G.R. NO.

158053 June 21, 2007

EDWIN RAZON y LUCEA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review on Certiorari seeking the reversal of the Court of Appeals' (CA)
Resolution dated January 31, 20011 in CA-G.R. CR No. 22211 entitled "People of the Philippines v. Edwin
Razon y Lucea" and the CA Resolution dated April 14, 20032 which denied petitioner's motion for
reconsideration.

The facts as found by the Regional Trial Court (RTC) are summarized as follows:

PO1 Francisco Chopchopen (Chopchopen) was walking towards Upper Pinget Baguio City, at around
midnight of August 1, 1993, when a taxicab driven by Edwin Razon y Lucea (Razon) stopped beside him.
Razon told Chopchopen that he was held up by three men at Dreamland Subdivision. Chopchopen then
asked Razon to go with him to the place of the incident to check if the persons who held him up were
still there. Razon was hesitant at first but eventually went with Chopchopen to said area about 100
meters up the road. While walking about eight meters off the road, Chopchopen noticed a person lying
on the ground and partially hidden by a big stone. Upon closer look, Chopchopen saw that the person's
shirt was soaked in blood and that he was hardly breathing. Lying beside the man was a wooden cane.
Chopchopen asked Razon to help him bring the person to the hospital. On the way, Chopchopen asked
Razon if he was the one who stabbed the victim. Razon answered no. Soon they met a police mobile
patrol driven by SPO2 Samuel Bumangil (Bumangil) who followed them to Baguio General Hospital. The
victim, who was later identified as Benedict Kent Gonzalo (Gonzalo), was pronounced dead on
arrival.3 He was 23 years old and a polio victim.4

Upon questioning, Razon told Bumangil that he was held up by three men, which included Gonzalo
whom he stabbed in self-defense. Razon brought out a fan knife and told Bumangil that it was the knife
he used to stab Gonzalo. A later search of the cab however yielded another weapon, a colonial knife
with bloodstains which was found under a newspaper near the steering wheel. At the police station,
Razon admitted having stabbed Gonzalo but insisted that he did so in self-defense.5

An autopsy conducted on the body of the victim showed that he sustained three stab wounds, to wit: a
stab wound measuring 2.5 cms. found

in the front and lower quadrant of the abdomen, directed inward towards the mid-line and slightly
upward entering the abdominal wall and perforating the small intestines, pancreas and the abdominal
aorta, having an approximate depth of 12 cm.; a stab wound on the left arm measuring 5 cm. with one
end blunt and the other end sharp having an approximate depth of about 1 cm.; and a stab wound on
the right buttock 1.3 cm. long with a depth of about 4 cm. The stab wound on the abdomen killed
Gonzalo, as it penetrated the small intestines, pancreas and the abdominal aorta, causing massive
hemorrhage and loss of blood. Abrasions and contusions were also found on the body of Gonzalo,
located on the left ear lobe, on the chest, on the left anterolateral side, on the mid-posterior aspect and
on the lumbar region of the back.6

Razon for his part asserted that he acted in self-defense. He claimed that around 11:30 p.m. on August
1, 1993, three men boarded his cab from the Philippine Rabbit bus station along Magsaysay Avenue in
Baguio who asked to be brought to Dreamland Subdivision in Pinget for the total sum of ₱90.00. Upon
reaching their destination and while Razon was turning the cab around, Gonzalo, who was seated
behind the driver's seat, declared a hold-up and poked a Batangas knife (veinte nueve) at the right side
of the base of Razon's neck. The two other passengers were shocked but Gonzalo told them to get their
knives, stab Razon and grab his right hand. Razon however was able to grab the knife and release his
right hand from Gonzalo's two companions. Gonzalo's companions then went out of the cab and picked
up stones. Gonzalo followed and Razon ran after them. Gonzalo was swinging his cane and it hit Razon
on his right leg. Razon then thought of his knife inside the cab and he went to get it and confronted the

three by swinging his knife from left to right. Gonzalo's companions ran away and Razon went back to
his cab and left.7

Not finding credence in Razon's claim of self-defense, RTC Branch 60 of Baguio City convicted him of
homicide as follows:

WHEREFORE, this Court finds the accused, Edwin Razon y Lucea, GUILTY beyond reasonable doubt of the
crime of HOMICIDE. There being no mitigating or aggravating circumstance, he is hereby sentenced to
an indeterminate penalty of 6 years and 1 day of prision mayor as minimum, to 14 years 8 months and 1
day of reclusion temporal as maximum.

He is further ordered to pay the heirs of Benedict Kent Gonzalo, Jr. the amount of ₱12,770.00 by way of
actual damages; ₱50,000.00 by way of moral damages; and ₱10,000.00 by way of attorney's fees.

SO ORDERED.8

Razon filed a notice of appeal,9 and the CA required him, through his counsel Atty. Rigoberto D. Gallardo
(Atty. Gallardo) to file an appellant's brief.10 Two motions for extension of time were filed by Atty.
Gallardo.11 Instead of filing the brief, however, Atty. Gallardo filed a Motion to Withdraw as Counsel for
the Accused-Appellant on January 7, 1999, claiming that Razon had consistently shown his disinterest in
the case by not attending much needed conferences.12 The CA ordered Atty. Gallardo to file another
motion to withdraw with Razon's conformity; thus Atty. Gallardo filed a motion dated February 1, 1999,
with a signature, purportedly that of Razon's.13 Later, the CA received a Manifestation dated February
17, 1999, stating that Atty. Gallardo's firm could not secure Razon's signature to signify his conformity to
Atty. Gallardo's withdrawal as his counsel, Atty. Gallardo thus requested that he be relieved of his
responsibilities as counsel

even without Razon's conformity.14

Due to the inconsistency of the manifestations of Atty. Gallardo in his motions dated February 1, 1999
and February 17, 1999, the CA issued a Resolution directing Razon to manifest the authenticity of his
signature appearing on the February 1, 1999 motion to withdraw as counsel filed by Atty. Gallardo. The
CA also required Razon to cause the entry of appearance of a new counsel within 5 days from notice.15
On August 27, 1999, the CA granted Atty. Gallardo's motion to withdraw as counsel and directed Razon
anew to cause the entry of appearance of his new counsel or manifest whether he wanted the CA to
appoint a counsel de oficio to defend him, within five days from notice with warning that failure to
comply with said Resolution shall cause the dismissal of his appeal.16

On February 22, 2000, the CA again issued a Resolution which noted the Judicial Records Division (JRD)
report that no compliance had been filed by Razon with the resolution dated August 27, 1999;
considered the right of the accused to be represented by counsel as waived; and directed the JRD, in the
interest of justice, to resend the notice to file brief to Razon.17 On February 28, 2000, the CA issued
another notice to file brief, this time addressed to and received by Razon himself.18 On July 12, 2000,
the CA issued a Resolution requiring Razon to show cause why his appeal should not be dismissed for
failure to file the required brief despite notice thereof.19

With the failure of Razon to comply with the said directives, the CA on January 31, 2001, issued the
herein assailed Resolution dismissing his appeal as follows:

WHEREFORE, the appeal is deemed ABANDONED and DISMISSED on authority of Section 8, Rule 124 of
the Revised Rules of Criminal Procedure.20

On July 25, 2001, the CA received a Motion for Reconsideration filed by Razon stating that he could not
read and understand English and that Atty. Gallardo was negligent of his duties to him, as said lawyer
filed his withdrawal of appearance even without his (Razon's) knowledge and conformity.21

The CA denied Razon's motion for reconsideration through its Resolution dated April 14, 2003, thus:22

1. Indeed the instant motion for reconsideration was filed out of time in violation of Section 16, Rule 124
of the same Rules – for the appellant admitted that on March 6, 2001 he received this Court's Resolution
dated January 31, 2001 dismissing his appeal but the record shows that he filed the subject motion four
months later or only on July 19, 2001 to be exact.

2. Our dismissal is warranted by Section 8 of Rule 124 and circumstances showing that it was not only
his previous counsel that was lax and negligent but the appellant as well...

xxx

3. The appellant had ignored Our directives and the option given him to have the services of a
counsel de oficio.23

Petitioner now comes before this Court claiming that the CA erred in declaring his appeal as abandoned
and dismissed.24 He claims that he is not bound by the actions of Atty. Gallardo who was negligent of
his duties to him; Atty. Gallardo failed to file the required appeal brief before the CA despite the many
extensions given him; worse, Atty. Gallardo filed a motion to withdraw his appearance as petitioner's
counsel without petitioner's knowledge; it was only when he received the CA Resolution dated January
31, 2001 that he learned of the withdrawal of Atty. Gallardo as his counsel, and it was only then that
Atty. Gallardo advised him to get another lawyer; petitioner received the records of the case from Atty.
Gallardo, only on March 9, 2001; petitioner failed to comply with the CA resolutions because he could
not understand the same due to his educational deficiency; and given the chance to ventilate his appeal,
petitioner would be absolved of the charge against him as he truly acted in self defense.25
For the State, the Office of the Solicitor General (OSG) contended that petitioner himself is guilty of
negligence; the CA gave him ample opportunity to secure the services of counsel or manifest his desire
to have a counsel de oficioappointed by the court, but petitioner ignored said directives; petitioner's
motion for reconsideration of the CA's Resolution dated January 31, 2001 was also filed out of time; and
Sec. 8, Rule 124 of the Rules of Court provides that the appellate court may dismiss an appeal if the
appellant fails to file his brief within the time prescribed by the said Rule.26

Petitioner filed a Reply and both parties filed their memoranda reiterating their respective arguments.27

Sifting the arguments raised, it is clear that only two questions need to be answered: (1) whether the CA
erred in dismissing petitioner's appeal for failure to file appellant's brief; and (2) whether petitioner
acted in self-defense in killing Gonzalo.

The Court answers both questions in the negative.

The first issue. Whether the CA erred in dismissing petitioner's appeal for failure to file appellant's brief.

While appeal is an essential part of our judicial system, a party must strictly comply with the requisites
laid down by the Rules of Court on appeals, mindful of the fact that an appeal is purely a statutory right.
Procedural rules are designed to facilitate the adjudication of cases. Both courts and litigants are
therefore enjoined to abide strictly by the rules. While there are instances when the Court allows a
relaxation in the application of the rules, such liberality is not intended to forge a bastion for erring
litigants to violate the rules with impunity. Liberality in the interpretation and application of the rules
applies only in proper cases and under justifiable causes and circumstances.28

Indeed, the CA may dismiss an appeal for failure to file appellant's brief on time. It is given the discretion
which must be exercised in accordance with the tenets of justice and fair play, having in mind the
circumstances obtaining in each case.29

In this case, the CA gave petitioner sufficient opportunity to file his appellant's brief. Instead of
complying, however, petitioner chose to ignore the many directives of the CA and now puts the blame
on his former counsel Atty. Gallardo, who was allegedly guilty of gross negligence.

Even if the Court were to admit that Atty. Gallardo was negligent, the rule is that negligence of counsel
binds the client. The only exception is when the negligence of said counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court.30 No such excepting circumstance can be said
to be present in this case because as properly observed by the appellate court, petitioner himself was
guilty of negligence.31

As borne by the records, the CA issued a Resolution on April 15, 1999 requiring petitioner to manifest
within five days from receipt thereof the authenticity of his signature appearing in the motion to
withdraw as counsel filed by Atty. Gallardo dated February 1, 1999, and to inform the CA of his new
counsel.32 On August 27, 1999, the CA granted Atty. Gallardo's motion to withdraw as counsel and
required petitioner anew to cause the entry of appearance of his new counsel or manifest whether he
desires the CA to appoint a counsel de oficio to defend him, with a warning that failure to comply with
the said resolution shall cause the dismissal of his appeal. On February 28, 2000, the CA issued another
notice to file brief, this time addressed to Razon himself.33 In a Resolution dated July 12, 2000, the CA
required Razon to show cause why his appeal should not be dismissed for failure to file the required
brief.34 On January 31, 2001, or almost three years after the notice of appeal was filed, the CA finally
issued a resolution

dismissing petitioner's appeal.35

Despite the many notices given him, Razon still failed to comply with the CA's directives. He also took a
long time to file his motion for reconsideration of the CA's January 31, 2001 Resolution because while he
admittedly received a copy of the said resolution on March 6, 2001, he only filed his motion for
reconsideration on July 19, 2001 or more than four months later.

It is thus clear that petitioner was guilty of neglect. He was aware of his conviction and of the
requirement of filing an appellant's brief.36 Yet he had no urgency in filing the same, even with the CA's
explicit orders. His excuse that his educational deficiency prevented him from complying with the CA's
resolutions deserves scant consideration. He was able to secure the services of counsel to file for him a
petition before this Court. Had he exerted earlier the kind of effort he put in getting a new counsel, or
had he simply notified the court of his desire to have a counsel de oficio assigned to him, then he would
not have to contend with the predicament he is presently in. For the resolution of the CA dismissing his
appeal on the ground of abandonment, petitioner has no one else to blame but himself.

The second issue. Whether petitioner acted in self-defense.

While the CA did not rule on the merits of the case, it is best not to remand the case to the CA. All the
records and evidence necessary for the determination of the innocence or guilt of the petitioner are
before this Court. Thus, for a complete and full disposition of the case and to avert further delay in the
disposition of the same, the Court shall hereby resolve the case on the merits.37

It is settled that when an accused admits killing the victim but invokes self-defense to escape criminal
liability, the accused assumes the burden to establish his plea by credible, clear and convincing
evidence; otherwise, conviction would follow from his admission that he killed the victim.38 Self-
defense cannot be justifiably appreciated when uncorroborated by independent and competent
evidence or when it is extremely doubtful by itself.39 Indeed, in invoking self-defense, the burden of
evidence is shifted and the accused claiming self-defense must rely on the strength of his own evidence
and not on the weakness of the prosecution.40

Here, petitioner admitted having inflicted the wound which killed Gonzalo.41 The burden is therefore on
him to show that he did so in self-defense. As correctly found by the RTC, however, petitioner failed to
prove the elements of self-defense.

To escape liability, the person claiming self-defense must show by sufficient, satisfactory and convincing
evidence that: (1) the victim committed unlawful aggression amounting to actual or imminent threat to
the life and limb of the person claiming self-defense; (2) there was reasonable necessity in the means
employed to prevent or repel the unlawful aggression; and (3) there was lack of sufficient provocation
on the part of the person claiming self-defense or at least any provocation executed by the person
claiming self-defense was not the proximate and immediate cause of the victim's aggression.42

The condition sine qua non for the justifying circumstance of self-defense is the element of unlawful
aggression.43There can be no self-defense unless the victim committed unlawful aggression against the
person who resorted to self-defense.44 Unlawful aggression presupposes an actual, sudden and
unexpected attack or imminent danger thereof and not just a threatening or intimidating attitude.45 In
case of threat, it must be offensive, strong and positively showing the wrongful intent to cause
injury.46 For a person to be considered the unlawful aggressor, he must be shown to have exhibited
external acts clearly showing his intent to cause and commit harm to the other.47

Petitioner claims that Gonzalo, who was seated behind him in the taxicab, declared a hold-up and poked
a knife at the base of his neck. Granting that this is true, what transpired next, changed the nature of the
roles played by petitioner and Gonzalo.

As correctly found by the trial court:

Without scrutinizing Razon's assertion that he was held up, and assuming the same to be true, there
was, indeed unlawful aggression when Gonzalo poked a knife on Razon's neck. But, when Razon, in a
Herculean feat, was able to grab the knife from Gonzalo and freed his right hand from the hold of
Gonzalo's two companions, the aggression no longer existed. In fact, Gonzalo's two companions, went
out of the taxicab and Gonzalo himself went out also towards the canal of the road. At this point, Razon
could have started his taxicab and left the place because he was left alone in the taxicab. But he did not.
He went after Gonzalo and his two companions and started swinging the knife he grabbed from
Gonzalo. He even had time to go back to the taxicab and get his own knife and then went back to the
three men. He then was holding two knives. There was no proof that Gonzalo's companions were able
to throw stones at him or the taxicab to indicate perhaps, that his three passengers who intended to
hold him up continued their unlawful aggression...

When Gonzalo and his two companions went out of the taxicab, and Razon followed them outside,
Razon became the aggressor. The wounds sustained by Gonzalo would clearly show that he was
attacked by Razon.48

Such findings are well supported by the records. During his direct testimony, Razon admitted that he
followed the three men, including Gonzalo, after they got out of the cab. Then he went back to his cab
to get his knife.49 On cross-examination, Razon admitted the same thing, and added the following:

Q. And you said that you swung the knife from left to right, is that correct?

A. Yes, sir.

Q. And you were able to hit Benedict Kent Gonzalo, Jr.?

A. Yes, sir.

xxx

Q. So you admitted that the injuries sustained by Benedict Kent Gonzalo in front of his abdomen was
due to your act of swinging the knife from left to right in front of him?

A. Yes, sir.

xxx

Q. And tell the Court if this is the one that you used, this colonial knife, previously marked as Exh. "A."

A. This is the one, sir.

Q. Yes, you testified the last time that you have to go back to your taxi cab and get this knife marked as
Exh. "A"?

A. Yes, sir.50 (Emphasis supplied)

On re-cross, Razon further admitted that:

Q. And you went near the canal where Benedict Kent Gonzalo, Jr. was?

A. Yes, sir.

Q. And the two others were already running away?

A. They were still there at that time.

Q. Do you know that Benedict Kent Gonzalo, Jr. was a victim of polio?

A. No, sir.

Q. But he did not run unlike the other two?

A. Yes, sir.

Q. He was in the canal which is lower than the road, is that correct?

A. Yes, sir.

ATTY. GALLARDO:

Witness is demonstrating the height of the canal about one foot, Your Honor.

ATTY. MOLINTAS:

You have to go near him and go down the canal also, is that correct?

A. Yes, sir.

Q. That's where you swung your knife left and right towards Benedict Kent Gonzalo, Jr.?

A. Yes, sir.

Q. And Benedict Kent Gonzalo, Jr. did not try to run away from you?

A. When I went up to get my taxi, that was the time he run away, sir.51 (Emphasis supplied)

Petitioner unequivocally admitted that after the three men went out of his taxicab, he ran after them
and later went back to his cab to get his colonial knife; then he went down the canal to swing his knife at
the victim, wounding and killing him in the process. Such can no longer be deemed as self-defense.

It is settled that the moment the first aggressor runs away, unlawful aggression on the part of the first
aggressor ceases to exist; and when unlawful aggression ceases, the defender no longer has any right to
kill or wound the former aggressor; otherwise, retaliation and not self-defense is
committed.52 Retaliation is not the same as self-defense. In retaliation, the aggression that was begun
by the injured party already ceased when the accused attacked him, while in self-defense the aggression
was still existing when the aggressor was injured by the accused.53
Even assuming that some danger did in fact exist, the imminence of that danger had already ceased the
moment petitioner was able to disarm the victim by wresting the knife from the latter. After the former
had successfully seized the weapon, and he as well as his companions went out of the cab, there was no
longer any unlawful aggression to speak of that would have necessitated the need to kill the victim.54

The defense employed by petitioner also cannot be said to be reasonable. The means employed by a
person claiming self-defense must be commensurate to the nature and the extent of the attack sought
to be averted, and must be rationally necessary to prevent or repel an unlawful aggression.55 The
nature or quality of the weapon; the physical condition, the character, the size and other circumstances
of the aggressor as well as those of the person who invokes self-defense; and the place and the occasion
of the assault also define the reasonableness of the means used in self-defense.56

In this case, the deceased was a polio victim, which explains the presence of the wooden cane at the
scene of the crime.57 Petitioner also admitted that when he went after Gonzalo, he had in his
possession two knives, the Batangas knife he wrested from the hold-uppers and the colonial knife which
he took from his cab.58

Other circumstances also render petitioner's claim of self-defense as dubious and unworthy of belief.
The nature and location of the victim's wounds manifest petitioner's resolve to end the life of the
victim.59 Here, the wound that killed Gonzalo was 12 cm. deep which was directed inward and

slightly upward, entering the abdominal cavity, perforating the small intestines and penetrating the
pancreas and the abdominal aorta.60 Petitioner also did not inform the authorities at the earliest
opportunity that he wounded Gonzalo in self-defense;61 neither did he surrender right away the
colonial knife which he used in stabbing the victim. He only invoked self-defense when he could no
longer conceal his deed. As testified to by Chopchopen, Razon was hesitant at first to go to the place
where he was allegedly held up.62 Then when Chopchopen discovered the body of Gonzalo and while
they were bringing him to the hospital, he asked Razon if he was the one who stabbed Gonzalo, to which
Razon answered in the negative.63 He only admitted to having stabbed the victim at the police station
after he was investigated by police officers.64

Petitioner's claim that he also suffered injuries brought by the attack on him by the victim is belied by
the testimonies of police officers Chopchopen and Bumangil who said that they did not see any injury on
Razon on the night in question.65

With petitioner's failure to prove self-defense, the inescapable conclusion is that he is guilty of homicide
as correctly found by the RTC.

As to the damages awarded by the RTC, however, the Court finds that certain modifications need to be
made. While not assigned as errors, it is the duty of the Court to correct such errors as may be found in
the judgment appealed from, since an appeal in a criminal case throws the whole case wide open for
review.66

The Court notes that the RTC failed to award the heirs of Gonzalo, ₱50,000.00 as civil indemnity for his
death.67Civil indemnity is automatically imposed upon the accused without need of proof other than
the fact of commission of murder or homicide.68
Anent actual damages, the Court resolves to delete the same and in lieu thereof imposes temperate
damages in the amount of ₱25,000.00. This is consistent with the ruling of the Court in People v.
Werba,69 citing People v. Villanueva70 which held that in instances where actual expenses amounting
to less than ₱25,000.00 are proved during the trial, the award of temperate damages of ₱25,000.00 is
justified in lieu of the actual damages of a lesser amount.71 In this case, Gonzalo's heirs were only able
to present receipts amounting to ₱4,925.00.72

As to moral damages, the RTC correctly awarded the amount of ₱50,000.00, as the prosecution was able
to show that the father of the victim, Benedicto Gonzalo, Sr., suffered mental and emotional anguish
due to the untimely death of his son. Gonzalo Sr., who was 74 years old at the time of his testimony,
said that he had special affection for his son, not only because he was the youngest among all his
children, but also because he was a polio victim. He said that he could not eat and sleep thinking that his
son could not have put up a fight due to his physical disability.73 Indeed, moral damages may be
awarded in favor of the heirs of a victim upon sufficient proof of mental anguish, serious anxiety,
wounded feelings and similar

injury.74

The RTC also did not err in awarding ₱10,000.00 as attorney's fees to the heirs of the victim. As provided
for in Art. 2208 (11)75 of the Civil Code, attorney's fees may be awarded where the court deems it just
and equitable that attorney's fees and expenses of litigation should be recovered. In this case the award
of attorney's fees is proper as it is borne by the records that the family of the victim hired the services of
a private lawyer to prosecute the case.76

WHEREFORE, the Decision of the Regional Trial Court, Branch 60, Baguio City, in Criminal Case No.
12245-R, entitled "People of the Philippines v. Edwin Razon y Lucea"
is AFFIRMED with MODIFICATION to the effect that petitioner is ordered to pay the heirs of Benedict
Kent Gonzalo, Jr. the amount of ₱50,000.00 as civil indemnity and ₱25,000.00 as temperate damages in
addition to ₱50,000.00 as moral damages and ₱10,000.00 as attorney's fees.

SO ORDERED.

G.R. No. 160341 October 19, 2004

EXEQUIEL SENOJA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in People v.
Exequiel Senoja, docketed as CA-G.R. CR No. 26564, affirming with modification the Decision2 of the
Regional Trial Court (RTC) of Baler, Aurora, Branch 96, in Criminal Case No. 2259, for homicide.

The Case For the People

As culled by the Office of the Solicitor General (OSG) in its comment on the petition, the case stemmed
from the following:

1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose Calica, and Miguel Lumasac were
drinking gin in the hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac
suddenly arrived at the said place, holding a bolo in his right hand and looking for his brother Miguel.
Petitioner and Jose tried to pacify Leon. But when petitioner approached Leon, the latter tried to hack
him so he embraced Leon and Jose took Leon’s bolo. Then, Leon and petitioner talked things out and
later reconciled (pp. 2-4, TSN, November 16, 1998; pp. 2-4, TSN, August 30, 2002; p. 2, TSN, April 21,
1998; p. 5, TSN, March 14, 2001; p. 2, CA Decision).

2. Subsequently, Leon walked out of Crisanto’s hut followed by petitioner. Suddenly, about ten meters
from the hut, petitioner stabbed Leon at the back. When Leon turned around, petitioner continued
stabbing him until he fell to the ground. Then, petitioner ran towards the barangay road and threw away
the "kolonial" knife he used in stabbing Leon. The latter died on the spot (pp. 2-6, TSN, November 22,
2000; p. 5, TSN, August 30, 2002; p. 3, CA Decision).

3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health Officer, examined the cadaver of Leon and
found multiple lesions on his body and five fatal wounds on his chest. Dr. Uy issued a medico-legal
report and death certificate (Exhibits A and B, pp. 13-14, Records; pp. 3-5, TSN, November 20, 1997).3

On August 13, 1997, an Information was filed charging petitioner Exequiel Senoja with homicide, the
accusatory portion of which reads:

That on April 16, 1997 at around 11 o’clock in the morning in Barangay Zarah, San Luis, Aurora,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there,
willfully, unlawfully, and feloniously, with intent to kill, attack, assault, and use personal violence upon
the person of one Leon Lumasac by then and there stabbing him with a bladed weapon locally known as
"kolonyal" at the different parts of his body thereby inflicting upon the latter mortal stab wounds which
were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.4

The petitioner admitted killing the victim but invoked the affirmative defense of self-defense. His
version of the fatal incident is set forth in his petition at bar:
1. On April 16, 1997 at about 11 o’clock in the morning, Crisanto Reguyal, Fidel Senoja, Jose Calica,
Miguel Lumasac, and Exequiel Senoja were in the hut of Crisanto Reguyal in Barangay Zarah, San Luis,
Aurora, drinking gin;

2. Leon Lumasac suddenly arrived holding a bolo and hacked the doorpost of Crisanto’s hut, angrily
demanding for his brother, Miguel Lumasac, whom he suspected of drying up the ricefield he was
plowing;

3. At this time, Miguel Lumasac was no longer inside the hut but fetching water;

4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja (appellant) and Jose Calica stood by
the door while simultaneously trying to pacify Leon Lumasac;

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

6. To avoid any injury, Exequiel Senoja embraced Leon which gave an opportunity to disarm the duo.
Jose Calica got the bolo of Leon and threw it away while Fidel Senoja took the "colonial" knife of
Exequiel;

7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so they invited him to get inside the
hut. Inside the hut, Leon Lumasac tried to box Fidel Senoja for siding with his brother, Miguel, but was
prevented by Exequiel Senoja who held Leon’s hands;

8. After a while, Leon Lumasac left but returned and angrily demanded for his bolo. Jose Calica gave his
own bolo with a sabbard to replace the bolo of Leon which he threw away;

9. With Jose Calica’s bolo in him, Leon Lumasac left but only after leaving a threat that something will
happen to Exequiel Senoja for siding with his brother;

10. After walking for about 10 meters away from the hut, Leon Lumasac turned around and saw
Exequiel Senoja on his way home following him;

11. Leon Lumasac walked back to meet Exequiel Senoja and upon reaching him, the former suddenly
and treacherously hacked the latter at the left side of his head and right thigh;

12. Unable to evade the treacherous attack by Leon Lumasac who persisted in his criminal design,
Exequiel Senoja drew his "colonial" knife and stabbed Leon Lumasac in self-defense, inflicting upon him
multiple wounds which caused his death.5

On June 7, 2002, the trial court rendered judgment against the petitioner, finding him guilty beyond
reasonable doubt of the crime charged. The fallo of the decision reads:

WHEREFORE, premises considered, this Court finds accused Exequiel Senoja GUILTY beyond reasonable
doubt of the crime of Homicide for the death of victim Leon Lumasac and hereby sentences him,
applying Article 64, paragraph 1 of the Revised Penal Code and Section 1 of the Indeterminate Sentence
Law, (a) to suffer the penalty of twelve (12) years of prision mayor as minimum to seventeen (17) years
and four (4) months of reclusion temporal as maximum; (b) to pay the heirs of the victim the amount of
Fifteen (sic) Thousand Pesos (Php 50,000.00) by way of civil indemnity; and (c) to pay the costs.

