Republic of the Philippines

Department of Justice
OFFICE OF THE PROVINCIAL PROSECUTOR
Province of Antique

FILBERT D. PAUNON,
Complainant,

-versus- NPS NO. VI-02-INV-11D-00093

For: Frustrated Murder

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

COUNTER-AFFIDAVIT

I, WILDREDO UY, Filipino, 63 years old, and a resident of T.A. Fornier

Street, Antique, after having been sworn in accordance with law, hereby depose

and state that:

PREFATORY STATEMENT

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

Frustrated Murder against me is but part of Complainant Filbert Paunon’s

(“Paunon”) continuing effort to harass me and to malign my name.

Prior to this incredible accusation, Paunon had already filed several

complaints against me. These include a complaint for Tumults and Other

Disturbances of Public Order, a complaint for Grave Threats, and a complaint for

Malicious Mischief. These complaints have either been dismissed, or in the

process of being dismissed.

 This time, Paunon has come up with the most incredible tale and charged

me with Frustrated Murder which I allegedly committed when I grabbed him

and “head-locked” him by forcefully gripping his neck. 1 Now, even assuming,

without conceding, that his allegations in his Complaint are true, they would still

not support a finding of probable cause for the crime of Frustrated Murder.

Through the following discussion, I will demonstrate that these allegations are

mere exaggerations and blatant lies concocted by Paunon to harass me and to

cover up his own criminal actions.

The allegations in Paunon’s Complaint

are nothing but exaggerations and
blatant lies.

1. In order to justify his incredible and baseless accusation against me,

Paunon has resorted to outright exaggerations and blatant lies in his Complaint

Affidavit.

2. First of all, Paunon claimed that at around 4:30 o’clock in the

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

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

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

previously leased a commercial building to Medicus Philippines, Inc.

(“Medicus”). The building is located on Lot Bo. 2009A7, T.A. Fornier Street,

Barangay Atabay, San Jose de Buenavista, Antique. The term of the lease was for

ten (10) years commencing on April 1, 2001 and expiring on April 1, 2011.

1
Par. 26 of the Complaint.
2
Par. 3 of the Counter-Affidavit.

2
However, it was previously agreed that the turnover of the leased premises will

be done at 12:00 pm of 31 March 2011.

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

and found the doors still closed and locked by chains. I decided to wait a few

hours more, but there was still no one who approached us for the turnover of the

property.

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

finally inquire about the turn over. I looked for Paunon since he was the manager

of that particular branch. Contrary to Paunon’s claims, I was not seething with

rage. Instead, I cordially spoke with the personnel remaining in the building.

6. In his Complaint Affidavit, Paunon claimed that when I spoke to him

over the phone, I screamed at him and uttered invectives and scurrilous and

defamatory words at him and Dr. Vicente E. Villareal, the President of Medicus. 3

Again, these are blatant lies.

7. When I went to Medicus that day, I was informed that Paunon had

already left. I requested a member of the staff to call him so I can ask him about

the turn over. I merely spoke to Paunon over the phone and reminded him of the

previously agreed upon time of the turn-over of the leased premises. Since I had

waited the whole day for the turn-over, I was a little disappointed, but, contrary

to Paunon’s allegations, I did not angrily shout at him. Neither did I direct

invectives and scurrilous and defamatory words at him or Dr. Vicente Villareal.

3
Par. 6 of the Counter-Affidavit.

3
 8. It should be stressed that Paunon’s allegations are even belied by his

own actions. A few minutes after I allegedly threatened him, Paunon went to my

home to speak with me personally. It is not normal for a person who was

allegedly shouted at, and even threatened with bodily harm, to voluntarily enter

the home of the person who threatened him. Yet in this case, Paunon, on his own

volition, went to my home just a few minutes after I allegedly maligned him

verbally and threatened him with physical harm.

9. There is also no truth to Paunon’s allegations that when he arrived at

our house, I told him that I would have “boxed” him if he had been in the

premises of Medicus.4 Together with my wife, Melinda, and our son, Phillip, I

met Paunon in our home. We were all very cordial with him. I chided him a bit

for failing to turn over the property at the agreed upon time, but I did not

threaten to box him. I even jokingly put my right arm around his shoulder and

pulled him closer to me when I spoke to him. My behavior was observed by both

my wife, Melinda and son, Phillip.5

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

between himself, my wife and me that Medicus would only install two (2) bulb

outlets and one (1) electrical outlet on the commercial building subject of the

lease.6 In fact, I insisted that all eight (8) fluorescent bulbs, together with their

respective outlet receptacles and switches, be reinstalled by Medicus.

