ARTICLE 13.
MITIGATING defense of her honor and that
CIRCUMSTANCES
A. Praeter Intentionem
THE PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs.
NICOLAS JAURIGUE and AVELINA
JAURIGUE, defendants. AVELINA
JAURIGUE, appellant.
DE JOYA, J.:
Nicolas Jaurigue and Avelina
Jaurigue were prosecuted in the
Court of First Instance of Tayabas,
for the crime of murder, of which
Nicolas Jaurigue was acquitted, but
defendant Avelina Jaurigue was
found guilty of homicide and
sentenced to an indeterminate
penalty ranging from seven years,
four months and one day of prision
mayor to thirteen years, nine months
and eleven days of reclusion
temporal, with the accessory
penalties provided by law, to
indemnify the heirs of the deceased,
Amando Capina, in the sum of
P2,000, and to pay one-half of the
costs. She was also credited with
one-half of the period of preventive
imprisonment suffered by her.
From said judgment of conviction,
defendant Avelina Jaurigue appealed
to the Court of Appeals for Southern
Luzon, and in her brief filed therein
on June 10, 1944, claimed —
(1) That the lower court erred in
not holding that said appellant
had acted in the legitimate
she should be completely
absolved of all criminal
responsibility;
(2) That the lower court erred in
not finding in her favor the
additional mitigating
circumstances that (a) she did
not have the intention to
commit so grave a wrong as
that actually committed, and
that (b) she voluntarily
surrendered to the agents of
the authorities; and
(3) That the trial court erred in
holding that the commission of
the alleged offense was
attended by the aggravating
circumstance of having been
committed in a sacred place.
The evidence adduced by the parties,
at the trial in the court below, has
sufficiently established the following
facts:
That both the defendant and
appellant Avelina Jaurigue and the
deceased Amado Capina lived in the
barrio of Sta. Isabel, City of San
Pablo, Province of Laguna; that for
sometime prior to the stabbing of the
deceased by defendant and
appellant, in the evening of
September 20, 1942, the former had
been courting the latter in vain, and
that on one occasion, about one
month before that fatal night, Amado
Capina snatched a handkerchief
belonging to her, bearing her
nickname "Aveling," while it was
being washed by her cousin, Josefa
Tapay.
On September 13, 1942, while
Avelina was feeding a dog under her
house, Amado approached her and
spoke to her of his love, which she
flatly refused, and he thereupon
suddenly embraced and kissed her
and touched her breasts, on account
of which Avelina, resolute and quick-
tempered girl, slapped Amado, gave
him fist blows and kicked him. She
kept the matter to herself, until the
following morning when she informed
her mother about it. Since then, she
armed herself with a long fan knife,
whenever she went out, evidently for
self-protection.
On September 15, 1942, about
midnight, Amado climbed up the
house of defendant and appellant,
and surreptitiously entered the room
where she was sleeping. He felt her
forehead, evidently with the intention
of abusing her. She immediately
screamed for help, which awakened
her parents and brought them to her
side. Amado came out from where he
had hidden under a bed in Avelina's
room and kissed the hand of Nicolas
Jaurigue, her father, asking for
forgiveness; and when Avelina's
mother made an attempt to beat
Amado, her husband prevented her
from doing so, stating that Amado
probably did not realize what he was
doing. Nicolas Jaurigue sent for the
barrio lieutenant, Casimiro Lozada,
and for Amado's parents, the
following morning. Amado's parents
came to the house of Nicolas
Jaurigue and apologized for the
misconduct of their son; and as
Nicolas Jaurigue was then angry, he
told them to end the conversation, as
he might not be able to control
himself.
In the morning of September 20,
1942, Avelina received information
that Amado had been falsely
boasting in the neighborhood of
having taken liberties with her person
and that she had even asked him to
elope with her and that if he should
not marry her, she would take poison;
and that Avelina again received
information of Amado's bragging at
about 5 o'clock in the afternoon of
that same day.
At about 8 o'clock in the evening of
the same day, September 20, 1942,
Nicolas Jaurigue went to the chapel
of the Seventh Day Adventists of
which he was the treasurer, in their
barrio, just across the provincial road
from his house, to attend religious
services, and sat on the front bench
facing the altar with the other officials
of the organization and the barrio
lieutenant, Casimiro Lozada. Inside
the chapel it was quite bright as there
were electric lights.
Defendant and appellant Avelina
Jaurigue entered the chapel shortly
after the arrival of her father, also for
the purpose of attending religious
services, and sat on the bench next
to the last one nearest the door.
Amado Capina was seated on the
other side of the chapel. Upon
observing the presence of Avelina
Jaurigue, Amado Capina went to the
bench on which Avelina was sitting
and sat by her right side, and, without
saying a word, Amado, with the
greatest of impudence, placed his
hand on the upper part of her right
thigh. On observing this highly
improper and offensive conduct of
Amado Capina, Avelina Jaurigue,
conscious of her personal dignity and
honor, pulled out with her right hand
the fan knife marked Exhibit B, which
she had in a pocket of her dress, with
the intention of punishing Amado's
offending hand. Amado seized
Avelina's right hand, but she quickly
grabbed the knife with her left hand
and stabbed Amado once at the base
of the left side of the neck, inflicting
upon him a wound about 4 1/2 inches
deep, which was necessarily mortal.
Nicolas Jaurigue, who was seated on
one of the front benches, saw Amado
bleeding and staggering towards the
altar, and upon seeing his daughter
still holding the bloody knife, he
approached her and asked: "Why did
you do that," and answering him
Avelina said: "Father, I could not
endure anymore." Amado Capina
died from the wound a few minutes
later. Barrio lieutenant Casimiro
Lozada, who was also in the same
chapel, approached Avelina and
asked her why she did that, and
Avelina surrendered herself, saying:
"Kayo na po ang bahala sa aquin,"
meaning: "I hope you will take care of
me," or more correctly, "I place
myself at your disposal." Fearing that
Amado's relatives might retaliate,
barrio lieutenant Lozada advised
Nicolas Jaurigue and herein
defendant and appellant to go home
immediately, to close their doors and
windows and not to admit anybody
into the house, unless accompanied
by him. That father and daughter
went home and locked themselves
up, following instructions of the barrio
lieutenant, and waited for the arrival
of the municipal authorities; and
when three policemen arrived in their
house, at about 10 o'clock that night,
and questioned them about the
incident, defendant and appellant
immediately surrendered the knife
marked as Exhibit B, and informed
said policemen briefly of what had
actually happened in the chapel and
of the previous acts and conduct of
the deceased, as already stated
above, and went with said policemen
to the police headquarters, where her
written statements were taken, and
which were presented as a part of the
evidence for the prosecution.
The high conception of womanhood
that our people possess, however
humble they may be, is universal. It
has been entertained and has existed
in all civilized communities.
A beautiful woman is said to be a
jewel; a good woman, a treasure; and
that a virtuous woman represents the
only true nobility. And they are the
future wives and mothers of the land.
Such are the reasons why, in the
defense of their honor, when brutally
attacked, women are permitted to
make use of all reasonable means
available within their reach, under the
circumstances. Criminologists and
courts of justice have entertained and
upheld this view.
On the other hand, it is the duty of
every man to protect and show
loyalty to womanhood, as in the days
of chivalry. There is a country where
women freely go out unescorted and,
like the beautiful roses in their public
gardens, they always receive the
protection of all. That country is
Switzerland.
In the language of Viada, aside from
the right to life on which rests the
legitimate defense of our own person,
we have the right to property
acquired by us, and the right to honor
which is not the least prized of our
patrimony (1 Viada, Codigo Penal,
5th ed., pp. 172, 173).
The attempt to rape a woman
constitutes an unlawful aggression
sufficient to put her in a state of
legitimate defense, inasmuch as a
woman's honor cannot but be
esteemed as a right as precious, if
not more, than her very existence;
and it is evident that a woman who,
thus imperiled, wounds, nay kills the
offender, should be afforded
exemption from criminal liability,
since such killing cannot be
considered a crime from the moment
it became the only means left for her
to protect her honor from so great an
outrage (1 Viada, Codigo Penal, 5th
ed., p. 301; People vs. Luague and
Alcansare, 62 Phil., 504). .
As long as there is actual danger of
being raped, a woman is justified in
killing her aggressor, in the defense
of her honor. Thus, where the
deceased grabbed the defendant in a
dark night at about 9 o'clock, in an
isolated barrio trail, holding her firmly
from behind, without warning and
without revealing his identity, and, in
the struggle that followed, touched
her private parts, and that she was
unable to free herself by means of
her strength alone, she was
considered justified in making use of
a pocket knife in repelling what she
believed to be an attack upon her
honor, and which ended in his death,
since she had no other means of
defending herself, and consequently
exempt from all criminal liability
(People vs. De la Cruz, 16 Phil.,
344).
And a woman, in defense of her
honor, was perfectly justified in
inflicting wounds on her assailant
with a bolo which she happened to
be carrying at the time, even though
her cry for assistance might have
been heard by people nearby, when
the deceased tried to assault her in a
dark and isolated place, while she
was going from her house to a
certain tienda, for the purpose of
making purchases (United States vs.
Santa Ana and Ramos, 22 Phil.,
249).