SO ORDERED.6
In due course, the petitioner appealed the decision to the CA which rendered judgment affirming, with
modification, the decision of the RTC. The petitioner now seeks relief from this Court, contending that:

The Honorable Court of Appeals failed to appreciate vital facts which, if considered, would probably
alter the result of this case on appeal finding appellant’s plea of self-defense credible.7

The petitioner faults the CA for its analysis of his testimony, as follows:

The injuries suffered by the petitioner at the left side of his head and right thigh was confirmed by Dr.
Rodolfo Eligio in open court. The relative positions of the wounds clearly show that the drunken Leon
Lumasac brandished and executed several hacking blows against Exequiel Senoja before he was
stabbed, neutralized and finished by the latter. It would be physically and highly improbable for the
victim if he was treacherously hit at the left buttock and as he turned around to face the petitioner, the
latter stabbed him successively and without let-up hitting him 9 times resulting in 9 fatal wounds. This
did not give a chance to the victim to retaliate and inflict those wounds upon the aggressor. The victim
used Mr. Jose Calica’s bolo which was secured by its scabbard. Unless earlier drawn, it would be
impossible for the victim to use it in defending himself from the surprise attack and stabbing at a
lightning fashion inflicting nine (9) fatal wounds. Time element was the essence of this encounter which,
as narrated by the Honorable Court, after the assailant poked the victim at the left side of the buttock
with the use of the "colonial" knife he stabbed him successively until he fell down dead. Under these
circumstances, how could Exequiel Senoja suffered (sic) those hacking (sic) wounds inflicted by the
victim using Calica’s bolo? In all indications, it was Leon Lumasac who attacked his adversary first but
lost in the duel considering that he was older than Exequiel Senoja and drunk. Clearly, therefore, it was
Leon Lumasac who was the aggressor both in the first and second phases of the incident and Exequiel
Senoja was compelled to defend himself.

A closer scrutiny of the attending circumstances which resulted in this stabbing incident shows that
Exequiel Senoja has no compelling reasons to kill his godfather. On that same occasion, Mr. Exequiel
Senoja was with the brother of the victim, Miguel Lumasac, which only shows that there was no pre-
existing grudge between these families. And still, what titillates our imagination is the fact that Miguel
Lumasac, who was then with the group drinking gin at the hut of Crisanto Reguyal did not clearly impute
this crime to petitioner. On the contrary, when he was presented to the witness stand, he was very
evasive in answering the questions profounded by the prosecutors if he wanted the petitioner to be
imprisoned. Miguel Lumasac could have told the real truth that Senoja murdered his brother.8

The CA declared that, based on the evidence on record:

As seen from appellant’s testimony, Leon Lumasac’s actions can be divided into two (2) phases: the first
phase, when Leon entered Crisanto Reguyal’s hut, up to the time he and the appellant reconciled. The
second phase was when Leon left to go home. In phase one where Leon entered Reguyal’s hut, Leon
was the aggressor but his aggression was mostly directed to his brother Miguel who was not inside the
hut anymore, although it was also partly directed at the appellant and even at Fidel Soneja (sic). But
Leon’s aggression against the appellant and Fidel Senoja ceased since, as appellant testified, when Leon
tried to box Fidel Senoja and he (appellant) told Leon "Huwag po, Huwag po," Leon was pacified.

In the second phase, when Leon left the hut to go home, his aggression had already ceased.
It is uncontroverted that the appellant followed the victim when the latter went out of the hut to go
home. Appellant’s testimony is that when he was two meters outside the hut, Leon turned around to
face him saying "if you’re not only my godson" in a threatening way, then approached and hacked him
(with Calica’s bolo) inflicting wounds on the left side of his head and his right thigh, thus, he (appellant)
attacked the victim with the kolonial knife he was holding. That appellant suffered such injuries was
corroborated by the testimony of Dr. Rodolfo Eligio.9

The petition is denied.

Paragraph 1, Article 11, of the Revised Penal Code provides:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

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

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

The affirmative defense of self-defense may be complete or incomplete. It is complete when all the
three essential requisites are present; it is incomplete if only unlawful aggression on the part of the
victim and any of the two essential requisites were present. In fine, unlawful aggression on the part of
the victim is a condition sine qua non to self-defense, complete or incomplete. Whether or not the
accused acted in self-defense is a question of fact. Like alibi, the affirmative defense of self-defense is
inherently weak because, as experience has demonstrated, it is easy to fabricate and difficult to
disprove.10

The right of self-defense proceeds from necessity and limited by it. The right begins where necessity
does, and ends where it ends.11 There is, however, a perceptible difference between necessity and self-
defense, which is that, self-defense excuses the repulse of a wrong; necessity justifies the invasion of a
right. Hence, it is essential to self-defense that it should be a defense against a present unlawful
attack.12

Life can be taken under the plea of necessity, when necessary for the preservation of the life on the
party setting up the plea. Self-defense is an act to save life; hence, it is right and not a crime.13 There is
a need for one, indeed, for it is a natural right for one to defend oneself when confronted by an unlawful
aggression by another. It is a settled rule that to constitute aggression, the person attacked must be
confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and
actual, not merely imaginary. Absent such an actual or imminent peril to one’s life or limb, there is
nothing to repel; there is no necessity to take the life or inflict injuries on another.14

But then what is the standard to use to determine whether the person defending himself is confronted
by a real and imminent peril to his life or limb? We rule that the test should be: does the person
invoking the defense believe, in due exercise of his reason, his life or limb is in danger? After all, the rule
of law founded on justice and reason: Actus no facit remin, nisi mens sit rea. Hence, the guilt of the
accused must depend upon the circumstances as they reasonably appear to him.15
Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent danger thereof, not
merely a threatening or intimidating attitude.16 Hence, when an inceptual/unlawful aggression ceases
to exist, the one making a defense has no right to kill or injure the former aggressor.17 After the danger
has passed, one is not justified in following up his adversary to take his life. The conflict for blood should
be avoided if possible.18 An assault on his person, he cannot punish when the danger or peril is over.
When the danger is over, the right of self-defense ceases. His right is defense, not retribution.19

When the accused offers the affirmative defense of self-defense, he thereby admits killing the victim or
inflicting injuries on him. The burden of evidence is shifted on the accused to prove, with clear and
convincing evidence, that he killed the victim or inflicted injuries on him to defend himself. The accused
must rely on the strength of his own evidence and not on the weakness of that of the prosecution
because if the evidence of the prosecution were weak, the accused can no longer be acquitted.20

We agree with the CA that, as gleaned, even from the testimony of the petitioner, there were two
separate but interrelated incidents that culminated in the petitioner’s stabbing and killing of the victim
Leon Lumasac. The first was the arrival of the victim, who was armed with a bolo, in the hut of Crisanto
Reguyal, looking for his brother Miguel Lumasac, whom he was angry at. The victim hacked the wall of
the house in anger. The petitioner, who was armed with a knife, tried to pacify the victim. The victim
attempted to hack the petitioner; nevertheless, the latter embraced and managed to pacify the victim.
Forthwith, Jose Calica took the bolo of the victim and threw it away. For his part, Fidel Senoja took the
petitioner’s knife. As it was, the victim was already pacified. He and the petitioner were already
reconciled.21 Fidel even gave back the knife to the petitioner.

The second incident took place when the victim demanded that Calica return his bolo as he wanted to
go home already. Because he had thrown away the victim’s bolo, Calica was, thus, impelled to give his
own. The victim then warned the petitioner three times, "May mangyayari sa iyo, kung hindi ngayon,
bukas," and left the hut. When the victim had already gone about ten meters from the hut, the
petitioner followed the victim. The victim turned around and told the petitioner, "Kung hindi lang kita
inaanak." The victim then hacked the petitioner, hitting the latter on the left side of his head and thigh.
Believing that the victim would attack him anew, the petitioner stabbed the victim frontally several
times.22 He also stabbed the victim on the left buttock. The petitioner could not recall how many times
he stabbed the victim and what parts of the latter’s body had been hit.

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

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

First. The findings of fact of the trial court and its conclusions based on the said findings are accorded by
this Court high respect, if not conclusive effect, especially when affirmed by the CA. This is because of
the unique advantage of the trial court of having been able to observe, at close range, the demeanor
and behavior of the witnesses as they testify. This rule, however, is inapplicable if the trial court ignored,
overlooked, or misinterpreted cogent facts and circumstances which, if considered, will alter or reverse
the outcome of the case. We have reviewed the records and found no justification for a reversal of the
findings of the trial court and its conclusions based thereon.
Second. The victim sustained six hack wounds and one lacerated wound. This is gleaned from the
Necropsy Report of Dr. Pura Uy, to wit:

FINDINGS: The victim lies in supine position, stocky in built; his clothing completely soaked with fresh
blood.

CHEST:

(+) stab wound 2 inches below the L nipple 4 inches deep running medially to the anterior median line.

(+) stab wound 2 inches to the L of the anterior median line at the level of the L nipple 5½ inches deep
running posteriorly.

(+) stab wound 1 inch above the L nipple 4 inches deep running inferomedially.

(+) stab wound 2 inches to the left of the anterior median line 4 inches deep running inferoposteriorly.

(+) stab wound 1 inch to the right of the anterior median line at the level of the second right intercostal
space 0.5 inch in depth.

(+) stab wound ½ inch to the right of the anterior median line at the level of the xyphoid process 3½
inches deep running superiorly.

(+) stab wound at the level of the L nipple L anterior axillary line 4½ inches in depth running superiorly to
the left armpit.

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

(+) lacerated wound on the left palm almost cutting off the proximal phalanx of the left thumb.23

Five of the wounds of the victim on his chest were fatal.24 The victim also sustained a stab wound on
the left buttock. According to the doctor, it was unlikely for the victim to have survived even with
medical attention.25 After the doctor made her initial autopsy and submitted her report, she noted that
the victim sustained a stab wound of about two inches deep at the left buttock, thus:

Q In this medico-legal report, you indicated that the cause of death of the victim is "Hypovolemic shock
2º to multiple stab wounds, chest." Will you please explain this?

A "Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang natapon na dugo gawa ng
maraming saksak na tinamo ng biktima sa kanyang dibdib ang nagbigay ng daan sa kanyang kamatayan."

Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions that is located at the back of the
victim?

A I forgot to tell you that a day after I submitted the report, the funeral parlor which attended the victim
has called my attention because of the wound at the back of the victim and I attended immediately to
see these lesions at the home of the victim. I reviewed for (sic) these lesions and I saw one lesion
located at the left buttock of the victim.

Q What is the nature of the injury?

A Stab wound, about two inches deep.

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

A It is not that fatal.

Q In your expert opinion, by the nature of the wound sustained by the victim, what could have been the
relative position of the victim in relation to his assailant?

A Based on my examination, I think the victim and the assailant were facing each other. "Masyadong
malapit."

Q How many fatal wounds have (sic) the victim sustained in his chest?

A Five fatal stab wounds on the chest.26

Considering the number, nature and location of the wounds sustained by the victim, the petitioner’s
plea of self-defense is incredible.27 It bears stressing that the petitioner resolutely denied stabbing the
victim at the buttock and insisted that he stabbed the victim frontally:

Q As a matter of fact, he sustained an injury at the back of his buttock (pigi) and when he faced you, you
stabbed him again several times?

A That is not true, Sir.

Q But you are admitting that you stabbed him several times frontally?

A Yes, Sir, because I am (sic) defending myself.

Q You also stabbed him in his left armpit?

A I don’t know, Sir.

Q But you knew that you stabbed him in his buttock?

A No, Sir.

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

A Yes, Sir.28

The testimony of the petitioner is belied by the physical evidence on record. The settled rule is that
physical evidence is evidence of the highest order; it speaks more eloquently than a hundred
witnesses.29

Third. The petitioner threw away his knife and failed to surrender it to the policemen; neither did he
inform the policemen that he killed the victim in self-defense. The petitioner’s claim that the victim was
armed with a bolo is hard to believe because he even failed to surrender the bolo.30

Fourth. The petitioner’s version of the events that transpired immediately before he stabbed the victim
does not inspire belief. He claims that when he saw the victim emerged from the hut, the victim walked
towards the petitioner saying, "Kung hindi lang kita inaanak," but hit and hacked the latter on the left
buttock.31 As gleaned from his statement, the victim was not disposed, much less determined to assault
the petitioner. And yet, the petitioner insists that without much ado, the victim, nevertheless, hit him on
the head and on the thigh with his bolo.
Fifth. According to the petitioner, the victim warned him three times before leaving the hut, "May
mangyayari sa iyo, kung hindi ngayon, bukas." The petitioner testified that shortly before the victim
uttered these words, the latter even touched the blade of the bolo to see if it was sharp.32 The
petitioner was, thus, aware of the peril to his life if he followed the victim. The petitioner, nevertheless,
followed the victim and left the hut after the victim had gone barely ten meters. He should have waited
until after the victim had already gone far from the hut before going home to avoid any untoward
incident.

Sixth. The petitioner presented his brother-in-law Ruben Dulay to corroborate his testimony that the
victim stabbed the petitioner and that this impelled the latter to stab the former. But the testimony of
Dulay contradicted the testimony of the petitioner:

Q When Exequiel Senoja stabbed Leon Lumasac several times, he immediately fell to the ground and
was fatal[ly] wounded, immediately died because of several stabs and lay (sic) down?

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

Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?

A I did not see the stabbing. What I only saw was that they were embracing each other, Sir.

Q So you are now changing your answer, you actually saw Exequiel Senoja stabbing Leon Lumasac
several times, after he was hack[ed] by Leon Lumasac?

A I did not see that Exequiel Senoja stab Leon Lumasac, Sir.33

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

Pros. Ronquillo:

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

A I did not place it, Sir.

Q So, you don’t know?

A It is vertical, Sir, but I did not place it on the record. And the hack wound on the temporal region is
oblique.

Q Were the injuries only slight?

A Yes, Sir.

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

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

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

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

The doctor gave the petitioner due medications for 30 minutes and the petitioner then went home:

Q How did it happen that you were able to kill the victim in this case Mr. Leon Lumasac?

A Because when I went out, he hacked me, Sir.

Q Were you hit by the hack made by the victim in this case?

A Yes, Sir.

Q Where?

A Here, Sir.

And Witness is pointing to his left head.

Q Where else?

A (His) right thigh.

Q In what place did this incident happen?

A In the hut of Tata Santos, Sir.

Q What is his real name?

A Crisanto Reguyal, Sir.35

If, as claimed by the petitioner, the victim stabbed him frontally, it is incredible that the victim was able
to hack the anterior part of his right thigh.

Eighth. The testimony of the petitioner that the victim stabbed him outside the hut on the left side of his
head and the anterior portion of his right thigh is belied by his testimony on direct examination that the
victim stabbed him while still inside the hut of Reguyal:

Q How did it happen that you were able to kill the victim in this case Mr. Leon Lumasac?

A Because when I went out, he hacked me, Sir.

Q Were you hit by the hack made by the victim in this case?

A Yes, Sir.

Q Where?

A Here, Sir.

And Witness is pointing to his left head.

Q Where else?
A (His) right thigh.

Q In what place did this incident happen?

A In the hut of Tata Santos, Sir.

Q What is his real name?

A Crisanto Reguyal, Sir.36

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

The question that must be resolved is whether or not the victim was the unlawful aggressor as the
appellant’s testimony pictures him to be. The Court rules in the negative. The victim had already left the
hut and was ten (10) meters away from it. There is no showing that the victim, who was drunk, was
aware that appellant was following him, or that the appellant called out to him so that he (the victim)
had to turn around and notice him. It is clear that at that point in time, the victim was simply walking
toward his home; he had stopped being an aggressor. It was the appellant who, smarting from the
earlier incident in the hut where Leon told him "hindi ka tatagal, sa loob ng tatlong araw mayroong
mangyayari sa iyo, kung hindi ngayon, bukas" repeated three times, wanted a confrontation. Appellant
stabbed or poked the victim in the left buttock resulting in the non-fatal wound, and when the latter
turned around, successively stabbed and hacked the victim in the armpit and chest until he fell. In all,
the victim suffered nine (9) wounds.

It is the well-considered finding of this Court that while Leon Lumasac had ceased being the aggressor
after he left the hut to go home, accused Exequiel Senoja was now the unlawful aggressor in this second
phase of their confrontation. It bears mentioning that appellant contradicted himself with respect for
(sic) the reason why he left the hut. First, it was to pacify Leon and the second reason was that he was
going home.

As for appellant’s injuries, it is clear that they were sustained in the course of the victim’s attempt to
defend himself as shown by the lacerated wound on the victim’s left palm, a defensive wound.37

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of the Court of Appeals
is AFFIRMED.

SO ORDERED.
[G.R. NO. 150723 : July 11, 2006]

RAMONITO MANABAN, Petitioner, v. COURT OF APPEALS and THE PEOPLE OF THE

PHILIPPINES, Respondents.

DECISION

CARPIO, J.:

The Case

This is a Petition for Review 1 of the Decision2 dated 21 May 2001 and the Resolution3 dated 8
November 2001 of the Court of Appeals in CA-G.R. CR No. 23790. In its 21 May 2001 Decision, the Court
of Appeals affirmed the Decision of the Regional Trial Court of Quezon City, Branch 219 ("trial court"),
finding Ramonito Manaban ("Manaban") guilty of the crime of homicide. In its 8 November 2001
Resolution, the Court of Appeals modified its Decision by reducing the award for loss of earning
capacity.

The Facts

The facts as narrated by the trial court are as follows:

On October 11, 1996, at around 1:25 o'clock in the morning, Joselito Bautista, a father and a member of
the UP Police Force, took his daughter, Frinzi, who complained of difficulty in breathing, to the UP
Health Center. There, the doctors prescribed certain medicines to be purchased. Needing money
therefore, Joselito Bautista, who had taken alcoholic drinks earlier, proceeded to the BPI Kalayaan
Branch to withdraw some money from its Automated Teller Machine (ATM).

Upon arrival at the bank, Bautista proceeded to the ATM booth but because he could not effectively
withdraw money, he started kicking and pounding on the machine. For said reason, the bank security
guard, Ramonito Manaban, approached and asked him what the problem was. Bautista complained that
his ATM was retrieved by the machine and that no money came out of it. After Manaban had checked
the receipt, he informed Bautista that the Personal Identification Number (PIN) entered was wrong and
advised him to just return the next morning. This angered Bautista all the more and resumed pounding
on the machine. Manaban then urged him to calm down and referred him to their customer service over
the phone. Still not mollified, Bautista continued raging and striking the machine. When Manaban could
no longer pacify him, he fired a warning shot. That diverted the attention of Bautista. Instead of venting
his ire against the machine, he confronted Manaban. After some exchange of words, a shot rang out
fatally hitting Bautista.4

On 24 October 1996, Manaban was charged with the crime of murder. The Information states:

That on or about the 11th day of October 1996, in Quezon City, Philippines, the above-named accused,
armed with a gun, and with intent to kill, qualified by treachery, did then and there wilfully, unlawfully
and feloniously attack, assault and employ personal violence upon the person of one JOSELITO
BAUTISTA, by then and there, shooting him at the back portion of his body, thereby inflicting upon said
JOSELITO BAUTISTA mortal wounds which were the direct and immediate cause of his untimely death,
to the damage and prejudice of the heirs of the said JOSELITO BAUTISTA.5
When arraigned on 4 December 1996,6 Manaban pleaded not guilty to the offense charged. Trial then
followed.

The Trial

The Prosecution's Version

The prosecution presented six witnesses: (1) Faustino Delariarte ("Delariarte"); (2) SPO1 Dominador
Salvador ("SPO1 Salvador"); (3) Rodolfo Bilgera ("Bilgera"); (4) Celedonia H. Tan ("Tan"); (5) Dr. Eduardo
T. Vargas ("Dr. Vargas"); and (6) Editha Bautista ("Editha").

Delariarte was a security guard who was employed by the same security agency as Manaban. Delariarte
testified that in the early morning of 11 October 1996, their duty officer, Diosdado Morga, called him
and informed him that one of the guards stationed at the BPI Kalayaan Branch ("BPI Kalayaan") was
involved in a shooting incident. When he arrived at the bank, Delariarte saw Manaban inside the bank
using the phone. He also saw Joselito Bautista ("Bautista") lying on the ground but still alive. He then
told their company driver, Virgilio Cancisio ("Cancisio"), to take Bautista to the hospital but to be careful
since there was a gun tucked in Bautista's waist. Bautista allegedly reeked of alcohol. Delariarte further
testified that when Manaban came out of the bank, Manaban admitted to Delariarte that he shot
Bautista.7

SPO1 Salvador was a police investigator assigned at Station 10, Philippine National Police-Central Police
District Command (PNP-CPDC) of Quezon City. SPO1 Salvador testified that on 11 October 1996, about
2:05 a.m., the duty desk officer SPO2 Redemption Negre sent him, SPO1 Jerry Abad and SPO1 Ruben
Reyes to BPI Kalayaan to investigate an alleged shooting incident. SPO1 Salvador testified that when
they arrived at BPI Kalayaan, they were met by Delariarte and Cancisio. Manaban then approached them
and surrendered his service firearm, a .38 caliber revolver, to SPO1 Salvador. Manaban allegedly
admitted shooting Bautista. SPO1 Salvador and his team investigated the crime scene. According to
SPO1 Salvador, he saw Bautista lying on his back near the Automated Teller Machine ("ATM"). A .38
caliber revolver inside a locked holster was tucked in Bautista's right waist. SPO1 Salvador noticed that
Bautista, who was still breathing, had been shot in the back. They brought Bautista to the East Avenue
Medical Center where Bautista later died. Thereafter, they proceeded to the police station and turned
over Manaban to their desk officer for proper disposition and investigation.8

Dr. Vargas, National Bureau of Investigation (NBI) Medico-Legal Officer, conducted an autopsy on
Bautista's cadaver. Dr. Vargas testified that Bautista died of a gunshot wound. According to him, the
point of entry of the bullet was at the back, on the right side of the body and there was no exit point. He
stated that he was able to recover the slug from the left anterior portion of the victim's body and that
he later submitted the slug to the NBI Ballistics Division. Dr. Vargas further stated that the bullet wound
was fatal because the bullet hit the right lung and lacerated parts of the liver, stomach and the pancreas.
Based on the location of the gunshot wound, Dr. Vargas deduced that the assailant must have been
behind the victim, on the right side, when he shot the victim.9 Dr. Vargas also testified that the absence
of signs of near-fire indicates that the distance between the muzzle of the gun and the point of entry
was more than 24 inches. During cross-examination, Dr. Vargas testified that he was able to take blood
samples from the victim which, based on the NBI Chemistry Division analysis, tested positive for
alcohol.10 Dr. Vargas issued a certificate of post-mortem examination11 and an autopsy report.12
Bilgera was a ballistician at the Firearms Investigation Division (FID) of the NBI. Bilgera testified that
upon receiving a letter-request dated 11 October 1996 from PNP Police Inspector Percival Fontanilla, he
conducted a ballistic examination on the following specimens submitted to him:

1. One (1) ARMSCOR 2015, Caliber .38 Revolver, SN-28909 marked "DBS";

2. One (1) ARMSCOR 200, Caliber .38 Revolver, SN-P03471 marked "DBS";

3. One (1) Caliber .38 one badly deformed copper coated lead bullet marked "RM";

4. Two (2) Caliber .38 empty shells marked "RM-1" and "RM-2";

5. One (1) Caliber .38 misfired ammunition marked "RM-3";

6. Nine (9) Caliber .38 ammunition marked "RM-4", "RM-5", "RM-6" and "JB-1" to "JB-6";
andcralawlibrary

7. One (1) Caliber .38 deformed copper coated lead bullet marked "JB". (Re-FID No. 606-14-1096 [N-96-
2047]).13

Based on the examination, Bilgera concluded that the bullet which was extracted from Bautista's body
by the medico-legal officer was fired from the ARMSCOR 2015 .38 Caliber revolver with Serial No.
2890914 and that the empty shells also came from the same gun. Bilgera submitted a written
report15 on the result of his examination.

Editha, the widow of Joselito Bautista, testified that she was married to Bautista on 22 December 1993
in civil rites and that they have four children, the eldest of whom was 13 years old. Editha stated that
her husband, who was a member of the University of the Philippines Police Force ("UP Police Force")
since 1985, was receiving a monthly salary of P5,050 at the time of his death. She narrated that on 11
October 1996, about 1:25 a.m., her husband brought their daughter Frinzi who had an asthma attack to
the UP Health Center where she was confined for three days. According to Editha, her husband then left
to withdraw money at BPI Kalayaan for the purchase of medicines. Later, she was fetched by members
of the UP Police Force who informed her that her husband had been shot. Editha claimed that as a
consequence of her husband's death, she spent more than P111,00016 for the nine-day wake,
embalmment and funeral services.17

The prosecution and the defense agreed to dispense with the testimony of Tan, the Assistant Manager
of BPI Kalayaan. Instead, they just agreed to stipulate that on 11 October 1996, about 7:45 a.m., Tan and
BPI Custodian Elma R. Piñano retrieved BPI Express Teller Card No. 3085-2616-21 issued to Bautista
which was captured by the ATM because a wrong Personal Identification Number (PIN) was entered.18

The Defense's Version

The defense presented four witnesses: (1) Manaban; (2) Renz Javelona ("Javelona"); (3) Tan; and (4)
Patrick Peralta ("Peralta").

Manaban, the accused, testified that he was employed by Eagle Star Security Agency as a security guard
and was assigned at BPI Kalayaan. On 10 October 1996, he was on duty from 7:00 p.m. until 7:00 a.m.
the following day.
Manaban narrated that on 11 October 1996, about 1:40 a.m., Bautista tried to withdraw money from
the ATM. Manaban then saw Bautista pounding and kicking the ATM. When Manaban asked Bautista
what was the problem, Bautista replied that no money came out from the machine. According to
Manaban, Bautista appeared to be intoxicated.

Manaban looked at the receipt issued to Bautista and saw that the receipt indicated that a wrong PIN
was entered. Manaban informed Bautista that the ATM captured Bautista's ATM card because he
entered the wrong PIN. He then advised Bautista to return the following day when the staff in charge of
servicing the ATM would be around.

Bautista replied that he needed the money very badly and then resumed pounding on the ATM.
Manaban tried to stop Bautista and called by telephone the ATM service personnel to pacify Bautista.
Bautista talked to the ATM service personnel and Manaban heard him shouting invectives and saw him
pounding and kicking the ATM again.

When Manaban failed to pacify Bautista, Manaban fired a warning shot in the air. Bautista then faced
him and told him not to block his way because he needed the money very badly. Bautista allegedly
raised his shirt and showed his gun which was tucked in his waist. Manaban stepped back and told
Bautista not to draw his gun, otherwise he would shoot.

However, Bautista allegedly kept on moving toward Manaban, who again warned Bautista not to come
near him or he would be forced to shoot him. Bautista suddenly turned his back and was allegedly about
to draw his gun. Fearing that he would be shot first, Manaban pulled the trigger and shot Bautista.

Manaban recounted that he then went inside the bank and called the police and his agency to report
the incident. While he was inside the bank, a fellow security guard arrived and asked what happened.
Manaban answered, "wala yan, lasing."

Later, a mobile patrol car arrived. Manaban related the incident to the police officer and informed him
that Bautista was still alive and had a gun. Manaban then surrendered his service firearm to the police
officer. According to Manaban, he fired his gun twice - once in the air as a warning shot and the second
time at Bautista who was about four meters from him.19

On cross-examination, Manaban further explained that after he fired the warning shot, Bautista kept
coming toward him. Manaban pointed his gun at Bautista and warned him not to come closer. When
Bautista turned his back, Manaban thought Bautista was about to draw his gun when he placed his right
hand on his waist. Fearing for his life, he pulled the trigger and shot Manaban. According to Manaban,
"[n]oong makita ko siya na pabalikwas siya, na sadya bubunot ng baril, sa takot ko na baka maunahan
niya ako at mapatay, doon ko na rin nakalabit yung gatilyo ng baril." Manaban declared that it did not
occur to him to simply disable the victim for fear that Bautista would shoot him first.20

Javelona was an ATM Service Assistant of BPI. Javelona testified that on 11 October 1996, between 1:30
a.m. and 2:00 a.m., she received a call from a client at BPI Kalayaan. The client, who was later identified
as Bautista, complained: "Nagwi-withdraw ako dito sa ATM Kalayaan. Mali daw yung PIN ko, alam ko
tama yung PIN ko. Ilang beses ko nang ginamit, mali pa rin. Kailangan kong mag-withdraw."

Javelona tried to placate Bautista and advised him not to insert his card anymore because it might be
captured by the machine and to try again later in the morning. Bautista allegedly answered angrily: "Na
capture na nga, eh! Tama na nga yung PIN number [sic]. Hindi ako pwedeng hindi makakuha ng pera.
Kailangan kong bumili ng gamot para sa anak ko. Hindi ko naman kasalanan ito." Javelona replied: "Sir,
hindi ho natin makukuha ang card ninyo ngayon kasi ang makaka-open lang ho ng ATM machine ay ang
officer ng Kalayaan Branch. Even if makuha natin ang card ninyo ngayon, hindi pa ninyo magagamit
ngayon. Magagamit lang ninyo as soon as mag-pa-encode kayo ng PIN number [sic]."