11. I was already very lenient with Medicus when I did not insist that

they demolish a number of permanent structures they had built in the leased

property without our permission. But when I noticed that eight (8) fluorescent
4
Complaint, par. 12.
5
The affidavits of Melinda Uy and Phillip Uy are attached hereto as Annexes “A”
and “B” respectively.
6
Complaint, par. 19.

4
bulbs, together with their respective outlet receptacles and switches were

missing, I insisted that all eight fluorescent bulbs, together with their outlet

receptacles and switches, be re-installed before the official turnover. The bulbs,

receptacles and switches were all previously installed in the leased premises and

were all in place when the leased premises were turned over to Medicus at the

commencement of the term of the lease. Since these materials were all previously

attached to the leased premises, Medicus had no right to remove them.

12. I reiterate that there was never any agreement between myself, my

wife and Paunon that only two (2) bulbs and one (1) electrical outlet would be

installed in the premises. In fact, Paunon even promised to re-install all eight

fluorescent bulbs, their outlet receptacles and switches as we required. Since we

took Paunon’s word for it, my wife signed the turn over form. Little did we

know that he would later renege on that promise.

13. The fact that there was never any agreement between myself, my

wife and Paunon is supported by wife who similarly stated in her affidavit that

there was no agreement with Paunon.

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

that not only were the fluorescent bulbs, outlet receptacles and switches not

replaced, but the electrical wiring of these outlets were also missing, we filed a

criminal complaint for Qualified Theft against Paunon on 12 April 2011.7

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

locking him by forcefully gripping his neck. This accusation is a blatant lie, and

the events of that afternoon grossly exaggerated by Paunon.

7
A copy of the Complaint is attached hereto as Annex “C.”

5
 16. In truth, I encountered Paunon when I returned to the leased

premises in the afternoon of 1 April 2011. I was with our carpenter, Paulino

Magbanua, since I wanted to discuss with him the removal of the structures

which Medicus refused to remove. Paunon soon arrived and asked me if the

bulbs he installed were satisfactory. I reminded him that all of the eight (8) bulbs

should be installed together with their outlet receptacles and switches. He

however stated that he was instructed to re-install only two (2) of the bulbs. He

claimed that he could not do anything more since those were the instructions

given to him.

17. I insisted that the eight (8) bulbs and their outlet receptacles and

switches were part of the leased premises and should be reinstalled. However, I

did not forcefully grip his neck. I merely chided him by putting my right arm

over his shoulders and pulling him closer to me, as I had done on the day he

visited my house. My actions were witnessed by our carpenter Paulino

Magbanua, which he narrated in his affidavit.8

18. I stress that at no point was Paunon’s life in danger. Moreover,

Paunon’s companion did not embrace me or use physical force on me to help

Paunon escape. He merely placed his hand on my arm and told me to calm down

and I voluntarily relaxed my arm on Paunon’s shoulder.

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

him. Solely because of the fact that I was a bigger man, he concludes that I could

have readily broken his neck. 9 He regrets to take into account, however, that

8
A copy of Paulino Magbanua’s Affidavit is attached hereto as Annex “D.”
9
Complaint, par. 27.

6
although I am physically taller than Paunon, I am much older than him. I am

more than twice Paunon’s age – I am already sixty-three (63) years old, while

Paunon is only around thirty (30) years old. There was no possibility that I could

put a much younger man in mortal danger just by using my bare hands.

20. As can be seen, the allegations in Paunon’s Complaint Affidavit are

either blatant lies or gross exaggerations. I did not scream at him, utter invectives

or defamatory words at him, neither did I threaten him. Most important of all, I

did not head-lock him by gripping his neck. All of these were concocted by

Paunon merely to harass me.