In the case, however, in which a
sleeping woman was awakened at
night by someone touching her arm,
and, believing that some person was
attempting to abuse her, she asked
who the intruder was and receiving
no reply, attacked and killed the said
person with a pocket knife, it was
held that, notwithstanding the
woman's belief in the supposed
attempt, it was not sufficient
provocation or aggression to justify
her completely in using deadly
weapon. Although she actually
believed it to be the beginning of an
attempt against her, she was not
completely warranted in making such
a deadly assault, as the injured
person, who turned out to be her own
brother-in-law returning home with
his wife, did not do any other act
which could be considered as an
attempt against her honor (United
States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and
appellant had killed Amado Capina,
when the latter climbed up her house
late at night on September 15, 1942,
and surreptitiously entered her
bedroom, undoubtedly for the
purpose of raping her, as indicated
by his previous acts and conduct,
instead of merely shouting for help,
she could have been perfectly
justified in killing him, as shown by
the authorities cited above..
According to the facts established by
the evidence and found by the
learned trial court in this case, when
the deceased sat by the side of
defendant and appellant on the same
bench, near the door of the barrio
chapel and placed his hand on the
upper portion of her right thigh,
without her consent, the said chapel
was lighted with electric lights, and
there were already several people,
about ten of them, inside the chapel,
including her own father and the
barrio lieutenant and other dignitaries
of the organization; and under the
circumstances, there was and there
could be no possibility of her being
raped. And when she gave Amado
Capina a thrust at the base of the left
side of his neck, inflicting upon him a
mortal wound 4 1/2 inches deep,
causing his death a few moments
later, the means employed by her in
the defense of her honor was
evidently excessive; and under the
facts and circumstances of the case,
she cannot be legally declared
completely exempt from criminal
liability..
But the fact that defendant and
appellant immediately and voluntarily
and unconditionally surrendered to
the barrio lieutenant in said chapel,
admitting having stabbed the
deceased, immediately after the
incident, and agreed to go to her
house shortly thereafter and to
remain there subject to the order of
the said barrio lieutenant, an agent of
the authorities (United States vs.
Fortaleza, 12 Phil., 472); and the
further fact that she had acted in the
immediate vindication of a grave
offense committed against her a few
moments before, and upon such
provocation as to produce passion
and obfuscation, or temporary loss of
reason and self-control, should be
considered as mitigating
circumstances in her favor (People
vs. Parana, 64 Phil., 331; People vs.
Sakam, 61 Phil., 27; United States
vs. Arribas, 1 Phil., 86).
Defendant and appellant further
claims that she had not intended to
kill the deceased but merely wanted
to punish his offending hand with her
knife, as shown by the fact that she
inflicted upon him only one single
wound. And this is another mitigating
circumstance which should be
considered in her favor (United
States vs. Brobst, 14 Phil., 310;
United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution,
sustained by the learned trial court,
that the offense was committed by
the defendant and appellant, with the
aggravating circumstance that the
killing was done in a place dedicated
to religious worship, cannot be legally
sustained; as there is no evidence to
show that the defendant and
appellant had murder in her heart
when she entered the chapel that
fatal night. Avelina is not a criminal
by nature. She happened to kill under
the greatest provocation. She is a
God-fearing young woman, typical of
our country girls, who still possess
the consolation of religious hope in a
world where so many others have
hopelessly lost the faith of their
elders and now drifting away they
know not where.
The questions raised in the second
and third assignments of error
appear, therefore, to be well taken;
and so is the first assignment of error
to a certain degree.
In the mind of the court, there is not
the least doubt that, in stabbing to
death the deceased Amado Capina,
in the manner and form and under
the circumstances above indicated,
the defendant and appellant
committed the crime of homicide,
with no aggravating circumstance
whatsoever, but with at least three
mitigating circumstances of a
qualified character to be considered
in her favor; and, in accordance with
the provisions of article 69 of the
Revised Penal Code, she is entitled
to a reduction by one or two degrees
in the penalty to be imposed upon
her. And considering the
circumstances of the instant case,
the defendant and appellant should
be accorded the most liberal
consideration possible under the law
(United States vs. Apego, 23 Phil.,
391; United States vs. Rivera, 41
Phil., 472; People vs. Mercado, 43
Phil., 950)..
The law prescribes the penalty of
reclusion temporal for the crime of
homicide; and if it should be reduced
by two degrees, the penalty to be
imposed in the instant case is that of
prision correccional; and pursuant to
the provisions of section 1 of Act No.
4103 of the Philippine Legislature,
known as the Indeterminate
Sentence Law, herein defendant and
appellant should be sentenced to an
indeterminate penalty ranging from
arresto mayor in its medium degree,
to prision correccional in its medium
degree. Consequently, with the
modification of judgment appealed
from, defendant and appellant
Avelina Jaurigue is hereby sentenced
to an indeterminate penalty ranging
from two months and one day of
arresto mayor, as minimum, to two
years, four months, and one day of
prision correccional, as maximum,
with the accessory penalties
prescribed by law, to indemnify the
heirs of the deceased Amado
Capina, in the sum of P2,000, and to
suffer the corresponding subsidiary
imprisonment, not to exceed 1/3 of
the principal penalty, in case of
insolvency, and to pay the costs.
Defendant and appellant should also
be given the benefit of 1/2 of her
preventive imprisonment, and the
knife marked Exhibit B ordered
confiscated. So ordered..
B. Vindication of a Grave Offense
THE UNITED STATES, plaintiff-
appellee, vs. CLEMENTE AMPAR,
defendant-appellant.
MALCOLM, J.:
A fiesta was in progress in the barrio
of Magbaboy, municipality of San
Carlos, Province of Occidental
Negros. Roast pig was being served.
The accused Clemente Ampar, a
man of three score and ten,
proceeded to the kitchen and asked
Modesto Patobo for some of the
delicacy. Patobo's answer was;
"There is no more. Come here and I
will make roast pig of you." The effect
of this on the accused as explained
by him in his confession was, "Why
was he doing like that, I am not a
child." With this as the provocation, a
little later while the said Modesto
Patobo was squatting down, the
accused came up behind him and
struck him on the head with an ax,
causing death the following day.
As the case turns entirely on the
credibility of witnesses, we should of
course not interfere with the findings
of the trial court. In ascertaining the
penalty, the court, naturally, took into
consideration the qualifying
circumstance of alevosia. The court,
however, gave the accused the
benefit of a mitigating circumstance
which on cursory examination would
not appear to be justified. This
mitigating circumstance was that the
act was committed in the immediate
vindication of a grave offense to the
one committing the felony.
The authorities give us little
assistance in arriving at a conclusion
as to whether this circumstance was
rightly applied. That there was
immediate vindication of whatever
one may term the remarks of Patobo
to the accused is admitted. Whether
these remarks can properly be
classed as "a grave offense" is more
uncertain. The Supreme court of
Spain has held the words "gato que
arañaba a todo el mundo,"
"landrones," and "era tonto, como
toda su familia" as not sufficient to
justify a finding of this mitigating
circumstance. (Decisions of January
4, 1876; May 17, 1877; May 13,
1886.) But the same court has held
the words "tan landron eres tu como
tu padre" to be a grave offense.
(Decision of October 22, 1894.) We
consider that these authorities hardly
put the facts of the present case in
the proper light. The offense which
the defendant was endeavoring to
vindicate would to the average
person be considered as a mere
trifle. But to this defendant, an old
man, it evidently was a serious
matter to be made the butt of a joke
in the presence of so many guests.
Hence, it is believed that the lower
court very properly gave defendant
the benefit of a mitigating
circumstance, and correctly
sentenced him to the minimum
degree of the penalty provided for the
crime of murder. lawph!1.net
Judgment of the trial court sentencing
the defendant and appellant to
seventeen years four months and
one day of cadena temporal, with the
accessory penalties provided by law,
to indemnify the heirs of the
deceased, Modesto Patobo, in the
amount of one thousand pesos, and
to pay the costs is affirmed, with the
costs of this instance against the
appellant. So ordered.
THE PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs.
ALBERTO BENITO y RESTUBOG
accused-appellant.
AQUINO, J.:
Alberto Benito was sentenced to
death by the Circuit Criminal Court of
Manila after he pleaded guilty to the
charge of murder for having shot with
a .22 caliber revolver Pedro
Moncayo, Jr. on December 12, 1969.
The killing was qualified by treachery
and aggravated by premeditation and
disregard of rank. It was mitigated by
plea of guilty.
After a mandatory review of the death
sentence, this Court in its decision of
February 13, 1975 affirmed the
judgment of conviction. It appreciated
in Benito's favor the mitigating
circumstance of voluntary surrender.
The penalty was reduced to reclusion
perpetua. (People vs. Benito, 62
SCRA 351).
Benito filed a motion for
reconsideration. He contends that he
is entitled to the mitigating
circumstance of immediate
vindication of a grave offense and
that the aggravating circumstances of
disregard of rank should not be
appreciated against him.
Benito, 26, a native of Naga City, in
his sworn statement , which was
taken, about five hours after the
shooting, by Corporal E. Cortez and
Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police,
recounted the background and
circumstances of the tragic incident in
this manner (Exh. A):
... alam ninyo ho, ako ay dating
empleyado ng Civil Service
Commission sa kalye P. Paredes,
Sampaloc, Maynila, at ako ay
Clerk 2 sa Administrative Division
at ako ay nagumpisa ng
pagtratrabaho sa Civil Service
magmula pa noong November,
1965 ng ako ay nasuspende sa
aking trabaho dahil kinargohan
nila ako ng "DISHONESTY" at
nasuspende ako ng 60 days at
nabalik ako sa trabaho noong
January 1966 pero kinarguhan uli
nila ako ng "MALVERSARTION
OF PUBLIC FUNDS, QUALIFIED
THEFT, ESTAFA at
FALSIFICATION OF PUBLIC
DOCUMENT at dinimanda din ako
ng Civil Service ng Administrative
case ng "DISHONESTY" at
dinismiss na ako sa trabaho ni
Commissioner Subido noong
February 16, 1966.