Bautista then reiterated angrily his dire need to withdraw money for the medicine of his daughter.
Javelona apologized to Bautista and informed him that there was really nothing she could do at that
time. She also advised Bautista to go back to the bank at 9:00 a.m. to get his ATM card and also to
withdraw money over the counter. Bautista refused to be pacified and started cursing so Javelona
decided to hang up the phone.21

Tan, the Assistant Manager of BPI Kalayaan, testified that when she reported for work in the morning of
11 October 1996, she discovered that the ATM was out of order. According to Tan, the ATM keyboard
was not properly mounted and the keys were damaged. Also, the telephone beside the ATM was hung
up. Tan then called Peralta, the technician, to have the ATM repaired. When Peralta opened the ATM,
they found Bautista's ATM card which was captured by the machine.22

Peralta, a Customer Engineer Specialist, testified that on 11 October 1996, BPI Kalayaan sought his
assistance regarding their ATM. When Peralta arrived at BPI Kalayaan, he talked to Tan and then
proceeded to the ATM to assess the damage. According to Peralta, the ATM keyboard was damaged and
mis-aligned.23

The Trial Court's Ruling

On 14 April 1999, the trial court rendered judgment, the dispositive portion of which reads:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Homicide, the Court
hereby sentences the accused to suffer the penalty of imprisonment ranging from FOUR (4) YEARS and
TWO (2) MONTHS of Prision Correccional, as minimum, to EIGHT (8) YEARS and ONE (1) DAY of Pris[i]on
Mayor, as maximum; to pay indemnity to the heirs of Joselito Bautista for his death in the amount
of P75,000.00; and actual damages in the amount of P111,324.00 for the nine-day wake, embalm[ing]
and funeral services, and P1,418,040.00 for the loss of Bautista's earning capacity, the last to be paid by
installment at least P3,030.00 a month until fully paid with the balance earning interest at the rate of six
percent (6%) per annum; and to pay the costs.

SO ORDERED.24

The trial court held that the defense failed to establish self-defense as a justifying circumstance.
According to the trial court, unlawful aggression, which is the most essential element to support the
theory of self-defense, was lacking in this case. The trial court found that, contrary to Manaban's claim,
Bautista was not about to draw his gun to shoot Manaban. Evidence show that Bautista's gun was still
tucked in his waist inside a locked holster. Furthermore, the trial court held that Bautista could not have
surprised Manaban with a preemptive attack because Manaban himself testified that he already had his
gun pointed at Bautista when they were facing each other. The trial court likewise rejected Manaban's
claim of exemption from criminal liability because he acted under the impulse of an uncontrollable fear
of an equal or greater injury. The trial court held that the requisites for the exempting circumstance of
uncontrollable fear under paragraph 6, Article 12 of the Revised Penal Code are not present in this case.
However, the trial court credited Manaban with two mitigating circumstances: voluntary surrender and
obfuscation.

The Court of Appeals' Ruling

On appeal, the Court of Appeals affirmed the trial court's decision. The Court of Appeals later
reconsidered and modified its decision with respect only to the award of loss of earning capacity. Using
the formula 2/3 [80 - age at the time of death] x [gross annual income - 80% gross annual income], the
Court of Appeals recomputed the award for loss of earning capacity. In its Resolution dated 8 November
2001, the Court of Appeals reduced the award for the loss of the victim's earning capacity
from P1,418,040 to P436,320.

The Issues

In his Petition for Review, Manaban submits that:

1. The Respondent Court gravely erred in affirming the erroneous factual appreciation and
interpretation by the trial court a quo in practically affirming the decision of the latter court which are
based on a clear misappreciation of facts and findings grounded entirely on speculations, surmises or
conjectures "in a way probably not in accord with law or with the applicable jurisprudence of the
Supreme Court."

2. The Respondent Court gravely erred in ignoring petitioner's self-defense on the sole fact that the
entrance of the deceased victim's wound was from the back.

3. The Respondent Court gravely erred in concluding that petitioner failed to establish unlawful
aggression just because the holster of the victim was still in a lock position.

4. Granting arguendo that petitioner made a mistake in his appreciation that there was an attempt on
the part of the deceased victim to draw his gun who executed "bumalikwas," such mistake of fact is
deemed justified.

5. Finally, the Respondent Court gravely erred in awarding exorbitant and baseless award of damages to
the heirs of deceased victim.25

The Court's Ruling

The petition is partly meritorious.

An appeal in a criminal case opens the entire case for review. The reviewing tribunal can correct errors
though unassigned in the appeal, or reverse the lower court's decision on grounds other than those the
parties raised as errors.26

Unlawful Aggression is an Indispensable Requisite of Self-Defense

When the accused invokes self-defense, he in effect admits killing the victim and the burden is shifted to
him to prove that he killed the victim to save his life.27 The accused must establish by clear and
convincing evidence that all the requisites of self-defense are present.28

Under paragraph 1, Article 11 of the Revised Penal Code, the three requisites to prove self-defense as a
justifying circumstance which may exempt an accused from criminal liability are: (1) unlawful aggression
on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the
aggression; and (3) lack of sufficient provocation on the part of the accused or the person defending
himself.29 Unlawful aggression is an indispensable requisite of self-defense.30 Self-defense is founded
on the necessity on the part of the person being attacked to prevent or repel the unlawful
aggression.31 Thus, without prior unlawful and unprovoked attack by the victim, there can be no
complete or incomplete self-defense.32

Unlawful aggression is an actual physical assault or at least a threat to attack or inflict physical injury
upon a person.33 A mere threatening or intimidating attitude is not considered unlawful
aggression,34 unless the threat is offensive and menacing, manifestly showing the wrongful intent to
cause injury.35 There must be an actual, sudden, unexpected attack or imminent danger thereof, which
puts the defendant's life in real peril.36

In this case, there was no unlawful aggression on the part of the victim. First, Bautista was shot at the
back as evidenced by the point of entry of the bullet. Second, when Bautista was shot, his gun was still
inside a locked holster and tucked in his right waist. Third, when Bautista turned his back at Manaban,
Manaban was already pointing his service firearm at Bautista. These circumstances clearly belie
Manaban's claim of unlawful aggression on Bautista's part. Manaban testified:

ATTY. ANCANAN

Q: You said the victim showed his gun by raising his shirt?cralawlibrary

A: Yes, sir.

Q: The victim never drew his gun?cralawlibrary

A: He was about to draw the gun when he turned around.

Q: My question is when the victim was facing you, the victim never drew his gun?cralawlibrary

A: Not yet, sir.

Q: And when you told the victim not to come close, he did not come closer anymore?cralawlibrary

A: He walked towards me, sir.

Q: For how many steps?cralawlibrary

A: I cannot remember how many steps.

Q: And according to you, while he was facing you and walking towards you he suddenly turned his back
to you, is that correct?cralawlibrary

A: Bumalikwas po at parang bubunot ng baril.

Q: Let us get the meaning of "bumalikwas", tumalikod sa iyo?cralawlibrary

A: Bumalikwas po (witness demonstrating).

Q: Will you please demonstrate to us how the victim "bumalikwas"?cralawlibrary

A: When he was facing me and I told him, "Sir, you just be there otherwise I am going to take the gun"
and at that moment, he, the victim turned his back and simultaneously drew the gun.

Q: When he was facing you, the victim never drew his gun, is that correct?cralawlibrary

A: Not yet, sir.

Q: And according to you, it was at that point when he turned his back on you that he tried to draw his
gun?cralawlibrary

A: Yes, sir.

Q: You said that he tried to draw, but the fact is he merely placed his hand on his waist?cralawlibrary

A: No, sir, when I saw him, when he was hit, I saw him, the hand was already on the gun but still tucked
on his waist (witness places his hand on his right waist with fingers open).

Q: And it was at that precise moment while the victim's back was turned on you that you fired your
shot?cralawlibrary

A: When he was about to turn his back and it seems about to take his gun, that is the time I shot him
because of my fear that he would be ahead in pulling his gun and he might kill me.

Q: When you said, when you fired your shot, the victim's gun was still tucked in his right waist, is that
correct?cralawlibrary

A: Yes, sir, his hand was on his waist.

Q: You just answer the question. Was the victim's gun still tucked on his waistline?cralawlibrary

A: Yes, sir.

Q: And his hand was merely placed on his hips. The victim's right hand was merely placed on his right
hip?cralawlibrary

ATTY. CARAANG

I object. The witness testified that he was about to draw his gun.

COURT

He is asking the question so he has to answer.

A: No, sir, the gun was on his waist.

ATTY. ANCANAN

Q: At the precise time that you fired your second shot, you could have aimed your gun at the extremities
of the victim, meaning legs or arms, is that correct?cralawlibrary

A: When I saw him that he was about to draw his gun because of my fear that he would get ahead of me
and he would kill me, I did not mind anymore, I just inunahan ko siya.

ATTY. CARAANG
May I request that the answer of the witness be quoted as is?

A: Noong makita ko siya na pabalikwas siya, na sabay bubunot ng baril, sa takot ko na baka maunahan
niya ako at mapatay, doon ko na rin nakalabit yung gatilyo ng baril ko.

ATTY. ANCANAN

Q: Mr. Witness, how long have you been a security guard before this incident?cralawlibrary

A: Around 7 months, sir.

Q: Now, before you were employed as security guard by the Eagle Star Security Agency, did you undergo
any training as a security guard?cralawlibrary

A: Yes, sir.

Q: Where?cralawlibrary

A: Camp Crame, sir.

Q: For how long?cralawlibrary

A: Three (3) days, sir.

Q: And what did you learn from those 3 days training as security guard?cralawlibrary

A: Our duties as security guard were lectured to us, sir.

Q: Now, were you not taught during the training that in any given situation, your first duty is to disable
first an aggressor?cralawlibrary

ATTY. CARAANG

Objection, your Honor, I think that is no longer material besides, that is not part of my direct
examination.

COURT

Witness may answer.

A: It was taught to us, sir, but it depends on my situation. If the person kept on doing what I told him not
to do and it would reach a point that it would endanger my life, of course even if you were in my place,
you would do the same thing, so nakipagsabayan na ako, sir.

Q: But in this particular case when you fired your second shot, the victim's back was towards you, is that
not correct?cralawlibrary

ATTY. CARAANG

Objection, already answered, your Honor.

COURT

Witness may answer.

A: No, sir, I shot him only once, not twice.

Q: Please answer the question. When you fired your second shot . . .

A: Bumalikwas ho 'yon eh.

Q: Please answer the question.

A: Yes, sir.

Q: And because his back was towards you, you could have easily disabled him by firing at his leg or at his
arms, is that not correct?

ATTY. CARAANG

I object, your Honor, it was already answered. He said he was not given the opportunity to have a
second thought and at that moment he was able to pull the trigger of his gun.

ATTY. ANCANAN

The witness already admitted that when he fired his gun, the victim's back was towards the witness, so
my last question is just a follow-up.

ATTY. CARAANG

But the witness testified that he was not given the opportunity to have a second thought, that is why
right then and there, he pulled the trigger of his gun.

COURT

Objection noted, witness may answer.

A: What I was thinking at that time, was just to disarm him but when he turned, bumalikwas, and I saw
that he was going to draw a firearm and that was when I decided to "makipagsabayan."

xxx xxx xxx

RE-DIRECT EXAMINATION

ATTY. CARAANG

Q: Mr. Witness, when you and the victim were facing each other, the gun was already pointed to him, is
it not? Your gun?cralawlibrary

A: Yes, sir, I pointed my gun at him.37

The allegation of Manaban that Bautista was about to draw his gun when he turned his back at
Manaban is mere speculation. Besides, Manaban was already aiming his loaded firearm at Bautista
when the latter turned his back. In that situation, it was Bautista whose life was in danger considering
that Manaban, who had already fired a warning shot, was pointing his firearm at Bautista. Bautista, who
was a policeman, would have realized this danger to his life and would not have attempted to draw his
gun which was still inside a locked holster tucked in his waist. Furthermore, if Manaban really feared
that Bautista was about to draw his gun to shoot him, Manaban could have easily disabled Bautista by
shooting his arm or leg considering that Manaban's firearm was already aimed at Bautista.

Aggression presupposes that the person attacked must face a real threat to his life and the peril sought
to be avoided is imminent and actual, not imaginary.38 Absent such actual or imminent peril to one's
life or limb, there is nothing to repel and there is no justification for taking the life or inflicting injuries on
another.39

Voluntary Surrender and Obfuscation

The trial court credited Manaban with two mitigating circumstances: voluntary surrender and
obfuscation.

It is undisputed that Manaban called the police to report the shooting incident. When the police arrived,
Manaban surrendered his service firearm and voluntarily went with the police to the police station for
investigation. Thus, Manaban is entitled to the benefit of the mitigating circumstance of voluntary
surrender.

On obfuscation, we find that the facts of the case do not entitle Manaban to such mitigating
circumstance. Under paragraph 6, Article 13 of the Revised Penal Code, the mitigating circumstance of
passion and obfuscation is appreciated where the accused acted upon an impulse so powerful as
naturally to have produced passion or obfuscation. The requisites of the mitigating circumstance of
passion or obfuscation are: (1) that there should be an act both unlawful and sufficient to produce such
condition of mind; and (2) that the act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the perpetrator might recover
his normal equanimity.40

In his testimony, Manaban admitted shooting Bautista because Bautista turned around and was
allegedly about to draw his gun to shoot Manaban. The act of Bautista in turning around is not unlawful
and sufficient cause for Manaban to lose his reason and shoot Bautista. That Manaban interpreted such
act of Bautista as preparatory to drawing his gun to shoot Manaban does not make Bautista's act
unlawful. The threat was only in the mind of Manaban and is mere speculation which is not sufficient to
produce obfuscation which is mitigating.41 Besides, the threat or danger was not grave or serious
considering that Manaban had the advantage over Bautista because Manaban was already pointing his
firearm at Bautista when the latter turned his back. The defense failed to establish by clear and
convincing evidence the cause that allegedly produced obfuscation.

Award of Damages

The records42 reveal that Bautista was 36 years old at the time of his death and not 26 years old as
stated by the trial court and the Court of Appeals.43 Moreover, the annual salary of Bautista at the time
of his death was already P60,864 and not P60,600.44 We likewise modify the formula applied by the
Court of Appeals in the computation of the award for loss of earning capacity. In accordance with
current jurisprudence,45the formula for the indemnification for loss of earning capacity is:

Net Earning = Life Expectancy x [Gross Annual - Living Expenses]

Capacity Income (GAI)
 = 2/3(80 - age of deceased) x (GAI - 50% of GAI)

Using this formula, the indemnification for loss of earning capacity should be:

Net Earning = 2/3 (80 - 36) x [P60,864 - (50% x P60,864)]

Capacity

= 29.33 x P30,432

= P892,570.56

With regard to actual damages, the records show that not all the expenses that the Bautista family
allegedly incurred were supported by competent evidence. Editha failed to present receipts or any other
competent proof for food expenses and rental fee for jeeps for the funeral. Editha merely submitted a
typewritten "Summary of Food Expenses & Others."46 A mere list of expenses, without any official
receipts or any other evidence obtainable, does not to prove actual expenses incurred.47 Competent
proof of the actual expenses must be presented to justify an award for actual damages.48 In this case,
only the following expenses were duly supported by official receipts and other proof :

1. Embalming fee49 P11,000

2. Bronze Casket50 25,000

3. Cadillac Hearse fee51 3,500

4. Funeral Services52 30,000

Total P69,500

Thus, we reduce the actual damages granted from P111,324 to P69,500.

We likewise reduce the indemnity for death from P75,000 to P50,000 in accordance with prevailing
jurisprudence.53

WHEREFORE, we AFFIRM with MODIFICATION the Decision of the Court of Appeals dated 21 May 2001
and its Resolution dated 8 November 2001. We find petitioner Ramonito Manaban guilty beyond
reasonable doubt of the crime of Homicide. Applying the Indeterminate Sentence Law and taking into
account the mitigating circumstance of voluntary surrender, Ramonito Manaban is hereby sentenced to
suffer an indeterminate penalty ranging from six years and one day of prision mayor as minimum to 12
years and one day of reclusion temporal as maximum. Ramonito Manaban is ordered to pay the heirs of
Joselito Bautista: P892,570.56 as indemnity for loss of earning capacity; P69,500 as actual damages;
and P50,000 as indemnity for death.

SO ORDERED.
G.R. No. 155094 January 30, 2007

MANUEL O. ORIENTE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

For review before the Court are the Decision1 dated February 14, 2002 of the Court of Appeals (CA)
which affirmed the Decision of the Regional Trial Court of Quezon City, Branch 103 (RTC), dated
November 15, 1999, in Criminal Case No. 96-65313, finding Manuel Oriente (petitioner) guilty of the
crime of Homicide; and the CA Resolution2dated September 9, 2002 which denied petitioner’s Motion
for Reconsideration.

An Information dated March 18, 1996 was filed with the RTC charging the petitioner with the crime of
Murder, committed as follows:

That on or about the 16th day of March 1996, in Quezon City, Philippines, the said accused conspiring,
confederating with three other persons whose true names and whereabouts have not as yet been
ascertained and mutually helping one another, with intent to kill, qualified by evident premeditation and
treachery, taking advantage of superior strength, did then and there willfully, unlawfully and feloniously
attack, assault and employ personal violence upon the person of one ROMULO CARIÑO Y VALLO by then
and there hitting him with a lead pipe on the different parts of his body thereby inflicting upon him
serious and mortal wounds which were the direct and immediate cause of his death, to the damage and
prejudice of the heirs of the victim.

CONTRARY TO LAW.3

Upon arraignment, petitioner pleaded not guilty to the crime charged. Thereafter, trial on the merits
ensued.

The evidence presented by the parties, as summarized by the CA, are as follows:

The prosecution’s version of the case is as follows:

On 16 March 1996, at around 10:00 o’clock in the evening, Arnel Tanael was on his way to the house of
Romulo Cariño y Vallo at No. 40 Lukban Street, Area 9, Luzon Avenue, Brgy. Pasong Tamo, Tandang Sora,
Quezon City. He passed in front of the house of [petitioner] Manuel Oriente and saw the latter and his
companions having a drinking spree at the terrace of the [petitioner’s] house. He arrived at Romulo’s
house where the latter was drinking beer alone. Thereafter, Romulo went out of the house to buy
cigarette. While watching television in the house of Romulo, Arnel Tanael heard two gunshots. Hence,
he rushed outside the house to check on what the gunshots were all about.

Peeping through potted plants (about 3 feet high) perched on top of a neighbor’s fence (about 2 feet
high), and at a distance of more or less eight (8) meters, he saw Romulo Cariño, [petitioner] Manuel
Oriente, the latter’s daughter Marilou Lopez and the latter’s husband, Paul Lopez and one Rogelio
Gascon arguing along the alley beside the concrete fence in front of Manuel Oriente’s house where
there was a lighted fluorescent light. He heard Paul Lopez telling Romulo Cariño, "Ikaw Cariño, and liit-
liit mo, and yabang mo!" Then Arnel Tanael saw Marilou coming out from their house with a lead pipe
and handed it over to Paul. Paul then hit Romulo with a lead pipe at his right arm. Accused-appellant got
the lead pipe from Paul and hit Romulo on his left eyebrow. Romulo reeled and fell down. Upon seeing
Romulo fall down, Arnel got confused, hence, he went back inside the house and switched off the light
and turned the television off. He went outside again and saw Romulo moaning. At this point, Paul Lopez
was already poking a gun at Romulo, then pulled the trigger twice but the gun did not fire. Arnel then
shouted, "Putang ina ninyo, bakit niyo ginagawa iyan sa bayaw ko, bakit ninyo ginaganito siya, ano ba
ang kasalanan niya sa inyo." Oriente and his company did not say anything. Arnel carried Romulo and
brought the latter inside the house. He called up Mario at the Panabuilt Transport office to get a cab.
When the cab arrived, Romulo Cariño was brought by Arnel to the East Avenue Medical Center where
Romulo, two hours after, passed away.

Dr. Roberto Garcia, the NBI Medico-Legal Officer who conducted the post-mortem examination on the
victim’s cadaver declared that the cause of death of Romulo Cariño was traumatic head injury. He
opined that even with immediate and adequate medical attendance, the victim would not have survived
due to the extensive nature of hemorrhage suffered by Romulo.

In an attempt to exculpate [the petitioner], the defense gave the following version:

On the night of the commission of the crime, [petitioner] Manuel Oriente was fetched by Tanod
members in their area to attend a wake. It was already the Tanods’ off-duty. While he was on his way
out of the house, he saw spouses Paul and Malou and his granddaughter inside the car going out of the
garage. The three went to visit Malou’s in-laws.

At the gate of his house, while having a conversation with the Tanod members who fetched him, they
heard two gunshots coming from downhill. They noticed that the person who fired the shots was
walking towards them. They waited for him to pass by. This person was Romulo Cariño. When the latter
reached a store, which is a fence away from Oriente’s house, the latter asked Romulo what was his
problem. Suddenly, Cariño extended his arms and poked [his] gun to Oriente and his companions.
Romulo told them not to get near him or he will shoot and kill all of them. Surprised by the victim’s
response and for fear of being shot, [petitioner] Oriente stepped back towards his yard and was able to
take hold of a piece of wood and hit Romulo. [Petitioner] Oriente mentioned that he does not know if he
hit Cariño’s hands, eyebrow and other parts of his body with that single blow but he saw Romulo Cariño
lose his balance, fall and hit his head on the ground. The victim was still holding the gun. After five
seconds, Romulo Cariño stood up and ran (pasuray-suray) towards the direction of his house. Fearing
that Cariño will shoot them if they would go after him, [petitioner] Oriente told the Tanods that they will
just attend to him the following day. [Petitioner] Oriente further testified that he had no intention of
killing Cariño and that his purpose was only to disarm him.4

The RTC rendered a Decision dated November 4, 1999 convicting the petitioner of the crime of
Homicide. The dispositive portion of the Decision states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE Y ORILLO GUILTY
beyond reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized by the Revised
Penal Code with two (2) mitigating circumstances of lack of intent to commit so grave a wrong and
sufficient provocation and so he is hereby sentenced to suffer a jail term of Six (6) Months of Arresto
Mayor as minimum and Four Years and One (1) Day of Prision Correctional as maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the victim
Romulo Carino y Orillo the sum of P41,500.00 as actual damages and P50,000.00 as indemnification
damages.

Costs against the accused.

SO ORDERED.5

However, on November 12, 1999, before the foregoing judgment became final and executory, the RTC
issued an Order motu proprio setting aside the said judgment because of a mistake in the "judgment
proper" and requiring both petitioner and his counsel to appear before the court on November 17,
1999.6

On the latter date, the RTC promulgated its second Decision dated November 15, 1999, the dispositive
portion of which states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE y Orillo GUILTY
beyond reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized by the Revised
Penal Code with two (2) mitigating circumstances of lack of intent to commit so grave a wrong and
sufficient provocation and so, applying Article 64, paragraph 5, of the Revised Penal Code and also the
Indeterminate Sentence Law, [the] accused is hereby sentenced to suffer an indeterminate jail term of
Four (4) Years, Two (2) Months and One (1) Day of Prision Correccional as minimum and Eight (8) Years
and One (1) Day of Prision Mayor as maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the victim
Romulo Cariño y Vallo the sum of P41,500.00 as actual damages and P50,000.00 as indemnification
damages.

Costs against the accused.

SO ORDERED.7 (Emphasis supplied)

The RTC found that the testimonies of the defense witnesses, including the petitioner, are incredible;
that the victim suffered extensive head injuries; that the defense failed to show any imminent threat or
danger to the life of the accused; that the accused has in his favor the mitigating circumstance of lack of
intent to commit so grave a wrong under Article 4 of the Revised Penal Code; that there was sufficient
provocation on the part of the victim since the incident was preceded by an intense argument, and,
therefore, the provocation qualifies as another mitigating circumstance in favor of the petitioner; that
treachery is not present since there was an altercation immediately preceding the incident; that the
prosecution failed to prove the elements of evident premeditation; that there is no clear showing that
the accused took advantage of superior strength; and, finally, that the prosecution duly proved actual
damages amounting to P38,500.00 for the funeral services and P3,000.00 for the cemetery lot and
religious services, while the other expenses were not supported by evidence.
The petitioner appealed to the CA. On February 14, 2002, the CA rendered its Decision, the dispositive
portion of which states:

WHEREFORE, in view of the foregoing, the decision dated 4 November 1999 rendered by the trial court
is hereby AFFIRMED with MODIFICATION that the penalty imposed is an indeterminate prison term
of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of
reclusion temporal as maximum, and to indemnify the heirs of the deceased Romulo Cariño y Vallo in
the amount of Fifty Thousand (P50,000.00) Pesos.

SO ORDERED.8 (Emphasis supplied)

The CA held that there is no cogent reason to depart from the findings of the RTC convicting the
petitioner; that, at most, the inconsistencies of prosecution witness Arnel Tanael refer to minor details
only, which tend to strengthen, rather than weaken, his credibility, and, moreover, prove that his
testimony was unrehearsed; that, all in all, the testimonies of the prosecution witnesses are highly
credible; that the evaluation of the testimonies of the eyewitnesses by the RTC should be accorded
great weight and respect; that the testimony of Tanael on the injuries inflicted on the victim is
supported by the findings of the NBI medico-legal officer as stated in the post mortem report; that the
detailed testimony of a witness in homicide cases acquires greater weight and credibility if it
corresponds with the autopsy report; that the mere fact that the judge who penned the decision was
not the same judge who heard the testimonies of the witnesses does not ipso facto render the decision
erroneous, more so when the judgment appears to be fully supported by the evidence on record; that
the alleged act of the victim poking the gun at the petitioner and his companions does not constitute
unlawful aggression, an essential requirement for self-defense, since the mere aiming of the gun and
threat to kill merely constitute a threat or intimidating attitude which does not amount to an actual and
unexpected attack or imminent danger thereof; and that the accused did not resist but went peacefully
with the police authorities when the latter invited the petitioner to the station does not amount to
voluntary surrender.

Finding that the RTC erred in finding that two mitigating circumstances were present, namely, lack of
intent to commit so grave a wrong and sufficient provocation or threat on the part of the offended party
immediately preceding the act, the CA modified the penalty imposed by the RTC. According to the CA,
the extensive nature of the injuries as stated in the post-mortem findings negates the contention of the
petitioner that he had no intention of killing the victim because his purpose was only to disarm him; and
the provocation, if any, done by the victim was not immediate to the act of petitioner’s beating the
victim, since a certain Paul Lopez had already previously assaulted the victim, and, moreover, there was
a sufficient interval of time between the provocation of the offended party and the commission of the
crime by the petitioner.

Hence, herein petition for review raising the following assignment of errors:

A.

THE HON. COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT
THAT THE ACCUSED IS GUILTY OF HOMICIDE ALTHOUGH IT WAS OBVIOUS THAT THE LOWER COURT
FOUND OUT THAT THERE WAS NO INTENT ON THE PART OF THE PETITIONER TO COMMIT SAID CRIME
AND THERE WAS NO PROVOCATION AT ALL ON HIS PART;
B.

THE HON. COURT OF APPEALS AND THE REGIONAL TRIAL COURT BELOW ERRED IN NOT APPRECIATING
THAT THERE WAS AN UNLAWFUL AGGRESSION ON THE PART OF THE VICTIM, AND THE MEANS
EMPLOYED BY PETITIONER TO PREVENT THE SAME WAS REASONABLE AND FALLS UNDER THE
JUSTIFYING CIRCUMSTANCES OR SELF-DEFENSE;

C.

THE HON. COURT OF APPEALS AND THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF THE LONE ALLEGED EYE WITNESS, WHEN SAID TESTIMONY HAS FULL OF
INCONSISTENCIES; AND

D.

THE HON. COURT OF APPEALS HAS COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK
OF JURISDICTION WHEN IT MODIFIED THE DECISION OF THE REGIONAL TRIAL COURT, INCREASING THE
PENALTY THEREOF WITHOUT ANY DISCUSSION OR EXPLANATION IN THE DECISION ITSELF WHY SAID
MODIFICATION OF PENALTY IS NECESSARY AND IN ACCORDANCE WITH LAW.

The Court affirms the conviction of the petitioner except as to damages and the penalty imposed.

The petitioner emphasizes that the victim, allegedly a troublemaker in the vicinity, was drunk, fired his
gun twice, and then proceeded towards the petitioner and his companions. Petitioner argues that the
victim’s act of poking the gun at him constitutes unlawful aggression sufficient to warrant his claim of
self-defense.

The Court is not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was
legally justified. Having owned the killing of the victim, the accused should be able to prove to the
satisfaction of the Court the elements of self-defense in order to avail of this extenuating circumstance.
He must discharge this burden by clear and convincing evidence. When successful, an otherwise
felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused.

