must be shown beyond reasonable doubt that the
means employed gave the victim no opportunity to defend himself or retaliate, and
that such means had been deliberately or consciously adopted without danger to the
life of the accused.52
For these reasons, the Court is inclined to look upon the helpless position of Javier as
merely incidental to the attack, and that the decision to shoot Javier was made in an
instant.53
Considering the rule that treachery cannot be inferred but must be proved as fully and
convincingly as the crime itself, any doubt as to its existence must be resolved in
favor of Santiano. Accordingly, for failure of the prosecution to prove treachery to
qualify the killing to Murder, appellant Santiano may only be convicted of
Homicide.54 The penalty, therefore, under Article 249 of the Revised Penal Code, as
amended, is reclusion temporal.
The Office of the Solicitor General is correct in that the courts a quo failed to consider
the aggravating circumstance of taking advantage of official position under Article 14
(1) of the Revised Penal Code, since the accused, a PNR security officer covered by
the Civil Service, committed the crime with the aid of a gun he had been authorized to
carry as such.55 Considering that the mitigating circumstance of voluntary surrender,
as duly appreciated by the courts a quo, shall be offset against the aggravating
circumstance of taking advantage of official position, the penalty should be imposed
in its medium period, pursuant to Article 64 (4) of the aforesaid Code.
Applying the Indeterminate Sentence Law, the sentence of appellant Santiano will
consist of a minimum that is anywhere within the full range of prision mayor, and a
maximum which is anywhere within reclusion temporal in its medium period. This
Court hereby fixes it to be from eight (8) years and one (1) day of prision mayor as
minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion
temporal, as maximum.

As to the award of damages, prevailing jurisprudence entitles the heirs of the

deceased to the amount ofP50,000.00 as civil indemnity for the death of the victim
without need of any evidence or proof of damages.56
The CA erred in deleting the attorneys fees and per appearance fees for lack of
factual basis. Although the CA is correct in noting that the RTC failed to justify these
awards in the body of its Decision, this appeal opens the entire case for review and,
accordingly, the records show that the foregoing amounts had been stipulated by the
parties,57 thereby dispensing with the need to prove the same.58
As to moral damages, however, the widow of the victim, Erlinda Javier, is not entitled
to the same. She did not testify on any mental anguish or emotional distress which
she suffered as a result of her husbands death. No other heirs of Javier testified in
the same manner.59
Inasmuch as the aggravating circumstance of taking advantage of official position
attended the killing, the Court awards exemplary damages in the amount
of P25,000.00 in accordance with Articles 2230 and 2234 of the Civil Code and
prevailing jurisprudence.60
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304 dated
June 20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is
found GUILTY beyond reasonable doubt of Homicide and is sentenced to suffer the
penalty of an indeterminate sentence from eight (8) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8) months, and one (1) day of
reclusion temporal as maximum. Appellant Santiano is further ordered to pay the
heirs of the victim the amounts of P50,000.00 as death indemnity, P31,845.00 as
funeral and burial expenses, P25,000.00 as exemplary damages, P30,000.00 as
attorneys fees and P1,000.00 per appearance of counsel. Appellant Santiano shall
be credited with the full extent of his preventive imprisonment.
Appellant Rolando Dagani y Reyes is hereby ACQUITTED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 165483

September 12, 2006

RUJJERIC Z. PALAGANAS,1 petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
For what is a man, what has he got?
If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows And did it my way!
The song evokes the bitterest passions. This is not the first time the song "My
Way"2 has triggered violent behavior resulting in people coming to blows. In the case
at bar, the few lines of the song depicted what came to pass when the victims and the
aggressors tried to outdo each other in their rendition of the song.
In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court,
petitioner Rujjeric Z. Palaganas prays for the reversal of the Decision of the Court of
Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,4 affirming with
modification the Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta,
Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634, dated
28 October 1998,5 finding petitioner guilty beyond reasonable doubt of the crime of
Homicide under Article 249 of the Revised Penal Code, and two (2) counts of
Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the same
Code.
On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas
(Ferdinand), were charged under four (4) separate Informations6 for two (2) counts of
Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of
COMELEC Resolution No. 29587 relative to Article 22, Section 261, of the Omnibus
Election Code,8allegedly committed as follows:

CRIMINAL CASE NO. U-9608

That on or about January 16, 1998, in the evening at Poblacion, Manaoag,
Pangasinan and within the jurisdiction of this Honorable Court, the abovenamed accused armed with an unlicensed firearm, with intent to kill,
treachery and evident premeditation, conspiring together, did then and there
willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y
Juanatas, inflicting upon him "gunshot wound penetrating perforating
abdomen, urinary bladder, rectum bullet sacral region," the accused having
thus performed all the acts of execution which would have produced the
crime of Murder as a consequence, but which nevertheless, did not produce
it by reason of the causes independent of the will of the accused and that is
due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr.
which prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised
Penal Code, as amended.
CRIMINAL CASE NO. U-9609
That on or about January 16, 1998, in the evening at Poblacion, Manaoag,
Pangasinan and within the jurisdiction of this Honorable Court, the abovenamed accused armed with an unlicensed firearm, with intent to kill,
treachery and evident premeditation, conspiring together, did then and there
willfully, unlawfully and feloniously shoot MICHAEL FERRER alias "Boying
Ferrer", inflicting upon him gunshot wound on the right shoulder, the accused
having thus performed all the acts of execution which would have produced
the crime of murder as a consequence, but which nevertheless, did not
produce it by reason of the causes independent of the will of the accused
and that is due to the medical assistance rendered to said Michael "Boying"
Ferrer which prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised
Penal Code, as amended.
CRIMINAL CASE NO. U-9610
That on or about January 16, 1998, in the evening at Poblacion, Manaoag,
Pangasinan and within the jurisdiction of this Honorable Court, the abovenamed accused armed with an unlicensed firearm, with intent to kill,
treachery and evident premeditation, conspiring together, did then and there
willfully, unlawfully and feloniously shoot MELTON FERRER alias "TONY
FERRER", inflicting upon him mortal gunshot wounds in the head and right

thigh which caused the instantaneous death of said Melton "Tony" Ferrer,
to the damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A.
7659.
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998 which is within the election period at
Poblacion, Manaoag, Pangasinan, and within the jurisdiction of this
Honorable Court, the above-named accused did then and there willfully,
unlawfully and feloniously bear and carry one (1) caliber .38 without first
securing the necessary permit/license to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the
OMNIBUS ELECTION CODE, as amended.9 (Underscoring supplied.)
When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas
of "Not Guilty." Upon motion of Ferdinand,11 the four cases were consolidated and
were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.12
The factual antecedents as viewed by the prosecution, are summarized in the
Comment dated 18 April 2005 of the Office of the Solicitor General,13 to wit:
On January 16, 1998, around 8:00 in the evening, brothers Servillano,
[Melton] and Michael, all surnamed Ferrer were having a drinking spree in
their house because [Melton], who was already living in San Fernando, La
Union, visited his three brothers and mother at their house in Sitio Baloking,
Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three brothers
decided to proceed to Tidbits Videoke bar located at the corner of Malvar
and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and
to sing. Inside the karaoke bar, they were having a good time, singing and
drinking beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with
Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer
brothers were the customers in the bar. The two groups occupied separate
tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang
along with him as he was familiar with the song [My Way]. Jaime however,
resented this and went near the table of the Ferrer brothers and said in
Pangasinan dialect "As if you are tough guys." Jaime further said "You are
already insulting me in that way." Then, Jaime struck Servillano Ferrer with
the microphone, hitting the back of his head. A rumble ensued between the
Ferrer brothers on the one hand, and the Palaganases, on the other hand.

Virgilio Bautista did not join the fray as he left the place. During the rumble,
Ferdinand went out of the bar. He was however pursued by Michael. When
Servillano saw Michael, he also went out and told the latter not to follow
Ferdinand. Servillano and Michael then went back inside the bar and
continued their fight with Jaime.
Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived
and pacified them. Servillano noticed that his wristwatch was missing.
Unable to locate the watch inside the bar, the Ferrer brothers went outside.
They saw Ferdinand about eight (8) meters away standing at Rizal Street.
Ferdinand was pointing at them and said to his companion, later identified as
petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara", meaning "They
are the ones, shoot them." Petitioner then shot them hitting Servillano first at
the left side of the abdomen, causing him to fall on the ground, and followed
by [Melton] who also fell to the ground. When Servillano noticed that [Melton]
was no longer moving, he told Michael "Bato, bato." Michael picked up some
stones and threw them at petitioner and Ferdinand. The latter then left the
place. Afterwards, the police officers came and the Ferrer brothers were
brought to the Manaoag Hospital and later to Villaflor Hospital in Dagupan.
Servillano later discovered that [Melton] was fatally hit in the head while
Michael was hit in the right shoulder.
On the other hand, the defense, in its Appellant's Brief dated 3 December
1999,14 asserted the following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a drinking
session at their house, the brothers Melton (Tony), Servillano (Junior) and
Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits
Caf and Videoke Bar and started drinking and singing. About thirty minutes
later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend
Virgilio Bautista arrived at the bar and occupied a table near that of the
Ferrers'.
After the Ferrers' turn in singing, the microphone was handed over to Jaime
Palaganas, who then started to sing. On his third song [My Way], Jaime was
joined in his singing by Tony Ferrer, who sang loudly and in an obviously
mocking manner. This infuriated Jaime, who then accosted Tony, saying,
"You are already insulting us." The statement resulted in a free for all fight
between the Ferrers', on one hand, and the Palaganases on the other.
Jaime was mauled and Ferdinand, was hit on the face and was chased
outside of the bar by Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant Rujjeric Palaganas,
his brother, and sought the help of the latter. Rujjeric, stirred from his sleep

by his brother's shouts, went out of his house and, noticing that the van of
his uncle was in front of the Tidbits Videoke Bar, proceeded to that place.
Before reaching the bar, however, he was suddenly stoned by the Ferrer
brothers and was hit on different parts of his body, so he turned around and
struggled to run towards his house. He then met his brother, Ferdinand,
going towards the bar, so he tugged him and urged him to run towards the
opposite direction as the Ferrer brothers continued pelting them with large
stones. Rujjeric then noticed that Ferdinand was carrying a gun, and, on
instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired
one shot in the air to force the brothers to retreat. Much to his surprise,
however, the Ferrer brothers continued throwing stones and when (sic) the
appellant was again hit several times. Unable to bear the pain, he closed his
eyes and pulled the trigger.
On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only
of the crime of Homicide and two (2) counts of Frustrated Homicide.15 He was,
however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in
relation to Section 261 of the Omnibus Election Code.16 On the other hand, Ferdinand
was acquitted of all the charges against him.17
In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide
but not for Murder and Frustrated Murder, the trial court explained that there was no
conspiracy between petitioner and Ferdinand in killing Melton and wounding
Servillano and Michael.18 According to the trial court, the mere fact that Ferdinand
"pointed" to where the Ferrer brothers were and uttered to petitioner "Araratan, paltog
mo lara!" (They are the ones, shoot them!), does not in itself connote common design
or unity of purpose to kill. It also took note of the fact that petitioner was never a
participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the
night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle,
Jaime, who was being assaulted by the Ferrer brothers. It further stated that the
shooting was instantaneous and without any prior plan or agreement with Ferdinand
to execute the same. It found that petitioner is solely liable for killing Melton and for
wounding Servillano and Michael, and that Ferdinand is not criminally responsible for
the act of petitioner.
Further, it declared that there was no treachery that will qualify the crimes as murder
and frustrated murder since the Ferrer brothers were given the chance to defend
themselves during the shooting incident by stoning the petitioner and Ferdinand.19 It
reasoned that the sudden and unexpected attack, without the slightest provocation on
the part of the victims, was absent. In addition, it ratiocinated that there was no
evident premeditation as there was no sufficient period of time that lapsed from the
point where Ferdinand called the petitioner for help up to the point of the shooting of
the Ferrer brothers.20 Petitioner was sleeping at his house at the time he heard
Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and

sleeveless shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner
and Ferdinand went to the videoke bar where they met the Ferrer brothers and,
shortly afterwards, the shooting ensued. In other words, according to the trial court,
the sequence of the events are so fast that it is improbable for the petitioner to have
ample time and opportunity to then plan and organize the shooting.
Corollarily, it also stated that petitioner cannot successfully invoke self-defense since
there was no actual or imminent danger to his life at the time he and Ferdinand saw
the Ferrer brothers outside the videoke bar.21 It noted that when petitioner and
Ferdinand saw the Ferrer brothers outside the videoke bar, the latter were not
carrying any weapon. Petitioner then was free to run or take cover when the Ferrer
brothers started pelting them with stones. Petitioner, however, opted to shoot the
Ferrer brothers. It also stated that the use by petitioner of a gun was not a reasonable
means to prevent the attack of the Ferrer brothers since the latter were only equipped
with stones, and that the gun was deadlier compared to stones. Moreover, it also
found that petitioner used an unlicensed firearm in shooting the Ferrer brothers.22
As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261
of the Omnibus Election Code, the trial court acquitted the petitioner of the offense as
his use and possession of a gun was not for the purpose of disrupting election
activities.23 In conclusion, the trial court held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not
Murder) with the use of an unlicensed firearm. The penalty imposable is in
its maximum period which is 20 years. The Court sentences [Rujjeric]
Palaganas to suffer the penalty of Reclusion Temporal in its maximum period
or 20 years of imprisonment; and to pay the heirs of [MELTON] Ferrer the
sum of P7,791.50 as actual medical expenses of [MELTON]
Ferrer; P500,000.00 as moral damages representing unearned income of
[MELTON]; P50,000.00 for the death of [MELTON];P50,000.00 for exemplary
damages and P100,000.00 for burial and funeral expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to
prove conspiracy and likewise, for failure to prove the guilt of Ferdinand
Palaganas beyond reasonable doubt.
2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of FRUSTRATED
HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm,
the Court sentences him to suffer the penalty of Prision Mayor in its
maximum period or 12 years of imprisonment and to pay Servillano Ferrer

the sum of P163,569.90 for his medical expenses andP50,000.00 for

exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove
conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas
beyond reasonable doubt.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of FRUSTRATED
HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm,
the Court sentences him to suffer the penalty of Prision Mayor in its
maximum period or 12 years of imprisonment; and to pay Michael Ferrer the
sum of P2,259.35 for his medical expenses and P50,000.00 for exemplary
damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove
conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas
beyond reasonable doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother
of the Ferrer brothers, the amount of P100,000.00 as attorney's fees in
CRIM. CASES NOS. U-9608, U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove
the guilt of [Rujjeric] Palaganas beyond reasonable doubt of the crime of
Violation of COMELEC Resolution No. 2958 in relation with Section 261 of
the Omnibus Election Code, the Court ACQUITS [RUJJERIC]
PALAGANAS.24
Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28
October 1998, before the Court of Appeals. In its Decision dated 30 September 2004,
the Court of Appeals affirmed with modifications the assailed RTC Decision. In
modifying the Decision of the trial court, the appellate court held that the mitigating
circumstance of voluntary surrender under Article 13, No. 7, of the Revised Penal
Code should be appreciated in favor of petitioner since the latter, accompanied by his
counsel, voluntarily appeared before the trial court, even prior to its issuance of a
warrant of arrest against him.25 It also stated that the Indeterminate Sentence Law
should be applied in imposing the penalty upon the petitioner.26 The dispositive
portion of the Court of Appeals' Decision reads:
WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to
the MODIFICATION that the penalty to be imposed for the crimes which the
appellant committed are as follows:

(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered
to suffer imprisonment of ten (10) years of prision mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporalas maximum.
Appellant is also ordered to pay the heirs of Melton Ferrer civil indemnity in
the amount ofP50,000.00, moral damages in the amount of P50,000.00
without need of proof and actual damages in the amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No. U-9609), the
appellant is hereby ordered to suffer imprisonment of four (4) years and two
(2) months of prision correcional as minimum to ten (10) years ofprision
mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual
damages in the amount of P2,259.35 and moral damages in the amount
of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U-9608), the
appellant is hereby penalized with imprisonment of four (4) years and two (2)
months of prision correcional as minimum to ten (10) years ofprision
mayor as maximum. Appellant is also ordered to pay Servillano Ferrer actual
damages in the amount of P163,569.90 and moral damages in the amount
of P30,000.00.27
On 16 November 2004, petitioner lodged the instant Petition for Review before this
Court on the basis of the following arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
JUDGMENT OF CONVICTION OF THE TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING
ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELFDEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid self-defense are
present in the instant case and, thus, his acquittal on all the charges is proper; that
when he fired his gun on that fateful night, he was then a victim of an unlawful
aggression perpetrated by the Ferrer brothers; that he, in fact, sustained an injury in
his left leg and left shoulder caused by the stones thrown by the Ferrer brothers; that
the appellate court failed to consider a material evidence described as "Exhibit O";
that "Exhibit O" should have been given due weight since it shows that there was slug
embedded on the sawali wall near the sign "Tidbits Caf and Videoke Bar"; that the
height from which the slug was taken was about seven feet from the ground; that if it

was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the
videoke bar in order to shoot them, then the trajectory of the bullets would have been
either straight or downward and not upward considering that the petitioner and the
Ferrer brothers were about the same height (5'6"-5'8"); that the slug found on the wall
was, in fact, the "warning shot" fired by the petitioner; and, that if this exhibit was
properly appreciated by the trial court, petitioner would be acquitted of all the
charges.29
Moreover, petitioner contended that the warning shot proved that that the Ferrer
brothers were the unlawful aggressors since there would have been no occasion for
the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the
testimony of Michael in the trial court proved that it was the Ferrer brothers who
provoked petitioner to shoot them; and that the Ferrer brothers pelted them with
stones even after the "warning shot."30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or
requisites in order that a plea of self-defense may be validly considered in absolving a
person from criminal liability, viz:
ART. 11. Justifying circumstances. The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself. x x x.
As an element of self-defense, unlawful aggression refers to an assault or attack, or a
threat thereof in an imminent and immediate manner, which places the defendant's
life in actual peril.31 It is an act positively strong showing the wrongful intent of the
aggressor and not merely a threatening or intimidating attitude.32 It is also described
as a sudden and unprovoked attack of immediate and imminent kind to the life, safety
or rights of the person attacked.33
There is an unlawful aggression on the part of the victim when he puts in actual or
imminent peril the life, limb, or right of the person invoking self-defense. There must

be actual physical force or actual use of weapon.34 In order to constitute unlawful

aggression, the person attacked must be confronted by a real threat on his life and
limb; and the peril sought to be avoided is imminent and actual, not merely
imaginary.35
In the case at bar, it is clear that there was no unlawful aggression on the part of the
Ferrer brothers that justified the act of petitioner in shooting them. There were no
actual or imminent danger to the lives of petitioner and Ferdinand when they
proceeded and arrived at the videoke bar and saw thereat the Ferrer brothers. It
appears that the Ferrer brothers then were merely standing outside the videoke bar
and were not carrying any weapon when the petitioner arrived with his brother
Ferdinand and started firing his gun.36
Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot
them by pelting the latter with stones, the shooting of the Ferrer brothers is still
unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a
state of actual or imminent danger considering the wide distance (4-5 meters) of the
latter from the location of the former.37 Petitioner was not cornered nor trapped in a
specific area such that he had no way out, nor was his back against the wall. He was
still capable of avoiding the stones by running away or by taking cover. He could have
also called or proceeded to the proper authorities for help. Indeed, petitioner had
several options in avoiding dangers to his life other than confronting the Ferrer
brothers with a gun.
The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly
caused by the stones thrown by the Ferrer brothers, does not signify that he was a
victim of unlawful aggression or that he acted in self-defense.38 There is no evidence
to show that his wounds were so serious and severe. The superficiality of the injuries
sustained by the petitioner is no indication that his life and limb were in actual peril.39
Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer
brothers continued to pelt him with stones,40 will not matter exonerate him from
criminal liability. Firing a warning shot was not the last and only option he had in order
to avoid the stones thrown by the Ferrer brothers. As stated earlier, he could have run
away, or taken cover, or proceeded to the proper authorities for help. Petitioner,
however, opted to shoot the Ferrer brothers.
It is significant to note that the shooting resulted in the death of Melton, and wounding
of Servillano and Michael. With regard to Melton, a bullet hit his right thigh, and
another bullet hit his head which caused his instant death.41As regards Servillano, a
bullet penetrated two of his vital organs, namely, the large intestine and urinary
bladder.42 He underwent two (2) surgeries in order to survive and fully
recover.43 Michael, on the other hand, sustained a gunshot wound on the right
shoulder.44 It must also be noted that the Ferrer brothers were shot near the videoke

bar, which contradict petitioner's claim he was chased by the Ferrer brothers. Given
the foregoing circumstances, it is difficult to believe that the Ferrer brothers were the
unlawful aggressors. As correctly observed by the prosecution, if the petitioner shot
the Ferrer brothers just to defend himself, it defies reason why he had to shoot the
victims at the vital portions of their body, which even led to the death of Melton who
was shot at his head.45 It is an oft-repeated rule that the nature and number of
wounds inflicted by the accused are constantly and unremittingly considered
important indicia to disprove a plea of self-defense.46
Let it not be forgotten that unlawful aggression is a primordial element in selfdefense.47 It is an essential and indispensable requisite, for without unlawful
aggression on the part of the victim, there can be, in a jural sense, no complete or
incomplete self-defense.48 Without unlawful aggression, self-defense will not have a
leg to stand on and this justifying circumstance cannot and will not be appreciated,
even if the other elements are present.49 To our mind, unlawful aggression, as an
element of self-defense, is wanting in the instant case.
The second element of self-defense requires that the means employed by the person
defending himself must be reasonably necessary to prevent or repel the unlawful
aggression of the victim. The reasonableness of the means employed may take into
account the weapons, the physical condition of the parties and other circumstances
showing that there is a rational equivalence between the means of attack and the
defense.50 In the case at bar, the petitioner's act of shooting the Ferrer brothers was
not a reasonable and necessary means of repelling the aggression allegedly initiated
by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far
deadlier compared to the stones thrown by the Ferrer brothers.51
Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at
the petitioner, the latter had other less harmful options than to shoot the Ferrer
brothers. Such act failed to pass the test of reasonableness of the means employed
in preventing or repelling an unlawful aggression.
With regard to the second issue, petitioner asserts that the Court of Appeals erred in
not acquitting him on the ground of lawful self-defense.
Petitioner's argument is bereft of merit.
In resolving criminal cases where the accused invokes self-defense to escape
criminal liability, this Court consistently held that where an accused admits killing the
victim but invokes self-defense, it is incumbent upon the accused to prove by clear
and convincing evidence that he acted in self-defense.52 As the burden of evidence is
shifted on the accused to prove all the elements of self-defense, he must rely on the
strength of his own evidence and not on the weakness of the prosecution.53

As we have already found, there was no unlawful aggression on the part of the Ferrer
brothers which justified the act of petitioner in shooting them. We also ruled that even
if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun
was not a reasonable means of repelling the act of the Ferrer brothers in throwing
stones. It must also be emphasized at this point that both the trial court and the
appellate court found that petitioner failed to established by clear and convincing
evidence his plea of self-defense. In this regard, it is settled that when the trial court's
findings have been affirmed by the appellate court, said findings are generally
conclusive and binding upon this Court.54 In the present case, we find no compelling
reason to deviate from their findings. Verily, petitioner failed to prove by clear and
convincing evidence that he is entitled to an acquittal on the ground of lawful selfdefense.
On another point, while we agree with the trial court and the Court of Appeals that
petitioner is guilty of the crime of Homicide for the death of Melton in Criminal Case
No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano
in Criminal Case No. U-9608, we do not, however, concur in their ruling that petitioner
is guilty of the crime of Frustrated Homicide as regards to Michael in Criminal Case
No. U-9609. We hold that petitioner therein is guilty only of the crime of Attempted
Homicide.
Article 6 of the Revised Penal Code states and defines the stages of a felony in the
following manner:
ART. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies, as well as those which are frustrated and attempted,
are punishable.
A felony is consummated when all the elements necessary for the for its
execution and accomplishment are present; and it is frustrated when the
offender performs all the acts of execution which would produce the felony
as a consequence but which, nevertheless, do not produce it by reason or
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance (italics supplied).
Based on the foregoing provision, the distinctions between frustrated and attempted
felony are summarized as follows:
1.) In frustrated felony, the offender has performed all the acts of execution
which should produce the felony as a consequence; whereas in attempted

felony, the offender merely commences the commission of a felony directly

by overt acts and does not perform all the acts of execution.

the trial in order to be appreciated.60 Moreover, it can be offset by an ordinary

mitigating circumstance.

2.) In frustrated felony, the reason for the non-accomplishment of the crime
is some cause independent of the will of the perpetrator; on the other hand,
in attempted felony, the reason for the non-fulfillment of the crime is a cause
or accident other than the offender's own spontaneous desistance.

On the other hand, special aggravating circumstances are those which arise under
special conditions to increase the penalty for the offense to its maximum period, but
the same cannot increase the penalty to the next higher degree. Examples are quasirecidivism under Article 160 and complex crimes under Article 48 of the Revised
Penal Code. It does not change the character of the offense charged.61 It must always
be alleged and charged in the information, and must be proven during the trial in
order to be appreciated.62 Moreover, it cannot be offset by an ordinary mitigating
circumstance.

In addition to these distinctions, we have ruled in several cases that when the
accused intended to kill his victim, as manifested by his use of a deadly weapon in his
assault, and his victim sustained fatal or mortal wound/s but did not die because of
timely medical assistance, the crime committed is frustrated murder or frustrated
homicide depending on whether or not any of the qualifying circumstances under
Article 249 of the Revised Penal Code are present.55 However, if the wound/s
sustained by the victim in such a case were not fatal or mortal, then the crime
committed is only attempted murder or attempted homicide.56 If there was no intent to
kill on the part of the accused and the wound/s sustained by the victim were not fatal,
the crime committed may be serious, less serious or slight physical injury.57
Based on the medical certificate of Michael, as well as the testimony of the physician
who diagnosed and treated Michael, the latter was admitted and treated at the
Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right
shoulder caused by the shooting of petitioner.58 It was also stated in his medical
certificate that he was discharged on the same day he was admitted and that the
treatment duration for such wound would be for six to eight days only.59 Given these
set of undisputed facts, it is clear that the gunshot wound sustained by Michael in his
right shoulder was not fatal or mortal since the treatment period for his wound was
short and he was discharged from the hospital on the same day he was admitted
therein. Therefore, petitioner is liable only for the crime of attempted homicide as
regards Michael in Criminal Case No. U-9609.
With regard to the appreciation of the aggravating circumstance of use of an
unlicensed firearm, we agree with the trial court and the appellate court that the same
must be applied against petitioner in the instant case since the same was alleged in
the informations filed against him before the RTC and proven during the trial.
However, such must be considered as a special aggravating circumstance, and not a
generic aggravating circumstance.
Generic aggravating circumstances are those that generally apply to all crimes such
as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and
20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime
to its maximum period, but it cannot increase the same to the next higher degree. It
must always be alleged and charged in the information, and must be proven during

It is clear from the foregoing that the meaning and effect of generic and special
aggravating circumstances are exactly the same except that in case of generic
aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas
in the case of special aggravating circumstance, it CANNOT be offset by an ordinary
mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an
aggravating circumstance provided for under Presidential Decree No. 1866,63 as
amended by Republic Act No. 8294,64 which is a special law. Its pertinent provision
states:
If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
In interpreting the same provision, the trial court reasoned that such provision is
"silent as to whether it is generic or qualifying."65 Thus, it ruled that "when the law is
silent, the same must be interpreted in favor of the accused."66 Since a generic
aggravating circumstance is more favorable to petitioner compared to a qualifying
aggravating circumstance, as the latter changes the nature of the crime and increase
the penalty thereof by degrees, the trial court proceeded to declare that the use of an
unlicensed firearm by the petitioner is to be considered only as a generic aggravating
circumstance.67 This interpretation is erroneous since we already held in several
cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now considered as a SPECIAL
aggravating circumstance and not a generic aggravating circumstance.68 Republic Act
No. 8294 applies to the instant case since it took effect before the commission of the
crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner
in the instant case should be designated and appreciated as a SPECIAL aggravating
circumstance and not merely a generic aggravating circumstance.

As was previously established, a special aggravating circumstance cannot be offset

by an ordinary mitigating circumstance. Voluntary surrender of petitioner in this case
is merely an ordinary mitigating circumstance. Thus, it cannot offset the special
aggravating circumstance of use of unlicensed firearm. In accordance with Article 64,
paragraph 3 of the Revised Penal Code, the penalty imposable on petitioner should
be in its maximum period.69
As regards the civil liability of petitioner, we deem it necessary to modify the award of
damages given by both courts.
In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper
amount of civil indemnity isP50,000.00, and that the proper amount for moral
damages is P50,000.00 pursuant to prevailing jurisprudence.70However, based on the
receipts for hospital, medicine, funeral and burial expenses on record, and upon
computation of the same, the proper amount of actual damages should
be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity
cannot be awarded in this case since there was no documentary evidence to
substantiate the same.71 Although there may be exceptions to this rule,72 none is
availing in the present case. Nevertheless, since loss was actually established in this
case, temperate damages in the amount ofP25,000.00 may be awarded to the heirs
of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate
damages may be recovered when the court finds that some pecuniary loss was
suffered but its amount cannot be proved with certainty. Moreover, exemplary
damages should be awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already established.73 Based on
prevailing jurisprudence, the award of exemplary damages for homicide
is P25,000.00.74
In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award
of actual damages and its corresponding amount since the same is supported by
documentary proof therein. The award of moral damages is also consistent with
prevailing jurisprudence. However, exemplary damages should be awarded in this
case since the presence of special aggravating circumstance of use of unlicensed
firearm was already established. Based on prevailing jurisprudence, the award of
exemplary damages for both the attempted and frustrated homicide shall
be P25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court of Appeals dated 30
September 2004 is herebyAFFIRMED with the following MODIFICATIONS:
(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of
attempted homicide. The penalty imposable on the petitioner is prision
correccional under Article 51 of the Revised Penal Code.75 There being a special
aggravating circumstance of the use of an unlicensed firearm and applying the

Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2)
months of arresto mayor as minimum period to six (6) years of prision correccional as
maximum period. As regards the civil liability of petitioner, the latter is hereby ordered
to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to
the actual damages and moral damages awarded by the Court of Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the
frustrated homicide is prision mayor under Article 50 of the Revised Penal
Code.76 There being a special aggravating circumstance of the use of an unlicensed
firearm and applying the Indeterminate Sentence Law, the penalty now becomes six
(6) years ofprision correccional as minimum period to twelve (12) years of prision
mayor as maximum period. As regards the civil liability of petitioner, the latter is
hereby ordered to pay Servillano Ferrer exemplary damages in the amount
of P25,000.00 in addition to the actual damages and moral damages awarded by the
Court of Appeals.
(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide
is reclusion temporal under Article 249 of the Revised Penal Code.77 There being a
special aggravating circumstance of the use of an unlicensed firearm and applying
the Indeterminate Sentence Law, the penalty now is twelve (12) years of prision
mayor as minimum period to twenty (20) years of reclusion temporal as maximum
period. As regards the civil liability of petitioner, the latter is hereby ordered to pay
Melton Ferrer exemplary damages in the amount ofP25,000.00 in addition to the
actual damages and moral damages awarded by the Court of Appeals. The actual
damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 169060

February 6, 2007

THE PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JOEY CONCEPCION y PEREZ, Appellant.
DECISION
TINGA, J.:
For review is the Decision1 of the Court of Appeals affirming with modification the
Judgment2 dated 24 June 2002 of the Regional Trial Court3 (RTC) Branch 12 of
Malolos, Bulacan, finding appellant Joey Concepcion y Perez guilty beyond
reasonable doubt of the crime of murder, and sentencing him to suffer the penalty of
reclusion perpetua.
In an Amended Information4 filed by Assistant Provincial Prosecutor Salvador R.
Santos, Jr. on 1 December 1998, appellant was charged with murder, thus:
Criminal Case No. 423-M-98
That on or about the 26th day of December 1997, in the municipality of Bustos,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, armed with a knife, with intent to kill one Rolando F.
Nicolas, with treachery, did then and there wilfully (sic), unlawfully and feloniously
attack, assault and stab with the said knife said [sic] Rolando F. Nicolas, hitting him
on his abdomen, thereby inflicting upon him serious physical injuries which directly
caused the death of the said Rolando F. Nicolas.
Contrary to law.
On 19 March 1998, appellant was originally charged with homicide in an
Information5 filed before the RTC, Branch 77 of Malolos, Bulacan. However, following
the execution of her Karagdagang Sinumpaang Salaysay,6eyewitness Carmencita
Balia (Balia),7 common-law wife of victim Rolando F. Nicolas (Nicolas), filed a
motion for reinvestigation8 before the RTC, Branch 77. This motion was granted9 and
after the completion of reinvestigation, the Amended Information for murder was filed.
The case was thus re-raffled and assigned to RTC, Branch 12.

When arraigned, appellant pleaded not guilty to the charge.10 Subsequently, the
defense manifested at pre-trial that while appellant indeed stabbed Nicolas in the
stomach once, he did so however in self-defense. For this reason, the trial court,
upon agreement of the parties, ordered the conduct of reverse proceedings with the
defense first to present its evidence on the alleged self-defense.11
The pre-trial order12 issued by Judge Crisanto C. Concepcion embodied the
stipulations agreed upon by the parties as follows: (1) the identities of the accused
and the victim; (2) the date, time and place of the commission of the charged offense,
that is, 26 December 1997, 12:10 in the morning, in Barangay Tanawan, Bustos,
Bulacan; (3) that the cause of death of the victim was the single stab wound to the
stomach; and (4) that prosecution witnesses Balia, Jeffrey Lopez (Lopez) and Precy
Baldazo (Baldazo) gave their respective statements to the police authorities, and this
being so, the testimonies of the police officer who took the statements and the
medico-legal officer may already be dispensed with.13
Trial promptly ensued thereafter. To substantiate his theory, the defense presented as
witnesses the appellant, appellants father, appellants mother, and SPO4 Eduardo
Cuison, the arresting officer. The defenses version of the incident runs, thus:
At about 11 oclock in the evening of 25th of December 1997, appellant and his friend
Lopez joined Nicolas, Balia, and their companions Gilbert de Guzman and Lenin
Baldazo at the drinking session and holiday festivities then going on in the house of
appellants aunt Precy Baldoza.14
The trouble that night allegedly began when appellant attempted to flirt with Balia by
touching her hand when she passed the videoke microphone to him. According to
appellant, what he did angered the victim, causing the latter to utter in a loud
voice, "Putang ina mo, multo ka."15 Immediately thereafter, Balia purportedly asked
appellant to leave to avoid further problems. Thus, appellant claims to have gone, but
that he was prompted to return to retrieve his mother, who had been left there in the
course of their heated argument.16
As he returned to fetch his mother, while situated about two (2) meters from his aunts
house, so appellant narrates, Nicolas suddenly appeared and pulled out a knife.
Appellant approached Nicolas and asked, "Ano ba ang problema?" In the course of
their argument, appellant allegedly attempted to wrestle the knife away from the
victim. Consequently, in their struggle to gain possession of the knife, appellant and
Nicolas fell on the ground, with the latter landing on top of appellant. According to
appellant, he was surprised to see that the knife had pierced the stomach of Nicolas.
Confused, as he was himself bloodied, appellant explains, he ran away and left the
victim without helping him.17

Appellant went straight to his home where he told his wife and father about what had
transpired. His father then went to the police station and came back with two (2)
police officers.18
To counter the defenses account of the incident, the prosecution presented Balia
who claimed to have witnessed the killing of the victim. Her testimony attested to the
following facts:
In the evening of 25 December 1997, appellant and Lopez joined a get-together at the
house of Baldazo where, among others, Nicolas and Balia were present. Throughout
the night, the group drank beer and sang in celebration of the holidays. Sometime
during the drinking spree, however, Balia noticed that appellant had surreptitiously
left in a hurry without explanation and thereafter disappeared for a considerable
amount of time. Balia believes that at that point, appellant went home to get the
murder weapon as his mother appeared at the venue of the festivities thereafter and
inquired whether her son had a fight with anyone.19
At around 11:45 that evening, the festivities ended uneventfully. Appellant, who was
first to leave the group, seated himself in the veranda outside the house. He was
followed by his mother, Nicolas, Balia and the rest. As Balia and Nicolas were
going out of the house and into the veranda, the latter paused and stooped slightly to
light a cigarette.20
Balia saw appellant suddenly stand up, rush toward Nicolas and stab him.
Thereafter, appellant fled. Nicolas was stunned, managing to utter only the
words, "Why, Joey?" before collapsing. He was rushed to a nearby hospital where he
expired.21
The Autopsy Report22 on the victim shows that the cause of his death was the stab
wound in his abdomen. It describes the stab wound as follows:
xxxx
STAB WOUND gaping, 2.5 cms. located on the abdomen, along the anterior
median line, 102 cms. from the right heel, one end is sharp, the other is contused,
directed backwards and upwards involving the skin and underlying soft tissues,
severing the omentum and intestines and hitting the liver with a depth of 8-9 cms.

area. The victim had then allegedly poked a gun at appellant in one of their
encounters.23
To prove actual damages, Balia presented receipts in the amount of P50,000.00
representing the expenses incurred during the wake and the service for the victims
funeral.24
Finding the prosecutions version to be more credible than appellants allegation of
self-defense, the trial court found appellant guilty of murder and sentenced him to
suffer the penalty of reclusion perpetua, to indemnify the heirs of the victim in the
amount of P75,000.00, in addition to P50,000.00 for funeral expenses as actual
damages, and P50,000.00 as moral damages.25
Conformably with this Courts decision in People v. Mateo,26 appellants appeal was
remanded to the Court of Appeals. On 9 May 2005, the appellate court rendered its
decision affirming the appellants conviction, with modification as to appellants civil
indemnity. The dispositive portion of the decision states:
WHEREFORE, the appealed Decision of the Regional Trial Court of Malolos, Bulacan
(Branch 12), dated June 24, 2002, in Criminal Case No. 423-M-98, finding appellant
Joey Concepcion y Perez guilty of murder and sentencing him to suffer the penalty of
reclusion perpetua and awarding actual and moral damages in favor of the legal heirs
of the victim Rolando F. Nicolas is AFFIRMED with MODIFICATION that the civil
indemnity awarded by the trial court also in favor of the said heirs is reduced to Fifty
Thousand Pesos (P50,000.00). No pronouncement as to costs.
SO ORDERED.27
Appellant maintains that the court a quo gravely erred: (1) in giving full faith and
credence to the testimony of Balia instead of the self-defense interposed by
appellant; (2) in appreciating the qualifying circumstance of treachery; and (3) in
finding appellant guilty beyond reasonable doubt of the crime of murder.28
Appellant argues that all the essential elements of self-defense were sufficiently
established to exculpate him from liability. He contends that no evidence on record
shows that he intended to kill the victim; if at all, the death of the victim was purely
accidental and only triggered by the provocation committed by the victim when he
attacked appellant with a knife.29

xxxx
The prosecution asserts that appellant harbored ill-feelings toward Nicolas as a result
of a disagreement some three (3) years back. Nicolas had purportedly reprimanded
appellant for extorting money from those engaged in quarrying operations in their

We are convinced of the appellants guilt beyond reasonable doubt, however, the
downgrading of the offense involved and the reduction of the penalty are in order.

Case law has established that in invoking self-defense, whether complete or

incomplete, the onus probandi is shifted to the accused to prove by clear and
convincing evidence all the elements of justifying circumstance, namely: (a) unlawful
aggression on the part of the victim; (b) the reasonable necessity of the means
employed to prevent or repel it; and (c) lack of sufficient provocation on the part of the
person defending himself.30

Appellant is not even sure of his real defense. He asserts that his acts were made in
self-defense, but he suggests at the same time that the victims death was accidental.
The incongruent claims make his overall theory implausible.

We find that appellant has miserably failed to demonstrate that the death of Nicolas
had occurred on the occasion of a legitimate self-defense on his part. The accused, in
cases of self-defense, must rely on the strength of his own evidence and not on the
weakness of the prosecutions evidence since he admits the commission of the
alleged criminal act.31 One who admits the infliction of injuries which caused the death
of another has the burden of proving self-defense with sufficient and convincing
evidence, for even if the evidence of the prosecution were weak, it could not be
disbelieved after the accused himself had admitted the killing.32 Self-defense, like
alibi, is a defense which can easily be concocted. If the accuseds evidence is of
doubtful veracity, and it is not clear and convincing, the defense must necessarily
fail.33

There is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which
the offended party might make. 38

Accordingly, there can be no self-defense unless there was unlawful aggression on

the accused. It thus follows that the accused has the burden of proof to show that he
was the victim of an unlawful aggression in order to be entitled to his claim of selfdefense.34 This is so, because it is a fundamental principle that one who exculpates
himself with an allegation of justification has the burden of fully showing the
concurrence of all the elements constituting the defense invoked.35
Unlawful aggression presupposes not merely a threatening or an intimidating attitude,
but an actual, sudden and unexpected attack or an imminent danger thereof, which
imperils ones life or limb.36 It is the first and primordial element of self-defense.
Without it, the justifying circumstance cannot be invoked.37
Hence, it is crucial to determine whether or not the victim Nicolas was indeed the
unlawful aggressor. He was not. Aggression to be unlawful must be actual and
imminent, such that there is a real threat of bodily harm to the person resorting to selfdefense or to others whom that person is seeking to defend. As adequately
established by the prosecution, there was no incident to speak of which would
amount to aggression, much less unlawful aggression, on the part of the victim.
Correspondingly, appellant failed to present any corroborative evidence to buttress
his bare allegations, despite the presence of many persons during the incident who
could have been called to testify. His lone testimony in support of his claim of selfdefense under the circumstances is simply not enough to establish his defense.

While appellants slaying of Nicolas is a proven fact, the prosecution however failed to
prove the presence of treachery to qualify the killing to murder.

In the case at bar, the Courts below should not have appreciated the presence of
treachery to qualify the killing to murder. The only prosecution evidence on the matter
is the bare testimony of Balia, the victims common-law wife, that his head was bent
while lighting a cigarette when appellant launched his attack. Balia made the claim
for the first time in her Karagdagang Sinumpaang Salaysay,39 as she failed to mention
it in her first Sinumpaang Salaysay.40 The amendment appears to be a mere
afterthought made precisely to upgrade the charge to murder.
Significantly, two of the companions of Nicolas during the festivities gave statements
to the police authorities.41However, the prosecution did not present them as
witnesses. Hence, their statements cannot be considered as evidence.42
In the absence of conclusive proof on the manner in which the aggression against
Nicolas was commenced, treachery cannot be appreciated as a modifying
circumstance.43 It bears stressing that treachery cannot be presumed. It must be
proved with the same quantum of evidence as the crime itself.44
The barefaced fact that the victim might have been unaware or helpless when he was
stabbed does not constitute proof of treachery.45 The prosecution has the burden to
prove that at the time of the attack, the victim was not in a position to defend himself,
and that the offender consciously and deliberately adopted the particular means,
method and forms of attack employed by him.46 When the prosecution fails to prove
treachery, as in this case, the accused may be held liable only for homicide not
murder.47
As a final matter, we address the issue of appellants claimed mitigating circumstance
of voluntary surrender. For voluntary surrender to be considered, the following
requisites must concur: (a) the offender was not actually arrested; (b) he surrendered
to a person in authority or to an agent of a person in authority; and (c) his surrender
was voluntary.48 There must be showing of spontaneity and an intent to surrender
unconditionally to the authorities, either because the accused acknowledges his guilt
or he wishes to spare them the trouble and expense concomitant to his capture.49 The

records show that appellant did not surrender but was arrested in his residence by
SPO4 Cuison. This arresting officer even had to go twice to appellants home to effect
the arrest, because during the first attempt, appellant would not come out of his
house and his mother refused to turn him over to the arresting officer.50
Based on the foregoing, we modify the finding of guilt and the consequent penalty
imposed as pronounced by the Court of Appeals. Article 249 of the Revised Penal
Code (RPC), as amended, prescribes the penalty of reclusion temporal for the crime
of homicide. There being neither mitigating nor aggravating circumstances in the
commission of the deed in the instant case, the penalty of reclusion temporal in its
medium period is imposed, in accordance with Article 64, paragraph 1 of the RPC.
Further, applying Section 1 of the Indeterminate Sentence Law, the Court imposes the
penalty of imprisonment ranging from ten (10) years and one (1) day of prision mayor,
as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
maximum.1awphi1.net
We affirm, however, the award of damages. Consequently, the court finds appellant
liable to the heirs of Rolando F. Nicolas in the amount of P50,000.00 as actual
damages for funeral expenses, P50,000.00 as moral damages and P50,000.00 as
civil indemnity.51
WHEREFORE, the decision of the Court of Appeals in CA-G.R. CR No. 00519, is
AFFIRMED WITH MODIFICATION. As modified, appellant JOEY CONCEPCION y
PEREZ is convicted of the crime of homicide and sentenced to suffer an
indeterminate penalty of imprisonment ranging from ten (10) years and one (1) day
ofprision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, as maximum. Appellant is further ordered to pay the heirs of
Rolando F. Nicolas the amounts of P50,000.00 as actual damages,P50,000.00 as
moral damages and P50,000.00 as civil indemnity. No pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 168051

CHICO-NAZARIO, J.:
Murder is one of the instances when man descends to a level lower than that of the
beast, for it is non-instinctive killing, a deliberate destruction of a member of the same
species for reasons other than survival.1
This is an appeal from the Decision of the Court of Appeals in CA-G.R. CR No.
00755, dated 31 March 2005,2affirming with modifications the Decision of the
Regional Trial Court (RTC) of Pallocan, Batangas City, Branch 4, in Criminal Case
No. 10525, dated 9 October 2001,3 convicting the accused-appellant Honorato C.
Beltran, Jr., alias Jun-Jun and Junior, of the crime of murder, sentencing him to suffer
the penalty of reclusion perpetua, and ordering him to pay the heirs of deceased
Norman H. Concepcion, the amount of P75,000.00 as moral damages,P50,000.00 as
civil indemnity, and P18,252.00 as actual damages.
On 3 November 1999, appellant was indicted in an Information4 for Murder allegedly
committed as follows:
That on or about October 25, 1999 at around 10:00 o'clock in the evening at
Velasquez Road, Brgy. Sta. Rita, Batangas City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, while armed
with a bolo, a deadly weapon, with intent to kill and with the qualifying
circumstance of treachery, did then and there, willfully, unlawfully and
feloniously attack, assault and hack with the said bolo, suddenly and without
warning one Norman Concepcion y Habla while the latter was unarmed and
completely defenseless, thereby hitting him on the different parts of his body,
which directly caused the victim's death.
When arraigned on 9 November 1999, appellant pleaded "Not Guilty" to the charge
therein.5 Thereafter, trial on the merits ensued.
The prosecution established its case through the testimonies of its witnesses, namely:
Ever D. Sales, Rolando G. Dalisay, Dr. Dinah R. Lucero, SPO1 Julian M. de Castro
and Normita H. Concepcion. Their testimonies are summarized as follows:
Ever D. Sales (Ever) was a resident of Velasquez Subdivision, Barangay Sta. Rita,
Batangas City. He worked as a gasoline boy in Caltex Gasoline Station at San
Pascual, Batangas City.

September 27, 2006

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HONORATO C. BELTRAN, JR., accused-appellant.

Ever testified that on 25 October 1999, at about 10:00 in the evening, he left his
workplace and proceeded home using his bicycle. While traversing the Velasquez
Road, he saw appellant holding a bolo and standing in front of his house situated at
the side of Velasquez Road. On the opposite side of the same road, he saw Norman
H. Concepcion (Norman) standing in front of an automobile repair shop. Exhausted

by the travel, Ever decided to stop by and rest momentarily at a nipa hut near the
same road. Minutes later, he saw appellant, from a distance of six meters, stalking
Norman who was then walking near the automobile shop. Appellant approached
Norman, and, without a warning, hacked him with a bolo. Norman tried to avoid the
blow by moving backwards and shielding his face with his left arm. However,
Norman's left hand was hit and wounded by the bolo. When Norman turned around
and ran, appellant hacked him at the back causing him to fall down on a grassy area.
Appellant repeatedly hacked Norman with a bolo.
Fearing for his own safety, Ever immediately left the nipa hut and sought help in a
nearby sari-sari store. Later, he went to the crime scene and found no trace of
appellant. He also discovered the bloodied and lifeless body of Norman sprawled on
the ground. Afterwards, he proceeded home and narrated to a relative named Renato
Sales (Renato) what he just witnessed. Later, Renato informed a certain Carmina
Baliwag of the incident, who in turn, relayed the same to Normita Concepcion
(Normita), the sister of Norman. Ever also declared that he did not know of any
reason why appellant hacked Norman to death.6
Rolando G. Dalisay (Rolando) is a resident of Velasquez Subdivision, Barangay Sta.
Rita, Batangas City, where he is engaged in a carpentry business.
Rolando supported the testimony of Ever by stating that on 25 October 1999, at
around 10:00 in the evening, he was walking along Velasquez Road to buy some
medicines when, at a distance of about 15 meters, he saw appellant hacking Norman
with a bolo. He noticed that when Norman fell on the ground, appellant continued his
onslaught by relentlessly hacking the former. Afraid that he might be seen by the
appellant, he immediately went home and informed his wife about the incident. When
the barangay tanod and policemen arrived at the crime scene, he proceeded thereto
and told them what he had witnessed. Further, he stated that he personally knows
appellant as the latter was a former employee in his carpentry business. He also
personally knew Norman since the latter was a relative of his wife. Lastly, he testified
that appellant and Norman had a previous quarrel which, however, was subsequently
settled in their barangay office.7
SP01 Julian D. Mendoza was the investigating officer of the instant case. On 26
October 1999, at about 12:00 midnight, his station received an information regarding
the hacking incident. He and a certain SPO3 Mario Panaligan rushed to the crime
scene. Upon arriving thereat, he inquired from the people present the identity of the
dead person and of the killer. Rolando approached him and narrated that the dead
person was Norman and the killer was appellant. Normita also arrived at the crime
scene and told him relevant information. With this lead, they proceeded to appellant's
house but the latter was not there.

On 27 October 1999, a certain Tomas Dimacuha surrendered the appellant. Later, the
brother of appellant, Sherman Beltran, brought before him the bolo, about three
palms in length, used by appellant in hacking Norman to death.8
Dr. Dinah R. Lucero, Medical Officer IV of the Batangas City Health Office, testified
that she conducted the post mortem examination on the cadaver of Norman on 26
October 1999 at the Eternal Memorial Chapel. She declared that, aside from the fact
that Norman's body was almost decapitated, the latter suffered seven stab wounds
and his cause of death was "massive blood loss secondary to multiple hacking
wound."9 The death certificate issued by Lucero shows that Norman was twenty-two
(22) years of age at the time of his demise.10
Lastly, Normita, sister of Norman, testified that on the evening of 25 October 1999,
Carmina Baliwag called her on the telephone and instructed her to proceed to
Velasquez Road. Upon arriving thereat, she was shocked to discover the dead body
of Norman lying on the ground. She claimed that appellant had a motive to kill
Norman since an altercation occurred between the two on 22 October 1999, which,
however, was settled later on 25 October 1999. In establishing her claim for
damages, she stated that she spent an amount of P61,000.00 in connection with
Norman's death, and that the latter worked as an assistant to the electrician at First
Gas Company with a monthly income of P6,000.00. She also claimed that she was
"shocked" at the sudden and gruesome death of Norman, and that she felt "pity" for
him.11
On the other hand, the defense argued its case by presenting the testimony of the
appellant himself and a certain Dr. Luisito Briones.
Appellant admitted that he hacked Norman with a bolo but insisted that he did the
same in self-defense. He narrated that on 25 October 1999, at about 10:00 in the
evening, he and his mother were resting inside their house when suddenly, he heard
Norman shouting and insulting him outside their house and challenging him to a fight.
When he came out of the house, he noticed that Norman was accompanied by
several unidentified persons. Thereafter, he tried to pacify Norman but the latter
slapped the back of his head and pulled out an ice pick from his pocket. He retreated
and looked for something to defend himself. He found a bolo near a tamarind tree in
front of their house and took the same. When Norman was about to enter appellant's
house, the latter hacked him with the bolo. Norman tried to avoid the blow but the
same hit his left arm. Appellant lost grip of the bolo and the same fell on the ground.
While appellant was reaching for the bolo, Norman grabbed his head and tried to stab
him with the ice-pick. Appellant, however, eluded the counter-attack but he sustained
a minor wound on the forehead. Upon gaining control of the scuffle, appellant took the
bolo and hacked Norman four consecutive times, most of them landed on the head.
When appellant noticed that Norman was no longer moving, he fled therein and went
to his brother, Sherman Beltran, in Bauan, Batangas, where he stayed that same

night and hid therein the bolo. The next day, he went to his sister's house in Lipa City.
Later that day, he went to the Granja Hospital, also in Lipa City, for treatment of his
wound on the forehead.
Appellant also claimed that on 22 October 1999, he was mauled by Norman near a
sari-sari store; that Norman is taller than him since he is only 5'4 in height; that he
was forced to kill Norman because the latter insulted him and his mother; and that he
was on his way to Bauan City to surrender to police when he was apprehended by
the barangay officers in Lipa City.12 Appellant was twenty-nine years (29) of age at the
time of his arrest.13
Dr. Luisito D. Briones testified that he treated appellant on the morning of 26 October
1999 at Granja Hospital in Lipa City for a lacerated wound on the forehead. He also
claimed that the wound was possibly caused by a knife and that it was already on the
healing stage. He also issued a medical certificate attesting to the same.14
On 9 October 2001, the RTC rendered its Decision15 finding appellant guilty beyond
reasonable doubt of the crime of murder. It reasoned that appellant's claim of selfdefense cannot be sustained in view of the positive and credible testimonies of the
prosecution witnesses. In closing, the trial court ruled:
In the light of all the foregoing consideration and upon the evidence,
accused Honorato Beltran, Jr. y Casia alias "Jun-Jun" is hereby found
GUILTY beyond reasonable doubt of the crime of Murder charged in the
information. Consequently, the accused is hereby sentenced to Reclusion
perpetua together with all the accessory penalties inherent therewith and to
pay the costs. He is further directed to indemnify the heirs of Norman
Concepcion in the sum of P61,000.00 as actual damages and the sum
of P75,000.00 as moral damages.16
Aggrieved, appellant filed a notice of appeal therein on 22 October
2001.17 Subsequently, on 3 January 2003, appellant filed his Appellant's Brief with this
Court assailing the Decision of the RTC dated 9 October 2001.18Pursuant to our ruling
in the case of People v. Mateo,19 we issued a Resolution dated 8 November 2004,
transferring the instant case to the Court of Appeals for disposition.20 On 31 March
2005, the Court of Appeals promulgated its Decision affirming with modifications the
assailed RTC Decision. Aside from reducing the amount of actual damages awarded
by the RTC, it also ordered appellant to pay the heirs of Norman an amount
ofP50,000.00 as civil indemnity. The dispositive portion thereof reads:
WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION.
Aside from moral damages in the amount of P75,000.00, appellant is
ordered to pay the heirs of the deceased, Norman Concepcion, the following
amounts: (a) Fifty Thousand (P50,000.00) as civil indemnity; and (b)

Eighteen Thousand Five Hundred Twenty-Five (P18,525.00) as actual

damages.21
Dismayed, appellant appealed the afore-quoted Decision before this Court by
adopting and invoking the same arguments stated in his Appellant's Brief dated 3
January 2003, to wit:

I.
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF EVER SALES DESPITE OF ITS BEING UNBELIEVABLE
AND BIASED, INSTEAD OF THE SELF-DEFENSE INTERPOSED BY THE
APPELLANT.
II.
THE TRIAL COURT GRAVELY ERRED IN CONSIDERING THE
QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE THE
PROSECUTION'S FAILURE TO ESTABLISH THE SAME BEYOND
REASONABLE DOUBT.
III.
ASSUMING THAT ACCUSED-APPELLANT IS NOT ENTITLED TO THE
JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, THE TRIAL COURT
ERRED IN NOT CONSIDERING IN HIS FAVOR THE MITIGATING
CIRCUMSTANCES OF SUFFICIENT PROVOCATION ON THE PART OF
THE OFFENDED PARTY WHICH IMMEDIATELY PRECEDED THE ACT
AND VOLUNTARY SURRENDER.
IV.
THE TRIAL COURT GRAVELY ERRED IN AWARDING EXCESSIVE
ACTUAL DAMAGES.22
Anent the first issue, appellant argued that the testimony of prosecution witness, Ever,
is biased, unbelievable and confusing; that the trial court should not have considered
them; that his acquittal is proper on the ground of self-defense; and that the elements
of self-defense are present in the instant case.
The contention is without merit.