At magmula noon ay nawalan na
ako ng trabaho pero lahat ho
noong kinargo nila sa akin na
sinabi ko sa inyo ay "fabricated"
lang ang mga evidensiya at ang
gumawa ho noong ay ang binaril
ko kanina na si PEDRO
MONCAYO JR. Y RAMOS at naka
pending pa ngayon sa City Fiscal
ng Maynila kay Asst. Fiscal Magat
at iyon namang "dismissal order"
ni Commissioner Subido ay
inapela ko sa Civil Service Board
of Appeals.
Magmula noong Idinismiss nila
ako sa aking trabaho dahil sa
"fabricated" charges ay naghirap
na ko sa aking buhay at nahihiya
ako sa mga kaibigan ko. Ako ay
assign(ed) sa collecting
department noon at nagagalit sa
akin ang mga empleyado ng Civil
Service dahil mahigpit ako sa
kanila.
Noong bandang alas 7:00 ng gabi
noong Dec. 11, 1969, ako ay
nagpunta sa Civil Service sa kalye
Paredes at nakita ko si PEDRO
MONCAYO, Jr. at kinausap ko
siya at tinanong ko siya na iyong
kaso ko ay matagal na at hindi pa
natatapos at baka matulungan
niya ako at ang sagot niya ay
"UMALIS KA NA NGA DIYAN
BAKA MAY MANGYARI PA SA
IYO AT BAKA IPAYARI KITA
DITO" at umalis na ko.
Kaninang bandang alas 11:00 ng
umaga ay nagkita kami ni PEDRO
MONCAYO Jr. sa loob ng
compound ng Civil Service at sa
harapan ng maraming tao sinabi
niya na "NAGIISTAMBAY PALA
DITO ANG MAGNANAKAW" kaya
ang ginawa ko ay umalis na ako.
Kaninang bandang alas 5:25 ng
hapon, nitong araw na ito,
Desiyembre 12, 1969, nakita ko si
PEDRO MONCAYO Jr. na
nagmamanejo noong kotse niya
sa kalye P. Paredes sa tapat ng
 Civil Service, sinundan ko siya at
pagliko ng kotse niya sa kanto ng
P. Paredes at Lepanto, Sampaloc,
Maynila, ay binaril ko siya ng
walong beses at tinamaan siya at
napatumba siya sa kaniyang
upuan sa kotse.
Pagkatapos ay tumawag ako sa
telepono sa MPD Headquarters
para sumurender at kayo nga ang
dumating kasama ninyo iyong
mga kasama ninyo.
Benito surrendered to the police the
revolver (Exh. C) used in the
shooting with the eight empty shells
of the bullets which he had fired at
Moncayo.
The Police report contains the
following background and description
of the killing (Exh. B):
According to the suspect, he was
a former employee of the Civil
Service Commission at its main
office located at P. Paredes,
Sampaloc. Mla., and was
assigned as Clerk 2 in the
Administrative Division from Nov.
1963 continuously up to Nov. 1965
when he was suspended for
"DISHONESTY".
After two months, he was
reinstated but was criminally
charged for QUALIFIED THEFT,
MALVERSATION OF PUBLIC
FUNDS, ESTAFA and
FALSIFICATION OF PUBLIC
DOCUMENTS and
administratively charged for
"DISHONESTY" culminating in his
dismissal from the Civil Service on
February 1966.
The aforecited criminal charges
against the suspect was allegedly
investigated by Asst. Fiscal
MAGAT. Records from the CRID,
MPD, reveals that on Dec. 6,
1966, Hon. Judge ROAN of the
City Court of Mla. issued a
Warrant No. E-316758 for the
arrest of the suspect for the crime
of ESTAFA.
On May 24, 1969, Hon. Judge
JUAN O. REYES of the CFI of
Mla. issued an order No. OA-
87409 for the arrest of the suspect
for the crime of MALVERSATION
OF PUBLIC FUNDS. According to
the suspect, the aforecited
criminal and administrative
charges filed him were allegedly
instigated and contrived by the
victim and since the time of his
dismissal, he was allegedly
jobless.
On Dec. 11, 1969, the suspect
went to the Civil Service at P.
Paredes st. and requested the
victim to help him in his cases but
the former allegedly uttered to the
suspect "UMALIS KA NGA DIYAN
BAKA MAY MANGYARI PA SA
IYO AT BAKA IPAYARI KITA
DITO".
The suspect left and returned the
following morning at 11:00 a.m. of
Dec. 12, 1969, and when they met
again, the victim allegedly
remarked in the presence of many
people, "NAGIISTAMBAY PALA
DITO ANG MAGNANAKAW". The
suspect who was humiliated and
incensed, left.
At about 5:25 p.m. of that same
day, Dec. 12, 1969, the suspect
who was armed with an
unlicensed Cal. 22 black revolver
(w/ SN - P-5317, Trademarked
"SENTINEL", SQUIRES
BINGHAM MFG. CO. INC. MLA.
P.I.) loaded with nine (9) live Cal.
22 bullets in its cylinder, waited for
the victim outside the Civil Service
compound at P. Paredes st.
Sampaloc, Mla.
The victim showed up and drove
his green Chevrolet 2 door car (w/
Plate No.
L-10578 Mla. 69) along P.
Paredes st. The suspect with
evident premeditation,
surreptitiously followed the victim
and when the latter's car was at a
full stop at the corner of Lepanto
and P. Paredes sts. due to heavy
traffic of motor vehicles, the
suspect without any warning or
provocation, suddenly and
treacherously shot the victim eight
(8) times on the head and different
parts of the body at closer range
which consequently caused the
latter's death on the spot inside his
car.
The suspect then fled while the
victim was conveyed on board a
red private car (w/ Plate No. L-
55117) by his co-employees
(composed of VICTOR VILLAR,
ELEUTERIO MENDOZA &
FORTUNATO JOSE Jr.) to the
FEU Hospital. Unfortunately, the
victim was pronounced DOA by
Dr. P. PAHUTAN, SOD, at 5:40
p.m. of Dec. 12, 1969.
The thirty-six year old victim, a
certified public accountant, was the
Assistant Chief of the Personnel
Transactions Division and Acting
Chief, Administrative Division of the
Civil Service Commission (Exh. E to
E-2). The accused was a clerk in the
cash section, Administrative Division
of the Commission, receiving P1,884
per annum (Exh. D). He started
working in the Commission on
November 7, 1963.
On October 21, 1965 Moncayo, as an
administrative officer, reported to the
Commissioner of Civil Service that
Benito admitted having malversed an
amount between P4,000 and P5,000
from his sales of examination fee
stamps. Moncayo's report reads as
follows (Exh. F):
MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr.
ALBERTO R. BENITO, Clerk II in
the Administrative Division of this
Commission, who, as had
previously been reported,
malversed public funds in the
amount of approximately
P5,000.00 out of his collections
from the sale of examination fee
stamps.
I wish to state that this matter
came to my attention on the
evening of March 1, 1965 when
Mr. Teodoro Abarquez, Acting
Cashier I, reported to me that fifty
(50) money orders at P2.00 each
with a total vlaue of P100.00 were
missing from a bundle of money
orders received from the
Provincial Treasurer of Cotabato,
which were kept by him in one of
the cabinets inside the Cashier's
Cashier' room.
At the same time he also informed
me that he suspected that Mr.
Benito stole the missing money
orders. His suspicion arose from
the fact that he found several
money orders marked "Cotabato"
as their place of issue among the
cash receipts turned over to him
by Mr. Benito that afternoon as his
collection from the sale of
examination fee stamps. Mr.
Abarquez showed to me the said
money orders issued in Cotabato
which were turned over to him by
Mr. Benito and after checking their
serial numbers with the records of
list of remittances on file, we were
able to establish definitely the fact
that the said money orders were
those missing.
It may be stated that at that time,
Mr. Benito was assigned to work
in the Cash Section and one of his
duties was to sell examination fee
stamps to applicants for
examinations. It was then the
practice of the cashier to issue to
Mr. Benito in the morning
examination fee stamps to be sold
during the day and in the
afternoon he turned over to the
Cashier the proceeds from the
sale of stamps including the
unsold stamps issued to him. After
considering the work performed by
Mr. Benito, it became evident that
he succeeded in malversing the
amount of P100.00 by substituting
equivalent amount of money
orders in the place of the cash
extracted by him from his daily
collections from the sale of
examination fee stamps when he
clears his accountability with the
Cashier.
The following day, I confronted Mr.
Benito in the presence of Mr.
Abarquez and ask him whether he
had something to do with the loss
of the fifty (50) money orders at
P2.00 each. At first he denied, but
when I asked him where he
obtained the money orders issued
in Cotabato which were included
in his collections the day
preceding, he admitted having
stolen the missing money orders.
Having confessed his guiltk, I then
asked Mr. Benito when he started
committing the said irregularity
and how much in all did he
actually malversed out of his daily
collections from the time that he
started the anomaly. He stated in
the presence of Mr. Abarquez that
he started in January, 1965 and
that although he did not know
exactly the total amount
malversed by him, he believed the
amount to be between P4,000.00
to P5,000.00. He also confessed
that he used the money orders
remitted by the Provincial
Treasurer of Negros Occidental in
the amount of P3,436.00 in
substituting various amounts
extracted by him from his daily
cash collections and used by him
for personal purposes.
It appears from the records that
the List of Remittances covering
the money orders received from
the Provincial Treasurer of Negros
Occidental was duly receipted by
Mr. Benito. He was supposed to
issue an Official Receipt therefor
in favor of the said Provincial
Treasurer and then turn over to
the Cashier the amount involved
for deposit to the National
Treasurer. The said List of
Remittances, duly signed by Mr.