Self-defense requires that there be (1) an unlawful aggression by the person injured or killed by the
offender, (2) reasonable necessity of the means employed to prevent or repel that unlawful aggression,
and (3) lack of sufficient provocation on the part of the person defending himself. All these conditions
must concur.9 There can be no self-defense, whether complete or incomplete, unless the victim had
committed unlawful aggression against the person who resorted to self-defense.10

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and
unexpected attack or imminent danger on the life and limb of a person – not a mere threatening or
intimidating attitude – but most importantly, at the time the defensive action was taken against the
aggressor.11 To invoke self-defense successfully, there must have been an unlawful and unprovoked
attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the
assailant by employing reasonable means to resist the attack.12
The petitioner’s plea of self-defense contradicts common knowledge and experience. No better test has
yet been found to measure the value of a witness’ testimony than its conformity to the knowledge of
mankind.13

The Court agrees with the findings of the RTC which are supported by the evidence on record:

The testimonies of the defense witnesses, including the accused, that Cariño threatened the persons
gathered in front of Oriente’s house with a gun is quite difficult to believe in view of the admissions of
the same defense witnesses, including the accused, that Cariño was able to get up from the ground after
being hit and ran away with gun in hand. A person who was already threatening to kill with a gun and
who was then hit with a piece of wood in a serious manner, can be reasonably expected to make use
thereof. Here, the defense makes a rather unusual claim that Cariño simply ran away and did not use
the gun he was holding while running.

The testimony of Arnel Tanael that Cariño did not run away but he got him at the place where he fell in
the alley beside Oriente’s house appears more credible and reasonable than that of the defense.

Moreover, considering the extensive injuries suffered by Cariño – several contusions on the face and
head fractures – it is doubtful that a person in that condition, aggravated by what the defense claimed
to be Cariño’s state of stupor (drunk and "pasuray-suray"), could still run, much less hold a handgun
while running.

In his testimony, the accused stated that Cariño walked towards him and his companions saying: "Don’t
come near me. I will shoot all of you. I will kill all of you." In the first place, why will Cariño utter such
statements when there was no evidence by the defense that the accused and/or any of his companions
at that time – 10:00 in the evening of March 16, 1996 – and place – in front of the house of the accused
at Brgy. Pasong Tamo, Q.C. – were in the act of arresting Cariño. In the second place, the alleged
statement of Cariño: "Don’t come near me," shows that there were then persons in the act of going near
him. In the third place, if indeed as claimed, Cariño was poking his gun with both arms extended at
Oriente and his Tanod-companions, it is quite difficult to appreciate how he could not have seen the
person in the act of hitting him right across his face and, as he allegedly threatened, how he could not
have shot that person too[,] instinctive self-defense[,] instead of running away with gun in hand.14

Not that the RTC is alone. The CA, too, aptly observed:

x x x We find the testimony of [defense] witnesses highly incredible. Their version is that Cariño, after he
was hit with the lead pipe, fell on the ground still holding a gun. Thereafter, he just stood up and ran
away. It is surprising, however, why these Tanod members including accused-appellant did not wrestle
for the gun when they had all the opportunities to do so when Cariño fell down, if there was indeed a
threat to their life and limb. And letting an armed man go would not be the normal reaction of persons
in charge of peace and order in the community, especially if the armed man had previously threatened
to shoot them. The only logical conclusion is that Cariño was not a threat to them and to their
community, for as accused-appellant testified, "they will just deal with him the following day."15

Noteworthy is the testimony of NBI Medico-Legal Officer, Dr. Roberto Garcia, on his findings from his
post-mortem examination of the cadaver of the victim that the cause of death was traumatic head
injury, viz:
1. abrasion, right forearm;

2. contused-abrasion, left temple;

3. lacerated wounds above the left eyebrow; over the left eyebrow;

4. hematomas orbital, left. Scalp frontal region, left side;

5. fractures, skull

6. hemorrhages: extensive

7. visceral organs, congested.16

On cross-examination, Dr. Garcia opined that even with immediate and adequate medical attendance,
the victim would not have survived considering the extensive nature of the hemorrhages found.17 As
the RTC held:

[C]onsidering the extensive injuries suffered by the victim – several contusions on the face and head
fractures – it is doubtful that a person in that condition, aggravated by what the defense claimed to be
Cariño’s state of stupor (drunk and "pasuray-suray"), could still run, much less hold a handgun while
running.18

Thus, the defense failed to establish the existence of the gun being pointed at petitioner to constitute
unlawful aggression on the part of the victim.

While petitioner avers that the testimony of Arnel Tanael is burdened with improbabilities and
inconsistencies, after having owned the crime, however, the burden of proof is reversed and, therefore,
he cannot simply protest that the evidence of the prosecution is weak. It then becomes incumbent upon
petitioner to rely on the strength of his own evidence and not on the weakness of the evidence of the
prosecution, for even if the latter were weak, it could not be disbelieved after he had admitted the
killing. Hence, if the accused fails to discharge the burden of proof, his conviction must ensue as a
matter of consequence.19

The petitioner insists that the CA erred in modifying the RTC’s decision by increasing the penalty
imposed upon him. It is settled that in a criminal case, an appeal throws the whole case

open for review, and it becomes the duty of the appellate court to correct such errors as may be found
in the judgment appealed from, whether they are made the subject of assignment of errors or
not,20 including the propriety of the imposable penalty.21

There is also no point in considering petitioner’s argument that the RTC promulgated two decisions and,
by doing so, he was placed in double jeopardy.

Courts have the inherent power to amend their decisions to make them conformable to law and justice.
This prerogative, however, is not absolute. The rules do not contemplate amendments that are
substantial in nature.22They merely cover formal changes or such that will not affect the crux of the
decision, like the correction of typographical or clerical errors. Courts will violate due process if they
make substantial amendments in their decisions without affording the other party the right to contest
the new evidence presented in a motion for reconsideration.23 The Court finds that the change in the
penalty by the RTC in the instant case did not involve the consideration of any new evidence but a mere
"correction" of the penalty imposed to conform with the Revised Penal Code and The Indeterminate
Sentence Law.

And as the Solicitor General correctly noted, the trial court modified the penalty in its Decision dated
November 15, 1999 before the petitioner could perfect his appeal from the first Decision dated
November 4, 1999 which was promulgated on November 10, 1999. Noteworthy is that it was the RTC’s
second Decision dated November 15, 1999 which the petitioner elevated on appeal to the CA. It is well
settled that when an accused appeals from the sentence of the trial court, he waives the constitutional
safeguard against double jeopardy, and, as discussed above, throws the whole case open to the review
of the appellate court, which is then called to render judgment as the law and justice dictate, whether
favorable or unfavorable, and whether they are made the subject of assigned errors or not. This precept
should be borne in mind by every lawyer of an accused who unwittingly takes the risk involved when he
decides to appeal his sentence.24

As to the mitigating circumstances, the CA is correct in finding that the RTC erred in appreciating in favor
of the petitioner the mitigating circumstances of lack of intent to commit so grave a wrong and sufficient
provocation on the part of the victim, Romulo Cariño.

On the first circumstance, the RTC held:

According to the accused, he did not intend to kill Cariño. In turn, Cariño did not die immediately from
his wounds as he still lived for around two (2) hours after his body was taken to the hospital. This fact
and the fact that Cariño was hit by a hard, blunt object, convince [sic] this court that the intent of the
accused to kill Cariño appears to be reasonably doubtful. . . .25

However, the CA correctly took into consideration the post-mortem findings of the NBI medico-legal
expert and his testimony that even with immediate and adequate medical attendance, the victim would
not have survived due to the extensive nature of the hemorrhage suffered by the victim. The brute force
employed by the petitioner contradicts the claim that he had no intention to kill the victim. The
mitigating circumstance of lack of intent to commit so grave a wrong as that actually perpetrated cannot
be appreciated where the acts employed by the accused were reasonably sufficient to produce and did
actually produce the death of the victim.26

On the second circumstance, the RTC pointed to the fact that the incident was preceded by an intense
argument between the victim and the accused so as to qualify the situation as a mitigating circumstance
of sufficient provocation or threat on the part of the offended party which immediately preceded the
act.27

Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of
exciting, inciting, or irritating anyone. In order to be mitigating, provocation must be sufficient and
should immediately precede the act. Provocation is sufficient if it is adequate to excite a person to
commit the wrong, which must accordingly be proportionate in gravity. That the provocation must
immediately precede the act means that there should not be any interval of time between the
provocation by the offended party and the commission of the crime by the person provoked.28

The fact that a heated or intense argument preceded the incident is not by itself the sufficient
provocation on the part of the offended party as contemplated by law. Moreover, petitioner failed to
establish by competent evidence that the victim had a gun and used it to threaten petitioner.
With respect to the other aggravating circumstances of treachery, evident premeditation, and grave
abuse of superior strength, the Court likewise agrees with the findings of the RTC, as affirmed by the CA,
that none of these circumstances are present for lack of evidence.

Thus, the CA is partly correct in modifying the penalty imposed by the RTC. The RTC imposed an
indeterminate prison term of four (4) years, two (2) months and one (1) day of prision correccional as
minimum to eight (8) years and one (1) day of prision mayor as maximum, while the CA adjusted the
sentence upwards since no mitigating circumstances attended the crime, and imposed an indeterminate
prison term of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one
(1) day of reclusion temporal as maximum. Article 249 of the Revised Penal Code provides that any
person found guilty of homicide shall be punished by reclusion temporal, i.e., twelve (12) years and one
(1) day to twenty (20) years. Applying Section 1 of the Indeterminate Sentence Law, the minimum term
of the sentence shall be within the range of the penalty next lower, which is prision
mayor, i.e., anywhere between six (6) years and one (1) day to eight (8) years. The CA appropriately
exercised its discretion when it imposed six (6) years and one (1) day of prision mayor as the minimum
term.

However, the CA erred in imposing twelve (12) years and one (1) day of reclusion temporal as the
maximum term of the indeterminate sentence. In the computation of the maximum term, the law
prescribes that the attending circumstances should be considered. There being no aggravating or
mitigating circumstance in this case, the penalty that should be imposed is the medium period of the
penalty prescribed by law,29 that is, reclusion temporal in its medium period, or, anywhere between
fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.

And last, the CA, without reason, omitted a portion of the award of damages by the RTC in the civil
aspect of the case, namely, the amount of actual damages which comprised the expenses for the
cemetery lot and religious services. In particular, the RTC held that the prosecution was able to prove
actual damages amounting to P41,500.00 based on supporting evidence,30 in addition to the death
indemnity of P50,000.00 as required by current jurisprudence.31 On the other hand, the dispositive
portion of the CA judgment merely ordered petitioner to indemnify the heirs of the deceased victim in
the amount of P50,000.00.

The Court restores the full amount of actual damages originally awarded by the RTC.

Moral damages are not awarded for lack of basis in fact and law.32 No witnesses testified to prove the
existence of the factual basis therefor.

Pursuant to Article 2230 of the Civil Code, in criminal offenses, exemplary damages may be imposed
when the crime is committed with one or more aggravating circumstances. Considering that no
aggravating circumstance is present in this case, the lower courts are correct in not awarding exemplary
damages.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals
are AFFIRMED with MODIFICATION. The petitioner is found GUILTY beyond reasonable doubt of
Homicide and is sentenced to suffer the penalty of an indeterminate sentence of six (6) years and one
(1) day of prision mayor as minimum to fourteen (14) years, eight (8) months, and one (1) day, as
maximum. The petitioner is further ordered to pay the heirs of the victim the amounts of P50,000.00 as
death indemnity and P41,500.00 as actual damages.

SO ORDERED.

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-23249 November 25, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Florencio Villamor and
Attorney Concepcion F. Torrijos for plaintiff-appellee.

Accused-appellant in her own behalf.

MUÑOZ PALMA, J.:p

Convicted for having killed her husband, Cunigunda Boholst-Caballero seeks a reversal of the judgment
of the Court of First Instance of Ormoc City finding her guilty of PARRICIDE and sentencing her "to suffer
an indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of prision mayor in its
medium period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY
of reclusion temporal in its medium period as the maximum; to indemnify the heirs of Francisco
Caballero in the sum of SIX THOUSAND PESOS (P6,000.00) without subsidiary imprisonment in case of
insolvency, and to pay the costs", and prays for an acquittal based on her plea of self-defense.1

The Solicitor General however asks for the affirmance of the appealed decision predicated on the
following testimonial and documentary evidence presented by the prosecution before the trial court:

Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were married on June 7, 1956, at
a ceremony solemnized by the parish priest of the Roman Catholic Church in Ormoc City.2 The marriage
was not a happy one and before the end of the year 1957 the couple separated. Late in the evening of
January 2, 1958, Francisco Caballero and two companions, namely, Ignacio Barabad and Kakong Sacay,
drank "tuba" in a certain house in barrio Ipil, Ormoc City. At about midnight, Francisco Caballero and his
companions proceeded home. On the way, they saw Francisco's wife, Cunigunda, standing at the corner
of the yard of Igmedio Barabad Cunigunda called Francisco and when the latter approached her,
Cunigunda suddenly stabbed Francisco with a knife marked by the prosecution as its Exhibit C. Francisco
called for help to his two companions who upon seeing that Francisco was wounded, brought him to the
St. Jude Hospital.3 Dr. Cesar Samson, owner of the hospital, personally attended to the victim and found
a "punctured wound on the left lumbar region measuring 1 inch externally" (Exhibit B). First aid was
given, but because there was a need for blood transfusion and the facilities of the hospital were
inadequate to provide the necessary treatment, Dr. Samson suggested that the patient be transported
to Cebu City.4 In the meantime, Cunigunda Caballero had gone to the Police Department of Ormoc City,
surrendered to desk sergeant Restituto Mariveles and informed the latter that she stabbed her
husband.5 While Francisco Caballero was confined at the hospital, he was interrogated by Patrolman
Francisco Covero concerning the identity of his assailant and he pointed to his wife Cunigunda. The
questions propounded by Pat. Covero and the answers given by the victim were written down in a piece
of paper on which the victim affixed his thumbmark (Exhibit D) in the presence of his brother, Cresencio
Caballero, and another policeman, Francisco Tomada.6 On January 4, 1958, Francisco Caballero was
brought to Cebu City on board the "MV Ormoc" but the trip proved futile because the victim died at
noontime of the same day from the stab wound sustained by him.7

Appellant, on the other hand, pleads that We discard the proof adduced by the prosecution and believe
instead what she declared before the trial judge briefly summarized as follows:

After her marriage to Francisco Caballero on June 7, 1956, appellant lived with her husband in the house
of her parents in barrio Ipil, Ormoc City, and their marriage, although not a harmonious one, was
blessed with a daughter; her married life was marked by frequent quarrels caused by her husband's
"gambling, drinking, and serenading", and there were times when he maltreated and beat her; after
more than a year she and her husband transferred to a house of their own, but a month had hardly
passed when Francisco left her and her child, and she had to go back to live with her parents who bore
the burden of supporting her and her child; in the month of November, 1957, her daughter became sick
and she went to her husband and asked for some help for her sick child but he drove her away and said
"I don't care if you all would die"; in the evening of January 2, 1958, she went out carolling with her
friend, Crispina Barabad, and several men who played the musical instruments; at about 12:00 o'clock
midnight they divided the proceeds of the carolling in the house of Crispina Barabad after which she
went home, but before she could leave the vicinity of the house of Crispina, she met her husband
Francisco, who upon seeing her, held her by the collar of her dress and asked her: "Where have you
been prostituting? You are a son of a bitch."; she replied: "What is your business. Anyway you have
already left us. You have nothing to do with us"; upon hearing these words Francisco retorted: "What do
you mean by saying I have nothing to do with you. I will kill you all, I will kill you all"; Francisco then held
her by the hair, slapped her face until her nose bled, and pushed her towards the ground, to keep
herself from falling she held on to his waist and as she did so her right hand grasped the knife tucked
inside the belt line on the left side of his body; because her husband continued to push her down she fell
on her back to the ground; her husband then knelt over her, held her neck, and choked her saying. "Now
is the time I can do whatever I want. I will kill you"; because she had "no other recourse" as she was
being choked she pulled out the knife of her husband and thrust it at him hitting the left side of his body
near the "belt line" just above his left thigh; when she finally released herself from the hold of her
husband she ran home and on the way she threw the knife; in the morning of January 3, she went to
town, surrendered to the police, and presented the torn and blood-stained dress worn by her on the
night of the incident (see Exhibit I); Pat. Cabral then accompanied her to look for the weapon but
because they could not find it the policeman advised her to get any knife, and she did, and she gave a
knife to the desk sergeant which is the knife now marked as Exhibit C for the prosecution.8
The sole question thus presented in this appeal is: did appellant stab her husband in the legitimate
defense of her person?

The law on self-defense embodied in any penal system in the civilized world finds justification in man's
natural instinct to protect, repel, and save his person or rights from impending danger or peril; it is
based on that impulse of self-preservation born to man and part of his nature as a human being. Thus, in
the words of the Romans of ancient history: Quod quisque ob tutelam sui fecerit, jure suo ficisse
existimetur.9 To the Classicists in penal law, lawful defense is grounded on the impossibility on the part
of the State to avoid a present unjust aggression and protect a person unlawfully attacked, and
therefore it is inconceivable for the State to require that the innocent succumb to an unlawful
aggression without resistance; while to the Positivists, lawful defense is an exercise of a right, an act of
social justice done to repel the attack of an aggressor.10

Our law on self-defense is found in Art. 11 of the Revised Penal Code which provides:

ART. 11. Justifying circumstances. — The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:

First. Unlawful aggression;

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

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

xxx xxx xxx

As part of this law is the settled jurisprudence that he who seeks justification for his act must prove by
clear and convincing evidence the presence of the aforecited circumstances, the rationale being that
having admitted the wounding or killing of his adversary which is a felony, he is to be held criminally
liable for the crime unless he establishes to the satisfaction of the court the fact of legitimate self-
defense. 11

In this case of Cunigunda Caballero, the trial court did not find her evidence clear and convincing, and
gave these reasons for its conclusion: a) appellant's testimony is inherently improbable as brought out
by her demonstration of the incident in question during the trial of the case; b) there was no wound or
injury on appellant's body treated by any physician: c) appellant's insistence that the weapon used by
her was Moro hunting knife and not Exh. C is incredible; d) she gave contradictory statements
concerning the report made by her to the police authorities that she was choked by her husband; and e)
her husband's abandonment of her and her child afforded the motive behind appellant's
attack. 12

We are constrained, however, to disagree with the court a quo and depart from the rule that appellate
court will generally not disturb the findings of the trial court on facts testified to by the witnesses.

An examination of the record discloses that the trial judge overlooked and did not give due importance
to one piece of evidence which more than the testimony of any witness eloquently confirms the
narration of appellant on how she happened to stab her husband on that unfortunate night. We refer to
the location of the wound inflicted on the victim.
Appellant's account of that fatal occurrence as given in her direct testimony follows:

Q At that precise time when you were going home to the place of your parents, did any unusual incident
occur?

A Yes, sir.

Q What was it?

A At the time when I went down from the house of Crispina Barabad, when I reached near the banana
hill, my husband held me.

Q What happened when your husband, Francisco Caballero, held you?

A He asked me from where did I prostitute myself.

Q What did you answer?

A I answered that I did not go (on) prostituting. I told him that I was only forced to accompany with the
carolling in order to earn money for our child.

Q What part of your body did your husband, Francisco Caballero, hold you?

A He held me at the collar of my dress. (Witness holding the right portion of the collar of her dress.)

Q After you answered Francisco, what did he do?

A He said "Where have you been prostituting? You are a son of a bitch." Then I told him "What is your
business. Anyway you have already left us. You have nothing to do with us."

Q When Francisco heard these words, what did he do?

A Francisco said "What do you mean by saying l have nothing to do with you. I will kill you all. I will kill
you all."

Q And then, what happened?

A He held my hair and slapped my face twice. Then I staggered and my nose was bleeding.

Q Do you mean to say that blood flowed out of your nose?

A Yes, sir.

Q After you were slapped twice and your nose begun to bleed, what happened next?

A He held the front part of my dress just below the collar and pushed me towards the ground. .

Q While your husband was holding your dress below the neck and tried to push you down, what did you
do?

A I held a part of his body in order that I would not fall to the ground.

Q And then what happened?

A Because I struggled hard in order that I would not fall to the ground I held his belt and that was the
time I got hold of a weapon along his belt line.

Q After that what happened?

A He shoved my hands upward and pushed me to the ground and that was the time my hands were
released. He was choking me.

Q When you said your hands were released, was that before or after you were choked by Francisco
Caballero?

A At that time when I was about to fall to the ground that was the time I released my hands.

Q When you were almost fallen to the ground, where were the hands of Francisco Caballero?

A On my hair.

Q You mean to say the two hands of Francisco Caballero?

A One of his hands was holding my hair. The other hand pushed me.

COURT:

Q What hand was holding your hair?

A His right hand was holding my hair while his left hand pushed me.

ATTORNEY GARCIA:

Q When you were fallen to the ground what happened?

A While I lay prostrate on the ground and believing that I have no other recourse, while his left hand was
holding my neck, I was able to take hold of the weapon from his belt line and I thrust it to him.

Q What was this weapon which you were able to get from his belt line?

A It was a hunting knife." (tsn. pp. 53-55, witness Cunigunda Caballero)

On cross-examination, appellant was asked by the private prosecutor to show her position when she
stabbed her husband and she did, and although the stenographic notes on that demonstration are very
sketchy which We quote:

Q Please demonstrate to this Court when you made the thrust to your husband?

A When I took hold of the hunting knife I made the thrust in this manner. (Witness held the ruler with
her right hand kneeled on the floor)" (tsn. p. 67, ibid)

still We can get a clear picture of what appellant must have done, from the questions and answers
immediately following the above-quoted portion of the transcript, viz:

Q You want to make us understand that when you thrust the weapon to the body of your husband you
were lying down flat to the ground?
A I was lying flat on the ground face upward. I was a little bit inclined because tried to struggle trying to
get away from the hold of my husband.

Q You want to make us understand that your back was touching the ground when you made the thrust
to your husband?

A Yes, sir.

COURT:

Q Where were you kneeled by your, husband?

A On my right thigh. (ibid; emphasis supplied)

Thus, with her husband kneeling over her as she lay on her back on the ground and his hand choking her
neck, appellant, as she said, had no other recourse but to pull out the knife inserted at the left side of
her husband's belt and plunge it at his body hitting the left back portion just below the waist, described
by the attending physician, Dr. Cesar Samson, as the left lumbar region. The fact that the blow landed in
the vicinity from where the knife was drawn is a strong indication of the truth of appellant's testimony,
for as she lay on the ground with her husband bent over her it was quite natural for her right hand to
get hold of the knife tucked in the left side of the man's belt and thrust it at that section of the body
nearest to her hand at the moment.

We do not agree with the trial judge's observation that as demonstrated by the accused it was physically
impossible for her to get hold of the weapon because the two knees of her husband were on her right
thigh "which would have forced her to put her right elbow towards the ground"(see p. 9 of Decision), for
even if it were true that the two knees of Francisco were on his wife's right thigh, however, there
is nothing in the record to show that the right arm of the accused was held, pinned down or rendered
immobile, or that she pressed her elbow to the ground, as conjectured by the trial judge, in such a
manner that she could not reach for the knife. On the contrary, as indicated earlier, accused testified
and so demonstrated that she was lying flat on her back, her husband kneeling over her and her right
arm free to pull out the knife and strike with it.

The trial judge also referred the a demonstration made by appellant of that portion of her testimony
when she was held by the hair and pushed down to the ground, and His Honor commented that "(S)he
could not be falling to the ground, as shown to the Court by her, considering the fact that the pushing
was to and fro as shown in her demonstration." (p. 8, Decision) The trial judge, however, failed to
consider that it is humanly impossible to have an exact and accurate reproduction or reenactment of an
occurrence especially if it involves the participation of persons other than the very protagonists of the
incident being re-enacted. In this particular instance appellant was asked by the private prosecutor to
show how she was pushed down by her husband, and her demonstration is described in the
stenographic transcript as follows:

Q Please demonstrate to this Court the position of your husband and you while your husband held your
hair.

A He did this way. (Witness held the hair of the Court Interpreter with his left hand and his right hand
held the right shoulder of the Interpreter and pulled the Interpreter to and fro. The Interpreter
represented as the accused and the accused as the deceased.)
Q Where were your two hands?

A My two hands held his waist line. (tsn. 66, witness Cunigunda Caballero; emphasis supplied)

In that demonstration, accused represented the victim while she in turn was impersonated by the court
interpreter, and so it was difficult if not impossible for the two to give an accurate reenactment
considering that the accused assumed a role not hers during the actual incident and the court
interpreter played a part which was not truly his. At any rate, the accused showed how one hand of her
husband held her hair while the other pushed her down by the shoulder, and to portray how she in turn
struggled and tried to push back her husband to keep herself from falling, she "pulled the interpreter
(representing the accused) to and fro." The fact is that Francisco succeeded in forcing appellant down to
the ground as portrayed by the latter when, following the foregoing demonstration, she was asked by
the private prosecutor to show how she stabbed her husband — a matter which is discussed in pages 8
and 9 of this Decision.

It is this particular location of the wound sustained by the victim which strongly militates against the
credibility of the lone prosecution witness, Ignacio Barabad. This witness declared that on that night
when husband and wife met on the road, Cunigunda called Francisco and when the latter was near, she
immediately stabbed him. If that were true, that is, husband and wife were standing face to face at a
distance of one-half meter when the stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would
have been more natural and probable for the weapon to have been directed towards the front part of
the body of the victim such as his abdomen or chest, rather than at his back, left side, just above the left
thigh.

In cases such as the one now before Us where there are directly conflicting versions of the incident
object of the accusation, the Court in its search for the truth perforce has to look for some facts or
circumstances which can be used as valuable aids in evaluating the probability or improbability of a
testimony, for after all the element of probability is always involved in weighing testimonial evidence13,
so much so that when a court as a judicial fact-finder pronounces judgment that a set of facts constitute
the true happening it does so not of its own personal knowledge but as the result of an evaluating
process of the probability or improbability of a fact sought to be proved.

Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the First Division of this Court
penned by Chief Justice Querube C. Makalintal, the plea of self-defense of the accused-appellant was
sustained on the basis of certain "physical and objective circumstances" which proved to be of "decisive
importance" in ascertaining the veracity of the plea of self-defense, to wit: the location of the wound on
the right side of the throat and right arm of the deceased, the direction of the trajectories of the bullets
fired by the accused, the discovery of bloodstains at the driver's seat, the finding of the dagger and
scabbard of the deceased, and so on. 14

In the case of appellant Cunigunda Caballero, We find the location of the fatal wound as a valuable
circumstance which confirms the plea of self-defense.

Another, is the lack of motive of appellant in attacking and killing her husband on that particular night of
January 2. Although it is the general rule that the presence of motive in the killing of a person is not
indispensable to a conviction especially where the identity of the assailant is duly established by other
competent evidence or is not disputed, as in this case, nonetheless, the absence of such motive is
important in ascertaining the truth as between two antagonistic theories or versions of the killings. 15

We disagree with the statement of the court a quo that appellant's motive for killing her husband was
his abandonment of her and his failure to support her and her child. While appellant admitted in the
course of her testimony that her marriage was not a happy one, that she and her husband separated in
the month of October, 1957, and since then she and her child lived with her parents who supported
them, nevertheless she declared that notwithstanding their separation she still loved her husband (tsn.
p. 59, cross-examination of appellant). As a matter of fact, appellant had been living with her parents for
several months prior to the incident in question and appeared resigned to her fate. Furthermore, there
is no record of any event which occurred immediately prior to January 2 which could have aroused her
feelings to such a degree as to drive her to plan and carry out the killing of her husband.

On the other hand, it was Francisco Caballero who had a reason for attacking his wife, Cunigunda.
Meeting his wife unexpectedly at past midnight on the road, Francisco reacted angrily, and suspecting
that she was out for some bad purpose he held her by the collar of her dress and said: "Where have you
been prostituting? You are a son of a bitch." This was followed by a slapping on the face until
Cunigunda's nose bled, pulling of her hair, pushing her down to the ground, and strangling her — all of
which constituted the unlawful aggression against which appellant had to defend herself.

Next to appellant's lack of motive for killing her husband, is her conduct shortly after the occurrence. As
soon as the sun was up that morning of January 3 (the stabbing occurred past midnight of January 2),
Cunigunda went to the city and presented herself at the police headquarters where she reported that
she stabbed her husband and surrendered the blood-stained dress she wore that night. On this point,
the trial judge stated that appellant made contradictory statements in her testimony concerning the
report made by her to the police authorities, for while at the start she declared that she did not report
the "choking by her husband", she later changed her testimony and stated that she did relate that fact.
(p. 10, Decision)

We have gone over the stenographic transcript of the testimony of appellant on direct examination
and nowhere is there a positive and direct statement of hers that she did not report that she was
choked by her husband. What the trial judge asked of appellant was whether or not she told the police
about the fist mark on her face and her answer was "No, sir, I forgot." (tsn. p. 55, supra) And on
appellant's cross-examination, there was no question propounded and therefore there was no answer
given on the subject-matter of appellant's report to the police concerning the incident except for the
following:

COURT:

Q Did you show that dress to the police authorities the following day?