Prosecution eyewitness, Ever, testified that on 25 October 1999, at about 10:00 in the
evening, he left his workplace and proceeded home using his bicycle. While
traversing Velasquez Road, he saw appellant holding a bolo and standing in front of
his house situated at the side of Velasquez Road. On the opposite side of the same
road, he saw Norman standing in front of an automobile repair shop. Exhausted by
the travel, he decided to stop by and rest momentarily at a nipa hut near the same
road. Minutes later, he saw appellant, from a distance of six meters, stalking Norman
who was walking then near the automobile repair shop. Appellant approached
Norman, and without a warning, repeatedly hacked him with a bolo. Although it
occurred late in the evening, the light coming from the moon and the electric post
therein provided him with good visibility to identify appellant and Norman, and to
witness how the heinous act was executed.23 This testimony was corroborated by
another prosecution eyewitness, Rolando. Thus, the positive identification and
categorical declarations of Ever on the witness stand under solemn oath deserves full
faith and credence.
Appellant, however, posited that there were inconsistencies between the testimony of
Ever in open court and his sworn statements before the investigators. According to
appellant, Ever testified during his direct examination that he was at a distance of
about six meters, more or less, from appellant and Norman when the hacking
occurred; that the place where the killing occurred was "lighted" by the moon; and
that during his cross-examination, he stated that there was no other person within the
area when he witnessed the hacking. On the other hand, appellant claimed that Ever
declared in his sworn statements before the investigators that he was more or less 20
meters from the place where the hacking took place; that there was light coming from
the electric post and the moon; and that during his cross-examination, he also stated
that the mother of appellant was outside the house when the hacking took place.24
This Court had consistently ruled that the alleged inconsistencies between the
testimony of a witness in open court and his sworn statement before the investigators
are not fatal defects to justify a reversal of judgment of conviction. Such discrepancies
do not necessarily discredit the witness since ex-parte affidavits are almost always
incomplete. It bears emphasis that a sworn statement or an affidavit does not purport
to contain a complete compendium of the details of the event narrated by the affiant.
Sworn statements taken ex-parte are generally considered to be inferior to the
testimony given in open court.25
Moreover, as aptly stated by the Office of the Solicitor General (OSG), when Ever
testified in court that "there was light coming from the moon, sir" he was not denying
what he stated in his sworn statement that "there was a light from the lamp (electric)
post and the moon."26 The appellant also testified that the place where the hacking
incident occurred was lighted by an electric post. As the foregoing circumstances
clearly established that the place where the hacking occurred was lighted by the

moon and an electric post, the testimony of Ever as to the identity of the killer and the
victim, and how the killing was executed, must stand.
Further, the alleged inconsistencies with respect to the presence of appellant's
mother in the place where the hacking took place, and the distance between the nipa
hut where Ever rested and the area where the hacking took place, are minor
inconsistencies and trivial matters that serve to strengthen rather than weaken the
credibility of Ever for they erase the suspicion of rehearsed testimony. Also, they are
not material in the instant case since none of them is an essential element of
murder.27
More importantly, the RTC had observed that Ever was candid, straightforward and
credible in giving his testimony on the witness stand. It found Ever to be unbiased
since he was neither a friend nor an enemy of appellant and Norman but just a mere
neighbor. It also found that there was no ulterior motive for him to testify against
appellant.28
It is a well-settled doctrine in our jurisprudence that when the credibility of a witness is
in issue, the findings of fact of the trial court, its calibration of the testimonies of the
witnesses and its assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded high respect if not conclusive
effect.29This is because the trial court has the unique opportunity to observe the
demeanor of a witness and is in the best position to discern whether they are telling
the truth.30 It is worth stressing at this point that the Court of Appeals affirmed such
findings of the RTC. In this regard, it is settled that when the trial court's findings have
been affirmed by the appellate court, said findings are generally conclusive and
binding upon this Court.31 We find no compelling reason to deviate from such findings
of the RTC and the Court of Appeals.
On another point, appellant contended that he merely acted in self-defense when he
hacked Norman to death.
We disagree.
Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or
requisites in order that a plea of self-defense may be validly considered in absolving a
person from criminal liability, viz:
ART. 11. Justifying circumstances. The following do not incur any criminal
liability:
Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
As an element of self-defense, unlawful aggression refers to an assault or attack, or a
threat thereof in an imminent and immediate manner, which places the defendant's
life in actual peril.32 It is an act positively strong showing the intent of the aggressor
and not merely a threatening or intimidating attitude.33 It is also described as a
sudden and unprovoked attack of immediate and imminent kind to the life, safety or
rights of the person attacked.34
There is an unlawful aggression on the part of the victim when he puts in actual or
imminent peril the life, limb, or right of the person invoking self-defense. There must
be actual physical force or actual use of weapon.35 In order to constitute unlawful
aggression, the person attacked must be confronted by a real threat on his life and
limb; and the peril sought to be avoided is imminent and actual, not merely
imaginary.36
In the instant case, there was no unlawful aggression on the part of Norman that
justified the act of appellant in hacking him to death. There was no actual or imminent
danger on the life of appellant when he came face to face with Norman. As narrated
by Ever, Norman was just walking on the road and was not provoking appellant into a
fight. It was the appellant who approached and suddenly hacked Norman repeatedly
even when the latter was already fallen on the ground. In short, appellant was the
unlawful aggressor.
Even if this Court were to adopt the version of facts of appellant, the result or
conclusion would be the same.
Appellant alleged that he was resting inside his house when he heard Norman
shouting invectives against him and challenging him to a fight. When he went outside
the house to pacify Norman, the latter slapped the back of his head and brought out
an ice-pick. Appellant retreated and when Norman tried to follow him inside the
house, he took a bolo and repeatedly hacked Norman. The foregoing circumstances
does not justify the act of appellant in hacking Norman. Obviously, mere shouting of
invectives and challenging one to a fight does not put one's life in actual or imminent
danger. In the same vein, mere slapping of one's head does not place a person's life
in serious danger such that it compels him to use a bolo and hack the offender.
As regards the brandishing of an ice-pick, appellant had several less harmful means
of avoiding the same as he was not cornered or trapped. He could have run inside his

house and locked the door, or, called the neighbors or authorities for help.
Unfortunately, appellant did not avail himself of any of those options and instead
chose to hack Norman. Quite conspicuously, no convincing evidence was presented
to show that Norman was, indeed, armed with an ice-pick at the time of the incident.
In fact, no ice-pick was found in the crime scene nor in the body of Norman. There
was also no proof adduced showing that Norman attempted to stab appellant or tried
to barge into the latter's house.37
The fact that appellant sustained an injury on his head, allegedly caused by Norman's
ice-pick, does not signify that he was a victim of unlawful aggression or that he acted
in self-defense.38 The physician who treated appellant testified that the latter was
diagnosed on 26 October 1999, the day after the hacking incident; that appellant was
discharged on the same day he was treated in the hospital since he was only an outpatient; and that at the time he examined the head injury of appellant, it was already
on its healing stage.39 It is clear from the foregoing that appellant's head injury was
not serious or severe. The cause of the same is likewise doubtful. Thus, the
superficiality of the injury sustained by appellant is no indication that his life and limb
were in actual peril.40
In stark contrast, Norman was almost decapitated and sustained fatal injuries on the
head and neck. All in all, Norman sustained seven fatal wounds, most of them located
at the head and neck. Based on the foregoing, it is difficult to believe that Norman
was the unlawful aggressor. The gravity, location, and number of wounds sustained
by Norman are eloquent physical evidence showing a determined effort on the part of
appellant to kill Norman, and not just to defend himself.41
Time and again, we held that unlawful aggression is a sine qua non for upholding the
justifying circumstance of self-defense.42 It is an essential and indispensable requisite,
for without unlawful aggression on the part of the victim, there can be, in a jural
sense, no complete or incomplete self-defense.43 Without unlawful aggression, selfdefense will not have a leg to stand on and this justifying circumstance cannot and
will not be appreciated even if the other elements are present.44 To our mind, unlawful
aggression is clearly absent in the case at bar.
The second element of self-defense requires that the means employed by the person
defending himself must be reasonably necessary to prevent or repel the unlawful
aggression of the victim. The reasonableness of the means employed may take into
account the weapons, the physical condition of the parties and other circumstances
showing that there is a rational equivalence between the means of attack and the
defense.45
The act of appellant in repeatedly hacking Norman on his head and neck was not a
reasonable and necessary means of repelling the aggression allegedly initiated by the
latter. As stated earlier, no convincing evidence was presented to show that Norman

was armed with an ice-pick at the time of the incident. In fact, no ice-pick was found in
the crime scene or in the body of the victim. There was also no proof showing that
Norman attempted to stab appellant or tried to barge into the latter's house.
Granting arguendo that Norman was armed with an ice-pick, the repeated hackings
were not necessary since he can overpower or disable Norman by a single blow on
non-vital portion/s of his body.
Again, as correctly observed by the OSG, had the appellant merely wanted to protect
himself from what he perceived as an unlawful aggression of Norman, he could have
just disabled Norman.46 When Norman fell on the ground, appellant should have
ceased hacking the former since the alleged aggression or danger no longer exists.
By appellant's own testimony, however, he hacked Norman with his bolo even when
the latter was already lying on the ground. It appears, therefore, that the means used
by appellant, which were simultaneous and repeated hackings, were adopted by him
not only to repel the aggression of Norman but to ensure the latter's death. In sum,
such act failed to pass the test of reasonableness of the means employed in
preventing or repelling an unlawful aggression.
Like an alibi, self-defense is inherently weak for it is easy to fabricate.47 Thus, this
Court had consistently ruled that where an accused admits killing the victim but
invokes self-defense, it is incumbent upon the accused to prove by clear and
convincing evidence that he acted in self-defense.48 As the burden of evidence is
shifted on the accused to prove all the elements of self-defense, he must rely on the
strength of his own evidence and not on the weakness of the prosecution.49 In the
instant case, appellant failed to discharge such burden with clear and convincing
evidence. Therefore, his plea of lawful self-defense must fall.
With regard to the second issue, appellant contended that there was no treachery that
qualified his act to murder in the absence of direct evidence showing that his attack
on Norman was sudden; that Norman was not deprived of an opportunity to defend
himself; and that appellant did not employ treachery to insure the execution of the
crime.
Appellant's contention is bereft of merit.
Treachery is a sudden and unexpected attack under circumstances that render the
victim unable and unprepared to defend himself by reason of the suddenness and
severity of the attack.50 It is as an aggravating circumstance that qualifies the killing of
a person to murder. Article 14, paragraph (16) of the Revised Penal Code states the
concept and essential elements of treachery as an aggravating circumstance, thus:
ART. 14. Aggravating circumstances. - The following are aggravating
circumstances:

xxxx
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against the
person employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.
As can be gleaned from the foregoing, two essential elements/conditions are required
in order that treachery may be appreciated: (1) The employment of means, methods
or manner of execution that would insure the offender's safety from any retaliatory act
on the part of the offended party, who has, thus no opportunity for self-defense or
retaliation; and (2) deliberate or conscious choice of such means, methods or manner
of execution. Further, it must always be alleged in the information and proved in trial
in order that it may be validly considered.51
In the case at bar, treachery was alleged in the Information against appellant.
Moreover, all the essential elements/conditions of treachery were established and
proven during the trial.
Appellant, while holding a bolo, had waited for the dark to set in before making his
move so that nobody, especially Norman, would notice his impending attack. When
he saw Norman, alone and unarmed, casually walking near an auto repair shop, he
followed him surreptitiously. Later, appellant came out and approached the
unsuspecting Norman, who, in turn, faced the former. Appellant took advantage of the
stunned and hapless Norman by swiftly hacking him with a bolo. As the assault was
sudden and unexpected, Norman was forced to move backwards and raise his left
arm to shield his face but it was too late. Norman's left arm was immediately hit by the
bolo. When Norman turned his back on appellant and tried desperately to run,
appellant hacked him again at the back causing him to fall on the ground. As the
bloodied and moaning Norman was lying on the ground, appellant unleashed his full
wrath by repeatedly hacking him on the neck and head. Upon noticing that Norman
was no longer moving and was, in fact, almost decapitated, he stopped the hacking
and fled the scene.
As viewed from the foregoing, the suddenness and unexpectedness of the appellant's
attack rendered Norman defenseless, vulnerable and without means of escape.
Appellant's use of nighttime and a deadly bolo, as well as the sudden attack and
repeated hackings on the vital portions of Norman's body, were especially adopted by
him to immediately cripple Norman and prevent him from retaliating or escaping.
Appellant deliberately adopted them in order to overpower the much younger, taller,
and larger Norman. Considering that Norman was alone and unarmed, there was
absolutely no way for him to defend himself or escape. Further, the fact that Norman

sustained several fatal wounds while appellant allegedly sustained a single superficial
wound on his forehead shows that Norman was not able to retaliate or defend
himself. Given the foregoing, there is no doubt in our minds that appellant intended
and was determined to kill Norman.
Appellant, however, asseverated that there was no treachery since the attack was
frontal or face to face, such that Norman had been forewarned of the attack and, thus,
placed him in a position where he can defend himself. Appellant also claimed that
there was a quarrel between him and Norman prior to the hacking incident which, in
effect, negate treachery since it disproved the fact that the attack was sudden and
unexpected. We are not persuaded.
There is no dispute that Norman was facing appellant at the time of the first blow.
Subsequently, however, Norman turned his back and tried to run but he was hacked
at the back, and when he fell on the ground, he was hacked again repeatedly. It is
settled that treachery is to be appreciated when the victim was initially attacked
frontally, but was attacked again after being rendered helpless and had no means to
defend himself or to retaliate.52 As long as the attack was sudden and unexpected,
and the unarmed victim was not in a position to repel the attack, there is treachery.53
The quarrel between Norman and appellant prior to the hacking incident does not
negate treachery. It is true that there is no treachery if the killing was preceded by an
altercation or dispute. The same, however, does not apply in the instant case. The
misunderstanding between the two occurred on 22 October 1999. This was settled
before their barangay officials on the morning of 25 October 1999. Cooler heads then
had already set in. In fact, the two shook hands before the same barangay officials.
Thus, there was no reason for Norman to suspect that appellant still held a grudge
against him and to prepare or anticipate appellant's retaliation. It must also be noted
that no conversation or struggle occurred between them shortly before the hacking
incident.
Appellant argued that if his plea of self-defense cannot be considered, he is still
entitled to the mitigating circumstances of sufficient provocation on the part of the
offended party and voluntary surrender under Article 13 paragraphs (4) and (7) of the
Revised Penal Code, respectively.

offended party; and (3) That the provocation must be immediate to the commission of
the crime by the person provoked.
Norman did not in any way provoke appellant into a fight on that fateful night. There
was no argument or physical struggle that ensued between them shortly before
appellant hacked Norman with a bolo. Norman was innocently walking along the road
when, all of a sudden, appellant surfaced and hacked him in rapid succession. The
alleged altercation between the two occurred much earlier (22 October 1999) as to
reasonably and sufficiently incite the appellant to act the way he did. In the absence
of sufficient provocation on the part of the offended party, appellant's assertion of
mitigating circumstance cannot be sustained. Moreover, and more importantly, this
ordinary mitigating circumstance cannot offset the qualifying aggravating
circumstance of treachery which is present in the instant case.
Likewise, appellant is not entitled to the mitigating circumstance of voluntary
surrender. Article 13, paragraph (7) of the Revised Penal Code states that the
offender's criminal liability may be mitigated if he voluntarily surrendered to a person
in authority or his agents. Accordingly, the essential elements of voluntary surrender
are: (1) that the offender had not been actually arrested or apprehended; (2) that the
surrender was voluntary and spontaneous; and (3) that the offender surrendered
himself to a person in authority or his agent.
Appellant was already apprehended for the hacking incident by the barangay officials
of Lipa City just before he was turned over to the police by a certain Tomas
Dimacuha.54 Assuming that appellant had indeed surrendered to the authorities, the
same was not made spontaneously.55 Immediately after the hacking incident,
appellant, instead of proceeding to the barangay or police, went to his brother,
Sherman Beltran, in Bauan, Batangas, and the next day, to his sister in Lipa City. It
took him three long days to surrender to the police authorities.56Moreover, the flight of
appellant and his act of hiding until he was apprehended by the barangay officials are
circumstances highly inconsistent with the spontaneity that characterizes the
mitigating circumstance of voluntary surrender.57
As to the last issue, appellant insisted that the trial court has awarded excessive
damages in favor of Norman's heirs. He argued that there was no proof or justification
for the same.

We reject these contentions.

Article 13 paragraph (4) of the Revised Penal Code provides that a person's criminal
liability may be mitigated if there was a sufficient provocation or threat on the part of
the offended party which immediately preceded the crime. Before the same can be
appreciated, the following elements must concur: (1) That the provocation or threat
must be sufficient or proportionate to the crime committed and adequate to arouse
one to its commission; (2) That the provocation or threat must originate from the

When death occurs due to a crime, the following damages may be awarded: (1) a civil
indemnity ex delicto for the death of the victim; (2) actual or compensatory damages;
(3) moral damages; (4) exemplary damages; and (5) temperate damages.58 Thus, we
agree with the Court of Appeals that the award of P50,000.00 for civil indemnityex
delicto to Norman's heirs is proper without need of proof other than appellant's
commission of murder that resulted in Norman's death.59 Likewise, we agree with the
Court of Appeals that moral damages should be awarded since Normita testified

during the trial that she suffered moral shock and wounded feelings because of the
brutal and sudden death of Norman. However, we deem it necessary to reduce the
amount of the same fromP75,0000.00 to P50,000.00.
Normita claimed that she spent a total amount of P61,080 for the burial and funeral
expenses of Norman. However, the receipts on record shows that only an amount
of P18,420.82 was spent therein.60 Normita's claim of expenses for the food, drinks,
flowers, chairs and tables during the funeral and burial of Norman, as well as the
traditional 40 days prayer thereafter, were not supported by any receipts. These
expenses are merely written, listed, and signed by Normita in one sheet of yellow
paper, and submitted as evidence in the trial court. Thus, as general rule, Normita is
entitled only to an amount of P18,420.82 since actual damages may be awarded only
if there are receipts to support the same. However, in the case of People v. Dela
Cruz,61 this Court declared that when actual damages proven by receipts during the
trial amount to less than P25,000.00, such as in the present case, the award of
temperate damages for P25,000.00, is justified in lieu of actual damages for a lesser
amount. This Court ratiocinated therein that it was anomalous and unfair that the
heirs of the victim who tried but succeeded in proving actual damages to
less P25,000.00 only would be in a worse situation than those who might have
presented no receipts at all but would be entitled to P25,000.00 temperate damages.
Thus, instead ofP18,420.82, an amount of P25,000.00 as temperate damages should
be awarded to the heirs of Norman. Actual damages for loss of earning capacity
cannot be awarded in this case since there was no documentary evidence to
substantiate the same.62 Although there are exceptions to this rule, none is availing in
the present case.63
Moreover, exemplary damages in the amount of P25,000.00 should be awarded in
this case since the qualifying circumstance of treachery was firmly established.64
WHEREFORE, the Decision of the Court of Appeals dated 31 March 2005 is
hereby AFFIRMED withMODIFICATIONS: We award Norman's heirs civil indemnity
of P50,000.00 for Norman's death; moral damages, in the amount of P50,000.00;
temperate damages, in lieu of actual damages, in the amount of P25,000.00; and
lastly, exemplary damages in the amount of P25,000.00.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 161007

December 6, 2006

CELERINO SANCHEZ, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
TINGA, J.:
Celerino Sanchez (Sanchez) assails the Decision1 of the Court of Appeals dated May
7, 2003 which affirmed his conviction of the crime of Homicide but modified the
penalty imposed by the trial court, and its Resolution2 dated October 21, 2003 which
denied reconsideration for lack of merit.
The case stems from an Information3 dated March 24, 1994, docketed as Criminal
Case No. 94-10-430, indicting Sanchez for the death of Felix Jamero (Jamero). The
Information reads:
That on September 4, 1993, at 7:00 o'clock in the morning, more or less, in
Barangay San Jose, Municipality of Mahayag, Province of Zamboanga del
Sur, Republic of the Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill and armed with a long
sharp bolo, did then and there willfully, unlawfully and feloniously, assault[,]
attack, hack and stab one FELIX JAMERO, inflicting upon the victim multiple
stab wounds in the different parts of his body which cause his instant death.
CONTRARY TO LAW.4
Sanchez pleaded not guilty upon arraignment. Trial proceeded after which the
Regional Trial Court, Branch 23, Molave, Zamboanga del Sur rendered a
Decision,5 the dispositive portion of which states:
WHEREFORE, on the basis of the evidences admitted at the trial, this Court
finds the accused guilty beyond reasonable doubt of the crime of homicide,
and hereby imposes the indeterminate penalty of eight years and one day of
prision mayor as minimum, to fifteen years, of reclusion temporal as
maximum, of imprisonment, and to pay the heirs of the deceased victim the
sum of P165,000.00, itemized as follows:

Moral damages ------------------

P 50,000.00

Exemplary damages ------------

50,000.00

Funeral Expenses ---------------

65,000.00

Total ------------------------------

P165,000.00

SO ORDERED.6
On appeal, Sanchez averred that the trial court erred in not ruling that he acted in
self-defense and in failing to appreciate the mitigating circumstances of voluntary
surrender and passion and obfuscation. Finding that unlawful aggression as an
element of self-defense was not present, the Court of Appeals affirmed Sanchez's
conviction. However, it decreased the penalty imposed in view of the mitigating
circumstance of voluntary surrender. The dispositive portion of the Decision of the
Court of Appeals provides:
WHEREFORE, in view of the foregoing, judgment is hereby rendered partly
granting the instant appeal. The decision of the trial court is MODIFIED in so
far as the penalty is concerned which should be SIX (6) YEARS and ONE
(1) day of Prision Mayor as Minimum to TWELVE (12) YEARS and ONE (1)
day of Reclusion Temporal as maximum. All other aspects of the decision
are AFFIRMED. No costs. SO ORDERED.7
Sanchez's account of the facts shows that he and Jamero were tenants of adjacent
lots located in San Jose, Mahayag, Zamboanga del Sur.8 At about 7:00 o'clock in the
morning of September 4, 1993, Sanchez saw Jamero destroying the dike which
served as the boundary between the two lots. Sanchez confronted Jamero and told
the latter that he was encroaching on his land. Jamero struck him with a shovel. The
shovel got stuck in the mud so Jamero resorted to throwing mud at Sanchez. Fighting
back, Sanchez hacked Jamero with a bolo, resulting in the latter's death.9 Sanchez
then proceeded to the municipal building to surrender upon the advice of his son-inlaw.10
Based on these facts, Sanchez insists in his Petition11 dated November 17, 2003, that
he acted in self-defense. According to him, Jamero was the unlawful aggressor
having struck him with a shovel. Had he not fought back by hacking Jamero with a
bolo, he would have been the one killed.
In its Comment12 dated September 16, 2004, the Office of the Solicitor General (OSG)
maintains that the plea of self-defense, whether complete or incomplete, should fail
because there was no longer any unlawful aggression on the part of Jamero when
Sanchez hacked him.

According to the OSG, Jamero's attack on Sanchez was unsuccessful because the
latter was able to evade it and Jamero's shovel got stuck in the mud. Jamero fled
toward the rice field when Sanchez unsheathed his bolo. Sanchez pursued him and
struck his head with a bolo. Jamero fell down but was able to stand up again. He ran
away but after a short distance, fell down again. Sanchez approached him and
stabbed him several times. Not satisfied, Sanchez pushed Jamero's face down into
the knee-deep mud. After Jamero's aggression ceased when he fled and left his
shovel stuck in the mud, there was no longer any justification for Sanchez to go after
him and hack him to death.
Sanchez filed a Reply to Respondent's People of the Philippines Comment13 dated
November 11, 2004, reiterating that he acted in self-defense. We sustain the Decision
of the Court of Appeals.
Self-defense is an affirmative allegation and offers exculpation from liability for crimes
only if satisfactorily shown. Self-defense requires: (a) unlawful aggression on the part
of the victim; (b) reasonable necessity of the means employed by the accused to
repel it; and (c) lack of sufficient provocation on his part.14

A: Only one (1).

Q: Do you know the name of the person who arrived?
A: Yes[,] Sir.
Atty. Pedro S. Jamero
Q: Who [sic] is the name of that person?
A: Celerino Sanche[z].
Court
Q: Was he bringing anything at that time?
A: Yes[,] Sir, a bolo was tucked at his waist.

Having admitted that he killed Jamero, the burden of evidence that one acted in selfdefense shifted to Sanchez. It is textbook doctrine that when self-defense is invoked,
the burden of evidence shifts to the appellant to show that the killing was justified and
that he incurred no criminal liability therefor. He must rely on the strength of his own
evidence and not on the weakness of the prosecution's evidence, for, even if the latter
were weak, it could not be disbelieved after his open admission of responsibility for
the killing. Hence, he must prove the essential requisites of self-defense
aforementioned.15
In this case, Sanchez failed to prove the element of unlawful aggression. The positive
and categorical eye-witness account of Saturnino Umambac (Umambac) that Jamero
ran away from Sanchez but that the latter pursued Jamero, caught up with him and
hacked him to death negates Sanchez's plea of self-defense. Umambac testified:

Atty. Pedro S. Jamero

Q: What happened when Celerino Sanche[z] arrived at the place where the
three (3) of you were working?
A: Celerino Sanches said: "Lex, do not cut grasses on my land, look at our
boundary."
Q: And then?
A: Felix Jamero continued shovelling dirt and grumbling at the same time as
if angry.

Atty. Pedro S. Jamero

Q: And what transpired next?
Q: While the three (3) of you were working at that time on that date and time,
could you recall if there was an unusual incident that happened?
A: There was.

A: He then acted as if to strike. ([W]itness demonstrated raising his hand

holding a shovel.) [A]t the same time Celerino S. Sanche[z] pulled out his
bolo.

Q: Please tell the Court.

Court

A: There was a person who arrived.

Q: Who raised up the shovel?

Court

A: It was Felix Jamero.

Q: How many person who [sic] arrived?

Q: And how far was the accused to Felix Jamero at that time?

A: Two (2) to three (3) meters.

A: With water, Sir.

Q: Felix Jamero was on the act of striking the accused with the shovel?

Court:

A: Yes[,] Sir.
Court:

Proceed
Atty. Pedro S. Jamero

Proceed

Q: Now, while Felix Jamero was running on the rice field, what did
Celerino Sanche[z] do if anything?

Q: Now, you said that at that instance Celerino Sanche[z] pulled his
bolo, what did he do after he pulled it?

A: He chased him, Sir.

A: He hacked Felix Jamero.

Q: What happened when Celerino Sanche[z] chased Felix Jamero?

Q: Was Felix Jamero hit?

A: He was able to catch up with Felix Jamero.

A: No[,] Sir.

Q: And what happened when Celerino Sanche[z] was able to catch up

with Felix Jamero?

Q: Now, since Felix Jamero was not hit, what happened next?
A: He hacked him.
A: He ran away.
Q: Who hacked who?
Q: Who ran away?
A: It was Celerino Sanche[z] who hacked Felix Jamero.
A: Felix Jamero.
Court:
Q: To what direction did Felix Jamero run away?
A: In [sic] his rice land.

Q: Was Felix Jamero facing Celerino Sanche[z] at the time he was hacked
by Celerino Sanche[z]?

Court

A: Yes, Sir, they were facing each other. ([W]itness demonstrated)

Q: Towards the direction of Celerino Sanche[z]?

Q: And Felix Jamero was still bringing the shovel [when] he was about to
strike Celerino Sanche[z]?

A: No[,] Sir, going away.

A: Not any more, Sir.

Q: Was he following the cement of the rice field or did he run across
the rice field?

Q: What was then being brought by Felix Jamero?

A: He was running right inside the rice field.

A: Mud.

Q: And the rice field then at that time[,] was [it] full of water or was it
dry?

Court:
Proceed.

Atty. Pedro S. Jamero

A: Yes[,] Sir.

Q: Now, you said, at the time Celerino Sanche[z] hacked Felix Jamero, was
Felix Jamero hit?

Q: What did you do then at that time?

A: Yes[,] Sir.

A: We were afraid to go near. So, we only watched them. We were only hired
help, Sir.

Court

Court:

Q: What part of the body was he hit?

Proceed

A: At the head. ([W]itness pointing at the head.)

Atty. Pedro S. Jamero

Q: And what happened to Felix Jamero?

Q: What transpired after that?

A: He was able to stand up and ran away but a distance away he fell
down.

A: He then rode on top of Felix Jamero and pushed him to the mud, Sir.
Court

Q: And what did Celerino Sanche[z] do?

Q: And then after that?
A: He approached him and hacked him and stabbed him.
A: Greg, the son-in-law of Celerino Sanche[z] arrived.
Q: How many times did he hack Felix Jamero?
Q: And then?
A: I was not able to count, Sir, but many times.
A: His bolo was taken away.
Q: How many times did Celerino Sanche[z] stab Felix Jamero?
Q: Who took the bolo of whom?
A: I was not able to count also, Sir.
A: Greg, [sic] took the bolo of Celerino Sanche[z].
Court:
Q: And what did he do with the bolo of Celerino Sanche[z]?
Proceed
Atty. Pedro S. Jamero
Q: On those occasions when you said Celerino Sanche[z] hacked and
stabbed Felix Jamero, the number of which you could no longer count, what
was the exact position of Felix Jamero relative to Celerino Sanche[z]?

A: I did not notice what he did with the bolo, only that it was he who get the
bolo.
Atty. Pedro S. Jamero
Q: After Greg took the bolo of Celerino Sanche[z], do you know where did
Celerino Sanche[z] go?

A: He fell down on the mud.

A: He ran away but I do not know where he ran away.
Court
Court
Q: The rice field was then very muddy at that time?

Q: Who ran away?

A: The shovel got stuck at the mud. (Witness demonstrating that the face of
the shovel was the one that got stuck in the mud, sideways).

A: It was Celerino Sanche[z].

Atty. Pedro S. Jamero

Q: That point of the shovel was directed at you but you were able to evade
[it]?

Q: What about Felix Jamero, what happened to him?

A: Yes[,] Sir.

A: He was left on the mud where he was hacked and we and his wife carried
him.16 [Emphasis supplied]

Q: And because of the force, the spade got buried at [sic] the mud?

While Jamero was inceptually the unlawful aggressor by his act of raising his shovel
to strike Sanchez, the unlawful aggression ceased to exist when Jamero turned and
ran towards the rice field. Sanchez himself admits that he was not hit by Jamero's
shovel because he was able to step back and the shovel got stuck in the mud. He
testified:

A: Yes[,] Sir, because of the force the shovel got stuck to [sic] the mud and
he was not able to pull it anymore, so he threw mud at me.
Court:
Proceed.

Atty. Pedro Jamero

Atty. Pedro Jamero

Q: It is not a fact[,] Mr. Witness, that when you were first allegedly hit by
Felix Jamero with his shovel you were not hit, is that correct?

Q: When the shovel of Felix Jamero got stuck to [sic] the mud and he was
not able to pull it, that moment did it not occur to your mind to go away from
him to avoid further trouble?

A: Yes[,] Sir, because I was able to step back.

Q: And the shovel that was used by Felix Jamero in hacking you stuck to
[sic] the mud and he was not able to recover it, is that correct?
A: No[,] Sir, he was not able to pull the shovel back because it was stuck
hard in the mud.
Q: And that was the time that Felix Jamero threw mud on your face, is that
correct?
A: Yes[,] Sir.
Q: And after Felix Jamero threw mud at your face that was the time that you
hacked him several times which you said you could not remember anymore
because you lost consciousness or you went black out?

A: After he threw the mud at me[,] Sir, he pulled the shovel but the shovel
was buried at the mud [and] he was not able to entirely pull it, so I hacked
him.17
There can be no self-defense, complete or incomplete, unless the accused proves the
first essential requisiteunlawful aggression on the part of the victim. Unlawful
aggression presupposes an actual, sudden and unexpected or imminent danger on
the life and limb of a person a mere threatening or intimidating attitude is not
sufficient. There must be actual physical force or a threat to inflict physical injury. In
case of a threat, it must be offensive and positively strong so as to display a real, not
imagined, intent to cause injury. Aggression, if not continuous, does not constitute
aggression warranting self-defense.18
In this case, the twin circumstances of Jamero's shovel getting stuck in the mud and
his running away from Sanchez convincingly indicate that there was no longer any
danger to the latter's life and limb which could have justified his pursuit of Jamero and
subsequent hacking and killing of the latter.

A: Yes[,] Sir.
Court
Q: How did the spade get at [sic] the mud?

Sanchez's failure to prove unlawful aggression by Jamero and the prosecution's

evidence conclusively showing that it was Sanchez who was the unlawful aggressor
completely discounts Sanchez's claim of self-defense. Even incomplete self-defense
by its very nature and essence would always require the attendance of unlawful
aggression initiated by the victim which must clearly be shown.19

WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals
dated May 7, 2003 is hereby AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 129875 September 30, 2005
JOVITO CABUSLAY, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third
Division), Respondent.
DECISION
Tinga, J.:
Assailed in this petition for review1 under Rule 45 of the 1997 Rules of Civil Procedure
is the Decision2 dated 25 June 1997 of the Sandiganbayan in Criminal Case No.
19586 finding Jovito Cabuslay, petitioner herein, guilty beyond reasonable doubt of
the crime of homicide and sentencing him as follows:
WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon and
Gerry Cane are ACQUITTED on reasonable doubt. Accused Jovito Cabuslay is found
GUILTY beyond reasonable doubt of the crime of homicide and is sentenced to an
indeterminate penalty of imprisonment of Ten (10) years and One (1) Day of prision
mayoras minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of
Reclusion Temporal, as maximum, with all the accessory penalties provided for by
law, and to indemnify the heirs of Pacquito Umas-as in the amount of Fifty Thousand
Pesos (P50,000.00) for actual damages and Fifty Thousand Pesos (P50,000.00) for
moral damages, and to pay the costs.
SO ORDERED.3
In an Information4 dated 10 August 1993, petitioner SPO2 Jovito Luna Cabuslay,
Senior Inspector Celso Gomera Regencia, SPO4 Rosello Rodriguez Canoy, C2C Nilo
Rico Montebon and C2C Gerry Orillaneda Cane were charged with murder,
committed as follows:

That on or about August 5, 1992, in Kauswagan, Lanao del Norte, Philippines, within
the jurisdiction of this Honorable Court, the said accused, SENIOR INSPECTOR
CELSO G. REGENCIA, SPO4 ROSELLO CANOY, SPO2 JOVITO CABUSLAY, C2C
NILO MONTEBON AND C2C GERRY CANE, all public officers, being then members
of the Philippine National Police assigned at the PNP Provincial Headquarters of
Lanao del Norte, acting in the capacities aforesaid and conspiring, confederating and
helping one another, while manning a mobile checkpoint at Libertad, Kauswagan,
Lanao del Norte, thus committing the offense in relation to office, and with intent to
kill, did then and there wilfully, unlawfully, feloniously and treacherously shoot
PAQUITO UMAS-AS, with their firearms, thereby inflicting mortal wounds upon the
latter which caused his instantaneous death.5
On arraignment, petitioner and his co-accused all pleaded not guilty. Forthwith, trial
ensued with the prosecution presenting as witnesses Dr. Tammy Uy, Bernabe
Purificacion Arenga, Leoncio Tagapulot Zaragosa and Generoso Caayao Umas-as.
The prosecution presented evidence proving the following as facts:
Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of Bulua,
Cagayan de Oro City. Still single, Paquito earned a living as a collector of payments
for assorted articles such as jackets, mats, thermos and plates that he sold on credit.
Paquito collected as much as P70,000.00 for a period of four months and the net
profit of such collections was divided equally between him and his employer. 6
In collecting payments, Paquito used a motorcycle he bought on credit from his
employer.7 His collection brought him to such places as Manticao, Iligan and
Kolambogan.8 He rented a house in Iligan City but every fifteenth (15th) day of the
month, Paquito would go home to his family to give them a sack of rice.9
At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot Zaragosa, a
refrigeration technician helper and resident of Roosevelt Street, Iligan City, was
conversing with Felix Lauriana10 near the school building in Lapayan, Libertad,
Kauswagan, Lanao del Norte when a Hammer (Hummer) truck parked in front of
them.11 Four policemen alighted, followed by a driver. The police thereafter halted the
collector who was riding a motorcycle from Lapayan. The collector was wearing a
blue denim jacket with folded sleeves and blue denim pants.12
The police asked the collector to show his identification card (ID). The collector took
the ID out of his left pocket and when it reached the "front man," one of the
policemen, who Zaragosa later verified as the petitioner, opened fire at the collector
whose right hand was then raised. The four other policemen meanwhile had their
firearms pointed at the collector. 13

Petitioner, who was four meters away from the collector, consumed the entire
magazine of his M-16 armalite in firing at him. The collector fell to the ground and was
still moving when the police placed him on board a vehicle and brought him to
Kolambugan.14 One of the policemen rode on the collectors motorcycle and likewise
headed for Kolambugan.15
Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan de Oro
City,16 NBI forensic chemist Bernabe P. Arenga examined the victims body, later
identified as Paquito Umas-as, on 10 August 1992 to determine the presence of
gunpowder nitrates on his hands. Arengas report revealed that the victim was
negative for gunpowder nitrates.17 Arenga opined that on the average, nitrates would
be lost within a seventy-two (72)-hour period; that there had been instances when the
substance would remain on a living person up to nine days; that nitrates could not
penetrate rubber gloves; that no amount of washing can remove the nitrates; and that
even the application of formalin does not affect the presence of nitrates in the hands
of a person.18
On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in Cagayan de
Oro City, conducted a post-mortem examination on the body of Paquito Umas-as. At
the time of examination, the victims body had already been cleaned and embalmed.
Dr. Uys examination disclosed that the cause of death was severe hemorrhage
secondary to multiple gunshot wounds. There were eight (8) gunshot wounds and
each wound was considered fatal.19
To prove damages, Generoso Umas-as testified that he lost consciousness upon
learning of the death of his son Paquito. Paquitos family spent P8,000.00 for the
wake and P10,000.00 for his burial. Paquito had left his fatherP12,000.00 to pay for
some appliances the former had bought; but the latter, to underwrite funeral
expenses, still had to sell his land for P100,000.00 only P25,000.00 of which had
been paid in advance by the buyer. However, Generoso could not remember where
he placed the receipts for the wake and burial expenses.20
The defense presented a different version of the commission of the crime. Petitioner
presented as witnesses Julmunier Akbar Jubail, Celso Gomera Regencia and Jovito
Luna Cabuslay.
Police Superintendent Julmunier A. Jubail, Provincial Director of the Philippine
National Police (PNP), Lanao del Norte Command stated that he had received a
reliable intelligence report of a plot to assassinate the Mayor and Vice-Mayor of
Kauswagan, Lanao del Norte and Governor Abalos and his family. In response to the
intelligence report, he dispatched a team of PNP personnel to conduct mobile
checkpoints along the national highways in several municipalities and to check on
people who would possibly carry out the plot. Jubail claims that the intelligence report
was proven accurate after a few months because the Vice-Mayor of Kauswagan was

killed in Samborong, Linamon and in December of the same year, Governor Abalos
was assassinated in Iligan City.21
The team headed by Senior Inspector Celso G. Regencia included SPO4 Rosello
Canoy, SPO2 Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry Cane. Their area
of responsibility consisted of the twenty-two (22) municipalities of Lanao del Norte. In
full military outfit, save for Canoy as he was assigned to the Intelligence Operatives
Command, the men established a mobile checkpoint on 5 August 1992 at the national
highway, Barangay Libertad, Kauswagan, Lanao del Norte for the purpose of
intercepting armed men who intend to carry out the assassination plot.22
At about 8:30 in the morning, a man riding on a red Honda motorcycle23 going to the
direction of Pagadian City approached the mobile checkpoint. The motorcycle rider
was allegedly wearing a black bonnet, sunglasses, sweatshirt and gloves that
covered the half portion of his fingers.24
Regencia testified that he signaled the motorcycle rider to stop at the right side of the
road. He asked for the identification card of the motorcycle rider who pretended to
reach for his wallet, but instead pulled out a gun. He heard a shot and his thigh went
numb. As he rolled to the ground, he heard a volley of gunshots after which petitioner
approached him. Regencia then approached the motorcyclist and removed his bonnet
to be able to identify him. Regencia later found out that the motorcyle rider was shot
by petitioner. 25
Regencia ordered his men to load the motorcycle rider to the truck. The victim later
identified as Paquito Umas-as was still alive when he was loaded on the hummer
vehicle to be brought to a hospital, but was pronounced dead on arrival by Dr. Caga,
the attending physician. Regencia then asked that he be given first-aid treatment for
the wounds he sustained. He thereafter turned over the riders motorcycle,
sunglasses and revolver to the police station at Kauswagan. And after bringing the
victims body to a funeral home in Kolambugan, he proceeded to Baroy General
Hospital where his wounds were treated by a certain Dr. Fabin.26
To prove that he was wounded during the incident, Regencia showed to the court a
quo the scars caused by the gunshot wounds. There were three scars, one of which
was the entry of the bullet and the other two were splinter wounds. He said that the
bullet used was the kind that splinters upon hitting an object. He presented a medical
certificate under the signature of Dr. Demterio U. Opamen, Jr.27
For his defense, petitioner confirmed Regencias testimony that the latter had directed
an approaching motorcyclist to stop at the right side of the highway. He heard
Regencia ask the motorcycle rider in Visayan dialect to show his identification card.
Cabuslay then saw Paquito Umas-as shoot Celso Regencia. This and his belief that
he was the next target prompted him to shoot the motorcycle rider with his M-16.28

Police Superintendent Jubail was immediately informed of the incident and on the
basis of Regencias account, he sent out a "Spot Report"29 to inform Recon 9 and 13.
The report is couched as follows:

021130H Oct 1992 COP Bartolini RD got the one deposited rev. cal. 38 SW
S#236701 w/ (4) four live ammo and one empty shell past 30th day of Sep 92 for NBI
examination at Cagayan de Oro City.

"SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIAS

BACK-UP OPEN FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID
UNIDENT(IFIED) PERSON WWITH (sic) MULTIPLE GUNSHOT WOUNDS IN HIS
BODY AND DIED ON THE SPOT PD RESPONDING PNP ELEMETS RECOVERED
FROM THE VICTIMS BODY ALFA CAL. 38 REVOLVER SMITH AND WESSON (HM)
SN 236701 WITH ONE (1) EMPTY SHELL AND 5 UNSPENT AMMO x x x "

Petitioner justified the shooting of Paquito Umas-as because he believed that he

would be the next person to be shot at by the victim; and having acted in defense of
his person and that of his superior officer, he asserted before the court a quo that he
has no criminal liability because of the attendance of the following circumstances: (a)
unlawful aggression on the part of the victim; (b) reasonable necessity of the means
employed to prevent or repel the unlawful aggression of the victim; (c) lack of
sufficient provocation on his part, and in the case of defense of his superior officer, he
was not induced by revenge, resentment, or other evil motives. All of these requisites
being present, petitioner claimed there was legal justification for shooting Paquito
Umas-as.32

The incident found its way to the police blotter of the police station of Kauswagan,
Lanao del Norte.30 It is embodied in a Certification31 signed by Inspector Fulgencio
dela Pena Raguine, Chief of Police, issued at the request of Atty. Arthur Abundiente
for trial purposes and formulated in this wise:
Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188=
050810H Aug 1992 SPO3 Nestor S Ortiz, Intel NOR this station, left stn with
elements from Lanao del Norte PNPC under INSPECTOR CELSO G REGENCIA
PNP and proceeded to Libertad, Kauswagan, LN to follow-up suspects allegedly hired
for killing Mpl Mayor Myron B. Rico of Kaus, LN.
050835H Aug 1992 SPO3 Nestor Ortiz PNP returned station informed that suspects
were intercepted at Libertad, Kaus, LN but when confronted by the PNP team, fired
and shot INSPECTOR CELSO G REGENCIA PNP using cal. 38 revolber (sic)
(Homemade) hitting on his right thigh prompting SPO3 Cabustay (sic), fired back to
the suspect hitting at the chest causing the instantaneous death of the suspect. One
cal. 38 revolber (sic) (Homemade) with 5 live ammos and one empty shell at the
chamber, one rayban (sunglass) and one motorcycle (Honda-Camel backtype) color
red with out plate Nr.
Police Blotter Page Nr. 497- Entry Nr.9191=
081240H Aug 1992 Romeo Umas-as, 42 years old x x x.
Police Blotter Page Nr. 501-Entry Nr.9228=
251315H Aug 1992 Impounded Honda Motorcycle x x x.
Police Blotter Page Nr. 508-Entry Nr. 9100=

The Sandiganbayan however grave credence to the version of the prosecution and
rejected the version of petitioner. So, it found him guilty beyond reasonable doubt of
the crime of homicide. It accorded full faith and credence to the testimony of
Zaragosa as it was "categorical, straightforward, spontaneous and consistent."
Moreover, it observed that no proof was adduced to show that Zaragosa was moved
by some evil motive to falsely testify against the accused Cabuslay.33
The Sandiganbayan likewise noted grave deficiencies in the evidence of the defense
as follows: (1) The physical existence of the handgun allegedly used by the victim
Paquito was not established as the same was not presented before the court during
the trial;34 (2) The affidavit executed by Gualberto Dayot Pasco-presented by the
defense to impeach the credibility of Zaragosa-was taken under intimidating and
dubious circumstances, which fact creates doubt as to the affidavits voluntariness
and credibility;35 (3) The medical certificate purportedly evidencing that Regencia had
been shot has no probative value as the doctor who executed the same did not testify
during trial. Notably, the medical certificate was executed by a doctor different from
the one who treated Regencias wound;36 (4) The number of gunshot wounds inflicted
upon the victim betrays petitioners claim of reasonable necessity of the means used
to repel the unlawful aggression allegedly displayed by the victim.37
Hence, petitioner filed the instant petition before the Court, insisting that the
Sandiganbayan erred in not crediting him the justifying circumstance of self-defense
or defense of a stranger or the lawful exercise of a right or office.38
Pursuant to the Courts Resolution39 dated 3 September 1997, the Office of the
Solicitor General (OSG) submitted before the Court a Manifestation and Motion In
Lieu Of Comment40 to aid the resolution of the instant petition. In said manifestation,
the OSG stated that it is the Office of the Ombudsman which should represent the
People in cases elevated to the Court from the Sandiganbayan except in cases filed

under Executive Orders Nos. 1, 2, 14, and 14-A issued in 1986. Nevertheless, it
opined that the conviction of petitioner should be reversed because the evidence of
the prosecution when pitted against that of the defense "may not stand close
scrutiny." It also asserted that the ponente of the appealed decision was not yet a
member of the Third Division when the witnesses testified and when the parties
presented their evidence; hence, the applicability of the
Courts ruling in People v. Gutual,41 that no respect can be accorded to the trial courts
findings of fact where the judge who penned the questioned decision heard only one
of the witnesses and only at the sur-rebuttal stage.42
In its Comment,43 the Office of the Ombudsman through the Office of the Special
Prosecutor seeks the denial of the instant petition on the ground that the defense
failed to impeach the credibility of Zaragosa. It agrees with respondent court that
petitioners story was contrary to human experience and hence, it correctly debunked
self-defense and defense of a stranger as grounds for petitioners acquittal.44
The petition is without merit.
While the rule that the factual findings of the court a quo are generally not disturbed
on appeal because the trial judge had the best opportunity to observe them and the
manner by which they testify is concededly not applicable to the instant case
considering that the ponente of the assailed Decision was not the one who heard all
the witnesses, nevertheless, after a careful review of the records of the case, the
Court finds no reason to disturb the conclusions reached by respondent court. As held
in Hugo v. Court of Appeals,45 "the efficacy of a decision is not necessarily impaired
by the fact that the ponente only took over from a colleague who had earlier presided
over the trial. For it does not follow that a judge who was not present during the trial
cannot render a valid and just decision."
Moreover, it should be stressed that the Sandiganbayan, which functions in divisions
of three Justices each, is a collegial body which arrives at its decisions only after
deliberation, the exchange of view and ideas, and the concurrence of the required
majority vote.46
Simply put, the ponente of the assailed Decision is not the Third Division of the
Sandiganbayan. He alone does not speak for and on behalf of his Division. Each
Division of the Sandiganbayan is a three-man body whose members each have one
vote to cast in every deliberation concerning a case or any incident therein that is
within its jurisdiction.
We have minutely scrutinized the assailed Decision and find it amply supported by
the evidence on record.
Petitioner claims that he acted in self-defense and in defense of Regencia.

One who invokes self-defense admits responsibility for the killing. Accordingly, the
burden of proof shifts to the accused who must then prove the justifying
circumstance. He must show by clear and convincing evidence that he indeed acted
in self-defense, or in defense of a relative or a stranger. With clear and convincing
evidence, all the following elements of self-defense must be established: (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
claiming self-defense.47
Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in
this jurisdiction that once an accused has admitted that he inflicted the fatal injuries
on the deceased, it is incumbent upon him in order to avoid criminal liability, to prove
the justifying circumstance claimed by him with clear, satisfactory and convincing
evidence. He cannot rely on the weakness of the prosecution but on the strength of
his own evidence, "for even if the evidence of the prosecution were weak it could not
be disbelieved after the accused himself had admitted the killing."48 Thus, petitioner
must establish with clear and convincing evidence that the killing was justified, and
that he incurred no criminal liability therefor.
In order that defense of a stranger may be appreciated, the following requisites must
concur: (1) unlawful aggression by the victim; (2) reasonable necessity of the means
to prevent or repel it; and (3) the person defending be not induced by revenge,
resentment or other evil motive.49
Unlawful aggression is the first and primordial element of self-defense. Of the three
requisites, it is the most important. Without it, the justifying circumstance cannot be
invoked. If there is no unlawful aggression, there is nothing to prevent or repel.50
Unlawful aggression refers to an attack or a threat to attack, positively showing the
intent of the aggressor to cause injury. It presupposes not merely a threatening or an
intimidating attitude, but an actual, sudden and unexpected attack or an imminent
danger thereof, which imperils ones life or limb. Thus, when there is no peril, there is
no unlawful aggression.51
It is crucial to ask whether the victim Paquito was an unlawful aggressor. We answer
this question in the negative. Aggression to be unlawful, must be actual and imminent,
such that there is a real threat of bodily harm to the person resorting to self-defense
or to others whom that person is seeking to defend.
Petitioner asserts that he was the victims next target, thus the need to shoot the
victim in self-defense. His claim should be disbelieved. As he himself had explicitly
testified before respondent court, the hummer jeep was behind him and was parked
about three to four meters from the national highway.52 He also stated that Paquito
could not have seen the hummer jeep because it was obscured by Muslim

houses.53 It only follows that if from Paquitos perspective, he cannot see the hummer
jeep which is a fairly large vehicle, then he could not have seen petitioner as well. If
Paquito cannot see petitioner from where he was positioned, then Paquito could not
have possibly aimed to shoot at petitioner. Petitioners contention therefore that there
was an imminent threat of bodily harm coming from Paquito upon his person is at
best illusory. There was no peril, ergo, there was no unlawful aggression.
It should also be recalled that at the time, Cane was on top of the hummer jeep
manning the machine gun.54 If Regencia had indeed been shot as the defense insists,
then Cane was better situated to defend Regencia. It is implausible how an officer like
him, in such a strategic position and trained in the operation of the said weapon could
have omitted firing a shot in Regencias defense. More to the point, it is beyond
credulity that the outbursts of gunfire hardly elicited any reaction from the other police
officers who were only a few meters away from the crime scene and who continued
conducting their search on the bus which was then about to pass the checkpoint.55
Likewise noteworthy is the fact that after the second burst of fire on Paquito, knowing
that Paquito was still alive56and in all probability was still holding a
handgun,57 petitioner chose to assist Regencia instead of making sure that Paquito
had been immobilized and disarmed, basic to a policemans training.

Petitioner, however, insists that he would have presented the gun had not respondent
court pressured him to rest his case and submit it for decision. Such contention hardly
inspires belief. Records reveal that petitioner never made it known to respondent
court that the defense would be presenting the gun allegedly used by Paquito. What
the defense did manifest was their intention to present one Major Bartolino to testify
that he had received the gun allegedly used by Paquito and that he had brought it to
the NBI on 30 September 1992 for examination. It should be underscored that the
defense was not even sure that there was an NBI report on said examination. The
counsel for the defense manifested before respondent court, as follows:
ATTY. ABUNDIENTE:
xxx
I intended, Your Honor, Please, to present two more witnesses, Major Bartolini who
received the gun and he will testify on this particular testimony that he was the Station
Commander of the municipality of Kauswagan, Lanao del Norte at the time of the
incident and then he received this gun from the team of Capt. Regencia on August 5,
19 (sic) and that he took the gun for NBI Examination sometime in the month of
October, 1992, no, on the 30th day of September, 1992.

In addition, the claim of the defense that Paquito shot Regencia on his right thigh is
untenable. Petitioner would have the Court believe that Paquito dared challenge five
policemen, four of them in full battlegear, at a checkpoint and armed with only a
handgun. This is contrary to ordinary human experience, as well as the human
instinct which is to flee for dear life and seek safety. If indeed Paquito was armed and
had criminal designs in his mind, the natural tendency upon seeing a checkpoint
ahead would be to abort ones plans and leave the premises immediately. Petitioners
story not only was contrary to the ordinary course of nature and the ordinary habits of
life, in all appearances it was also contrived.58 Respondent court was correct in
rejecting it.