Benito, is enclosed for use as
evidence in this case.
I told Mr. Benito that I cannot do
anything but report the matter to
the Commissioner. However, he
pleaded that he be given first an
opportunity to restore the amount
before I make my report in order
that the penalty that may be
imposed upon him may be
lessened to a certain degree. As I
thought it wise in the interest of
the service to recover the amount
involved, I allowed him to go and
see his parents in Naga City to
raise the amount in question.
After two weeks, Mr. Benito
informed me that his parents filed
an application for a loan with the
Government Service Insurance
System and that the proceeds of
the said loan which he intended to
use in restoring the amount
malversed by him were expected to
be released during the last week of
May, 1965. However, when the
month of May, 1965 elapsed
without the amount involved having
been restored, I conferred with Mr.
del Prado, my immediate superior
and asked him whether we should
wait further for the release of the
said loan in order that the amount
involved may be recovered. Mr.
Prado consented to giving him a
little more time.
When Mr. Benito still failed to
restore the amount in question by
the end of June, 1965, I got hold of
him on July 5, 1965 and together
with Messrs. del Prado, Abarquez
and Gatchalian, also of this
Commission, brought him before
Deputy Commissioner A. L.
Buenaventura and reported the
entire matter to the Deputy
Commissioner. In the presence of
Messrs. del Prado, Abarquez,
Gatchalian and myself, Mr. Benito
admitted readily and voluntarily
before the Deputy Commissioner
the commission of the offense of
 malversation of public funds as
stated above.
In view of the foregoing, it is
recommended that Mr. Benito be
charged formally and that he be
suspended from office immediately
considering the gravity of the
offense committed by him.
(Sgd.) PEDRO R. MONCAYO
Administrative Officer II
Benito was charged with dishonesty.
He had admitted to Deputy
Commissioner Alipio Buenaventura
that he had misappropriated his
collections and spent the amount in
nightclubs and pleasure spots and for
personal purposes. The decision
dismissing him from the service
reads as follows (Exh. G):
This is an administrative case
against Mr. Alberto R. Benito, Clerk
I, Cash Section, Administrative
Division of this Office, for
dishonesty.
The following excerpts from the
letter dated October 22, 1965 of
the Commissioner of Civil Service
connect respondent with the
alleged misappropriation of public
funds representing his collection
from the sale of examination fee
stamps and constitute the basis of
the instant case against him:
An investigation made by this
Commission shows that you
malversed public funds in the
amount of P3,536.00 out of
your collections from the sale of
examination fee stamps while
in the performance of your
official duties as Clerk II in the
Cash Section, Administrative
Division of this Office. It
appears that you succeeded in
malversing the above-stated
amount from your cash
collections by substituting in
lieu thereof money orders worth
P3,436.00 remitted to this
Commission by the Provincial
Treasurer of Negros Occidental
which were duly receipted for
by you. It also appears that you
extracted from a bundle of
money orders remitted by the
Provincial Treasurer of
Cotabato the amount of
P100.00 in money orders which
were kept in one of the cabinets
in the Cashier's room.
Respondent denied the charge.
He explained, among others,
that money orders were always
kept in the Cashier's safe and
he had no access to them.
Although he admitted having
received money orders
amounting to P3,436.00
remitted by the Provincial
Treasurer of Negros Occidental
and another remittance of the
Provincial Treasurer of
Cotabato he, however,
disclaimed having substituted
the same for cash collections in
his sale of examination fee
stamps. He reasoned out
further that he could not be
charged with malversation of
public funds inasmuch as he
was not then an accountable
officer.
It appears that respondent, as
Clerk in the Cash Section,
performs, among other duties,
the selling of examination fee
stamps, receiving payments
therefor, and receiving
remittances in form of cash
and/or money orders from
provincial treasurers in
connection with examinations
held in the provinces. It was
also his duty to issue official
receipts for said remittances. In
the course of the performance
of his duties, he received said
remittances from the Provincial
Treasurers of Negros
Occidental and Cotabato, but
no official receipts were issued
by him, as shown by the reply
telegrams pertaining thereto.
While records disclose that
remittances from the province
of Cotabato were submitted to
the Cashier of the Civil Service
Commission, there is no
evidence showing that
remittances from Negros
Occidental were likewise
submitted.
Investigation further reveals
that 50 money orders were
discovered missing from the
remittances of Cotabato
Provincial Treasurer which
were kept in the cabinet of the
Cashier. On or about March 2,
1965, the Cashier of the
Commission noticed that 15
money orders turned over by
respondent as part of his
collections in the sale of
examination fee stamps were
among the missing money
orders. This triggered off the
filing of this case against the
respondent.
On July 5, 1965, respondent
admitted before the then
Deputy Commissioner Alipio
Buenaventura having
misappropriated an aggregate
amount ranging from P3,000 to
P7,000, which he spent in night
clubs, pleasure spots and other
personal benefits. Despite the
testimonies of several
witnesses regarding his
confession, including that of the
then Deputy Commissioner
himself, respondent, when
asked to take the stand, denied
his previous admission.
Instead, he argued that the
cash and accounts of the
Cashier of the Civil Service
Commission, when examined
by representatives of the
Auditor's Office, did not indicate
any shortage and therefore
there was no irregularity
involved. This argument is not
well taken. Inasmuch as the
remittances received by
respondent from said Provincial
Treasurers of Negros
 Occidental and Cotabato were
not in turn given corresponding
official receipts, naturally, the
same were not reflected on the
Cashier's cash book.
The weakness of respondent's
defense lies not so much on its
failure to establish convincingly
his innocence as its
irreconciliability with
established facts. Obviously,
none of the circumstances in
this case is consistent with his
claim of innocence. On the
contrary, all of them put
together produce reasonable
assurance of respondent's guilt.
In view of the foregoing, this
Office finds respondent Alberto
R. Benito guilty as charged.
Wherefore, he is dismissed
from the service effective upon
his receipt of this decision.
In the interest of the service this
decision is executed also on
the date of his receipt of this
decision.
Benito appealed to the Civil Service
Board of Appeals from the
Commissioner's decision dismissing
him. The appeal was pending at the
time when he assassinated Moncayo
(Exh. I).
The foregoing antecedents of the
assassination shed light on the
remark which the victim, Moncayo,
allegedly made upon seeing Benito in
the compound of the Civil Service
Commission near the canteen at
eleven o'clock in the morning of
December 12, 1969 (about six hours
before the shooting): "Nagiistambay
pala dito and magnanakaw." (Exh. A
or 1); or, as Benito testified, Moncayo
said: "Hindi ko alam na itong Civil
Service pala ay istambayan ng
magnanakaw." (27 tsn December 26,
1969).
Mitigating circumstance of immediate
vindication of a grave offense. —
Benito contends that Moncayo
insulted him when he (Moncayo)
remarked that a thief was loitering in
the premises of the Civil Service
Commission. Benito argues that that
remark "was tantamount to kicking a
man already down and to rubbing salt
into a raw wound" and that, as it was
made publicly and in a loud voice, he
was exposed to ridicule in the
presence of his officemates.
Benito attached to his motion a copy
of the decision of Judge Jose C.
Colayco dated January 16, 1975,
acquitting him of the charge of
malversation in connection with his
alleged misappropriation of the fees
collected from the examinees of the
1974 patrolman examination. That
same decision makes reference to
Benito's exoneration from the
administrative charge. The court's
decision reads as follows:
The accused is charged with
malversation under the following
information:
 That on or about and during the
period comprised between
October 17, 1964, to February,
1965, inclusive, in the City of
Manila Philippines, the said
accused being then employed
as Clerk I of the Civil Service
Commission, a branch of the
government of the Republic of
the Philippines, among whose
duties were to accept payments
of fees collected from the
examinees of the 1964
Patrolman examination, and by
reason of his said position
received the total amount of
P3,536.00, with the duty to turn
over and/or account for his
collections to the cashier of the
Civil Service Commission
immediately or upon demand
but the said accused once in
possession of the said amount
of P3,536.00, with intent to
defraud, despite repeated
demands made upon him to
turn over and to account for the
same, did then and there
willfully, unlawfully and
feloniously misappropriate,
misapply and convert and
malverse the said amount to his
own personal use and benefit,
to the detriment of public
interest and to the damage and
prejudice of the said Civil
Service Commission in the said
amount of P3,536.00,
Philippine currency.
Contrary to law.
The evidence shows that the
accused had an appointment
as clerk in the Civil Service
Commission from May 27,
1964, as clerk I, range 23 from
June 1, 1965 and as clerk I,
range 26 from July 23, 1965
(Exhibits A, A-1, A-2). He had
the duty, among others, of
selling Civil Service
examination- fee stamps and to
receive payment therefor, as
well as to receive remittances
of money orders and checks
from the provincial treasurers
for payments of examination
fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of
the Civil Service Commission
during the period alleged in the
information, testified in his
direct examination that Benito
was working in his office; that
one of the duties that he
assigned to him was to sell
examination fee stamps; that it
was customary for him to give
stamps to Benito at the start of
office hours in the morning and
that Benito turned over to him
the proceeds of the sale, as
well as the unsold stamps, at
the close of office hours in the
afternoon; that one afternoon
he noticed that Benito turned
over to him 50 money orders
from Cotabato, together with
some cash, as proceeds of the
sale of stamps for that day; that
he remembered that he was
missing money orders from one
of his cabinets where he kept
them; that when he discovered
that the 50 money orders were
those which were missing, he
reported the matter to Pedro
Moncayo, the chief
administrative officer; on March
1, 1965; that the money orders
were for P2.00 each, and were
payments of the examination
fees from Cotabato (Exhibit F);
that he discovered the loss of
the 50 money orders on
February 28, 1965 and reported
it to Moncayo on March 1,
1965, together with the list of
missing orders (Exhibit M); that
after receiving the report,
Moncayo called Benito to the
office of Abarquez where he
admitted taking the missing
money orders; that Moncayo
submitted a memorandum to
the Commissioner, dated
October 21, 1965, after giving
Benito a chance to refund the
value of the money orders
(Exhibit O). Alipio
Buenaventura, acting Deputy
Commissioner at the time, and
Eliseo S. Gatchalian, budget
officer, testified that when
Benito was confronted with the
report of Moncayo and
Abarquez, he admitted that he
misappropriated about
P3,000.00 because of bad
company and that he asked for
a chance to refund the money.