A I was not able to wear that, Your Honor, because it was torn out.

Q You did not bring that to the police authorities?

A I showed it to the police authorities, and they told me to keep it, not to touch it. (Tsn. p. 65, ibid)

We do not see, therefore, the alleged contradiction in appellant's testimony which was singled out by
His Honor as one of his reasons for discrediting her plea of self-defense.
That appellant made it clear to the police that she stabbed her husband because he attacked her is
confirmed by no less than the prosecution witness, Patrolman Restituto Mariveles, who was on duty at
the desk when appellant arrived at the police headquarters. This witness on cross-examination declared:

Q And she also told you that on that night previous to the incident her husband Francisco Caballero beat
her up, is that right?

A She told me that she was met on the way by her husband immediately after carolling and she was
manhandled by her husband and when she was struggling to get loose from her husband she happened
to take hold of a knife that was placed under the belt of her husband and because she was already half
conscious she did not know that she was able to thrust said knife to the stomach of her husband. (tsn. p.
23, witness R. Mariveles)

It is indeed regrettable that the statements made by appellant to the police upon her surrender were
not taken down in writing to serve as a faithful and reliable account of her report, nevertheless, We are
satisfied by the fact, which is not disputed, that of her own accord appellant went to the police
authorities early in the morning of January 3, informed Policeman Mariveles that she stabbed her
husband because he manhandled her which rendered her "half-conscious", and brought and showed
the dress she wore during the incident which was torn by the collar and with blood stains due to the
bleeding of her nose. Another policeman, Joventino de Leon, who at the time was property custodian of
the Ormoc City police, corroborated appellant's testimony concerning the dress marked Exhibit 1 for the
defense. (tsn. p. 70 witness J. de Leon) If there was no clear and positive statement in appellant's
testimony either on direct or cross examination that she informed the police that she was choked by her
husband, it was because, as We noted, no question was propounded to her on that point.

While We are on this subject of appellant's surrender, mention is to be made of the knife marked as
Exhibit C for the prosecution. In her testimony, appellant stated that Exhibit C was not the knife actually
used by her in stabbing her husband because the true weapon was her husband's Moro hunting knife
with a blade of around six inches which she threw away immediately after the incident; that when she
was asked by Pat. Mariveles to look for the weapon and she could not find it, she was advised by
policeman Cabral who helped her in the search to get any knife and surrender it to the desk officer and
so she took the knife Exhibit C and presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This
testimony of appellant was taken against her by the court a quo which held that her declaration could
not have been true. We find however no strong reason for disbelieving the accused on this point.
Appellant does not deny that she turned over Exhibit C to Pat. Mariveles as the knife with which she
stabbed her husband but she claims that she did so upon advise of another policeman, Pat. Cabral, and
it is quite significant that the latter was not called upon by the prosecution to refute such declaration.
There is sincerity in appellant's attempt to rectify a misstatement made by her to Pat. Mariveles and We
are inclined to believe and in fact We do believe that the fatal weapon must have had indeed a blade of
around six inches as stated by appellant for it to penetrate through the left lumbar region to the victim's
large intestine and cause the discharge of fecal matter (tsn. Dr. C. Samson, p. 6)

All the elements of self-defense are indeed present in the instant case.

The element of unlawful aggression has been clearly established as pointed out above.
The second element, that is, reasonable necessity for the means employed is likewise present. Here we
have a woman who being strangled and choked by a furious aggressor and rendered almost unconscious
by the strong pressure on her throat had no other recourse but to get hold of any weapon within her
reach to save herself from impending death. Early jurisprudence of this Court has followed the principle
that the reasonable necessity of the means employed in self-defense does not depend upon the harm
done but rests upon the imminent danger of such injury. (U.S. vs. Paras, 1907, 9 Phil. 367, citing Decision
of Dec. 22, 1887) And so the fact that there was no visible injury caused on the body of the appellant
which necessitated medical attention, a circumstance noted by the trial court, is no ground for
discrediting self-defense; what is vital is that there was imminent peril to appellant's life caused by the
unlawful aggression of her husband. The knife tucked in her husband's belt afforded appellant the only
reasonable means with which she could free and save herself from being strangled and choked to death.
What this Court expressed in the case of People vs. Lara, 1925, 48 Phil. 153, 160, is very true and
applicable to the situation now before Us, and We quote:

It should be borne in mind that in emergencies of this kind human nature does not act upon processes
of formal reason but in obedience to the instinct of self-preservation; and when it is apparent, as in this
case, that a person has reasonably acted upon this instinct, it is the duty of the courts to sanction the act
and to hold the actor irresponsible in law for the consequences. 16

Equally relevant is the time-honored principle: Necessitas Non habet legem. Necessity knows no law.

The third element of self-defense is lack of sufficient provocation on the part of the person defending
himself.Provocation is sufficient when it is proportionate to the aggression, that is, adequate enough to
impel one to attack the person claiming self-
defense. 17 Undoubtedly appellant herein did not give sufficient provocation to warrant the aggression
or attack on her person by her husband, Francisco. While it was understandable for Francisco to be
angry at his wife for finding her on the road in the middle of the night, however, he was not justified in
inflicting bodily punishment with an intent to kill by choking his wife's throat. All that appellant did was
to provoke an imaginary commission of a wrong in the mind of her husband, which is not a sufficient
provocation under the law of self-defense. Upon being confronted by her husband for being out late at
night, accused gave a valid excuse that she went carolling with some friends to earn some money for
their child. January 2 was indeed within the Christmas season during which by tradition people carol
from house to house and receive monetary gifts in a Christian spirit of goodwill. The deceased therefore
should have given some consideration to his wife's excuse before jumping to conclusions and taking the
extreme measure of attempting to kill his wife.

IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-appellant acted in the legitimate
defense of her person, and We accordingly set aside the judgment of conviction and ACQUIT her with
costs de oficio.

So Ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-162 April 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants. DIOSCORO ALCONGA, appellant.

Jose Avanceña for appellant.

Assistant Solicitor General Kapunan, Jr. and Solicitor Barcelona for appellee.

HILADO, J.:

On the night of May 27, 1943, in the house of one Mauricio Jepes in the Municipality of San Dionisio,
Province of Iloilo several persons were playing prohibited games (t.s.n., pp. 95, 125). The deceased
Silverio Barion was the banker in the game of black jack, and Maria de Raposo, a witness for the
prosecution, was one of those playing the game (t.s.n., p. 95). Upon invitation of the said Maria de
Raposo, the accused Dioscoro Alconga joined her as a partner, each of them contributing the sum of P5
to a common fund (t.s.n., pp. 95, 125). Maria de Raposo played the game while the said accused posted
himself behind the deceased, acting as a spotter of the cards of the latter and communicating by signs to
his partner (t.s.n., pp. 95-96, 126). The deceased appears to have suffered losses in the game because of
the team work between Maria de Raposo and the accused Alconga (t.s.n., pp. 96, 126). Upon
discovering what the said accused had been doing, the deceased became indignant and expressed his
anger at the former (t.s.n., pp. 96, 126). An exchange of words followed, and the two would have come
to blows but for the intervention of the maintainer of the games (t.s.n., p. 96). In a fit of anger, the
deceased left the house but not before telling the accused Alconga, "tomorrow morning I will give you a
breakfast" (t.s.n., p. 96), which expression would seem to signify an intent to inflict bodily harm when
uttered under such circumstances.

The deceased and the accused Alconga did not meet thereafter until the morning of May 29, 1943,
when the latter was in the guardhouse located in the barrio of Santol, performing his duties as "home
guard" (t.s.n., pp. 98-100). While the said accused was seated on a bench in the guardhouse, the
deceased came along and, addressing the former, said, "Coroy, this is your breakfast," followed
forthwith by a swing of his "pingahan" (t.s.n., p. 100). The accused avoided the blow by falling to the
ground under the bench with the intention to crawl out of the guardhouse (t.s.n., pp. 100-101). A
second blow was given but failed to hit the accused, hitting the bench instead (t.s.n., p. 101). The
accused manage to go out of the guardhouse by crawling on his abdomen (t.s.n., p. 101). While the
deceased was in the act of delivering the third blow, the accused, while still in a crawling position (t.s.n.,
p. 119), fired at him with his revolver, causing him to stagger and to fall to the ground (t.s.n., p. 101).
Rising to his feet, the deceased drew forth his dagger and directed a blow at the accused who, however,
was able to parry the same with his bolo (t.s.n., pp. 101-102). A hand-to-hand fight ensued (t.s.n., p.
102). Having sustained several wounds, the deceased ran away but was followed by the accused (t.s.n.,
p. 6). After running a distance of about 200 meters (t.s.n., pp. 21, 108), the deceased was overtaken, and
another fight took place, during which the mortal bolo blow — the one which slashed the cranium —
was delivered, causing the deceased to fall to the ground, face downward, besides many other blows
deliver right and left (t.s.n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte, arrived
and, being the leader of the "home guards" of San Dionisio, placed under his custody the accused
Alconga with a view to turning him over to the proper authorities (t.s.n., pp. 102-105).
On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerrilla soldier (t.s.n.,
pp. 80, 104). Adolfo Bracamonte turned over Alconga to Collado who in turn took him to the
headquarters (t.s.n., pp. 81, 104). In the afternoon of the same day, Collado delivered Alconga to
Gregorio Barredo, a municipal policeman of San Dionisio, together with the weapons used in the fight: a
revolver, a bolo, and a dagger (t.s.n., pp. 81, 104).

The injuries sustained by the deceased were described by police sergeant Gil G. Estaniel as follows:

P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? — R. Examine sus heridas.

P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo? — R. En la cabeza, en sus brazos,
en sus manos, en la mandibula inferior, en la parte frente de su cuello, en su pecho derecho, y tambien
en el pecho izquierdo, y su dedo meñique habia volado, se habia cortado, y otras perqueñas heridas
mas.

P. ¿En la cabeza, vio usted heridas? — R. Si, señor.

P. ¿Cuantas heridas? — R. Una herida en la region parietal derecha y una contusion en la corona de la
cabeza.

P. ¿Vio usted el craneo? — R. En la craneo llevaba una herida, en quel el craneo se ha roto.

P. ¿En el pecho, herida ha encontrado usted? — R. Debajo de la tetilla derecha, una herida causada por
una bala.

P. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas? — R. Heridas causadas por bolo.

P. ¿Como de grande acquellas heridas en el pecho? — R. No recuerdo la dimension de las heridas en el

pecho.

P. ¿Pero en la cabeza? — R. La cabeza se rajo por aquella herida causada por el bolo. (T.s.n., p. 25.)

It will be observed that there were two stages in the fight between appellant and the deceased. The
initial stage commenced when the deceased assaulted appellant without sufficient provocation on the
part of the latter. Resisting the aggression, appellant managed to have the upper hand in the fight,
inflicting several wounds upon the deceased, on account of which the latter fled in retreat. From that
moment there was no longer any danger to the life of appellant who, being virtually unscathed, could
have chosen to remain where he was. Resolving all doubts in his flavor, and considering that in the first
stage the deceased was the unlawful aggressor and defendant had not given sufficient provocation, and
considering further that when the deceased was about to deliver the third blow, appellant was still in a
crawling position and, on that account, could not have effectively wielded his bolo and therefore had to
use his "paltik" revolver — his only remaining weapon — ; we hold that said appellant was then acting in
self-defense.

But when he pursued the deceased, he was no longer acting in self-defense, there being then no more
aggression to defend against, the same having ceased from the moment the deceased took to his heels.
During the second stage of the fight appellant inflicted many additional wounds upon the deceased.
That the deceased was not fatally wounded in the first encounter is amply shown by the fact that he was
still able to run a distance of some 200 meters before being overtaken by appellant. Under such
circumstances, appellant's plea of self-defense in the second stage of the fight cannot be sustained.
There can be no defense where there is no aggression.

Although the defendant was not the aggressor, he is not exempt from criminal liability for the reason
that it is shown that he struck several blows, among them the fatal one, after the necessity for
defending himself had ceased, his assailant being then in retreat. Therefore one of the essential
ingredients of self-defense specified in No. 4, article 8 of the Penal Code is wanting (now article 11, case
No. 1, Revised Penal Code). (United States vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis supplied.)

. . . Even if it be conceded for the moment that the defendants were assaulted by the four (offended
parties), the right to kill in self-defense ceased when the aggression ceased; and when Toledo and his
brothers turned and ran, without having inflicted so much as a scratch upon a single one of the
defendants, the right of the defendants to inflict injury upon them ceased absolutely. They had no right
to pursue, no right to kill or injure. A fleeing man is not dangerous to the one from whom he flees. When
danger ceases, the right to injure ceases. When the aggressor turns and flees, the one assaulted must
stay his hand. (United States vs. Vitug, 17 Phil., 1, 19; emphasis supplied.)

Upon the foregoing facts, we hold that appellant's guilt of the crime of homicide has been established
beyond reasonable doubt. The learned trial court appreciated in his favor of two mitigating
circumstances: voluntary surrender and provocation on the part of the deceased. The first was properly
appreciated; the second was not, since it is very clear that from the moment he fled after the first stage
of the fight to the moment he died, the deceased did not give any provocation for appellant to pursue
much less further to attack him.

The only provocation given by him was imbibed in, and inseparable from, the aggression with which he
started the first stage of the fight. The evidence, as weighed and appreciated by the learned trial judge,
who had heard, seen and observed the witnesses testify, clearly shows that said stage ended with the
flight of the deceased after receiving a bullet wound in his right breast, which caused him to stagger and
fall to the ground, and several bolo wounds inflicted by appellant during their hand-to-hand fight after
both had gotten up. The learned trial judge said:

The evidence adduced by the prosecution and the defense in support of their respective theories of the
case vary materially on certain points. Some of these facts have to be admitted and some have to be
rejected with the end in view of arriving at the truth. To the mind of the Court, what really happened in
the case at bar, as can de disclosed by the records, which lead to the killing of the deceased on that fatal
morning of May 29, 1945 (should be 1943), is as follows:

xxx xxx xxx

In the morning of May 29, 1943, while Dioscoro Alconga was alone in the guardhouse performing his
duties as guard or "ronda" in Barrio Santol, the deceased Silverio Barion passed by with a "pingahan".
That was the first time the deceased and the accused Alconga had met since that eventful night of May
27th in the gambling house of Gepes. Upon seeing the accused Alconga, who was then seated in the
guardhouse, the deceased cried: "Coroy, this is now the breakfast!" These words of warning were
immediately followed by two formidable swings of the "pingahan" directed at the accused Alconga
which failed to hit him. Alconga was able to avoid the blows by falling to the ground and crawling on his
abdomen until he was outside the guardhouse. The deceased followed him and while in the act of
delivering the third blow, Dioscoro Alconga fired at him with his revolver thereby stopping the blow in
mid-air. The deceased fell to the ground momentarily and upon rising to his feet, he drew forth a
dagger. The accused Alconga resorted to his bolo and both persons being armed, a hand-to-hand fight
followed. The deceased having sustained several wounds from the hands of Alconga, ran away with the
latter close to his heels.

The foregoing statement of the pertinent facts by the learned trial judge is in substantial agreement
with those found by us and narrated in the first paragraphs of this decision. Upon those facts the
question arises whether when the deceased started to run and flee, or thereafter until he died, there
was any provocation given by him from appellant to pursue and further to attack him. It will be recalled,
to be given with, that the first stage of the fight was provoked when the deceased said to appellant
"Cory, this is now the breakfast," or "This is your breakfast," followed forthwith by a swing or two of his
"pingahan." These words without the immediately following attack with the "pingahan" would not have
been uttered, we can safely assume, since such an utterance alone would have been entirely
meaningless. It was the attack, therefore, that effectively constituted the provocation, the utterance
being, at best, merely a preclude to the attack. At any rate, the quoted words by themselves, without
the deceased's act immediately following them, would certainly not have been considered a sufficient
provocation to mitigate appellant's liability in killing or injuring the deceased. For provocation in order to
be a mitigating circumstance must be sufficient and immediately preceding the act. (Revised Penal Code,
article 13, No. 4.)

Under the doctrine in United States vs. Vitug, supra, when the deceased ran and fled without having
inflicted so much as a scratch upon appellant, but after, upon the other hand, having been wounded
with one revolver shot and several bolo slashes, as aforesaid, the right of appellant to inflict injury upon
him, ceased absolutely — appellant "had no right to pursue, no right to kill or injure" said deceased —
for the reason that "a fleeing man is not dangerous to the one from whom he flees." If the law, as
interpreted and applied by this Court in the Vitug case, enjoins the victorious contender from pursuing
his opponent on the score of self-defense, it is because this Court considered that the requisites of self-
defense had ceased to exist, principal and indispensable among these being the unlawful aggression of
the opponent (Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).

Can we find under the evidence of record that after the cessation of said aggression the provocation
thus involved therein still persisted, and to a degree sufficient to extenuate appellant's criminal
responsibility for his acts during the second stage of the fight? Appellant did not testify nor offer other
evidence to show that when he pursued the deceased he was still acting under the impulse of the
effects of what provocation, be it anger, obfuscation or the like. The Revised Penal Code provides:

ART. 13. Mitigating circumstances:

xxx xxx xxx

4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.

It is therefore apparent that the Code requires for provocation to be such a mitigating circumstance that
it not only immediately precede the act but that it also be sufficient. In the Spanish Penal Code, the
adjective modifying said noun is "adecuada" and the Supreme Court of Spain in its judgment of June 27,
2883, interpreted the equivalent provision of the Penal Code of that country, which was the source of
our own existing Revised Penal Code, that "adecuada" means proportionate to the damage caused by
the act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that Supreme Court as follows:

El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del ofendido ha de
preceder para la disminucion de la responsabilidad criminal debe ser proporcionada al daño que se
cause, lo cual no concurre a favor del reo si resulta que la unica cuestion que hubo fue si en un monton
de yeso habia mas omenos cantidad, y como perdiera la apuesta y bromeando dijera el que la gano que
beberia vino de balde, esa pequeña cuestion de amor propio no justificaba en modo alguno la ira que le
impelio a herir y matar a su contrario. (S. de 27 de junio de 1883, Gaceta de 27 de septiembre.)

Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says: "The
provocation or threat must be sufficient, which means that it should be proportionate to the act
committed and adequate to stir one to its commission" (emphasis supplied).

Sufficient provocation, being a matter of defense, should, like any other, be affirmatively proven by the
accused. This the instant appellant has utterly failed to do. Any way, it would seem self-evident that
appellant could never have succeeded in showing that whatever remained of the effects of the
deceased's aggression, by way of provocation after the latter was already in fight, was proportionate to
his killing his already defeated adversary.

That provocation gave rise to a fight between the two men, and may be said, not without reason, to
have spent itself after appellant had shot the deceased in his right breast and caused the latter to fall to
the ground; or — making a concession in appellant's favor — after the latter had inflicted several bolo
wounds upon the deceased, without the deceased so much as having scratched his body, in their hand-
to-hand fight when both were on their feet again. But if we are to grant appellant a further concession,
under the view most favorable to him, that aggression must be deemed to have ceased upon the flight
of the deceased — upon the end of the first stage of the fight. In so affirming, we had to strain the
concept in no small degree. But to further strain it so as to find that said aggression or provocation
persisted even when the deceased was already in flight, clearly accepting defeat and no less clearly
running for his life rather than evincing an intention of returning to the fight, is more than we can
sanction. It should always be remembered that "illegal aggression is equivalent to assault or at least
threatened assault of an immediate and imminent kind.

Agresion ilegitima. — Agresion vale tanto como acometimiento. Para que exista el derecho de defensa
es preciso que se nos acometa, que se nos ataque, o cuando menos, que se nos amenace de atacarnos
de un modo inmediato e inminente; v. gr., desenvainando el puñal para herirnos con el o apuntando la
pistola para dispararla contra nosotros. (Viada, 5. a edicion, 173.)

After the flight of the deceased there was clearly neither an assault nor a threatened assault of the
remotest kind. It has been suggested that when pursuing his fleeing opponent, appellant might have
thought or believed that said opponent was going to his house to fetch some other weapon. But
whether we consider this as a part or continuation of the self-defense alleged by appellant, or as a
separate circumstance, the burden of proof to establish such a defense was, of course, upon appellant,
and he has not so much as attempted to introduce evidence for this purpose. If he really thought so, or
believed so, he should have positively proven it, as any other defense. We can not now gratuitously
assume it in his behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this Court held that one
defending himself or his property from a felony violently or by surprise threatened by another is not
obliged to retreat but may pursue his adversary until he has secured himself from danger. But that is not
this case. Here from the very start appellant was the holder of the stronger and more deadly weapons
— a revolver and a bolo, as against a piece of bamboo called "pingahan" and a dagger in the possession
of the deceased. In actual performance appellant, from the very beginning, demonstrated his superior
fighting ability; and he confirmed it when after the deceased was first felled down by the revolver shot
in right breast, and after both combatants had gotten up and engaged in a hand-to-hand fight, the
deceased using his dagger and appellant his bolo, the former received several bolo wounds while the
latter got through completely unscathed. And when the deceased thereupon turned and fled, the
circumstances were such that it would be unduly stretching the imagination to consider that appellant
was still in danger from his defeated and fleeing opponent. Appellant preserved his revolver and his
bolo, and if he could theretofore so easily overpower the deceased, when the latter had not yet
received any injury, it would need, indeed, an unusually strong positive showing — which is completely
absent from the record — to persuade us that he had not yet "secured himself from danger" after
shooting his weakly armed adversary in the right breast and giving him several bolo slashes in different
other parts of his body. To so hold would, we believe, be unjustifiably extending the doctrine of the
Rivera case to an extreme not therein contemplated.

Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime committed by
appellant is punishable by reclusion temporal in its minimum period, which would be from 12 years and
1 day to 14 years and 8 months. However, in imposing the penalty, we take into consideration the
provisions of section 1 of the Indeterminate Sentence Law (Act No. 4103), as amended by Act No. 4225.
Accordingly, we find appellant guilty of the aforesaid crime of homicide and sentence him to an
indeterminate penalty of from 6 years and 1 day of prision mayor to 14 years and 8 months of reclusion
temporal, to indemnify the heirs of the deceased in the sum of P2,000, and to pay the costs.

As thus modified, the judgment appealed from is hereby affirmed. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-35524 March 18, 1932

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JULIAN SUMICAD, defendant-appellant.

Felipe K. Medina for appellant.

Attorney-General Jaranilla for appellee.

STREET, J.:

This appeal has been brought to reverse a judgment of the Court of First Instance of the Province of
Occidental Misamis, finding the appellant, Julian Sumicad, guilty of the offense of homicide and
sentencing him to undergo imprisonment for twelve years and one day, reclusion temporal, and
requiring him to indemnify the family of the deceased in the amount of P1,000, as well as to pay the
costs of prosecution.

On February 23, 1931, the accused, a resident of Buenavoluntad, in the municipality of Plaridel,
Occidental Misamis, was engaged with others in the gratuitous labor of hauling logs for the construction
of a chapel in the barrio above-mentioned. At about 5.30 o'clock in the afternoon on the day
mentioned, when the laborers were resting from the work of the day, one Segundo Cubol happened to
pass the place where the accused was sitting. Prior to this date the accused had rendered five and one-
half days service to Cubol, and as the latter passed, the accused said to him, "Segundo, pay me for the
five and one-half days work for which you owe me." Cubol replied, "What debt!," an exclamation which
was followed by an insulting expression. At the same time he struck the accused with his fist. The
accused arose from the log upon which he was sitting and moved backward, trying to escape, but Cubol
pursued him and continued striking him with his fists. As the accused receded he found himself
cornered by a pile of logs, the wings of which extended out on either side, effectually preventing any
further retreat. As Cubol pressed upon him, the accused drew his bolo and delivered a blow on Cubol's
right shoulder. Upon this Cubol lunged at the accused with the evident intention of wresting the bolo
from the accused. To prevent this the accused struck two other blows with the bolo, inflicting two deep
cuts on Cubol's forehead above the left eye. One of these blows broke through the cranium. The other
made a cut extending from the left eyebrow to the nose and upper lip. Upon finding a seat on a log
nearby. A witness, named Francisco Villegas, who came up in a moment, after learning something about
the matter, asked Cubol whether he had struck the accused blows with his fist. Cubols replied that he
had. The witness Villegas then turned to the accused, who was standing a short distance away, and told
him to put up his bolo and go to the poblacion. Acting upon this suggestion the accused immediately
repaired to the office of the justice of the peace and surrendered himself to the authorities. Cubol lived
only an hour or so, and died from the effect of the wounds received. In one of the pockets of the
deceased a knife was found, and the accused testified that, when he struck the deceased with his bolo,
the latter was attempting to draw a knife from his pocket.

The accused was 25 years of age when this case was tried, has a height of 5 feet and 1-½ inches, and
weight of 105 pounds. The deceased appears to have been taller, larger and stronger man. The evidence
shows that the deceased was quarrelsome and in the habit of making frequent trouble by fighting in the
places where he happened to be present with others. In the local courts he had been convicted and
sentenced to jail for assault and battery in two different cases. In another case he was convicted of the
offense of inflicting minor physical injuries, being sentenced to imprisonment for one month and one
day. In still another case he had been convicted of theft and sentenced to imprisonment for the same
period of one month and one day. The proof leaves no reason to doubt that the deceased was hot-
tempered and that he had the reputation of being a trouble maker. It is a safe inference from this proof
— and there is nothing to the contrary, — that the deceased was with good reason considered by his
neighbors to be a dangerous man.

From the facts above stated it is evident that the quarrel which resulted in the death of Segundo Cubol
was of his own making, and that the accused was not materially to blame in bringing about the trouble.
Two of the elements of self-defense were therefore clearly present, namely, that the deceased was the
aggressor and that there was lack of sufficient provocation on the part of the accused. The only further
question that can therefore arise in discussion the criminal liability of the accused is whether there was
reasonable necessity for the means employed by him to prevent or repel the aggression to which he was
subjected. Upon this point it will be noted that, when the aggression was begun by the deceased, the
accused retreated until he was cornered in the angle of a pile of logs. His further retreat was this
effectually cut off both in the rear and at the sides. In response to the blows which the deceased
delivered with his fists, the accused first delivered a cut on the left shoulder of the deceased; but, if we
rightly interpret the transcript of the record on this point , the sanitary officer who exclaimed the body
of the deceased meant to say that this wound alone could not have resulted in death. This we consider
to be the decisive turning point in the case. Upon receiving that cut the deceased should have been
admonished that further aggression on his part would be met by determined resistance and that any
further advance would be at grave peril to himself. Instead of acting upon this warning, the deceased
pressed forward in the attempt to possess himself of the bolo, the only means of defense then at the
command of the accused.

Under these circumstances what might the accused have been reasonably expected to do. Was he to
surrender the weapon to his assailant, a larger and stronger man than himself, who was now infuriated
by the blood that had been drawn from his shoulder? Or was he justified in keeping the weapon in his
hands and, as an ultimate resort, in using it as a means for his own defense? Our reply is that he was
justified in pursuing the latter alternative; for it would probably have been an act of suicide to permit
that weapon to pass into the hands of his assailant. In judging a question of this kind the reputation of
the deceased for violence is pertinent, for it tends to show that when the fatal blows were struck the
accused had reasonable grounds for believing that he was in grave peril to life or limb.

It is undoubtedly well established in jurisprudence that a man is not, as a rule, justified in taking the life
of one who assaults him with his fist only, without the use of a dangerous weapon. The person assaulted
must, in such case, either resist with the arms that nature gave him or with other means of defense at
his disposal, short of taking life. But that rule contemplates the situation where the contestants are in
the open and the person assaulted can exercise the option of running away. It can have no binding force
in the case where the person assaulted has retreated to the wall, as the saying is, and uses in a
defensive way the only weapon at his disposal. One is not required, when hard pressed, to draw fine
distinctions as to the extent of the injury which a reckless and infuriated assailant might probably inflict
upon him (Browell vs. People, 38 Mich., 732). And it was not incumbent on the accused in this case,
when assailed by a bully of known violent disposition, who was larger and stronger than himself. On the
contrary, under the circumstances stated, he had the right to resist the aggression with the bolo, and if
he unfortunately inflicted a fatal blow, it must be considered to have been given in justifiable self-
defense. Upon this point it may be recalled that the deceased, when asked about the circumstances of
the homicide, admitted that he himself was the aggressor; and it is noteworthy that he used no word
placing blame upon the accused.