CHAIRMAN:

We also confirm that the medical certificate presented by Regencia to prove that he
had been shot by the victim has no probative value. The physician who signed the
same was never presented as witness for the defense. We also note that the
physician who signed said medical certificate, a certain Dr. Demterio U. Opamen, Jr.,
is different from the doctor who according to Regencia had treated his wounds.59

You dont need the testimony of Bartolini, but do you have the report of the NBI?

It is also worthy of note that the defense never presented in evidence the gun Paquito
allegedly use to shoot Regencia. The gun was also not clearly identified. Unlawful
aggression on the part of the victim must be positively proved and said gun would
have been a vital evidence to establish this requisite.

This was covered by police blotter?

ATTY. ABUNDIENTE:
Yes, Your Honor.
CHAIRMAN:

ATTY. ABUNDIENTE:
That is why, Your Honor, because we have not received any communication from
Bartolini . . .
CHAIRMAN:
How did you come to know that Bartolini sent this firearm to the NBI for
examination? . . .

ATTY. ABUNDIENTE:
Because it is stated in the blotter, Your Honor, . . . dated September 1992 for NBI
examination in Cagayan de Oro City, Entry No. 91000, page 108 . . .
CHAIRMAN:
Does it matter whether you can prove the examination report of the NBI or not?
ATTY. ABUNDIENTE:
I dont know if there was a report of the NBI examination . . .
CHAIRMAN:
Precisely . . ."60
The defense was well aware of the relevance of the NBI report to prove their
allegations that the victim was carrying a gun and used the same on Regencia,
especially since the victim was reported to be negative of nitrates on his hands. No
cogent reason could be thought of for the failure to secure a copy of the report or
even know of its existence. It should be noted that the examination was made as
early as September 1992. A partys failure to produce evidence, which if favorable
would naturally have been produced, is open to the inference that the facts were
unfavorable to his case.61 This Court can only conclude that said gun never existed,
and this explains the failure of the defense to present it before respondent court.
Thus, it is immaterial to delve on the issue raised by the petitioner on the discrepancy
of the make of the gun as noted by respondent court in its Decision.
Parenthetically, petitioner stresses that the victim had tested negative for gunpowder
nitrates as the latter had been wearing gloves at the time of the incident. This claim
runs counter to his62 and Regencias63 testimony that the only things recovered from
Paquito and which were turned over to the Provincial Police Command were the
victims motorcycle, sunglasses and the alleged gun. The police blotter reporting the
incident confirms their testimonies. Interestingly, said police blotter also makes no
mention that gloves were recovered from the victim.64
Anent the credibility of Zaragoza, the sole prosecution eyewitness on whose
testimony the version of the prosecution is anchored, we find that petitioner failed to
impeach his credibility. No evidence was shown that Zaragoza was actuated by an
improper motive. As such, there is no cogent reason why the Court should deny
Zaragozas testimony the full faith and credit it deserves.

On the alleged inconsistencies in Zaragozas testimony, it is relevant to state that a

witness is not expected to remember an occurrence with perfect recollection of the
minute details. Thus, even the most truthful of witnesses may err and often give
confusing statements. What is important is that Zaragosa unwaveringly, forthrightly
and unequivocally declared that petitioner shot at the victim. Neither did he falter in
identifying the gunman.65
All in all, petitioner has failed to prove unlawful aggression on the part of the victim.
Without this essential element, petitioner cannot successfully invoke self-defense.
Even assuming that he tried to defend a stranger, his defense would not prosper. In
defense of a stranger, unlawful aggression on the part of the victim is also
indispensable. In both self-defense and defense of a stranger, unlawful aggression is
a primordial element.
Granting arguendo that there was unlawful aggression, we find that petitioners
contention that he employed reasonable means to repel the aggression must fail. It is
settled that reasonable necessity of the means employed does not imply material
commensurability between the means of attack and defense. What the law requires is
rational equivalence.66
Also, the nature and number of wounds suffered by Paquito negate any claim of selfdefense or defense of a stranger. The Court notes that the victim sustained eight
gunshot wounds which were all fatal as they affected vital organs.67 Petitioner testified
that he pulled the trigger of his armalite twice.68 He aimed at "the front of his body, at
the chest, up to the stomach."69 Had petitioner merely defended himself from the
victims unlawful aggression, one shot to immobilize him would have been enough.
There was no reason for petitioner to shoot him seven more times, even aiming at his
vital organs. It bears repeating that the nature and number of wounds inflicted by the
accused are constantly and unremittingly considered as important indicia which
disprove a plea for self-defense or defense of stranger because they demonstrate a
determined effort to kill the victim and not just defend oneself.70 In the instant case,
Paquitos wounds serve to tell us that petitioner was induced by revenge, resentment
or other evil motive and that he was set on killing the victim.
Petitioners avowal that his first shot was single but went automatic on the second
shot is likewise unbelievable.71Petitioners armalite has a selector that switches it from
single shot to automatic. Since it was petitioner who was in possession of the firearm
and he admitted that he fired the shots, we reasonably conclude that it was he who
switched the firearm to automatic firing.
All told, petitioner failed to satisfy the requirements of self-defense and defense of a
stranger to justify the shooting of Paquito.

Next, petitioner contends that the killing of Paquito resulted from the lawful
performance of his duty as police officer. However, such justifying circumstance may
be invoked only after the defense successfully proves that the accused acted in the
performance of a duty, and the injury or offense committed is the necessary
consequence of the due performance or lawful exercise of such duty.72 These two
requisites are wanting in this case. The victim was not committing any offense at the
time. Petitioner has not sufficiently proven that the victim had indeed fired at
Regencia. Killing the victim under the circumstances of this case cannot in any wise
be considered a valid performance of a lawful duty by a man who had sworn to
maintain peace and order and to protect the lives of the people. As aptly held
in People v. de la Cruz,73 "Performance of duties does not include murder. Murder
is never justified, regardless of the victim."
A final word on the civil liability. An appeal in a criminal proceeding throws the whole
case open for review and it becomes the duty of the Court to correct any error in the
appealed judgment, whether it is made the subject of an assignment of error or not.
Therefore, we delete the award of P50,000.00 as actual damages. To seek recovery
of actual damages, it is necessary to prove the actual amount of loss with reasonable
degree of certainty premised upon competent proof and on the best evidence
obtainable. Since the prosecution did not present receipts to prove the actual losses
suffered, such actual damages cannot be awarded.74
On the other hand, consistent with prevailing jurisprudence, we award P50,000.00 by
way of indemnity ex delictoto the heirs of Paquito. When death occurs as a result of a
crime, the heirs of the deceased are entitled to such amount as indemnity for death
without need of any evidence or proof of damages.75
We also affirm the award of moral damages in view of the finding that Generoso
Umas-as lost consciousness and suffered anguish and sorrow because of the
incident.
WHEREFORE, the assailed Decision dated 25 June 1997 of the Sandiganbayan in
Criminal Case No. 19586 finding petitioner GUILTY of homicide is partially
AFFIRMED with the following MODIFICATIONS: (a) the award of Fifty Thousand
Pesos (P50,000.00) as actual damages is deleted; and (b) petitioner is ordered to pay
fifty thousand pesos (P50,000.00) as indemnity ex delicto. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 155258

October 7, 2003

CONRADO CANO y SAMPANG, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
The primordial issue to be resolved in this petition for certiorari is whether or not
petitioner killed his brother in self-defense.
Petitioner Conrado Cano y Sampang and his deceased brother Orlando Cano were
rivals in the Rush ID Photo business and had booths along the sidewalk of Rizal
Avenue, Sta. Cruz, Manila fronting the Philippine Trust Bank and Uniwide Sales
Department Store. The fateful altercation which culminated in the fatal stabbing of
Orlando Cano stemmed out of this rivalry, particularly the incident where Conrado
took the business permit from the booth of Orlando without his permission thus
incurring the latters ire.
The prosecutions version of what transpired as summarized in the Peoples
brief1 shows that in the morning of May 31, 1993, at about 7:00 oclock, the victim
Orlando Cano arrived at the Rush ID Booth of petitioner located below the LRT line in
Rizal Avenue, Sta. Cruz, Manila. The victim asked David Olivario, an employee of
petitioner, where the latter was. The victim angrily said that petitioner was
pakialamero. He also said, "Putang ina niya! Why did he Xerox our permit." Since
petitioner had not yet arrived, the victim returned to his own Rush ID booth located
several meters away.2
Later, at about 9:30 a.m., petitioner arrived at his Rush ID booth. After giving supplies
to Olivario, petitioner said he was going to the City Hall. He faced the mirror and
started to comb his hair. The victim suddenly arrived and held petitioner on the
shoulders and turned him around. The victim asked him, "Anong gusto mong
mangyari?" Accused did not answer.3

The victim tried to stab petitioner with a balisong but the latter was able to run and
lock himself inside the dark room inside his booth. The victim followed him and tried
to open the door of the dark room and shouted, "Lumabas ka diyan! Putang ina mo,
papatayin kita!" Petitioner did not come out. The victim tried to force the door open by
kicking it and stabbed the door with his balisong. The door of the dark room suddenly
opened and petitioner emerged carrying a pair of scissors. The victim and petitioner
struck at each other. During the scuffle, the scissors fell from petitioners hand. He
then grabbed the knife of the victim who, in turn, picked up the scissors. They again
attacked each other.4
The victim fell and his wife rushed to his side. Petitioner fled from the scene. The
victims wife asked for assistance from the people in the vicinity. The victim was then
loaded on a jeep and was rushed to a hospital, but he was dead on arrival.5
The autopsy report submitted by the medico-legal officer of the Western Police
District, Dr. Manuel Lagonera, shows that the victim sustained at least thirty (30) stab
wounds, six (6) of which were fatal.6 On the other hand, petitioner suffered only an
incised wound on the right hand measuring six (6) cm., which required less than nine
(9) days of treatment.
Petitioner had a different account of what transpired. He testified that on May 31,
1993 at around 9:30 a.m. he went to his Rush ID booth in front of the Philtrust Bank to
deliver supplies to his photographer, David Olivario.7After handing over said supplies
to Olivario, petitioner intended to go to the Manila City Hall to apply for a business
permit.8
Petitioners earlier application for a permit was denied.9 He sought a reconsideration
from the city officials and argued that his brother was issued a similar permit. In order
to prove his point, he borrowed the permit of his brother from his nephew, Wilson
Reyes, to have it machine copied.10 After doing so, petitioner returned it.11 The victim
apparently resented this because petitioner was informed by David Olivario that
Gloria Cano later went to petitioners stall angrily inquiring why they got the permit.12
As petitioner was combing his hair and preparing to leave for the Manila City Hall, the
victim, Orlando, suddenly appeared from behind, grabbed him by the left shoulder
and jerked him around so that they were face to face.13As they stood face to face,
Orlando menacingly said, "Anong gusto mong mangyari?"14 Petitioner noticed
Orlando holding a balisong, and he ran to the dark room of his stall.15
The victim pursued him and tried to force open the locked dark room door by kicking it
and stabbing it with the fan knife.16 He kept shouting, "Get out of there! Pakialamero
ka! Get out of there and I will kill you!"17 The door suddenly gave way and, as it
opened, the victim charged at petitioner, but he was able to evade the attack.
Snatching a pair of scissors nearby, petitioner retaliated but the scissors fell from his

grasp because it was parried by the victim.18 Petitioner then grabbed the hand of the
victim holding the balisong and they grappled to gain possession thereof. He
eventually wrested control of the knife and as he stood momentarily, the victim picked
up the scissors and again lunged at him.19
With nowhere to go, petitioner was forced to defend himself from the onslaught of the
victim who was armed with the nine-inch long pair of pointed scissors.20 No
bystanders tried to pacify them as they engaged in their deadly struggle for almost
two (2) minutes. Suddenly, the victim collapsed and fell bloodied to the floor.21
Petitioner stooped to lift his brother up, intending to bring him to the
hospital.1a\^/phi1.net However, he was hit by the victims wife with a chair. Then, she
started shouting, "Holdupper!"22 Petitioner was forced to flee from the scene for fear of
being lynched by the people who had gathered around armed with clubs. The people
pursued him but when he saw a policeman coming in his direction, he threw the
balisong away and raised his hands in surrender.23 He was then brought to the police
precinct and later to the hospital for treatment of his injuries.24
Petitioner was charged with Homicide in an Information25 which alleges
That on or about May 31, 1993, in the City of Manila, Philippines, the said accused,
with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault
and use personal violence upon one ORLANDO CANO y SAMPANG, by then and
there stabbing the latter on the different parts of his body, thereby inflicting upon the
said ORLANDO CANO Y SAMPANG mortal and fatal wounds which were the direct
and immediate cause of his death thereafter.

defense and that she was withdrawing the charge against him. This sworn statement
became the basis of an Urgent Motion for New Trial29 on the ground of newly
discovered evidence filed by counsel for petitioner.
This motion for new trial was, however, denied by the Court of Appeals in a
Resolution dated March 19, 1998.30
The appellate court subsequently rendered judgment affirming petitioners conviction
but modifying the penalty to an indeterminate sentence of imprisonment ranging from
nine (9) years and one (1) day of prision mayor, as minimum, to fourteen (14) years
and eight (8) months of reclusion temporal, as maximum. Petitioner was likewise
ordered to pay the heirs of the victim actual damages of P24,605.75; P50,000.00 as
moral damages and another P50,000.00 as civil indemnity ex delicto plus costs.31
Preliminarily, the Solicitor General argues that the petition raises merely factual
issues, such as whether or not petitioner is entitled to the justifying circumstance of
self-defense and the mitigating circumstance of provocation or threat and voluntary
surrender. These issues, says the Solicitor, are not proper for a petition for review
under Rule 45 of the Rules of Civil Procedure.
Concededly, those who seek to avail of the remedies provided by the rules must
adhere to the requirements thereof, failure of which the right to do so is lost. It is,
however, equally settled that rules of procedure are not to be applied in a very rigid,
technical sense and are used only to help secure substantial justice. If a technical and
rigid enforcement of the rules is made, their aim would be defeated.32 They should be
liberally construed so that litigants can have ample opportunity to prove their claims
and thus prevent a denial of justice due to technicalities.33

CONTRARY TO LAW.
The case was docketed as Criminal Case No. 93-121668 and filed with the Regional
Trial Court of Manila, Branch 31.
Upon arraignment, petitioner pleaded not guilty to the offense charged. The case
thereupon proceeded to trial. After trial, the court a quo rendered judgment26 finding
petitioner guilty beyond reasonable doubt of the crime and sentencing him to serve an
imprisonment of seventeen (17) years, four (4) months and one (1) day of reclusion
temporal and to indemnify the heirs of the deceased P50,000.00 plus costs.
Petitioner interposed an appeal to the Court of Appeals, where it was docketed as
CA-G.R. CR No. 19254.
During the pendency of the appeal,27 Gloria Cano, the widow of the victim, executed a
Sinumpaang Salaysay28stating, among others, that petitioner merely acted in self-

Therefore, we shall proceed to resolve the issue of whether or not petitioner is entitled
to invoke the justifying circumstance of self-defense, considering that what is at stake
is not merely his liberty, but also the distinct possibility that he will bear the stigma of a
convicted felon and be consigned to the fate of being a social pariah for the rest of his
life.
As can be seen from the foregoing, the prosecution and the defense have
diametrically opposed factual versions of what transpired immediately preceding the
killing. Our task is to determine which of them is the truth. In resolving such conflict,
dealing as it does with the credibility of witnesses, the usual rule is for us to respect
the findings of the trial court considering that it was in a better position to decide the
question, having heard the witnesses themselves and having observed their
deportment and manner of testifying during trial.34 Nonetheless, this rule is
circumscribed by well-established exceptions.35

In the case at bar, the record shows circumstances of weight and influence which
have been overlooked, or the significance of which has been misinterpreted, that if
considered would affect the result of the case.361a\^/phi1.net

A. He also ran after me and then when I was inside we were having a tug of
war of the doorknob which I tried to close and which he tried to open.
Q. What happened after that?

For self-defense to prosper, petitioner must prove by clear and convincing evidence
the following elements: (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 Although all the
three elements must concur, self-defense must rest firstly on proof of unlawful
aggression on the part of the victim. If no unlawful aggression has been proved, no
self-defense may be successfully pleaded, whether complete or incomplete.38 In other
words in self-defense, unlawful aggression is a primordial element. It presupposes an
actual, sudden and unexpected attack or imminent danger on the life and limb of a
person not a mere threatening or intimidating attitude but most importantly, at the
time the defensive action was taken against the aggressor.39
In the case at bar, there are several material circumstances which were ignored by
both the court a quo and the appellate tribunal.
First, contrary to the findings of both the appellate and trial courts, there are facts
extant on record which clearly shows that it was an armed victim who initially attacked
the petitioner with a balisong. Petitioner testified on the assault thus:
Atty. Ferrer:
What happened after that when Orlando Cano grabbed you and came face
to face with him?
A. I answered him none but he was in a menacing position with his hands
around something and I suddenly ran away.

A. But I was able to close the door but he kept on kicking the door that I
turned deaf.
Q. What else happened, if any?
A. While he was kicking, he was also stabbing the door with the "29"
(balisong) he was holding.
Q. And you said you heard the thudding of the door making noise, what
happened if any?
A. He kept on shouting, "Get out of there! Pakialamero ka!" "Get out of there
and I will kill you."
Q. What did you do did you go out?
A. While he was shouting I did not notice that the door was not completely
closed because the lock went on and the door suddenly opened.
Q. What happened after the door got open?
A. When the door opened he again rushed me, stabbed and I was able to
evade it.
Atty. Ferrer:

Q. What was that something in the hands of Orlando Cano that made you
run away?

What else happened?

A. Balisong "29," Sir.

Witness:

Atty. Ferrer:

A. I was able to grab a scissors and that was the time I retaliated.

And where did you run to?

Q. Who owned this scissors?

A. I went inside my booth because that is the only place I can run to.

A. That scissors was mine because it is used in cutting paper.

Q. And what happened inside your booth, if any?

Q. Now, you said you retaliated after grabbing a pair of scissors where did
you retaliate?
A. I was about to retaliate in the door of the room because the room was
very small.
Q. Where you able to retaliate?
A. No, sir, I was not able to retaliate because the scissors fell when he was
able to parry it.
Q. What happened after that, after that piece of scissors fell from your hold?
A. I took hold of his hand holding the "balisong" and we had a scuffle to get
hold or possession of the "balisong."
Q. What happened after the scuffling for the "balisong"?
A. After one (1) minute I was able to grab possession of the "balisong."

David Olivario, who was five meters away and saw what transpired, corroborated
petitioners account.41 He remained steadfast and unwavering on cross-examination
despite intense grilling by the prosecution42 and further clarificatory questioning from
the trial court itself.43
Second, the physical evidence is more in accord with petitioners version of what
transpired, specifically his assertion that it was the victim who was armed and
persisted in his attack on the petitioner even though the latter locked himself inside
the dark room of his stall to protect himself. The findings of Police Investigator SPO3
Julian Z. Bustamante contained in his Advance Information Report44 discloses that
"[H]oles were observed at the door near the door lock of suspects rush ID photo
booth apparently made by a hard pointed instrument"45 Aside from stating that a fan
knife and a pair of scissors which both yielded positive results for traces of human
blood were recovered, the report went further to note that the "bloodied scissor were
(sic) recovered in front of suspects rush ID photo booth door."46
The foregoing entries of the Advance Information Report, particularly that referring to
the location of the bloodied scissors, supports petitioners claim that when he could
no longer avoid the unlawful aggression of the victim, he was compelled to grab at the
instrument inside the booth to defend himself. However, the scissors fell from his
grasp, thus forcing him to desperately grapple for possession of the fan knife.

Q. What happened after that?

A. When I was able to get hold of the "balisong" I just remained standing and
I just . . .

Third, circumstances prior to the fatal incident shows that it was the victim who
purposely sought to confront the petitioner because the latter had his business permit
machine copied without his permission. Maria Cano, an aunt of the victim and
petitioner, testified thus:

Q. What else happened?

A. He was able to pick up the scissors that I dropped and he again launched
[himself] at me [with] the scissors.
Q. What did you do, if any?
A. That was the time when my mind was confused and I dont have any
place to go and I tried to defend myself and we fought each other.

Q: And Orlando Cano, did he tell you any reason why he was waiting for
Conrado Cano [at] that particular morning?
A: Because he was very angry and said that there will be an encounter
between them.
Atty. Ferrer:
What did you do, if any?

Atty. Ferrer :
Witness:
And at the time when you said you fought each other, Orlando Cano was
holding the scissors and you were holding the "balisong," correct?
A. Yes, sir.40

A: You brothers you should calm down because you are brothers.
Q: By the way what was the reason why, if you know why, Orlando told you
that "silay magtutuos," quoting your own words?

A: Orlando Cano is mad because Conrado Cano got Orlandos business

permit and had it xeroxed and after xeroxing it and he returned the permit of
Orlando Cano.
Q: Could you tell us how Orlando Cano uttered those words "magtutuos"?
A: Orlando Cano told me this is the day when we will have a confrontation
and at this juncture, I even tapped [his] right pocket, I did not see what was
there but I saw the handle.
xxxxxxxxx
Q: As the aunt of the two (2) what was your reaction when Orlando told you
that?
A: I told, Orlando, calm down because you are brothers and if something
bad that will happen (sic) your mother will suffer because of the incident.
Atty. Ferrrer:
And what was the reaction of Orlando, if any, after you said those words of
advice?
A: Orlando Cano answered me, well, shall I remain silent and will not utter
any word at all?

A: That was the time I bid goodbye.47

(emphasis and italics supplied)
Fourth, the record reveals that while indeed numerous wounds were sustained by the
victim, the Medico-Legal Officer who conducted the autopsy admitted that of the
thirty-five (35) wounds supposedly inflicted, thirty-three (33) were scratches and
contusions while only six (6) were penetrating or stab wounds.48 As regards the
finding that petitioner suffered only one hand wound, it should be stressed that the
superficiality of the nature of the wounds inflicted on the accused does not, per se,
negate self-defense. Indeed, to prove self-defense, the actual wounding of the person
defending himself is not necessary. It is sufficient that the aggression be attempted so
as to give rise to the right to prevent it.49 The act of a person armed with a bladed
weapon pursuing another constitutes unlawful aggression because it signifies the
pursuers intent to commit an assault with this weapon.50
The particular circumstances which confronted the petitioner at the time of the
incident condoned the means he employed to protect his life. It must be remembered
that the measure of rational necessity is to be found in the situation as it appeared to
petitioner at the time when the blow was struck. The law does not require that he
should mete out his blows in such manner that upon a calm and deliberate review of
the incident it will not appear that he exceeded the precise limits of what was
absolutely necessary to put his antagonist hors de combat, or that he struck one blow
more than was absolutely necessary to save his own life; or that he failed to hold his
hand so as to avoid inflicting a fatal wound where a less severe stroke might have
served the purpose. Under such conditions, an accused cannot be expected to reflect
coolly nor wait after each blow to determine the effects thereof.51

Q: And was that that (sic) word confined to Orlando?

A: No, Sir, because I also advised Gloria.
Q And what was the advise you gave Gloria?
A: I told Gloria because the only one who can prevent this incident is you
because Orlando is your husband.
Q: And what was the reaction, if any of Gloria Cano?
A: Gloria told me, there is nothing I can do because they are brothers and
they are responsible for their own lives.
Q: What else happened, if any?

. . . the reasonableness of the means employed to repel an actual and positive

aggression should not be gauged by the standards that the mind of a judge, seated in
a swivel chair in a comfortable office, free from care and unperturbed in his security,
may coolly and dispassionately set down. The judge must place himself in the
position of the object of the aggression or his defender and consider his feelings, his
reactions to the events or circumstances. It is easy for one to state that the object of
the aggression or his defender could have taken such action, adopted such remedy,
or resorted to other means. But the defendant has no time for cool deliberation, no
equanimity of mind to find the most reasonable action, remedy or means to. He must
act from impulse, without time for deliberation. The reasonableness of the means
employed must be gauged by the defenders hopes and sincere beliefs, not by the
judges.52
Fifth, there was lack of sufficient provocation on the part of petitioner. When the law
speaks of provocation either as a mitigating circumstance or as an essential element
of self-defense, it requires that the same be sufficient or proportionate to the act

committed and that it be adequate to arouse one to its commission. It is not enough
that the provocative act be unreasonable or annoying.53 This third requisite of selfdefense is present: (1) when no provocation at all was given to the aggressor; (2)
when, even if provocation was given, it was not sufficient; (3) when even if the
provocation was sufficient, it was not given by the person defending himself; or (4)
when even if a provocation was given by the person defending himself, it was not
proximate and immediate to the act of aggression.54
Petitioner borrowed the permit of the victim and had it photocopied without the latters
permission two (2) days before the incident.55 The victim and his wife resented this.
However, this can hardly be considered a provocation sufficient to merit so deadly an
assault with a bladed weapon. Moreover, the act was neither immediate nor
proximate.56 What, in fact, appears on record is the bellicose temperament of the
victim and his spouse who, despite the advice of their Aunt Maria Cano to calm down,
still persisted in confronting petitioner. When the question is raised who between the
accused and the offended party gave provocation, the circumstances of subjective,
objective and social character may be considered in reaching a definite
conclusion.57 Thus an accused, to prove provocation in connection with his plea of
self-defense, may show that the victim, as in this case, had a quarrelsome and
irascible disposition.58
Sixth, two other notable circumstances on record tend to show that petitioner was
impelled by the instinct of self-preservation rather than the murderous urge of one
bent on killing. The first is when petitioner was able to wrest the balisong from the
victim, he never took advantage of the opportunity to attack his already weaponless
brother. Rather, he stood still and was forced to act only when the victim picked up
the scissors and lunged at him again.59 The second instance is when the victim fell.
Had petitioner been actuated by homicidal intentions, he would have persisted in his
attack on his prostrate brother. He did nothing of the sort. He, in fact, intended to lift
the victim up and bring him to the hospital but the sudden appearance of the victims
wife who hit him with a chair forced him to flee. Moreover, armed people were
attracted by the shouts of the victims wife and had gathered and started pursuing
him.60
Seventh, while the general policy is for the courts not to attach any persuasive
evidentiary value to the affidavit of retraction of the victims widow, such sworn
statement acquires a weightier and more decisive evidentiary consideration when
taken in conjunction with the other prevailing facts in this case. Thus, it has oft been
said that where inculpatory facts and circumstances are susceptible of two or more
interpretations, one of which is consistent with the innocence of the accused while the
others may be compatible with a finding of guilt, the Court must acquit the accused
because the evidence does not fulfill the test of moral certainty required for
conviction.61

All told, evidence shows that petitioner acted in lawful self-defense. Hence, his act of
killing the victim was attended by a justifying circumstance, for which no criminal and
civil liability can attach.62 Article 11 (1) of the Revised Penal Code expressly provides
that anyone who acts in lawful self-defense does not incur any criminal liability.
Likewise, petitioner is not civilly liable for his lawful act. The only instance when a
person who commits a crime with the attendance of a justifying circumstance incurs
civil liability is when he, in order to avoid an evil or injury, does an act which causes
damage to another, pursuant to subdivision 4 of Article 11 of the Revised Penal
Code.63 Otherwise stated, if a person charged with homicide successfully pleads selfdefense, his acquittal by reason thereof will extinguish his civil liability.64
WHEREFORE, in view of all the foregoing, the judgment appealed from is
REVERSED and SET ASIDE. Petitioner Conrado Cano y Sampang is ACQUITTED of
the crime charged against him and his immediate release from custody is ordered
unless there is another cause for his continued detention.
Costs de oficio.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 160341

October 19, 2004

EXEQUIEL SENOJA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals
(CA) in People v. Exequiel Senoja, docketed as CA-G.R. CR No. 26564, affirming
with modification the Decision2 of the Regional Trial Court (RTC) of Baler, Aurora,
Branch 96, in Criminal Case No. 2259, for homicide.
The Case For the People
As culled by the Office of the Solicitor General (OSG) in its comment on the petition,
the case stemmed from the following:
1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose Calica,
and Miguel Lumasac were drinking gin in the hut of Crisanto Reguyal in
Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac suddenly
arrived at the said place, holding a bolo in his right hand and looking for his
brother Miguel. Petitioner and Jose tried to pacify Leon. But when petitioner
approached Leon, the latter tried to hack him so he embraced Leon and
Jose took Leons bolo. Then, Leon and petitioner talked things out and later
reconciled (pp. 2-4, TSN, November 16, 1998; pp. 2-4, TSN, August 30,
2002; p. 2, TSN, April 21, 1998; p. 5, TSN, March 14, 2001; p. 2, CA
Decision).
2. Subsequently, Leon walked out of Crisantos hut followed by petitioner.
Suddenly, about ten meters from the hut, petitioner stabbed Leon at the
back. When Leon turned around, petitioner continued stabbing him until he
fell to the ground. Then, petitioner ran towards the barangay road and threw
away the "kolonial" knife he used in stabbing Leon. The latter died on the

spot (pp. 2-6, TSN, November 22, 2000; p. 5, TSN, August 30, 2002; p. 3,
CA Decision).
3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health Officer,
examined the cadaver of Leon and found multiple lesions on his body and
five fatal wounds on his chest. Dr. Uy issued a medico-legal report and death
certificate (Exhibits A and B, pp. 13-14, Records; pp. 3-5, TSN, November
20, 1997).3
On August 13, 1997, an Information was filed charging petitioner Exequiel Senoja
with homicide, the accusatory portion of which reads:
That on April 16, 1997 at around 11 oclock in the morning in Barangay
Zarah, San Luis, Aurora, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, did then and there, willfully, unlawfully,
and feloniously, with intent to kill, attack, assault, and use personal violence
upon the person of one Leon Lumasac by then and there stabbing him with
a bladed weapon locally known as "kolonyal" at the different parts of his
body thereby inflicting upon the latter mortal stab wounds which were the
direct and immediate cause of his death thereafter.
CONTRARY TO LAW.4
The petitioner admitted killing the victim but invoked the affirmative defense of selfdefense. His version of the fatal incident is set forth in his petition at bar:
1. On April 16, 1997 at about 11 oclock in the morning, Crisanto Reguyal,
Fidel Senoja, Jose Calica, Miguel Lumasac, and Exequiel Senoja were in
the hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora, drinking
gin;
2. Leon Lumasac suddenly arrived holding a bolo and hacked the doorpost
of Crisantos hut, angrily demanding for his brother, Miguel Lumasac, whom
he suspected of drying up the ricefield he was plowing;
3. At this time, Miguel Lumasac was no longer inside the hut but fetching
water;
4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja
(appellant) and Jose Calica stood by the door while simultaneously trying to
pacify Leon Lumasac;

5. Exequiel Senoja with a knife then went outside and tried to pacify Leon
Lumasac but the latter angered by the gestures of the former tried to hack
Exequiel Senoja;

of Fifteen (sic) Thousand Pesos (Php 50,000.00) by way of civil indemnity;

and (c) to pay the costs.
SO ORDERED.6

6. To avoid any injury, Exequiel Senoja embraced Leon which gave an

opportunity to disarm the duo. Jose Calica got the bolo of Leon and threw it
away while Fidel Senoja took the "colonial" knife of Exequiel;
7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so they
invited him to get inside the hut. Inside the hut, Leon Lumasac tried to box
Fidel Senoja for siding with his brother, Miguel, but was prevented by
Exequiel Senoja who held Leons hands;
8. After a while, Leon Lumasac left but returned and angrily demanded for
his bolo. Jose Calica gave his own bolo with a sabbard to replace the bolo of
Leon which he threw away;
9. With Jose Calicas bolo in him, Leon Lumasac left but only after leaving a
threat that something will happen to Exequiel Senoja for siding with his
brother;
10. After walking for about 10 meters away from the hut, Leon Lumasac
turned around and saw Exequiel Senoja on his way home following him;
11. Leon Lumasac walked back to meet Exequiel Senoja and upon reaching
him, the former suddenly and treacherously hacked the latter at the left side
of his head and right thigh;
12. Unable to evade the treacherous attack by Leon Lumasac who persisted
in his criminal design, Exequiel Senoja drew his "colonial" knife and stabbed
Leon Lumasac in self-defense, inflicting upon him multiple wounds which
caused his death.5
On June 7, 2002, the trial court rendered judgment against the petitioner, finding him
guilty beyond reasonable doubt of the crime charged. The fallo of the decision reads:
WHEREFORE, premises considered, this Court finds accused Exequiel
Senoja GUILTY beyond reasonable doubt of the crime of Homicide for the
death of victim Leon Lumasac and hereby sentences him, applying Article
64, paragraph 1 of the Revised Penal Code and Section 1 of the
Indeterminate Sentence Law, (a) to suffer the penalty of twelve (12) years of
prision mayor as minimum to seventeen (17) years and four (4) months of
reclusion temporal as maximum; (b) to pay the heirs of the victim the amount

In due course, the petitioner appealed the decision to the CA which rendered
judgment affirming, with modification, the decision of the RTC. The petitioner now
seeks relief from this Court, contending that:
The Honorable Court of Appeals failed to appreciate vital facts which, if
considered, would probably alter the result of this case on appeal finding
appellants plea of self-defense credible.7
The petitioner faults the CA for its analysis of his testimony, as follows:
The injuries suffered by the petitioner at the left side of his head and right
thigh was confirmed by Dr. Rodolfo Eligio in open court. The relative
positions of the wounds clearly show that the drunken Leon Lumasac
brandished and executed several hacking blows against Exequiel Senoja
before he was stabbed, neutralized and finished by the latter. It would be
physically and highly improbable for the victim if he was treacherously hit at
the left buttock and as he turned around to face the petitioner, the latter
stabbed him successively and without let-up hitting him 9 times resulting in 9
fatal wounds. This did not give a chance to the victim to retaliate and inflict
those wounds upon the aggressor. The victim used Mr. Jose Calicas bolo
which was secured by its scabbard. Unless earlier drawn, it would be
impossible for the victim to use it in defending himself from the surprise
attack and stabbing at a lightning fashion inflicting nine (9) fatal wounds.
Time element was the essence of this encounter which, as narrated by the
Honorable Court, after the assailant poked the victim at the left side of the
buttock with the use of the "colonial" knife he stabbed him successively until
he fell down dead. Under these circumstances, how could Exequiel Senoja
suffered (sic) those hacking (sic) wounds inflicted by the victim using
Calicas bolo? In all indications, it was Leon Lumasac who attacked his
adversary first but lost in the duel considering that he was older than
Exequiel Senoja and drunk. Clearly, therefore, it was Leon Lumasac who
was the aggressor both in the first and second phases of the incident and
Exequiel Senoja was compelled to defend himself.
A closer scrutiny of the attending circumstances which resulted in this
stabbing incident shows that Exequiel Senoja has no compelling reasons to
kill his godfather. On that same occasion, Mr. Exequiel Senoja was with the
brother of the victim, Miguel Lumasac, which only shows that there was no
pre-existing grudge between these families. And still, what titillates our

imagination is the fact that Miguel Lumasac, who was then with the group
drinking gin at the hut of Crisanto Reguyal did not clearly impute this crime
to petitioner. On the contrary, when he was presented to the witness stand,
he was very evasive in answering the questions profounded by the
prosecutors if he wanted the petitioner to be imprisoned. Miguel Lumasac
could have told the real truth that Senoja murdered his brother.8
The CA declared that, based on the evidence on record:
As seen from appellants testimony, Leon Lumasacs actions can be divided
into two (2) phases: the first phase, when Leon entered Crisanto Reguyals
hut, up to the time he and the appellant reconciled. The second phase was
when Leon left to go home. In phase one where Leon entered Reguyals hut,
Leon was the aggressor but his aggression was mostly directed to his
brother Miguel who was not inside the hut anymore, although it was also
partly directed at the appellant and even at Fidel Soneja (sic). But Leons
aggression against the appellant and Fidel Senoja ceased since, as
appellant testified, when Leon tried to box Fidel Senoja and he (appellant)
told Leon "Huwag po, Huwag po," Leon was pacified.
In the second phase, when Leon left the hut to go home, his aggression had
already ceased.
It is uncontroverted that the appellant followed the victim when the latter
went out of the hut to go home. Appellants testimony is that when he was
two meters outside the hut, Leon turned around to face him saying "if youre
not only my godson" in a threatening way, then approached and hacked him
(with Calicas bolo) inflicting wounds on the left side of his head and his right
thigh, thus, he (appellant) attacked the victim with the kolonial knife he was
holding. That appellant suffered such injuries was corroborated by the
testimony of Dr. Rodolfo Eligio.9

Second. Reasonable necessity of the means employed to prevent

or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
The affirmative defense of self-defense may be complete or
incomplete. It is complete when all the three essential requisites are
present; it is incomplete if only unlawful aggression on the part of
the victim and any of the two essential requisites were present. In
fine, unlawful aggression on the part of the victim is a condition sine
qua non to self-defense, complete or incomplete. Whether or not
the accused acted in self-defense is a question of fact. Like alibi,
the affirmative defense of self-defense is inherently weak because,
as experience has demonstrated, it is easy to fabricate and difficult
to disprove.10
The right of self-defense proceeds from necessity and limited by it. The right begins
where necessity does, and ends where it ends.11 There is, however, a perceptible
difference between necessity and self-defense, which is that, self-defense excuses
the repulse of a wrong; necessity justifies the invasion of a right. Hence, it is essential
to self-defense that it should be a defense against a present unlawful attack.12
Life can be taken under the plea of necessity, when necessary for the preservation of
the life on the party setting up the plea. Self-defense is an act to save life; hence, it is
right and not a crime.13 There is a need for one, indeed, for it is a natural right for one
to defend oneself when confronted by an unlawful aggression by another. It is a
settled rule that to constitute aggression, the person attacked must be confronted by
a real threat on his life and limb; and the peril sought to be avoided is imminent and
actual, not merely imaginary. Absent such an actual or imminent peril to ones life or
limb, there is nothing to repel; there is no necessity to take the life or inflict injuries on
another.14

The petition is denied.

Paragraph 1, Article 11, of the Revised Penal Code provides:
ART. 11. Justifying circumstances. The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur;
First. Unlawful aggression;

But then what is the standard to use to determine whether the person defending
himself is confronted by a real and imminent peril to his life or limb? We rule that the
test should be: does the person invoking the defense believe, in due exercise of his
reason, his life or limb is in danger? After all, the rule of law founded on justice and
reason: Actus no facit remin, nisi mens sit rea. Hence, the guilt of the accused must
depend upon the circumstances as they reasonably appear to him.15
Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent
danger thereof, not merely a threatening or intimidating attitude.16 Hence, when an
inceptual/unlawful aggression ceases to exist, the one making a defense has no right
to kill or injure the former aggressor.17 After the danger has passed, one is not

justified in following up his adversary to take his life. The conflict for blood should be
avoided if possible.18 An assault on his person, he cannot punish when the danger or
peril is over. When the danger is over, the right of self-defense ceases. His right is
defense, not retribution.19
When the accused offers the affirmative defense of self-defense, he thereby admits
killing the victim or inflicting injuries on him. The burden of evidence is shifted on the
accused to prove, with clear and convincing evidence, that he killed the victim or
inflicted injuries on him to defend himself. The accused must rely on the strength of
his own evidence and not on the weakness of that of the prosecution because if the
evidence of the prosecution were weak, the accused can no longer be acquitted.20
We agree with the CA that, as gleaned, even from the testimony of the petitioner,
there were two separate but interrelated incidents that culminated in the petitioners
stabbing and killing of the victim Leon Lumasac. The first was the arrival of the victim,
who was armed with a bolo, in the hut of Crisanto Reguyal, looking for his brother
Miguel Lumasac, whom he was angry at. The victim hacked the wall of the house in
anger. The petitioner, who was armed with a knife, tried to pacify the victim. The
victim attempted to hack the petitioner; nevertheless, the latter embraced and
managed to pacify the victim. Forthwith, Jose Calica took the bolo of the victim and
threw it away. For his part, Fidel Senoja took the petitioners knife. As it was, the
victim was already pacified. He and the petitioner were already reconciled.21 Fidel
even gave back the knife to the petitioner.
The second incident took place when the victim demanded that Calica return his bolo
as he wanted to go home already. Because he had thrown away the victims bolo,
Calica was, thus, impelled to give his own. The victim then warned the petitioner three
times, "May mangyayari sa iyo, kung hindi ngayon, bukas," and left the hut. When the
victim had already gone about ten meters from the hut, the petitioner followed the
victim. The victim turned around and told the petitioner, "Kung hindi lang kita
inaanak." The victim then hacked the petitioner, hitting the latter on the left side of his
head and thigh. Believing that the victim would attack him anew, the petitioner
stabbed the victim frontally several times.22 He also stabbed the victim on the left
buttock. The petitioner could not recall how many times he stabbed the victim and
what parts of the latters body had been hit.

First. The findings of fact of the trial court and its conclusions based on the said
findings are accorded by this Court high respect, if not conclusive effect, especially
when affirmed by the CA. This is because of the unique advantage of the trial court of
having been able to observe, at close range, the demeanor and behavior of the
witnesses as they testify. This rule, however, is inapplicable if the trial court ignored,
overlooked, or misinterpreted cogent facts and circumstances which, if considered,
will alter or reverse the outcome of the case. We have reviewed the records and
found no justification for a reversal of the findings of the trial court and its conclusions
based thereon.
Second. The victim sustained six hack wounds and one lacerated wound. This is
gleaned from the Necropsy Report of Dr. Pura Uy, to wit:
FINDINGS: The victim lies in supine position, stocky in built; his clothing
completely soaked with fresh blood.
CHEST:
(+) stab wound 2 inches below the L nipple 4 inches deep running
medially to the anterior median line.
(+) stab wound 2 inches to the L of the anterior median line at the
level of the L nipple 5 inches deep running posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches deep running
inferomedially.
(+) stab wound 2 inches to the left of the anterior median line 4
inches deep running inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior median line at the
level of the second right intercostal space 0.5 inch in depth.
(+) stab wound inch to the right of the anterior median line at the
level of the xyphoid process 3 inches deep running superiorly.

The first episode inside the hut had been completed with the protagonist, the victim,
and the petitioner reconciled. The second episode commenced inside the hut and
continued outside, and ended with the petitioner stabbing the victim several times.

(+) stab wound at the level of the L nipple L anterior axillary line 4
inches in depth running superiorly to the left armpit.

The trial and the appellate courts gave no credence and probative weight to the
testimony of the petitioner. So do we.

(+) hack wound at the left armpit 3 inches long injuring the muscles
and the blood vessels.

(+) lacerated wound on the left palm almost cutting off the proximal
phalanx of the left thumb.23
Five of the wounds of the victim on his chest were fatal.24 The victim also sustained a
stab wound on the left buttock. According to the doctor, it was unlikely for the victim to
have survived even with medical attention.25 After the doctor made her initial autopsy
and submitted her report, she noted that the victim sustained a stab wound of about
two inches deep at the left buttock, thus:
Q In this medico-legal report, you indicated that the cause of death of the
victim is "Hypovolemic shock 2 to multiple stab wounds, chest." Will you
please explain this?
A "Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang
natapon na dugo gawa ng maraming saksak na tinamo ng biktima sa
kanyang dibdib ang nagbigay ng daan sa kanyang kamatayan."
Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions that
is located at the back of the victim?
A I forgot to tell you that a day after I submitted the report, the funeral parlor
which attended the victim has called my attention because of the wound at
the back of the victim and I attended immediately to see these lesions at the
home of the victim. I reviewed for (sic) these lesions and I saw one lesion
located at the left buttock of the victim.

A Five fatal stab wounds on the chest.26

Considering the number, nature and location of the wounds sustained by the victim,
the petitioners plea of self-defense is incredible.27 It bears stressing that the petitioner
resolutely denied stabbing the victim at the buttock and insisted that he stabbed the
victim frontally:
Q As a matter of fact, he sustained an injury at the back of his buttock (pigi)
and when he faced you, you stabbed him again several times?
A That is not true, Sir.
Q But you are admitting that you stabbed him several times frontally?
A Yes, Sir, because I am (sic) defending myself.
Q You also stabbed him in his left armpit?
A I dont know, Sir.
Q But you knew that you stabbed him in his buttock?
A No, Sir.

Q What is the nature of the injury?

Q After stabbing him several times and felt that he was already dead, you
already left the place?

A Stab wound, about two inches deep.

A Yes, Sir.28

Q By the nature of the lesion, is it not fatal?

A It is not that fatal.
Q In your expert opinion, by the nature of the wound sustained by the victim,
what could have been the relative position of the victim in relation to his
assailant?
A Based on my examination, I think the victim and the assailant were facing
each other. "Masyadong malapit."
Q How many fatal wounds have (sic) the victim sustained in his chest?

The testimony of the petitioner is belied by the physical evidence on record. The
settled rule is that physical evidence is evidence of the highest order; it speaks more
eloquently than a hundred witnesses.29
Third. The petitioner threw away his knife and failed to surrender it to the policemen;
neither did he inform the policemen that he killed the victim in self-defense. The
petitioners claim that the victim was armed with a bolo is hard to believe because he
even failed to surrender the bolo.30
Fourth. The petitioners version of the events that transpired immediately before he
stabbed the victim does not inspire belief. He claims that when he saw the victim
emerged from the hut, the victim walked towards the petitioner saying, "Kung hindi
lang kita inaanak," but hit and hacked the latter on the left buttock.31 As gleaned from
his statement, the victim was not disposed, much less determined to assault the

petitioner. And yet, the petitioner insists that without much ado, the victim,
nevertheless, hit him on the head and on the thigh with his bolo.

Pros. Ronquillo:
Q Does (sic) the wound at the right anterior thigh vertical, diagonal or what?

Fifth. According to the petitioner, the victim warned him three times before leaving the
hut, "May mangyayari sa iyo, kung hindi ngayon, bukas." The petitioner testified that
shortly before the victim uttered these words, the latter even touched the blade of the
bolo to see if it was sharp.32 The petitioner was, thus, aware of the peril to his life if he
followed the victim. The petitioner, nevertheless, followed the victim and left the hut
after the victim had gone barely ten meters. He should have waited until after the
victim had already gone far from the hut before going home to avoid any untoward
incident.
Sixth. The petitioner presented his brother-in-law Ruben Dulay to corroborate his
testimony that the victim stabbed the petitioner and that this impelled the latter to stab
the former. But the testimony of Dulay contradicted the testimony of the petitioner:

A I did not place it, Sir.

Q So, you dont know?
A It is vertical, Sir, but I did not place it on the record. And the hack wound on
the temporal region is oblique.
Q Were the injuries only slight?
A Yes, Sir.

Q When Exequiel Senoja stabbed Leon Lumasac several times, he

immediately fell to the ground and was fatal[ly] wounded, immediately died
because of several stabs and lay (sic) down?

Q So, it is (sic) possible that these injuries were self-inflicted?

A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac,
I turn (sic) back upon seeing Leon Lumasac hack Exequiel Senoja, I turn
(sic) back because I was afraid then. When I turn (sic) back I saw them
embracing each other, Sir.

Q You said that the patient was under the influence of alcohol? Would you
say that the patient was then so drunk at that time?

Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?
A I did not see the stabbing. What I only saw was that they were embracing
each other, Sir.
Q So you are now changing your answer, you actually saw Exequiel Senoja
stabbing Leon Lumasac several times, after he was hack[ed] by Leon
Lumasac?

A Probably, Sir, but I cannot comment on that.

A When I saw him at that time, he was moderately drunk.34

The doctor gave the petitioner due medications for 30 minutes and the petitioner then
went home:
Q How did it happen that you were able to kill the victim in this case Mr.
Leon Lumasac?
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?

A I did not see that Exequiel Senoja stab Leon Lumasac, Sir.33
A Yes, Sir.
Seventh. The bare fact that the petitioner sustained a five-centimeter wound at the left
temporal region and an eight-centimeter hack wound on the anterior portion of his
right thigh does not preclude the fact that he was the unlawful aggressor; nor buttress
his plea that he acted in self-defense. The petitioner failed to inform the doctor that he
sustained the wounds to defend himself. Moreover, the doctor testified that the
wounds the petitioner sustained were slight:

Q Where?
A Here, Sir.
And Witness is pointing to his left head.

Q Where else?

Q What is his real name?

A (His) right thigh.

A Crisanto Reguyal, Sir.36

Q In what place did this incident happen?

But then, after the said incident, the petitioner and the victim had reconciled. We
agree with the following findings of the appellate court:

A In the hut of Tata Santos, Sir.

Q What is his real name?
A Crisanto Reguyal, Sir.35
If, as claimed by the petitioner, the victim stabbed him frontally, it is incredible that the
victim was able to hack the anterior part of his right thigh.
Eighth. The testimony of the petitioner that the victim stabbed him outside the hut on
the left side of his head and the anterior portion of his right thigh is belied by his
testimony on direct examination that the victim stabbed him while still inside the hut of
Reguyal:
Q How did it happen that you were able to kill the victim in this case Mr.
Leon Lumasac?
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
Q Where?
A Here, Sir.
And Witness is pointing to his left head.
Q Where else?
A (His) right thigh.
Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.

The question that must be resolved is whether or not the victim was the
unlawful aggressor as the appellants testimony pictures him to be. The
Court rules in the negative. The victim had already left the hut and was ten
(10) meters away from it. There is no showing that the victim, who was
drunk, was aware that appellant was following him, or that the appellant
called out to him so that he (the victim) had to turn around and notice him. It
is clear that at that point in time, the victim was simply walking toward his
home; he had stopped being an aggressor. It was the appellant who,
smarting from the earlier incident in the hut where Leon told him "hindi ka
tatagal, sa loob ng tatlong araw mayroong mangyayari sa iyo, kung hindi
ngayon, bukas" repeated three times, wanted a confrontation. Appellant
stabbed or poked the victim in the left buttock resulting in the non-fatal
wound, and when the latter turned around, successively stabbed and hacked
the victim in the armpit and chest until he fell. In all, the victim suffered nine
(9) wounds.
It is the well-considered finding of this Court that while Leon Lumasac had
ceased being the aggressor after he left the hut to go home, accused
Exequiel Senoja was now the unlawful aggressor in this second phase of
their confrontation. It bears mentioning that appellant contradicted himself
with respect for (sic) the reason why he left the hut. First, it was to pacify
Leon and the second reason was that he was going home.
As for appellants injuries, it is clear that they were sustained in the course of
the victims attempt to defend himself as shown by the lacerated wound on
the victims left palm, a defensive wound.37
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision
of the Court of Appeals is AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

(a) Right chest with moderate hemathorax at two (02) points

(b) Right upper quadrant, left wrist two (02) points, right back at one (01)
point, neck

FIRST DIVISION
Cause of Death:
G.R. No. 156567

November 27, 2003

JOSE RIMANO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION

Massive Hemorrhage due to multiple wound with penetration at the liver, gall bladder,
small intestine at many points, diaphragm right.
as per Post Operative Findings issued by Dr. Reynaldo P. Sucgang, Jr. M.D., Medical
Specialist 1, of Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan, attached
hereto as annex "A" and made an integral part of this information which injuries
caused the death of said NESTOR IMPORTADO.

YNARES-SANTIAGO, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing
the December 16, 2002 decision1 of the Court of Appeals in CA-G.R. CR No. 17838
which modified the penalty imposed on petitioner Jose Rimano for the crime of
homicide in Criminal Case No. 3597 and frustrated homicide in Criminal Case No.
3595.2

That as a consequence of the criminal acts of the accused, the heirs of the deceased
NESTOR IMPORTADO suffered actual and compensatory damages in the amount of
FIFTY THOUSAND PESOS (P50,000.00).
CONTRARY TO LAW.4
Criminal Case No. 3595 (frustrated homicide)

Petitioner was originally charged in three separate informations for the crimes of
homicide and two counts of frustrated homicide. Upon arraignment on September 7,
1992, he pleaded not guilty3 to all the charges against him. After trial, the court a
quo found him guilty beyond reasonable doubt of homicide in Criminal Case No. 3597
and of two counts of frustrated homicide in Criminal Case Nos. 3578 and 3595. On
appeal to the Court of Appeals, the latter acquitted petitioner in Criminal Case No.
3578 for frustrated homicide and affirmed with modification his convictions in Criminal
Case No. 3597 for homicide and in Criminal Case No. 3595 for frustrated homicide.
Hence, the instant petition refers to his conviction insofar as Criminal Case No. 3597
and Criminal Case No. 3595 are concerned.
The information in Criminal Case No. 3597 for homicide, reads:
That on or about the 16th day of October 1991, in the evening, in Poblacion,
Municipality of Malinao, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, while armed with a
deadly weapon, consisting of a knife, without justifiable cause and with intent to kill,
did then and there, willfully, unlawfully and feloniously attack, assault and stab one
NESTOR IMPORTADO, thereby inflicting upon the latter physical injuries, to wit:
Stabbed Wounds:

That on or about the 16th day of October 1991, in the evening, in Poblacion,
Municipality of Malinao, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, while armed with a
knife, with intent to kill, did then and there, willfully, unlawfully and feloniously attack,
assault and stab one ISAIAS IBARDOLASA,5 JR., thereby inflicting upon the latter
physical injury, to wit:
Stabbed wound left back with massive hemathorax left.
as per Medico-Legal Report on Physical Injuries issued by Dr. Reynaldo P. Sucgang,
Medical Specialist I of the Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan,
hereto attached and an integral part hereof, the accused having thus performed all
the acts of execution which would have produced the crime of Homicide as a
consequence, but which, nevertheless, did not produce it by reason of causes
independent of the will of the accused, that is, the timely and able medical assistance
rendered to said ISAIAS IBARDOLASA, JR., which prevented his death.
That by reason of the criminal acts of the accused, ISAIAS IBARDOLASA, JR.,
suffered actual and compensatory damages in the amount of P20,000.00.