Under cross-examination,
Abarquez elucidated his
testimony in his direct
examination and explained that
when Benito turned over the
proceeds of the sale of stamps
for that particular day, he kept
the sum of P100.00 and
replaced it with the 50 money
orders that he had taken from
the cashier's office to cover up
the money that he had
pocketed. When he was asked
when he discovered that Benito
substituted the 50 money
orders from Cotabato, he
answered that he checked
them the following night (March
2, 1965) with the list of money
orders remitted by the
Provincial treasurer (Exhibits F,
F-1); but when he was
confronted with his affidavit
which he executed on April 18,
1966 (Exhibit R), he reluctantly
admitted that he had only
verified 15 money orders
missing as of April 18, 1966
and that he did not keep any
record of the money and the
money orders given to him by
Benito on March 1, 1965.
He also admitted that the room
where he kept the money
orders in an unlocked drawer
was also occupied by two other
persons, and that this was the
first time that he had not
followed the usual procedure of
keeping them in the safe. He
further admitted that, although
regular examinations were
conducted during the period of
October 1, 1964 to February
28, 1965 by the examiners of
the Civil Service Commission
and the auditors of the General
Auditing Office, they did not find
any shortage in the accounts of
Benito.
Finally, when the Court asked
him what happened to the 50
money orders, at first he hinted
that they were not deposited
with the Bureau of Treasury
because they were reported
missing; but when pressed
further, he said that he
deposited them, but did not
issue any official receipt for
them. When asked if he had
any evidence to show that they
were actually deposited, he
admitted that he could not even
remember when he deposited
them.
The testimony of Teodoro
Abarquez upon which the
prosecution has built its case, is
too weak and shaky to sustain
a finding of guilt because of his
glaring inconsistencies,
contradictions and gaps in
memory. The prosecution has
failed to present convincing
evidence that the 50 money
orders were even lost:
According to Abarquez he had
only verified the loss of 15 on
April 18, 1966, although he
testified earlier that he
determined the loss of 50 the
night after March 1, 1965.
The examiners of the Civil
Service Commission and the
auditors of the General Auditing
Office did not find any
irregularity in the cash
accountability of Benito,
according to Abarquez. This
was corroborated by Romeo
Jarabelo, auditor of the
Commission on Audit and
Miguel Games, auditing
examiner assigned to the Civil
Service Commission, who
testified for the accused. Benito
was in fact exonorated the
administrative charge filed
against him for the time same
transaction (Exhibit E).
In fact, the testimony of
Abarquez under cross-
examination that he has not
issued any official receipt for
the 50 money orders and his
inability to prove that he
deposited them with the bureau
of Treasury gives rise to the
suspicion that other persons,
not the accused, may have
stolen the 50 missing money
orders. Even without taking into
account the testimony of the
accused, who denied the
testimonies of the witnesses for
the prosecution, the court
believes that the prosecution
has failed to prove the guilt of
the accused.
WHEREFORE, judgment is
hereby rendered acquitting the
accused, with costs de oficio.
The Solicitor General argues that the
defamatory remark imputed to
Moncayo cannot give rise to the
mitigating circumstance of vindication
of a grave offense because it was not
specifically directed at Benito. The
prosecution notes that the remark
was uttered by Moncayo at eleven
o'clock in the morning. According to
Benito's testimony (not consistent
with his confession), he saw
Moncayo three hours later or at two
o'clock in the afternoon and inquired
from him about his case and
Moncayo said that he had already
submitted his report and he could not
do anything more about Benito's case
(26 tan). As already stated, the
assassination was perpetrated at
around five o'clock in the afternoon of
the same day.
Assuming that Moncayo's remark
was directed at Benito, we see no
justification under the circumstances
recited above for changing our prior
opinion that the mitigating
circumstance of "haber ejecutado el
hecho en vindicacion proxima de una
ofensa grave, causada al autor del
delito," cannot be appreciated in
Benito's favor. As aptly stated by the
ponente, Justice Esguerra, Benito
"had more than sufficient time to
suppress his emotion over said
remark if he ever did resent it."
The six-hour interval between the
alleged grave offense committed by
Moncayo against Benito and the
assassination was more than
sufficient to enable Benito to recover
his serenity. But instead of using that
time to regain his composure, he
evolved the plan of liquidating
Moncayo after office hours. Benito
literally ambushed Moncayo just a
few minutes after the victim had left
the office. He acted with treachery
and evident premeditation in
perpetrating the cold-blooded
murder.
The facts of the case strongly
suggest that what really impelled
Benito to assassinate Moncayo was
not the latter's alleged defamatory
remark that the Civil Service
Commission compound was a
hangout for a thief or for thieves but
the refusal of Moncayo to change his
report so as to favor Benito. Benito
did not act primarily to vindicate an
alleged grave offense to himself but
mainly to chastise Moncayo for
having exposed the alleged
anomalies or defraudation committed
by Benito and for obstinately refusing
to change his report.
Aggravating circumstance of
disregard of rank.— Benito contends
that disregard of rank should not be
considered against him because
there was no evidence that he
"deliberately intended to offend or
insult the rank" of Moncayo. That
contention has no merit.
It should be borne in mind that the
victim was a ranking official of the
Civil Service Commission and that
the killer was a clerk in the same
office who resented the victim's
condemnatory report against him. In
that situation, the existence of the
aggravating circumstance of
"desprecio del respeto que por la
dignidad mereciere el ofendido" is
manifest.
The instant case is similar to a case
where the chief of the secret service
division killed his superior, the chief
of police (People vs. Hollero, 88 Phil.
167) and to the killing of the acting
Spanish consul by his subordinate,
the chancellor of the consulate, who
had misappropriated the funds of the
consulate, which misappropriation
was discovered by the victim (People
vs. Martinez Godinez, 106 Phil, 597,
606). In these two cases the murder
was aggravated by disregard of rank.
WHEREFORE, the motion for
reconsideration is denied.
SO ORDERED.
C. Passion or Obfuscation
THE UNITED STATES, plaintiff, vs.
AUGUSTUS HICKS, defendant.
TORRES, J.:
For about five years, from
September, 1902, to November,
1907, Augustus Hicks, an Afro-
American, and Agustina Sola, a
Christian Moro woman, illicitly lived
together in the municipality of
Parang, Cotabato, Moro Province,
until trouble arising between them in
the last-mentioned month of 1907,
Agustina quitted Hick's house, and,
separation from him, went to live with
her brother-in-law, Luis Corrales. A
few days later she contracted new
relations with another negro named
Wallace Current, a corporal in the
Army who then went to live in the
said house.
On the 21st of December following,
at about 7:30 p. m., Augustus Hicks
together with a soldier named Lloyd
Nickens called at said house, and
from the sala called out to his old
mistress who was in her room with
Corporal Current, and after
conversing with her in the Moro
dialect for a few minutes, asked the
corporal to come out of said room; in
response thereto the corporal
appeared at the door of the room,
and after a short conversation,
Current approached Hicks and they
shook hands, when Hicks asked him
the following question: "Did I not tell
you to leave this woman alone?," to
which Current replied: "That is all
right, she told me that she did not
want to live with you any longer, but if
she wishes, she may quit me, and
you can live with her." The accused
then replied: "God damn, I have
made up my mind;" and as Corporal
Current saw that Hicks, when, he
said this, was drawing a revolver
from his trousers' pocket, he caught
him by the hand, but the latter,
snatching his hand roughly away,
said: "Don't do that," whereupon
Current jumped into the room, hiding
himself behind the partition, just as
Hicks drew his revolver and fired at
Agustina Sola who was close by in
the sala of the house. The bullet
struck her in the left side of the
breast; she fell to the ground, and
died in a little more than an hour
later.
Upon hearing the shot Edward
Robinson, who was also in the
house, went to render assistance and
wrested the weapon from the hand of
the accused. The latter immediately
fled from the house and gave himself
up to the chief of police of the town,
H. L. Martin, asking him to lock him
up in jail; and, when a few minutes
later a policeman came running in
and reported that Hicks had fired a
shot at Agustina, the said chief of
police caused Hicks to be arrested.
The latter, when once in jail, threw
eight revolver cartridges out of the
window; these were picked up by a
policeman who reported the
occurrence and delivered the
cartridges to his chief.
In view of the foregoing the provincial
fiscal on the 8th of February, 1908,
filed a complaint with the Court of
First Instance of said province
charging Augustus Hicks with the
crime of murder. Proceedings were
instituted, the trial court, after hearing
the evidence adduced, entered
judgment on the 10th of September
of the same year, sentencing the
accused to the penalty of death, to be
executed according to the law, to
indemnify the heirs of the deceased
in the sum of P1,000, and to pay the
costs. The case has been submitted
to this court for review.