We are of the opinion that all the elements necessary to constitute justifiable self-defense were present
in this case and the accused should have been acquitted.

The judgment appealed from will therefore be reversed and the appellant absolved from the
information, with costs of both instances de oficio. So ordered.

[G.R. No. L-3515. October 3, 1907. ]

THE UNITED STATES, Plaintiff-Appellee, v. ANDERSON MACK, Defendant-Appellant.

Amzi B. Kelly, for Appellant.

Attorney-General Araneta, for Appellee.

SYLLABUS

1. EXCEPTION FROM CRIMINAL RESPONSIBILITY ON PLEA OF SELF-DEFENSE. — An accused person is not

entitled to complete exemption from criminal responsibility on the plea of self-defense unless each and
all of the following facts are established to the satisfaction of the court: First, that there was an unlawful
aggression; second, that there was reasonable necessity for the employment of the means taken to
prevent or resist such unlawful aggression; third, that there was no sufficient provocation on the part of
the accused.

2. EFFORTS TO EVADE ASSAULT. — One who is unlawfully assailed need not attempt to retreat where
there is no reasonable ground to believe that by so doing he can safely avoid the threatened attack; nor
is he required to continue his retreat when there is no reasonable ground to believe that he can do so
with safety.

DECISION
CARSON, J. :

The defendant was charged with the crime of asesinato (assassination) and convicted of the crime of
homicidio (homicide). From this judgment of conviction he appealed to this court.

It is admitted that upon the night of May 4, 1906, the accused, a negro soldier, shot and killed a
municipal policeman named Estanislao Indic. The evidence of record is contradictor and conflicting in
the extreme, but we think that, giving the accused the benefit of the doubt as to the veracity and
credibility of the witnesses, the following relation of the incidents, as the occurred must be held to be in
accordance with the weight of the evidence.

Just before the shooting, the accused was sitting on a bench a few feet back from the street, in the town
of Tacloban, in the Province of Leyte, in an open space some 3 or 4 feet, width, between the tienda or
content of a woman named Olimpia and another building. The deceased, with another policemen,
approached the place directed Olimpia to close her tienda, and, later, ordered the accused and another
soldier who was standing near by to go to their quarters. The accused did not obey this order, and it is
probable that some words passed between the soldiers, the policemen, and the woman which angered
the deceased, though the weight of the evidence clearly maintain the contention of the accused that he
did and said nothing to provoke or offend the deceased, except in so far as his failure to obey the order
to go to his quarters may have had that effect. The deceased, who was standing some 10 or 12 feet from
the accused, cursing and abusing him for his failure to obey the order, wrought himself into a passion
dragged himself free from his companion, who was endeavoring to restrain him and take him away, and
started toward the accused, at the same time drawing his bolo and brandishing it in a threatening
manner. Thereupon the accused got up, drew his revolver, and the deceased having then approached
within a distance of from 3 to 6 feet, the accused fired three shots, one of which took effect in the left
breast of the deceased, just above the nipple, and another in the back of his head.

There was some testimony tending to show that when the shooting took place the deceased was under
the influence of liquor, and that he bore resentment against the accused arising out of a quarrel about a
woman, but these contentions are not satisfactorily sustained by the evidence, nor it is necessary to
take them into consideration in deciding the case.

Upon the foregoing statement of facts the defendant’s contention that he shot the deceased in self-
defense and is therefore exempt from punishment, must be sustained

The trial court was of opinion that the evidence offered by the accused established "an in complete
defense," which entitles the defendant to a reduction of the penalty, but not to complete exception
from punishment; in support of his opinion the trial judge reasons as follows:jgc:chanrobles.com.ph

"The accused claims exemption from criminal liability on the ground that the act was committed in self
defense. At the outset of the discussion of this point it may be well to quote the following from an
opinion cited by his counsel:jgc:chanrobles.com.ph
"‘The defendant, having admitted the killing, has assumed the task of establishing his defense, not that
the burden of proof shifted in the case, but it was necessary for him to, establish his defense to the
satisfaction of the court.’ (United State v. Capisonda 1 Phil. Rep., 575.)

"It is true that the presumption of innocence is always in favor of the accused, but when, as here, the
Government has actually proven the crime of homicidio, it need not go, farther and negative a particular
and exculpatory plea on the part of the accused such as self-defense. That must be established by the
accused himself ’to the satisfaction of the court.’

"Article 8, subdivision 4, of the Penal Code prescribes the elements which must exist in order that self-
defense may be established. Counsel for the accused maintains that it is sufficient if he establishes two
of these elements, namely, illegal aggression and lack of sufficient provocation. But in each of the
authorities which he cites on this propositions, although the court does not emphasize it, there was also
present the third element "reasonable necessity of the means employed to prevent or repel it"
(aggression). Thus in United States v. Salandanan (1 Phil. Rep., 478) the court lays stress (p. 479) on the
fact that "it can not be asserted that the danger to the defendant had ceased" because disarmament by
the deceased "was the contingency which the accused might well have reasonable feared." In other
words, there was or seemed to be a "reasonable necessity" or defendant’s part of continuing the
struggle. So in United States v. Patala (2 Phil. Rep., 752) the court says (p. 756): "Considering the nature
of the aggression the defendant could have reasonably believed that his life was in danger and that it
was a case of life or death with him." This again could mean nothing less than that the means employed
seemed reasonably necessary. In United States v. Regis (2 Phil. Rep., 113) the deceased was the
aggressor and the accused, although he had succeeded in wresting the bolo from the deceased Languido
inflicted the wounds because (p. 116) "fearing that Languido might again possess himself of the weapon
In none of these cases does not court say that this reason able necessity of the means employed" is not
essential the establishment of self-defense and that is failure to especially mention this element is not to
be construed prescribing the rule for which counsel contends is parent from United States v. De Castro
(2 Phil. Rep., 67), in which the opinion was written by the name judge (Mapa) who wrote the opinions in
United States Salandanan and United States v. Patala (supra) and where after reviewing the facts it is
observed (p. 70):jgc:chanrobles.com.ph

"‘. . . such means were not reasonably required or necessary to repel the attack . . . It follows that there
is absent in this case one of the three requisites section 4 of article 8 of the code — that is, the
reasonable necessity of the means employed to repel the attack — in order that the necessity for self-
defense may be a complete exemption from criminal liability.’

"Indeed such a constructions as counsel urges would effect a virtual repeal of article 8, subdivision 4,
which recognizes the validity of self-defense only provide ’there are the following attendant
circumstances; not, as in article 403, ’if the deed is attended by any of the following circumstances.’ It is
clear therefore that in order to show himself entitled to complete acquittal in this case the accused
must ’establish to the satisfaction of the court’ a ’reasonable necessity of the means employed to
prevent or repel’ the attack. On this point let us hear the accused.
"He testifies (Def., pp. 47, 49) that saw the deceased approaching when he was ’quite a distance
away, . . . might have been or 10 feet.’ This was apparent (p. 51) before he had turned his dead around
and seems that the rear entrance was obstructed by a barrel and other articles mentioned. He had been
sitting (Def., pp. 21, 42) on a each between the tienda and the next house on the right. But he could not
have been seated much in the rear of the front of either house for Adams, who was leaning against the
corner of the tienda, was not more than 2 feet way (Def., pp. 9, 22), near enough indeed for the accused
to reach over and touch him (Def., pp. 21, 47) and it seems also (p. 39) that the tendera who had been
seated on the steps behind the accused was only about a foot and a half from Adams. Moreover one
step seems to have bought the accused to the edge of the street (Def., pp. 19, 459. He testifies (Def., p.
49) that there were no fixtures built into the street and he mentions no obstruction of the right except
the house and its inmate, Townsend, who was standing on the corner (Def., pp. 48, 49). According to his
own testimony the accused, after recognizing his danger, had time enough to rise from his seat, look
backward for a way of escape, push Adams aside, extricate his revolver from the left side of his oath
(Def., p. 43) with his right hand (Def., p. 2), change the weapon from the right hand to the left (Def., p.
43), and fire the shot that killed the deceased. Since one step brought him to the edge of the street and
he ’had to wheel to the right’ anyway (Def., p. 19), it would seem that during this interval he might have
found time to move farther to the right, passing around Townsend if necessary, in order to dodge the
deceased. While the latter was coming 9 or 10 feet, it should not have been impossible, and hardly
difficult, for the accused to have covered the distance necessary to place him out of the deceased’s
path. If this case were being tried in any of the Federal courts it would be necessary for the accused to
show, in order to establish his plea of self-defense, that he had retreated as far as he safely could, even
though he was without fault and was in no danger of a murderous attack. [125 Am. & Eng. Encyc. of Law
(2d ed.) , p. 271-272. ] This is not the rule in all or perhaps a majority of the State courts, but in view of
the recent decision in United States v. Grafton 1 (4 Off. Gaz., 364) it seems more than likely that the
above rule would be followed in this jurisdiction. Besides, can it be said that there was ’a reasonable
necessity’ of shooting the deceased so long as the accused could escape?

"Again if escape were impracticable, was it ’reasonably necessary’ for the accused to employ a firearm
to repel or prevent the threatened attack? The Supreme Court has held, in considering this section, that
it is not necessary to use revolver in order to repel an attack with a calicut (United States v. Mendoza, 2
Phil. Rep., 109), nor to inflict a mortal wound with a dagger when assailed with a bamboo club. (United
States v. Castro, 2 Phil. Rep., 67.)

"The bolo carried by the deceased is a formidable-looking weapon with a blade fourteen and a half
inches in length, but it is not a sharp-pointed instrument and the blade is almost blunt through rust and
dullness. Indeed it is more than doubtful whether, if applied with ordinary force against any portion of
the accused’s body covered by clothing, it would penetrate the latter. According to the testimony of the
accused and his witnesses the deceased was hardly in condition to use the weapon with more than
ordinary force. Following is the accused’s description of the appearance of the deceased at the time
(Def., p. 53):jgc:chanrobles.com.ph

"‘He did not walk exactly straight, but he was not exactly staggering about; he was doing the same as
any other than man under the influence of liquor.’
"This is corroborated by Adams (Def., p. 4) and the tendera (p. 14), A man under the influence of liquor
and unable to walk straight cold hardly wield a weapon with full force or in such a manner that it could
not be dodged.

"Moreover the accused admits (Def., pp. 51, 79) — and it is a material circumstance [25 Am. & Eng.
Encyc. of Law. (2 ed.) , 282] — that he was taller than the deceased and he is unable to say (Def., p. 52)
that the latter was taller the Lieutenant Soledad, who was then present in court. If not, the deceased
must have been four or five inches shorter than the accused and he would have had to reach
accordingly in order to strike the accused in the face or head, which would be the most vulnerable
because least protected portion. Again the accused is a man of powerful physique, well proportioned
and strong of limb. Could he not have parried the blow or wrested the weapon from the man who he
says was drunk and unable to walk straight?

"Finally, if the use of a firearm seemed necessary, could it not least have been employed in such a way
that fatal results might have been avoided? a shot directed at the menacing arm with the same unerring
accuracy as that actually fired would have stayed the threatened blow. A bullet in the leg or foot not less
surely than that which pierced the assailant’s heart would have halted him and still spared his life. But
the accused directed his first ball at a vital spot and although he saw that this ’took effect’ and that the
deceased ’became helpless within a second’ (Def., p. 43) he fired two additional shots (Def., pp. 11, 18,
28-44). This certainly did not indicate that the accused was doing no more than was ’reasonably
necessary to prevent or repel’ the attack. It demonstrates a considerable degree of recklessness and, in
spite of the witnesses who speak of his apparent ’coolness,’ that the accused was in fact greatly excited.
Human life is too sacred and the tendency to disregard it too common to justify a court in finding that
the destruction of it under such circumstances is wholly blameless.

"But although the accused has not established ’to the satisfaction of the court . . . reasonable necessity’
for killing the deceased in order to save himself, he has made what the courts call an ’incomplete
defense’ under article 86 of the Penal Code (United States v. Mendoza, 2 Phil., Rep., 109; United States
v. De Castro, 2 Phil. Rep., 67), which entitles him to a reduction of the penalty by two degrees."cralaw
virtua1aw library

We agree with the trial court that on a plea of self-defense under the provisions of case 4 of article 8 of
the Penal Code, an accused person is not entitled to exemption from criminal responsibility unless each
and all the following facts are established to the satisfaction of the court:chanrob1es virtual 1aw library

First. That there was an unlawful aggression;

Second. That there was reasonable necessity for the employment of the means taken to prevent or
resist such unlawful aggression;

Third. That there was no sufficient provocation on the part of the accused.

We think it affirmatively appears from the evidence of record that there was an unprovoked, illegal
aggression on the part of the deceased, as held by the trial court, after a careful analysis of the
testimony; and further that there was reasonable necessity for the use of the means employed by the
accused to defend himself from this unlawful aggression.

The trial court held that in shooting and killing the deceased, the defendant adopted a mode of defense
which was not "reasonable necessary," because it was of opinion, first, that it was possible by taking to
flight he might have escaped injury, second, that he might have parried the blow aimed at him or
wrested the bolo from his assailant without the necessity for the use of his revolver; and third, against
his assailant, the accused might have successfully defended himself against the attack by directing his
aim at the arm or hand with which the bolo was held, or at the legs or feet of his assailant.

We do not think that under all the circumstances in this case it was the duty of the defendant to take
refuge in flight. Without attempting to lay down a rule covering all the cases wherein it is the duty of
one who is unlawfully assailed to ’give ground" instead of resisting the attack, it is sufficient to hold, that
under such circumstances that assailed person need not attempt to retreat where there is no
reasonable ground to believe that by so doing he can safely avoid the threatened attack; not is he
required to continue his retreat when there is no reason able ground to believe that he can do so with
safety. These prepositions fall within the rule of the Federal courts relied upon in the opinion of the trial
court and applied by him to the facts in this case. (Wheaton’s Criminal Law, 10th ed., p. 486, and many
cases there cited; Bishop’s Criminal Law, 8th ed., secs. 864 and 869, and cases cited; Clark’s Criminal
Law, p. 154, and cases cited.)

The defendant was sitting on a beach in a narrow alleyway when the deceased started to advance upon
him from a distance of from 9 to 12 feet, brandishing a formidable looking bolo." We do not think that
under the circumstances the defendant had reasonable grounds to believe that he could safely make his
escape by flight. In order to do so it was necessary that the defendant, in the second or two required by
his assailant to advance the couple of space which would bring him within striking distance, should
recognize his danger, resolve upon flight rather than resistance, rise from his seat, look backward only to
discover that there were obstacles with made it impracticable to escape to the rear, step forward a few
feet toward his approaching assailant, turn to the right or to the left. on reaching the street, thus
exposing his unprotected body to this assailant’s attack, and finally distance his pursuer in flight. If the
deceased was in fact endeavoring to reach the defendant and to strike him with his bolo, it is very
doubtful whether there was time to avoid the blow by instant flight; certainly the accused had
reasonable grounds to believe that he could not hope to make his escape with safety; and even though
it were true that "he might have found time" to dodge the deceased" and make his escape by flight, yet
it is too much to ask of one who is in imminent peril of felonious and murderous attack that without
reasonable grounds to believe can safely do so, he should "give ground" rather than use any other more
certain means to defend himself which he may have at hand.

Nor can we agree with the opinion of the trial court that there was no reasonable necessity for the use
of the revolver because the deceased was a smaller man than the accused and perhaps under the
influence of liquor, or because on examination. after the occurrence, it is discovered that the bolo in the
hands of the deceased was "almost blunt through rust and dullness."cralaw virtua1aw library

Mere physical superiority in no protection to an unarmed man, as against an assailant armed with a
large bolo, and if it be true that the deceased was under the influence of liquor when he made that
attack, his intoxication probably rendered him the more dangerous unless he was so drunk as to be
physically helpless, which is not suggested in the evidence.

Nor does the fact that after the occurrence the blade of the bolo was found to be "almost blunt through
rust and dullness," and that it is "more than doubtful whether if applied with ordinary force against any
portion of the accused’s body covered by clothing it would penetrate the latter," justify the conclusion
that there who no reasonable necessity for the defendant’s use of the only weapon at land to resist the
onslaught of his adversary. Lying on the desk in the trial court, in the broad light of day, that bolo was, in
the language of the trial court a "formidable looking weapon, with a blade fourteen and a half inches in
length;" the accused, in apparent imminent danger of his life, court not reasonably be excepted to take
the chance that mere ordinary force would be used in striking, or that the blow would be given upon
some protected part of his body, or that the cutting edge of the blade was not keen enough to give him
his death blow.

The findings of facts occurring in the cases cited in the opinion of the trial judge are not applicable in this
case. On a plea of self-defense the question as to the "reasonable necessity" for the use of the means
employed is one of fact to be determined in accordance with the particular facts proven in each case.

In the case of the United States v. Mendoza (2 Phil. Rep., 109), the court held that the character of the
weapon in the hands of the aggressor, a calicut, was such that in our opinion the defendant could not
have reasonably believed that it was necessary to kill his assailant in order to repel the attack. A calicut
is a comparatively harmless weapon. It is an instrument shaped like a small chisel (escoplo) with no
point or cutting edge on either side, and is used for the purpose of taking out the contents of betel nuts
or the like.

In the case of the United States v. De Castro (2 Phil. Rep., 67) the accused inflicted a mortal wound with
a dagger and the court held that such means were not reasonably required or necessary to repel the
attack, in view of the fact it was made with nothing more than a piece of bamboo (una simple caña
partida), a weapon insufficient to put the life of the person attacked in imminent peril, more especial in
consideration of the significance of the attack itself, for, according to the witnesses, the blow struck by
the deceased did not even bruise the accused.

A murderous attack with a formidable-looking boo is a very different from an assault with a small chisel
or a piece of bamboo, and the fact that this court has held that the taking of life was not reasonably
necessary in defending oneself against assault in the latter cases does not sustain a ruling that taking the
life of one’s assailant in the former case may not become reasonably necessary in the defense of one’s
person, as we think it was in the case at bar.

Finally, if it be admitted that it was reasonably necessary to make use of the revolver, it would be
unreasonable to hold that in the shades of night the defendant, with his adversary advancing upon him
and within a few feet of striking distance, should be held responsible for a failure to take deliberate and
careful aim at the arm or hand that held the bolo or at the legs or the effect of his assailant. The
reasonable and natural thing for him to do under the circumstances was to fire at the body of his
opponent, and thus make sure of his own life.

It is suggested that since the first shot inflicted a fatal wound there was no necessity for the firing of the
two succeeding shows in order to prevent or repel the attack. The record discloses that there shots were
fired in rapid succession. Not every wound which proves fatal is sufficient to stop an enemy’s attack, and
the accused and his assailant were so close at hand that until the assailant fell to the ground it can be
said that the accused was out of danger. Even a wounded man with a drawn bolo in his hand might
prove to be no mean antagonist at close quarters.

The judgment of the trial court is reversed and the appellant acquitted of the crime with which he was
charged, with the costs of both instances de oficio; and if in custody, he will be discharged forthwith, or
if a liberty under his bond will be cancelled and his sureties exonerated. ordered.

Torres, Johnson, Willard, and Tracey, JJ., concur.

Arellano, C.J., dissents.

G.R. No. 135981 January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts,
however, she is not entitled to complete exoneration because there was no unlawful aggression -- no
immediate and unexpected attack on her by her batterer-husband at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative
provocation that broke down her psychological resistance and self-control. This "psychological paralysis"
she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9
and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted upon
an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she
suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight
months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental
state, which overcame her reason and impelled her to vindicate her life and her unborn child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on
parole, because she has already served the minimum period of her penalty while under detention during
the pendency of this case.

The Case

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

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa
y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the
Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic
aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the
penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand
pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos
(P50,000.00), Philippine currency as moral damages."2

The Information3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province
of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with
intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a
hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following
wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and
tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of
the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of
the dura and meningeal vessels producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3,
1997.6 In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

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

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter,
they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's younger brother,
Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children,
namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They
each had two (2) bottles of beer before heading home. Arturo would pass Ben's house before reaching
his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look
for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the
evening for the masiaorunner to place a bet. Arturo did not see appellant arrive but on his way home
passing the side of the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which
Ben replied 'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about
fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy
check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan
who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when
he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the
gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters
behind the Genosas' rented house. Joseph, appellant and her children rode the same bus to Ormoc.
They had no conversation as Joseph noticed that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from
his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but
the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed
the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only
after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked
bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his
side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head.
Seeing this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of
[her] son.
"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at
Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house. Together with
SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went
inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet.
There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at
the side of an aparadora metal pipe about two (2) meters from where Ben was, leaning against a wall.
The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in
disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at
the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence
of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo
found that Ben had been dead for two to three days and his body was already decomposing. The
postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later
filed against appellant. She concluded that the cause of Ben's death was 'cardiopulmonary arrest
secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she
got worried that her husband who was not home yet might have gone gambling since it was a payday.
With her cousin Ecel Araño, appellant went to look for Ben at the marketplace and taverns at Isabel,
Leyte but did not find him there. They found Ben drunk upon their return at the Genosas' house. Ecel
went home despite appellant's request for her to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly
ignored him and instead attended to their children who were doing their homework. Apparently
disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the
television antenna or wire to keep her from watching television. According to appellant, Ben was about
to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell
on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes
because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew
into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and
told her 'You might as well be killed so nobody would nag me.' Appellant testified that she was aware
that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long
blade cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe, causing him to drop
the blade and his wallet. Appellant then 'smashed' Ben at his nape with the pipe as he was about to pick
up the blade and his wallet. She thereafter ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly
'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the
bedroom."7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage,
Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business
Administration, and was working, at the time of her husband's death, as a Secretary to the Port
Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang;
they were classmates; and they were third degree cousins. Both sets of parents were against their
relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness
developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother, Alex,
in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon
thereafter, the couple would quarrel often and their fights would become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic
married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk,
Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a
kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the
house but after a week, she returned apparently having asked for Ben's forgiveness. In another incident
in May 22, 1994, early morning, Alex and his father apparently rushed to Ben's aid again and saw blood
from Ben's forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had
apparently again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married in
'1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along, Marivic
became 'already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's two sons,
there were 'three (3) misunderstandings.' The first was when Marivic stabbed Ben with a table knife
through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the
forehead 'using a sharp instrument until the eye was also affected. It was wounded and also the ear' and
her husband went to Ben to help; and the third incident was in 1995 when the couple had already
transferred to the house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our
salary, we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which
they went to 'Uniloks' and drank beer – allegedly only two (2) bottles each. After drinking they bought
barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben,
after which he went across the road to wait 'for the runner and the usher of the masiao game because
during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners
so that I can place my bet.' On his way home at about 9:00 in the evening, he heard the Genosas
arguing. They were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his
fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him was
Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am innocent.'
Basobas thought they were joking.
"He did not hear them quarreling while he was across the road from the Genosa residence. Basobas
admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he
once told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he should leave her
and that Ben would always take her back after she would leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been
quarreling. He said Ben 'even had a wound' on the right forehead. He had known the couple for only one
(1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual
drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed,
and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but Ben would
follow her and seek her out, promising to change and would ask for her forgiveness. She said after she
would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These
doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would
beat her or quarrel with her every time he was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and
violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November
15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through
the open jalousies, he saw the spouses 'grappling with each other'. Ben had Marivic in a choke hold. He
did not do anything, but had come voluntarily to testify. (Please note this was the same night as that
testified to by Arturo Busabos.8 )

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he
heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window
of his hut which is located beside the Genosa house and saw 'the spouses grappling with each other
then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa'. He said
after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he
went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again,
please note that this was the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte.
His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be
living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that
Ben would pawn items and then would use the money to gamble. One time, he went to their house and
they were quarreling. Ben was so angry, but would be pacified 'if somebody would come.' He testified
that while Ben was alive 'he used to gamble and when he became drunk, he would go to our house and
he will say, 'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see bruises and
one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a
knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had been injured too. He said he
voluntarily testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon
of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in
the market place, several taverns and some other places, but could not find him. She accompanied
Marivic home. Marivic wanted her to sleep with her in the Genosa house 'because she might be
battered by her husband.' When they got to the Genosa house at about 7:00 in the evening, Miss Arano
said that 'her husband was already there and was drunk.' Miss Arano knew he was drunk 'because of his
staggering walking and I can also detect his face.' Marivic entered the house and she heard them quarrel
noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano
testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be
afraid every time her husband would come home drunk. At one time when she did sleep over, she was
awakened at 10:00 in the evening when Ben arrived because the couple 'were very noisy in the sala and
I had heard something was broken like a vase.' She said Marivic ran into her room and they locked the
door. When Ben couldn't get in he got a chair and a knife and 'showed us the knife through the window
grill and he scared us.' She said that Marivic shouted for help, but no one came. On cross-examination,
she said that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel,
Leyte. Marivic was his patient 'many times' and had also received treatment from other doctors. Dr.
Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical
injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS
Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert
witness.'

xxx xxx xxx

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

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries
were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine
the psychological make-up of the patient, 'whether she is capable of committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about
two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help
to settle or confront the Genosa couple who were experiencing 'family troubles'. He told Marivic to
return in the morning, but he did not hear from her again and assumed 'that they might have settled
with each other or they might have forgiven with each other.'

xxx xxx xxx

"Marivic said she did not provoke her husband when she got home that night it was her husband who
began the provocation. Marivic said she was frightened that her husband would hurt her and she
wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the
Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born
prematurely on December 1, 1995.
"Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but
that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was
violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu x x
x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom;
that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that
she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented
herself a room, and got herself a job as a field researcher under the alias 'Marvelous Isidro'; she did not
tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she
was arrested in San Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did not know
what happened to the pipe she used to 'smash him once'; that she was wounded by Ben on her wrist
with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged her
towards the drawer when he saw that she had packed his things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the
foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses
and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of
the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as
the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She
merely took the medical board exams and passed in 1986. She was called by the police to go to the
Genosa residence and when she got there, she saw 'some police officer and neighbor around.' She saw
Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was
wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area of the
head' which she described as a 'fracture'. And that based on her examination, Ben had been dead 2 or 3
days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the
crime of PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, x x x
wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the
use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997,
12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito
L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty
'beyond reasonable doubt' of the crime of parricide, and further found treachery as an aggravating
circumstance, thus sentencing her to the ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon automatic review and, under date of 24
January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as
counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the
Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief
Judicial Records Office, wherein she submitted her 'Brief without counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on
19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable
Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the
examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of
mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to
take the testimony of said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified
forensic pathologist in the country, who opined that the description of the death wound (as culled from
the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's URGENT
OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert psychological
and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90) days from notice,
and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the
TSN and relevant documentary evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L.
Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic
Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but
that the clinical interviews and psychological assessment were done at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private
clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head
of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the
Ateneo de Manila University and St. Joseph's College; and was the counseling psychologist of the
National Defense College. She has an AB in Psychology from the University of the Philippines, a Master
of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the American
Psychological Association. She is the secretary of the International Council of Psychologists from about
68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing
on the socio-demographic and psychological profile of families involved in domestic violence and nullity
cases. She was with the Davide Commission doing research about Military Psychology. She has written a
book entitled 'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as this is the first case of that
nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological
profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a
period of ten (10) years and discovered that 'there are lots of variables that cause all of this marital
conflicts, from domestic violence to infidelity, to psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse, verbal
abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx xxx xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of herself.
She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of
themselves and so when the violence would happen, they usually think that they provoke it, that they
were the one who precipitated the violence, they provoke their spouse to be physically, verbally and
even sexually abusive to them.' Dra. Dayan said that usually a battered x x x comes from a dysfunctional
family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of himself.
But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very
aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they
are involved in vices like gambling, drinking and drugs. And they become violent.' The batterer also
usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do
anything. Also, they see often how their parents abused each other so 'there is a lot of modeling of
aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband:
poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her
husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the
children.

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and
testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of
Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for
thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial
Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to
active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six
(26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General.
He obtained his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the
Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from
the Period 1954 – 1978' which was presented twice in international congresses. He also authored 'The
Mental Health of the Armed Forces of the Philippines 2000', which was likewise published
internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-
Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use
of the drug Zopiclom in 1985-86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology
deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a
bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered
a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In
those days, the primordial intention of therapy was reconciliation. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is
physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress
Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very
healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and
physiologic constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to
precipitate the post-traumatic stress disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or
neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx xxx xxx

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

xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and
she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity
and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the
deprivation of the continuous care and love of the parents. As to the batterer, he normally 'internalizes
what is around him within the environment.' And it becomes his own personality. He is very
competitive; he is aiming high all the time; he is so macho; he shows his strong façade 'but in it there are
doubts in himself and prone to act without thinking.'