CONTRARY TO LAW.6
The facts as found by the Court of Appeals are as follows:
At around 8:30 in the evening of October 16, 1991, Nelson Importado, suddenly
attacked petitioner with a knife in front of a billiard hall at the corner of Sto. Rosario
Street and Roxas Avenue, Malinao, Aklan. The area was well illuminated by a
fluorescent lamp. In the process of grappling for the possession of the knife, petitioner
was able to get hold thereof and stabbed Nelson twice. The latter retreated to the
billiard hall, 8 meters away from petitioner.7 Thereafter, Nestor Importado, brother of
Nelson, rushed towards the petitioner and boxed him, who retaliated by delivering
successive stabbing blows which landed at the frontal portion of Nestors body.8 At
this point, Isaias Ibardalosa, Jr., tried to separate the two. When Nestor turned his
back, petitioner stabbed him. The former was able to flee while Isaias and the
petitioner wrestled. Shortly thereafter, they fell on the ground with Isaias on top of the
petitioner. Petitioner was facing up and pinned by Isaias on the shoulders. But since
petitioners hands were free, he was able to stab Isaias at the back. Then, petitioner
scampered away towards Malinao Elementary School.9 The stabbing of Nestor and
Isaias was witnessed by Froilan Sucro from the window of his house, 5 meters away
from the victims.10
Dr. Victor Sta. Maria, who interpreted the Post Operative Findings on the deceased
Nestor Importado, testified that the latter sustained six wounds,11 thus
(a) right chest with moderate hemathorax at two (2) points;
(b) right upper quadrant, left wrist two (02) points, right back at one (01)
point, neck.12
On the other hand, the Medico Legal Report states that Isaias Ibardalosa, Jr.
sustained a single "stabbed wound left back."13
Invoking self-defense, petitioner testified that at around 8:30 p.m. of October 16,
1991, he and some of his students went to the police station of Malinao, Aklan, to
report an assault on one of his baseball players.14 On their way back to their sleeping
quarters at Malinao Elementary School, they passed by a group having a drinking
spree in front of a billiard hall. Petitioners students were walking about 8 meters
ahead of him.15 He proceeded and saw a man standing in the middle of the road,
whom he later learned was the deceased Nestor Importado. Petitioner greeted
Nestor, "Good evening, let us go to sleep now."16 The latter did not answer. He
noticed a knife in Nestors right hand. The latter suddenly rushed towards him and
tried to stab him. Petitioner, using both his hands, grabbed Nestors right hand and
placed Nestors arms on his shoulder with his back facing him.17 While they were
wrestling for the possession of the knife, Nelson Importado,18 brother of Nestor, came

and boxed petitioner in the face.19 Nelson delivered another fist blow but he was
accidentally stabbed by the knife which was still in the hands of Nestor. Nelson fell but
was able to stagger towards the billiard hall.20 As petitioner and Nestor struggled for
the possession of the knife, Isaias Ibardalosa, Nestors compadre,21 boxed petitioner
on the right eye. At this instant, petitioner got hold of the knife and swung it 2 or 3
times hitting Nestor who was behind him and pulled his collar.22 However, the knife
was thrown away from his hand by Isaias. Petitioner kicked Isaias but somebody hit
him causing him to fall to the ground face up.23 Isaias immediately pinned him
down,24 holding his two arms.25 While they were in that position, Nelson26 came back
and delivered 2 stabbing blows. The first thrust hit Isaias who was on top of petitioner
and the other one hit the ground. Petitioner was able to free himself and he ran
towards the Malinao Elementary School.27 The next day, he presented himself to the
authorities at Camp Pastor Martelino in Kalibo, Aklan.28
After trial on the merits, the trial court rendered a decision on November 23, 1994, the
dispositive portion thereof, reads:
WHEREFORE, the accused Jose Rimano is hereby sentenced in Criminal Case No.
3597 to suffer the penalty of imprisonment for eight (8) YEARS and ONE day
of prision mayor as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and
ONE (1) DAY of reclusion temporal as maximum, and to indemnify the heirs of the
victim Nestor Importado FIFTY THOUSAND PESOS (P50,000.00), and to pay the
costs.
The accused Jose Rimano is hereby sentenced in Criminal Case No. 3595 to suffer
the penalty of imprisonment for TWO (2) YEARS, FOUR MONTHS and ONE (1) DAY
of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY
of prision mayor as maximum, and to pay the victim Isaias Ibardalosa, Jr., actual
damage[s] in the amount of TWENTY-TWO THOUSAND, EIGHTY-EIGHT PESOS &
TWENTY-EIGHT CENTAVOS (P22, 088.28), and to pay the costs.
The accused Jose Rimano is hereby sentenced in Criminal Case No. 3578 to suffer
the penalty of imprisonment for TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY
of prision mayor as maximum, and to pay the costs.
SO ORDERED.29
On appeal, the Court of Appeals acquitted petitioner of frustrated homicide in Criminal
No. 3578, after finding that he acted in legitimate self-defense when he stabbed
Nelson Importado. His convictions in Criminal Case No. 3597 for homicide and in
Criminal Case No. 3595 for frustrated homicide were, however, affirmed with
modification. The decretal portion thereof states:

WHEREFORE, foregoing premises considered and pursuant to applicable laws and

jurisprudence on the matter and evidence on hand, the instant appeal is hereby partly
granted. The assailed judgment is hereby modified as follows:
In Criminal No. 3578, accused-appellant is hereby acquitted of the crime charged.
In Criminal Case No. 3595, accused-appellant Jose Rimanos prison term is reduced
to six (6) MONTHS ofarresto mayor as minimum to TWO (2) years, FOUR (4) months
and ONE (1) DAY of prision correccional as maximum.
In Criminal Case No. 3597, appellants prison term is reduced to TWO (2) years,
FOUR (4) MONTHS and ONE (1) DAY of prision correccional as minimum to EIGHT
(8) years and ONE (1) day of prision mayor as maximum.
All other aspects of the decision are AFFIRMED. No Costs.
SO ORDERED.30
Hence, the instant petition based on the following assignment of errors:
A.
FOR CRIMINAL CASE NO. 3597, THE COURT OF APPEALS COMMITTED A
PALPABLE ERROR AND GRAVE MISAPPREHENSION OF FACTS IN NOT
LIKEWISE ACQUITTING PETITIONER OF THE CHARGE OF HOMICIDE BECAUSE
CONTRARY TO ITS FINDING, PETITIONER EMPLOYED REASONABLE MEANS
TO REPEL THE UNPROVOKED ATTACK AND UNLAWFUL AGGRESSION OF
NESTOR IMPORTADO WHO WAS ARMED WITH A BLADED WEAPON.
B.
FOR CRIMINAL CASE NO. 3595, THE COURT OF APPEALS COMMITTED A
PALPABLE ERROR AND GRAVE MISAPPREHENSION OF FACTS IN NOT
LIKEWISE ACQUITTING PETITIONER OF THE CHARGE OF FRUSTRATED
HOMICIDE BECAUSE CONTRARY TO ITS FINDING, PETITIONER EMPLOYED
REASONABLE MEANS TO REPEL THE UNPROVOKED ATTACK OF ISAIAS
IBARDALOZA, JR. WHO JOINED THE UNRELENTING AND VICIOUS ATTACK
INITIATED BY THE IMPORTADO BROTHERS.
C.
ONLY ASSUMING ARGUENDO THAT PETITIONER MAY BE CREDITED WITH THE
PRIVILEGED MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE

FOR CRIMINAL CASE NO. 3597, THE COURT OF APPEALS COMMITTED A

PALPABLE ERROR IN NOT REDUCING AND/OR LOWERING THE PENALTY BY
TWO DEGREES PURSUANT TO THE HONORABLE COURTS RULING IN
TORRES VS. SANDIGANBAYAN, 143 SCRA 139, 145 [1986] WHICH IS
APPLICABLE TO PETITIONER.
D.
ONLY ASSUMING ARGUENDO THAT PETITIONER MAY BE CREDITED WITH THE
PRIVILEGED MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE
FOR CRIMINAL CASE NO. 3595, THE COURT OF APPEALS COMMITTED A
PALPABLE ERROR IN NOT REDUCING AND/OR LOWERING THE PENALTY BY
TWO DEGREES PURSUANT TO THE HONORABLE COURTS RULING IN
TORRES VS. SANDIGANBAYAN, 143 SCRA 139, 145 [1986] WHICH IS
APPLICABLE TO PETITIONER.31
When an accused pleads self-defense, he thereby admits authorship of the crime.
Consequently, the burden of proving his guilt, which lies upon the prosecution, is
shifted to him. He must prove by clear and convincing evidence the elements of selfdefense, to wit: (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel the unlawful aggression; and (3) lack of sufficient
provocation on the part of the person defending himself.32 Unlawful aggression is a
condition sine qua non for upholding the justifying circumstance of self-defense.
Unless the victim has committed unlawful aggression against the other, there can be
no self-defense, complete or incomplete, on the part of the latter. If there is nothing to
prevent or repel, the other two requisites of self-defense will have no basis.33
In the case at bar, we find no error in the findings of the Court of Appeals that unlawful
aggression existed and that the same came from the Importado brothers and Isaias
Ibardalosa, Jr. Evidence shows that Nelson Importado was the first to attack petitioner
with a knife and that the latter was able to get hold of said weapon which he used to
repel the unlawful aggression of Nelson, Nestor and Isaias, who attacked him one
after the other. The assaults were not simultaneous, but successive, enabling
petitioner to separately and effectively repel the aggression of his unarmed attackers.
The question, therefore, lies in the presence or absence of the second and third
requisites of self defense, i.e., the reasonable necessity of the means employed by
petitioner to protect his life and whether there was sufficient provocation on his part.
In Criminal Case No. 3597, for homicide, while the aggression came from Nestor
Importado, the second attacker, there was no necessity for petitioner to stab him 6
times, especially considering that the latter was unarmed. Moreover, the stab wound
at the back of the deceased which was delivered by petitioner after the former already
sustained wounds on his chest and abdomen cannot certainly be considered as

reasonably necessary. When Nestor turned his back, there was no more need to stab
him because the danger he posed had ceased.
As to the third requisite that the provocation must be sufficient, it should be
proportionate to the aggression and adequate to stir the aggressor to its
commission.34 To be entitled to self-defense, however, the one defending himself
must not have given cause for the aggression by his unjust conduct or by inciting or
provoking the aggressor.35
In the instant case, petitioners act of stabbing Nelson cannot be considered as
sufficient provocation for Nestor to avenge his brothers injuries. We note that in
Criminal Case No. 3578, for frustrated homicide, petitioner was acquitted by the Court
of Appeals for stabbing Nelson because he was found to have acted in legitimate selfdefense. Under the contemplation of law, while petitioners act may indeed stir Nestor
to commit violence, the former should still be credited with the benefit of the third
requisite because the cause he gave arose from a just act to protect his life.
In Criminal Case No. 3595, for frustrated homicide, we sustain the finding of the court
below that it was petitioner and not Nelson Importado, as claimed by the defense,
who stabbed Isaias Ibardalosa, Jr. This is supported by the testimony of Froilan
Sucro, whose declaration is entitled to full faith and credit inasmuch as he was not
shown to have been impelled by ill motive to perjure himself.36 It cannot be denied,
however, that the unlawful aggression came from Isaias who, after intervening
between Nestor and petitioner, wrestled with the latter. As previously stated, Isaias
pinned petitioner to the ground face up while holding petitioners shoulders. While in
this position, petitioner was able to free himself by delivering a single stabbing blow at
the back of Isaias. Under the circumstances, it is reasonable to conclude that
petitioner did not use unnecessary means to repel an ongoing attack. It would not be
proper and reasonable to require petitioner to flee or use a less deadly weapon or
defense, because in the situation in which he was placed, it was natural for him to use
the weapon he was holding to defend himself. In the natural order of things, following
the instinct of self preservation, he was compelled to resort to the available
defense.37 In emergencies of this kind, human nature does not act upon processes of
formal reason but in obedience to the instinct of self-preservation; and when it is
apparent that a person has reasonably acted upon this instinct, it is the duty of the
courts to sanction that act or to mitigate his liability.38
Anent the third requisite, we find that petitioner gave sufficient provocation for Isaias
Ibardalosa, Jr. to assault him. Contradistinguished to his act of stabbing Nelson
Importado, which was justified and hence cannot be considered as sufficient
provocation insofar as his brother, Nestor, is concerned, petitioners act of stabbing
Nestor 6 times can no longer be considered justified or a legitimate self-defense
because of the unreasonable necessity of the means he employed. Inflicting 5 stab
wounds at the frontal portion of Nestors body and another one at the back before the

latter fled can be considered as sufficient provocation to cause Nestors friend, Isaias
Ibardalosa, Jr., to intervene and thereafter wrestle with petitioner. Hence, self-defense
cannot successfully be raised to justify petitioners act of stabbing Isaias Ibardalosa,
Jr., because he gave the latter sufficient provocation to assault him. At the most, he
could be credited with the privileged mitigating circumstance of incomplete selfdefense.1wphi1
Under Article 6939 of the Revised Penal Code, in order to avail of the privileged
mitigating circumstance of incomplete self-defense which at the discretion of the
court, reduces the penalty by one or two degrees, than that prescribed by law,
appellant must prove the existence of a majority of the requisites for self-defense.
In the case at bar, a majority of the requisites of the justifying circumstance of selfdefense, including the indispensable requisite of unlawful aggression on the part of
the victims, are present in Criminal Cases Nos. 3597 and 3595. Petitioner, a public
elementary school teacher, was unsuspectingly walking along with his students
without the slightest inkling of an impending harm that would radically change the rest
of his life. While it is true that he may have over-reacted to the assault and in the
process provoked another attack, the fact remains that it was the unlawful aggression
of the victims which set into motion the series of events which brought upon
themselves the injuries complained of. Under the circumstances, we deem it proper to
modify the penalties imposed by the Court of Appeals by lowering them by two
degrees than that prescribed by law.40
Article 249 of the Revised Penal Code provides that the penalty for homicide
is reclusion temporal. Considering that the requisites of unlawful aggression and lack
of sufficient provocation on the part of petitioner are present in Criminal Case No.
3597, he is entitled to a penalty two degrees lower than reclusion temporal, that
is, prision correccional. There being no modifying circumstances attendant in the
present case, the proper impossible penalty is prision correccional in its medium
period.41 Applying the indeterminate sentence law, petitioner is entitled to an
indeterminate penalty the minimum of which shall be within the range of arresto
mayor, and the maximum of which shall be within the range of prision
correccional medium.
Pursuant to Article 5042 of the Revised Penal Code, the penalty for a frustrated crime
is one degree lower than that prescribed by law for the consummated felony; thus,
frustrated homicide is punishable by prision mayor. Since a majority of the requisites
of self defense unlawful aggression and reasonable necessity of the means
employed are attendant in Criminal Case No. 3595 for frustrated homicide,
petitioner is also entitled to a penalty two degrees lower.43 The imposable penalty on
petitioner would therefore be arresto mayor. The same shall be imposed in its
medium period as there are no attendant modifying circumstances.44 Since the

maximum term of imprisonment does not exceed one year, the Indeterminate
Sentence Law does not apply.45
As regards his civil liability in Criminal Case No. 3597 for homicide, petitioner, in
addition to the civil indemnity of P50,000.00, should be further ordered to pay the
heirs of the deceased Nestor Importado, moral damages in the amount of P50,000.00
and temperate damages of P25,000.00 in lieu of actual damages. As testified by
Merly Importado, the widow of the deceased, she was shocked and mentally tortured
by the death of her husband.46Hence, the award of moral damages, which current
jurisprudence set at P50,000.00, is proper.47 To justify an award of actual damages,
on the other hand, there must be competent proof of the actual amount of loss.
Credence can only be given to those that are supported by receipts and appear to
have been genuinely incurred in connection with the death, wake and burial of the
victim.48 Considering that the receipts presented by the prosecution do not show that
the expenses stated therein were really incurred in connection with the death and
burial of the victim, the claim for actual damages cannot be allowed. However, since it
cannot be denied that the victims heirs suffered pecuniary loss but the amount of
which cannot be proved with certainty, temperate damages in the amount of
P25,000.00 may be awarded.49
In Criminal Case No. 3595, for frustrated homicide the award of P22,888.28 as actual
damages is affirmed considering that it was supported by receipts.
WHEREFORE, in view of all the foregoing, the December 16, 2002 decision of the
Court of Appeals in CA-G.R. CR No. 17838 finding petitioner Jose Rimano guilty
beyond reasonable doubt of homicide in Criminal Case No. 3597, and of frustrated
homicide in Criminal Case No. 3595, is AFFIRMED with the following
MODIFICATIONS: In Criminal Case No. 3597, petitioner is sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day of arresto mayor, as
minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as
maximum. In addition to the civil indemnity of P50,000.00, petitioner is further ordered
to pay the heirs of the deceased Nestor Importado, the amount of P50,000.00 as
moral damages and P25,000.00 as temperate damages. In Criminal Case No. 3595,
petitioner is sentenced to suffer the penalty of 4 months of arresto mayorand to pay
the victim, Isaias Ibardalosa, Jr., the amount of P22,888.28 as actual damages.
Costs de oficio.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 139879

appellant prompting the latter to fire his M-16. But since the M-16 malfunctioned,
appellant grabbed the garand rifle of Artemio Tallong and shot the victim once more.
Immediately after the shooting, appellant escaped with Tallong and proceeded to
Suan, Pudtol, Apayao. Two days later, both surrendered to Governor Batara P. Laoat,
who advised them to surrender to the police.

May 8, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
GABRIEL ANNIBONG y INGGAO, appellant.
QUISUMBING, J.:
For automatic review is the decision1 of the Regional Trial Court of Apayao, Branch
26, in Criminal Case No. 9-98, convicting appellant Gabriel Annibong of murder and
sentencing him to death.

ARTEMIO TALLONG was presented by the defense to show unlawful aggression on

the part of the victim.4 As one of the CAFGU's on duty at the time of the incident, he
said he witnessed the incident from the time Cpl. Obngayan arrived at the
detachment until he was shot.
Tallong narrated that on February 13, 1998, around 2:00 P.M., Cpl. Obngayan arrived
at the Philippine Army detachment in Brgy. Doa Loreta, Pudtol, Apayao where he
was then the commanding officer.5 Still perspiring and thirsty from an operation in
Centro, Pudtol, Apayao, Cpl. Obngayan hurriedly proceeded to the camp's kitchen for
a drink. Incensed that all of the water containers were empty, Obngayan confronted
appellant whose duty it was to maintain the camp's kitchen. He gave appellant a jab
in the abdomen, then slowly walked away towards his bunker.

The information2 filed by the Provincial Prosecutor reads:

That on or about February 13, 1998 at around 2:00 o'clock P.M. at barangay
Doa Loreta, Pudtol, Apayao, within the jurisdiction of this Honorable Court,
the above-named accused armed with a long firearm, with intent to kill and
with the attendance of treachery and evident premeditation did then and
there willfully, unlawfully and feloneously (sic) attack, assault and shot one
Cpl. Fidel Obngayan,3 inflicting upon the latter gun shot wounds which
caused death.
CONTRARY TO LAW.
When arraigned, appellant pleaded not guilty to the charge. Although he admitted
killing the victim, appellant invoked self-defense. Thus, the order of the trial was
reversed, with the defense presenting its evidence first.
For the defense, appellant Gabriel Annibong and lone eyewitness Artemio Tallong, a
CAFGU member assigned at the Army Camp Detachment at Doa Loreta, Pudtol,
Apayao, testified. Tallong was also adopted as a prosecution witness.
Appellant, a kitchen aide serving at the camp, testified that on February 13, 1998,
while he and Tallong were in their camp at Barangay Doa Loreta, Pudtol, Apayao,
the victim arrived coming from Centro, Pudtol, Apayao. When Obngayan went to the
kitchen to get a drink, he was irritated to discover the water container empty. Hopping
mad, Obngayan rushed to appellant and boxed him three times in the stomach and
uttered: "Vulva of your mother, it is better that I will kill you." Obngayan proceeded to
his bunker, got his M-16 rifle and aimed it at appellant, prompting the latter to shoot
the victim once. After the first shot, the victim managed to stand and aim his gun at

Infuriated, appellant without warning, picked up his M-14 armalite rifle and strafed the
former on the back. Obngayan sprawled bloodied on the ground. Shortly after,
appellant took the garand rifle of Artemio Tallong, and unleashed another barrage of
gunshots. Obngayan died instantaneously with his brain splattered and an eye fallen
on the ground.
The prosecutor adopted the testimony of defense witness Artemio Tallong for
purposes of the prosecution. Other prosecution witnesses were Dr. Dan Redel
Edroso, the Municipal Health Officer of Pudtol, Apayao, who conducted a postmortem examination on the victim's body; Lt. Walfrido Felix Querubin of the Philippine
Army; Cpl. Robert Salarzon, from the Philippine Army assigned at Nararragan,
Ballesteros, Cagayan; Capt. Efren Paulino, from the Philippine Army assigned at the
Headquarters Service Battalion, Camp Upi, Gamu, Isabela; and Mrs. Agnes
Obngayan, the victim's widow.
DR. DAN REDEL EDROSO declared that on February 14, 1998, he conducted an
autopsy6 on the victim's remains which revealed nine gunshot wounds. From his
examination of the wounds, Dr. Edroso opined that two were inflicted from the back of
the victim while five were inflicted while the victim was already lying down with his
face up.7 He said, the multiple shots on the victim's head caused his immediate death.
LT. WALFRIDO FELIX QUERUBIN, the Platoon Leader of the Headquarters
Company of the Philippine Army in Capagaypayan, Luna, Apayao, testified that he
arrived at the scene of the crime after Obngayan was slain.8According to him, he
found the victim lying up, his left eye fallen and brains scattered on the
ground.9 Shortly after his arrival, Lt. Querubin inventoried the firearms issued to the
detachment and found the firearms all intact in the cabinet except an M-14 and a
garand rifle10 - the weapons used by appellant.

CPL. ROBERT SALARZON and CAPT. EFREN PAULINO from the Philippine Army
corroborated the testimony of Lt. Querubin as to the position of the victim's body
when they arrived at the scene of the crime for investigation.11
MRS. AGNES OBNGAYAN testified that her husband was the sole breadwinner of the
family and was earning P9,000 monthly, more or less.12 According to her, Cpl.
Obngayan was 35 years old when he died, leaving her with their two children. As a
result of Fidel's death, the Obngayans incurred expenses amounting to thirty
thousand pesos more or less.13
On June 15, 1999, the trial court rendered its decision finding appellant guilty beyond
reasonable doubt of the murder of his commander and sentencing him as follows:
WHEREFORE, foregoing all considered, and finding the accused GABRIEL
ANNIBONG y INGAO (sic) guilty beyond reasonable doubt for the crime of
Murder committed under Article 248 paragraph one (1) of the Revised Penal
Code of the Philippines as charged in the information with the special
aggravating circumstance of with insult or in disregard of the respect due the
offended party on account of his rank under Article 14 paragraph 3 of the
same Penal Code, this Court hereby sentences said accused Gabriel
Annibong y Ingao to suffer the Supreme penalty of DEATH.
Accused is further ordered to indemnify the surviving spouse of the victim,
Cpl. Fidel Obngayan, in the amount of FIFTY THOUSAND PESOS
(P50,000.00), for such death, in addition to the payment of TWENTY
THOUSAND PESOS (P20,000.00) for moral damages, TEN THOUSAND
PESOS (P10,000.00) as and for exemplary damages, TWENTY FIVE
THOUSAND PESOS (P25,000.00) for actual expenses and FIVE
HUNDRED THOUSAND PESOS (P500,000.00) for the lost earnings of the
victim and the costs of the suit.
The BJMP, Luna, Apayao is ordered to immediately shift the person of the
accused to the Bureau of Prisons, Muntinlupa City for detention thereat to
await the automatic review of this decision.
SO ORDERED.14
By reason of the death sentence imposed upon appellant, the decision is now before
us for automatic review.
In his brief, appellant ascribes to the trial court the following errors:
I. IN FINDING AND HOLDING THAT THERE WERE NO UNLAWFUL
AGGRESSION ON THE PART OF THE VICTIM CORPORAL FIDEL
OBNGAYAN AGAINST THE ACCUSED.
II. IN FINDING THAT THERE WAS THE QUALIFYING CIRCUMSTANCE OF
TREACHERY WHICH WOULD QUALIFY THE CRIME TO MURDER.

III. IN FINDING THAT THE AGGRAVATING CIRCUMSTANCE OF INSULT

OR DISREGARD TO RANK IS PRESENT IN THE CASE AT BAR.
IV. IN FINDING THE LONE EYEWITNESS ARTEMIO TALLONG AS
CREDIBLE AND TRUSTWORTHY WITNESS TOGETHER WITH HIS ORAL
TESTIMONY.
V. IN NOT FINDING THAT THE ACCUSED ACTED IN SELF-DEFENSE
WHEN HE KILLED THE VICTIM.15
We shall now consider the following pertinent issues: (1) whether there was unlawful
aggression on the part of Cpl. Obngayan; (2) whether the killing was attended by the
qualifying circumstances of treachery and evident premeditation; and (3) whether the
imposition of the death penalty on appellant is appropriate.
Appellant admits shooting Cpl. Obngayan. But he claims that he did so merely to
repel the victim's unlawful aggression. He contends that since the victim was the
actual aggressor, there can be no treachery. He adds that he had not intended to
insult or disregard the rank of the victim. He insists that Artemio Tallong was a
turncoat whose testimony should, therefore, be considered unworthy of credit.
In his Brief, appellant offers no substantial reason, however, why we should overturn
the trial court's appreciation of the evidence presented against him. Instead, he
merely reiterates in this appeal his claim of self-defense. In cases where the accused
admits committing the crime but invokes self-defense, the basic rule that the burden
of proving the guilt of the accused lies on the prosecution is reversed, and the burden
of proof is shifted to the accused to prove the elements of his defense.16 In our view,
the defense has not discharged its burden successfully.
The elements of self-defense are (1) that the victim has committed unlawful
aggression amounting to actual or imminent threat to the life and limb of the person
claiming self-defense; (2) that there is reasonable necessity in the means employed
to prevent or repel the unlawful aggression; and (3) that there is lack of sufficient
provocation on the part of the person claiming self-defense or, at least, that any
provocation executed by the person claiming self-defense be not the proximate and
immediate cause of the victim's aggression.17
Granting that the initial act of aggression came from the victim when he cursed and
then punched appellant three times in the stomach, such aggression did not amount
to actual or imminent threat to appellant's life as the victim already ceased and
desisted thereafter. As defense witness Tallong testified, the victim was already
walking slowly away towards his bunker18 at the time appellant shot him incessantly.
At that point, it was no longer necessary for appellant to shoot Obngayan in order to
protect himself. As held in People v. More,19 "In legitimate self-defense the aggression
must still be existing or continuing when the person making the defense attacks or
injures the aggressor. Thus when the unlawful aggression ceases to exist, the one
making the defense has no more right to kill the former aggressor."

Appellant's act of shooting the unarmed victim first with an M-16 and a garand rifle,
successively, belies his claim that he acted in self-preservation and indicates nothing
more than the desire to kill. Thus, Tallong testified:
Q:
You said that Gabriel Annibong used the M-14 rifle in shooting Fidel
Ubngayan, how come that the garand was also used by Gabriel Annibong in
shooting Fidel Ubngayan?
A:
He used first the M-14 rifle in shooting Fidel Ubngayan but when he
was not satisfied he took the garand and used it again in shooting
Ubngayan.20
Tallong's recital of the events, in our view, is more in accord with the natural course of
things and ordinary human experience. Further, his testimony is validated by the
evidence on record on all material points. The post-mortem examination of Dr.
Edroso, while negating appellant's tale that he shot the victim only twice, confirmed
Tallong's story that there were more shots fired. Tallong's narration, as to the position
of the victim when shot, tallied with the doctor's findings that two of the gunshot
wounds were inflicted while the assailant was behind the victim and that the other five
were dealt while the victim was lying face up on the ground.21 His account that the
victim was unarmed matched with Lt. Querubin's testimony that all of the weapons
issued to the detachment were found intact except the M-16 and the garand rifle used
in perpetrating the crime.22
The credibility of prosecution witness Artemio Tallong is not in any way lessened,
much less impaired, by the motives imputed to them by appellant. Appellant claims
that Tallong was a defector who fled the scene with him immediately after the
incident, and surfaced with appellant only two days after the shooting. Appellant's
contention is nothing more than a desperate attempt to discredit said witness.
Different people react differently to a given type of situation and there is no standard
form of behavioral response when one is confronted with a startling, strange or
frightful experience. Considering that appellant himself admitted that Tallong had no
participation in the murder, the fact that he fled the scene with appellant should not by
itself be taken against him. This Court recognizes that the initial reticence of
witnesses to volunteer information about a criminal case and their aversion to be
involved in criminal investigations due to fear of reprisal is not uncommon.23
The element of treachery attended the slaying of Obngayan because (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.24 In this case, the victim was totally unprepared for the volley of gunshots by
appellant. The victim unarmed, while appellant was carrying a weapon.25 When shot,
the victim was already retiring, as he was then slowly turning away towards his
bunker. As he was already walking away towards his bunker, he was clueless of
appellant's sudden attack. Such unexpected and sudden attack under circumstances
that render the victim unable and unprepared to defend himself constitutes alevosia.26
From the circumstances of this case, we are persuaded that appellant consciously
and purposely adopted the means of attack to insure the execution of the crime

without risk to himself. Thus, the trial court did not err when it ruled that treachery
qualified the killing to murder.
As for evident premeditation, we agree that its elements were not clearly established
by the prosecution. To prove this attendant circumstance, evidence must show: (1)
the time the offender determined to commit the crime; (2) an act indicating that the
offender had clung to his determination; and (3) sufficient lapse of time between the
determination to commit the crime and the execution thereof to allow the offender to
reflect upon the consequences of his act.27 There is no clear proof as to when the
accused hatched the murderous plan, and the interval of time therefrom to its
commission.
But we differ from the trial court's finding and conclusion with regard to the
aggravating circumstance of disregard of rank as well as respect due to the offended
party. Although the victim was the immediate superior officer of the appellant, being
his Detachment Commander at the time of the commission of the crime,28 this fact
was not alleged in the information. Hence, this circumstance cannot be appreciated to
increase appellant's liability following Section 8 of Rule 110.29
Appellant's surrender to police authorities after the shooting should be credited in his
favor as a mitigating circumstance, pursuant to Article 13 (7) of the Revised Penal
Code.30 There is voluntary surrender if three conditions are satisfied: (1) the offender
has not been arrested; (2) he surrendered himself to a person in authority or to an
agent of a person in authority; and (3) his surrender was voluntary. There is no
dispute that appellant voluntarily surrendered to the governor31 a person in authority,
then to the police, before he was arrested. In People v. Antonio,32 the accused's
surrender to the mayor was considered as a mitigating circumstance. In the same
way, appellant's voluntary surrender to the governor should be considered in his
favor. It is immaterial that appellant did not immediately surrender to the authorities,
but did so only after the lapse of two days. In People v. Bautista,33 the voluntary
surrender of the accused to a police authority four (4) days after the commission of
the crime was considered attenuating. Finally, even if not raised on appeal, since an
appeal opens the whole case for review, we could take into account this mitigating
circumstance favorable to appellant.
The penalty for murder is reclusion perpetua to death, both indivisible penalties.
Conformably with Art. 63, par. 3, of the Revised Penal Code, when the commission of
the act is attended by one mitigating and there is no aggravating circumstance, the
lesser penalty shall be imposed. Considering that the crime was not attended by the
alleged circumstance of evident premeditation, the undisputed presence of the
mitigating circumstance of voluntary surrender entitles appellant to the imposition of
the minimum penalty for murder. Thus, the proper imposable penalty is reclusion
perpetua, being the lesser penalty.34
As to the award of damages, the trial court offered no explanation for the award of
P500,000 as lost earnings. Cpl. Obngayan was 35 years old at the time of his death.
His wife and superiors testified that he was earning P9,000 a month35 during his
lifetime or an annual income of P108,000. Using the accepted formula, we fix the
indemnity for loss of earning capacity36 of Cpl. Obngayan at P1,620,000, thus:

Net earning capacity

2 x (80-35) x [P108,000- (P108,000)]

= 3

2 x (45) x P54,000
= 3

= 35.33 x P54,000

= P1,620,000

We delete the twenty five thousand peso-award for actual expenses in the absence of
requisite proof, 37 but in lieu thereof, P10,000 is awarded as nominal damages. 38 As
for moral damages, pursuant to current jurisprudence, the amount should be
increased to P50,000. 39 The award of P50,000 as death indemnity to the heirs of the
deceased is retained as well as the award of P20,000 as exemplary damages, which
we find to be sufficient and justified by the presence of the qualifying circumstance of
treachery.
WHEREFORE, the decision of the Regional Trial Court, Apayao, Branch 26, in
Criminal Case No. 9-98, is AFFIRMED with MODIFICATION. Appellant Gabriel
Annibong y Inggao is declared guilty of murder, but his sentence is hereby reduced
to reclusion perpetua. Further, he is ordered to pay the heirs of the victim the amount
of P50,000.00 as civil indemnity, P1,620,000.00 for lost earnings, P10,000.00 as
nominal damages, P50,000.00 as moral damages, and P20,000 as exemplary
damages. Costs de oficio.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 135981

January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

"WHEREFORE, after all the foregoing being duly considered, the Court finds the
accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of
Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec.
5, RA No. 7659, and after finding treachery as a generic aggravating circumstance
and none of mitigating circumstance, hereby sentences the accused with the penalty
of DEATH.
"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of
fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum
of fifty thousand pesos (P50,000.00), Philippine currency as moral damages."2
The Information3 charged appellant with parricide as follows:

DECISION

PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -the "battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the
proven facts, however, she is not entitled to complete exoneration because there was no
unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at
the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that
she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid
emotional and mental state, which overcame her reason and impelled her to vindicate her life
and her unborn child's.
Considering the presence of these two mitigating circumstances arising from BWS, as well as
the benefits of the Indeterminate Sentence Law, she may now apply for and be released from
custody on parole, because she has already served the minimum period of her penalty while
under detention during the pendency of this case.

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality
of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit
and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly
weapon, which the accused had provided herself for the purpose, [causing] the
following wounds, to wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.
'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes
protruding from its sockets and tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the
head, resulting [in] laceration of the brain, spontaneous rupture of the blood
vessels on the posterior surface of the brain, laceration of the dura and
meningeal vessels producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."4
With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on
March 3, 1997.6 In due course, she was tried for and convicted of parricide.

The Case

The Facts

For automatic review before this Court is the September 25, 1998 Decision1 of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa
guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in
this wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc
City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For
a time, Ben's younger brother, Alex, and his wife lived with them too. Sometime in
1995, however, appellant and Ben rented from Steban Matiga a house at Barangay
Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben
and Earl Pierre.
"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving
their salary. They each had two (2) bottles of beer before heading home. Arturo would
pass Ben's house before reaching his. When they arrived at the house of Ben, he
found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his
house, while Arturo went to a store across it, waiting until 9:00 in the evening for
the masiao runner to place a bet. Arturo did not see appellant arrive but on his way
home passing the side of the Genosas' rented house, he heard her say 'I won't
hesitate to kill you' to which Ben replied 'Why kill me when I am innocent?' That was
the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas'
rented house appeared uninhabited and was always closed.
"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and
neighbor living about fifty (50) meters from her house, to look after her pig because
she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to
sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no
money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus
going to Ormoc when he saw appellant going out of their house with her two kids in
tow, each one carrying a bag, locking the gate and taking her children to the waiting
area where he was. Joseph lived about fifty (50) meters behind the Genosas' rented
house. Joseph, appellant and her children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not want to talk to him.
"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to
find out the cause of the stench but the house was locked from the inside. Since he
did not have a duplicate key with him, Steban destroyed the gate padlock with a
borrowed steel saw. He was able to get inside through the kitchen door but only after
destroying a window to reach a hook that locked it. Alone, Steban went inside the
unlocked bedroom where the offensive smell was coming from. There, he saw the
lifeless body of Ben lying on his side on the bed covered with a blanket. He was only
in his briefs with injuries at the back of his head. Seeing this, Steban went out of the
house and sent word to the mother of Ben about his son's misfortune. Later that day,
Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son.
"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at
the police station at Isabel, Leyte, received a report regarding the foul smell at the
Genosas' rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina
Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where
they found the dead body of Ben lying on his side wrapped with a bedsheet. There
was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one
corner at the side of anaparador a metal pipe about two (2) meters from where Ben
was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2) inches. It had an open end without a stop
valve with a red stain at one end. The bedroom was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be
taken outside at the back of the house before the postmortem examination was
conducted by Dr. Cerillo in the presence of the police. A municipal health officer at
Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been
dead for two to three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information for parricide
later filed against appellant. She concluded that the cause of Ben's death was
'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a
depressed fracture of the occipital [bone].'
"Appellant admitted killing Ben. She testified that going home after work on
November 15, 1995, she got worried that her husband who was not home yet might
have gone gambling since it was a payday. With her cousin Ecel Arao, appellant
went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find
him there. They found Ben drunk upon their return at the Genosas' house. Ecel went
home despite appellant's request for her to sleep in their house.
"Then, Ben purportedly nagged appellant for following him, even challenging her to a
fight. She allegedly ignored him and instead attended to their children who were doing
their homework. Apparently disappointed with her reaction, Ben switched off the light
and, with the use of a chopping knife, cut the television antenna or wire to keep her
from watching television. According to appellant, Ben was about to attack her so she
ran to the bedroom, but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed clothes upon
his return home, Ben allegedly flew into a rage, dragged appellant outside of the
bedroom towards a drawer holding her by the neck, and told her 'You might as well be
killed so nobody would nag me.' Appellant testified that she was aware that there was
a gun inside the drawer but since Ben did not have the key to it, he got a three-inch
long blade cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe,
causing him to drop the blade and his wallet. Appellant then 'smashed' Ben at his
nape with the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.
"Appellant, however, insisted that she ended the life of her husband by shooting him.
She supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die
on the spot, though, but in the bedroom."7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to
her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree
of Bachelor of Science in Business Administration, and was working, at the time of her
husband's death, as a Secretary to the Port Managers in Ormoc City. The couple had
three (3) children: John Marben, Earl Pierre and Marie Bianca.
"2. Marivic and Ben had known each other since elementary school; they were
neighbors in Bilwang; they were classmates; and they were third degree cousins. Both
sets of parents were against their relationship, but Ben was persistent and tried to
stop other suitors from courting her. Their closeness developed as he was her
constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with
Ben's brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben
'lived happily'. But apparently, soon thereafter, the couple would quarrel often and their
fights would become violent.
"4. Ben's brother, Alex, testified for the prosecution that he could not remember when
Ben and Marivic married. He said that when Ben and Marivic quarreled, generally
when Ben would come home drunk, Marivic would inflict injuries on him. He said that
in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted
for help as his left hand was covered with blood. Marivic left the house but after a
week, she returned apparently having asked for Ben's forgiveness. In another incident
in May 22, 1994, early morning, Alex and his father apparently rushed to Ben's aid
again and saw blood from Ben's forehead and Marivic holding an empty bottle. Ben
and Marivic reconciled after Marivic had apparently again asked for Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and
Marivic married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as
the marriage went along, Marivic became 'already very demanding. Mrs. Iluminada
Genosa said that after the birth of Marivic's two sons, there were 'three (3)
misunderstandings.' The first was when Marivic stabbed Ben with a table knife through
his left arm; the second incident was on November 15, 1994, when Marivic struck
Ben on the forehead 'using a sharp instrument until the eye was also affected. It was
wounded and also the ear' and her husband went to Ben to help; and the third incident
was in 1995 when the couple had already transferred to the house in Bilwang and she
saw that Ben's hand was plastered as 'the bone cracked.'
"Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for
three (3) hours, after which they went to 'Uniloks' and drank beer allegedly only two
(2) bottles each. After drinking they bought barbeque and went to the Genosa
residence. Marivic was not there. He stayed a while talking with Ben, after which he
went across the road to wait 'for the runner and the usher of the masiao game
because during that time, the hearing on masiao numbers was rampant. I was waiting
for the ushers and runners so that I can place my bet.' On his way home at about 9:00
in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside
their house was one 'Fredo' who is used by Ben to feed his fighting cocks. Basobas'
testimony on the root of the quarrel, conveniently overheard by him was Marivic
saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.
"He did not hear them quarreling while he was across the road from the Genosa
residence. Basobas admitted that he and Ben were always at the cockpits every
Saturday and Sunday. He claims that he once told Ben 'before when he was stricken
with a bottle by Marivic Genosa' that he should leave her and that Ben would always
take her back after she would leave him 'so many times'.
"Basobas could not remember when Marivic had hit Ben, but it was a long time that
they had been quarreling. He said Ben 'even had a wound' on the right forehead. He
had known the couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and
was a habitual drinker. She said he provoked her, he would slap her, sometimes he
would pin her down on the bed, and sometimes beat her.
"These incidents happened several times and she would often run home to her
parents, but Ben would follow her and seek her out, promising to change and would
ask for her forgiveness. She said after she would be beaten, she would seek medical
help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the
injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or
quarrel with her every time he was drunk, at least three times a week.
"7. In her defense, witnesses who were not so closely related to Marivic, testified as to
the abuse and violence she received at the hands of Ben.
'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified
that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic
was shouting for help and through the open jalousies, he saw the spouses 'grappling
with each other'. Ben had Marivic in a choke hold. He did not do anything, but had
come voluntarily to testify. (Please note this was the same night as that testified to by
Arturo Busabos.8)
'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos,
testified that he heard his neighbor Marivic shouting on the night of November 15,
1995. He peeped through the window of his hut which is located beside the Genosa
house and saw 'the spouses grappling with each other then Ben Genosa was holding
with his both hands the neck of the accused, Marivic Genosa'. He said after a while,
Marivic was able to extricate he[r]self and enter the room of the children. After that, he
went back to work as he was to go fishing that evening. He returned at 8:00 the next
morning. (Again, please note that this was the same night as that testified to by Arturo
Basobas).
'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living
in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is
his niece and he knew them to be living together for 13 or 14 years. He said the
couple was always quarreling. Marivic confided in him that Ben would pawn items and
then would use the money to gamble. One time, he went to their house and they were
quarreling. Ben was so angry, but would be pacified 'if somebody would come.' He
testified that while Ben was alive 'he used to gamble and when he became drunk, he
would go to our house and he will say, 'Teody' because that was what he used to call
me, 'mokimas ta,' which means 'let's go and look for a whore.' Mr. Sarabia further
testified that Ben 'would box his wife and I would see bruises and one time she ran to
me, I noticed a wound (the witness pointed to his right breast) as according to her a
knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had been
injured too. He said he voluntarily testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that
in the afternoon of November 15, 1995, Marivic went to her house and asked her help
to look for Ben. They searched in the market place, several taverns and some other
places, but could not find him. She accompanied Marivic home. Marivic wanted her to
sleep with her in the Genosa house 'because she might be battered by her husband.'
When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that
'her husband was already there and was drunk.' Miss Arano knew he was drunk
'because of his staggering walking and I can also detect his face.' Marivic entered the
house and she heard them quarrel noisily. (Again, please note that this is the same
night as that testified to by Arturo Basobas) Miss Arano testified that this was not the

first time Marivic had asked her to sleep in the house as Marivic would be afraid every
time her husband would come home drunk. At one time when she did sleep over, she
was awakened at 10:00 in the evening when Ben arrived because the couple 'were
very noisy in the sala and I had heard something was broken like a vase.' She said
Marivic ran into her room and they locked the door. When Ben couldn't get in he got a
chair and a knife and 'showed us the knife through the window grill and he scared us.'
She said that Marivic shouted for help, but no one came. On cross-examination, she
said that when she left Marivic's house on November 15, 1995, the couple were still
quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November
9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These
injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing and considered him an expert
witness.'
xxx

xxx

xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on
twenty-three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD
Chart of Marivic at the Philphos Clinic which reflected all the consultations made by
Marivic and the six (6) incidents of physical injuries reportedwas marked as Exhibit '3.'

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

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say
whether the injuries were directly related to the crime committed. He said it is only a
psychiatrist who is qualified to examine the psychological make-up of the patient,
'whether she is capable of committing a crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided,
testified that about two (2) months before Ben died, Marivic went to his office past 8:00
in the evening. She sought his help to settle or confront the Genosa couple who were
experiencing 'family troubles'. He told Marivic to return in the morning, but he did not
hear from her again and assumed 'that they might have settled with each other or they
might have forgiven with each other.'
xxx

xxx

xxx

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

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the
skeletal area of the head' which she described as a 'fracture'. And that based on her
examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as
to what caused his death.
"Dra. Cerillo was not cross-examined by defense counsel.
"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged
her with the crime of PARRICIDE committed 'with intent to kill, with treachery and
evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and
wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which
caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and
23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998,
and 5 and 6 August 1998.
"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date,
the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City,
rendered a JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime
of parricide, and further found treachery as an aggravating circumstance, thus
sentencing her to the ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon automatic review and, under
date of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a
Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2)

drafts of Appellant's Briefs he had prepared for Marivic which, for reasons of her own,
were not conformed to by her.
"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the
entry of appearance of undersigned counsel.
"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20
January 2000, to the Chief Justice, coursing the same through Atty. Teresita G.
Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she
submitted her 'Brief without counsels' to the Court.
"This letter was stamp-received by the Honorable Court on 4 February 2000.
"16. In the meantime, under date of 17 February 2000, and stamp-received by the
Honorable Court on 19 February 2000, undersigned counsel filed an URGENT
OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben
Genosa and the re-examination of the cause of his death; allow the examination of
Marivic Genosa by qualified psychologists and psychiatrists to determine her state of
mind at the time she killed her husband; and finally, to allow a partial re-opening of the
case a quo to take the testimony of said psychologists and psychiatrists.
"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then
the only qualified forensic pathologist in the country, who opined that the description of
the death wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to
a gunshot wound than a beating with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly
granted Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial
court for the reception of expert psychological and/or psychiatric opinion on the
'battered woman syndrome' plea, within ninety (90) days from notice, and, thereafter
to forthwith report to this Court the proceedings taken, together with the copies of the
TSN and relevant documentary evidence, if any, submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the
Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done
at the Penal Institution in 1999, but that the clinical interviews and psychological
assessment were done at her clinic.
"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years
with her own private clinic and connected presently to the De La Salle University as a
professor. Before this, she was the Head of the Psychology Department of the
Assumption College; a member of the faculty of Psychology at the Ateneo de Manila
University and St. Joseph's College; and was the counseling psychologist of the
National Defense College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and
a PhD from the U.P. She was the past president of the Psychological Association of
the Philippines and is a member of the American Psychological Association. She is the
secretary of the International Council of Psychologists from about 68 countries; a
member of the Forensic Psychology Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with the Philippine Judicial
Academy, recently lecturing on the socio-demographic and psychological profile of

families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled
'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The
Genosa case is the first time she has testified as an expert on battered women as this
is the first case of that nature.
"Dra. Dayan testified that for the research she conducted, on the socio-demographic
and psychological profile of families involved in domestic violence, and nullity cases,
she looked at about 500 cases over a period of ten (10) years and discovered that
'there are lots of variables that cause all of this marital conflicts, from domestic
violence to infidelity, to psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse and also
sexual abuse.'
xxx

xxx

xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low
opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x
they usually think very lowly of themselves and so when the violence would happen,
they usually think that they provoke it, that they were the one who precipitated the
violence, they provoke their spouse to be physically, verbally and even sexually
abusive to them.' Dra. Dayan said that usually a battered x x x comes from a
dysfunctional family or from 'broken homes.'
"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low
opinion of himself. But then emerges to have superiority complex and it comes out as
being very arrogant, very hostile, very aggressive and very angry. They also had (sic)
a very low tolerance for frustrations. A lot of times they are involved in vices like
gambling, drinking and drugs. And they become violent.' The batterer also usually
comes from a dysfunctional family which over-pampers them and makes them feel
entitled to do anything. Also, they see often how their parents abused each other so
'there is a lot of modeling of aggression in the family.'
"Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked the
violence, the cycle itself which makes her hope her husband will change, the belief in
her obligations to keep the family intact at all costs for the sake of the children.
xxx

xxx

xxx

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

xxx

xxx

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

xxx

xxx

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

xxx

xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed
away, appeared and testified before RTC-Branch 35, Ormoc City.
"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association.
He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private
practice, he was connected with the Veterans Memorial Medical Centre where he
gained his training on psychiatry and neurology. After that, he was called to active duty
in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for
twenty six (26) years. Prior to his retirement from government service, he obtained the
rank of Brigadier General. He obtained his medical degree from the University of
Santo Tomas. He was also a member of the World Association of Military Surgeons;
the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine
Association of Military Surgeons.
"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine
Military Academy from the Period 1954 1978' which was presented twice in
international congresses. He also authored 'The Mental Health of the Armed Forces of
the Philippines 2000', which was likewise published internationally and locally. He had
a medical textbook published on the use of Prasepam on a Parke-Davis grant; was
the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the
use of the drug Zopiclom in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind
and neurology deals with the ailment of the brain and spinal cord enlarged.
Psychology, on the other hand, is a bachelor degree and a doctorate degree; while
one has to finish medicine to become a specialist in psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had
already encountered a suit involving violent family relations, and testified in a case in
1964. In the Armed Forces of the Philippines, violent family disputes abound, and he
has seen probably ten to twenty thousand cases. In those days, the primordial
intention of therapy was reconciliation. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office in Quezon City
under Atty. Nenita Deproza.
"As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal abuse,
battering and boxing a woman even to an unconscious state such that the woman is

sometimes confined. The affliction of Post-Traumatic Stress Disorder 'depends on the

vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the psychological stamina
and physiologic constitutional stamina of the victim is stronger, 'it will take more
repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very
dangerous.'
"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety
neurosis or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'
xxx

xxx

xxx

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

xxx

xxx

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

xxx

xxx

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

xxx

xxx

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

xxx

xxx

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

xxx

xxx

xxx

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

xxx

xxx

"20. No rebuttal evidence or testimony was presented by either the private or the
public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the
records of the partially re-opened trial a quo were elevated."9
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave credence to the
prosecution evidence that appellant had killed the deceased while he was in bed sleeping.
Further, the trial court appreciated the generic aggravating circumstance of treachery, because
Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when
Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for automatic
review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow
(1) the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the
examination of appellant by qualified psychologists and psychiatrists to determine her state of
mind at the time she had killed her spouse; and (3) the inclusion of the said experts' reports in
the records of the case for purposes of the automatic review or, in the alternative, a partial
reopening of the case for the lower court to admit the experts' testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report
thereafter to this Court the proceedings taken as well as to submit copies of the TSN and
additional evidence, if any.
Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two
clinical psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on
domestic violence. Their testimonies, along with their documentary evidence, were then
presented to and admitted by the lower court before finally being submitted to this Court to form
part of the records of the case.12
The Issues
Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without
reflecting on the evidence adduced as to self-defense.
"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were
legally married and that she was therefore liable for parricide.
"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.
"4. The trial court gravely erred in ignoring and disregarding evidence adduced from
impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a
womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa
was a battered husband.
"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.
"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of
her unborn child.
"7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.
"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her
to the ultimate penalty of death."13
In the main, the following are the essential legal issues: (1) whether appellant acted in selfdefense and in defense of her fetus; and (2) whether treachery attended the killing of Ben
Genosa.
The Court's Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if not collateral to the
resolution of the principal issues. As consistently held by this Court, the findings of the trial court
on the credibility of witnesses and their testimonies are entitled to a high degree of respect and
will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused
his discretion or overlooked, misunderstood or misapplied material facts or circumstances of
weight and substance that could affect the outcome of the case.14
In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the
case. In any event, we will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision,

Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the
defense witnesses and -- on the basis of those and of the documentary evidence on record -made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the
testimony and the self-defense theory of the accused. While she, or even this Court, may not
agree with the trial judge's conclusions, we cannot peremptorily conclude, absent substantial
evidence, that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an "obviously hasty" manner.
The Information had been filed with the lower court on November 14, 1996. Thereafter, trial
began and at least 13 hearings were held for over a year. It took the trial judge about two
months from the conclusion of trial to promulgate his judgment. That he conducted the trial and
resolved the case with dispatch should not be taken against him, much less used to condemn
him for being unduly hasty. If at all, the dispatch with which he handled the case should be
lauded. In any case, we find his actions in substantial compliance with his constitutional
obligation.15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v.
Malabago,16 this Court held:
"The key element in parricide is the relationship of the offender with the victim. In the
case of parricide of a spouse, the best proof of the relationship between the accused
and the deceased is the marriage certificate. In the absence of a marriage certificate,
however, oral evidence of the fact of marriage may be considered by the trial court if
such proof is not objected to."
Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic.17 The defense raised no
objection to these testimonies. Moreover, during her direct examination, appellant herself made
a judicial admission of her marriage to Ben.18Axiomatic is the rule that a judicial admission is
conclusive upon the party making it, except only when there is a showing that (1) the admission
was made through a palpable mistake, or (2) no admission was in fact made.19Other than merely
attacking the non-presentation of the marriage contract, the defense offered no proof that the
admission made by appellant in court as to the fact of her marriage to the deceased was made
through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of Ben's death -whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court
elucidated in its September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted
the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting
him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial,
to determine which of said acts actually caused the victim's death." Determining which of these
admitted acts caused the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant
had not raised the novel defense of "battered woman syndrome," for which such evidence may
have been relevant. Her theory of self-defense was then the crucial issue before the trial court.
As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence
ostensibly appear inconsistent with the surrounding facts that led to the death of the victim.
Hence, his personal character, especially his past behavior, did not constitute vital evidence at
the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellant's children.
As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the

direction and control of the public prosecutor, in whom lies the discretion to determine which
witnesses and evidence are necessary to present.20As the former further points out, neither the
trial court nor the prosecution prevented appellant from presenting her children as witnesses.
Thus, she cannot now fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila
and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to
save the life of her unborn child. Any reversible error as to the trial court's appreciation of these
circumstances has little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her
to prove any claimed justifying circumstance by clear and convincing evidence.21 Well-settled is
the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person)
shifts the burden of proof from the prosecution to the defense.22
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered woman syndrome.
While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions
as a form of self-defense or, at the least, incomplete self-defense.23 By appreciating evidence
that a victim or defendant is afflicted with the syndrome, foreign courts convey their
"understanding of the justifiably fearful state of mind of a person who has been cyclically abused
and controlled over a period of time."24
A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants
her to do without concern for her rights. Battered women include wives or women in any form of
intimate relationship with men. Furthermore, in order to be classified as a battered woman, the
couple must go through the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and she remains in the
situation, she is defined as a battered woman."25
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs
about the home, the family and the female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterer's actions; and false hopes that the
relationship will improve.26
More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence,"27 which has three phases: (1) the tension-building phase; (2) the acute battering
incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.28
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through
a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is
that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants
is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves
to be double-edged, because her "placatory" and passive behavior legitimizes his belief that he
has the right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually
successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent
loss of control and the growing tension and despair. Exhausted from the persistent stress, the
battered woman soon withdraws emotionally. But the more she becomes emotionally
unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some
unpredictable point, the violence "spirals out of control" and leads to an acute battering
incident.29
The acute battering incident is said to be characterized by brutality, destructiveness and,
sometimes, death. The battered woman deems this incident as unpredictable, yet also
inevitable. During this phase, she has no control; only the batterer may put an end to the
violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons
for ending it. The battered woman usually realizes that she cannot reason with him, and that
resistance would only exacerbate her condition.

A In the first year, I lived with him happily but in the subsequent year he was cruel to
me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive
to you and cruel. In what way was this abusive and cruelty manifested to you?
A He always provoke me in everything, he always slap me and sometimes he pinned
me down on the bed and sometimes beat me.
Q How many times did this happen?
A Several times already.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she
may later clearly remember every detail. Her apparent passivity in the face of acute violence
may be rationalized thus: the batterer is almost always much stronger physically, and she knows
from her past painful experience that it is futile to fight back. Acute battering incidents are often
very savage and out of control, such that innocent bystanders or intervenors are likely to get
hurt.30

Q What did you do when these things happen to you?