There is no basis to support the charge

of Frustrated Murder

21. As I earlier explained, I never placed Paunon in any danger at any

point on 31 March and 1 April 2011. I did not head lock him by gripping his

neck. He was not mortally wounded or hurt in any way. It is thus incredibly

malicious and absurd of him to charge me with Frustrated Murder.

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

Murder, the accused must perform all of the acts which he believes necessary

to consummate the crime, it is only that death fails to follow for causes entirely

apart from his will.10 They also informed me that in order to qualify homicide

into murder, any of the following circumstances must be present:

“Art. 248. Murder. — Any person who, not

falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be
punished by reclusion temporal in its maximum

10
People vs. Dagman, G.R. No. L-23133 August 20, 1925.

7
 period to death, if committed with any of the
following attendant circumstances:

“1. With treachery, taking advantage of

superior strength, with the aid of armed men, or
employing means to weaken the defense or of means
or persons to insure or afford impunity.

“2. In consideration of a price, reward, or

promise.

“3. By means of inundation, fire, poison,

explosion, shipwreck, stranding of a vessel,
derailment or assault upon a street car or locomotive,
fall of an airship, by means of motor vehicles, or with
the use of any other means involving great waste and
ruin.

“4. On occasion of any of the calamities

enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive
cyclone, epidemic or other public calamity.

“5. With evident premeditation.

“6. With cruelty, by deliberately and

inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.”11

23. In this case, there was no allegation that any of the above

circumstances was present. In fact, even assuming all the allegations in the

Complaint were true, there is nothing to show that any of the above

circumstances could even be remotely considered.

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

necessary to consummate the crime of murder. I did not inflict any mortal

wound or injury upon Paunon which would likely cause his death. In fact, he

even went to the police station to record the incident. At the police station, he

was even reprimanded by a policewoman for causing such a loud commotion.

These are obviously not the actions of a man in the throes of death.

11
Art. 248 of the Revised Penal Code.

8
 25. I reiterate that I did not head lock Paunon and neither did I grip

his neck. I merely placed my right hand over his shoulders and pulled him

closer to me. In Filipino, my action could be described as “inakbayan ko lang

siya.”

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

produced the mortal wound or injury which would likely cause death, which

is a requirement in the crime of Frustrated Murder. In order to justify his

charge, Paunon claims that since I was a big man, I could have readily broken

his neck which would result in instantaneous death. 12 Again, this is a baseless

and grossly exaggerated conclusion. It takes more than speculation to justify

an indictment for murder. The fact that I could have committed murder is not

relevant. What is relevant is if I did something to Paunon that could have

caused his death, and I certainly did nothing of the sort.

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

whether in their consummated, frustrated or attempted stage, is intent of the

offender to kill the victim immediately before or simultaneously with the

infliction of injuries.13 In this case, it is readily apparent that I had no intention to

kill Paunon.

28. At the time of the alleged incident, there were four (4) people inside

the leased premises – myself, Paulino Magbanua, Paunon and his companion. If I

had any intention of killing Paunon, I would not do so in front of such witnesses.

I also reiterate that I merely put my hands over his shoulder. There was actually

no intention to physically harm Paunon, much more kill him. In addition, when

12
Complaint, par. 27.
13
Rivera vs. People of the Philippines, G.R. No. 166326 25 January 2006.

9
Paunon’s companion touched my arm and told me to calm down, I deliberately

and immediately relaxed my arm, at which point Paunon moved away from me.

This would not be consistent with the actions of a person who had intent to kill.

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

more than twice his age. I am also suffering from hypertension. I could not have

gravely injured a much younger man by my bare hands.

30. The gross exaggeration of charging me with Frustrated Murder is

also evident from a perusal of the medical certificate he attached to his

Complaint. According to the medical certificate, Paunon merely had an

Erythema on the left side of the neck. Erythema is nothing but a simple rash or

redness of the skin. It may be caused by anything like infection, massage,

electrical treatment, acne medication, allergies, exercise, solar radiation

(sunburn), or waxing and plucking of the hairs. This is evident from the

following articles on Erythema:

“Erythema (from the Greek erythros, meaning

red) is redness of the skin, caused by hyperemia of
the capillaries in the lower layers of the skin. It occurs
with any skin injury, infection, or inflammation.
Examples of erythema not associated with pathology
include nervous blushes.