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor.
Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial
a quo were elevated."9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly
defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back
of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had
killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding
the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the
"battered woman syndrome" plea; and requiring the lower court to report thereafter to this Court the
proceedings taken as well as to submit copies of the TSN and additional evidence, if any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic violence.
Their testimonies, along with their documentary evidence, were then presented to and admitted by the
lower court before finally being submitted to this Court to form part of the records of the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the
evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married
and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.
"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and
unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further
gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent
apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the
existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic
Genosa of the crime of parricide and condemning her to the ultimate penalty of death."13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and
in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of
the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of
witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on
appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked,
misunderstood or misapplied material facts or circumstances of weight and substance that could affect
the outcome of the case.14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case. In
any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting
on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L.
Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the
basis of those and of the documentary evidence on record -- made his evaluation, findings and
conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the trial judge's conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion
of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch
should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the
dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial
compliance with his constitutional obligation.15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally
married, despite the non-presentation of their marriage contract. In People v. Malabago,16 this Court
held:

"The key element in parricide is the relationship of the offender with the victim. In the case of parricide
of a spouse, the best proof of the relationship between the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may
be considered by the trial court if such proof is not objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased spouse
-- attested in court that Ben had been married to Marivic.17 The defense raised no objection to these
testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her
marriage to Ben.18 Axiomatic is the rule that a judicial admission is conclusive upon the party making it,
except only when there is a showing that (1) the admission was made through a palpable mistake, or (2)
no admission was in fact made.19 Other than merely attacking the non-presentation of the marriage
contract, the defense offered no proof that the admission made by appellant in court as to the fact of
her marriage to the deceased was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by a
gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September
29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her husband and
the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court
believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually
caused the victim's death." Determining which of these admitted acts caused the death is not dispositive
of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler,
womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised
the novel defense of "battered woman syndrome," for which such evidence may have been relevant.
Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly,
the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with
the surrounding facts that led to the death of the victim. Hence, his personal character, especially his
past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and
control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence
are necessary to present.20 As the former further points out, neither the trial court nor the prosecution
prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of
her unborn child. Any reversible error as to the trial court's appreciation of these circumstances has little
bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense
of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any
claimed justifying circumstance by clear and convincing evidence.21 Well-settled is the rule that in
criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of
proof from the prosecution to the defense.22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new
in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-
defense or, at the least, incomplete self-defense.23 By appreciating evidence that a victim or defendant
is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably fearful state
of mind of a person who has been cyclically abused and controlled over a period of time."24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical
or psychological behavior by a man in order to coerce her to do something he wants her to do without
concern for her rights. Battered women include wives or women in any form of intimate relationship
with men. Furthermore, in order to be classified as a battered woman, the couple must go through the
battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If
it occurs a second time, and she remains in the situation, she is defined as a battered woman."25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve.26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence,"27 which has three phases: (1) the tension-building phase; (2) the acute battering incident;
and (3) the tranquil, loving (or, at least, nonviolent) phase.28

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or
another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind,
nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself
to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of
the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her
"placatory" and passive behavior legitimizes his belief that he has the right to abuse her in the first
place.

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

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

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

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

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

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and forgiveness,"
each partner may believe that it is better to die than to be separated. Neither one may really feel
independent, capable of functioning without the other.31

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She
herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior
of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In
what way was this abusive and cruelty manifested to you?
A He always provoke me in everything, he always slap me and sometimes he pinned me down on the
bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

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

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

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

Q What will happen when he follow you?

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

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

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx xxx xxx

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

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

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

A Everytime he got drunk.

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

A Three times a week.

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

A Not necessarily that he would beat me but sometimes he will just quarrel me." 32

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye.
Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;

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

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

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

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

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

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

Q What is meant by furuncle axilla?

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

Q What is meant by pain mastitis secondary to trauma?

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

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it
was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month of
November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for
some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.
Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her
personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have a
record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23)
times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not response
when the medication was given to her, because tension headache is more or less stress related and
emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history in line of
giving the root cause of what is causing this disease. So, from the moment you ask to the patient all
comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is
unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

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

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified
that he had seen the couple quarreling several times; and that on some occasions Marivic would run to
him with bruises, confiding that the injuries were inflicted upon her by Ben.35

Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the
Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a
knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they
were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid
that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel
hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or
heard the couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night when
life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the
service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his
father, then my second child said, 'he was not home yet'. I was worried because that was payday, I was
anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I
prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?
A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I
had fears that he was again drunk and I was worried that he would again beat me so I requested my
cousin to sleep with me, but she resisted because she had fears that the same thing will happen again
last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

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

Q Will you tell this Court what was his disposition?

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

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

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

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

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

Q You said that he was yelling at you, what else, did he do to you if any?

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

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

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

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

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

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

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

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

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

A Yes, sir.

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

A Outside perhaps to drink more.

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

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

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

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

COURT INTERPRETER:

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

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

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

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

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

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

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

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

Q Is it a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me." 38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to the
court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term describe to
this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering emotional
anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical
abuse. The husband had a very meager income, she was the one who was practically the bread earner of
the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home very angry and which will trigger a lot of
physical abuse. She also had the experience a lot of taunting from the husband for the reason that the
husband even accused her of infidelity, the husband was saying that the child she was carrying was not
his own. So she was very angry, she was at the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was happening day in and day out." 39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put
forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her about three
hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important information were
escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the
case or at least you have substantial knowledge of the facts of the case?

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

xxx xxx xxx

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

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of battering
their wives?

A What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really happened.

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

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.40

Parenthetically, the credibility of appellant was demonstrated as follows:

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

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to
find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate
or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data
that I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,42 which was based on his interview and examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine,
normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in drinking
sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his
wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he became
physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he
got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband
went for a drinking [spree]. They had been married for twelve years[;] and practically more than eight
years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was
drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of her
feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x."43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.
Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on
wives and common law partners are both relevant and necessary. "How can the mental state of the
appellant be appreciated without it? The average member of the public may ask: Why would a woman
put up with this kind of treatment? Why should she continue to live with such a man? How could she
love a partner who beat her to the point of requiring hospitalization? We would expect the woman to
pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for
herself? Such is the reaction of the average person confronted with the so-called 'battered wife
syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not
been through a similar experience. Expert opinion is essential to clarify and refute common myths and
misconceptions about battered women.45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had
a significant impact in the United States and the United Kingdom on the treatment and prosecution of
cases, in which a battered woman is charged with the killing of her violent partner. The psychologist
explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the
latter's "ability to act decisively in her own interests, making her feel trapped in the relationship with no
means of escape."46 In her years of research, Dr. Walker found that "the abuse often escalates at the
point of separation and battered women are in greater danger of dying then."47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low
opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the
violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually
abusive to them."48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and
that she is the only hope for her spouse to change.49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits
involving violent family relations, having evaluated "probably ten to twenty thousand" violent family
disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his
experience with domestic violence cases, he became a consultant of the Battered Woman Office in
Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the
physical abuse on the woman would sometimes even lead to her loss of consciousness.50
Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely
abused, battered persons "may believe that they are essentially helpless, lacking power to change their
situation. x x x [A]cute battering incidents can have the effect of stimulating the development of coping
responses to the trauma at the expense of the victim's ability to muster an active response to try to
escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have
a predictable positive effect."52

A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
"even if a person has control over a situation, but believes that she does not, she will be more likely to
respond to that situation with coping responses rather than trying to escape." He said that it was the
cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less important
than the individual's set of beliefs or perceptions concerning the situation. Battered women don't
attempt to leave the battering situation, even when it may seem to outsiders that escape is possible,
because they cannot predict their own safety; they believe that nothing they or anyone else does will
alter their terrible circumstances."54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of
her partner, she also believes that he is capable of killing her, and that there is no escape.55 Battered
women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.56 Unless a
shelter is available, she stays with her husband, not only because she typically lacks a means of self-
support, but also because she fears that if she leaves she would be found and hurt even more.57

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the
relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to
the court a quohow the fatal incident that led to the death of Ben started, Marivic perfectly described
the tension-building phase of the cycle. She was able to explain in adequate detail the typical
characteristics of this stage. However, that single incident does not prove the existence of the
syndrome. In other words, she failed to prove that in at least another battering episode in the past, she
had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house;58 that Ben would seek
her out, ask for her forgiveness and promise to change; and that believing his words, she would return
to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe
that she was the only hope for Ben to reform? And that she was the sole support of his emotional
stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped
in their relationship? Did both of them regard death as preferable to separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled from
their numerous studies of hundreds of actual cases. However, they failed to present in court the factual
experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded
that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in
order to be appreciated. To repeat, the records lack supporting evidence that would establish all the
essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of
the woman to kill her abusive partner. Evidence must still be considered in the context of self-
defense.59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is
the state of mind of the battered woman at the time of the offense60 -- she must have actually feared
imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face
a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary.61 Thus, the Revised Penal Code provides the following requisites and effect of self-
defense:62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur;

First. Unlawful aggression;

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

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

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden and
unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.64 In the present
case, however, according to the testimony of Marivic herself, there was a sufficient time interval
between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to
withdraw from his violent behavior and escape to their children's bedroom. During that time, he
apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed
had ended altogether. He was no longer in a position that presented an actual threat on her life or
safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past
violent incidents, there was a great probability that he would still have pursued her and inflicted graver
harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the
brutalized person is already suffering from BWS, further evidence of actual physical assault at the time
of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require
the battered person to await an obvious, deadly attack before she can defend her life "would amount to
sentencing her to 'murder by installment.'"65 Still, impending danger (based on the conduct of the
victim in previous battering episodes) prior to the defendant's use of deadly force must be shown.
Threatening behavior or communication can satisfy the required imminence of danger.66Considering
such circumstances and the existence of BWS, self-defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the
absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the
victim.68 Thus, Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that
would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that
mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly
for review on any issue, including that which has not been raised by the parties.69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with
her husband constitutes a form of [cumulative] provocation which broke down her psychological
resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of
impending danger her husband posed continuously. Marivic truly experienced at the hands of her
abuser husband a state of psychological paralysis which can only be ended by an act of violence on her
part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder.71 Expounding thereon, he said:

"Q What causes the trauma, Mr. Witness?

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

xxx xxx xxx

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

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

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

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

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest now a
severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most
[acute] cases the first thing will be happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer
than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you
become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one
is the repetitious battering but the individual who is abnormal and then become normal. This is how you
get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder." 72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her
mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated."73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness
that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts.There was, thus, a resulting diminution of her freedom of action, intelligence
or intent. Pursuant to paragraphs 974and 1075 of Article 13 of the Revised Penal Code, this
circumstance should be taken in her favor and considered as a mitigating factor. 76
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this
state of mind is present when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome
reason.77 To appreciate this circumstance, the following requisites should concur: (1) there is an act,
both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed
from the commission of the crime by a considerable length of time, during which the accused might
recover her normal equanimity.78

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

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony80 that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
[or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually
being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and the
trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is beyond the
control of a person under similar circumstances, must have been what Marivic experienced during the
brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should
further be credited with the mitigating circumstance of passion and obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her
will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on
her prior to the killing. That the incident occurred when she was eight months pregnant with their child
was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such
perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery
There is treachery when one commits any of the crimes against persons by employing means, methods
or forms in the execution thereof without risk to oneself arising from the defense that the offended
party might make.81 In order to qualify an act as treacherous, the circumstances invoked must be
proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures,
which have no place in the appreciation of evidence.82Because of the gravity of the resulting offense,
treachery must be proved as conclusively as the killing itself.83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon
appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had
been found lying in bed with an "open, depressed, circular" fracture located at the back of his head. As
to exactly how and when he had been fatally attacked, however, the prosecution failed to establish
indubitably. Only the following testimony of appellant leads us to the events surrounding his death:

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

COURT:

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

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

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

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

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

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

xxx xxx xxx

ATTY. TABUCANON:

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

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the
other room.

Q What else happened?

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

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time
pointed at the back of her neck or the nape).

ATTY. TABUCANON:
Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself and I felt I
was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule
that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant.85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have
been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act
without risk from any defense that might be put up by the party attacked.86 There is no showing,
though, that the present appellant intentionally chose a specific means of successfully attacking her
husband without any risk to herself from any retaliatory act that he might make. To the contrary, it
appears that the thought of using the gun occurred to her only at about the same moment when she
decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and
deliberately employed the method by which she committed the crime in order to ensure its execution,
this Court resolves the doubt in her favor.87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to have
attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to
Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion temporal in its medium period
is imposable, considering that two mitigating circumstances are to be taken into account in reducing the
penalty by one degree, and no other modifying circumstances were shown to have attended the
commission of the offense.90 Under the Indeterminate Sentence Law, the minimum of the penalty shall
be within the range of that which is next lower in degree -- prision mayor -- and the maximum shall be
within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty
of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum;
to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for and be released from
detention on parole.91

Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple
to analyze and recognize vis-à-vis the given set of facts in the present case. The Court agonized on how
to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which
decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To
give a just and proper resolution of the case, it endeavored to take a good look at studies conducted
here and abroad in order to understand the intricacies of the syndrome and the distinct personality of
the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor
general and appellant's counsel, Atty. Katrina Legarda, have helped it in such learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised
Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered woman
syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be
proven to have characterized at least two battering episodes between the appellant and her intimate
partner. Second, the final acute battering episode preceding the killing of the batterer must have
produced in the battered person's mind an actual fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the
batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the
accused, based on the history of violence perpetrated by the former against the latter. Taken altogether,
these circumstances could satisfy the requisites of self-defense. Under the existing facts of the present
case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However,
there being two (2) mitigating circumstances and no aggravating circumstance attending her
commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon due
determination that she is eligible for parole, unless she is being held for some other lawful cause.
Costs de oficio.

SO ORDERED

G.R. No. L-43588 November 7, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
NATIVIDAD LUAGUE and WENCESLAO ALCANSARE, defendants-appellants.

Vicente E. Calanog for appellants.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The spouses Wenceslao Alcansare and Natividad Luague having been charged with homicide in the
Court of First Instance of Occidental Negros and sentenced, the former to the penalty of from eight
years and one day of prision mayor, as the minimum, to fourteen years, eight months and one day
of reclusion temporal, as the maximum, with the accessories of the law, and the latter to that of from six
years and one day of prision mayor, as the minimum, to twelve years and one day of reclusion temporal,
as the maximum, with the accessory penalties of the law, both to indemnify jointly and severally the
heirs of Paulino Disuasido in the sum of one thousand pesos, with costs, appealed to this court for a
review of the judgment rendered against them, praying that the same reversed and that they be
acquitted.

Upon examination of the appeal, it appears: that in the morning of February 18, 1935, while the accused
Natividad Luague was in her house situated in Lupuhan, barrio of Agpañgi, municipality of Calatrava,
Occidental Negros, with only her three children of tender age for company, her husband and co-accused
Wenceslao Alcansare having gone to grind corn in Juan Garing's house several kilometers away, Paulino
Disuasido came and began to make love to her; that as Natividad could not dissuade him from his
purpose, she started for the kitchen where Paulino followed her, notwithstanding her instance that she
could by no means accede to his wishes, for Paulino, bent on satisfying them at all costs, drew and
opened a knife and, threatening her with death, began to embrace her and to touch her breasts; that in
preparing to lie with her, Paulino had to leave the knife on the floor and the accused, taking advantage
of the situation, picked up the weapon and stabbed him in the abdomen; and that Paulino, feeling
himself wounded, ran away jumping through the window and falling on some stones, while the accused
set forth immediately for the poblacion to surrender herself to the authorities and report the incident.

Natividad Luague's act in mortally wounding Paulino Disuasido, unaided her husband and co-accused
Wenceslao Alcansare, and in the circumstances above set out, constitutes the exempting circumstance
defined in article 11, subsection 1, of the Revised Penal Code, because, as stated by a commentator of
note, "aside from the right to life on which rest the legitimate defense of our person, we have the right
to party acquired by us, and the right to honor which is not the least prized of man's patrimony." (1
Viada, 172, 173, 5th edition.) "Will the attempt to rape a woman constitute an aggression sufficient to
put her in a state of legitimate defense?" asks the same commentator. "We think so," he answer,
"inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, cannot her
very existence; this offense, unlike ordinary slander by word or deed susceptible of judicial redress, in an
outrage which impresses an indelible blot on the victim, for, as the Roman Law says: quum virginitas, vel
castitas, corupta restitui non protest (because virginity or chastity, once defiled, cannot be restored). It
is evident that a woman who, imperiled, wounds, nay kills the offender, should be afforded exemption
from criminal liability provided by this article and subsection 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, 301, 5th edition.)

Similar to the present question was the one determined the Supreme Court of Spain in a decision of
February 21, 1911: "This court in due homage to the principles of morality and in strict observance of
the provision of law justly interpreted, has always held that one of the rights referred to in article 8,
subsection 4, of the Penal Code, is that which assists a woman in defense of her honor when an attempt
is made to repel the aggression or to avoid in time the imminent danger of its consummation; and in
view of this, it must be conceded upon the findings of the trial court, that the accused Maria Sanchez
Cañistro acted in legitimate self-defense, because the conduct of Diego Cardenas, who made love to her,
in blowing in at midnight, knocking at the door and demanding admittance and against Maria's refusal,
insisting in his purpose and threatening to break open the door, in the light of prior events and the
circumstances of the case, implies the imminence of an affront against honor, involving an actual and
certain danger to the person so threatened, while at the same time the fact that she was alone that no
help was forthcoming; her founded fear that the door might give way and the dreaded evil wrought, her
consequent helplessness on the advent of that crisis, and her natural desire to attest openly her
conjugal fidelity by foiling all suspicious aspersions, show the reasonableness of the defensive measures
availed of by her and warrant her complete exemption from liability, inasmuch as, aside from all these, it
does not appear from the decision that said accused had previously committed any act deserving of
censure or marring the just motive which obviously induced her to repel, as she did, a violence
unprovoked by her. Thus viewed, all the requisites of the exempting circumstance above mentioned are
present and should be taken into consideration, etc." (1 Viada, 304, 5th edition.)

The theory the prosecution, which we consider a trifle unsubstantial is as follows: The accused
Wenceslao Alcansare, thinking that Paulino importuned his wife with unchaste advances, out of
jealousy, decided to get rid of him. His chance to bring about his plan can when, in the morning of the
crime, Paulino happened to pass in front of the house of the spouses with his friend Olimpio Libosada.
The accused wife invited Paulino to drop in, which the letter and his friend did. The spouses met them at
the threshold. The accused wife asked Paulino whether he had a knife and as the latter answered in the
affirmative, she asked him to lend it to lend it to her because she wanted to cut her nails, to which
Paulino willingly acceded, while the accused wife was cutting her nails, she asked Paulino where he
came from and the latter answered, turning his head around, that he came from the house of one
Inting, whereupon the accused wife slashed him in the abdomen. Paulino tried to return the blow but
the accused husband picked up a stone and struck him in the forehead. Wounded in the abdomen and
in the forehead, Paulino fled therefrom.

The government presented three witnesses to establish this theory. Pablo Alvarez, barrio lieutenant of
Cabuñgahan, testified that on his way to "communal" the day before the crime, he met the accused wife
who told him that she had wanted to see him and ask his help because her husband, who was jealous of
Paulino, was maltreating her and he was furthermore resolved to assault Paulino at sight. On the
following day, Alvarez, in his way to Bacacay, dropped in the house of the accused spouses to inquire
whether they had tobacco seeds and, as they answered him in the negative, he went his way. He had
hardly left the place when Paulino and Olimpio arrived, the accused wife inviting the former to drop in.
Paulino and Olimpio went to the threshold of the house and the accused spouses, in turn, went down,
and the four engaged in a conversation which, to Alvarez, seemed a friendly one. The witness left and
when he returned to the place sometime later, he was informed that Paulino had been stabbed.

The accused were from the barrio of Agpañgi and not from Cabuñgahan where the witness was the
barrio lieutenant. Had the accused wife gone to complain against the alleged conduct of her husband,
she would have sought the lieutenant of Agpañgi, her barrio. The accused wife, by reporting the incident
directly to the municipal authorities without seeking the intervention of any barrio lieutenant, showed
that she knew where to go in a difficulty.

Were it true that the accused husband, prompted by jealousy, designed to do away with Paulino, it
would have been because he observed that his wife somehow returned Paulino's attentions, for
otherwise he would not have indulge in tragic cogitations. From any point of view, however, it is quite
incomprehensible why the wife would take upon herself and the husband would charge her with, the
execution of the plan. The observation is no less true if the spouses plotted in common for it would have
been patently disgraceful and cowardly of the husband to thrust its execution upon the wife at the
hazard of her life, and liberty to shield his own, in the event of prosecution; and there is the husband
was thus minded. Under the theory of the prosecution, whether the accused husband doubted his wife's
fidelity or was sure of it, in connection with Paulino's attentions, the natural thing in either case would
be for him, unaided by his wife, to avenge the affront or punish the offender. In the case at bar, we must
assume that, if the motive attributed to him by the prosecution were true, the accused would have
acted, as would the great majority of men in identical circumstances.

The witness Alvarez, himself testified that he was informed the day before by the wife of the accused
husband that the latter would get even with Paulino at the first opportunity. The witness saw them
together in the morning of the crime and he should have surmised that the announced tragedy might
take place. Rather than foil it, as an agent of the law, if for no other reason, he went his way
unconcerned, as if nothing serious was impending.

We find his conduct, or that which he claims to have followed, so extremely strange to be considered
true. When the truth is beyond our reach, as is often the case, we have to be contented with the
probable. This is the basis of the so-called presumptions of fact. The acts which this witness claims to
have done are so out of ordinary conduct of men as to be devoid of probability. Occasionally, indeed,
there are those who behave strangely, but this is the exception and not the rule.

In addition to this, the theory of the prosecution that the accused husband and his wife had conspired to
kill Paulino is overcome by the very facts which the prosecution itself has attempted to prove. If such
conspiracy had really existed, the accused spouses would have been fully prepared to carry it into
execution, because rational beings differ from those who are not in that when they embark on anything,
they make the s equal to its realization. However, these amused, on the on, had neither a rusty bolo nor
an outworn club to cope with Paulino. The weapon with which Paulino was first wounded was his own
knife which, according to the prosecution, the accused wife had to borrow from him on the pretext that
she wanted to cut her nails, and later a stone which the accused husband casually picked up from the
ground. Yarns of this kind make good material for fables.

Angel Emia, the other government witness who testified at the trial that he saw the crime attributed to
the two accused by the prosecution, made a previous statement wherein he disclaimed knowledge of
who had stabbed Paulino. Required to explain the contradiction, he bungled in his attempt. The trial
judge erred in giving him credit. Olimpio Libosada, another government witness, likewise affirmed that
he had seen all that bad transpired, claiming that he then accompanied Paulino, It seem strange,
however, that in the two statements made by Paulino before his death he did not state that he was
accompanied by Libosada or by any other person in the morning of the crime. It likewise happens that
the conduct of this witness, according to his own testimony, appears to be inconsistent because he did
nothing to defend and help Paulino, his friend and companion, in that most critical moment, and did not
report the crime to the authorities, disappearing from the scene all of a sudden with a very frivolous
excuse that "he was afraid to be implicated". Furthermore, after discarding the testimony of Angel Emia,
there is nothing to corroborate that of Olimpio Libosada which, by its inherent weakness, cannot be
alone and unsubstantiated by other reliable incriminatory circumstances, support a judgment of
conviction.lawphil.net

As to the two statements, Exhibit C and D, styled, ante mortem by the Solicitor-General, the trial court
properly disregarded because them there is no evidence of record that Paulino had made them under a
sense of impending death and with no hope of recovery.

The trial judge gave unusual importance to the testimony of the two policemen who testified that they
made an ocular inspection of the scene of the crime and found no bloodstain in the kitchen of the house
of the accused spouses. This, according to the trial judge, destroys the theory of the defense that
Paulino was stabbed in said kitchen by the accused wife when he tried to lie with her through
intimidation and violence. We are of the opinion that the trial judge erred on this point as he did on
others. It appears that the said policemen did not also find any bloodstain on the threshold of the house
of the accused spouses where, according to the prosecution, the aggression took place. Therefore, said
testimony contradicts the defense no less than it does the prosecution.

In resume, we are of the opinion that we should, as we do hereby hold that the accused Natividad
Luague in wounding Paulino Disuasido to death, acted in legitimate self-defense, and that the other
accused Wenceslao Alcansare had no participation in said act; wherefore, reversing the appealed
judgment, we hereby acquit both accused, and order their immediate release, if in confinement, with
costs de oficio.

G.R. No. L-41964 January 31, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. JOSE DE LA CRUZ, ET AL., defendants.
JOSE DE LA CRUZ, Appellant.

Pedro Abad Santos for appellant.

Office of the Solicitor-General Hilado for appellee.
AVANCE�A, C.J.: chanrobles virtual law library

On the morning of November 25, 1933, in the municipality of San Luis, Province of Pampanga, while
Generosa de la Cruz was walking along the road, she was attacked by Cesareo Reyes, who was courting
her. He threw her on the ground and passed his hands over her body. When Cesareo's father, Guillermo
Reyes, was informed of the act imputed to his son, he went on the following morning to the home of
Paulino de la Cruz, the father of Generosa, to explain the incident to him. Guillermo Reyes and Paulino
de la Cruz are relatives. During their conversation they agreed to send for Cesareo to be thrashed, in
order that Guillermo might show that he would not permit his son to commit such an outrage. Cesareo
was called, but in the meantime a bench was made ready in the house upon which Cesareo was to lie
face downward and be thrashed. When Cesareo arrived and was already lying down on the bench and
about to be thrashed, Generosa de la Cruz entered the house and approached Cesareo. After uttering a
few words to him, Generosa stabbed Cesareo on the right side of his chest with a penknife. When
Cesareo felt that he was wounded, he arose and jumped out of the window, expiring on the pavement.
Generosa de la Cruz was accused of the death of Cesareo, pleaded guilty and was
convicted.chanroblesvirtualawlibrary chanrobles virtual law library

This case was filed against Jose de la Cruz, the brother of Generosa and he is charged with the crime of
murder for the death of Cesareo Reyes. He was found guilty by the court, as an accomplice, and
sentenced to the penalty of from six years and one day of prision mayor to twelve years and one day
of reclusion temporal, and to indemnify the heirs of the deceased in the amount of P500. From this
judgment the defendant appealed.chanroblesvirtualawlibrary chanrobles virtual law library

There is no evidence that the appellant took a direct part in the commission of the crime. But the court
finds that his liability as an accomplice is based upon the following two
facts.chanroblesvirtualawlibrary chanrobles virtual law library

The prosecution has attempted to prove that on the afternoon of the 25th, the day previous to the
occurrence, the appellant, armed with a revolver and accompanied by his sister Generosa, was looking
for the deceased. It is said the appellant then intended to kill Cesareo to vindicate his sister's honor. The
prosecution also tried to prove that a few moments before the aggression, of which the deceased was
the victim at the hands of Generosa in the house of her father, Paulino, the appellant, also armed with a
revolver, was in the lower part of said house, and when he heard that they went to procure a branch
of madre-cacao with which to thrash Cesareo, he said that if they did not kill him upstairs, he would kill
him downstairs.chanroblesvirtualawlibrary chanrobles virtual law library

These facts alone are not sufficient to prove the liability of the appellant for the death of Cesareo, not
even as an accomplice. The most that can be inferred from these facts is that he intended to kill
Cesareo. But even then, he did nothing in connection with his sister's act of attacking the deceased. It
appears from the evidence that the appellant was entirely ignorant of what was happening upstairs,
inasmuch as when he saw the branch of the madre-cacao, he inquired what it was for. There is no
liability by reason of complicity if there is no relation between the criminal act and the
accomplice.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, following the recommendation of the Solicitor-General, the judgment appealed from is
reversed and the appellant acquitted, with the costs de oficio. So ordered.
C.A. No. 384 February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.

Jose Ma. Recto for appellant.

Assistant Solicitor General Enriquez and Solicitor Palma for appellee..

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 defense of
her honor and that 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..

G.R. No. L-5318 December 23, 1909

THE UNITED STATES, plaintiff-appellee,

vs.
RAFAEL BUMANGLAG, ET AL., defendants. - GREGORIO BUNDOC, appellant.

Iñigo Bitanga for appellant.

Attorney-General Villamor for appellee.

TORRES, J.:
On the night of January 2, 1909, Rafael Bumanglag, an inhabitant of the pueblo of San Nicolas, Province
of Ilocos Norte, missed 4 baares or 40 bundles of palay which were kept in his granary, situated in the
place called "Payas," barrio No. 16 of the said pueblo, and on proceeding to search for them on the
following morning, he found them in an inclosed filed which was planted with sugar cane, at a distance
of about 100 meters from his granary; thereupon, for the purpose of ascertaining who had done it, he
left the palay there, and that night, accompanied by Gregorio Bundoc, Antonio Ribao, and Saturnino
Tumamao, he waited near the said field for the person who might return to get the palay. A man, who
turned out to be Guillermo Ribis, made his appearance and approaching the palay, attempted to carry it
away with him, but at that instant Bumanglag, Bundoc, and Ribao assaulted the presumed thief with
sticks and cutting and stabbing weapons; as a result of the struggle which ensued the person attacked
fell down and died instantly, Bumanglag and his companions believing that Guillermo Ribis was the
author of several robberies and thefts that had occurred in the place.