The final phase of the cycle of violence begins when the acute battering incident ends. During
this tranquil period, the couple experience profound relief. On the one hand, the batterer may
show a tender and nurturing behavior towards his partner. He knows that he has been viciously
cruel and tries to make up for it, begging for her forgiveness and promising never to beat her
again. On the other hand, the battered woman also tries to convince herself that the battery will
never happen again; that her partner will change for the better; and that this "good, gentle and
caring man" is the real person whom she loves.

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

A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or receiving professional help, are very
slim, especially if she remains with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation
that she is most thoroughly tormented psychologically.

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

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In

this phase, she and her batterer are indeed emotionally dependent on each other -- she for his
nurturant behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence
and forgiveness," each partner may believe that it is better to die than to be separated. Neither
one may really feel independent, capable of functioning without the other.31
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense presented several
witnesses. She herself described her heart-rending experience as follows:

A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I
go to him and he said 'sorry'.

A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
xxx

xxx

xxx

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

A Yes, sir.
Q Who inflicted these injuries?

"ATTY. TABUCANON

A Of course my husband.

Q How did you describe your marriage with Ben Genosa?

Q You mean Ben Genosa?

A Yes, sir.

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician:

Dr. Canora; and
xxx

xxx

xxx
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy.
Attending physician: Dr. Canora.

[Court] /to the witness

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

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

A Yes, sir.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your
occurred, after your marriage, from that time on, how frequent was the occurrence?

Q Did you actually physical examine the accused?

A Yes, sir.

A Everytime he got drunk.

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

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.

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

Q What is meant by furuncle axilla?
A Not necessarily that he would beat me but sometimes he will just quarrel me."

32

A It is secondary of the light infection over the abrasion.

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D.
Caing bolstered her foregoing testimony on chronic battery in this manner:
"Q So, do you have a summary of those six (6) incidents which are found in the chart
of your clinic?

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So,
[pain] meaning there is tenderness. When your breast is traumatized, there is
tenderness pain.

A Yes, sir.
Q So, these are objective physical injuries. Doctor?
Q Who prepared the list of six (6) incidents, Doctor?
xxx

xxx

xxx

A I did.
Q Were you able to talk with the patient?
Q Will you please read the physical findings together with the dates for the record.
A Yes, sir.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and
contusion (R) breast. Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending
physician: Dr. Caing;

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And
she told me that it was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.

xxx

xxx

xxx

ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in the
month of November, 1995 when this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient
pregnant?

xxx

xxx

xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able
to examine her personally on November 6, 1995 and she was 8 months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to hypertension and I
think I have a record here, also the same period from 1989 to 1995, she had a
consultation for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the patient had
hypertension?
A The patient definitely had hypertension. It was refractory to our treatment. She does
not response when the medication was given to her, because tension headache is
more or less stress related and emotional in nature.

A Yes, sir.
Q What did you deduce of tension headache when you said is emotional in nature?
Q Being a doctor, can you more engage at what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination about her
pregnancy or for some other findings?
A No, she was admitted for hypertension headache which complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.

A From what I deduced as part of our physical examination of the patient is the family
history in line of giving the root cause of what is causing this disease. So, from the
moment you ask to the patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases in hypertension
which is unfortunately does not response to the medication.
Q In November 6, 1995, the date of the incident, did you take the blood pressure of
the accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is dangerous level of
blood pressure?

A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions
Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben. 35
Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at
the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On
one occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because
the couple "were very noisy and I heard something was broken like a vase." Then Marivic
came running into Ecel's room and locked the door. Ben showed up by the window grill atop a
chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -but they were unable to. They returned to the Genosa home, where they found him already
drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his
state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided
to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses
saw or heard the couple quarreling.37 Marivic relates in detail the following backdrop of the
fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty
towards her:
"ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the
evening?
A Whole morning and in the afternoon, I was in the office working then after office
hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I
immediately asked my son, where was his father, then my second child said, 'he was
not home yet'. I was worried because that was payday, I was anticipating that he was
gambling. So while waiting for him, my eldest son arrived from school, I prepared
dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?

A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 o'clock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with me at that
time because I had fears that he was again drunk and I was worried that he would
again beat me so I requested my cousin to sleep with me, but she resisted because
she had fears that the same thing will happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not allow her because
of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q What's the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?

A Yes, sir.

A For chopping meat.

Q What time?

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

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

A He was about to attack me so I run to the room.
Q Will you tell this Court what was his disposition?
Q What do you mean that he was about to attack you?
A He was drunk again, he was yelling in his usual unruly behavior.
A When I attempt to run he held my hands and he whirled me and I fell to the bedside.
Q What was he yelling all about?
Q So when he whirled you, what happened to you?
A His usual attitude when he got drunk.
A I screamed for help and then he left.
Q You said that when you arrived, he was drunk and yelling at you? What else did he
do if any?

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

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

A Yes, sir.

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

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

A He was angry at me because I was following x x x him, looking for him. I was just
worried he might be overly drunk and he would beat me again.

A Outside perhaps to drink more.

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

Q You said that he was yelling at you, what else, did he do to you if any?
A I packed all his clothes.
A He was nagging at me at that time and I just ignore him because I want to avoid
trouble for fear that he will beat me again. Perhaps he was disappointed because I
just ignore him of his provocation and he switch off the light and I said to him, 'why did
you switch off the light when the children were there.' At that time I was also attending
to my children who were doing their assignments. He was angry with me for not
answering his challenge, so he went to the kitchen and [got] a bolo and cut the
antenna wire to stop me from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they were scared and
he was already holding the bolo.
Q How do you described this bolo?

Q What was your reason in packing his clothes?

A I wanted him to leave us.
Q During this time, where were your children, what were their reactions?
A After a couple of hours, he went back again and he got angry with me for packing
his clothes, then he dragged me again of the bedroom holding my neck.
Q You said that when Ben came back to your house, he dragged you? How did he
drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)

A 1 1/2 feet.

A And he dragged me towards the door backward.

Q What was the bolo used for usually?

ATTY. TABUCANON:

Q Where did he bring you?

A Dining.

A Outside the bedroom and he wanted to get something and then he kept on shouting
at me that 'you might as well be killed so there will be nobody to nag me.'

Q Where were the children during that time?

A My children were already asleep.

Q So you said that he dragged you towards the drawer?

Q You mean they were inside the room?
A Yes, sir.
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.

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

COURT INTERPRETER:

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

(At this juncture the witness started crying).

Q Is it a flexible blade?

ATTY. TABUCANON:

A It's a cutter.

Q Were you actually brought to the drawer?

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

A Yes, sir.

A Yes, because he once used it to me.

Q What happened when you were brought to that drawer?

Q How did he do it?

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

A He wanted to cut my throat.

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

xxx

Q Talking of drawer, is this drawer outside your room?

Q In what part of the house?

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

38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist
it in understanding the psyche of a battered person. She had met with Marivic Genosa for five
sessions totaling about seventeen hours. Based on their talks, the former briefly related the
latter's ordeal to the court a quo as follows:
"Q: What can you say, that you found Marivic as a battered wife? Could you in
layman's term describe to this Court what her life was like as said to you?

xxx

ATTY. TABUCANON:

A Outside.

Q With the same blade?

A: What I remember happened then was it was more than ten years, that she was
suffering emotional anguish. There were a lot of instances of abuses, to emotional
abuse, to verbal abuse and to physical abuse. The husband had a very meager
income, she was the one who was practically the bread earner of the family. The
husband was involved in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home very angry and which will
trigger a lot of physical abuse. She also had the experience a lot of taunting from the
husband for the reason that the husband even accused her of infidelity, the husband
was saying that the child she was carrying was not his own. So she was very angry,

she was at the same time very depressed because she was also aware, almost like
living in purgatory or even hell when it was happening day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or
unwittingly put forward, additional supporting evidence as shown below:
"Q In your first encounter with the appellant in this case in 1999, where you talked to
her about three hours, what was the most relevant information did you gather?
A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already knew of
the facts of the case or at least you have substantial knowledge of the facts of the
case?

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I
think that is the first time that we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was
really a self-defense. I also believe that there had been provocation and I also believe
that she became a disordered person. She had to suffer anxiety reaction because of
all the battering that happened and so she became an abnormal person who had lost
she's not during the time and that is why it happened because of all the physical
battering, emotional battering, all the psychological abuses that she had experienced
from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes.40
Parenthetically, the credibility of appellant was demonstrated as follows:

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.
xxx

xxx

"Q And you also said that you administered [the] objective personality test, what x x x
[is this] all about?

xxx

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

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose
of that test is to find out about the lying prone[ne]ss of the person.
Q What do you mean by that?

A I also heard that from her?

Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that were
fond of battering their wives?
A What I remember that there were brothers of her husband who are also battering
their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in
Ormoc where her husband followed her and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it
really happened.

A Meaning, am I dealing with a client who is telling me the truth, or is she someone
who can exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person that I can
trust. That the data that I'm gathering from her are the truth."41
The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his
Psychiatric Report,42which was based on his interview and examination of Marivic Genosa. The
Report said that during the first three years of her marriage to Ben, everything looked good -- the
atmosphere was fine, normal and happy -- until "Ben started to be attracted to other girls and
was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often
joining his barkada in drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly
to his wife. The Report continued: "At first, it was verbal and emotional abuses but as time
passed, he became physically abusive. Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever
she suspected that her husband went for a drinking [spree]. They had been married for twelve
years[;] and practically more than eight years, she was battered and maltreated relentlessly and
mercilessly by her husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from
the Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in

spite of her feeling ashamed of what was happening to her. But incessant battering became
more and more frequent and more severe. x x x."43
From the totality of evidence presented, there is indeed no doubt in the Court's mind that
Appellant Marivic Genosa was a severely abused person.

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism."51 After being repeatedly and
severely abused, battered persons "may believe that they are essentially helpless, lacking power
to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense of the victim's ability to muster
an active response to try to escape further trauma. Furthermore, x x x the victim ceases to
believe that anything she can do will have a predictable positive effect." 52

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of
mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment
of an ordinary, reasonable person who is evaluating the events immediately surrounding the
incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect
of battering on wives and common law partners are both relevant and necessary. "How can the
mental state of the appellant be appreciated without it? The average member of the public may
ask: Why would a woman put up with this kind of treatment? Why should she continue to live
with such a man? How could she love a partner who beat her to the point of requiring
hospitalization? We would expect the woman to pack her bags and go. Where is her selfrespect? Why does she not cut loose and make a new life for herself? Such is the reaction of the
average person confronted with the so-called 'battered wife syndrome.'"44
To understand the syndrome properly, however, one's viewpoint should not be drawn from that
of an ordinary, reasonable person. What goes on in the mind of a person who has been
subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -those who have not been through a similar experience. Expert opinion is essential to clarify and
refute common myths and misconceptions about battered women.45
The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence,
has had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered
woman immobilizes the latter's "ability to act decisively in her own interests, making her feel
trapped in the relationship with no means of escape."46 In her years of research, Dr. Walker
found that "the abuse often escalates at the point of separation and battered women are in
greater danger of dying then."47
Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a
very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x
[W]hen the violence would happen, they usually think that they provoke[d] it, that they were the
one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally
and even sexually abusive to them."48
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily
leave an abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she
provoked the violence, that she has an obligation to keep the family intact at all cost for the sake
of their children, and that she is the only hope for her spouse to change.49
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified
in suits involving violent family relations, having evaluated "probably ten to twenty thousand"
violent family disputes within the Armed Forces of the Philippines, wherein such cases
abounded. As a result of his experience with domestic violence cases, he became a consultant
of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases
of severe domestic violence, in which the physical abuse on the woman would sometimes even
lead to her loss of consciousness.50

A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found

that "even if a person has control over a situation, but believes that she does not, she will be
more likely to respond to that situation with coping responses rather than trying to escape." He
said that it was the cognitive aspect -- the individual's thoughts -- that proved all-important. He
referred to this phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn
out to be less important than the individual's set of beliefs or perceptions concerning the
situation. Battered women don't attempt to leave the battering situation, even when it may seem
to outsiders that escape is possible, because they cannot predict their own safety; they believe
that nothing they or anyone else does will alter their terrible circumstances."54
Thus, just as the battered woman believes that she is somehow responsible for the violent
behavior of her partner, she also believes that he is capable of killing her, and that there is no
escape.55 Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.56 Unless a shelter is available, she stays with her husband, not only because she
typically lacks a means of self-support, but also because she fears that if she leaves she would
be found and hurt even more.57
In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of
time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More specifically, we failed to find ample
evidence that would confirm the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the "cycle of violence" supposedly
characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering
incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started,
Marivic perfectly described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single incident does not
prove the existence of the syndrome. In other words, she failed to prove that in at least another
battering episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute battering? How
did Marivic normally respond to Ben's relatively minor abuses? What means did she employ to
try to prevent the situation from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She
simply mentioned that she would usually run away to her mother's or father's house;58 that Ben
would seek her out, ask for her forgiveness and promise to change; and that believing his words,
she would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to
separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts
that would clearly and fully demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed,
they were able to explain fully, albeit merely theoretically and scientifically, how the personality of
the battered woman usually evolved or deteriorated as a result of repeated and severe beatings
inflicted upon her by her partner or spouse. They corroborated each other's testimonies, which
were culled from their numerous studies of hundreds of actual cases. However, they failed to
present in court the factual experiences and thoughts that appellant had related to them -- if at
all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be
proven in order to be appreciated. To repeat, the records lack supporting evidence that would
establish all the essentials of the battered woman syndrome as manifested specifically in the
case of the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense.59
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense60 -- she must have
actually feared imminent harm from her batterer and honestly believed in the need to kill him in
order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must
face a real threaton one's life; and the peril sought to be avoided must be imminent and actual,
not merely imaginary.61 Thus, the Revised Penal Code provides the following requisites and
effect of self-defense:62
"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:
"1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;
First. Unlawful aggression;

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based
on past violent incidents, there was a great probability that he would still have pursued her and
inflicted graver harm -- then, the imminence of the real threat upon her life would not have
ceased yet. Where the brutalized person is already suffering from BWS, further evidence of
actual physical assault at the time of the killing is not required. Incidents of domestic battery
usually have a predictable pattern. To require the battered person to await an obvious, deadly
attack before she can defend her life "would amount to sentencing her to 'murder by
installment.'"65 Still, impending danger (based on the conduct of the victim in previous battering
episodes) prior to the defendant's use of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of danger.66 Considering such circumstances
and the existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In
the absence of such aggression, there can be no self-defense -- complete or incomplete -- on
the part of the victim.68 Thus, Marivic's killing of Ben was not completely justified under the
circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any other modifying
circumstances that would alter her penalty, we deem it proper to evaluate and appreciate in her
favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in
a criminal case opens it wholly for review on any issue, including that which has not been raised
by the parties.69
From several psychological tests she had administered to Marivic, Dra. Dayan, in her
Psychological Evaluation Report dated November 29, 2000, opined as follows:
"This is a classic case of a Battered Woman Syndrome. The repeated battering
Marivic experienced with her husband constitutes a form of [cumulative] provocation
which broke down her psychological resistance and natural self-control. It is very clear
that she developed heightened sensitivity to sight of impending danger her husband
posed continuously. Marivic truly experienced at the hands of her abuser husband a
state of psychological paralysis which can only be ended by an act of violence on her
part." 70
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious
pain taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the
prolonged administration of the battering is posttraumatic stress disorder.71 Expounding thereon,
he said:

Second. Reasonable necessity of the means employed to prevent or repel it;

"Q What causes the trauma, Mr. Witness?

Third. Lack of sufficient provocation on the part of the person defending himself."

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

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual,

sudden and unexpected attack -- or an imminent danger thereof -- on the life or safety of a
person.64 In the present case, however, according to the testimony of Marivic herself, there was
a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him.
She had already been able to withdraw from his violent behavior and escape to their children's
bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even
the imminence of the danger he posed had ended altogether. He was no longer in a position that
presented an actual threat on her life or safety.

xxx

xxx

xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity
of the postraumatic stress disorder, Dr. Pajarillo?

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

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon
an impulse so powerful as to have naturally produced passion and obfuscation. It has been held
that this state of mind is present when a crime is committed as a result of an uncontrollable burst
of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to
overcome reason.77 To appreciate this circumstance, the following requisites should concur: (1)
there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act
is not far removed from the commission of the crime by a considerable length of time, during
which the accused might recover her normal equanimity.78

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded
his being killed by Marivic. He had further threatened to kill her while dragging her by the neck
towards a cabinet in which he had kept a gun. It should also be recalled that she was eight
months pregnant at the time. The attempt on her life was likewise on that of her fetus.79 His
abusive and violent acts, an aggression which was directed at the lives of both Marivic and her
unborn child, naturally produced passion and obfuscation overcoming her reason. Even though
she was able to retreat to a separate room, her emotional and mental state continued. According
to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that
she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer
where Ben kept a gun, then she took the weapon and used it to shoot him.

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A The acute is the one that usually require only one battering and the individual will
manifest now a severe emotional instability, higher irritability remorse, restlessness,
and fear and probably in most [acute] cases the first thing will be happened to the
individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment, any
prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6)
months. After this six (6) months you become chronic. It is stated in the book
specifically that after six (6) months is chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal and then become normal. This is how you
get neurosis from neurotic personality of these cases of post[t]raumatic stress
disorder." 72
Answering the questions propounded by the trial judge, the expert witness clarified further:
"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects
x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated."73
In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural selfcontrol," "psychological paralysis," and "difficulty in concentrating or impairment of memory."

The confluence of these events brings us to the conclusion that there was no considerable
period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr.
Pajarillo's testimony80 that with "neurotic anxiety" -- a psychological effect on a victim of
"overwhelming brutality [or] trauma" -- the victim relives the beating or trauma as if it were real,
although she is not actually being beaten at the time. She cannot control "re-experiencing the
whole thing, the most vicious and the trauma that she suffered." She thinks "of nothing but the
suffering." Such reliving which is beyond the control of a person under similar circumstances,
must have been what Marivic experienced during the brief time interval and prevented her from
recovering her normal equanimity. Accordingly, she should further be credited with the mitigating
circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well as passion
and obfuscation -- did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the severity of the
battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a
period of time resulted in her psychological paralysis, which was analogous to an illness
diminishing the exercise of her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he had
inflicted on her prior to the killing. That the incident occurred when she was eight months
pregnant with their child was deemed by her as an attempt not only on her life, but likewise on
that of their unborn child. Such perception naturally produced passion and obfuscation on her
part.
Second Legal Issue:
Treachery

Based on the explanations of the expert witnesses, such manifestations were analogous to an
illness that diminished the exercise by appellant of her will power without, however, depriving
her of consciousness of her acts. There was, thus, a resulting diminution of her freedom of
action, intelligence or intent. Pursuant to paragraphs 974 and 1075 of Article 13 of the Revised
Penal Code, this circumstance should be taken in her favor and considered as a mitigating
factor. 76

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that
the offended party might make.81 In order to qualify an act as treacherous, the circumstances
invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation of evidence.82 Because of
the gravity of the resulting offense, treachery must be proved as conclusively as the killing
itself.83
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless
body of Ben had been found lying in bed with an "open, depressed, circular" fracture located at
the back of his head. As to exactly how and when he had been fatally attacked, however, the
prosecution failed to establish indubitably. Only the following testimony of appellant leads us to
the events surrounding his death:
"Q You said that when Ben came back to your house, he dragged you? How did he
drag you?

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he
could not open it because he did not have the key then he pulled his wallet which
contained a blade about 3 inches long and I was aware that he was going to kill me
and I smashed his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he was about to pickup the wallet and the blade, I smashed him then I ran to the other room, and on that
very moment everything on my mind was to pity on myself, then the feeling I had on
that very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxx

xxx

xxx

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

Q You said that he dropped the blade, for the record will you please describe this
blade about 3 inches long, how does it look like?
A Three (3) inches long and inch wide.

A And he dragged me towards the door backward.

Q It is a flexible blade?
ATTY. TABUCANON:
A It's a cutter.
Q Where did he bring you?
Q How do you describe the blade, is it sharp both edges?
A Outside the bedroom and he wanted to get something and then he kept on shouting
at me that 'you might as well be killed so there will be nobody to nag me'

A Yes, because he once used it to me.

Q So you said that he dragged you towards the drawer?

Q How did he do it?

A Yes, sir.

A He wanted to cut my throat.

Q What is there in the drawer?

Q With the same blade?

A I was aware that it was a gun.

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

COURT INTERPRETER
(At this juncture the witness started crying)

xxx

xxx

xxx

ATTY. TABUCANON:

ATTY. TABUCANON:

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

Q Were you actually brought to the drawer?

A Yes, because I smashed him.

A Yes, sir.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him
and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what happened before when
I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure
was raised. I was frightened I was about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the
witness at the same time pointed at the back of her neck or the nape).

been found to have attended the commission of the offense, the penalty shall be lowered by one
(1) degree, pursuant to Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion
temporal in its medium period is imposable, considering that two mitigating circumstances are to
be taken into account in reducing the penalty by one degree, and no other modifying
circumstances were shown to have attended the commission of the offense. 90 Under the
Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which
is next lower in degree -- prision mayor -- and the maximum shall be within the range of the
medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as
maximum. Noting that appellant has already served the minimum period, she may now apply for
and be released from detention on parole.91
Epilogue

ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that I've been through with him, I took pity on
myself and I felt I was about to die also because of my blood pressure and the baby,
so I got that gun and I shot him.
COURT
/to Atty. Tabucanon

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis--vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the
normal manner in which decisions are made -- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to
take a good look at studies conducted here and abroad in order to understand the intricacies of
the syndrome and the distinct personality of the chronically abused person. Certainly, the Court
has learned much. And definitely, the solicitor general and appellant's counsel, Atty. Katrina
Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only work within the limits
of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend
the Revised Penal Code. Only Congress, in its wisdom, may do so.

Q You shot him?

A Yes, I distorted the drawer."84
The above testimony is insufficient to establish the presence of treachery. There is no showing
of the victim's position relative to appellant's at the time of the shooting. Besides, equally
axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery
cannot be appreciated as a qualifying circumstance, because the deceased may be said to have
been forewarned and to have anticipated aggression from the assailant.85
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must
have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked.86 There is
no showing, though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any retaliatory act that he
might make. To the contrary, it appears that the thought of using the gun occurred to her only at
about the same moment when she decided to kill her batterer-spouse. In the absence of any
convincing proof that she consciously and deliberately employed the method by which she
committed the crime in order to ensure its execution, this Court resolves the doubt in her favor.87
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion
perpetua to death. Since two mitigating circumstances and no aggravating circumstance have

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the
appellant and her intimate partner. Second, the final acute battering episode preceding the killing
of the batterer must have produced in the battered person's mind an actual fear of an imminent
harm from her batterer and an honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily
immediate and actual -- grave harm to the accused, based on the history of violence perpetrated
by the former against the latter. Taken altogether, these circumstances could satisfy the
requisites of self-defense. Under the existing facts of the present case, however, not all of these
elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.
However, there being two (2) mitigating circumstances and no aggravating circumstance
attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1)
day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as
maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed
upon her, the director of the Bureau of Corrections may immediately RELEASE her from custody
upon due determination that she is eligible for parole, unless she is being held for some other
lawful cause. Costs de oficio.

SO ORDERED.

even shouted back, fought off or even injured her husband during the tension-building phase, if
only to prevent the onset of acute battery.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her
dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION
YNARES-SANTIAGO, J.:
In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice
Artemio V. Panganiban found that there was no factual basis to conclude that Marivic was
suffering from "Battered Woman Syndrome" (BWS) at the time she took the life of her husband.
With due respect, I register my dissent.
The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a
form of self-defense. It operates upon the premise that a woman who has been cyclically abused
and controlled over a period of time develops a fearful state of mind. Living in constant danger of
harm or death, she knows that future beatings are almost certain to occur and will escalate over
time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a
particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a
cycle of violence and constant fear, it is not unlikely that she would succumb to her helplessness
and fail to perceive possible solutions to the problem other than to injure or kill her batterer. She
is seized by fear of an existing or impending lethal aggression and thus would have no
opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating
her sufferings.1
As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases,
to wit: (1) the tension-building phase, where minor batterings in the form of verbal or slight
physical abuse occurs. Here, the woman tries to pacify the batterer through a show of kind,
nurturing behavior; or by simply staying out of his way; (2) the acute battering incident phase
which is characterized by brutality, destructiveness and sometimes, death. The battered woman
usually realizes that she cannot reason with him and that resistance would only exacerbate her
condition; and (3) the tranquil period, where the couple experience a compound relief and the
batterer may show a tender and nurturing behavior towards his partner.
Contrary to the findings in the ponencia, the defense was able to establish the occurrence on
more than one occasion of the "tension-building phase" of the cycle. The various testimonies of
appellant's witnesses clearly reveal that she knew exactly when she would once again be
subjected to acute battery. Her cousin, Ecel Arano, testified that she often asked the latter to
sleep in her house as she was afraid every time her husband came home drunk. Clearly,
whenever appellant requested for Arano's company, she was experiencing a tension-building
phase. The barangay captain, Panfilo Tero, also testified that appellant sought his help two
months before she killed her husband, again demonstrating that she was in the tension-building
phase and was attempting to prevent another incident of acute battery. Appellant presented
evidence to prove that the tension-building phase would occur whenever her husband would go
out looking for other women, would lose at cockfights or would come home drunk. She often
tried to ignore her husband's attitude or, as testified to by some witnesses for the prosecution,

Appellant was able to perfectly describe the tension-building phase of the cycle immediately
prior to the death of her husband, i.e., when she knew or felt that she was going to be killed by
the deceased. She could not possibly have testified with clarity as to prior tension-building
phases in the cycle as she had never tried to kill her husband before this time.
It was shown by the testimonies of appellant and even witnesses for the prosecution that
appellant would seek shelter in her mother's or her father's house after an acute battering
incident, after which would begin the process of begging for forgiveness, promises of change in
behavior and return to the conjugal home, only for the same cycle to begin all over again.
To require appellant to prove the state of mind of the deceased, as seems to be required in
the ponencia, would mean that no person would ever be able to prove self-defense in a battered
woman case. Appellant could not possibly prove whether the deceased felt provoked into
battering by any act or omission of appellant. She cannot possibly prove that she felt herself to
be the sole support of the deceased's emotional stability and well-being. Nevertheless, appellant
felt trapped and helpless in the relationship as, in the end, she resorted to killing her husband as
no one could or did help her, whether out of fear or insensitivity, during the violent marriage she
endured.
The "acute battering incident stage" was well demonstrated by the severe beatings suffered by
Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a
cutter.2 The physical abuses occurred at least 3 times a week in the 11 miserable years of their
marriage,3 six incidents of which were documented by the 1990-1995 medical records of Marivic.
They included, among others, hematoma, contusion, and pain on the breasts; multiple
contusions and trauma on the different parts of her body even during her pregnancy in
1995.4The tranquil period underwent by Marivic was shown by the repeated "kiss and make-up"
episodes of their relationship. On more than 5 occasions, Marivic ran to her parents' house after
violent fights with the deceased only to forgive the latter every time he would fetch her and
promise to change.5
All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma
in the mind of Marivic making her believe that a forthcoming attack from the deceased would
cause her death. This state of mind of Marivic was revealed in her testimony given way back in
1998, before she was examined by experts on BWS. Unaware of the significance of her
declarations, she candidly narrated how she felt immediately before she killed the deceased,
thus ATTY. TABUCANON
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx

xxx

xxx

Q What happened when you were brought to the drawer?

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

xxx

xxx6

Q What else happened?

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

xxx

xxx

xxx

Q And what was it that triggered ... that tragedy in your opinion?
A I think for several weeks, she was already having all those tensions, all those
anxieties, they were not enough, that the husband was even going to cockfighting x x
x
A She was angry with him, he was angry with her and I think he dragged her and even
spun her around. She tried to fight him so there was a lot of fight and when she was
able to escape, she went to another room and she locked herself with the children.
And when the husband was for a while very angry he calms down then and then (sic).
But I remember before that the husband was looking for the gun and I think he was
not able to open the cabinet because she had the key. So during that time, I
remember, that she was very much afraid of him, so when the husband calmed down
and he was asleep, all she was concerned was to end up her misery, to save her child
which she was carrying and to save her two children. I believe that somehow she's not
rational.9
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xxx

xxx

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xxx
PROS. TRUYA

A Considering all the physical sufferings that I've been through him, I took pity on
myself and I felt I was about to die also because of my blood pressure and the baby,
so I got the gun and shot him.7
It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic
before the lower court but only here on automatic review. This makes the foregoing testimony
more worthy of great weight and credence considering that the same could not have been
cunningly given to suit or conform to the profile of a battered woman.

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on
this case that the books you studied in the expertise in line and in the 77 hour contact
with appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a
survival on her part?
A Yes, sir.
Q To what she did to her husband (sic)?

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr.
Dino Caing testified that he treated Marivic for hypertension due to domestically related
emotional stress on 23 separate occasions. The latest one was on November 6, 1995 when she
suffered from severe hypertension and had a blood pressure of 180/120 on the 8th month of her
pregnancy.8
Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who
examined Marivic, assessed the effects of the repeated violence on the latter as follows:

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to
survive with her two sons and [the] child she's bringing.
Q Had she not able to kill her husband, would she still be in the very short moment
with the victim (sic)?
A If she did not do that she believes that she will be the one who would be killed. 10

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

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and
that it was an apprehension of death and the instinct to defend her and her unborn child's life
that drove her to kill her husband.
The ponente further refused to sustain the self-defense proffered by Marivic because there was
allegedly no aggression or danger posed on her life by the victim at the time she attacked the
latter. Again, I beg to disagree.
Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the
attack must be imminent and actually in existence. This interpretation must, however, be reevaluated vis-a-vis the recognized inherent characteristic of the psyche of a person afflicted with

the "Battered Woman Syndrome." As previously discussed, women afflicted by this syndrome
live in constant fear for their life and thus respond in self-defense. Once BWS and an impending
danger based on the conduct of the deceased in previous battering episodes are established,
actual occurrence of an assault is no longer a condition sine qua non before self defense may
be upheld. Threatening behavior or communication can satisfy the required imminence of
danger. As stated in theponencia, to require the battered person to await an obvious deadly
attack before she can defend her life would amount to sentencing her to murder by installment.
In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the
physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the
place of unlawful aggression, thus entitling her to a complete self defense even if there was
no actual employment of violence by the deceased at the time of the killing. Marivic had every
reason to believe that the deceased would kill her that night not only because the latter was
verbally threatening to kill her while attempting to get a gun from the drawer, but more
importantly because the deceased wounded her on the wrist with a bolo, and because of the
deceased's previous conduct of threatening to cut her throat with a cutter which he kept in his
wallet. Quoted hereunder are the relevant testimonies of Marivic A When I arrived home, he was already in his usual behavior.
xxx

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xxx

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

xxx

xxx

xxx

xxx

A He switch[ed] off the light and the children were shouting because they were scared
and he was already holding a bolo.

xxx

xxx

xxx

xxx

xxx

xxx

COURT
To the witness

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?
A Bolo.
Q Were you wounded or were there inflictions on your body when he was holding and
trying to frighten you [with] that bolo?
A No, only here.
COURT INTERPRETER

xxx

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

A When I attempted] to run he held my hands and he whirled me and I fell [on] the
bedside.11

(The witness pointed to her wrist).

COURT
To the witness
Q You were demonstrating a motion, whirling, did your husband really whirl you?
A Yes, your Honor.
Q How did he whirl you?
A Whirled around.

Q How do you describe this bolo?

Q Just like spinning.
A 1 1/2 feet.
xxx
xxx

xxx

xxx

xxx

xxx
Q Where did he whirl you, was it inside the bedroom or outside?

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

A In our bedroom.

A He was about to attack me so I ran to the room.

Q Then after the whirling what happened?

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

A He kicked my ass and then I screamed.12

xxx

xxx

xxx

A I was aware that it was a gun.

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

xxx

xxx

xxx

A Outside perhaps to drink more.

Q What happened when you were brought to the drawer?

Q When he left what did you do...?

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

A I packed all his clothes.

Q What was your reason in packing his clothes?
A I wanted him to leave us.13
A I was frightened that my husband would hurt me, so I packed all his things then on
the following day I will leave, I was afraid and I want to make sure I would deliver my
baby safely.14
xxx

xxx

xxx

xxx

xxx

xxx

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

A After a couple of hours, he went back again and got angry with me for packing his
clothes, then he dragged me again outside of the bedroom holding my neck.

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

ATTY. TABUCANON

Q Is it a flexible blade?

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

A It's a cutter.
Q How do you describe the blade, is it sharp both edges?

COURT INTERPRETER
A Yes, because he once used it to me.
(The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)
A And he dragged me towards the door backwards.
ATTY. TABUCANON
Q Where did he bring you?

Q How did he do it?

A He wanted to cut my throat.
Q With the same blade?
A Yes sir, that was the object used when he intimidate me.15

A Outside the bedroom and he wanted to get something and then he kept shouting at
me that "you might as well be killed so there will be nobody to nag me.

RE-DIRECT BY ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

Q In other words, there were two (2) incidents, the first incident and then he left and
then two (2) hours after he came back?

A Yes, sir.
Q What is there in the drawer?

A Yes, sir.
Q And the whirling happened in the first incident?

diminished will-power. However, he failed to go further. In the case of People v. Javier,17 it was
held:

A Yes, sir.
Q And the dragging with arms flexed in her neck and on that blade
happened on the second incident (sic)?
A Ye, sir.
xxx

xxx

xxx

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove
the claimed mitigating circumstance of illness. In this case, however, aside from the testimony of
the accused that his mind went blank when he killed his wife due to loss of sleep, no medical
finding was presented regarding his mental condition at the time of the killing. This Court can
hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and
conjectures. No clear and convincing evidence was shown that accused-appellant was suffering
an illness which diminished his exercise of will-power at the time of the killing. 18
In the case at bar, appellant was allowed and did in fact present clear and convincing evidence
that she was a battered woman for 13-14 years and that she suffered from the "Battered Woman
Syndrome". Expert testimony was presented and admitted to this effect, such that
the ponente ably discussed the causes and effects of the syndrome. To ignore the testimony and
the evidence thus presented is to make impossible the proof of mental state. Evidence as to the
mental state need not be also "beyond reasonable doubt."

COURT
To the witness
Q Why, what is that blade about?

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent
episodes was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with
BWS justified the killing of the deceased. The danger posed or created in her mind by the latter's
threats using bladed weapons, bred a state of fear, where under the circumstances, the natural
response of the battered woman would be to defend herself even at the cost of taking the life of
the batterer.

A A cutter about 3 inches long.

Q Who used that?
A Ben.
Q He used that on you?
A He scared me on that (sic).
xxx

xxx

xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16
There are many things which cannot be proved by direct evidence. One of this is state of mind.
In the case at bar, there is more than sufficient physical evidence presented by the appellant
from which her mental state can be inferred. The prosecution did not object to the presentation
of these physical and testimonial pieces of evidence, namely, the medical records of 23
instances of domestic violence-related injuries and the testimonies of neighbors, cousins and
even the barangay captain. Indeed, no person would endure 23 reported instances of beatings if
she were planning to kill her spouse in the first place. The majority need not worry that women
around the country will mastermind the killings of their husbands and then use this Decision to
bolster their attempts to employ the BWS defense.
Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of
passion and obfuscation. This, at the very least, supports a finding that the acts of violence and
battery committed by the deceased were illegal and unlawful and were committed immediately
before appellant could recover her natural equanimity. But what is the natural equanimity of a
battered woman? Appellant was not a normal married woman. She can never be in a state of
natural equanimity as she was in a constant state of alertness and hypersensitivity to the next
phase of acute battery. The esteemed ponente also correctly found that the appellant acted with

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of selfdefense, is a noble recognition of the plight of, and a triumph for battered women who are
trapped in a culture of silence, shame, and fear. This would however be an empty victory if we
deliberately close our eyes to the antecedents of this case. The facts are simple. Marivic was
suffering from the "Battered Woman Syndrome" and was defending herself when she killed her
husband. Her acquittal of the charge of parricide is therefore in order.
IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

G.R. No. 126968

Republic of the Philippines

SUPREME COURT
Manila

shield him from further violence, Amelia put her arms around her husband but it was
not enough to detract Ricardo from his murderous frenzy. Amelia was also hit on the
leg.6

SECOND DIVISION

Dr. Maximo Reyes, NBI Senior Medico-legal officer, declared that on 3 May 1982 he
conducted a post mortem examination on the body of the deceased Senando Iguico
and issued an Autopsy Report, which contained the following findings:7 (a) two (2)
stab wounds and nine (9) gaping hack wounds; and, (b) cause of death was
hemorrhage, acute, profuse, secondary to multiple stab and hack wounds.

April 9, 2003

RICARDO BALUNUECO, petitioner,

vs.
COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, respondents.
BELLOSILLO, J.:
On appeal by certiorari is the Decision1 of the Court of Appeals affirming with
modifications the decision2 of the Regional Trial Court of Pasig City, Branch 68,
convicting accused RICARDO BALUNUECO of homicide for the death of Senando
Iguico and frustrated homicide for injuries inflicted upon his wife Amelia Iguico.
Of the five (5) original accused,3 only petitioner Ricardo, accused Reynaldo, Juanito,
all surnamed Balunueco, and Armando Flores were indicted in two (2) Informations,
the first for homicide4 and the second for frustrated homicide.5 Again, of the four (4)
indictees, only Ricardo and Reynaldo were brought to the jurisdiction of the courta
quo, while Juanito and Armando have remained at large. Accused Reynaldo died on
17 November 1986. Accordingly, as against him, the criminal cases were dismissed.
Thus, only the criminal cases against petitioner Ricardo Balunueco are subject of this
appeal.
As principal witness for the prosecution, Amelia Iguico narrated that on 2 May 1982 at
around 6:00 oclock in the evening she was coddling her youngest child in front of her
house at Bagong Tanyag, Taguig, when she saw accused Reynaldo, his father
Juanito and brothers Ricardo and Ramon, all surnamed Balunueco, and one
Armando Flores chasing her brother-in-law Servando Iguico. With the five (5)
individuals in hot pursuit, Servando scampered into the safety of Amelias house.
Meanwhile, according to private complainant Amelia, her husband Senando, who was
then cooking supper, went out of the house fully unaware of the commotion going on
outside. Upon seeing Senando, Reynaldo turned his attention on him and gave
chase. Senando instinctively fled towards the fields but he was met by Armando who
hit him with a stone, causing Senando to feel dizzy. Reynaldo, Ricardo, and Armando
cornered their quarry near a canal and ganged up on him. Armando placed a can on
top of Senandos head and Ricardo repeatedly struck Senando with an ax on the
head, shoulder, and hand. At one point, Ricardo lost his hold on the ax, but somebody
tossed him a bolo and then he continued hacking the victim who fell on his knees. To

In his defense, accused Ricardo narrated a different version of the incident. He

testified that at that time he was fetching water when he heard somebody
shouting: "Saya, saya, tinataga," referring to his brother Reynaldo. When he hurried
to the place, he saw his brother Ramon embracing Senando who was continuously
hacking Reynaldo. Thereafter, Senando shoved Ramon to the ground and as if
further enraged by the intrusion, he turned his bolo on the fallen Ramon. Ricardo
screamed, "tama na yan, mga kapatid ko yan." But the assailant would not be
pacified as he hacked Ramon on the chest. At this point, Servando,8 the brother of
Senando, threw an axe at him but Reynaldo picked it up and smashed Senando with
it.
Manuel Flores, another witness for the defense, gave a substantially similar version of
the story. He testified that on the fateful day of the incident, while doing some
carpentry work in front of his mothers house, he saw Senando Iguico,9 a.k.a.
"Bulldog," with a bolo on hand trailing brothers Reynaldo alias "Sayas" and Ramon
while walking towards Bagong Bantay. Suddenly, Senando confronted the two (2)
brothers and started hacking Reynaldo, hitting him on the head, arm and stomach.
Seeing that his brother was absorbing fatal blows, Ramon embraced Senando but the
latter shoved him (Ramon) and directed his fury at him instead. Ricardo went to the
rescue of his brothers but he too was hacked by Senando.
The trial court disbelieved the version of accused Ricardo, thus he was found guilty of
homicide in Crim. Case No. 49576 and frustrated homicide in Crim. Case No. 49577.
It reasoned that the testimony of Amelia Iguico was clear, positive, straightforward,
truthful and convincing. On the other hand, according to the trial court, the denial of
Ricardo was self-serving and calculated to extricate himself from the predicament he
was in. Further, the trial court added that the wounds allegedly received by Ricardo in
the hands of the victim, Senando Iguico, if at all there were any, did not prove that
Senando was the aggressor for the wounds were inflicted while Senando was in the
act of defending himself from the aggression of Ricardo and his co-conspirators.10
The Court of Appeals sustained the conviction of accused Ricardo, giving full faith to
the direct and positive testimony of Amelia Iguico who pointed to him as the one who
initially axed her husband Senando on the head, shoulder and hand.11 While the

appellate court upheld the conviction of Ricardo of homicide for the death of Senando
Iguico, it however ruled that his conviction for the wounding of Amelia Iguico, although
likewise upheld, should be for attempted homicide only. On the wounding of Amelia,
the appellate court had this to say -12
For while intent to kill was proven, Amelias hack wound in her left leg was
not proven to be fatal or that it could have produced her death had there
been no timely medical attention provided her, hence, the stage of execution
of the felony committed would only be attempted.
Petitioner now imputes errors to the Court of Appeals: (a) in not taking into
consideration the fact that petitioner, if indeed he participated, had acted in defense of
relatives; (b) in giving due credence to the self-serving and baseless testimony of
Amelia Iguico, the lone and biased witness for the prosecution; and, (c) in failing to
consider the several serious physical injuries sustained by petitioner and his brother
Reynaldo Balunueco.
In a reprise of his stance at the trial, petitioner argues that assuming he participated in
the killing of Senando, he acted in defense of his full-blood relatives: Reynaldo whom
he personally witnessed being boloed by the deceased in the arms, head and
stomach; and Ramon who also became a victim of the deceaseds fury after he was
pushed by the deceased and had fallen to the ground. Under such circumstances, the
act of Senando in hacking him after he tried to rescue his brothers, gave rise to a
reasonable necessity for him to use a means to prevent or repel the unlawful
aggression. Considering further that there was lack of sufficient provocation on his
part, his acts were therefore justified under Art. 11, par. (2), of The Revised Penal
Code.
In effect, petitioner invokes the justifying circumstance of defense of relatives under
Art. 11, par. (2), of The Revised Penal Code. The essential elements of this justifying
circumstance are the following: (a) unlawful aggression; (b) reasonable necessity of
the means employed to prevent or repel it; and, (c) in case the provocation was given
by the person attacked, the one making the defense had no part therein.
Of the three (3) requisites of defense of relatives, unlawful aggression is a
condition sine qua non, for without it any defense is not possible or justified. In order
to consider that an unlawful aggression was actually committed, it is necessary that
an attack or material aggression, an offensive act positively determining the intent of
the aggressor to cause an injury shall have been made; a mere threatening or
intimidating attitude is not sufficient to justify the commission of an act which is
punishable per se, and allow a claim of exemption from liability on the ground that it
was committed in self-defense or defense of a relative. It has always been so
recognized in the decisions of the courts, in accordance with the provisions of the
Penal Code.13

Having admitted the killing of the victim, petitioner has the burden of proving these
elements by clear and convincing evidence. He must rely on the strength of his own
evidence and not on the weakness of that of the prosecution, for even if the
prosecution evidence is weak it cannot be disbelieved if the accused has admitted the
killing.14
In the case at bar, petitioner Ricardo utterly failed to adduce sufficient proof of the
existence of a positively strong act of real aggression on the part of the deceased
Senando. With the exception of his self-serving allegations, there is nothing on record
that would justify his killing of Senando.
First, Ricardos theory that when he reached the crime scene he found Senando
repeatedly hacking his brother Reynaldo who thereafter retaliated by smashing an
axe on the victims head is implausible in light of the seriousness of the wounds
sustained by the deceased as compared to the minor injuries inflicted upon petitioner
and his two (2) brothers. The fact that three (3) of the assailants suffered non-fatal
injuries bolsters the fact that Senando tried vainly to ward off the assaults of his
assailants.
Second, Ricardo failed to present himself to the authorities. He may have
accompanied the injured Reynaldo to the hospital after the encounter but still he
failed to present himself to the authorities and report the matter to them. The natural
impulse of any person who has killed someone in defense of his person or relative is
to bring himself to the authorities and try to dispel any suspicion of guilt that the
authorities might have against him. This fact assumes a more special significance
considering that his co-accused, Juanito and Armando, have remained at large.
Third, petitioner had a rather erratic recollection of people and events. He vividly
remembered how Reynaldo was injured by Senando but conveniently failed to recall
the events leading to the fatal wounding of the deceased. At another point, he testified
that Reynaldo axed Senando but later retracted his statement by declaring that it was
in fact Senando who hacked Reynaldo.15 We observe that the killing occurred within
or near the premises of the deceased. This proves per adventure the falsity of
petitioners claim that it was Senando, rather than he and his kin, who had initiated
the unlawful aggression.
On the other hand, private complainant pointed to petitioner as one of the principal
actors in the slaying of her husband Senando and the court a quo found her
testimony worthy of belief. The unbending jurisprudence is that findings of trial courts
on the matter of credibility of witnesses are entitled to the highest degree of respect
and will not be disturbed on appeal.16 The lower court also declared, and we agree,
that private complainants relationship with the deceased does not disqualify her from
testifying in the criminal case involving her relative or automatically sully her
testimony with the stain of bias.

On the injuries sustained by Amelia, we are of the opinion that, contrary to the finding
of the lower court as affirmed by the appellate court, petitioners homicidal intent has
not been indubitably established. As held inPeople v. Villanueva,17 the intent to kill
being an essential element of the offense of frustrated or attempted homicide, said
element must be proved by clear and convincing evidence, and with the same degree
of certainty as required of the other elements of the crime. The inference of intent to
kill should not be drawn in the absence of circumstances sufficient to prove such
intent beyond reasonable doubt.
The facts as borne out by the records do not warrant a finding that petitioner intended
to kill Amelia. Contrarily, the circumstances of the instant case indicate the opposite:
(a) that while petitioner was repeatedly assaulting the deceased, Amelia embraced
her husband in an attempt to avert further infliction of pain upon him; and, (b) when
he hit Amelia once on the left leg, a wound of slight nature, he did not do anything
more to pursue his homicidal urge18 but instead allowed her to scurry away. This set
of details reinforces this Courts belief that petitioner had no intention of killing Amelia
but nonetheless wounded her either because she unwittingly exposed herself in the
so-called "line-of-fire" when she embraced her husband, or that it was intended more
to deter her from further interfering. Had killing Amelia actually crossed petitioners
mind, he would have opted to hit his quarry on the vital portions of her body or strike
her several times more to attain his objective. But these he never did.
Considering that the injuries suffered by Amelia were not necessarily fatal and
required a medical attendance of four (4) days,19 we hold that the offense committed
by petitioner is only that of slight physical injuries. Under Art. 266, par. (1), of The
Revised Penal Code, this is punishable by arresto menor the duration of which is from
one (1) to thirty (30) days.20
WHEREFORE, the assailed Decision of the Court of Appeals in Crim. Case No.
49576 finding petitioner Ricardo Balunueco guilty of Homicide is AFFIRMED, and
there being no mitigating nor aggravating circumstance, petitioner is sentenced to an
indeterminate penalty of six (6) years, two (2) months and ten (10) days of prision
mayor minimum, as minimum, to fourteen (14) years, eight (8) months and twenty
(20) days of reclusion temporal medium, as maximum. Consistent with prevailing
jurisprudence, his civil liability to the heirs of Senando Iguico is fixed at P50,000.00.
The assailed Decision in Crim. Case No. 49577 for Attempted Homicide, on the other
hand, is MODIFIED. Petitioner Ricardo Balunueco is found guilty only of Slight
Physical Injuries for the wounding of Amelia Iguico, and is accordingly sentenced to
suffer a straight prison term of ten (10) days of arresto menor, and to pay the costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 149275

September 27, 2004

VICKY C. TY, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

Criminal Case No.

Check No.

Postdated

Amount

93-130459

487710

30 March 1993

P30,000.00

93-130460

487711

30 April 1993

P30,000.00

93-130461

487709

01 March 1993

P30,000.00

93-130462

487707

30 December 1992

P30,000.00

93-130463

487706

30 November 1992

P30,000.00

93-130464

487708

30 January 1993

P30,000.00

93-130465

487712

30 May 1993

P30,000.004

DECISION
TINGA, J.:
Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review under Rule 45,
seeking to set aside the Decision1of the Court of Appeals Eighth Division in CA-G.R.
CR No. 20995, promulgated on 31 July 2001. The Decisionaffirmed with modification
the judgment of the Regional Trial Court (RTC) of Manila, Branch 19, dated 21 April
1997, finding her guilty of seven (7) counts of violation of Batas Pambansa Blg.
222 (B.P. 22), otherwise known as the Bouncing Checks Law.
This case stemmed from the filing of seven (7) Informations for violation of B.P. 22
against Ty before the RTC of Manila. The Informations were docketed as Criminal
Cases No. 93-130459 to No. 93-130465. The accusatory portion of the Information in
Criminal Case No. 93-130465 reads as follows:
That on or about May 30, 1993, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously make or draw
and issue to Manila Doctors Hospital to apply on account or for value to
Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable
to Manila Doctors Hospital in the amount of P30,000.00, said accused well
knowing that at the time of issue she did not have sufficient funds in or credit
with the drawee bank for payment of such check in full upon its presentment,
which check when presented for payment within ninety (90) days from the
date hereof, was subsequently dishonored by the drawee bank for "Account
Closed" and despite receipt of notice of such dishonor, said accused failed to
pay said Manila Doctors Hospital the amount of the check or to make
arrangement for full payment of the same within five (5) banking days after
receiving said notice.
Contrary to law.3
The other Informations are similarly worded except for the number of the checks and
dates of issue. The data are hereunder itemized as follows:

The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not
guilty.5
The evidence for the prosecution shows that Tys mother Chua Lao So Un was
confined at the Manila Doctors Hospital (hospital) from 30 October 1990 until 4 June
1992. Being the patients daughter, Ty signed the "Acknowledgment of Responsibility
for Payment" in the Contract of Admission dated 30 October 1990.6 As of 4 June
1992, the Statement of Account7 shows the total liability of the mother in the amount
of P657,182.40. Tys sister, Judy Chua, was also confined at the hospital from 13 May
1991 until 2 May 1992, incurring hospital bills in the amount of P418,410.55.8 The
total hospital bills of the two patients amounted to P1,075,592.95. On 5 June 1992, Ty
executed a promissory note wherein she assumed payment of the obligation in
installments.9 To assure payment of the obligation, she drew several postdated
checks against Metrobank payable to the hospital. The seven (7) checks, each
covering the amount of P30,000.00, were all deposited on their due dates. But they
were all dishonored by the drawee bank and returned unpaid to the hospital due to
insufficiency of funds, with the "Account Closed" advice. Soon thereafter, the
complainant hospital sent demand letters to Ty by registered mail. As the demand
letters were not heeded, complainant filed the seven (7) Informations subject of the
instant case.10
For her defense, Ty claimed that she issued the checks because of "an uncontrollable
fear of a greater injury." She averred that she was forced to issue the checks to obtain
release for her mother whom the hospital inhumanely and harshly treated and would
not discharge unless the hospital bills are paid. She alleged that her mother was
deprived of room facilities, such as the air-condition unit, refrigerator and television
set, and subject to inconveniences such as the cutting off of the telephone line, late
delivery of her mothers food and refusal to change the latters gown and bedsheets.
She also bewailed the hospitals suspending medical treatment of her mother. The
"debasing treatment," she pointed out, so affected her mothers mental, psychological
and physical health that the latter contemplated suicide if she would not be
discharged from the hospital. Fearing the worst for her mother, and to comply with the
demands of the hospital, Ty was compelled to sign a promissory note, open an

account with Metrobank and issue the checks to effect her mothers immediate
discharge.11
Giving full faith and credence to the evidence offered by the prosecution, the trial
court found that Ty issued the checks subject of the case in payment of the hospital
bills of her mother and rejected the theory of the defense.12Thus, on 21 April 1997, the
trial court rendered a Decision finding Ty guilty of seven (7) counts of violation of B.P.
22 and sentencing her to a prison term. The dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7)
checks in payment of a valid obligation, which turned unfounded on their
respective dates of maturity, is found guilty of seven (7) counts of violations
of Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of
imprisonment of SIX MONTHS per count or a total of forty-two (42) months.

Petitioner now comes to this Court basically alleging the same issues raised before
the Court of Appeals. More specifically, she ascribed errors to the appellate court
based on the following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER
WAS FORCED TO OR COMPELLED IN THE OPENING OF THE
ACCOUNT AND THE ISSUANCE OF THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN
AVOIDANCE OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF
VALUABLE CONSIDERATION IN THE ISSUANCE OF THE SUBJECT
CHECKS.

SO ORDERED.13
Ty interposed an appeal from the Decision of the trial court. Before the Court of
Appeals, Ty reiterated her defense that she issued the checks "under the impulse of
an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury."
She also argued that the trial court erred in finding her guilty when evidence showed
there was absence of valuable consideration for the issuance of the checks and the
payee had knowledge of the insufficiency of funds in the account. She protested that
the trial court should not have applied the law mechanically, without due regard to the
principles of justice and equity.14
In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the
trial court with modification. It set aside the penalty of imprisonment and instead
sentenced Ty "to pay a fine of sixty thousand pesos (P60,000.00) equivalent to
double the amount of the check, in each case."15
In its assailed Decision, the Court of Appeals rejected Tys defenses of
involuntariness in the issuance of the checks and the hospitals knowledge of her
checking accounts lack of funds. It held that B.P. 22 makes the mere act of issuing a
worthless check punishable as a special offense, it being a malum prohibitum. What
the law punishes is the issuance of a bouncing check and not the purpose for which it
was issued nor the terms and conditions relating to its issuance.16
Neither was the Court of Appeals convinced that there was no valuable consideration
for the issuance of the checks as they were issued in payment of the hospital bills of
Tys mother.17
In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the
case of Vaca v. Court of Appeals18 wherein this Court declared that in determining the
penalty imposed for violation of B.P. 22, the philosophy underlying the Indeterminate
Sentence Law should be observed, i.e., redeeming valuable human material and
preventing unnecessary deprivation of personal liberty and economic usefulness, with
due regard to the protection of the social order.19

D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS

WAS FULLY AWARE OF THE LACK OF FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE
HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL
LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF
JUSTICE AND EQUITY.
In its Memorandum,20 the Office of the Solicitor General (OSG), citing jurisprudence,
contends that a check issued as an evidence of debt, though not intended to be
presented for payment, has the same effect as an ordinary check; hence, it falls
within the ambit of B.P. 22. And when a check is presented for payment, the drawee
bank will generally accept the same, regardless of whether it was issued in payment
of an obligation or merely to guarantee said obligation. What the law punishes is the
issuance of a bouncing check, not the purpose for which it was issued nor the terms
and conditions relating to its issuance. The mere act of issuing a worthless check
ismalum prohibitum.21
We find the petition to be without merit and accordingly sustain Tys conviction.
Well-settled is the rule that the factual findings and conclusions of the trial court and
the Court of Appeals are entitled to great weight and respect, and will not be disturbed
on appeal in the absence of any clear showing that the trial court overlooked certain
facts or circumstances which would substantially affect the disposition of the
case.22 Jurisdiction of this Court over cases elevated from the Court of Appeals is
limited to reviewing or revising errors of law ascribed to the Court of Appeals whose
factual findings are conclusive, and carry even more weight when said court affirms
the findings of the trial court, absent any showing that the findings are totally devoid of
support in the record or that they are so glaringly erroneous as to constitute serious
abuse of discretion.23
In the instant case, the Court discerns no compelling reason to reverse the factual
findings arrived at by the trial court and affirmed by the Court of Appeals.