“It can be caused by infection, massage,

electrical treatment, acne medication, allergies,
exercise, solar radiation (sunburn), cutaneous
radiation syndrome, or waxing and plucking of the
hairs—any of which can cause the capillaries to dilate,
resulting in redness. Erythema is a common side
effect of radiotherapy treatment due to patient
exposure to ionizing radiation.”14

“Erythema is a skin condition characterized by

redness or rash. There are many types of erythema,
including photosensitivity, erythema multiforme, and

14
http://en.wikipedia.org/wiki/Erythema, last visited on 29 May 2010.

10
 erythema nodusum. Photosensitivity is caused by a
reaction to sunlight and tends to occur when
something, such as an infection or a medication,
increases your sensitivity to ultraviolet radiation.
Erythema multiforme is characterized by raised spots
or other lesions on the skin. It is usually caused by a
reaction to medications, infections, or illness.
Erythema nodosum is a form of erythema that is
accompanied by tender lumps, usually on the legs
below the knees, and may be caused by certain
medications or diseases.” 15

31. Considering that an Erythema may result from any such mundane

causes, there is even no certainty that the Erythema on Paunon’s neck was

caused by my alleged head lock.

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

show that the alleged Erythema was found on the left side of Paunon’s neck. I am,

however, right handed. If it were true that I had head locked Paunon at that time,

then any injury, bruise or mark resulting from such head lock would likewise be

on the right side of his neck. From this alone, there is sufficient ground to doubt

the veracity and accuracy of the medical certificate and the alleged injury

suffered by Paunon.

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

Frustrated Murder charge against me. His allegations are composed of blatant

lies and gross exaggerations. Even the evidence he had submitted to substantiate

his alleged injuries are highly suspect and unreliable.

The allegations and evidence

presented by Pauonon are similarly
insufficient to support a finding of
probable cause for lighter offenses
15
http://www.umm.edu/altmed/articles/erythema-000154.htm, last visited on 29 May 2011.

11
 34. It is also stressed that the allegations of Paunon in his Complaint and

the evidence he presented are similarly insufficient to support a finding of

probable cause for lighter offenses, as can be seen below:

34.1. The allegations in Paunon’s Complaint are insufficient to

support a finding of probable for attempted or frustrated homicide. As I

already explained, an essential element of homicide, whether in its

consummated, frustrated or attempted stage, is intent of the offender to

kill the victim immediately before or simultaneously with the infliction of

injuries.16 My lawyers have informed me that as an essential element of

the crime, the intent to kill must also be proved by clear and convincing

evidence and with the same degree of certainty as is required of the other

elements of the crime.17 In this case, there was no intent to kill Paunon.

The intention to kill was merely the result of speculation and conjectures

on the part of Paunon. This does not satisfy the stringent requirement of

the law.

34.2. The allegations in Paunon’s Complaint are also insufficient

to support a finding of probable for physical injuries. First of all, in order

to be liable for serious physical injuries, the following should have been

the extent of the injury:

“Art. 263. Serious physical injuries. — Any

person who shall wound, beat, or assault another,
shall be guilty of the crime of serious physical injuries
and shall suffer:

16
Rivera vs. People of the Philippines, G.R. No. 166326 25 January 2006.
17
Alcaraz vs. Gonzalez, G.R. No. 164715, September 20, 2006

12
 “1. The penalty of prision mayor, if in
consequence of the physical injuries inflicted, the
injured person shall become insane, imbecile,
impotent, or blind;

“2. The penalty of prision correccional in its

medium and maximum periods, if in consequence of
the physical injuries inflicted, the person injured shall
have lost the use of speech or the power to hear or to
smell, or shall have lost an eye, a hand, a foot, an arm,
or a leg or shall have lost the use of any such member,
or shall have become incapacitated for the work in
which he was therefor habitually engaged;

“3. The penalty of prision correccional in its

minimum and medium periods, if in consequence of
the physical injuries inflicted, the person injured shall
have become deformed, or shall have lost any other
part of his body, or shall have lost the use thereof, or
shall have been ill or incapacitated for the
performance of the work in which he as habitually
engaged for a period of more than ninety days;

“4. The penalty of arresto mayor in its

maximum period to prision correccional in its
minimum period, if the physical injuries inflicted
shall have caused the illness or incapacity for labor of
the injured person for more than thirty days.”18

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

any of the above injuries. Thus, there is no basis for finding probable

cause for serious physical injuries.