The above-stated facts, which have
been fully proven in the present case,
constitute the crime of murder,
defined and punished by article 403
of the Penal Code, in that the woman
Agustina Sola met a violent death,
with the qualifying circumstance of
treachery (alevosia), she being
suddenly and roughly attacked and
unexpectedly fired upon with a 45-
caliber revolver, at close, if not point
blank range, while the injured woman
was unarmed and unprepared, and at
a time when she was listening to a
conversation, in which she was
concerned, between her aggressor
and third person, and after usual and
customary words had passed
between her and her aggressor.
From all of the foregoing it is logically
inferred that means, manners, and
forms were employed in attack that
directly and specially insured the
consummation of the crime without
such risk to the author thereof as
might have been offered by the victim
who, owing to the suddenness of the
attack, was doubtless unable to flee
from the place where she was
standing, or even escape or divert
the weapon.
The accused, Augustus Hicks,
pleaded not guilty, but
notwithstanding his exculpatory
allegations which were certainly not
borne out at the trial, the evidence in
the case is absolutely at variance
therewith and conclusively
establishes, beyond peradventure of
doubt, his culpability as the sole fully
convicted author of the violent and
treacherous death of his former
mistress, Agustina Sola.
It is alleged by the accused that when
he withdrew his hand from that of
Current, who had seized him, he fell
backward but managed to support
himself on his two hands, and when
he got up again the said corporal
threatened him with a revolver thrust
into his face; whereupon he also
drew his revolver, just as Edward
Robinson caught him from behind,
when his revolver went off, the bullet
striking the deceased.
This allegation appears to be at
variance with the testimony of the
witnesses Wallace Current, Edward
Robinson, Luis Corrales, and Lloyd
Nickens in their respective
declaration, especially with that of the
second and third, who witnessed the
actual firing of the shot by the
aggressor at the deceased, as shown
by the fact that Robinson immediately
approached the accused in order to
take his weapon away from him
which he succeeded in doing after a
brief struggle, whereupon the
aggressor ran out of the house. Thus,
the shot that struck the deceased in
the breast and caused her death was
not due to an accident but to a willful
and premeditated act on the part of
the aggressor with intent to deprive
the victim of her life.
In addition to the qualifying
circumstance of treachery, as above
referred to, the presence of other
aggravating circumstances, such as
premeditation, and the fact that the
crime was committed in the dwelling
of the deceased should be taken into
consideration. The last-mentioned
circumstances appears proven from
the testimony of several witnesses
who were examined at the trial of the
case.
Inasmuch as in the present case the
crime has already been qualified as
committed with treachery, the
circumstance of premeditation should
only be considered as a merely
generic one. Premeditation is,
however, manifest and evident by
reason of the open acts executed by
the accused. According to the
testimony of Charles Gatchery and
Eugenio R. Whited, Hicks asked
leave from the former to be absent
from the canteen where he was
working on the morning of the day
when the affray occurred, alleging
that his mind was unsettled and that
he feared getting into trouble. It is
also shown by the fact that Whited,
who was in Hicks' house about noon
upon the latter's invitation, and while
both where drinking gin, and while
the revolver, the instrument of the
crime, was lying on the table on
which were also several loaded
cartridges, heard the accused
repeatedly say, referring to the
deceased, that her time had come,
adding that he would rather see her
dead than in the arms of another
man, and when the accused went to
bed apparently very much worried,
and refusing to answer when called,
the witness left him. On the day after
the crime the police found on a table
in the cuprit's house several loaded
cartridges, a bottle of oil and a piece
of cloth used undoubtedly for
cleaning the revolver.
All the foregoing circumstances
conclusively prove that the accused,
deliberately and after due reflection
had resolved to kill the woman who
had left him for another man, and in
order to accomplish his perverse
intention with safety, notwithstanding
the fact that he was already provided
with a clean and well-prepared
weapon and carried other loaded
cartridges besides those already in
his revolver, he entered the house,
greeting everyone courteously and
conversed with his victim, in what
appeared to be a proper manner,
disguising his intention and claiming
her by his apparent repose and
tranquility, doubtless in order to
successfully accomplish his criminal
design, behaving himself properly as
he had planed to do beforehand.
As against the two foregoing
aggravating circumstances no
mitigating circumstances is present,
not even that mentioned in paragraph
7 of article 9 of the Penal Code, to wit
loss of reason and self-control
produced by jealousy as alleged by
the defense, inasmuch as the only
causes which mitigate the criminal
responsibility for the loss of self-
control are such as originate from
legitimate feelings, not those which
arise from vicious, unworthy, and
immoral passions.
From the foregoing considerations,
and as the judgment appealed from
is in accordance with the law, it is our
opinion that the same should be
affirmed, as we do hereby affirm it
with costs, provided, however, that
the death penalty shall be executed
according to the law in force, and that
in the event of a pardon being
granted, the culprit shall suffer the
accessory penalties of article 53 of
the Penal Code unless the same be
expressly remitted in the pardon. So
ordered.
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee, vs. SANICO
NUEVO @ "SANY", accused-
appellant.
QUISUMBING, J.:
On automatic review is the decision1
of the Regional Trial Court of
Sindangan, Zamboanga del Norte,
Branch 11, finding accused Sanico
Nuevo @ "Sany" guilty of rape and
sentencing him to death.
His conviction stemmed from the
following information:2
That, in the evening, on or
about the 4th day of December,
1994, in the municipality of
Godod, Zamboanga del Norte,
within the jurisdiction of this
Honorable Court, the said
accused, moved by lewd and
unchaste design and by means
of force, violence and
intimidation, did then and there
wilfully, unlawfully and
 feloniously succeed in having
sexual intercourse with one
ROBERTA CIDO, a 20 year old
married woman, against her will
and without her consent.
CONTRARY TO LAW (Viol. of
Art. 335, Revised Penal Code).
A plea of not guilty was entered upon
arraignment.
During trial, the prosecution
presented three witnesses, namely:
(1) complainant Roberta Cido; (2)
Anselmo Cido, Jr., the complainant’s
husband; and (3) Dr. Esmeralda
Nadela, a resident physician of the
Sindangan District Hospital,
Sindangan, Zamboanga del Norte.
They testified as follows:
ROBERTA CIDO3 recalled that at
about 9:00 o’clock in the evening of
December 4, 1994, Sanico Nuevo
passed by their house and invited her
husband Anselmo Cido, Jr., to a
drinking spree at the house of
Anselmo, Sr., her father-in-law.4 She
was left at home with her 10-month-
old daughter and her nine-year-old
niece Gemma Atis. They slept in the
living room, cum bedroom, the only
room in the house.5 At around 11:00
P.M., appellant surreptitiously
returned and entered their room. She
was awakened when appellant held
her neck, pinned down her arms and
took off her clothing. While Sanico
was removing her panties, she
struggled to extricate herself but to
no avail. She was unable to shout
because appellant was covering her
mouth. While she was lying on her
back, appellant laid on top of her and
proceeded to forcibly have sexual
intercourse with her, at the same time
pinning her down with a bolo. As this
was happening her niece Gemma,
who was present, witnessed what
was being done to her. Appellant
even warned Gemma not to reveal
what she saw and at the same time
threatened Roberta not to tell her
husband about the incident or else he
would kill her.6 He thereafter left the
house.
Roberta further testified that her
husband Anselmo, Jr., returned
home only the morning after. She
immediately told her husband about
the previous night’s incident. The
latter hastened to the house of
Sanico but did not find him. Appellant
was arrested that same afternoon.7
Although Roberta testified on cross-
examination, that she did not see him
because it was very dark that night,
she identified him through his voice.8
She was certain it was he because
she was very familiar with appellant’s
voice. Not only have they been
neighbors since childhood, she also
heard the appellant when he invited
her husband earlier that evening, and
when he warned her and her niece
not to tell anyone what happened.
For his part, ANSELMO CIDO, JR.,
corroborated part of his wife’s story.
He narrated that at around 9:00 P.M.,
December 4, 1994, Sanico with
companions dropped by their house
and invited him to a drinking spree in
his father’s (Anselmo, Sr.) house,
about 50 meters away from theirs.
While there, they drank until dawn.
Sanico left his father’s place at
around 11:00 P.M., purportedly to
answer the call of nature, and
returned only at around 1:00 A.M. of
December 5, 1994. At the time
Sanico left, Anselmo, Jr., observed
that he was carrying an 18-inch bolo.
When Anselmo, Jr., arrived home
early in the morning, his wife told him
of her ordeal.9
DR. ESMERALDA NADELA testified
on her medical findings contained in
her Medico-Legal Certificate dated
December 6, 1994, which
document10 she brought along and
read in open court. She said Roberta
told her that the latter was submitting
herself for medical examination
because she was raped, and that her
last sexual contact with her husband
was a week before the incident.
Nadela testified further that based on
her examination conducted two days
after the alleged incident, no fresh
injuries were actually found on the
victim; that only old lacerations were
present; that such absence was
possible due to the victim’s previous
child birth; and that no spermatozoa
was found on the victim, which was
likely because the examination was
conducted only two days after the
alleged rape.11
For the defense, two witnesses were
presented. First was the appellant
himself, SANICO NUEVO. He
declared that he knew Roberta since
they were schoolmates in grade
school and she was a former
neighbor. He lived about 100 meters
from her house. Moreover, her
husband Anselmo, Jr., was his
"barkada". He recounted that at
about 6:30 P.M., December 4, 1994,
his father and he went to the house
of Anselmo, Sr., to buy Tanduay Rum
and drank with their friends Rudy and
Ami Tinambakan. On the way, they
had to pass by the house of
Anselmo, Jr. He denied he invited the
younger Anselmo to go drinking as
the latter’s house was already close
by. It was Anselmo, Jr., who later
followed and joined them until around
10:30 P.M. Appellant said he stayed
in the house of Anselmo, Sr., where
he slept at around 12:00 o’clock
midnight. It was already 6:30 A.M.
the following day when he woke up.