Ty does not deny having issued the seven (7) checks subject of this case. She,
however, claims that the issuance of the checks was under the impulse of an
uncontrollable fear of a greater injury or in avoidance of a greater evil or injury. She
would also have the Court believe that there was no valuable consideration in the
issuance of the checks.
However, except for the defenses claim of uncontrollable fear of a greater injury or
avoidance of a greater evil or injury, all the grounds raised involve factual issues
which are best determined by the trial court. And, as previously intimated, the trial
court had in fact discarded the theory of the defense and rendered judgment
accordingly.
Moreover, these arguments are a mere rehash of arguments unsuccessfully raised
before the trial court and the Court of Appeals. They likewise put to issue factual
questions already passed upon twice below, rather than questions of law appropriate
for review under a Rule 45 petition.
The only question of law raised--whether the defense of uncontrollable fear is tenable
to warrant her exemption from criminal liability--has to be resolved in the negative.
For this exempting circumstance to be invoked successfully, the following requisites
must concur: (1) existence of an uncontrollable fear; (2) the fear must be real and
imminent; and (3) the fear of an injury is greater than or at least equal to that
committed.24
It must appear that the threat that caused the uncontrollable fear is of such gravity
and imminence that the ordinary man would have succumbed to it.25 It should be
based on a real, imminent or reasonable fear for ones life or limb.26 A mere threat of
a future injury is not enough. It should not be speculative, fanciful, or remote.27 A
person invoking uncontrollable fear must show therefore that the compulsion was
such that it reduced him to a mere instrument acting not only without will but against
his will as well.28 It must be of such character as to leave no opportunity to the
accused for escape.29
In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty
claims that she was compelled to issue the checks--a condition the hospital allegedly
demanded of her before her mother could be discharged--for fear that her mothers
health might deteriorate further due to the inhumane treatment of the hospital or
worse, her mother might commit suicide. This is speculative fear; it is not the
uncontrollable fear contemplated by law.
To begin with, there was no showing that the mothers illness was so life-threatening
such that her continued stay in the hospital suffering all its alleged unethical treatment
would induce a well-grounded apprehension of her death. Secondly, it is not the laws
intent to say that any fear exempts one from criminal liability much less petitioners
flimsy fear that her mother might commit suicide. In other words, the fear she invokes
was not impending or insuperable as to deprive her of all volition and to make her a
mere instrument without will, moved exclusively by the hospitals threats or demands.

Ty has also failed to convince the Court that she was left with no choice but to commit
a crime. She did not take advantage of the many opportunities available to her to
avoid committing one. By her very own words, she admitted that the collateral or
security the hospital required prior to the discharge of her mother may be in the form
of postdated checks or jewelry.30 And if indeed she was coerced to open an account
with the bank and issue the checks, she had all the opportunity to leave the scene to
avoid involvement.
Moreover, petitioner had sufficient knowledge that the issuance of checks without
funds may result in a violation of B.P. 22. She even testified that her counsel advised
her not to open a current account nor issue postdated checks "because the moment I
will not have funds it will be a big problem."31 Besides, apart from petitioners bare
assertion, the record is bereft of any evidence to corroborate and bolster her claim
that she was compelled or coerced to cooperate with and give in to the hospitals
demands.
Ty likewise suggests in the prefatory statement of her Petition and Memorandum that
the justifying circumstance of state of necessity under par. 4, Art. 11 of the Revised
Penal Code may find application in this case.
We do not agree. The law prescribes the presence of three requisites to exempt the
actor from liability under this paragraph: (1) that the evil sought to be avoided actually
exists; (2) that the injury feared be greater than the one done to avoid it; (3) that there
be no other practical and less harmful means of preventing it.32
In the instant case, the evil sought to be avoided is merely expected or anticipated. If
the evil sought to be avoided is merely expected or anticipated or may happen in the
future, this defense is not applicable.33 Ty could have taken advantage of an available
option to avoid committing a crime. By her own admission, she had the choice to give
jewelry or other forms of security instead of postdated checks to secure her
obligation.
Moreover, for the defense of state of necessity to be availing, the greater injury feared
should not have been brought about by the negligence or imprudence, more so, the
willful inaction of the actor.34 In this case, the issuance of the bounced checks was
brought about by Tys own failure to pay her mothers hospital bills.
The Court also thinks it rather odd that Ty has chosen the exempting circumstance of
uncontrollable fear and the justifying circumstance of state of necessity to absolve her
of liability. It would not have been half as bizarre had Ty been able to prove that the
issuance of the bounced checks was done without her full volition. Under the
circumstances, however, it is quite clear that neither uncontrollable fear nor avoidance
of a greater evil or injury prompted the issuance of the bounced checks.
Parenthetically, the findings of fact in the Decision of the trial court in the Civil
Case35 for damages filed by Tys mother against the hospital is wholly irrelevant for
purposes of disposing the case at bench. While the findings therein may establish a
claim for damages which, we may add, need only be supported by a preponderance

of evidence, it does not necessarily engender reasonable doubt as to free Ty from

liability.
As to the issue of consideration, it is presumed, upon issuance of the checks, in the
absence of evidence to the contrary, that the same was issued for valuable
consideration.36 Section 2437 of the Negotiable Instruments Law creates a
presumption that every party to an instrument acquired the same for a
consideration38 or for value.39 In alleging otherwise, Ty has the onus to prove that the
checks were issued without consideration. She must present convincing evidence to
overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to discharge her burden of
proof. "Valuable consideration may in general terms, be said to consist either in some
right, interest, profit, or benefit accruing to the party who makes the contract, or some
forbearance, detriment, loss or some responsibility, to act, or labor, or service given,
suffered or undertaken by the other aide. Simply defined, valuable consideration
means an obligation to give, to do, or not to do in favor of the party who makes the
contract, such as the maker or indorser."40
In this case, Tys mother and sister availed of the services and the facilities of the
hospital. For the care given to her kin, Ty had a legitimate obligation to pay the
hospital by virtue of her relationship with them and by force of her signature on her
mothers Contract of Admission acknowledging responsibility for payment, and on the
promissory note she executed in favor of the hospital.
Anent Tys claim that the obligation to pay the hospital bills was not her personal
obligation because she was not the patient, and therefore there was no consideration
for the checks, the case of Bridges v. Vann, et al.41 tells us that "it is no defense to an
action on a promissory note for the maker to say that there was no consideration
which was beneficial to him personally; it is sufficient if the consideration was a
benefit conferred upon a third person, or a detriment suffered by the promisee, at the
instance of the promissor. It is enough if the obligee foregoes some right or privilege
or suffers some detriment and the release and extinguishment of the original
obligation of George Vann, Sr., for that of appellants meets the requirement. Appellee
accepted one debtor in place of another and gave up a valid, subsisting obligation for
the note executed by the appellants. This, of itself, is sufficient consideration for the
new notes."
At any rate, the law punishes the mere act of issuing a bouncing check, not the
purpose for which it was issued nor the terms and conditions relating to its
issuance.42 B.P. 22 does not make any distinction as to whether the checks within its
contemplation are issued in payment of an obligation or to merely guarantee the
obligation.43The thrust of the law is to prohibit the making of worthless checks and
putting them into circulation.44 As this Court held in Lim v. People of the
Philippines,45 "what is primordial is that such issued checks were worthless and the
fact of its worthlessness is known to the appellant at the time of their issuance, a
required element under B.P. Blg. 22."
The law itself creates a prima facie presumption of knowledge of insufficiency of
funds. Section 2 of B.P. 22 provides:

Section 2. Evidence of knowledge of insufficient funds. - The making,

drawing and issuance of a check payment of which is refused by the drawee
bank because of insufficient funds in or credit with such bank, when
presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless
such maker or drawer pays the holder thereof the amount due thereon, or
makes arrangements for payment in full by the drawee of such check within
five (5) banking days after receiving notice that such check has not been
paid by the drawee.
Such knowledge is legally presumed from the dishonor of the checks for insufficiency
of funds.46 If not rebutted, it suffices to sustain a conviction.47
Petitioner likewise opines that the payee was aware of the fact that she did not have
sufficient funds with the drawee bank and such knowledge necessarily exonerates
her liability.
The knowledge of the payee of the insufficiency or lack of funds of the drawer with the
drawee bank is immaterial as deceit is not an essential element of an offense
penalized by B.P. 22. The gravamen of the offense is the issuance of a bad check,
hence, malice and intent in the issuance thereof is inconsequential.48
In addition, Ty invokes our ruling in Magno v. Court of Appeals49 wherein this Court
inquired into the true nature of transaction between the drawer and the payee and
finally acquitted the accused, to persuade the Court that the circumstances
surrounding her case deserve special attention and do not warrant a strict and
mechanical application of the law.
Petitioners reliance on the case is misplaced. The material operative facts therein
obtaining are different from those established in the instant petition. In the 1992 case,
the bounced checks were issued to cover a "warranty deposit" in a lease contract,
where the lessor-supplier was also the financier of the deposit. It was a modus
operandi whereby the supplier was able to sell or lease the goods while privately
financing those in desperate need so they may be accommodated. The maker of the
check thus became an unwilling victim of a lease agreement under the guise of a
lease-purchase agreement. The maker did not benefit at all from the deposit, since
the checks were used as collateral for an accommodation and not to cover the receipt
of an actual account or credit for value.
In the case at bar, the checks were issued to cover the receipt of an actual "account
or for value." Substantial evidence, as found by the trial court and Court of Appeals,
has established that the checks were issued in payment of the hospital bills of Tys
mother.
Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment,
absent any proof that petitioner was not a first-time offender nor that she acted in bad
faith. Administrative Circular 12-2000,50 adopting the rulings in Vaca v. Court of
Appeals51 and Lim v. People,52 authorizes the non-imposition of the penalty of
imprisonment in B.P. 22 cases subject to certain conditions. However, the Court

resolves to modify the penalty in view of Administrative Circular 13-200153 which

clarified Administrative 12-2000. It is stated therein:
The clear tenor and intention of Administrative Circular No. 12-2000 is not to
remove imprisonment as an alternative penalty, but to lay down a rule of
preference in the application of the penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of preference in the
application of the penal provisions of B.P. Blg. 22 such that where the
circumstances of both the offense and the offender clearly indicate good
faith or a clear mistake of fact without taint of negligence, the imposition of a
fine alone should be considered as the more appropriate penalty. Needless
to say, the determination of whether circumstances warrant the imposition of
a fine alone rests solely upon the Judge. Should the judge decide that
imprisonment is the more appropriate penalty, Administrative Circular No.
12-2000 ought not be deemed a hindrance.
It is therefore understood that: (1) Administrative Circular 12-2000 does not
remove imprisonment as an alternative penalty for violations of B.P. 22; (2)
the judges concerned may, in the exercise of sound discretion, and taking
into consideration the peculiar circumstances of each case, determine
whether the imposition of a fine alone would best serve the interests of
justice, or whether forbearing to impose imprisonment would depreciate the
seriousness of the offense, work violence on the social order, or otherwise
be contrary to the imperatives of justice; (3) should only a fine be imposed
and the accused unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary
imprisonment.54
WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court
of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of violating
Batas Pambansa Bilang 22 is AFFIRMED withMODIFICATIONS. Petitioner Vicky C.
Ty is ORDERED to pay a FINE equivalent to double the amount of each dishonored
check subject of the seven cases at bar with subsidiary imprisonment in case of
insolvency in accordance with Article 39 of the Revised Penal Code. She is also
ordered to pay private complainant, Manila Doctors Hospital, the amount of Two
Hundred Ten Thousand Pesos (P210,000.00) representing the total amount of the
dishonored checks. Costs against the petitioner.
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr., and Chico-Nazario*, JJ., concur.

G.R. No. 149652

Republic of the Philippines

SUPREME COURT
Manila

= Perforated left diaphragm.

SECOND DIVISION

= 2 point perforation stomach

March 24, 2006

EDUARDO L. BAXINELA, Petitioner-Appellant,

vs.
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee.
DECISION

= One two liters of blood in the abdominal cavity.

= Multiple perforation small, and large intestines and mesenteries.

= (+) Retroperitonial hematoma
DIAGNOSIS: Gunshot wound left of arm with fracture of the humerus,
penetrating the (L) thoracic cavity perforating the diaphragm, abdomen,
stomach and, intestines and retroperitoneum with slugs lodging the vertebral
colum[n].

AZCUNA, J.:
CAUSE OF DEATH: Cardiopulmonary arrest
Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of homicide
by the Regional Trial Court of Kalibo, Aklan1 (RTC) in Criminal Case No. 4877, as
affirmed with modification by the Court of Appeals (CA) in CA-G.R. CR No. 23348.
On February 19, 1997, an Information charging Baxinela with the crime of homicide
was filed as follows:2
That on or about the 19th day of October , 1996, early in the morning, at Poblacion,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, while armed with a
handgun, without justifiable cause and with intent to kill, did then and there wi[l]lfully,
unlawfully and feloniously attack, assault and shoot one RUPERTO F. LAJO, thereby
inflicting upon the latter mortal wounds, to wit:
"A. EXTERNAL FINDINGS:
= .56 cm entrance gunshot wound proximal third lateral aspect left
arm with fracture of the left humerus.
= 1 cm exit wound proximal third medial aspect left arm.
= 1 cm entrance gunshot wound anterior axillary line 5th
intercostals space left chest.
B. INTERNAL FINDINGS
= One liter of flood left thoracic cavity

Secondary to severe bleeding

Secondary to gunshot wound."
as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr. Rafael
S. Tumbokon Memorial Hospital, Kalibo, Aklan, which wounds directly caused the
death of RUPERTO F. LAJO, as per Certificate of Death, hereto attached as Annexes
"A" and "B" and forming part of this Information.
That as a result of the criminal acts of the accused the heirs of the deceased suffered
actual and compensatory damages in the amount of FIFTY THOUSAND PESOS
(P50,000.00).
CONTRARY TO LAW.
On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY.3 During pretrial, Baxinela informed the RTC that he would be claiming the justifying circumstance
of self-defense.4 In accordance with the Rules of Criminal Procedure, the defense
was the first to present evidence.5
The first witness for the defense was Insp. Joel Regimen.6 He testified that on
October 19, 1996, at about 12:35 a.m., he and Baxinela were walking along Toting
Reyes Street in Kalibo, Aklan when they were approached by a civilian named Romy
Manuba who informed them of a drunken person drawing a gun and creating trouble
inside the Playboy Disco Pub located on the second floor of the Kingsmen
building.7 They immediately proceeded to the reported place and, upon arrival,

recognized a former colleague, SPO4 Legarda, who was with a companion. Legarda
invited them to his table and the two obliged. Later, while seated at the table, they
saw someone with a handgun visibly tucked at the back of his waist about 4 meters
away. Regimen then instructed Baxinela to take a closer look at this person while he
makes a call to the Kalibo police station but before Regimen could stand up, the man
with a gun started to walk towards the door. As he passed by their table, Baxinela
stood up, introduced himself as a policeman and asked the man why he had a gun
with him. The man did not respond and, instead, suddenly drew out his gun. Baxinela
then drew his sidearm and was able to fire first, hitting the man on his upper left arm.
When the man fell down, Baxinela took his gun and wallet and handed them over to
Regimen. Regimen then stated that he enlisted the services of the pubs security
guard to bring the wounded man to the hospital while he and Baxinela proceeded to
the Kalibo Police Station and reported the matter to SPO4 Salvador Advincula. They
also went to Camp Pastor Martelino to report the matter to the Officer-in-Charge, Col.
Bianson.
The second witness for the defense was Romy Manuba,8 who testified that on
October 19, 1996, at around 12:30 a.m., he was on the second floor of the Kingsmen
building drinking liquor. While inside, he saw a drunken man wearing a white polo
shirt accosting several persons with a gun. Fearing the man with the gun, he left the
place to go home. On his way home he saw Regimen and Baxinela and he reported
to them what he had seen earlier.
The third witness for the defense was SPO4 Nepomuceno Legarda (Ret.).9 He
testified that on October 18, 1996, at about 11:00 p.m., he was inside the Superstar
Disco Pub drinking beer with a companion named Toto Dalida. At about 12:40 a.m.,
Legarda saw Regimen and Baxinela enter the pub and he invited them over to his
table. Later, as they were seating on the table, he noticed Regimen whisper
something to Baxinela and, at the same time, pointing to a man with a handgun
visibly tucked at the back of his waist. He then observed the armed person heading
for the door. But as he passed by their table Baxinela stood up, approached the man
from behind and said "Why do you have a gun. I am a policeman." The man did not
reply and, instead, turned around and drew his gun. As the man was turning, Baxinela
also drew his gun and was able to fire first, hitting the man on his left arm. After the
man fell on the floor, Baxinela grabbed the other mans firearm and handed it over to
Regimen. Regimen then requested one of the security guards to transport the
wounded man to the hospital. Regimen and Baxinela then proceeded to the Kalibo
Police Station while Legarda and Dalida went home.
Baxinela took the witness stand as the last witness for the defense.10 He testified that
he and Regimen were walking along Toting Reyes Street, looking for a tricycle to take
them home, when they were met by Manuba. Manuba reported to them that there
was an armed person, drunk inside the Superstar Disco Pub and creating trouble.
They then proceeded to the pub to verify the report. Once there, they saw Legarda

occupying a table near the entrance with a companion named Toto Dalida. Legarda
invited them to sit at his table. As they were sitting down, Regimen whispered to him
that there was a man with a gun tucked at the back of his waist and told him to watch
that person while he tries to look for a telephone to call the Kalibo Police Station. As
Regimen was about to stand, the armed man started to walk towards the entrance.
When he passed their table, Baxinela stood up, introduced himself as a policeman
and asked why he had a gun. The man did not respond but turned to face Baxinela,
drawing his gun. Baxinela immediately drew his firearm and beat him to the draw,
hitting the man on his left arm. When the man fell to the floor, Baxinela picked up the
mans gun and handed it over to Regimen. Baxinela also took his wallet for
identification. Regimen then told one of the security guards to bring the wounded man
to the hospital. Thereafter, Baxinela and Regimen went to the Kalibo Police Station to
report the incident and turned over the wallet. Next, they proceeded to Camp Pastor
Martelino and also reported the incident to Col. Bianson.
To rebut the claim of self-defense, the prosecution presented as its first
witness, Abelardo Alvarez.11 Alvarez was a security guard assigned to the Kingsmen
building during the incident in question. He testified that he was already acquainted
with Baxinela and that he saw him, together with Legarda and Regimen, already in
the Superstar Disco Pub as early as 11:00 p.m. of October 18, 1996 drinking. At
around 12:00 a.m. to 12:30 a.m. there was a minor altercation between the deceased
Sgt. Lajo and another customer at the pub but eventually the two were able to patch
things up. Lajo was then on his way out when Baxinela followed Lajo with a gun
already drawn out. Then, from behind, Baxinela held Lajos left arm and said "Ano ka
hay? Mam-an may baril ka?"12 He then heard Lajo respond "I am a MIG, Pare" after
that Alvarez heard an explosion coming from Baxinelas gun. Baxinela then got a gun
from Lajos waist and handed it over to Regimen. Afterwards Baxinela held both of
Lajos arms, who was still standing, and pushed him against the wall and repeated his
question. Lajo answered "Why did you shoot me? I am also a military." At this point
Lajo got out his wallet and gave it to Baxinela. Baxinela opened the wallet and looked
at an ID. Afterwards Baxinela and Regimen just left and did nothing to aid Lajo.
Alvarez and his fellow security guard, Rolando Gabriel, then picked up Lajo and
boarded him on a tricycle. Gabriel brought him to the hospital, while Alvarez remained
at his post.
The second witness of the prosecution was Rolando Gabriel.13 Gabriel substantially
corroborated the testimony of Alvarez on what occurred on the night in question. He
testified that he noticed the presence of Lajo inside the pub at around 10:30 p.m. of
October 18, 1996 while he first saw Baxinela, Regimen and Legarda there as early as
11:00 p.m. At around 12:45 a.m., he witnessed Lajo going towards the entrance of the
pub where Baxinela was already standing and holding a .45 caliber pistol. Baxinela
approached Lajo from behind and held his left shoulder asking "Who are you?" Lajo
responded "I am MIG." Afterwards he was shot by Baxinela. Baxinela then got Lajos
gun from his waist and gave it to Regimen. Thereafter, Baxinela, with both hands,
pushed Lajo against the wall and again asked "What are you?" Lajo got his wallet

from his back pocket and handed it over to Baxinela. After opening the wallet
Baxinela and Regimen left the disco pub. Lajo, still standing, took two steps and then
fell down. Gabriel and Alvarez then picked Lajo up and carried him to a tricycle which
took him to the hospital. Gabriel also stated that ten minutes before the shooting
incident there was another incident where Lajo accosted some customer but
afterwards he saw that the two shook hands and embraced each other.

IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the
Appellant guilty beyond reasonable doubt of the crime charged is AFFIRMED, with
the MODIFICATION, that the Appellant is hereby meted an indeterminate penalty of
from EIGHT (8) YEARS and ONE (1) DAY OF Prision Mayor, as Minimum, to
TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS
of Reclusion Temporal, as Maximum.

The third witness for the prosecution was Salvador Advincula, the PNP Desk Officer
who entered in the police blotter the incident that occurred in Superstar Disco Pub.
He also testified on the events that occurred inside the precinct wherein the gun of
Lajo accidentally fell on the table and fired.

SO ORDERED.

The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who testified
as to damages.14
As a sur-rebuttal witness, the defense presented Ronald Nahil who testified that he
was on the ground floor of Kingsmen building with Alvarez and Gabriel when they
heard a shot ring out from the second floor.15
After receiving all of the evidence, the RTC found the version of the prosecution, that
Baxinela shot Lajo as the latter was turning around and without having drawn his gun,
more convincing, and rendered a decision convicting Baxinela. The RTC, however,
considered in favor of Baxinela the mitigating circumstances of voluntary surrender
and provocation. The dispositive portion of the decision is as follows:16
WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty
beyond reasonable doubt of the crime of Homicide, and considering the mitigating
circumstances of voluntary surrender and provocation, and applying the
Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of
imprisonment of 4 years of prision correccional medium as minimum, to 8 years and 1
day of prision mayor medium as maximum.
The accused is further ordered to pay a) the sum of P50,000.00 as civil indemnity for
the death of Sgt. Ruperto F. Lajo; b) then sum of P81,000.00 as actual and
compensatory damages; and c) the sum of P30,000.00 as moral damages; plus costs
of suit.
SO ORDERED.
On appeal, the CA modified Baxinelas conviction by disallowing the mitigating
circumstance of sufficient provocation. Accordingly, the dispositive portion of the
appellate courts decision reads as follows:17

Baxinela filed the present petition for review on certiorari citing the following grounds:
A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED
IN GIVING CREDENCE TO THE VERSION OF THE PROSECUTION.
B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING
CIRCUMSTANCES OF SELF DEFENSE OR IN THE ALTERNATIVE THE LAWFUL
PERFORMANCE OF OFFICIAL DUTY UNDER ARTICLE 11 PARAGRAPHS 1 AND
5, RESPECTIVELY, OF THE REVISED PENAL CODE.
C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN
CONVICTING THE ACCUSED.
D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN
NOT CONSIDERING THE QUALIFIED MITIGATING CIRCUMSTANCES IN FAVOR
OF THE ACCUSED.
Resolution of the petition will entail an initial determination of which version of the
incident will be accepted. The defense alleges that Baxinela proceeded to the
Superstar Disco Pub in response to the information given by Manuba that there was
an armed drunken man accosting several people inside the pub. Once they arrived,
they saw Lajo with a handgun visibly tucked behind his waist. When Baxinela
introduced himself as a policeman and asked why he had a handgun, Lajo suddenly
drew on him prompting Baxinela to pull out his gun and fire upon Lajo, critically
wounding him. Thereafter, the defense claims that Regimen ordered the security
guards to bring Lajo to the hospital while they proceed to the police station to report
the incident.
The prosecution, on the other hand, contends that Baxinela was already in the pub
drinking with Regimen and Legarda for more than a couple of hours prior to the
shooting incident. After witnessing an altercation between Lajo and another customer,
Baxinela decided to confront Lajo on why he had a gun with him. Baxinela
approached Lajo from behind and held the latter on the left shoulder with one hand
while holding on to his .45 caliber service firearm with the other. As Lajo was turning

around, to see who was confronting him, Baxinela shot him. Baxinela then got Lajos
wallet and fled the scene with Regimen.
As mentioned, the RTC and CA accepted the prosecutions version. The Court finds
no reason to disturb such findings. Factual findings of the trial court, when adopted
and confirmed by the CA, are final and conclusive unless circumstances are present
that would show that the lower courts have overlooked, misunderstood or
misconstrued cogent facts that may alter the outcome of the case.18 It does not
appear that the conclusions that led to the conviction of Baxinela were arbitrarily
reached by the lower courts and Baxinela has failed to point out any relevant
circumstance that would convince the Court that a re-examination of the facts is
warranted. On the contrary, Baxinelas version is challenged by his own contradicting
testimony and other documentary evidence. Early in his testimony, Baxinela
maintained that Lajo had already pulled his handgun and was aiming at him when he
fired:
Q. What else did you do after identifying yourself as a policeman and ask[ing] why he
has a gun?
A. He did not respond.
Q. What else happened if anything happened?
A. He immediately drew his gun turning towards me and aimed it at me.19
Subsequently, when the trial court propounded clarificatory questions, Baxinelas new
assertion was that the firearm was still at the back of Lajo:
Q. At the moment that you fired, was he already able to dr[a]w his firearm or not yet?
A. Yes sir, already pulled out but still at the back.20
Furthermore, the follow-up investigation conducted by the police yielded a different
picture of what happened. This was entered into the police records as Entry No. 3359
and it reads in part: 21
x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his possession a
firearm and when the victim SGT Ruperto Lajo PA was about to get his wallet on his
back pocket for his ID, SPO2 Eduardo Baxinela anticipated that the victim was
drawing his firearm on his waist prompting said policeman to shoot the victim. x x x

The Court now proceeds to determine if, following the prosecutions version of what
happened, Baxinela can claim the justifying circumstances of self-defense and
fulfillment of a duty or lawful exercise of a right or office.
The requisites for self-defense are: 1) unlawful aggression on the part of the victim; 2)
lack of sufficient provocation on the part of the accused; and 3) employment of
reasonable means to prevent and repel and aggression.22 By invoking self-defense,
Baxinela, in effect, admits killing Lajo, thus shifting upon him the burden of the
evidence on these elements.
The first requisite is an indispensable requirement of self-defense. It is a
condition sine qua non, without which there can be no self-defense, whether complete
or incomplete.23 On this requisite alone, Baxinelas defense fails. Unlawful aggression
contemplates an actual, sudden and unexpected attack on the life and limb of a
person or an imminent danger thereof, and not merely a threatening or intimidating
attitude.24 The attack must be real, or at least imminent. Mere belief by a person of an
impending attack would not be sufficient. As the evidence shows, there was no
imminent threat that necessitated shooting Lajo at that moment. Just before Baxinela
shot Lajo, the former was safely behind the victim and holding his arm. It was Lajo
who was at a disadvantage. In fact, it was Baxinela who was the aggressor when he
grabbed Lajos shoulder and started questioning him. And when Lajo was shot, it
appears that he was just turning around to face Baxinela and, quite possibly, reaching
for his wallet. None of these acts could conceivably be deemed as unlawful
aggression on the part of Lajo.
Next, we consider the alternative defense of fulfillment of a duty. In order to avail of
this justifying circumstance it must be shown that: 1) the accused acted in the
performance of a duty or in the lawful exercise of a right or office; and 2) the injury
caused or the offense committed is the necessary consequence of the due
performance of duty or the lawful exercise of a right or office.25 While the first
condition is present, the second is clearly lacking. Baxinelas duty was to investigate
the reason why Lajo had a gun tucked behind his waist in a public place. This was
what Baxinela was doing when he confronted Lajo at the entrance, but perhaps
through anxiety, edginess or the desire to take no chances, Baxinela exceeded his
duty by firing upon Lajo who was not at all resisting. The shooting of Lajo cannot be
considered due performance of a duty if at that time Lajo posed no serious threat or
harm to Baxinela or to the civilians in the pub.
Essentially, Baxinela is trying to convince the Court that he should be absolved of
criminal liability by reason of a mistake of fact, a doctrine first enunciated in United
States v. Ah Chong.26 It was held in that case that a mistake of fact will exempt a
person from criminal liability so long as the alleged ignorance or mistake of fact was
not due to negligence or bad faith. In examining the circumstances attendant in the
present case, the Court finds that there was negligence on the part of Baxinela. Lajo,

when he was shot, was simply turning around to see who was accosting him.
Moreover, he identified himself saying "I am MIG." These circumstances alone would
not lead a reasonable and prudent person to believe that Baxinelas life was in peril.
Thus, his act of shooting Lajo, to the mind of this Court, constitutes clear negligence.
But even if the Court assumes that Lajos actions were aggressive enough to appear
that he was going for his gun, there were a number of procedures that could have
been followed in order to avoid a confrontation and take control of the situation.
Baxinela, whom the Court assumes not to be a rookie policeman, could have taken
precautionary measures by simply maintaining his hold on to Lajos shoulders,
keeping Lajo facing away from him, forcing Lajo to raise his hands and then take
Lajos weapon. There was also Regimen who should have assisted Baxinela in
disabling and disarming Lajo. The events inside the disco pub that unnecessarily cost
the life of Lajo did not have to happen had Baxinela not been negligent in performing
his duty as a police officer.
The Court will, however, attribute to Baxinela the incomplete defense of fulfillment of a
duty as a privileged mitigating circumstance. In Lacanilao v. Court of Appeals,27 it was
held that if the first condition is fulfilled but the second is wanting, Article 69 of the
Revised Penal Code is applicable so that the penalty lower than one or two degrees
than that prescribed by law shall be imposed.28 Accordingly, the Court grants in favor
of Baxinela a privileged mitigating circumstance and lower his penalty by one degree.
His entitlement to the ordinary mitigating circumstance of voluntary surrender is also
recognized, thereby further reducing his penalty to its minimum.
The Court commiserates with our policemen who regularly thrust their lives in zones
of danger in order to maintain peace and order and acknowledges the apprehensions
faced by their families whenever they go on duty. But the use of unnecessary force or
wanton violence is not justified when the fulfillment of their duty as law enforcers can
be effected otherwise. A "shoot first, think later" attitude can never be countenanced
in a civilized society.
WHEREFORE, the decision of the Court of Appeals is MODIFIED. The conviction of
appellant Eduardo Baxinela for the crime of homicide is AFFIRMED but his sentence
is reduced to an indeterminate penalty of four (4) years and two (2) months of prision
correccional medium, as minimum, to eight (8) years of prision mayor minimum, as
maximum. The awards of damages are affirmed. No costs.
SO ORDERED.
THIRD DIVISION
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,

G.R. No. 186128

Present:

CARPIO MORALES, J.,

Chairperson,
BRION,
BERSAMIN,
ABAD,* and
VILLARAMA, JR., JJ.

- versus -

SUSAN LATOSA y CHICO,

Accused-Appellant.

Promulgated:

June 23, 2010

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:
This is an appeal from the Decision[1] dated April 23, 2008 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 02192 which affirmed the April 12, 2006
Decision[2]of the Regional Trial Court (RTC) of Pasig City, Branch 159, convicting
appellant Susan Latosa y Chico of parricide.
Appellant was charged with parricide in an information[3] which reads,
That, on or about the 5th of February 2002, in the Municipality of
Taguig, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being then the
legitimate wife of one Felixberto Latosa y Jaudalso, armed with and
using an unlicensed gun, with intent to kill, did then and there
willfully, unlawfully and feloniously shoot her husband, Felixberto
Latosa y Jaudalso, hitting him on the head, thereby causing the
latter to sustain gunshot wound which directly caused his death.
CONTRARY TO LAW.
Upon arraignment on June 25, 2002, appellant, with the assistance of
counsel, pleaded not guilty. Trial thereafter ensued.
The prosecutions evidence established the following version:
On February 5, 2002, at around 2:00 in the afternoon, appellant and her
husband Major Felixberto Latosa, Sr. (Felixberto) together with two (2) of their
children, Sassymae Latosa (Sassymae) and Michael Latosa (Michael), were at their
house in Fort Bonifacio. Felixberto, Sr. was then asleep[4] when Sassymae saw
appellant take Felixberto Sr.s gun from the cabinet and leave. She asked her mother
where she was going and if she could come along, but appellant refused.[5]
Moments later, appellant returned and told Sassymae to buy ice cream at
the commissary. Appellant gave her money and asked her to leave.[6] After Sassymae
left, appellant instructed Michael to follow his sister, but he refused as he was hungry.

Appellant insisted and further told Michael not to make any noise as his father was
sleeping. Nevertheless, appellant went back inside the house and turned up the
volume of the television and the radio to full. [7] Shortly after that, she came out again
and gave Michael some money to buy food at the grocery.
Instead of buying food, Michael bought ice candy and returned to the
barracks located at the back of their house. Michael thereupon saw his friend MacMac Nisperos who told him that he saw appellant running away from their house.
Michael did not pay any attention to his friends comment, and simply continued eating
his ice candy. Moments later, a certain Sgt. Ramos arrived and asked if something
had happened in their house. Michael replied in the negative then entered their
house. At that point, he saw his father lying on the bed with a hole in the left portion of
his head and a gun at his left hand.
Michael immediately went outside and informed Sgt. Ramos about what
happened. Sgt. Ramos told him that appellant had reported the shooting incident to
the Provost Marshall office.[8] Then, Sassymae arrived and saw her father with a bullet
wound on his head and a gun near his left hand.[9]
Felixberto Latosa, Jr., one (1) of the legitimate sons of appellant and the
victim, also testified that sometime in December 2001, their father told him and his
siblings over dinner about a threat to their lives by a certain Efren Sta. Inez.[10]
Appellant, testifying on her own behalf, on the other hand claimed that when
Felixberto, Sr. woke up, he asked her to get his service pistol from the cabinet
adjacent to their bed. As she was handing the pistol to him it suddenly fired, hitting
Felixberto, Sr. who was still lying down. Shocked, she ran quickly to Felixberto, Sr.s
office and asked for help.[11] She also claimed that when Felixberto, Sr. asked her for
his gun, she was on her way out of the house to follow her children who left for the
market on an errand she had earlier given Sassymae. She claimed that she wanted
to drive for them because it was hot. She ran after them but after a few minutes, when
she realized that she did not have with her the keys to their jeep, she went back to
their house. Felixberto, Sr. then asked again for his gun, and it was then that it fired
as she was handing it to him.[12]
Appellant further described herself as a good mother and a good provider for
their six (6) children whom she raised by herself while Felixberto, Sr. was
in Mindanao. She claimed that they testified against her because they were
manipulated by her brother-in-law, Francisco Latosa.[13] She denied that Sassymae
saw her holding a gun when she asked her to buy ice cream, alleging that Michael
and Sassymae saw her holding the gun only when she placed it inside the cabinet
before they proceeded to the hospital.[14]
Appellant also denied her childrens testimony[15] that she was having an
affair with a certain Col. Efren Sta. Inez (Sta. Inez), a policeman. She claimed that
she first met Sta. Inez when her youngest brother was killed on June 6, 2001 by
unidentified men. Sta. Inez was the one (1) who assisted her. She was alone at that

time since her husband informed her that he could not leave his post in Mindanao for
he had to rush some papers. She allegedly only saw Sta. Inez twice but admitted that
Sta. Inez went to the precinct when he learned of the shooting incident. [16] She also
denied that she was terminated from her job at the Philippine Public Safety College
due to immorality for having said affair. She claimed that she was terminated because
she had incurred numerous absences from her work as she grieved the death of her
youngest brother and had lost interest in her work after his death.[17]
The RTC found appellant guilty beyond reasonable doubt for killing her
husband Felixberto, Sr. The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, this Court finds
the accused SUSAN LATOSA Y CHICO GUILTY beyond
reasonable doubt of the crime of parricide under Art. 246 of the
Revised Penal Code as amended by RA 7659 in rel. to Sec. 1[,]
3rd par. PD 1866 as amended by RA 8294 and Sec. 5, RA 8294 and
hereby sentences the said accused to suffer the penalty ofreclusion
perpetua and to further indemnify the victim the amount of P50,000
as civil indemnity[,] P50,000 as moral damages and P25,000 as
exemplary damages.
SO ORDERED.[18]
The RTC held that the claim of accidental shooting was inconsistent with the
evidence considering the location of the gunshot wound, which was at the
left temple ofFelixberto, Sr., and the fact that the gun was found near Felixberto, Sr.s
left hand despite his being right-handed. The trial court found that appellant planned
the killing by asking her two (2) children to leave the house and, after the shooting,
placing the gun near the victims left hand to suggest that the death was suicide. But
appellant overlooked the fact that Felixberto, Sr. was right-handed. The trial court
noted that despite the grueling cross-examination of the defense counsel, the Latosa
children never wavered in their testimonies about what they knew regarding the
circumstances surrounding the shooting incident. Their testimonies bore the
hallmarks of truth as they were consistent on material points. The RTC found it
inconceivable that the children would testify against their own mother or concoct a
story of parricide unless they were impelled by their passion to condemn an injustice
done to their father.[19]
The RTC, in finding appellant guilty, considered the following circumstantial
evidence established by the prosecution: (1) shortly before the shooting, appellant
asked her two (2) children to do errands for her which were not usually asked of
them; (2) at the time of the shooting, only the appellant and Felixberto, Sr. were in the
house; (3) appellant was seen running away from the house immediately after the
shooting; (4) when Michael went inside their house, he found his father with a hole in
the head and a gun in his left hand; (5) the medico-legal report showed that the cause
of death was intracranial hemorrhage due to the gunshot wound on the head with the
point of entry at the left temporal region; (6) the Firearms Identification Report
concluded that appellant fired two (2) shots; (7) Felixberto, Sr. was right-handed and the
gun was found near his left hand; (8) Sassymae testified that she heard Sta. Inez tell

appellant bakit mo inamin. Sana pinahawak mo kay Major iyong baril saka mo
pinutok; (9) appellants children testified that they were informed by Felixberto, Sr.
regarding the threat of appellants paramour, Sta. Inez, to the whole family; and (10)
Francisco Latosa presented a memorandum showing that appellant was terminated
from her teaching job by reason of immorality.[20]
On appeal, the CA upheld the decision of the RTC. The CA held that since
appellant admitted having killed her husband albeit allegedly by accident, she has the
burden of proving the presence of the exempting circumstance of accident to relieve
herself of criminal responsibility. She must rely on the strength of her own evidence
and not on the weakness of the prosecution, for even if this be weak, it cannot be
disbelieved after the appellant has admitted the killing.[21]
The CA, however, found appellants version of accidental shooting not
credible. Citing the case of People v. Reyes,[22] the CA held that appellants claim of
accidental shooting was negated by the following facts: (1) a revolver is not prone to
accidental firing as pressure on the trigger is necessary to make the gun fire, cocked
or uncocked; and (2) when handing a gun to a person, the barrel or muzzle is never
pointed to that person. In this case, appellant held the gun in one (1) hand and
extended it towards her husband who was still lying in bed. Assuming that appellant
was not aware of the basic firearm safety rule that the firearms muzzle is never
pointed to a person, she failed to explain why the gun would accidentally fire, when it
should not have fired unless there was pressure on the trigger. The location of
Felixberto, Sr.s wound also showed that the shooting was not accidental. Appellant
did not dispute that Felixberto, Sr. was lying down during the shooting and that after
the incident, the gun was found near his left hand. The CA found that it was contrary
to human nature that a newly awakened military man would suddenly ask his wife,
who was busy doing other things, to bring his firearm, and patiently wait for her to
come back to their house, when the gun was just inside an adjacent cabinet only two
(2) meters away from his bed.[23]
The dispositive portion of the CA decision reads as follows:
WHEREFORE, premises considered, the assailed
decision of the Regional Trial Court of Pasig City, Branch 159, in
Criminal Case No. 122621-H finding SUSAN LATOSA y CHICO
guilty beyond reasonable doubt of the crime of parricide under
Article 246 of the Revised Penal Code and sentencing her to suffer
the penalty of reclusion perpetua and ordering her to pay the heirs
of Felixberto Latosa the amount of P50,000.00 as civil indemnity,
P50,000.00 as moral damages, and P25,000.00 as exemplary
damages is AFFIRMED.
SO ORDERED.[24]
Undaunted, appellant filed a Notice of Appeal on May 12, 2008.[25]

Appellant argues that the circumstantial evidence presented by the

prosecution was insufficient to prove that she intentionally killed her husband. She
insists that the gun fired accidentally while she was giving it to Felixberto, Sr. Since
she had no experience in handling firearms, she was not able to foresee that it would
fire accidentally and hit her husband. After her husband was hit, she immediately
rushed to his office and asked for assistance.[26]
The only issue the Court has to resolve in this case is whether the
exempting circumstance of accident was established by appellant.
The basis of appellants defense of accidental shooting is Article 12,
paragraph 4 of the Revised Penal Code, as amended, which provides:
ART. 12. Circumstances which exempt from criminal
liability. The following are exempt from criminal liability:
xxxx
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.
Thus, it was incumbent upon appellant to prove with clear and convincing
evidence, the following essential requisites for the exempting circumstance of
accident, to wit:
1. She was performing a lawful act;
2. With due care;
3. She caused the injury to her husband by mere accident;
4. Without fault or intention of causing it.[27]

To prove the circumstance she must rely on the strength of her own
evidence and not on the weakness of that of the prosecution, for even if this be weak,
it can not be disbelieved after the accused has admitted the killing.[28]
However, by no stretch of imagination could the pointing of the gun towards
her husbands head and pulling the trigger be considered as performing a lawful
act with due care. As correctly found by the CA, which we quote in full:
Appellants version that she accidentally shot her husband
is not credible. Appellants manner of carrying the caliber .45 pistol
negates her claim of due care in the performance of an act. The
location of the wound sustained by the victim shows that the
shooting was not merely accidental. The victim was lying down and
the fact that the gun was found near his left hand was not directly
disputed by her. We find it contrary to human nature that a newly
awakened military man would suddenly ask his wife for his firearm,
and even patiently wait for her return to the house, when the said

firearm was just inside the cabinet which, according to appellant,

was just about two meters away from his bed.
xxxx
In the case at bench, appellant held the gun in one hand
and extended it towards her husband who was still lying in bed.
Assuming arguendo that appellant has never learned how to fire a
gun and was merely handing the firearm over to the deceased, the
muzzle is never pointed to a person, a basic firearms safety rule
which appellant is deemed to have already known since she
admitted, during trial, that she sometimes handed over the gun to
her husband. Assuming further that she was not aware of this basic
rule, it needed explaining why the gun would accidentally fire, when
it should not, unless there was pressure on the trigger.[29]
There is no merit in appellants contention that the prosecution failed to prove
by circumstantial evidence her motive in killing her husband. Intent to kill and not
motive is the essential element of the offense on which her conviction rests. Evidence
to prove intent to kill in crimes against persons may consist, inter alia, in the means
used by the malefactors, the nature, location and number of wounds sustained by the
victim, the conduct of the malefactors before, at the time, or immediately after the
killing of the victim, the circumstances under which the crime was committed and the
motives of the accused. If the victim dies as a result of a deliberate act of the
malefactors, intent to kill is presumed.[30]
In the instant case, the following circumstantial evidence considered by the
RTC and affirmed by the CA satisfactorily established appellants intent to kill her
husband and sustained her conviction for the crime, to wit:
The prosecution established the following circumstantial evidence:
(1) Susan Latosa, the accused, asked her twins to do errands for her.
She first asked Sassymae to go to Commissary to buy ice cream,
thereafter, she asked Michael to follow his sister at the Commissary
which according to the prosecution witnesses was not the usual thing
the accused would do;
(2) Thereafter, it was only the accused and the victim who were left
alone in the house;
(3) After the witness Michael, son of the accused and the victim left
and proceeded at the barracks located at the back of their house,
Susan Latosa was seen running away from the house by Michaels
friend named Macmac;
(4) Immediately thereafter, Michael Latosa went inside the room of
their barracks and saw his father with sort of a hole in the head,
blood on the nose and had a gun in his left hand (TSN, May 5,
2003, pp. 7-8, 12-13);

(5) The cause of death of the victim Felixberto Latosa was

intracranial hemorrhage due to gunshot wound of the head (per
Medico-legal Report No. M-052-2002, Exh. P);
(6) Susan Latosas paraffin test yielded positive result for the
presence of gunpowder nitrate in her right hand;
xxx
(8) The point of entry of the gunshot wound found on the victim was
located at the left temporal region as evidenced by Medico Legal
Report No. M-052-2002 (Exhibit P);
(9) The victim was a right-handed and the gun was found on the
latters left hand;
(10) Sassymae Latosa [testified] that she heard Col. Sta. Inez [tell]
her mother, bakit mo inamin. Sana pinahawak mo kay Major iyong
baril saka mo pinutok. (TSN, May 19, 2002, p. 13); and
(11) The children testified that they were informed by the victim
regarding the threat of Sta. Inez to the whole family who alleged[ly]
has an amorous relationship with their mother. Francisco Latosa
presented a memorandum that accused was terminated from her
teaching job by reason of immorality.[31]
Moreover, the Court finds no cogent reason to review much less depart now
from the findings of the RTC as affirmed by the CA that appellants version is
undeserving of credence. It is doctrinally settled that the assessments of the
credibility of witnesses and their testimonies is a matter best undertaken by the trial
court, because of its unique opportunity to observe the witnesses firsthand and to
note their demeanor, conduct and attitude under grilling examination. These are the
most significant factors in evaluating the sincerity of witnesses and in unearthing the
truth, especially in the face of conflicting testimonies. Through its observations during
the entire proceedings, the trial court can be expected to determine, with reasonable
discretion, whose testimony to accept and which witness to believe. Verily, findings of
the trial court on such matters will not be disturbed on appeal unless some facts or
circumstances of weight have been overlooked, misapprehended or misinterpreted so
as to materially affect the disposition of the case.[32] We find none in this case.
One last note. On the matter of damages, the CA awarded exemplary
damages in the amount of P25,000.00. We increase the award to P30,000.00 in light
of prevailing jurisprudence[33] fixing the award of exemplary damages to said amount.
WHEREFORE, the appeal of Susan Latosa y Chico is DISMISSED. The
April 23, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02192 is
herebyAFFIRMED with MODIFICATION. The amount of exemplary damages is
increased to P30,000.00.
With costs against the accused-appellant.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 147674-75

March 17, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ANACITO OPURAN, appellant.
DECISION
DAVIDE, JR., C.J.:
Appellant Anacito Opuran was charged with two counts of murder before the Regional
Trial Court of Catbalogan, Samar, Branch 29, for the death of Demetrio Patrimonio,
Jr., and Allan Dacles under separate informations, the accusatory portions of which
respectively read:
Criminal Case No. 4693
That on or about November 19, 1998, at nighttime, at Km. 1, South Road,
Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction
of this Honorable Court, said accused, with deliberate intent to kill and treachery, did,
then and there willfully, unlawfully, and feloniously attack, assault and stab Demetrio
Patrimonio, Jr., with the use of a bladed weapon (5" long from tip to handle with
scabbard), thereby inflicting upon the victim fatal stab wounds on the back of his
body, which wounds resulted to his instantaneous death.
All contrary to law, and with attendant qualifying circumstance of treachery.1
Criminal Case No. 4703
That on or about November 19, 1998, at nighttime, at Purok 3, Barangay 7,
Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction
of this Honorable Court, said accused, with deliberate intent to kill, with treachery, did,
then and there, willfully, unlawfully and feloniously attack, assault and stab one Allan
Dacles, who was lying on the bench, with the use of a bladed weapon, locally known
as pisao, thereby inflicting upon the victim fatal stab wounds on the different parts of
his body, which wounds resulted to his instantaneous death.