34.4. The allegations in Paunon’s Complaint are also insufficient

to support a finding of probable cause for less serious physical injuries. To

be held liable for less serious physical injuries, the offended party must

have been incapacitated for labor for ten (10) days or more. 19 In this case,

the veracity of the medical certificate attesting to Paunon’s alleged injuries

is doubtful at best. Even assuming that it can be given credence, the

medical certificate clearly states that the healing period for such injury is

18
Revised Penal Code.
19
Article 265 of the Revised Penal Code.

13
from seven (7) to ten (10) days. This falls short of the requirement to be

liable for less serious physical injuries.

34.5. The allegations in Paunon’s Complaint are also insufficient

to support a finding of probable cause for slight physical injuries and

maltreatment. The law provides for three ways by which this provision is

violated. They are:

1. Physical injuries which incapacitated the offended

party for labor from one (1) to nine (9) days, or

required medical attendance during the same

period;

2. Physical injuries which did not prevent the

offended party from engaging in his habitual

work or which did not require medical

attendance;

3. Ill-treatment of another by deed without causing

any injury.

34.6. In this case, Paunon’s allegations in his Complaint are

insufficient to support a finding of probable cause for all of the ways

mentioned above. First of all, it is emphasized that Paunon did not

actually suffer any injury. As I already explained, I merely put my arm

around his shoulders and pulled him closer to me. No injury would have

been inflicted by such an act. Second, my lawyers have informed me of the

oft-repeated maxim "Actus non facit, nisi mens sit rea," which expounds a

basic principle in criminal law that a crime is not committed if the mind of

14
 the person performing the act complained of be innocent. 20 In this case,

there was no criminal intention on my part when I put my arm around

Paunon’s shoulders and pulled him closer to me. Without said intention,

there could be no criminal act.

CONCLUSION

35. Based on all the foregoing, it is readily apparent that there is no basis

to support Paunon’s charge of Frustrated Murder against me. I reiterate that I

did not shout invectives at him, verbally threaten him, nor did I intend to kill

him by head locking him by gripping his neck. The medical certificate he

submitted showing his alleged injuries only supports my contention that this

charge is but a laughable attempt to harass me and malign my name.

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

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

37. Although this case is only in the Preliminary Investigation stage and

all that is sought to be established is probable cause, my lawyers have advised

me that sufficient proof of the guilt of the accused must nevertheless be adduced

so that when the case is tried, the trial court may not be bound as a matter of law

to order an acquittal. This was explained by the Supreme Court in the case of

Duterte v. Sandiganbayan,21 where it was held that:

“Although such a preliminary investigation is

not a trial and is not intended to usurp the function of
the trial court, it is not a casual affair. The officer

20
Manzanaris vs. People, G.R. No. L-64750, January 30, 1984.

21
G. R. No. 130191, April 27, 1998.

15
 conducting the same investigates or inquires into the
facts concerning the commission of the crime with the
end in view of determining whether or not an
information may be prepared against the accused.
Indeed, a preliminary investigation is in effect a
realistic judicial appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be
adduced so that when the case is tried, the trial court
may not be bound as a matter of law to order an
acquittal. A preliminary investigation has then been
called a judicial inquiry. It is a judicial proceeding. An
act becomes judicial when there is opportunity to be
heard and for the production and weighing of
evidence, and a decision is rendered thereof.”
(Emphasis ours.)

38. Given the obvious paucity and insufficiency of the evidence

presented against me, which was only made particularly to harass me, I humbly

and respectfully request the Honorable Prosecutor to dismiss the criminal case

against me.

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

and to refute the allegations against me in the Complaint.

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

2011.

WILFREDO UY
Affiant

SUBSCRIBED AND SWORN TO BEFORE ME on this 1 st day of June

2011 in the Province of Antique.

ASSISTANT PROVINCIAL PROSECUTOR

16
 CERTIFICATION

I hereby certify that I have personally examined the affiant and am

satisfied that he voluntarily executed and understood his affidavit.

ASSISTANT PROVINCIAL PROSECUTOR

17