He denied raping Roberta. He added
that the house of Anselmo, Sr., was
only about 35 meters from the house
of Roberta.12
The second witness for the defense
was EMELIO13 NUEVO, brother of
appellant. He claimed that he was
with his brother Sanico and two
neighbors the night of the incident.
He corroborated his brother’s story
that they were drinking at the house
of Anselmo, Sr., and he noticed his
brother asleep on the upper floor of
Anselmo Sr.’s house, when he left at
around 5:00 A.M. early in the
morning while the others were still
dancing downstairs. He admitted,
however, that he told no one of
seeing his brother sleep in the house
of Anselmo Sr., even when he found
out that his brother was to be
arrested, and even when he saw him
tied up and already in the custody of
the police. He did not disclose this
fact, even when he was already
alone with his other brother who was
a councilor of their place. It was only
in his testimony during trial that he
chose to reveal these facts in
Sanico’s defense. He also said he
was not aware of any
misunderstanding between his
brother and the spouses Roberta and
Anselmo, Jr.14
The trial court found the
prosecution’s version of events
credible and disbelieved that of the
defense. It rendered judgment as
follows:
IN VIEW OF THE
FOREGOING, the Court finds
the accused SANICO NUEVO
guilty beyond reasonable doubt
of the crime charged in the
above-quoted information with
aggravating circumstances of
dwelling (Article 14, (3) of the
Revised Penal Code; People
vs. Padilla, 242 SCRA 629) and
committed in full view of the
relative within the third degree
of consanguinity (Sec. 11 R.A.
7659), but since no mitigating
circumstances (sic) to offset the
above aggravating
circumstances, the Court
hereby sentences the accused
Sanico Nuevo to suffer the
maximum penalty provided by
law which is DEATH and to pay
the private offended party in the
sum of P50,000.00.
COSTS de officio.
SO ORDERED.15
In his brief, appellant assigns one
error only:
THE TRIAL COURT ERRED IN
CONVICTING ACCUSED-
APPELLANT SANICO NUEVO
OF COMMITTING RAPE
AGAINST ALLEGED VICTIM
ROBERTA CIDO DESPITE
INSUFFICIENT EVIDENCE OF
HIS POSITIVE
IDENTIFICATION.16
In resolving cases of rape, this Court
is guided by the following principles:
(a) an accusation for rape can be
made with facility; it is difficult to
prove but even more difficult for the
appellant, although innocent, to
disprove; (b) in view of the intrinsic
nature of the crime where only two
persons are usually involved, the
testimony of the complainant must be
scrutinized with extreme caution; (c)
the evidence for the prosecution must
stand or fall on its own merit, and
cannot be allowed to draw strength
from the weakness of the evidence
for the defense (People vs. Quijada,
321 SCRA 426 [1999]); and (d) the
evaluation of the trial court judges
regarding the credibility of witnesses
deserves utmost respect on the
ground that they are in the best
position to observe the demeanor,
act, conduct, and attitude of the
witnesses in court while testifying
(People vs. Maglente, 306 SCRA 546
[1999]).
In our view, the first issue for our
resolution here is whether appellant
was sufficiently identified by the
offended party based only on her
recognition of the sound of his voice.
The second issue is whether the
prosecution’s evidence suffices for
the conviction of rape and the
imposition of the death penalty on
him.
Appellant denies he raped Roberta
Cido. He questions the certainty of
his identification as the offender. He
avers that the night of the rape, there
was no moon and it was very dark.
Nor was there any showing of
illumination from any source in and
out of the house of the victim.
Further, she averred that she
identified her rapist only because she
recognized his voice. According to
appellant, such voice identification is
insufficient to prove he was the
rapist.
In People vs. Reyes,17 we held that
once a person has gained familiarity
with another, identification becomes
quite an easy task even from a
considerable distance. In a number of
cases, we ruled that the sound of the
voice of a person is an acceptable
means of identification where it is
established that the witness and the
accused knew each other personally
and closely for a number of years.18
Appellant did not deny that he and
Roberta had known each other since
childhood19 and that appellant and
Roberta’s husband were "barkada."20
It is not impossible then that
complainant could immediately
recognize appellant through his voice
alone. In addition, appellant’s face
was very near the victim21 such that
the victim could not have
misidentified him, even only by voice
recognition.
According to appellant, Roberta
claims she smelled marijuana on the
rapist but she patently made a
mistake since he should have
smelled of Tanduay Rum instead,
because that was what he drank. In
addition, he argues that since no
physical injury was found on Roberta
to show that there was force or
intimidation inflicted on her, therefore,
no rape had happened.
As testified to by Dr. Nadela,
however, lacerations or signs of
injury may not be present in this case
due to the fact that the victim had
already given birth to a child.22
Moreover, according to the victim,23
appellant’s penis was relatively small
in size, about two and a half inches
long. This is consistent with Dr.
Nadela’s testimony that in some
cases of women who have already
given birth, it would take an "extra-
large" male organ to cause
lacerations. According to her, healed
lacerations or the absence of
spermatozoa in the vaginal canal do
not negate rape.24 We are, thus,
constrained to say that appellant’s
bland conclusion that no rape
happened for lack of physical injuries
on the person of the victim is clearly
a non-sequitur.
Appellant’s claim that Roberta should
have smelled him reeking of liquor
instead of marijuana is beside the
point and deserves scant
consideration. Note that appellant
and his five other companions shared
only four bottles of pocket-sized
Tanduay mixed with softdrinks.25
Thus, it was not unlikely that he did
not smell strongly of liquor. Further,
note that the drinking spree started at
8:30 P.M., and it was barely two
hours thereafter when appellant left
the group, according to prosecution
witnesses. Besides, that Roberta said
she detected the smell of marijuana
on her abuser does not change the
fact that she identified him positively
and without any reservation as the
perpetrator of the offense.
Considering the circumstances in this
case, in the light of the testimony by
the victim and her witnesses as well
as of those for the defense, we agree
with the trial court that Roberta had
sufficiently identified appellant as the
person who raped her, by means of
force, violence and intimidation,
against her will and without her
consent. Appellant is guilty beyond
reasonable doubt of the crime
charged.
We are, however, constrained to
disagree concerning the penalty
imposed on him. An appeal in a
criminal case throws the entire case
wide open for review and it is the
duty of the appellate court to correct
errors, as may be found in the
appealed judgment, even if
unassigned.26 This salutary principle
governs our automatic review of
death penalty cases as well.
Although not assigned as an error, it
is our view that the trial court erred in
appreciating the qualifying
circumstance under par. 3, Section
11, R.A. 7659,27 concerning the
presence of a relative, to justify the
imposition of the death penalty.
In People vs. Amadore, we held that
the attendance of any of the
circumstances under the provisions
of Section 11 of Republic Act No.
7659, mandating the death penalty
are in the nature of qualifying
circumstances and the absence of
proper averment thereof in the
complaint will bar the imposition of
that extreme penalty.28 The
information in this case did not allege
the qualifying circumstance, that the
rape was committed in full view of a
niece (a relative within the third
degree of consanguinity). Because of
this deficiency, appellant was not
properly apprised of the extent of the
punishment which the charges
against him entailed. Thus, it was an
error to consider the foregoing
circumstance in the imposition of the
proper penalty on appellant.
Further, while the decision of the trial
court held that dwelling and the use
of a deadly weapon aggravated the
crime committed, we find that these
were not averred in the information.
The Revised Rules of Criminal
Procedure, effective December 1,
2000, provides that every complaint
or information must state not only the
qualifying but also the aggravating
circumstances with specificity.29 This
requirement of procedure has
retroactive effect and is applicable to
actions pending and undetermined at
the time of their passage insofar as it
is favorable to the appellant.
Procedural laws are retroactive in
that sense and to that extent.30 Here,
it was error to appreciate dwelling
and the use of a deadly weapon as
aggravating circumstances in the
commission of the offense. In sum,
we find that no aggravating as well as
qualifying circumstances have been
properly pleaded and proved by the
prosecution in this case. The result is
that the crime committed by appellant
is only simple rape, which under
Article 335 of the Revised Penal
Code as amended by R.A. 7659, the
law prevailing at the time of
commission thereof, is punished only
with reclusion perpetua.
Moreover, on the civil aspect,
modification is also in order. Private
complainant is entitled not only to
P50,000 as civil indemnity, but
following current jurisprudence, also
to P50,000 as moral damages and
P25,000 as exemplary damages.
WHEREFORE, the decision of the
trial court is MODIFIED. The
appellant is declared GUILTY of the
crime of simple rape beyond
reasonable doubt, and he is hereby
sentenced to suffer the penalty of
reclusion perpetua. Conformably with
prevailing jurisprudence, appellant is
also ordered to pay the offended
party P50,000 as civil indemnity,
P50,000 as moral damages and
P25,000 as exemplary damages.
THE UNITED STATES, plaintiff-
appellee, vs. HILARIO DE LA CRUZ,
defendant-appellant.
CARSON, J.:
The guilt of the defendant and
appellant of the crime of homicide of
which he was convicted in the court
below is conclusively established by
the evidenced of record.
The trial court was of opinion that its
commission was not marked by
either aggravating or extenuating
circumstances, and sentenced the
convict to fourteen years eight
months and one day of reclusion
temporal, the medium degree of the
penalty prescribed by the code. Burt
we are of opinion that the extenuating
circumstance set out in subsection 7
of article 9 should have been taken
into consideration, and that the
prescribed penalty should have been
imposed in its minimum degree.