All contrary to law, and with attendant qualifying circumstance of treachery.2

After Anacito entered a plea of not guilty at his arraignment, trial ensued.3
The evidence for the prosecution discloses that on 19 November 1998, at about 6:30
p.m., prosecution witness Bambi Herrera was studying his lessons inside his house.
His brother and a certain Jason Masbang were outside sitting side by side with each
other on a plastic chair; opposite them was Allan Dacles, who was lying on a bench.4
Moments later, Jason barged into Bambis house, shouting: "Theres a long-haired
man!" Bambi stood up and looked through the open door. He saw appellant Anacito
Opuran stab Allan on the chest with a knife while the latter appeared to be trying to
stand up from the bench. Although Allan had several stab wounds on different parts of
his body, he managed to stand up and run inside Bambis house, with Anacito
chasing him. Bambi immediately locked the door from the inside to prevent Anacito
from entering. But the latter tried to force the door open by thrusting a knife at the
door shutter. He also threw stones at the door. After a short while, Anacito left.5
With Anacito gone, Bambi went out to ask the aid of his neighbors so he could bring
Allan to the hospital. He saw Anacitos two brothers and asked for their assistance.
But one of them merely said: "Never mind because he [referring to Anacito] is
mentally imbalanced."6 As nobody from among his neighbors responded to his plea
for help, Bambi carried Allan on his shoulders and dragged him to the lower portion of
the neighborhood. Several persons, who were having a drinking session, helped
Bambi bring Allan to the hospital. Allan, however, died about fifteen minutes later.7
At about 7:45 p.m. of the same day, prosecution witness Tomas Bacsal, Jr., of
Barangay San Pablo, Catbalogan, Samar, was in the house of Demetrio Patrimonio,
Sr., seeking medical advice from the latters wife. While there, Tomas heard a
commotion outside. He looked out from the balcony and saw people running. He
learned that Anacito had stabbed somebody.8
After about fifteen minutes, while Tomas was on his way home, he saw Demetrio
Patrimonio, Jr. He likewise noticed Anacito hiding in a dark place. When Demetrio Jr.
reached the national highway, near the so-called "lovers lane," Anacito emerged from
his hiding place and stabbed Demetrio Jr. with a knife about three to four times.9
Tomas immediately ran to the house of the Demetrios to inform them of what he had
just witnessed. He then saw Demetrio Jr. running towards his parents house, but the
latter did not make it because he collapsed near the fence. Tomas also caught sight
of Anacito running towards the direction of the house of the Opurans. Meanwhile,
Demetrio Jr. was brought by his parents to the Samar Provincial Hospital, where he
died the following day.10

Dr. Angel Tan, Medical Specialist II of the Samar Provincial Hospital, conducted an
autopsy on the cadavers of Allan and Demetrio Jr. He found five stab wounds on
Allans body, one of which was fatal because it affected the upper lobe of the right
lung and bronchial vessel.11 Demetrio Jr. sustained four stab wounds and died of
pulmonary failure due to hypovolemia from external and internal hemorrhage.12
For its part, the defense presented, as its first witness, the appellant himself, Anacito
Opuran. He declared that on the evening of 19 November 1998, he was resting in
their house in Canlapwas, another barangay in Catbalogan, Samar. He never went
out that night. While he was sleeping at about 8:30 p.m., eight policemen entered his
house, pointed their guns at him, and arrested him. He was brought to the police
station and detained there until the following morning. He denied being present at the
place and time of the stabbing incidents. He admitted knowing Demetrio Jr. as a
distant relative and friend whom he had not quarreled with. As for Allan, he never
knew him. He had no misunderstanding with prosecution witness Bambi Herrera. He
asserted that the accusations against him were fabricated because he was envied
and lowly regarded by his accusers.13
Subsequent hearings were postponed owing principally to the failure of the defense to
present witnesses. Then on 16 February 2000, the defense moved for the suspension
of the hearing on the following grounds: (1) on 10 January 2000, upon motion of the
defense, the trial court issued an Order authorizing the psychiatric examination of
Anacito; (2) in consonance with that Order, Anacito underwent a psychiatric
examination on 26 January 2000 conducted by Dr. Angel P. Tan; (3) Dr. Tan issued a
Medical Certificate dated 26 January 2000 stating that Anacito had a "normal" mental
status on that date but was "suffering from some degree of Mental Aberration," which
required further psychiatric evaluation at Tacloban City.14
The trial court thus ordered a deferment of the hearing and granted the motion for the
psychiatric examination of Anacito at the Eastern Visayas Regional Medical Center
(EVRMC), Tacloban City.15
On 3 August 2000, the trial court received the Medical Report of Dr. Lyn Verona,
physician-psychiatrist of the EVRMC, on the psychiatric examination she conducted
on Anacito. At the resumption of the hearings on 20 November 2000, Dr. Verona
testified that she examined Anacito three times through interviews. From her interview
with Anacitos sister, Remedios Opuran Manjeron, she learned of Anacitos psychiatric
history of "inability to sleep and talking irrelevantly." She found that Anacito had a
psychotic disorder characterized by flight of ideas and auditory hallucinations. She
confirmed her medical findings that Anacito was psychotic before and during the
commission of the crime and even up to the present so that he could not stand trial
and would need treatment and monthly check-up. Her diagnosis was that Anacito was
suffering from schizophrenia.16

Remedios Opuran Manjeron testified that she brought his brother Anacito to the
National Center for Mental Health (NCMH), Mandaluyong, in 1986 because Anacito
had difficulty sleeping and was talking "irrelevantly."17 Anacito was treated as an outpatient, and was prescribed thorazine and evadyne.18 They stayed in Manila for one
month. In 1989, they returned to the NCMH, and Anacito was prescribed the same
medicine. Since they could not afford to stay long in Manila for follow-up treatments,
Remedios requested that her brother be treated in Catbalogan. Dr. Belmonte of the
NCMH, however, referred them to the EVRMC. Sometime in 1990, Remedios
accompanied Anacito to the EVRMC for examination. A certain Dra. Peregrino
prescribed an injectable medicine. But it was a certain Dr. Estrada of the NCMH who
came to Catbalogan to administer the medicine in that same year. Since then until the
year 2000, Anacito did not take any medicine, nor was he subjected to examination or
treatment.19
Anacitos other sibling, Francisco Opuran, testified that at about 6:00 p.m. of 19
November 1998, he heard a loud voice outside their house. Anacito heard also the
loud voices and then went out. When Francisco went out to verify, he did not see
anything. A few minutes later he saw Anacito at the corner of the street carrying a
knife. He surmised that Anacito had committed a crime, and so he hugged him.
Anacito struggled to free himself, but Francisco brought him to Remedios house.
Before the incident, he observed Anacito to be "sometimes laughing, shouting, and
uttering bad words, and sometimes silent."20
In its decision21 of 23 January 2001, the trial court found Anacito guilty of murder for
the death of Demetrio Patrimonio, Jr., and homicide for the death of Allan Dacles. It
decreed:
WHEREFORE, the Court Finds Anacito Opuran y Balibalita GUILTY beyond
reasonable doubt of the crimes specified hereunder, to wit:
Murder, in Criminal Case No. 4693, and sentences him to the penalty of reclusion
perpetua, to indemnify the heirs of Demetrio Patrimonio, Jr. in the amount
of P50,000.00 plus P43,500.00 by way of actual damages, and to pay the costs; and
Homicide, in Criminal Case No. 4703, and, applying the Indeterminate Sentence Law,
sentences him to suffer an imprisonment ranging from ten (10) years of prision mayor,
as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
maximum to indemnify the heirs of Allan Dacles in the amount of P50,000.00
plus P10,000.00 for burial expenses and to pay the costs.
Anacito seasonably appealed to us from the decision attributing to the trial court
grave error in disregarding the exempting circumstance of insanity.22 He contends that
he was suffering from a psychotic disorder and was, therefore, completely deprived of
intelligence when he stabbed the victims. Even assuming in gratis argumenti that he

is criminally liable, he is entitled to the mitigating circumstance under paragraph 9,

Article 13 of the Revised Penal Code, which is "illness as would diminish the exercise
of the willpower of the offender without however depriving him of the consciousness
of his acts." He likewise maintains that since treachery was not specifically alleged in
the Information as a qualifying circumstance, he cannot be convicted of murder for
the death of Demetrio Jr.
The Office of the Solicitor General (OSG) disagrees and avers that Anacito failed to
establish with the required proof his defense of insanity or his claim of the mitigating
circumstance of diminished willpower. The mental state of Anacito, as testified to by
Dr. Verona, corresponds to the period after the stabbing incidents. Further, Dr. Verona
was certain that Anacito was not grossly insane, but she was uncertain that Anacito
was "unconscious" at the time he stabbed the two victims. The OSG also argues that
treachery was duly alleged and proved by the prosecution and should, therefore, be
treated as a qualifying circumstance in the killing of Demetrio Jr.
We agree with the OSG and affirm the trial courts judgment.
In the determination of the culpability of every criminal actor, voluntariness is an
essential element. Without it, the imputation of criminal responsibility and the
imposition of the corresponding penalty cannot be legally sanctioned. The human
mind is an entity, and understanding it is not purely an intellectual process but is
dependent to a large degree upon emotional and psychological appreciation. A mans
act is presumed voluntary.23 It is improper to assume the contrary, i.e. that acts were
done unconsciously,24 for the moral and legal presumption is that every person is
presumed to be of sound mind,25 or that freedom and intelligence constitute the
normal condition of a person.26 Thus, the presumption under Article 800 of the Civil
Code is that everyone is sane. This presumption, however, may be overthrown by
evidence of insanity, which under Article 12(1) of the Revised Penal Code exempts a
person from criminal liability.27
He who pleads the exempting circumstance of insanity bears the burden of proving
it,28 for insanity as a defense is in the nature of confession and avoidance.29 An
accused invoking insanity admits to have committed the crime but claims that he is
not guilty because he is insane. The testimony or proof of an accused's insanity must,
however, relate to the time immediately preceding or coetaneous with the commission
of the offense with which he is charged.30 It is, therefore, incumbent upon accuseds
counsel to prove that his client was not in his right mind or was under the influence of
a sudden attack of insanity immediately before or at the time he executed the act
attributed to him.31
Since insanity is a condition of the mind, it is not susceptible of the usual means of
proof. As no man can know what is going on in the mind of another, the state or
condition of a person's mind can only be measured and judged by his

behavior.32 Thus, the vagaries of the mind can only be known by outward acts, by
means of which we read the thoughts, motives, and emotions of a person, and then
determine whether the acts conform to the practice of people of sound mind.33
Insanity is evinced by a deranged and perverted condition of the mental faculties
which is manifested in language and conduct.34 However, not every aberration of the
mind or mental deficiency constitutes insanity.35 As consistently held by us, "A man
may act crazy, but it does not necessarily and conclusively prove that he is legally
so."36 Thus, we had previously decreed as insufficient or inconclusive proof of insanity
certain strange behavior, such as, taking 120 cubic centimeters of cough syrup and
consuming three sticks of marijuana before raping the victim;37 slurping the victims
blood and attempting to commit suicide after stabbing him;38 crying, swimming in the
river with clothes on, and jumping off a jeepney.39
The stringent standard established in People v. Formigones40 requires that there be a
complete deprivation of intelligence in committing the act, i.e., the accused acted
without the least discernment because of a complete absence of the power to discern
or a total deprivation of the will.
In People v. Rafanan, Jr.,41 we analyzed the Formigones standard into two
distinguishable tests: (a) the test of cognition whether there was a "complete
deprivation of intelligence in committing the criminal act" and (b) the test of volition
whether there was a "total deprivation of freedom of the will." We observed that our
case law shows common reliance on the test of cognition, rather than on the test of
volition, and has failed to turn up any case where an accused is exempted on the sole
ground that he was totally deprived of the freedom of the will,i.e., without an
accompanying "complete deprivation of intelligence." This is expected, since a
persons volition naturally reaches out only towards that which is represented as
desirable by his intelligence, whether that intelligence be diseased or healthy.42
Establishing the insanity of an accused often requires opinion testimony which may
be given by a witness who is intimately acquainted with the accused; has rational
basis to conclude that the accused was insane based on his own perception; or is
qualified as an expert, such as a psychiatrist.43
Let us examine the evidence offered to support Anacitos defense of insanity. The
appellant points to the testimony of prosecution witness Bambi Herrera that Anacito
was a silent man who would sharply stare at the lady boarders a few days before the
stabbing incident, and would wear Barong Tagalog and long pants when there was no
occasion requiring a formal attire. The appellant also highlights that the testimony of
prosecution witness Tomas Bacsal, Jr., that there was a 15-minute time interval
between the two stabbing incidents shows that the stabbing spree was without any
known motive.44

The testimonial evidence of the defense also attempted to prove the alleged
behavioral oddity of Anacito two to three days prior to the killing. His sister Remedios
noticed that his eyes were reddish and that he was angry with her.45 His brother
Francisco also observed that he (Anacito) would sometimes talk to himself, laugh,
shout, and utter bad words, and , at times, he was just quiet.46 Also relied upon by the
appellant are the testimony of Remedios on his psychiatric history and the expert
testimony of the EVRMC psychiatrist, Dr. Verona.
A careful scrutiny of the records, however, indicates that Anacito failed to prove by
clear and convincing evidence the defense of insanity. For one thing, it was only
Bambis personal perception that there was no reason or occasion for Anacito to
wear Barong Tagalog. Tested against the stringent criterion for insanity to be
exempting, such deportment of Anacito, his occasional silence, and his acts of
laughing, talking to himself, staring sharply, and stabbing his victims within a 15minute interval are not sufficient proof that he was insane immediately before or at the
time he committed the crimes. Such unusual behavior may be considered as mere
abnormality of the mental faculties, which will not exclude imputability.47
Anacitos psychiatric history likewise fails to meet the stringent yardstick established
by case law. What it shows is that Anacito was prescribed thorazine and evadyne,
and later an injectable medicine to remedy "his lack of sleep and noisiness." As the
trial court noted, it was never shown that these drugs were for a mental illness that
deprived Anacito of reason. Further, Anacito was just an out-patient at the NCMH,
EVRMC, and Samar Provincial Hospital. While Remedios claimed that she requested
the confinement of Anacito and that the doctors did not refuse her, the fact remains
that Anacito was never confined in a mental institution. Although Dr. Verona testified
that there was a recommendation for Anacitos confinement, there was no indication
in the records as to when the recommendation was made, who made the
recommendation, and the reason for the recommendation.48
At any rate, in People v. Legaspi,49 we discarded the confinement of the accused at
the NCMH prior to the incident in question to be by itself proof of his insanity, there
being no proof that he was adjudged insane by the institute. Applying this principle to
Anacitos case, we find another cogent reason to reject his plea of insanity.
The records are likewise clear that Anacito was not subjected to treatment from 1991
until 1999. While Remedios insisted that the medicine prescribed for Anacito ran out
of stock allegedly in 1990, there was no proof that Anacito needed the medicine
during that period. In fact, there was no intimation that he needed the medicine prior
to the stabbing incident. She bought medicine for Anacito only in April 2000 because
he was "again noisy in the jail."50 It seems that it was only after the stabbing incident,
when he was in jail, that his symptoms reappeared.

Moreover, as found by the trial court, the results of Dr. Veronas examinations on
Anacito were based on incomplete or insufficient facts.51 For one thing, she admitted
to have examined Anacito for only three sessions lasting one to two hours each.52 Her
one-page medical report53 reads in part:
Patient came in accompanied by policemen and sister. He was fairly kempt in
appearance, wearing blue shirt and pants. Mesomorphic, dark complexion with
earring on the left ear. Had flight of ideas, with auditory hallucination, "kabastosan,"
"kanan yawa." He further said his sleep was "minanok" and complained of occasional
headache. He had no delusion. Judgment and insight fair. Fair impulse control.
Comments:
From the foregoing interviews and examinations, it is determined that the patient has
a psychiatric disorder. It is most likely that the patient is psychotic before and during
the commission of the crime. He is presently psychotic and cannot stand trial. He
would need treatment and monthly check-up.
We observe that Dr. Veronas conclusions have no supporting medical bases or data.
She failed to demonstrate how she arrived at her conclusions. She failed to show her
method of testing.54 Further, she did not have Anacitos complete behavioral and
psychiatric history. On the witness stand, she mentioned that Anacito could not
distinguish right from wrong, but she was not certain that he was not conscious of
killing his victims in 1998. She also declared that Anacito had a diagnostic case of
schizophrenia, but stated in the next breath that Anacito was not grossly insane.55
Truly, there is nothing that can be discerned from Dr. Veronas short psychiatric
evaluation report and her testimony that Anacitos judgment and mental faculties were
totally impaired as to warrant a conclusion that his mental condition in 1998 when he
killed his victims was the same in 2000 when he was psychiatrically examined. The
most that we can conclude is that her findings refer to the period after the stabbing
accident and, hence, would prove Anacitos mental condition only for said time. It
could be that Anacito was insane at the time he was examined by Dr. Verona. But, in
all probability, insanity could have been contracted during the period of his detention
pending trial. He was without contact with friends and relatives most of the time. He
was perhaps troubled by his conscience, by the realization of the gravity of his
offenses, or by the thought of a bleak future for him. The confluence of these
circumstances may have conspired to disrupt his mental equilibrium.
It must be stressed that an inquiry into the mental state of an accused should relate to
the period immediately before or at the precise moment of the commission of the act
which is the subject of the inquiry.56 His mental condition after that crucial period or
during the trial is inconsequential for purposes of determining his criminal liability.57

Interestingly, Anacito failed to raise insanity at the earliest opportunity. He invoked it

for the first time in the year 2000 and only after he had already testified on his
defenses of alibi and denial. It has been held that the invocation of denial and alibi as
defenses indicates that the accused was in full control of his mental
faculties.58Additionally, the trial judge observed that, during the hearings, Anacito was
attentive, well-behaved, and responsive to the questions propounded to him. Thus,
the shift in theory from denial and alibi to a plea of insanity, made apparently after the
appellant realized the futility of his earlier defenses, is a clear indication that insanity
is a mere concoction59 or an afterthought.60 In any event, Anacito failed to establish by
convincing evidence his alleged insanity at the time he killed Demetrio Jr. and Allan
Dacles. He is thus presumed sane, and we are constrained to affirm his conviction.61
We likewise reject the alternative plea of Anacito that he be credited with the
mitigating circumstance of diminished willpower. In the cases where we credited this
mitigating circumstance after rejecting a plea of insanity, it was clear from the records
that the accused had been suffering from a chronic mental disease that affected his
intelligence and willpower for quite a number of years prior to the commission of the
act he was being held for.62The situation does not exist in the cases at bar. It was only
in 2000 that Anacito was diagnosed as "psychotic" with flight of ideas and auditory
hallucinations and was found to be schizophrenic. There is nothing on record that he
had these symptoms the previous years or at the time he stabbed the victim.
Curiously, Dr. Verona did not make a diagnosis of schizophrenia in her report, only at
the witness stand.
We agree with the trial court that treachery cannot be appreciated as far as the killing
of Allan is concerned because the sole eyewitness did not see the commencement of
the assault.63 For treachery to be considered, it must be present and seen by the
witness right at the inception of the attack. Where no particulars are known as to how
the killing began, the perpetration with treachery cannot be supposed.64
Treachery was correctly appreciated in the killing of Demetrio Jr. Anacito was lying in
wait for his victim in a dark place at the national highway. When Demetrio Jr. reached
the "lovers lane," Anacito emerged from his hiding place and stabbed the former
several times. Anacitos attack came without warning; it was deliberate and
unexpected, affording the hapless, unarmed, and unsuspecting victim no opportunity
to resist or defend himself.65
We do not find merit in appellants contention that he cannot be convicted of murder
for the death of Demetrio Jr. because treachery was not alleged with "specificity" as a
qualifying circumstance in the information. Such contention is belied by the
information itself, which alleged: "All contrary to law, and with the attendant qualifying
circumstance of treachery." In any event, even after the recent amendments to the
Rules of Criminal Procedure, qualifying circumstances need not be preceded by
descriptive words such as qualifying or qualified by to properly qualify an offense.66

We, therefore, sustain the penalty imposed by the trial court on Anacito. For the crime
of murder, which is punishable by reclusion perpetua to death, he was correctly
sentenced to suffer reclusion perpetua, the lower of the two indivisible penalties,
since there was no other aggravating circumstance attending the commission of the
crime. For the crime of homicide, which is punishable by reclusion temporal, he may
be sentenced to an indeterminate penalty whose minimum is within the range of
prision mayor and whose maximum is within the range of reclusion temporal in its
medium period, there being no modifying circumstances.
Coming now to the matter of damages. While Demetrio Sr. testified that he
spent P43,500 for the wake and burial of his son, only P11,94567 is substantiated by
receipts. Hence, in lieu of actual damages we shall award to Demetrio Jr.s heirs
temperate damages68 of P25,00069 conformably with current jurisprudence.70
As to the burial expenses for Allan, his father Alfredo Dacles testified that he
spent P10,000. However, he failed to present receipts to substantiate his claim.
Nevertheless, we also grant temperate damages in the amount ofP10,000 on the
ground that it was reasonable to expect that the family of the victim incurred
expenses for the coffin, wake, and burial.
The award of civil indemnity of P50,000 for the respective heirs of Demetrio Jr. and
Allan is affirmed in line with recent jurisprudence.71 Civil indemnity is mandatory and is
granted to the heirs of the victim without need of proof other than the commission of
the crime.72
Apart from the civil indemnity, we shall award in favor of the heirs of each victim moral
damages in the amount ofP50,000 consistent with controlling case law.73 Moral
damages are awarded despite the absence of proof of mental and emotional suffering
of the victims heirs. As borne out by human nature and experience, a violent death
invariably and necessarily brings about emotional pain and anguish on the part of the
victims family.74
We shall also award in favor of the heirs of Demetrio Jr. exemplary damages in the
amount of P25,000 in view of the presence of the qualifying aggravating circumstance
of treachery.75
Thus, Anacito shall indemnify the heirs of Demetrio Patrimonio, Jr., damages in the
total amount of P161,945 and the heirs of Allan damages in the total amount
of P110,000.
WHEREFORE, we AFFIRM, with modifications as to the damages, the Decision of
the Regional Trial Court of Catbalogan, Samar, Branch 29, finding appellant Anacito
Opuran guilty of the crimes of murder in Criminal Case No. 4693 and homicide in
Criminal Case No. 4703, and sentencing him to suffer reclusion perpetua and an

indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen

(17) years and four (4) months of reclusion temporal, as maximum, respectively. Apart
from the P50,000 civil indemnity, he is ordered to pay (1) the heirs of Demetrio
Patrimonio, Jr., in the amounts of (a) P50,000 as moral damages; (b) P25,000 as
temperate damages; and (c) P25,000 as exemplary damages, or a total of P150,000;
and (2) the heirs of Allan Dacles in the amounts of (a) P50,000 as moral damages;
and (b) P10,000 as temperate damages, or a total ofP110,000.
Costs de oficio.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

murder directly by overt acts and does not perform all the acts of execution
which would produce the felony by reason of some causes or accident other
than his own spontaneous desistance that is, by the timely and able medical
assistance rendered to said Ricardo Maglalang which prevented his death.

FIRST DIVISION
CONTRARY TO LAW.3
G.R. No. 129291

July 3, 2002
In Criminal Case No.9489, for frustrated murder:

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ENRICO A. VALLEDOR, accused-appellant.
YNARES-SANTIAGO, J.:
This is an appeal from the decision1 of the Regional Trial Court of Palawan and
Puerto Princesa City, Branch 47, in Criminal Case Nos. 9359, 9401, and 9489,
convicting accused-appellant of the crimes of murder, attempted murder and
frustrated murder, respectively.
The informations filed against accused-appellant read:
In Criminal Case No. 9359, for murder:
That on or about the 6th day of March, 1991, in the afternoon, at Barangay
Tagumpay, Puerto Princesa City, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with treachery and evident
premeditation, with intent to kill and while armed with a knife, did then and
there willfully, unlawfully and feloniously assault, attack and stab therewith
one Elsa Villon Rodriguez thereby inflicting upon the latter
stabbed (sic) wound on the chest, which was the immediate cause of her
death.
CONTRARY TO LAW.2
In Criminal Case No.9401, for attempted murder:
That on or about the 6th day of March, 1991, in the afternoon, at Bgy.
Tagumpay, Puerto Princesa City, Philippines and within the jurisdiction of this
Honorable Court, the said accused, with intent to kill, with treachery and
evident premiditation (sic) and while armed with a knife, did then and there
willfully, unlawfully and feloniously assault, attack and stab therewith one
Ricardo Maglalang thereby inflicting upon the latter physical injuries on the
different parts of his body, thus commencing the commission of the crime of

That on or about the 6th day of March, 1991 at Bgy. Tagumpay, Puerto
Princesa City, Philippines and within the jurisdiction of this Honorable Court
the above-named accused, with intent to kill with treachery and
evidence (sic) premeditation and while armed with a butcher knife, did then
and there willfully, unlawfully and feloniously assault, attack and stab
therewith on (sic) Roger Cabiguen, hitting him on his right forearm, thus
performing all the acts of execution which produce the crime of murder as a
consequence but which nevertheless did not produce it by reason of causes
independent of his will, that is, by the timely and able medical attendance
rendered to him which saved his life.
CONTRARY TO LAW.4
After his arrest, accused-appellant was intermittently confined at the National Center
for Mental Health. Thus, he was arraigned only on February 19, 1993 wherein he
pleaded not guilty.5 Thereafter, the cases were archived until November 15, 1994,
when accused-appellant was declared mentally fit to withstand trial.6 This time,
accused-appellant admitted commission of the crimes charged but invoked the
exempting circumstance of insanity. The lower court thus conducted reverse and joint
trial, at which the following facts were established:
On March 6, 1991, at around 1:45 in the afternoon, Roger Cabiguen was in his house
at Burgos Street, Barangay Tagumpay, Puerto Princesa City. He was working on a
lettering job inside his bedroom together with his first cousin, then 25-year old Elsa
Rodriguez, and his friends, Simplicio Yayen and Antonio Magbanua. Roger was
working at his table and seated on his bed while Elsa was across the table. Antonio
was on the left side, while Simplicio was seated near the door, on the right side of
Roger.7
All of a sudden, accused-appellant entered the room; uttered Roger's nickname
("Jer") and immediately attacked him with a knife, but Roger was able to parry the
thrust and was stabbed instead on the right forearm. Accused-appellant then stabbed
Elsa Rodriguez on the chest and said, "Ako akabales den, Elsa." (I had my revenge,
Elsa). Thereafter, accused-appellant fled, leaving the stunned Simplicio and Antonio
unharmed.8

Roger and Elsa were immediately brought to the hospital. On their way out, Antonio
noticed a commotion and saw that Ricardo Maglalang, a neighbor of the victim, was
wounded. Antonio learned from the by-standers that Ricardo was likewise stabbed by
accused-appellant.9
Upon reaching the hospital, Elsa was declared dead on arrival. Roger on the other
hand was treated for the 5-centimeter wound sustained by him on his right forearm.10
Prosecution witness Roger Cabiguen testified that sometime in 1980, accusedappellant suspected him of killing his pet dog. In 1989, accused-appellant courted
Elsa but she jilted him. On one occasion, Elsa spat on and slapped accusedappellant.11

Meanwhile, at around 2:00 in the afternoon of March 6, 1991, Pacita Valledor was
awakened by her daughter who told her that accused-appellant has returned. She
rushed out of the house and saw him standing in the middle of the road, dusty and
dirty. She asked him where he came from but his answer was "Pinatay niya kayong
lahat." Pacita dragged him inside the house and later learned that he killed and
wounded their neighbors. Thirty minutes later, accused-appellant was arrested and
detained at the city jail.16
On March 11, 1991, Dr. Manuel Bilog, City Health Officer I of Puerto Princesa City
interviewed accused-appellant and thereafter made the following conclusions and
recommendation, to wit:
PHYSICAL EXAMINATION:

Accused-appellant's defense of insanity was anchored on the following facts:

Cooperative; talkative but incoherent
Accused-appellant, then 30 years of age, was a resident of Barangay Tagumpay,
Puerto Princesa City, and employed as provincial jail guard at the Palawan Provincial
Jail. Sometime in January 1990, Pacita Valledor, his mother noticed that accusedappellant was behaving abnormally. For days he was restless and unable to sleep.
He likewise complained that their neighbors were spreading rumors that he was a
rapist and a thief. This prompted Pacita to bring his son to Dr. Deriomedes de
Guzman, a medical practitioner. Pacita disclosed to Dr. de Guzman that insanity runs
in their family. After examining accused-appellant, Dr. de Guzman diagnosed him as
suffering from "psychosis with schizophrenia."12 He prescribed a depressant known as
Thoracin, which kept accused-appellant sane for a period two months.13
On March 4, 1991, Pacita noticed that accused-appellant was again acting strangely.
She left to buy Thoracin but when she returned he was nowhere to be found.14
On March 6, 1991, at around 6:00 in the morning, accused-appellant was seen
swimming across the river of Barangay Caruray, San Vicente, Palawan. Barangay
Captain Rufino Nuez and Barangay Councilman Antonio Sibunga took accusedappellant out of the water and took him on board a pump boat. Inside the boat,
accused-appellant kept on crying and uttering words to the effect that his family will
be killed. Suspecting that accused-appellant was mentally ill, Barangay Captain
Nuez, asked Councilman Sibunga to accompany accused-appellant to Puerto
Princesa City. Sibunga acceded and thereafter took a jeepney with accused-appellant
at Barangay Bahile. At about 1:00 in the afternoon, they reached Junction I at the
intersection of the National Highway and Rizal Avenue, Puerto Princesa City.
Suddenly, accused-appellant jumped off the jeepney. Sibunga tried but failed to chase
accused-appellant, who immediately boarded a tricycle. Later that day, he learned
that accused-appellant killed and harmed somebody.15

Disoriented as to time, place and person

DISPOSITION AND RECOMMENDATION:
Respectfully recommending that subject patient be committed to
the National Mental Hospital, Metro Manila for proper medical care
and evaluation soonest.17
The defense offered in evidence the April 27, 1992 medical findings on accusedappellant by Dr. Guia Melendres of the National Center for Mental Health, pertinent
portion of which reads:
REMARKS AND RECCOMENDATION:
In view of the foregoing history, observations, physical mental and
psychological examinations the patient Enrico Valledor y Andusay is found
suffering from Psychosis or Insanity classified under Schizophrenia. This is a
thought disorder characterized by deterioration from previous level of
functioning, auditory hallucination, ideas of reference, delusion of control,
suspiciousness, poor judgment and absence of insight.
Likewise, he is found to be suffering from Psychoactive Substance Use
Disorder, Alcohol, abuse. This is characterized by a maladaptive pattern of
psychoactive substance use indicated by continued use despite knowledge
of having a persistent or recurrent social, occupational, psychological or
physical problems.18

Dr. Oscar Magtang, a psychiatrist assigned at the Medical Service of the PNP, Puerto
Princesa City was likewise presented by the defense to interpret the aforecited
findings of Dr. Melendres.19
On February 28, 1997, the trial court rendered the assailed judgment of conviction.
The dispositive portion thereof reads:
WHEREFORE, premises considered, the accused ENRICO A. VALLEDOR
is hereby found guilty beyond reasonable doubt of the crimes of MURDER in
Criminal Case No. 9359; of FRUSTRATED MURDER in Criminal Case No.
9489; and of ATTEMPTED MURDER in Criminal Case No. 9401 as charged
herein. Accordingly he is hereby sentenced to suffer the penalty of reclusion
perpetua in Criminal Case No. 9359;reclusion perpetua in Criminal Case No.
9489; and imprisonment of from EIGHT (8) YEARS and ONE (1) DAY to
TEN (10) YEARS in Criminal Case No. 9401. It is understood that the
accused shall serve these penalties successively or one after the other.
The accused is also ordered to indemnify the heirs of the deceased victim
Elsa Villon Rodriguez the sum of P50,000.00 and to indemnify the victim
Roger Cabiguen, the sum of P14,000.00 as actual damages, and the sum
P15,000.00 for loss of income.
Considering that the accused is found to be suffering from a serious mental
disorder at present as certified to by the National Center for Mental Health,
Mandaluyong City, Metro Manila, the service of his sentence is hereby
ordered SUSPENDED pursuant to Article 12 and 79 of the Revised Penal
Code. He (Enrico Valledor) is ordered shipped to and confined at the
National Center for Mental Health, Mandaluyong City, Metro Manila, for his
treatment, until such time that he becomes fit for the service of his sentence
at the national penitentiary, Muntinlupa, Metro Manila. As to his civil liability,
the same is subject to execution after this judgment shall have become final
executory.
IT IS ORDERED.20
Accused-appellant interposed this appeal and raised the lone assignment of error
that:
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED DESPITE
THE FACT THAT WHEN HE ALLEGEDLY COMMITTED THE OFFENSE
CHARGED HE WAS MENTALLY ILL, OUT OF HIS MIND OR INSANE AT
THE (sic) TIME.21
The appeal has no merit.

In considering a plea of insanity as a defense, the starting premise is that the law
presumes all persons to be of sound mind. Otherwise stated, the law presumes all
acts to be voluntary, and it is improper to presume that acts were done
unconsciously.22
In People v. Estrada,23 it was held that:
In the eyes of the law, insanity exists when there is a complete deprivation of
intelligence in committing the act. Mere abnormality of the mental faculties
will not exclude imputability. The accused must be "so insane as to be
incapable of entertaining a criminal intent." He must be deprived of reason
and act without the least discernment because there is a complete absence
of the power to discern or a total deprivation of freedom of the will.
Since the presumption is always in favor of sanity, he who invokes insanity
as an exempting circumstance must prove it by clear and positive evidence.
And the evidence on this point must refer to the time preceding the act under
prosecution or to the very moment of its execution.
Insanity is evinced by a deranged and perverted condition of the mental faculties
which is manifested in language and conduct. An insane person has no full and clear
understanding of the nature and consequences of his acts. Hence, insanity may be
shown by the surrounding circumstances fairly throwing light on the subject, such as
evidence of the alleged deranged person's general conduct and appearance, his acts
and conduct consistent with his previous character and habits, his irrational acts and
beliefs, as well as his improvident bargains. The vagaries of the mind can only be
known by outward acts, by means of which we read thoughts, motives and emotions
of a person, and through which we determine whether the acts conform to the
practice of people of sound mind.24
In the case at bar, accused-appellant failed to discharge the burden of overcoming
the presumption of sanity at the time of the commission of the crime. The following
circumstances clearly and unmistakably show that accused-appellant was not legally
insane when he perpetrated the acts for which he was charged: 1) Simplicio Yayen
was positioned nearest to accused-appellant but the latter chose to stab Roger and
Elsa; 2) Accused-appellant called out the nickname of Roger before stabbing him; 3)
Simplicio Yayen and Antonio Magbanua who were likewise inside the room were left
unharmed; 4) Accused-appellant, a spurned suitor of Elsa, uttered the words, "Ako
akabales den, Elsa." (I had my revenge, Elsa) after stabbing her; and 5) Accusedappellant hurriedly left the room after stabbing the victims.
Evidently, the foregoing acts could hardly be said to be performed by one who was in
a state of a complete absence of the power to discern. Judging from his acts,
accused-appellant was clearly aware and in control of what he was doing as he in fact

purposely chose to stab only the two victims. Two other people were also inside the
room, one of them was nearest to the door where accused-appellant emerged, but
the latter went for the victims. His obvious motive of revenge against the victims was
accentuated by calling out their names and uttering the words, "I had my revenge"
after stabbing them. Finally, his act of immediately fleeing from the scene after the
incident indicates that he was aware of the wrong he has done and the consequence
thereof.
Accused-appellant's acts prior to the stabbing incident to wit: crying; swimming in the
river with his clothes on; and jumping off the jeepney; were not sufficient to prove that
he was indeed insane at the time of the commission of the crime. As consistently held
by this Court, "A man may act crazy but it does not necessarily and conclusively
prove that he is legally so."25 Then, too, the medical findings showing that accusedappellant was suffering from a mental disorder after the commission of the crime, has
no bearing on his liability. What is decisive is his mental condition at the time of the
perpetration of the offense. Failing to discharge the burden of proving that he was
legally insane when he stabbed the victims, he should be held liable for his felonious
acts.
In Criminal Case No. 9489, accused-appellant should be held liable only for
attempted murder and not frustrated murder. The wound sustained by Roger
Cabiguen on his right forearm was not fatal. The settled rule is that where the wound
inflicted on the victim is not sufficient to cause his death, the crime is only attempted
murder, since the accused did not perform all the acts of execution that would have
brought about death.26
Pursuant to Article 51 of the Revised Penal Code, the penalty to be imposed upon the
principal of an attempted crime shall be lower by two degrees than that prescribed for
the consummated felony. Before its amendment by R.A. No. 7659, Article 248
provided that the penalty for murder was reclusion temporal in its maximum period to
death. Under Article 61(3), the penalty two degrees lower would be prision
correccional maximum to prision mayor medium. As there is no modifying
circumstance, the medium period of the penalty, which is prision mayorminimum,
should be imposed. Under the Indeterminate Sentence Law, accused-appellant is
entitled to a minimum penalty of arresto mayor in its maximum period to prision
correcional in its medium period, the penalty next lower than the penalty for attempted
murder.27
For the murder of Elsa Rodriguez, in Criminal Case No. 9359, the trial court correctly
imposed upon accused-appellant the penalty of reclusion perpetua, considering that
no aggravating or mitigating circumstance was proven by the prosecution.
Accused-appellant's civil liability must be modified. Not being substantiated by
evidence, the award of P14,000.00 as actual damages, and P15,000.00 for loss of

income, to Roger Cabiguen in Criminal Case No. 9489, should be deleted. However,
in lieu thereof, temperate damages under Article 2224 of the Civil Code may be
recovered, as it has been shown that Roger Cabiguen suffered some pecuniary loss
but the amount thereof cannot be proved with certainty. For this reason, an award of
P10,000.00 by way of temperate damages should suffice.28
In addition to the amount of P50,000.00 as civil indemnity which was properly
awarded by the trial court in Criminal Case No. 9359, the heirs of Elsa Rodriguez are
entitled to another P50,000.00 as moral damages which needs no proof since the
conviction of accused-appellant for the crime of murder is sufficient justification for
said award.29 The heirs of the deceased are likewise entitled to the amount of
P29,250.00 representing actual damages30 based on the agreement of the parties.31
WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of
Palawan and Puerto Princesa City, Branch 47, is MODIFIED as follows:
1. In Criminal Case No. 9359, accused-appellant Enrico A. Valledor is
hereby found guilty beyond reasonable doubt of the crime of murder and is
sentenced to suffer the penalty of reclusion perpetua; and to indemnify the
heirs of the deceased Elsa Rodriguez the following amounts: P50,000.00 as
civil indemnity, P50,000.00 as moral damages and P29,250.00 as actual
damages;
2. In Criminal Case No. 9489, accused-appellant is found guilty beyond
reasonable doubt only of the crime of attempted murder and is sentenced to
an indeterminate penalty of four (4) years and two (2) months ofprision
correccional, as minimum, to eight (8) years of prision mayor, as maximum;
and to indemnify Roger Cabiguen in the amount of P10,000.00 by way of
temperate damages;
3. In Criminal Case No. 9401, accused-appellant is found guilty beyond
reasonable doubt of the crime of attempted murder and is sentenced to an
indeterminate penalty of four (4) years and two (2) months ofprision
correccional, as minimum, to eight (8) years of prision mayor, as maximum.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

When arraigned on July 27, 1995, appellant, with the assistance of his
counsel,6 pleaded not guilty.7 After due trial, the RTC convicted him.
The Facts

EN BANC
Version of the Prosecution
G.R. No. 138453

May 29, 2002

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MELECIO ROBIOS y DOMINGO, appellant.
PANGANIBAN, J.:
Where the law prescribes a penalty consisting of two indivisible penalties, as in the
present case for parricide with unintentional abortion, the lesser one shall be applied
in the absence of any aggravating circumstances. Hence, the imposable penalty here
is reclusion perpetua, not death.
The Case
For automatic review by this Court is the April 16, 1999 Decision1 of the Regional Trial
Court (RTC) of Camiling, Tarlac (Branch 68), in Criminal Case No. 95-45, finding
Melecio Robios2 y Domingo guilty beyond reasonable doubt of the complex crime of
parricide with unintentional abortion and sentencing him to death. The decretal
portion of the Decision reads as follows:
"WHEREFORE, finding accused Melecio Robios guilty beyond reasonable
doubt of the complex crime of parricide with unintentional abortion, this Court
hereby renders judgment sentencing him to suffer the penalty of DEATH by
lethal injection. He is also ordered to pay P50,000.00 as civil indemnity for
the death of the victim; and P22,800.00 s actual damages."3
In an Information dated May 31, 1995,4 appellant was accused of killing his pregnant
wife and the fetus inside her. It reads thus:
"That on or about March 25, 1995 at around 7:00 a.m. in Brgy. San Isidro,
Municipality of Camiling, Province of Tarlac, Philippines and within the
jurisdiction of this Honorable Court, the said accused Melecio Robinos, did
then and there willfully, unlawfully and feloniously stab by means of a bladed
knife 8 inches long, his legitimate wife Lorenza Robinos, who was, then six
(6) months pregnant causing the instantaneous death of said Lorenza
Robinos, and the fetus inside her womb."5

The Office of the Solicitor General (OSG) narrates the prosecution's version of how
appellant assaulted his pregnant wife, culminating in a brutal bloodbath, as follows:
"1. On March 25, 1995, at around seven o'clock in the morning, fifteen-year
old Lorenzo Robios was in his parents' house at Barangay San Isibro in
Camiling, Tarlac. While Lorenzo was cooking, he heard his parents,
appellant Melecio Robios and the victim Lorenza Robios, who were at the
sala, quarrelling.
"2. Lorenzo heard his mother tell appellant, 'Why did you come home, why
don't you just leave?' After hearing what his mother said, Lorenzo, at a
distance of about five meters, saw appellant, with a double-bladed knife,
stab Lorenza on the right shoulder. Blood gushed from where Lorenza was
hit and she fell down on the floor. Upon witnessing appellant's attack on his
mother, Lorenzo immediately left their house and ran to his grandmother's
house where he reported the incident.1wphi1.nt
"3. At around eight o'clock in the morning of the same day, Benjamin Bueno,
the brother of the victim Lorenza Robios, was at the house of his mother
Remedios Bueno at Barangay San Isidro. Benjamin, a resident of Barangay
Mabilang in Paniqui, Tarlac, went to his mother's house for the purpose of
informing his relatives that on the evening of March 24, 1995, appellant had
killed his uncle, Alejandro Robios, at Barangay Mabilang. However while
Benjamin was at his mother's house, he received the more distressing news
that his own sister Lorenza had been killed by appellant.
"4. Upon learning of the attack on his sister, Benjamin did not go to her
house because he was afraid of what appellant might do. From his mother's
house, which was about 150 meters away from his sister's home, Benjamin
saw appellant who shouted at him, 'It's good you would see how your sister
died.'
"5. Benjamin sought the help of Barangay Captain Virgilio Valdez who called
the police station at Camiling, Tarlac. SPO1 Herbert Lugo and SPO3 Tirso
Martin, together with the other members of the PNP Alert Team at Camiling,
Tarlac, immediately went to Barangay San Isidro. The police, together with
Benjamin Bueno and some barangay officials and barangay folk, proceeded

to the scene of the crime where they saw blood dripping from the house of
appellant and Lorenza. The police told appellant to come out of the house.
When appellant failed to come out, the police, with the help of barangay
officials, detached the bamboo wall from the part of the house where blood
was dripping. The removal of the wall exposed that section of the house
where SPO1 Lugo saw appellant embracing [his] wife.
"6. Appellant and Lorenza were lying on the floor. Appellant, who was lying
on his side and holding a bloodstained double-bladed knife with his right
hand, was embracing his wife. He was uttering the words, 'I will kill myself, I
will kill myself.' Lorenza, who was lying on her back and facing upward, was
no longer breathing. She appeared to be dead.
"7. The police and the barangay officials went up the stairs of the house and
pulled appellant away from Lorenza's body. Appellant dropped the knife
which was taken by SPO3 Martin. Appellant tried to resist the people who
held him but was overpowered. The police, with the help of the barangay
officials present, tied his hands and feet with a plastic rope. However, before
he was pulled away from the body of his wife and restrained by the police,
appellant admitted to Rolando Valdez, a neighbor of his and a barangay
kagawad, that he had killed his wife, showing him the bloodstained knife.
"8. Upon examining Lorenza, SPO1 Lugo found that she was already dead.
She was pale and not breathing. The police thus solicited the services of a
funeral parlor to take Lorenza's body for autopsy. Appellant was brought to
the police station at Camiling, Tarlac. However, he had to be taken to the
Camiling District Hospital for the treatment of a stab wound.
"9. After the incident, Senior Inspector Reynaldo B. Orante, the Chief of
Police at Camiling, Tarlac, prepared a Special Report which disclosed that:
'The victim Lorenza Robios was six (6) months pregnant. She
suffered 41 stab wounds on the different parts of her body.
'That suspect (Melecio Robios) was under the influence of
liquor/drunk [who] came home and argued/quarreled with his wife,
until the suspect got irked, [drew] a double knife and delivered forty
one (41) stab blows.
'Suspect also stabbed his own body and [was] brought to the
Provincial Hospital.
'Recovered from the crime scene is a double blade sharp knife
about eight (8) inches long including handle.'

"10. During the trial of the case, the prosecution was not able to present the
doctor who conducted the autopsy on Lorenza Robios' body. Nor, was the
autopsy report presented as evidence."8
Version of the Defense
Appellant does not refute the factual allegations of the prosecution that he indeed
killed his wife, but seeks exoneration from criminal liability by interposing the defense
of insanity as follows:
"Pleading exculpation, herein accused-appellant interposed insanity. The
defense presented the testimonies of the following:
"FEDERICO ROBIOS, 19 years old son of Melecio Robios, testified that
his parents had occasional quarrels[. B]efore March 23, 1995, his father told
him that he had seen a person went [sic] inside their house and who wanted
to kill him. On March 23, 1995, he heard his father told the same thing to his
mother and because of this, his parents quarreled and exchanged heated
words.
"LOURDES FAJARDO, nurse of the Tarlac Penal Colony, testified that she
came to know Melecio Robios only in May to June 1996. Every time she
visited him in his cell, accused isolated himself, 'laging nakatingin sa
malayo', rarely talked, just stared at her and murmured alone.
"BENEDICT REBOLLOS, a detention prisoner of the Tarlac Penal Colony,
testified that he and the accused were seeing each other everyday from 6:00
o'clock in the morning up to 5:30 o'clock in the afternoon. He had observed
that accused sometime[s] refused to respond in the counting of prisoners.
Sometimes, he stayed in his cell even if they were required to fall in line in
the plaza of the penal colony.
"DOMINGO FRANCISCO, another detention prisoner of the Tarlac Penal
Colony, testified that as the accused's inmate, he had occasion to meet and
mingle with the latter. Accused sometimes was lying down, sitting, looking, or
staring on space and without companion, laughing and sometimes crying.
"MELECIO ROBIOS, herein accused-appellant, testified that on March 25,
1995, he was in their house and there was no unusual incident that
happened on that date. He did not know that he was charged for the crime of
parricide with unintentional abortion. He could not remember when he was
informed by his children that he killed his wife. He could not believe that he
killed his wife."9

In view of the penalty imposed by the trial court, this case was automatically elevated
to this Court for review.10
The Issues
Appellant submits for our consideration the following assignment of errors:
"I
The court a quo erred in not giving probative weight to the testimony and
psychiatric evaluation of Dr. Maria Mercedita Mendoza finding the accusedappellant to be suffering from psychosis or insanity classified under
schizophrenia, paranoid type.
"II
The court a quo erred in disregarding accused-appellant's defense of
insanity."11
The Court's Ruling
The appeal is partly meritorious.
Main Issue
Insanity as an Exempting Circumstance
At the outset, it bears noting that appellant did not present any evidence to
contravene the allegation that he killed his wife. Clear and undisputed are the RTC
findings on the identity of the culprit and the commission of the complex crime of
parricide with unintentional abortion. Appellant, however, interposes the defense of
insanity to absolve himself of criminal liability.
Insanity presupposes that the accused was completely deprived of reason or
discernment and freedom of will at the time of the commission of the crime.12 A
defendant in a criminal case who relies on the defense of mental incapacity has the
burden of establishing the fact of insanity at the very moment when the crime was
committed.13 Only when there is a complete deprivation of intelligence at the time of
the commission of the crimeshould the exempting circumstance of insanity be
considered.14
The presumption of law always lies in favor of sanity and, in the absence of proof to
the contrary, every person is presumed to be of sound mind.15 Accordingly, one who

pleads the exempting circumstance of insanity has the burden of proving it.16 Failing
this, one will be presumed to be sane when the crime was committed.
A perusal of the records of the case reveals that appellant's claim of insanity is
unsubstantiated and wanting in material proof. Testimonies from both prosecution and
defense witnesses show no substantial evidence that appellant was completely
deprived of reason or discernment when he perpetrated the brutal killing of his wife.
As can be gleaned from the testimonies of the prosecution witnesses, a domestic
altercation preceded the fatal stabbing. Thus, it cannot be said that appellant attacked
his wife for no reason at all and without knowledge of the nature of his action. To be
sure, his act of stabbing her was a deliberate and conscious reaction to the insulting
remarks she had hurled at him as attested to by their 15-year-old son Lorenzo
Robios. We reproduce Lorenzo's testimony in part as follows:
"Q:
Before your father Melecio Robios stabbed your mother, do you
recall if they talked to one and the other?
A:

Yes, sir.

ATTY. IBARRA:
Q:

Did you hear what they talked about?

A:

Yes, sir.

Q:

What did you hear?

A:

'Why did you come home, why don't you just leave?', Sir.

COURT:
In other words, you better go away, you should have not come back
home.
ATTY. IBARRA:
Q:

After you mother uttered those words, what did your father do?

A:

That was the time that he stabbed my mother, sir."17

Furthermore, appellant was obviously aware of what he had done to his wife. He was
even bragging to her brother, Benjamin Bueno, how he had just killed her. Bueno
testified thus:
"ATTY. JOAQUIN:
Q:
Now, from the house of your mother, can you see the house of your
sister?
A:

Yes, sir.

Q:
When you arrived at the house of your mother, Lorenzo Robios was
already there in the house of your mother, is that right, Mr. Witness?
A:

Yes, sir.

Q:
And he was the one who informed you about your sister already
dead?
A:

Yes, Sir.

Q:
Did you go near the house of your sister upon learning that she was
already dead?
A:

No, Sir.

ATTY. JOAQUIN:
Q:

Why?

A:

My brother-in-law was still amok, Sir.

COURT:
Q:

Why do you know that he was amok?

A:

Yes, sir, because he even shouted at me, sir.

Q:

How?

A:

It's good you would see how your sister died, Sir."18

Finally, the fact that appellant admitted to responding law enforcers how he had just
killed his wife may have been a manifestation of repentance and remorse -- a natural
sentiment of a husband who had realized the wrongfulness of his act. His behavior at
the time of the killing and immediately thereafter is inconsistent with his claim that he
had no knowledge of what he had just done. Barangay Kagawad Rolando Valdez
validated the clarity of mind of appellant when the latter confessed to the former and
to the police officers, and even showed to them the knife used to stab the victim.
Valdez's testimony proceeded as follows:
"Q:
And what did you discover when you went there at the house of
Melecio Robios?
A:
When we arrived at the house of Melecio Robios, it was closed. We
waited for the police officers to arrive and when they arrived, that was the
time that we started going around the house and when we saw blood, some
of our companions removed the walling of the house and at that time, we
saw the wife of Melecio Robios lying down as if at that moment, the wife of
Melecio Robios was already dead, Sir.
Q:

When you were able to remove this walling, what did you do?

A:

We talked to Melecio Robios, Sir.

xxx

Q:

xxx

xxx

What was he doing when you talked to him?

A:
When we saw them they were both lying down and when we got near,
he said he killed his wife and showing the weapon he used, sir.
Q:

What is that weapon?

A:

Double bladed weapon, Sir.

COURT:
What is that, knife?
A:

It's a double bladed knife, sir.

xxx

COURT:

xxx

xxx

He admitted to you that he killed his wife?

A:

or to the very moment of its execution. If the evidence points to insanity subsequent
to the commission of the crime, the accused cannot be acquitted.24

Yes, sir.

Q:
How did he say that, tell the court exactly how he tell you that, in
tagalog, ilocano or what?
A:
What I remember Sir he said, 'Pinatay ko ni baket ko' meaning 'I killed
my wife,' Sir."19
Clearly, the assault of appellant on his wife was not undertaken without his
awareness of the atrocity of his act.
Similarly, an evaluation of the testimonies of the defense witnesses hardly supports
his claim of insanity. The bulk of the defense evidence points to his allegedly unsound
mental condition after the commission of the crime. Except for appellant's 19-year-old
son Federico Robios,20 all the other defense witnesses testified on the supposed
manifestations of his insanity after he had already been detained in prison.
To repeat, insanity must have existed at the time of the commission of the offense, or
the accused must have been deranged even prior thereto. Otherwise he would still be
criminally responsible.21 Verily, his alleged insanity should have pertained to the
period prior to or at the precise moment when the criminal act was committed, not at
anytime thereafter. In People v. Villa,22 this Court incisively ratiocinated on the matter
as follows:
"It could be that accused-appellant was insane at the time he was examined
at the center. But, in all probability, such insanity was contracted during the
period of his detention pending trial. He was without contact with friends and
relatives most of the time. He was troubled by his conscience, the realization
of the gravity of the offenses and the thought of a bleak future for him. The
confluence of these circumstances may have conspired to disrupt his mental
equilibrium. But, it must be stressed, that an inquiry into the mental state of
accused-appellant should relate to the period immediately before or at the
precise moment of doing the act which is the subject of the inquiry, and his
mental condition after that crucial period or during the trial is inconsequential
for purposes of determining his criminal liability. In fine, this Court needs
more concrete evidence on the mental condition of the person alleged to be
insane at the time of the perpetration of the crimes in order that the
exempting circumstance of insanity may be appreciated in his favor. x x
x."23 (Italics supplied)
Indeed, when insanity is alleged as a ground for exemption from criminal
responsibility, the evidence must refer to the time preceding the act under prosecution

The testimony of Dr. Maria Mercedita Mendoza, the psychiatrist who conducted an
examination of the mental condition of appellant, does not provide much help in
determining his state of mind at the time of the killing. It must be noted that she
examined him only on September 11, 1995, or six months after the commission of the
crime.25 Moreover, she was not able to make a background study on the history of his
mental condition prior to the killing because of the failure of a certain social worker to
gather data on the matter.26
Although Dr. Mendoza testified that it was possible that the accused had already been
suffering from psychosis at the time of the commission of the crime,27 she likewise
admitted that her conclusion was not definite and was merely an opinion.28 As
correctly observed by the trial court, her declarations were merely conjectural and
inconclusive to support a positive finding of insanity. According to the RTC:
"The testimony of Dr. Maria Mercidita Mendoza, who examined accused at
the National Center for Mental Health, Mandaluyong City, that at the time of
examination accused Melecio Robios was still mentally ill; that accused
was experiencing hallucination and suffering from insanity and it is possible
that the sickness have occurred eight (8) to nine (9) months before
examination; and in her opinion accused was suffering from delusion and
hallucination. And her opinion that at the time accused stabbed himself, he
was not in his lucid interval, is merely her conclusion. xxx xxx xxx Aside from
being her opinion, she conducted the mental, physical and neurological
examinations on the accused seven (7) months after the commission of the
offense. That span of seven (7) months has given accused an opportunity to
contrive and feign mental derangement. Dr. Mendoza had no opportunity to
observed (sic) and assessed (sic) the behavior of the accused immediately
before, during and immediately after the commission of the offense. Her
finding is conjectural, inconclusive. She did not conduct background
examination of the mental condition of the accused before the incident by
interviewing persons who had the opportunity to associate with him."29
Hence, appellant who invoked insanity should have proven that he had already been
completely deprived of reason when he killed the victim.30 Verily, the evidence
proffered by the defense did not indicate that he had been completely deprived of
intelligence or freedom of will when he stabbed his wife to death. Insanity is a defense
in the nature of a confession or avoidance and, as such, clear and convincing proof is
required to establish its existence.31 Indubitably, the defense failed to meet the
quantum of proof required to overthrow the presumption of sanity.1wphi1.nt
Second Issue:

Proper Penalty
Although the RTC correctly rejected the defense of insanity, it nonetheless erred in
imposing the death penalty on appellant. It imposed the maximum penalty without
considering the presence or the absence of aggravating and mitigating
circumstances. The imposition of the capital penalty was not only baseless, but
contrary to the rules on the application of penalties as provided in the Revised Penal
Code. Even the Office of the Solicitor General concedes this error in the imposition of
the death penalty.32
Since appellant was convicted of the complex crime of parricide with unintentional
abortion, the penalty to be imposed on him should be that for the graver offense
which is parricide. This is in accordance with the mandate of Article 48 of the Revised
Penal Code, which states: "When a single act constitutes two or more grave or less
grave felonies, x x x, the penalty for the most serious crime shall be imposed, x x x."
The law on parricide, as amended by RA 7659, is punishable with reclusion
perpetua to death. In all cases in which the law prescribes a penalty consisting of two
indivisible penalties, the court is mandated to impose one or the other, depending on
the presence or the absence of mitigating and aggravating circumstances.33 The rules
with respect to the application of a penalty consisting of two indivisible penalties are
prescribed by Article 63 of the Revised Penal Code, the pertinent portion of which is
quoted as follows:
"In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the application
thereof:
xxx

xxx

xxx

2. When there are neither mitigating nor aggravating circumstances in the

commission of the deed, the lesser penalty shall be applied." (Italics
supplied)
Hence, when the penalty provided by law is either of two indivisible penalties and
there are neither mitigating nor aggravating circumstances, the lower penalty shall be
imposed.34 Considering that neither aggravating nor mitigating circumstances were
established in this case, the imposable penalty should only be reclusion perpetua.35
Indeed, because the crime of parricide is not a capital crime per se, it is not always
punishable with death. The law provides for the flexible penalty of reclusion
perpetua to death -- two indivisible penalties, the application of either one of which
depends on the presence or the absence of mitigating and aggravating
circumstances.36

WHEREFORE, the Decision of the Regional Trial Court of Camiling, Tarlac (Branch
68) in Criminal Case No. 95-45 is hereby AFFIRMED with the MODIFICATION that
the penalty is REDUCED to reclusion perpetua. Consistent with current
jurisprudence, appellant shall pay the heirs of the victim the amount of P50,000 as
civil indemnity and P22,800 as actual damages, which were duly proven. No
pronouncement as to costs.
ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 158057

September 24, 2004

NOE TOLEDO y TAMBOONG, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R.
CR No. 23742 affirming on appeal, the Decision2 of the Regional Trial Court (RTC) of
Odiongan, Romblon, Branch 82, in Criminal Case No. OD-861, convicting the
petitioner of homicide.
In an Information filed in the RTC of Romblon, the petitioner was charged with
homicide allegedly committed as follows:
That on or about the 16th day of September 1995, at around 9:30 oclock in
the evening, in Barangay Libertad, municipality of Odiongan, province of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, with intent to kill, did then and there, willfully, unlawfully and
feloniously attack, assault and stab with a bolo, one RICKY F. GUARTE,
which causes (sic) his untimely death.
Contrary to law.3
In due course, the prosecution adduced evidence against the petitioner which was
synthesized by the appellate court as follows:
On September 16, 1995, appellant went to a black-smith who made the
design of his bolo. When he went home to Tuburan, Odiongan, Romblon late
in the afternoon (TSN, September 4, 1998, p. 2), appellant saw the group of
Lani Famero, Michael Fosana, Rex Cortez and Ricky Guarte drinking gin at
the house of the Spouses Manuel and Eliza Guarte, Rickys parents.
Appellants house is about five (5) meters away from the house of Spouses
Guarte. Appellant requested the group of Ricky to refrain from making any
noise. Thereupon, appellant proceeded inside his house and went to sleep
(ibid., p. 3). Around 9:00 p.m., Gerardo Faminia, Eliza Guartes brother
arrived at the Guarte house and asked for any left-over food (TSN, August 5,

1998, p. 3). Eliza prepared dinner for him and after Gerardo finished eating,
he went home accompanied by Ricky (TSN, April 26, 1996, p. 5). Gerardos
home is about twelve (12) meters away from the Guarte home (TSN,
February 17, 1997, p. 11). Minutes later, Ricky came back and together with
Lani, Rex and Michael, went to sleep at the Guarte house. They had not laid
down for long when they heard stones being hurled at the roof of the house.
The stoning was made three (3) times (TSN, August 5, 1998, pp. 2-3). Ricky
rose from bed and peeped through a window. He saw appellant stoning their
house. Ricky went out of the house and proceeded to appellants house.
Ricky asked appellant, his uncle, why he was stoning their house. Appellant
did not answer but met Ricky at the doorstep of his (appellants) house
(TSN, April 26, 1996, p. 6; August 5, 1998, pp. 4-5) and, without any
warning, stabbed Ricky on the abdomen with a bolo (TSN, August 5, 1998,
p. 8). Eliza had followed his son Ricky and upon seeing that Ricky was
stabbed, shouted for help (TSN, February 17, 1997, p. 13). Lani heard
Elizas cry for help and immediately rushed outside the house. Lani saw
Ricky leaning on the ground and supporting his body with his hands. Lani
helped Ricky stand up and brought him to the main road. Lani asked Ricky
who stabbed him and Ricky replied that it was appellant who stabbed him.
Then Docloy Cortez arrived at the scene on board his tricycle. Accordingly,
Ricky was put on the tricycle and taken to the Romblon Provincial Hospital
(TSN, January 19, 1998, pp. 4-6).
At the Romblon Provincial Hospital, Dr. Noralie Fetalvero operated on Ricky that very
night. Ricky had sustained one (1) stab wound but due to massive blood loss, he died
while being operated on (TSN, November 24, 1997, pp. 2, 6-7). Dr. Fetalvero issued a
Medico-Legal Certificate showing the injuries sustained by Ricky, thus:
Stab wound, left chest with gastric & transverse colon evisceration
measuring 6 cms. long, irregular-edged at 8th ICS, left penetrating
(operative findings):
(1) abdominal cavity perforating the stomach (thru & thru) and the
left lobe of the liver
(2) thoracic cavity thru the left dome of the diaphragm perforating
the lower lobe of the left lung.

(Exhibit C)
The Certificate of Death issued by Dr. Fetalvero stated the cause of Rickys
death as:
CAUSES OF DEATH:

Immediate cause :

a. Cardiorespiratory Arrest

Antecedent cause :

b. Hypovolemic shock

Underlying cause :

c. Multiple thoraco-abdominal

WHETHER OR NOT ACCUSED-APPELLANT CAN BE CRIMINALLY HELD

LIABLE FOR THE ACCIDENTAL DEATH OF RICKY GUARTE 7
Invoking Article 12, paragraph 4 of the Revised Penal Code, the petitioner claimed
that he stabbed the victim by accident; hence, he is exempt from criminal liability for
the death of the victim.

injury 2 to stab wound

(Exhibit B)4
The Evidence of the Petitioner
The petitioner adduced evidence that at around 5:00 p.m. on September 16, 1995, he
was on his way home at Tuburan, Odiongan, Romblon. He saw his nephew, Ricky
Guarte, and the latters friends, Michael Fosana, Rex Cortez, and Lani Famero, about
five meters away from his house, having a drinking spree. He ordered them not to
make loud noises, and they obliged. He then went to his house, locked the door with
a nail, and went to sleep. However, he was awakened at around 9:30 p.m. by loud
noises coming from Ricky and his three companions. He peeped through the window
grills of his house and admonished them not to make any loud noises. Ricky, who
was then already inebriated, was incensed; he pulled out a balisong, pushed the door,
and threatened to stab the petitioner. The petitioner pushed their sala set against the
door to block the entry of Ricky, but the latter continued to push the door open with
his hands and body. The petitioner ran to the upper portion of their house and got his
bolo.5 He returned to the door and pushed it with all his might using his left hand. He
then pointed his bolo, which was in his right hand, towards Ricky. The bolo
accidentally hit Ricky on the stomach, and the latter lost his balance and fell to the
floor. The petitioner, thereafter, surrendered to the barangay captain at 11:00 a.m. on
September 17, 1995.
After trial, the court rendered judgment finding the petitioner guilty as charged. The
fallo of the decision reads:
WHEREFORE, premises considered, NOE TOLEDO is hereby found
GUILTY beyond reasonable doubt of homicide with the mitigating
circumstance of voluntary surrender and is meted the indeterminate penalty
of from six (6) years and one (1) day of prision mayor minimum, as
minimum, to twelve (12) years and one (1) day of reclusion temporal
minimum, as maximum.
Accused is condemned to pay the amount of P50,000.00 as civil liability to
the heirs of the victim.6
The trial court did not give credence and probative weight to the testimony of the
petitioner that his bolo accidentally hit the victim on the stomach.
On appeal in the CA, the petitioner raised the following issue in his brief as appellant:

The CA rendered judgment affirming the assailed decision with modifications. The CA
also denied the petitioners motion for reconsideration thereof. The appellate court
ruled that the petitioner failed to prove that he acted in self-defense.
Aggrieved, the petitioner filed the instant petition for review, contending that the CA
erred in not finding that he acted in self-defense when he stabbed the victim by
accident and prays that he be acquitted of the crime charged.
The sole issue in this case is whether or not the petitioner is guilty beyond reasonable
doubt of homicide based on the evidence on record.
The petitioner contends that the CA committed a reversible error when it affirmed the
decision of the RTC convicting him of homicide, on its finding that he failed to prove
that he acted in complete self-defense when the victim was hit by his bolo. The
petitioner insists that he acted in complete self-defense when his bolo accidentallyhit
the victim on the stomach.
For its part, the Office of the Solicitor General asserts that the petitioner failed to
prove self-defense with clear and convincing evidence. Hence, the decision of the CA
affirming, on appeal, the decision of the RTC is correct.
The contention of the petitioner has no merit.
The petitioner testified that his bolo hit the victim accidentally. He asserted in the RTC
and in the CA that he is exempt from criminal liability for the death of the victim under
Article 12, paragraph 4 of the Revised Penal Code which reads:
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.
In his brief in the CA, the petitioner argued that:
In the case at bar, with all due respect, contrary to the findings of
the lower court, it is our humble submission that the death of Ricky
Guarte was merely a sad and unwanted result of an accident
without fault or intention of causing it on the part of accusedappellant. We submit, there were clear and indubitable factual
indicators overlooked by the lower court, bolstering the theory of
the defense on accidental death.8

However, the petitioner changed gear, so to speak, and now alleges that he acted in
self-defense when he stabbed the victim. As such, he contends, he is not criminally
liable under Article 11, paragraph 1 of the Revised Penal Code which reads:
Art. 11. Justifying circumstances. The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it:
Third. Lack of sufficient provocation on the part of the
person defending himself.
The petitioner avers that he was able to prove the essential elements of
complete self-defense, thus:
A close scrutiny of the records of the case would show that the
petitioner acted in self-defense.
The essential requisites of self-defense are: (1) unlawful aggression on the
part of the victim; (2) reasonable scrutiny of the means employed to prevent
or repel it; and (3) lack of sufficient provocation on the part of the person
defending himself (People vs. Silvano, 350 SCRA 650)9
However, the petitioner also claims that his bolo accidentally hit the stomach of the
victim.
It is a matter of law that when a party adopts a particular theory and the case is tried
and decided upon that theory in the court below, he will not be permitted to change
his theory on appeal. The case will be reviewed and decided on that theory and not
approached and resolved from a different point of view. To permit a party to change
his theory on appeal will be unfair to the adverse party.10
The petitioner is proscribed from changing in this Court, his theory of defense which
he adopted in the trial court and foisted in the CA by claiming that he stabbed and
killed the victim in complete self-defense. The petitioner relied on Article 12,
paragraph 4 of the Revised Penal Code in the trial and appellate courts, but adopted
in this Court two divergent theories (1) that he killed the victim to defend himself
against his unlawful aggression; hence, is justified under Article 11, paragraph 1 of
the Revised Penal Code; (2) that his bolo accidentally hit the victim and is, thus,
exempt from criminal liability under Article 12, paragraph 4 of the Revised Penal
Code.

It is an aberration for the petitioner to invoke the two defenses at the same time
because the said defenses are intrinsically antithetical.11 There is no such defense as
accidental self-defense in the realm of criminal law.
Self-defense under Article 11, paragraph 1 of the Revised Penal Code necessarily
implies a deliberate and positive overt act of the accused to prevent or repel an
unlawful aggression of another with the use of reasonable means. The accused has
freedom of action. He is aware of the consequences of his deliberate acts. The
defense is based on necessity which is the supreme and irresistible master of men of
all human affairs, and of the law. From necessity, and limited by it, proceeds the right
of self-defense. The right begins when necessity does, and ends where it
ends.12 Although the accused, in fact, injures or kills the victim, however, his act is in
accordance with law so much so that the accused is deemed not to have
transgressed the law and is free from both criminal and civil liabilities.13 On the other
hand, the basis of exempting circumstances under Article 12 of the Revised Penal
Code is the complete absence of intelligence, freedom of action, or intent, or the
absence of negligence on the part of the accused.14 The basis of the exemption in
Article 12, paragraph 4 of the Revised Penal Code is lack of negligence and intent.
The accused does not commit either an intentional or culpable felony. The accused
commits a crime but there is no criminal liability because of the complete absence of
any of the conditions which constitute free will or voluntariness of the act.15 An
accident is a fortuitous circumstance, event or happening; an event happening wholly
or partly through human agency, an event which under the circumstances is unusual
or unexpected by the person to whom it happens.16
Self-defense, under Article 11, paragraph 1, and accident, under Article 12, paragraph
4 of the Revised Penal Code, are affirmative defenses which the accused is burdened
to prove, with clear and convincing evidence. Such affirmative defenses involve
questions of facts adduced to the trial and appellate courts for resolution. By admitting
killing the victim in self-defense or by accident without fault or without intention of
causing it, the burden is shifted to the accused to prove such affirmative defenses. He
should rely on the strength of his own evidence and not on the weakness of that of
the prosecution. If the accused fails to prove his affirmative defense, he can no longer
be acquitted.
The petitioner failed to prove that the victim was killed by accident, without fault or
intention on his part to cause it. The petitioner was burdened to prove with clear and
convincing evidence, the essential requisites for the exempting circumstance under
Article 12, paragraph 4, viz:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it.
To prove his affirmative defense, the petitioner relied solely on his testimony, thus:

Q What happened next when Ricky Guarte was able to push through the
door and you ran away?

A No, Sir.
Q Now, why was it opened?

A When Ricky Guarte was able to push the door, that is the time I go (sic)
downstairs and got my bolo and at that time the body of Ricky Guarte was at
the entrance of the door and accidentally the bolo reached him.

A Because he was pushing it.

Q With his left hand?

Q Where did you get the bolo?

A I got the bolo in the post or wall of our house.

A With his both hands and body.

Q Was Ricky Guarte hit the first time you boloed him?

Q Now, when he fell down because, according to you, he losses (sic) his
balance, the left side of the body was the first to fell (sic) down, correct?

A Not hacking but accidentally.

A Yes, Sir.

Q What do you mean by accidentally?

Q You are sure of your answer now Mr. Toledo?

A Because when Ricky Guarte pushed the door and unbalance himself (sic)
the bolo which I was carrying hit him accidentally.

A Yes, Sir.

Q Where was he hit by the bolo you were carrying?

Q Now, and while holding that bolo, you are doing that in [an] upward
position, correct?

A In the stomach.17

A No, Sir, pointing the door.

Q Yes, you are pointing the tip of your bolo to the door upward, correct?

Q And since you were at the left side of the door, your right hand was at the
center part of the door, correct?

A No, Sir, steady pointing to the door.

A No, Sir.

Q Now, when the door was opened, your bolo did not hit any part of that
door, correct?

Q Where was your right hand?

A "Ginaiwas ko ang sunrang," meaning I was able to get away from hitting
any part of the door.

A Holding a bolo.
Q Where, in what part of the door?

Q The question Mr. Toledo is simple, while the door was opened and while
you were pointing directly your bolo at the door, not any part of the door hit
the bolo (sic), correct?

A Right side.
ATTY. FORMILLEZA:
Q When Ricky Guarte was pushing the door, the door was not opened?
It was a valid answer, it did not hit any part of the door.
A It was opened.
COURT:
Q It was opened because you opened the door, correct?
Answer.

A No, Sir.

A Inside our house.19

PROS. FRADEJAS continuing:

We find the testimony of the petitioner incredible and barren of probative weight.

Q You were only about five inches away from your door while pushing it,
correct?

First. If the testimony of the petitioner is to be believed, the force of the struggle
between him and the victim would have caused the door to fall on the petitioner.
However, the petitioner failed to adduce real evidence that the door of his house was
destroyed and that he sustained any physical injuries,20 considering that he was only
five inches away from the door.

A Yes, Sir.
Q Now, when the door was pushed already by Ricky Guarte, not any part of
your body hit the door, correct?
A No, Sir.18
The petitioner also testified that the victim was armed with a balisong and threatened
to kill him as the said victim pushed, with his body and hands, the fragile door of his
house:
Q Where were you when you saw Ricky went out?

Second. If the door fell to the sala of the house of the petitioner, the victim must have
fallen on top of the door. It is incredible that the bolo of the petitioner could have hit
the stomach of the victim. The claim of the petitioner that he managed to step aside
and avoid being crushed by the door belies his claim that the bolo accidentally hit the
victim on the stomach.
Third. When he surrendered to the barangay captain and to the policemen, he failed
to relate to them that his bolo accidentally hit the stomach of the victim:
Q Now, that very night when you said Ricky Guarte was accidentally hit by
your bolo, you did not surrender to the police, correct?

A I was at the door.

Q Did Ricky proceed to the door where you were?
A Yes, Sir.
Q What did he do, if any?
A He drew his fan knife or balisong and asked me what do you like, I will
stab you?
Q What did you do?
A I told him I have not done you anything wrong, I am only scolding you or
telling you not to make noise.
Q What, if any, did Ricky Guarte do to you?
A He pushed the door.

A I surrendered to the barangay captain at one oclock in Panique, in the

afternoon.
Q Now, you only surrendered to the police when a certain person advised
you to surrender, correct?
A On my own volition, I surrendered to the barangay captain.
Q You did not narrate the incident to the barangay captain whom you have
surrendered, correct?
A No, Sir.
Q When you were brought to the municipal jail, you did not also narrate to
the police what happened, correct?
A No, Sir.

Q Whose door did he push?

Q You just remained silent thinking of an excuse that happened that evening
of September 16, 1995, correct?

A My own door.

A No, Sir.21

Q Where were you when he pushed the door?

Fourth. There is no evidence that the petitioner surrendered either the bolo that
accidentally hit the victim or the balisong held by the deceased to the barangay
captain or the police authorities. Such failure of the petitioner negates his claim that
his bolo accidentally hit the stomach of the victim and that he acted in self-defense.22
Fifth. To prove self-defense, the petitioner was burdened to prove the essential
elements thereof, namely: (1) unlawful aggression on the part of the victim; (2) lack of
sufficient provocation on the part of the petitioner; (3) employment by him of
reasonable means to prevent or repel the aggression. Unlawful aggression is a
condition sine qua non for the justifying circumstances of self-defense, whether
complete or incomplete.23 Unlawful aggression presupposes an actual, sudden, and
unexpected attack, or imminent danger thereof, and not merely a threatening or
intimidating attitude.24 We agree with the ruling of the CA that the petitioner failed to
prove self-defense, whether complete or incomplete:
The evidence on record revealed that there is no unlawful aggression on the
part of Ricky. While it was established that Ricky was stabbed at the
doorstep of appellants house which would give a semblance of verity to
appellants version of the incident, such view, however, is belied by the fact
that Ricky arrived at appellants house unarmed and had only one purpose
in mind, that is, to ask appellant why he threw stones at his (Rickys) house.
With no weapon to attack appellant, or defend himself, no sign of hostility
may be deduced from Rickys arrival at appellants doorstep. Ricky was not
threatening to attack nor in any manner did he manifest any aggressive act
that may have imperiled appellants well-being. Rickys want of any weapon
when he arrived at appellants doorstep is supported by the fact that only
one weapon was presented in court, and that weapon was the bolo
belonging to appellant which he used in stabbing Ricky. Thus, appellants
version of the events does not support a finding of unlawful aggression. In
People vs. Pletado, the Supreme Court held:
"xxx (F) or aggression to be appreciated, there must be an actual,
sudden, [un]expected attack or imminent danger thereof, and not
merely a threatening or intimidating attitude (People vs. Pasco, Jr.,
supra, People vs. Rey, 172 SCRA 149 [1989]) and the accused
must present proof of positively strong act of real aggression
(Pacificar vs. Court of Appeals, 125 SCRA 716 [1983]). Unlawful
aggression must be such as to put in real peril the life or personal
safety of the person defending himself or of a relative sought to be
defended and not an imagined threat."
Appellant was not justified in stabbing Ricky. There was no imminent threat to
appellants life necessitating his assault on Ricky. Unlawful aggression is a condition
sine qua non for the justifying circumstance of self-defense. For unlawful aggression
to be appreciated there must be an actual, sudden, unexpected attack or imminent
danger thereof, not merely a threatening or intimidating attitude. In the absence of
such element, appellants claim of self-defense must fail.
Further, appellants plea of self-defense is not corroborated by competent evidence.
The plea of self-defense cannot be justifiably entertained where it is not only

uncorroborated by any separate competent evidence but is in itself extremely

doubtful.25
Sixth. With the failure of the petitioner to prove self-defense, the inescapable
conclusion is that he is guilty of homicide as found by the trial court and the CA. He
cannot even invoke Article 12, paragraph 4 of the Revised Penal Code.26
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision
of the Court of Appeals isAFFIRMED. Costs against the petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

however, appellant thrust the barrel of the gun against the abdomen of Lorenzo. Then
there was an explosion. Lorenzo was shot in the thigh. At least three more shots were
fired, hitting Lorenzo in the chest. According to Sison and Yarte, appellant shot
Lorenzo deliberately. Lorenzo died instantly.

SECOND DIVISION
G.R. No. 136844

August 1, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SPO1 RODOLFO CONCEPCION y PERALTA, accused-appellant.
DECISION

ORLANDO GALANG, the victims brother, recalled that he arrived at the scene of the
crime after Lorenzo was slain.4 According to him, his brother was not brought to the
hospital.5 Orlando testified on the anguish he suffered for having lost his brother. 6
CONCORDIA GALANG, mother of the victim, testified that Lorenzo worked at the
Hacienda Luisita and was earning P1,000 more or less a week.7 According to her,
Lorenzo was 27 years old when he died. He was married and had two children.8 As a
result of Lorenzos death, the Galangs incurred expenses amounting to
approximately half a million pesos.9 Concordia Galang presented a list of these
expenses amounting to P257,259,10 but without supporting receipts.

QUISUMBING, J.:
Appellant seeks the reversal of the decision1 of the Regional Trial Court of Tarlac,
Branch 65, in Criminal Case No. 9776, finding him guilty of murder and sentencing
him to reclusion perpetua.
On January 22, 1998, an information2 for murder was filed with the trial court charging
him with murder allegedly committed as follows:
That on or about November 24, 1997 between 10:00 and 11:00 oclock in the
evening, in Brgy. Cut-Cut II, Municipality of Tarlac, Province of Tarlac, Philippines and
within the jurisdiction of this Honorable Court the said accused, with intent to kill and
with treachery, did then and there wilfully, unlawfully and feloniously shoot with his
Armalite rifle Lorenzo Galang hitting him at the different parts of his body and as a
result of which said Lorenzo Galang died instantly.
CONTRARY TO LAW.
Appellant pleaded not guilty to the charge, and thereafter trial commenced.
The prosecution relied mainly on the eyewitnesses Maximo Sison, Jr., an employee of
Hacienda Luisita, and Arturo Yarte, a tricycle driver, both of Barangay Cut-cut II,
Tarlac City. Other prosecution witnesses were Orlando Galang, brother of the victim
Lorenzo Galang, and Concordia Galang, his mother.
Both MAXIMO SISON, JR. and ARTURO YARTE testified3 that between 10:00 and
11:00 in the evening of November 24, 1997, Lorenzo Galang, a resident of their
barangay, got involved in a quarrel at the town plaza. He was brought to the barangay
hall for questioning by Barangay Captain Remigio Capitli.
Shortly after, appellant Rodolfo Concepcion arrived and fired his rifle twice or thrice
past the ears of Lorenzo, who was then sitting, but without injuring him. After that,

In his defense, appellant RODOLFO CONCEPCION claimed that the shooting was
only accidental. According to him, he was investigating Lorenzo for the latters
disorderly behavior at the town plaza when it happened. He said Lorenzo appeared
drunk and unruly, and even verbally challenged him to fight. At this juncture,
according to appellant, he fired two shots in the air, but Lorenzo grabbed the barrel of
his gun. The gun accidentally fired and Lorenzo was hit.11
Defense witnesses ESTELITA BALUYOT and MILAGROS VILLEGAS corroborated
appellants story. They said they witnessed the incident because they were among the
bystanders who saw the event happen from the time Lorenzo was brought to the
barangay hall for investigation until he was shot.
Estelita and Milagros testified that Lorenzo was seated while being questioned and
pacified by appellant. Appellant was then standing. All of a sudden, according to the
lady-witnesses, appellant fired two warning shots in the air. Lorenzo stood up and
grabbed the barrel of the gun which was then pointed upwards. When it fired, Lorenzo
was hit.12
On November 10, 1998, the trial court rendered its decision finding appellant guilty of
the crime of murder. Its falloreads:
WHEREFORE, finding accused guilty beyond reasonable doubt of the crime of
murder punished and defined by Article 248 in relation to RA 7659, accused is hereby
sentenced to suffer an imprisonment of reclusion perpetua and to indemnify the heirs
of the deceased in the amount of P50,000.00 for his loss of life; P120,000.00 as
expected income; P100,000.00 as moral damages; and P10,000.00 as attorneys
fees.13
Seasonably, appellant filed his notice of appeal. In his brief, he makes but one
assignment of error:

THE LOWER COURT GRAVELY ERRED IN NOT FINDING THAT THE INJURIES
SUSTAINED BY THE DECEASED WERE UNINTENTIONALLY INFLICTED WHILE
ACCUSED-APPELLANT WAS IN THE COURSE OF PERFORMING HIS LAWFUL
DUTY AS A POLICE OFFICER.14

swivel, with its barrel pointed to the floor. At that instance, the victim grabbed the
barrel of the gun which accidentally fired.18 However, on direct examination by his
defense counsel, he testified that the victim grabbed his rifle only after he had fired
the two shots in the air.

The sole issue in this case is whether appellant is exempt from criminal liability. Under
Article 12 (4) of the Revised Penal Code, among those exempted from criminal
liability is:

His claims do not square with and could not overcome the testimony of prosecution
witnesses on this score. Note that Maximo Sison, Jr., an eyewitness, categorically
declared that he saw appellant shoot the victim with an M-16 armalite.19 On direct
examination, Sison testified as follows:

Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it.
Well settled is the rule in criminal cases, that the prosecution has the burden of proof
to establish the guilt of the accused.15 However, once the defendant admits the
commission of the offense charged, but raises an exempting circumstance as a
defense, the burden of proof is shifted to him. By invoking mere accident as a
defense, appellant now has the burden of proving that he is entitled to that exempting
circumstance under Article 12 (4) of the Code.

Q: Earlier, you stated at the time you arrived at the barangay hall, Rodolfo
Concepcion was eight (8) meters away from Lorenzo, at that time Rodolfo
Concepcion shot Lorenzo Galang, how far is Rodolfo Concepcion from Lorenzo
Galang?
A: He was near him because he approached him, sir. He was very near.
xxx

The existence of accident must be proved by the appellant to the satisfaction of the
court. For this to be properly appreciated in appellants favor, the following requisites
must concur: (1) that the accused was performing a lawful act with due care; (2) that
the injury is caused by mere accident; and (3) that there was no fault or intent on his
part to cause the injury.16 Appellant must convincingly prove the presence of these
elements in order to benefit from the exempting circumstance of accident. However,
his defense utterly failed to discharge this burden. Thus, we find no reversible error in
the judgment of the trial court.

Q: How many times did Rodolfo Concepcion shot (sic) Lorenzo Galang?

By appellants own testimony, the victim was unarmed. In contrast, appellant had an
armalite and a handgun. It is highly inconceivable that an unarmed man could pose
bodily harm to another who is heavily armed.

Q: At the time Rodolfo Concepcion fired these two (2) shots, according to you, it was
near his left ear?

We note, that appellants gun discharged several shots that hit vital parts of the
victims body. Was the discharge purely accidental? We dont think so. As observed
by the trial court, recklessly appellant had put his finger on the trigger of his cocked
and loaded rifle. In that state, with the slightest movement of his finger,17 the rifle
would fire readily. And it did not just once but several fires.

A: The first firing were two (2) shots, sir.

Q: Was Lorenzo Galang hit?
A: No sir.

A: Yes, sir.
Q: How far is the barrel from the ear of Lorenzo Galang when he fired those two
shots? Will you indicate by pointing your left ear?
A: Less than a foot, sir.

Appellant claims that the victim Lorenzo, who was drunk at the time, was brought to
the barangay hall for investigation. Lorenzo became unruly while being questioned,
so appellant was constrained to fire two warning shots in the air to frighten him.
However, the latter stood up and immediately grabbed the nozzle of the gun and
pulled it towards him. The gun accidentally went off and hit Lorenzo in the body. To
buttress his claim, appellant rationalizes that he could have killed Lorenzo
immediately while creating trouble at the plaza, if that was indeed his intention. Since
he did not, appellant posits that there was no intent on his part to kill Lorenzo.
But we note patent inconsistencies in his claims. He testified on query by the trial
court that when he was pacifying the victim, his rifle was hanging on his shoulder on a

Q: When you are referring to the barrel of the gun which was pointed at the left ear of
Lorenzo, how far is the barrel of the gun from the ears of Lorenzo?
A: The barrel was "lampas tainga" so Lorenzo was not hit, sir.
Q: What happened after that?
A: He put down and thrust the barrel of the gun toward the stomach of Lorenzo
Galang, sir.

Q: After Rodolfo Concepcion thrust the barrel of his gun towards the abdomen of
Lorenzo Galang what else transpired?

The trial court found that treachery attended the commission of the crime. As
hereafter explained, however, in this case treachery is only an aggravating and not a
qualifying circumstance.

A: Because he was hurt he tried to push the barrel of the gun, sir.
Q: What did Lorenzo Galang use in pushing the barrel when Rodolfo Concepcion
thrust it towards the stomach?
A: He just pushed a little bit to remove the barrel of the gun from his abdomen, sir.
Q: After that what happened?
A: After pushing the barrel of the gun simultaneously the firing and hitting Lorenzo at
his right thigh, sir.
Q: What did Lorenzo Galang do after he was hit on the right thigh?
A: Because Lorenzo was seated, he was lifted from his seat, sir.
Q: Incidentally at that time when Rodolfo Concepcion placed the barrel of his gun
about a distance away from the ear of Lorenzo, how far was Lorenzo Galang
positioned that time?
A: He was leaning on the chair sir.
Q: What about Rodolfo Concepcion how was he positioned when he fired those first
two shots?
A: He was standing, sir.
Q: Now after the right thigh of Lorenzo Galang was hit by third shot what else
transpired?
A: He again thrust the barrel of his gun on the chest or towards the chest of Lorenzo
and simultaneously fired the gun.20
The autopsy report corroborates Sisons testimony that the victim had three gunshot
wounds: one at the right nipple, another at the mid-femur (thighbone), and another
above the knee.21 Likewise, Sisons declaration on material details coincide with those
narrated by Arturo Yarte, a barangay tanod who also witnessed the shooting incident.
There is no proof of ill motive on the part of Sison and Yarte that could have impelled
them to falsely testify against appellant. In fact, Sison was appellants childhood
friend.22

To constitute treachery (alevosia), two conditions must be present: (1) the

employment of means of execution that give the person attacked no opportunity to
defend himself or to retaliate; and (2) the means of execution were deliberately or
consciously adopted.23 Here, treachery was clearly present considering that the victim
was totally unprepared for the barrage of gunshots made by appellant. It was
undisputed that the victim was brought to the barangay hall for questioning. He had
submitted himself to the authority of the barangay officials and to the police
authorities. He was seated, thereby excluding any insinuation that he was violent and
unruly. He was weak from drinking at the time so that he had very little physical ability
to cause harm to anyone, more so in the presence of the barangay captain,
barangay tanod and a police officer in the person of appellant.24
From the circumstances of the case, the Court agrees with the prosecution that
appellant consciously and purposely adopted the means of attack to insure the
execution of the crime without risk to himself.
However, we note that treachery, though stated in the information, was not alleged
with specificity as qualifying the killing to murder. Following People vs. Alba, G.R. No.
130523, January 29, 2002, the information should state not only the designation of
the offense and the acts and omissions constituting it, but should also specify the
qualifying and aggravating circumstances. Since the information in this case failed to
specify treachery as a circumstance qualifying the killing to murder, under the present
Revised Rules of Criminal Procedure,25 treachery has to be considered a generic
aggravating circumstance only. Consequently, the crime committed by appellant is
homicide and not murder.
Further, we find that the trial court misappreciated as an aggravating circumstance
the fact that appellant was a policeman on duty at the time of the killing. The
information charging appellant bears no mention of this aggravating
circumstance.1wphi1 Pursuant to the Revised Rules of Criminal Procedure that took
effect on December 1, 2000, every complaint or information must state not only the
qualifying but also the aggravating circumstances.26This provision may be given
retroactive effect in the light of the well-settled rule that statutes regulating the
procedure of the courts will be construed as applicable to actions pending and
undetermined at the time of their passage.27 The aggravating circumstance of abuse
of official position, not having been alleged in the information, could thus not be
appreciated to increase appellants liability.
At any rate, appellants immediate surrender to police authorities after the shooting
should be credited in his favor as a mitigating circumstance, pursuant to Article 13 (7)
of the Revised Penal Code.28
In sum, we find appellant guilty of homicide. The penalty for homicide under Article
249 of the Revised Penal Code is reclusion temporal. There being one mitigating
circumstance of voluntary surrender and one aggravating circumstance of treachery,
the penalty should be imposed in its medium period.1wphi1 Applying the

Indeterminate Sentence Law, appellants sentence should be within the range

of prision mayor as minimum, and the medium period of reclusion temporal as
maximum.
As to the award of damages, the trial court offered no explanation for the award of
P120,000 as expected income. This figure is without basis. The victims lost earnings
are to be computed according to the formula adopted by the Court in several decided
cases, to wit:
Net earning capacity = 2/3 x (80-age of the a reasonable portion
victim at the time of x of the annual net
his death) income which would
have been received by
the heirs for support29
Lorenzo was 27 years old at the time of his death. His mother testified that he was
earning P1,000 a week during his lifetime or an annual income of P48,000. In the
absence of proof of his living expenses, his net income is deemed to be 50 percent of
his gross income.30 Using the above formula, we fix the indemnity for loss of earning
capacity of Lorenzo at P848,000, thus:
2 (80-27)
Net earning capacity

x [P48,000 - P24,000]
3
2 (53)

x P24,000
3

35.33 x P24,000

P848,000

We find the award of P50,000 as death indemnity to the heirs of the deceased to be
in accordance with existing jurisprudence.31 This civil indemnity is automatically
granted to the heirs of the victim without need of any evidence other than the fact of
the commission of the crime.32 As for moral damages, the amount should be reduced
to P50,000 also in accordance with existing jurisprudence.33 The award of P10,000 as
attorneys fees is sufficient and justified.
WHEREFORE, the decision of the Regional Trial Court, Tarlac, Branch 65, in Criminal
Case No. 9776, convicting appellant Rodolfo Concepcion of the crime of murder, is
hereby AFFIRMED with MODIFICATION. Appellant is found guilty of the crime of
homicide and sentenced to an indeterminate penalty of eight (8) years and one (1)
day of prision mayor as minimum and fourteen (14) years, eight (8) months, and one
(1) day of reclusion temporal as maximum. He is also ordered to pay the heirs of the
victim the amount of P50,000 as civil indemnity, P50,000 as moral damages,
P848,000 as lost earnings, P10,000 as attorneys fees, and the costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
FIRST DIVISION
G.R. No. 148431 July 28, 2005
SPO2 RUPERTO CABANLIG, Petitioners,
vs.
SANDIGANBAYAN and OFFICE OF THE SPECIAL PROSECUTOR, Respondents.
DECISION

upon the latter, serious and mortal wounds which were the direct and immediate
cause of his death, which crime was committed by the accused in relation to their
office as members of the Philippine National Police of Penaranda, Nueva Ecija, the
deceased, who was then detained for robbery and under the custody of the accused,
having been killed while being taken to the place where he allegedly concealed the
effects of the crime, to the damage and prejudice of the heirs of said victim, in such
amount as may be awarded under the provisions of the New Civil Code.
CONTRARY TO LAW.4
Arraignment and Plea

CARPIO, J.:

On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis,

Mercado and Esteban pleaded not guilty.

The Case

Version of the Prosecution

This petition for review1 seeks to reverse the Decision2 of the Fifth Division of the
Sandiganbayan dated 11 May 1999 and Resolution3 dated 2 May 2001 affirming the
conviction of SPO2 Ruperto Cabanlig ("Cabanlig") in Criminal Case No. 19436 for
homicide. The Sandiganbayan sentenced Cabanlig to suffer the indeterminate
penalty of four months of arresto mayor as minimum to two years and four months
of prision correctional as maximum and to pay P50,000 to the heirs of Jimmy Valino
("Valino"). Cabanlig shot Valino after Valino grabbed the M16 Armalite of another
policeman and tried to escape from the custody of the police. The Sandiganbayan
acquitted Cabanligs co-accused, SPO1 Carlos Padilla ("Padilla"), PO2 Meinhart
Abesamis ("Abesamis"), SPO2 Lucio Mercado ("Mercado") and SPO1 Rady Esteban
("Esteban").

On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva

Ecija. Four days later or on 28 September 1992, the investigating authorities
apprehended three suspects: Jordan Magat ("Magat"), Randy Reyes ("Reyes") and
Valino. The police recovered most of the stolen items. However, a flower vase and a
small radio were still missing. Cabanlig asked the three suspects where these two
items were. Reyes replied that the items were at his house.

The Charge
Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an
amended information that reads as follows:
That on or about September 28, 1992, in the Municipality of Penaranda, Province of
Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, SPO[2] Ruperto C. Cabanlig, SPO1 Carlos E. Padilla, PO2
Meinhart C. Abesamis, SPO2 Lucio L. Mercado and SPO1 Rady S. Esteban, all
public officers being members of the Philippine National Police, conspiring and
confederating and mutually helping one another, with intent to kill, with treachery and
evident premeditation, taking advantage of nighttime and uninhabited place to
facilitate the execution of the crime, with use of firearms and without justifiable cause,
did then and there, wilfully, unlawfully and feloniously attack, assault and shoot one
Jimmy Valino, hitting him several times at the vital parts of his body, thereby inflicting

Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to

accompany him in retrieving the flower vase and radio. Cabanlig then brought out
Reyes and Magat from their cell, intending to bring the two during the retrieval
operation. It was at this point that Valino informed Cabanlig that he had moved the
vase and radio to another location without the knowledge of his two cohorts. Cabanlig
decided instead to bring along Valino, leaving behind Magat and Reyes.
Around 6:30 p.m., five fully armed policemen in uniform Cabanlig, Padilla, Mercado,
Abesamis and Esteban escorted Valino to Barangay Sinasahan, Nueva Ecija to
recover the missing flower vase and radio. The policemen and Valino were aboard a
police vehicle, an Isuzu pick-up jeep. The jeep was built like an ordinary jeepney. The
rear end of the jeep had no enclosure. A metal covering separated the drivers
compartment and main body of the jeep. There was no opening or door between the
two compartments of the jeep. Inside the main body of the jeep, were two long
benches, each of which was located at the left and right side of the jeep.
Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the
jeep. Esteban was right behind Abesamis at the left bench. Valino, who was not
handcuffed, was between Cabanlig and Mercado at the right bench. Valino was

seated at Cabanligs left and at Mercados right. Mercado was seated nearest to the
opening of the rear of the jeep.

presence of any circumstance that would relieve him of responsibility or mitigate the
offense committed.

Just after the jeep had crossed the Philippine National Railway bridge and while the
jeep was slowly negotiating a bumpy and potholed road, Valino suddenly grabbed
Mercados M16 Armalite and jumped out of the jeep. Valino was able to grab
Mercados M16 Armalite when Mercado scratched his head and tried to reach his
back because some flying insects were pestering Mercado. Mercado shouted "hoy!"
when Valino suddenly took the M16 Armalite. Cabanlig, who was then facing the rear
of the vehicle, saw Valinos act of taking away the M16 Armalite. Cabanlig acted
immediately. Without issuing any warning of any sort, and with still one foot on the
running board, Cabanlig fired one shot at Valino, and after two to three seconds,
Cabanlig fired four more successive shots. Valino did not fire any shot.

The Sandiganbayan held that Cabanlig could not invoke self-defense or defense of a
stranger. The only defense that Cabanlig could properly invoke in this case is
fulfillment of duty. Cabanlig, however, failed to show that the shooting of Valino was
the necessary consequence of the due performance of duty. The Sandiganbayan
pointed out that while it was the duty of the policemen to stop the escaping detainee,
Cabanlig exceeded the proper bounds of performing this duty when he shot Valino
without warning.

The shooting happened around 7:00 p.m., at dusk or "nag-aagaw ang dilim at
liwanag." Cabanlig approached Valinos body to check its pulse. Finding none,
Cabanlig declared Valino dead. Valino sustained three mortal wounds one at the
back of the head, one at the left side of the chest, and one at the left lower back.
Padilla and Esteban remained with the body. The other three policemen, including
Cabanlig, went to a funeral parlor.
The following morning, 29 September 1992, a certain SPO4 Segismundo Lacanilao
("Lacanilao") of the Cabanatuan Police went to Barangay Sinasahan, Nueva Ecija to
investigate a case. Lacanilao met Mercado who gave him instructions on how to
settle the case that he was handling. During their conversation, Mercado related that
he and his fellow policemen "salvaged" (summarily executed) a person the night
before. Lacanilao asked who was "salvaged." Mercado answered that it was "Jimmy
Valino." Mercado then asked Lacanilao why he was interested in the identity of the
person who was "salvaged." Lacanilao then answered that "Jimmy Valino" was his
cousin. Mercado immediately turned around and left.
Version of the Defense
Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting as an act
of self-defense and performance of duty. Mercado denied that he told Lacanilao that
he and his co-accused "salvaged" Valino. Cabanlig, Mercado, Abesamis, Padilla, and
Esteban denied that they conspired to kill Valino.
The Sandiganbayans Ruling
The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the court
found no evidence that the policemen conspired to kill or summarily execute Valino.
Since Cabanlig admitted shooting Valino, the burden is on Cabanlig to establish the

The Sandiganbayan found no circumstance that would qualify the crime to murder.
Thus, the Sandiganbayan convicted Cabanlig only of homicide. The dispositive
portion of the decision reads:
WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA,
MEINHART CRUZ ABESAMIS, LUCIO LADIGNON MERCADO and RADY SALAZAR
ESTEBAN are hereby ACQUITTED of the crime charged. Accused RUPERTO
CONCEPCION CABANLIG is found GUILTY beyond reasonable doubt of the crime of
Homicide and is hereby sentenced to suffer the indeterminate sentence of FOUR (4)
MONTHS of arresto mayor, as minimum, to TWO (2) YEARS and FOUR (4)
MONTHS of prision correccional, as maximum. He is further ordered to pay the heirs
of Jimmy Valino the amount of FIFTY THOUSAND (P50,000.00) PESOS, and the
costs.
SO ORDERED.5
On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. ("Associate
Justice Badoy") dissented from the decision. Associate Justice Badoy pointed out that
there was imminent danger on the lives of the policemen when Valino grabbed the
"infallible Armalite"6 from Mercado and jumped out from the rear of the jeep. At a
distance of only three feet from Cabanlig, Valino could have sprayed the policemen
with bullets. The firing of a warning shot from Cabanlig was no longer necessary.
Associate Justice Badoy thus argued for Cabanligs acquittal.
In a vote of four to one, the Sandiganbayan affirmed the decision.7 The dispositive
portion of the Resolution reads:
WHEREFORE, for lack of merit, the motion for reconsideration is hereby DENIED.8
The Issues
Cabanlig raises the following issues in his Memorandum:

WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF

FULFILLMENT OF DUTY PUT UP BY CABANLIG WAS INCOMPLETE

2. The injury caused or the offense committed be the necessary consequence of the
due performance of duty or the lawful exercise of such right or office.12

WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD

NOT INVOKE SELF-DEFENSE/DEFENSE OF STRANGER TO JUSTIFY HIS
ACTIONS

A policeman in the performance of duty is justified in using such force as is

reasonably necessary to secure and detain the offender, overcome his resistance,
prevent his escape, recapture him if he escapes, and protect himself from bodily
harm.13 In case injury or death results from the policemans exercise of such force, the
policeman could be justified in inflicting the injury or causing the death of the offender
if the policeman had used necessary force. Since a policemans duty requires him to
overcome the offender, the force exerted by the policeman may therefore differ from
that which ordinarily may be offered in self-defense.14 However, a policeman is never
justified in using unnecessary force or in treating the offender with wanton violence, or
in resorting to dangerous means when the arrest could be affected otherwise.15

WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO

SUFFER IMPRISONMENT AND IN ORDERING HIM TO PAY THE AMOUNT
OF P 50,000 TO THE HEIRS OF VALINO9
The Courts Ruling
The petition has merit. We rule for Cabanligs acquittal.
Applicable Defense is Fulfillment of Duty
We first pass upon the issue of whether Cabanlig can invoke two or more justifying
circumstances. While there is nothing in the law that prevents an accused from
invoking the justifying circumstances or defenses in his favor, it is still up to the court
to determine which justifying circumstance is applicable to the circumstances of a
particular case.
Self-defense and fulfillment of duty operate on different principles.10 Self-defense is
based on the principle of self-preservation from mortal harm, while fulfillment of duty
is premised on the due performance of duty. The difference between the two justifying
circumstances is clear, as the requisites of self-defense and fulfillment of duty are
different.
The elements of self-defense are as follows:
a) Unlawful Aggression;
b) Reasonable necessity of the means employed to prevent or repel it;
c) Lack of sufficient provocation on the part of the person defending himself.11
On the other hand, the requisites of fulfillment of duty are:
1. The accused acted in the performance of a duty or in the lawful exercise of a right
or office;

Unlike in self-defense where unlawful aggression is an element, in performance of

duty, unlawful aggression from the victim is not a requisite. In People v. Delima,16 a
policeman was looking for a fugitive who had several days earlier escaped from
prison. When the policeman found the fugitive, the fugitive was armed with a pointed
piece of bamboo in the shape of a lance. The policeman demanded the surrender of
the fugitive. The fugitive lunged at the policeman with his bamboo lance. The
policeman dodged the lance and fired his revolver at the fugitive. The policeman
missed. The fugitive ran away still holding the bamboo lance. The policeman pursued
the fugitive and again fired his revolver, hitting and killing the fugitive. The Court
acquitted the policeman on the ground that the killing was done in the fulfillment of
duty.
The fugitives unlawful aggression in People v. Delima had already ceased when the
policeman killed him. The fugitive was running away from the policeman when he was
shot. If the policeman were a private person, not in the performance of duty, there
would be no self-defense because there would be no unlawful aggression on the part
of the deceased.17 It may even appear that the public officer acting in the fulfillment of
duty is the aggressor, but his aggression is not unlawful, it being necessary to fulfill
his duty.18
While self-defense and performance of duty are two distinct justifying circumstances,
self-defense or defense of a stranger may still be relevant even if the proper justifying
circumstance in a given case is fulfillment of duty. For example, a policemans use of
what appears to be excessive force could be justified if there was imminent danger to
the policemans life or to that of a stranger. If the policeman used force to protect his
life or that of a stranger, then the defense of fulfillment of duty would be complete, the
second requisite being present.
In People v. Lagata,19 a jail guard shot to death a prisoner whom he thought was
attempting to escape. The Court convicted the jail guard of homicide because the

facts showed that the prisoner was not at all trying to escape. The Court declared that
the jail guard could only fire at the prisoner in self-defense or if absolutely
necessary to avoid the prisoners escape.
In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the
performance of duty as policemen when they escorted Valino, an arrested robber, to
retrieve some stolen items. We uphold the finding of the Sandiganbayan that there is
no evidence that the policemen conspired to kill or summarily execute Valino. In fact,
it was not Valino who was supposed to go with the policemen in the retrieval
operations but his two other cohorts, Magat and Reyes. Had the policemen staged
the escape to justify the killing of Valino, the M16 Armalite taken by Valino would not
have been loaded with bullets.20 Moreover, the alleged summary execution of Valino
must be based on evidence and not on hearsay.
Undoubtedly, the policemen were in the legitimate performance of their duty when
Cabanlig shot Valino. Thus, fulfillment of duty is the justifying circumstance that is
applicable to this case. To determine if this defense is complete, we have to examine
if Cabanlig used necessary force to prevent Valino from escaping and in protecting
himself and his co-accused policemen from imminent danger.
Fulfillment of Duty was Complete, Killing was Justified
The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty
was found to be incomplete. The Sandiganbayan believed that Cabanlig "exceeded
the fulfillment of his duty when he immediately shot Valino without issuing a warning
so that the latter would stop."21
We disagree with the Sandiganbayan.
Certainly, an M16 Armalite is a far more powerful and deadly weapon than the
bamboo lance that the fugitive had run away with in People v. Delima. The
policeman in People v. Delima was held to have been justified in shooting to death
the escaping fugitive because the policeman was merely performing his duty.
In this case, Valino was committing an offense in the presence of the policemen when
Valino grabbed the M16 Armalite from Mercado and jumped from the jeep to escape.
The policemen would have been justified in shooting Valino if the use of force was
absolutely necessary to prevent his escape.22 But Valino was not only an escaping
detainee. Valino had also stolen the M16 Armalite of a policeman. The policemen had
the duty not only to recapture Valino but also to recover the loose firearm. By
grabbing Mercados M16 Armalite, which is a formidable firearm, Valino had placed
the lives of the policemen in grave danger.

Had Cabanlig failed to shoot Valino immediately, the policemen would have been
sitting ducks. All of the policemen were still inside the jeep when Valino suddenly
grabbed the M16 Armalite. Cabanlig, Mercado and Esteban were hemmed in inside
the main body of the jeep, in the direct line of fire had Valino used the M16 Armalite.
There would have been no way for Cabanlig, Mercado and Esteban to secure their
safety, as there were no doors on the sides of the jeep. The only way out of the jeep
was from its rear from which Valino had jumped. Abesamis and Padilla who were in
the drivers compartment were not aware that Valino had grabbed Mercados M16
Armalite. Abesamis and Padilla would have been unprepared for Valinos attack.
By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino
certainly did not intend merely to escape and run away as far and fast as possible
from the policemen. Valino did not have to grab the M16 Armalite if his sole intention
was only to flee from the policemen. If he had no intention to engage the policemen in
a firefight, Valino could simply have jumped from the jeep without grabbing the M16
Armalite. Valinos chances of escaping unhurt would have been far better had he not
grabbed the M16 Armalite which only provoked the policemen to recapture him and
recover the M16 Armalite with greater vigor. Valinos act of grabbing the M16 Armalite
clearly showed a hostile intention and even constituted unlawful aggression.
Facing imminent danger, the policemen had to act swiftly. Time was of the essence. It
would have been foolhardy for the policemen to assume that Valino grabbed the M16
Armalite merely as a souvenir of a successful escape. As we have pointed out
in Pomoy v. People23:
Again, it was in the lawful performance of his duty as a law enforcer that petitioner
tried to defend his possession of the weapon when the victim suddenly tried to
remove it from his holster. As an enforcer of the law, petitioner was duty-bound to
prevent the snatching of his service weapon by anyone, especially by a detained
person in his custody. Such weapon was likely to be used to facilitate escape and to
kill or maim persons in the vicinity, including petitioner himself.
The Sandiganbayan, however, ruled that despite Valinos possession of a deadly
firearm, Cabanlig had no right to shoot Valino without giving Valino the opportunity to
surrender. The Sandiganbayan pointed out that under the General Rules of
Engagement, the use of force should be applied only as a last resort when all other
peaceful and non-violent means have been exhausted. The Sandiganbayan held that
only such necessary and reasonable force should be applied as would be sufficient to
conduct self-defense of a stranger, to subdue the clear and imminent danger posed,
or to overcome resistance put up by an offender.
The Sandiganbayan had very good reasons in steadfastly adhering to the policy that
a law enforcer must first issue a warning before he could use force against an
offender. A law enforcers overzealous performance of his duty could violate the rights

of a citizen and worse cost the citizens life. We have always maintained that the
judgment and discretion of public officers, in the performance of their duties, must be
exercised neither capriciously nor oppressively, but within the limits of the law.24 The
issuance of a warning before a law enforcer could use force would prevent
unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ
force only as a last resort and only after issuing a warning.
However, the duty to issue a warning is not absolutely mandated at all times and at all
cost, to the detriment of the life of law enforcers. The directive to issue a warning
contemplates a situation where several options are still available to the law enforcers.
In exceptional circumstances such as this case, where the threat to the life of a law
enforcer is already imminent, and there is no other option but to use force to subdue
the offender, the law enforcers failure to issue a warning is excusable.
In this case, the embattled policemen did not have the luxury of time. Neither did they
have much choice. Cabanligs shooting of Valino was an immediate and spontaneous
reaction to imminent danger. The weapon grabbed by Valino was not just any firearm.
It was an M16 Armalite.

At any rate, Valino was amply warned. Mercado shouted "hoy" when Valino grabbed
the M16 Armalite. Although Cabanlig admitted that he did not hear Mercado shout
"hoy", Mercados shout should have served as a warning to Valino. The verbal
warning need not come from Cabanlig himself.
The records also show that Cabanlig first fired one shot. After a few seconds,
Cabanlig fired four more shots. Cabanlig had to shoot Valino because Valino at one
point was facing the police officers. The exigency of the situation warranted a quick
response from the policemen.
According to the Sandiganbayan, Valino was not turning around to shoot because two
of the three gunshot wounds were on Valinos back. Indeed, two of the three gunshot
wounds were on Valinos back: one at the back of the head and the other at the left
lower back. The Sandiganbayan, however, overlooked the location of the third
gunshot wound. It was three inches below the left clavicle or on the left top most part
of the chest area based on the Medico Legal Sketch showing the entrances and exits
of the three gunshot wounds.33
The Autopsy Report34 confirms the location of the gunshot wounds, as follows:

The M16 Armalite is an assault rifle adopted by the United Sates ("US") Army as a
standard weapon in 1967 during the Vietnam War.25 The M16 Armalite is still a
general-issue rifle with the US Armed Forces and US law enforcement
agencies.26 The M16 Armalite has both semiautomatic and automatic capabilities.27 It
is 39 inches long, has a 30-round magazine and fires high-velocity .223-inch (5.56mm) bullets.28 The M16 Armalite is most effective at a range of 200 meters29 but its
maximum effective range could extend as far as 400 meters.30 As a high velocity
firearm, the M16 Armalite could be fired at close range rapidly or with much volume of
fire.31 These features make the M16 Armalite and its variants well suited for urban and
jungle warfare.32
The M16 Armalite whether on automatic or semiautomatic setting is a lethal weapon.
This high-powered firearm was in the hands of an escaping detainee, who had sprung
a surprise on his police escorts bottled inside the jeep. A warning from the policemen
would have been pointless and would have cost them their lives.
For what is the purpose of a warning? A warning is issued when policemen have to
identify themselves as such and to give opportunity to an offender to surrender. A
warning in this case was dispensable. Valino knew that he was in the custody of
policemen. Valino was also very well aware that even the mere act of escaping could
injure or kill him. The policemen were fully armed and they could use force to
recapture him. By grabbing the M16 Armalite of his police escort, Valino assumed the
consequences of his brazen and determined act. Surrendering was clearly far from
Valinos mind.

GUNSHOT WOUNDS modified by embalming.

1. ENTRANCE ovaloid, 1.6 x 1.5 cms; with area of tattooing around the entrance,
4.0 x 3.0 cms.; located at the right postauricular region, 5.5 cms. behind and 1.5 cms.
above the right external auditory meatus, directed forward downward fracturing the
occipital bone, lacerating the right occipital portion of the brain and fracturing the right
cheek bone and making an EXIT wound, 1.5 x 2.0 cms. located on right cheek, 4.0
cms. below and 3.0 cms.. in front of right external auditory meatus.
2. ENTRANCE ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms. from the
anterior median line, 136.5 cms. from the left heel directed backward, downward and
to the right, involving soft tissues, fracturing the 3rd rib, left, lacerating the left upper
lobe and the right lower lobe and finally making an EXIT wound at the back, right
side, 1.4 x 0.8 cms., 19.0 cms. from the posterior median line and 132.0 cms. from
the right heel and grazing the medial aspect of the right arm.
3. ENTRANCE ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms. from the
posterior median line; 119.5 cms. from the left heel; directed forward, downward
involving the soft tissues, lacerating the liver; and bullet was recovered on the right
anterior chest wall, 9.0 cms. form the anterior median line, 112.0 cms. from the right
heel.
The Necropsy Report35 also reveals the following:

1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of the
back of the head. The left parietal bone is fractured. The left temporal bone is also
fractured. A wound of exit measuring 2 cms X 3 cms in size is located at the left
temporal aspect of the head.
2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the
chest about three inches below the left clavicle. The wound is directed medially and
made an exit wound at the right axilla measuring 2 X 2 cms in size.
3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back above
the left lumbar. The left lung is collapsed and the liver is lacerated. Particles of lead
[were] recovered in the liver tissues. No wound of exit.
Cause of Death:
Cerebral Hemorrhage Secondary To Gunshot Wound In The Head
The doctors who testified on the Autopsy36 and Necropsy37 Reports admitted that they
could not determine which of the three gunshot wounds was first inflicted. However,
we cannot disregard the significance of the gunshot wound on Valinos chest. Valino
could not have been hit on the chest if he were not at one point facing the policemen.
If the first shot were on the back of Valinos head, Valino would have immediately
fallen to the ground as the bullet from Cabanligs M16 Armalite almost shattered
Valinos skull. It would have been impossible for Valino to still turn and face the
policemen in such a way that Cabanlig could still shoot Valino on the chest if the first
shot was on the back of Valinos head.

The most probable and logical scenario: Valino was somewhat facing the policemen
when he was shot, hence, the entry wound on Valinos chest. On being hit, Valino
could have turned to his left almost falling, when two more bullets felled Valino. The
two bullets then hit Valino on his lower left back and on the left side of the back of his
head, in what sequence, we could not speculate on. At the very least, the gunshot
wound on Valinos chest should have raised doubt in Cabanligs favor.
Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis,
Mercado and Esteban are guilty only of gross negligence. The policemen transported
Valino, an arrested robber, to a retrieval operation without handcuffing Valino. That no
handcuffs were available in the police precinct is a very flimsy excuse. The policemen
should have tightly bound Valinos hands with rope or some other sturdy material.
Valinos cooperative demeanor should not have lulled the policemen to complacency.
As it turned out, Valino was merely keeping up the appearance of good behavior as a
prelude to a planned escape. We therefore recommend the filing of an administrative
case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross
negligence.
WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case
No. 19436 convicting accused RUPERTO CONCEPCION CABANLIG of the crime of
homicide. We ACQUIT RUPERTO CONCEPCIONCABANLIG of the crime of
homicide and ORDER his immediate release from prison, unless there are other
lawful grounds to hold him. We DIRECT the Director of Prisons to report to this Court
compliance within five (5) days from receipt of this Decision. No costs.
SO ORDERED.