Subsection 7 of article 9 is as follows:
The following are extenuating
circumstances:
 xxx xxx xxx
That of having acted upon an
impulse so powerful as naturally to
have produced passion and
obfuscation.
The evidence clearly discloses that
the convict, in the heat of passion,
killed the deceased, who had
theretofore been his querida
(concubine or lover) upon discovering
her in flagrante in carnal
communication with a mutual
acquaintance. We think that under
the circumstances the convict was
entitled to have this fact taken into
consideration in extenuation of his
offense under the provisions of the
above-cited article.
This was the view taken by the Court
of Spain upon a similar state of facts
as set forth in its sentence of July 4,
1892, which is summarized by Viada
(p. 69, in question 19, art. 9 of vol. 6)
as follows:
Shall he who kills a woman with
whom he is living in concubinage
for having caught her in her
underclothes with another party
and afterwards shoots himself,
inflicting a serious wound, be
responsible for that crime with the
extenuating circumstance of
having acted with violent passion
and obfuscation? The Audiencia of
Santiago de Cuba did not so hold
and its judgment was reversed by
the supreme court for the improper
disregard of article 9, number 8, of
the Penal Code for Cuba and
Puerto Rico: "The facts held to be
true by the trial court, and which
were the immediate cause of the
crime by producing in the accused
strong emotion which impelled him
to the criminal act and even to
attempt his own life, were a
sufficient impulse in the natural
and ordinary course to produce
the violent passion and
obfuscation which the law regards
as a special reason for
extenuation, and as the judgment
did not take into consideration the
8th circumstance of article 9 of the
code, the Audiencia rendering it
seems to have violated this legal
provision."
It is true that in the case of U.S. vs.
Hicks (14 Phil. Rep.., 217), we held
that the "causes which mitigate the
criminal responsibility for the loss of
self-control are such as originate
from legitimate feelings, not those
which arise from vicious, unworthy,
and immoral passions," and declined
to give the benefit of the provisions of
this article to the convict in that case
on the ground that the alleged
causes for his loss of self-control did
not "originate from legitimate
feelings." But in that case we found
as facts that:
All the foregoing circumstances
conclusively prove that the
accused, deliberately and after due
reflection had resolved to kill the
woman who had left him for
another man, and in order to
accomplish his perverse intention
 with safety, notwithstanding the
fact that he was already provided
with a clean and well-prepared
weapon and carried other loaded
cartridges besides those already in
his revolver, he entered the house,
greeting everyone courteously and
conversed with his victim, in what
appeared to be in a proper manner,
disguising his intention and calming
her by his apparent repose and
tranquility, doubtless in order to
successfully accomplish his
criminal design, behaving himself
properly as he had planned to do
beforehand.
In the former case the cause alleged
"passion and obfuscation" of the
aggressor was the convict's vexation,
disappointment and deliberate anger
engendered by the refusal of the
woman to continue to live in illicit
relations with him, which she had a
perfect right to do; his reason for
killing her being merely that he had
elected to leave him and with his full
knowledge to go and live with
another man. In the present case
however, the impulse upon which
defendant acted and which naturally
"produced passion and obfuscation"
was not that the woman declined to
have illicit relations with him, but the
sudden revelation that she was
untrue to him, and his discovery of
her in flagrante in the arms of
another. As said by the supreme
court of Spain in the above-cited
decision, this was a "sufficient
impulse" in the ordinary and natural
course of things to produce the
passion and obfuscation which the
law declares to be one of the
extenuating circumstances to be
taken into consideration by the court.
Modified by a finding that the
commission of the crime was marked
with the extenuating circumstance set
out in subsection 7 of article 9, and
by the reduction of the penalty of
fourteen years eight months and one
day of reclusion temporal to twelve
years and one day of reclusion
temporal, the judgment of conviction
and the sentence imposed by the trial
court should be and are hereby
affirmed, with the costs of this
instance against the appellant.
THE PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs.
CATALINO RABAO, defendant-
appellant.
IMPERIAL, J.:
This is an appeal from a judgment of
the Court of First Instance of
Camarines Sur convicting the
appellant of the crime of parricide
and sentencing him to an
indeterminate penalty of from eight
years and one day of prision mayor
to twenty years of reclusion temporal,
to indemnify the heirs of the
deceased in the sum of P1,000 and
to pay the costs.
The information filed by the acting
provincial fiscal of said province
charged the defendant with parricide
for having killed his wife Salvacion
Agawa on December 15, 1937, in the
municipality of Naga, Province of
Camarines Sur, which crime was
committed with evident premeditation
and abuse of superior strength.
The defendant and the deceased
Salvacion Agawa were married
before the justice of the peace of
Naga on January 15, 1936 and had
since been born to the marriage.
Since their marriage they had made
their home in the house of Urbano
Rellora, who lived maritally with the
mother of the accused. On the
morning of December 15, 1937,
when the defendant was hardly
awake after staying up late the
previous night on account of the
elections held in the municipality of
Naga, he noticed that his wife was
preparing water with which to give
the child a bath. He told his wife not
to bathe the child because it had a
cold, but the wife insisted and a
quarrel arose in the heat of which the
accused punched his wife on the
abdomen. She fell seated on a sack
of rice nearby and immediately
suffered an attack of which she died
in spite of the aid rendered her by the
accused himself and other persons
who had arrived. The following
morning Dr. Vicente Roxas
performed an autopsy and found that
the spleen of the deceased had been
hypertrophied due to an acute and
chronic malaria from which she had
been suffering, and that death was
caused by the hemorrhage of the
spleen when it was ruptured as a
consequence of an external blow on
the abdomen which might have been
that delivered by the accused.
The defense alleges that the lower
court erred in declaring that the
accused hit the deceased on the
abdomen, which caused her death,
instead of finding him, at most, guilty
of parricide through reckless
imprudence.
After an examination of the evidence,
we are of the opinion that the lower
court did not err in finding that the
accused hit the deceased on the
abdomen which directly caused the
rupture of her spleen producing
thereby an internal hemorrhage that
caused her almost instant death.
Urbano Rellora who, as stated
before, was the owner of the house
where the defendant and the
deceased lived and who maintained
marital relations with the mother of
the accused, testified positively that
he saw the accused punched his wife
on the abdomen, as a result of which
she fell seated on a sack of rice and
that very moment she had an attack,
became unconscious and expired.
This testimony is corroborated by Dr.
Roxas who performed the autopsy,
when he declared that the death was
caused by the hemorrhage produced
by the rupture of the spleen which
rupture was caused by an external
blow on the abdomen of the
deceased. The defendant himself, in
his sworn declaration (Exhibit C)
subscribed before the justice of the
peace of Naga, voluntarily admitted
having hit his wife on the abdomen
with his fist when she said things that
offended and made him nervous. The
aggression was likewise corroborated
by another eye-witness, Raymundo
Hilano, who declared that he was at
that time passing in front of the
defendant's house when he heard
and saw him quarrelling with his wife
and that the defendant was delivering
blows on his wife. The testimony of
this witness however, seems
incredible and deserves no merit for
he testified having seen the
aggression through a window which
was three and a half meters high
from the ground where he stood.
Considering the height of the window
and the location of the witness, it is
clear that he could not have seen
what was happening inside the
house.
The defendant's act is not mere
reckless imprudence, as the defense
contends, since under article 365 of
the Revised Penal Code the acts that
go to make up reckless imprudence
must be lawful in themselves, and the
attack consisting in the blow the
defendant dealt his wife is certainly
not lawful, since it transgresses the
Revised Penal Code itself, which
expressly prohibits it under pain of
punishment.
The facts proven constitute the crime
of parricide defined by article 246 of
the Revised Penal Code, and in its
commission there were present the
following mitigating circumstances
considered by the lower court in favor
of the defendant: lack of intention to
commit so grave a crime (article 13
[3], Revised Penal Code); having
acted upon an impulse so powerful
as naturally to have produced
passion or obfuscation (article 13 [6]);
having surrendered himself to the
authorities immediately after the
commission of the crime (article 13
[7]); with no aggravating
circumstance. As to the penalty
imposed, we find that it is not in
accordance with that prescribed by
the law. Under article 246 of the
Revised Penal Code the crime of
parricide is punished with reclusion
perpetua to death. These penalties
are indivisible and the Revised Penal
Code provides, in article 63, rule 3,
that whenever there is present some
mitigating circumstance with no
aggravating one, the lesser penalty
shall be applied. In conformity with
this legal provision, the penalty that
should be imposed on the accused is
that of reclusion perpetua.
After reviewing the facts, we are
convinced that the defendant did not
really have the intention of
committing so grave a crime as
parricide. The quarrel that led to the
aggression had its origin from the
natural and justifiable desire of the
defendant, as a father, to prevent his
child, which was then ill, from being
given a bath. If, under the
circumstances, he transgressed the
law by an unjust attack on his wife,
he is, nevertheless, deserving of the
mitigating circumstances allowed in
his favor. We invoke, for this reason,
article 5, paragraph 2, of the Revised
Penal Code, and recommended to
his Excellency, the President of the
Philippines, the commutation of the
penalty imposed on the defendant in
this decision.

Modifying the appealed judgment, we

declare the defendant Catalino
Rabao guilty of the crime of parricide
and hereby sentenced him to
reclusion perpetua, and to the
accessory penalties provided in
article 41 of the Revised Penal Code,
to indemnify the heirs of the
deceased in the amount of P1,000,
and to pay the costs in both
instances. So ordered.

D. Voluntary Surrender