In view of the foregoing, the provincial fiscal filed a complaint on January 15, 1909, charging Rafael
Bumanglag, Gregorio Bundoc, and Antonio Ribao with the crime of homicide, and the trial judge, on
February 5 of the present year, rendered judgment in the case, sentencing the three accused persons to
the penalty of fourteen years eight months and one day of reclusión temporal, with the accessories, and
to the payment of an indemnity of P1,000 to the heirs of the deceased, and the costs in equal parts,
from which decision only Gregorio Bundoc appealed.

From the facts above mentioned, fully proven in this case, the commission of the crime of homicide,
defined and punished by article 404 of the Penal Code, is inferred, inasmuch as Guillermo Ribis was
violently deprived of his life in consequence of serious wounds and bruises, some of them of a mortal
nature, as appears from a certificate issued by a physician who examined the body of the deceased, and
who ratified said certificate at the trial under oath.

The accused Bundoc, the only appellant, pleaded not guilty, but, in the absence of justification, and his
exculpatory allegation being unreasonable, it is not proper to hold that he assaulted and killed the
deceased, with the help of his codefendants, in order to defend himself from an attack made by the
former with a bolo.

Both Gregorio Bundoc and his codefendants Bumanglag and Ribao declared that, during the fight with
the deceased Ribis, they only beat the latter with sticks, because he unsheathed the bolo he carried; but
from the examination made of the body it appeared that several serious wounds had been inflicted with
cutting and stabbing weapons, besides some bruises, and according to the declaration of the health
officer Felipe Barba, which declaration was confirmed by the municipal president of Laoag, the bolo
worn by the deceased was in its sheath and hanging from his waist; therefore it can not be concluded
that the deceased even intended to assault his murderers with his bolo either before he was attacked by
them or during the fight, because, had Ribis made use of the bolo he carried sheathed, the bolo would
have been found unsheathed at the place where the fight occurred, and it is not reasonable to believe
that, before falling to the ground in a dying condition he succeeded in sheathing his bolo, in which
condition it was found on his body.

It is therefore indisputable that, without any prior illegal aggression and the other requisites which
would fully or partially exempt the accused from criminal responsibility, the appellant and his two
companions assaulted Guillermo Ribis with sticks and cutting and stabbing arms, inflicting upon him
serious and mortal wounds, and therefore, the said accused is guilty of the crime of homicide as co-
principal by direct participation, fully convicted, together with his codefendants who are already serving
their sentence.

In the commission of the crime we should take into account the mitigating circumstance No. 7 of article
9 of the Penal Code, because the defendant acted with loss of reason and self-control on seeing that
Guillermo Ribis was taking material possession of the palay seized and hidden by him on the previous
night, thus committing one of the numerous unlawful acts perpetrated at the place, to the damage and
prejudice of those who, by their labor endeavor to provide themselves with the necessary elements for
their subsistence and that of their families. The special circumstance established by article 11 of the
same code should be also considered in favor of the accused, in view of the erroneous and quite general
belief that it is legal to punish, even to excess the thief who, in defiance of law and justice, while refusing
to work, devotes himself to depriving his neighbors of the fruits of their arduous labors; these two
circumstances are considered in the present case as especially admissible, without any aggravating
circumstance, and they determine, according to article 81, rule 5, of the Penal Code, the imposition of
the penalty immediately inferior to that prescribed by the law, and in its minimum degree, and
therefore —

By virtue of the foregoing considerations, we are of the opinion that, the judgment appealed from being
reversed with respect to Gregorio Bundoc only, the latter should be, and is hereby, sentenced to the
penalty of six years and one day of prisión mayor, to the accessories of article 61 of the code, to
indemnify the heirs of the deceased jointly or severally with his codefendants, in the sum of P1,000, and
to pay one-third the costs of both instances. So ordered.

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal
Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused
in a decision rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident
premeditation offset by the mitigating circumstance of voluntary surrender. The proper penalty
imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of
the deceased Davis Q. Fleischer in the sum of P 12,000.00 as compensatory damages, P 10,000.00 as
moral damages, P 2,000.00 as attorney's fees, the offended party having been represented by a private
prosecutor, and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs
of the deceased Flaviano Rubia in the sum of P12,000.00 as compensatory damages, P10,000.00 as
moral damages, P2,000.00 as attorney's fees, the offended party having been represent by a private
prosecutor, and to pay the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibanez
together with the two deceased Davis Fleischer and Flaviano Rubia, were fencing the land of George
Fleischer, father of deceased Davis Fleischer. The place was in the boundary of the highway and the
hacienda owned by George Fleischer. This is located in the municipality of Maitum, South Cotabato. At
the place of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n.,
Pieza II). At that time, appellant was taking his rest, but when he heard that the walls of his house were
being chiselled, he arose and there he saw the fencing going on. If the fencing would go on, appellant
would be prevented from getting into his house and the bodega of his ricemill. So he addressed the
group, saying 'Pare, if possible you stop destroying my house and if possible we will talk it over what is
good,' addressing the deceased Rubia, who is appellant's compadre. The deceased Fleischer, however,
answered: 'No, gademit, proceed, go ahead.' Appellant apparently lost his equilibrium and he got his
gun and shot Fleischer, hitting him. As Fleischer fell down, Rubia ran towards the jeep, and knowing
there is a gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the
Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the
assistant manager, on the one hand, and the land settlers of Cotabato, among whom was appellant.

From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R.
Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take
judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937
and settled in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato. He
established his residence therein, built his house, cultivated the area, and was among those who
petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation
and nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in
Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased
and later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the
survey report was not submitted until 1946 because of the outbreak of the second world war. According
to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for
Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be
distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open for
disposition, appraised and advertised for public auction. At the public auction held in Manila on August
14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of protests from the
settlers the corresponding award in its favor was held in abeyance, while an investigator was sent by the
Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days
with an amicable settlement signed by the representative of the settlers. This amicable settlement was
later repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon,
approved the same and ordered the formal award of the land in question to Fleischer and Company. The
settlers appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the
decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which
then consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture
and Natural Resources which affirmed the order of the Director of Lands awarding the contested land to
the company. The settlers as plaintiffs, lost that case in view of the amicable settlement which they had
repudiated as resulting from threats and intimidation, deceit, misrepresentation and fraudulent
machination on the part of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R)
which likewise affirmed on August 16, 1965 the decision of the Court of First Instance in favor of the
company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24,
1966, from the land which they had been occupying for about 30 years. Among those ejected was the
appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around
P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. The
second house is not far from the site of the dismantled house. Its ground floor has a store operated by
Mrs. June Talens who was renting a portion thereof. He also transferred his store from his former
residence to the house near the highway. Aside from the store, he also had a rice mill located about 15
meters east of the house and a concrete pavement between the rice mill and the house, which is used
for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other
leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain an
injunction or annulment of the order of award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the company
whereby he agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the
company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00 monthly. According
to him, he signed the contract although the ownership of the land was still uncertain, in order to avoid
trouble, until the question of ownership could be decided. He never paid the agreed rental, although he
alleges that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your house
and ricemill are located as per agreement executed on February 21, 1967. You have not paid as as even
after repeated attempts of collection made by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no alternative but to
terminate our agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the
land of Fleischers & Co., Inc. This six- month period shall expire on December 31, 1966.

In the event the above constructions have not been removed within the six- month period, the company
shall cause their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting
bamboo posts along the property line parallel to the highway. Some posts were planted right on the
concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with
the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished, would
have the effect of shutting off the accessibility to appellant's house and rice mill from the highway, since
the door of the same opens to the Fleischers' side. The fencing continued on that fateful day of August
22, 1968, with the installation of four strands of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all
morning, was awakened by some noise as if the wall of his house was being chiselled. Getting up and
looking out of the window, he found that one of the laborers of Fleischer was indeed chiselling the wall
of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and
deceased Fleischer was commanding his laborers. The jeep used by the deceased was parked on the
highway. The rest of the incident is narrated in the People's Brief as above-quoted. Appellant
surrendered to the police thereafter, bringing with him shotgun No. 1119576 and claiming he shot two
persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact
that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although
he acted in defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them
from the window of his house with the shotgun which he surrendered to the police authorities. He
claims, however, that he did so in defense of his person and of his rights, and therefore he should be
exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the
Revised Penal Code, but in order for it to be appreciated, the following requisites must occur:
First. Unlawful aggression;

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

Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, Revised
Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following
words: "Hindi, sigue, gademit, avante", in answer to his request addressed to his compadre, the
deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp.
227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house
being chiselled. The verbal exchange took place while the two deceased were on the ground doing the
fencing and the appellant was up in his house looking out of his window (pp. 225-227, supra). According
to appellant, Fleischer's remarks caused this reaction in him: "As if, I lost my senses and unknowingly I
took the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at
Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that there
was a firearm in the jeep and thinking that if he will take that firearm he will kill me, I shot at him (p.
132, supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim,
however, that the deceased were in lawful exercise of their rights of ownership over the land in
question, when they did the fencing that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons,
consisting of the deceased and their three laborers, were doing the fencing and chiselling of the walls of
appellant's house. The fence they were putting up was made of bamboo posts to which were being
nailed strands of barbed wire in several layers. Obviously, they were using tools which could be lethal
weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary
gadgets. Besides, it was not disputed that the jeep which they used in going to the place was parked just
a few steps away, and in it there was a gun leaning near the steering wheel. When the appellant woke
up to the sound of the chiselling on his walls, his first reaction was to look out of the window. Then he
saw the damage being done to his house, compounded by the fact that his house and rice mill will be
shut off from the highway by the fence once it is finished. He therefore appealed to his compadre, the
deceased Rubia, to stop what they were doing and to talk things over with him. But deceased Fleischer
answered angrily with 'gademit' and directed his men to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have
resulted in the further chiselling of the walls of appellant's house as well as the closure of the access to
and from his house and rice mill-which were not only imminent but were actually in progress. There is
no question, therefore, that there was aggression on the part of the victims: Fleischer was ordering, and
Rubia was actually participating in the fencing. This was indeed aggression, not on the person of
appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the
contested property, to destroy appellant's house and to shut off his ingress and egress to his residence
and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or
tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order
of award to Fleischer and Company was still pending in the Court of First Instance of Cotabato. The
parties could not have known that the case would be dismissed over a year after the incident on August
22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in
1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the
company, between the same parties, which the company won by virtue of the compromise agreement
in spite of the subsequent repudiation by the settlers of said compromise agreement; and that such
1970 dismissal also carried the dismissal of the supplemental petition filed by the Republic of the
Philippines on November 28, 1968 to annul the sales patent and to cancel the corresponding certificate
of title issued to the company, on the ground that the Director of Lands had no authority to conduct the
sale due to his failure to comply with the mandatory requirements for publication. The dismissal of the
government's supplemental petition was premised on the ground that after its filing on November 28,
1968, nothing more was done by the petitioner Republic of the Philippines except to adopt all the
evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil
Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21,
1967 was just to avoid trouble. This was explained by him during cross-examination on January 21, 1970,
thus:

It happened this way: we talked it over with my Mrs. that we better rent the place because even though
we do not know who really owns this portion to avoid trouble. To avoid trouble we better pay while
waiting for the case because at that time, it was not known who is the right owner of the place. So we
decided until things will clear up and determine who is really the owner, we decided to pay rentals (p.
169, t.s.n., Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within
which to vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up
to that time, instead of chiselling the walls of his house and closing appellant's entrance and exit to the
highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as long as there is a
possessor who objects thereto. He who believes that he has an action or a right to deprive another of
the holding of a thing must invoke the aid of the competent court, if the holder should refuse to deliver
the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed
therein he shall be protected in or restored to said possession by the means established by the laws and
the Rules of Court (Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to
appellant's house, nor to close his accessibility to the highway while he was pleading with them to stop
and talk things over with him. The assault on appellant's property, therefore, amounts to unlawful
aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind
(People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the right to
resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense
or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired
his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient
provocation on the part of appellant who was defending his property. As a matter of fact, there was no
provocation at all on his part, since he was asleep at first and was only awakened by the noise produced
by the victims and their laborers. His plea for the deceased and their men to stop and talk things over
with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for
justification are present. He should therefore be held responsible for the death of his victims, but he
could be credited with the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be
appreciated in this case because of the presence of provocation on the part of the deceased. As WE held
earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore
lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by
the aggressor was deliberately chosen with a special view to the accomplishment of the act without risk
to the assailant from any defense that the party assailed might have made. This cannot be said of a
situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently
established. The only evidence presented to prove this circumstance was the testimony of Crisanto
Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the
house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum, South Cotabato, when the accused
and his wife talked to him. Mrs. Narvaez asked him to help them, as he was working in the hacienda. She
further told him that if they fenced their house, there is a head that will be broken. Mamerto Narvaez
added 'Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will break his
head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the latter told him not to believe as
they were only Idle threats designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident
premeditation. As WE have consistently held, there must be "direct evidence of the planning or
preparation to kill the victim, .... it is not enough that premeditation be suspected or surmised, but the
criminal intent must be evidenced by notorious outward acts evincing the determination to commit the
crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused
premeditated the killing; that the culprit clung to their (his) premeditated act; and that there was
sufficient interval between the premeditation and the execution of the crime to allow them (him) to
reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer,
neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims
nor that the accused premeditated the killing, and clung to his premeditated act, the trial court's
conclusion as to the presence of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and
destroying his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary
surrender, it appearing that appellant surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant
awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill
bodega being closed. Not only was his house being unlawfully violated; his business was also in danger
of closing down for lack of access to the highway. These circumstances, coming so near to the time
when his first house was dismantled, thus forcing him to transfer to his only remaining house, must have
so aggravated his obfuscation that he lost momentarily all reason causing him to reach for his shotgun
and fire at the victims in defense of his rights. Considering the antecedent facts of this case, where
appellant had thirty years earlier migrated to this so-called "land of promise" with dreams and hopes of
relative prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his
dispassionate plea going unheeded-all these could be too much for any man-he should be credited with
this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any
qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of
incomplete defense-in view of the presence of unlawful aggression on the part of the victims and lack of
sufficient provocation on the part of the appellant-and by two generic mitigating circumstance of
voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed if the
deed is not wholly excusable by reason of the lack of some of the conditions required to justify the
same. Considering that the majority of the requirements for defense of property are present, the
penalty may be lowered by two degrees, i.e., to prision correccional And under paragraph 5 of Article
64, the same may further be reduced by one degree, i.e., arresto mayor, because of the presence of two
mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World
Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed to
the gravity of defendant's reaction. In the case at bar, the victims not only contributed but they actually
provoked the attack by damaging appellant's properties and business. Considering appellant's standing
in the community, being married to a municipal councilor, the victims' actuations were apparently
designed to humiliate him and destroy his reputation. The records disclose that his wife, councilor Feliza
Narvaez, was also charged in these two cases and detained without bail despite the absence of evidence
linking her to the killings. She was dropped as a defendant only upon motion of the prosecution dated
October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58,
CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite
its extensive landholdings in a Central Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and otherwise-to carry out its land
accumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to
take advantage of the government's resettlement program, but had no sufficient means to fight the big
landowners, were the ones prejudiced. Thus, the moral and material suffering of appellant and his
family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil liabilities to
serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the amendment
introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines
only and not to reparation of the damage caused, indemnification of consequential damages and costs
of proceedings. Considering that Republic Act 5465 is favorable to the accused who is not a habitual
delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES,
MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL
AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION,
WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF
DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND
ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS
NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY
ORDERED. NO COSTS.

SO ORDERED.
G.R. No. L-45130 February 17, 1937

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CELESTINO BONOAN Y CRUZ, defendant-appellant.

Paulino Sevilla, Fernando Arce and Gaudencio Garcia for appellant.

Undersecretary of Justice for appellee.

LAUREL, J.:

On January 5, 1935, the prosecuting attorney of the City of Manila filed an information charging
Celestino Bonoan, the defendant-appellant herein, with the crime of murder, committed as follows:

That on or about the 12th day of December, 1934, in the City of Manila, Philippine Islands, the said
accused, with evident premeditation and treachery, did then and there willfully, unlawfully and
feloniously, without any justifiable motive and with the decided purpose to kill one Carlos Guison,
attack, assault and stab the said Carlos Guison on the different parts of his body with a knife, thereby
inflicting upon him the following injuries, to wit:

"One stab wound at the right epigastric region penetrating one cm. into the superior surace of the right
lobe of the liver; and three non-penetrating stab wounds located respectively at the posterior and
lateral lumbar region, and left elbow", which directly caused the death of the said Carlos Guison three
days afterwards.

On January 16, 1935, the case was called for the arraignment of the accused. The defense counsel
forthwith objected to the arraignment on the ground that the defendant was mentally deranged and
was at the time confined in the Psychopatic Hospital. The court thereupon issued an order requiring the
Director of the Hospital to render a report on the mental condition of the accused. Accordingly, Dr.
Toribio Joson, assistant alientist, rendered his report,Exhibit 4, hereinbelow incorporated. On March 23,
1935, the case was again called for the arraignment of the accused, but in view of the objection of the
fiscal, the court issued another order requiring the doctor of the Psyhopatic Hospital who examined the
defendant to appear and produce the complete record pertaining to the mental condition of the said
defendant. Pursuant to this order, Dr. Toribio Joson appeared before the court on March 26, 1935 for
the necessary inquiry. Thereafter, the prosecution and the defense asked the court to summon the
other doctors of the hospital for questioning as to the mental condition of the accused, or to place the
latter under a competent doctor for a closer observation. The trial court then issued an order directing
that the accused be placed under the chief alienist or an assistant alienist of the Psychopatic Hospital for
his personal observation and the subsequent submission of a report as to the true mental condition of
the patient. Dr. Jose A. Fernandez, assistant alienist of the Psychopathic Hospital, rendered his report,
Exhibit 5, on June 11, 1935. On June 28, 1935, the case was called again. Dr. Fernandez appeared before
the court and ratified his report, Exhibit 5, stating that the accused was not in a condition to defend
himself. In view thereof, the case was suspended indefinitely.

On January 21, 1936, Dr. Dr. Fernandez reported to the court that the defendant could be discharged
from the hospital and appear for trial, as he was "considered a recovered case." Summoned by the
court, Dr. Fernandez, appeared and testified that the accused "had recovered from the disease." On
February 27, 1936, the accused was arraigned, pleaded "not guilty" and trial was had.

After trial, the lower court found the defendant guilty of the offense charged in the information above-
quoted and sentenced him to life imprisonment, to indemnify the heirs of the deceased in the sum of
P1,000, and to pay the costs.

The defendant now appeals to this court and his counsel makes the following assignment of errors:

A. The court a quo erred in finding that the evidence establishes that the accused has had dementia only
occasionally and intermittently and has not had it immediately prior to the commission of the defense.

B. The court a quo erred in finding that the evidence in this case further shows that during and
immediately after the commission of the offense, the accused did not show any kind of abnormality
either in behavior, language and appearance, or any kind of action showing that he was mentally
deranged.

C. The court a quo erred in declaring that under the circumstances that burden was on the defense to
show hat the accused was mentally deranged at the time of the commission of the offense, and that the
defense did not establish any evidence to this effect.

D. The court a quo in finding the accused guilty of the offense charged and in not acquitting him thereof.

It appears that in the morning of December 12, 1934, the defendant Celestino Bonoan met the now
deceased Carlos Guison on Avenida Rizal near a barbershop close to Tom's Dixie Kitchen. Francisco
Beech, who was at the time in the barbershop, heard the defendant say in Tagalog, "I will kill you."
Beech turned around and saw the accused withdrawing his right hand, which held a knife, from the side
of Guison who said, also in Tagalog, "I will pay you", but Bonoan replied saying that he would kill him
and then stabbed Guison thrice on the left side. The assaultt was witnessed by policeman Damaso
Arnoco who rushed to the scene and arrested Bonoan and took possession of the knife, Exhibit A.
Guison was taken to the Philippine General Hospital where he died two days later. Exhibit C is the report
of the autopsy performed on December 15, 1934, by Dr. Sixto de los Angeles.

As the killing of the deceased by the defendant-appellant is admitted, it does not seem necessary to
indulge in any extended analysis of the testimony of the witnesses for the prosecution. The defense set
up being that of insanity, the only question to be determined in this appeal is whether or not the
defendant-appellant was insane at the time of the commission of the crime charged.

On the question of insanity as a defense in criminal cases, and the incidental corollaries as to the legal
presumption and the kind and quantum of evidence required, theories abound and authorities are in
sharp conflict. Stated generally, courts in the United States proceed upon three different theories. (See
Herzog, Alfred W., Medical Jurisprudence [1931], sec. 655 et seq., p. 479 et seq.; also Lawson, Insanity in
Criminal Cases, p. 11 et seq.) Thefirst view is that insanity as a defense in a confession and avoidance
and as must be proved beyond reasonable doubt when the commission of a crime is established, and
the defense of insanity is not made out beyond a reasonable doubt, conviction follows. In other words,
proof of insanity at the time of committing the criminal act should be clear and satisfactory in order to
acquit the accused on the ground of insanity (Hornblower, C. J., in State vs. Spencer, 21 N. J. L., 196).
The second view is that an affirmative verdict of insanity is to be governed by a preponderance of
evidence, and in this view, insanity is not to be established beyond a reasonable doubt. According to
Wharton in his "Criminal Evidence" (10th ed.,vol. I, sec. 338), this is the rule in England (Reg. vs. Layton,
4 Cox, C. C., 149; Reg. vs. Higginson, 1 Car. & K., 130), and in Alabama, Arkansas, California, Georgia,
Idaho, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New
Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia and West Virginia.
The third view is that the prosecution must prove sanity beyond a reasonable doubt (Dais vs. United
States, 160 U. S. 496; 40 Law. ed., 499; 16 Sup. Ct. Rep., 353; Hotema vs. United States, 186 U. S., 413;
46 Law. ed., 1225; 22 Sup. Ct. Rep., 895; United States vs. Lancaster, 7 Biss., 440; Fed. Cas. No. 15,555;
United States vs. Faulkner, 35 Fed., 730). This liberal view is premised on the proposition that while it is
true that the presumption of sanity exists at the outset, the prosecution affirms every essential
ingredients of the crime charged, and hence affirms sanity as one essential ingredients, and that
a fortiori where the accused introduces evidence to prove insanity it becomes the duty of the State to
prove the sanity of the accused beyond a reasonable doubt.

In the Philippines, we have approximated the first and stricter view (People vs. Bacos [1922], 44 Phil.,
204). The burden, to be sure, is on the prosecution to prove beyond a reasonable doubt that the
defendant committed the crime, but insanity is presumed, and ". . . when a defendant in a criminal case
interposes the defense of mental incapacity, the burden of establishing that fact rests upon him. . . ." (U.
S. vs. Martinez [1916], 34 Phil., 305, 308, 309; U. S. vs. Bascos, supra.) We affirm and reiterate this
doctrine.

In the case at bar, the defense interposed being that the defendant was insane at the time he killed the
deceased, the obligation of proving that affirmative allegation rests on the defense. Without indulging in
fine distinctions as to the character and degree of evidence that must be presented sufficiently
convincing evidence, direct or circumstantial, to a degree that satisfies the judicial mind that the
accused was insane at the time of the perpetration of the offense? In order to ascertain a person's
mental condition at the time of the act, it is permissible to receive evidence of the condition of his mind
a reasonable period both before and after that time. Direct testimony is not required (Wharton, Criminal
Evidence, p. 684; State vs. Wright, 134 Mo., 404; 35 S. W., 1145; State vs. Simms, 68 Mo., 305; Rinkard
vs. State, 157 Ind., 534; 62 N. E., 14; People vs. Tripler, I Wheeler, Crim. Cas., 48), nor are specific acts of
derangement essential (People vs. Tripler, supra) to established insanity as a defense. Mind can only be
known by outward acts. Thereby, we read the thoughts, the motives and emotions of a person and
come to determine whether his acts conform to the practice of people of sound mind. To prove insanity,
therefore, cicumstantial evidence, if clear and convincing, suffice (People vs. Bascos [1922], 44 Phil.,
204).

The trial judge arrived at the conclusion that the defendantwas not insane at the time of the
commission of the act for which he was prosecuted on the theory that the insanity was only occassional
or intermittent and not permanentor continuous (32 C. J., sec. 561, p. 757). We are appraised of the
danger of indulging in the preseumption ofcontinuity in cases of temporary or spasmodic insanity.We
appreciate the reason forthe contrary rule. To be sure, courts should be careful to distinguish insanity in
law from passion or eccentricity, mental weakness or mere depression resulting from physical ailment.
The State should guard against sane murderers escaping punishment through a general plea of insanity.
In the case at bar, however, we are not cconcerned with connecting two or more attacks of insanity to
show the continuance thereof during the intervening period or periods but with the continuity of a
particular and isolated attack prior to the commission of the crime charged, and ending with a positive
diagnosis of insanity immediately following the commission of the act complained of. Upon the other
hand, there are facts and circumstances of record which can not be overlooked.The following
considerations have weighed heavily upon the minds of the majority of this court in arriving at a
conclusion different from that reached by the court below:.

(a) From the evidence presented by the defense, uncontradicted by the prosecution, it appears that the
herein defendant-appellant, during the periods from April 11 to April 26, 1922, and from January 6 to
January 10, 1926, was confined in the insane department of the San Lazaro Hospital suffering from a
disease diagnosed as dementia præcox. His confinement during these periods, it is true, was long before
the commission of the offense on December 12, 1934, but this is a circumstance which tends to show
that the recurrence of the ailment at the time of the occurence of the crime is not entirely lacking of any
rational or scientific foundation.

(b) All persons suffering from dementia præcox are clearly to be regarded as having mental disease to a
degree that disqualifies them for legal responsibility for their actions (Mental Disorder in Medico-Legal
Relations by Dr. Albert M. Barrett in Peterson, Haines and Webster, Legal Medicine and Toxology, vol. I,
p. 613). According to Dr. Elias Domingo, chief alienist of the Insular Psychopathic Hospital, the symptoms
of dementia præcox, in certain peeriods of excitement, are similar to those of manic depresive
psychosis (p. 19, t. s. n.) and, in either case, the mind appears "deteriorated" because, "when a person
becomes affected by this kind of disease, either dementia præcox or manic depresive psychosis, during
the period of excitement, he has no control whatever of his acts." (P. 21, t. s. n.) Even if viewed under
the general medico-legal classification of manic-depressive insanity, "it is largely in relation with the
question of irrestible impulse that forensic relations of manic actions will have to be considered. There is
in this disorder a pathologic lessening or normal inhibitions and the case with which impulses may lead
to actions impairs deliberations and the use of normal checks to motor impulses" (Peterson, Haines and
Webster, Legal Medicine and Toxology [2d ed., 1926], vol, I, p. 617).

(c) According to the uncontradicted testimony of Dr. Celedonio S. Francisco, at one time an interne at
San LazaroHospital, for four (4) days immediately preceding December 12, 1934 — the date when the
crime was committed — the defendant and appellant had "an attack of insomnia", which is one of the
symptoms of, and may lead to, dementia præcox (Exhibit 3, defense testimony of Dr. Celedonio S.
Francisco, pp. 13, 14, t. s. n.).

(d) The defendant-appellant appears to have been arrested and taken to the police station on the very
same day of the perpetration of the crime, and although attempted were made by detectives to secure
a statement from him (see Exhibit B and D and testimony of Charles Strabel, t. s. n. pp. 9, 10) he was
sent by the police department to the Psychopathic Hospital the day following the commission of the
crime. This is an indication that the police authorities themselves doubted the mental normalcy of the
acused, which doubt found confirmation in the official reports submitted by the specialists of the San
Lazaro Hospital.

(e) According to the report (Exhibit 4) of the alienist in charge, Dr. Toribio Joson, which report was made
within the first month of treatment, the defendant was suffering from a form of psychosis, called manic
depressive psychosis.We quote the report in full:

INSULAR PSYCHOPATIC HOSPITAL

MANDALUYONG, RIZAL

January 15, 1935.

MEMORANDUM FOR: The chief Alienist, Insular Psychopatic

Hospital, Mandaluyong, Rizal.

SUBJECT: Patient Celestino Bonoan, male,

Filipino, 30 years old, sent by the
Secret Service of the City of Manila
for mental examinition.

1. MENTAL STATUS:

(a) General behavior. — The patient is undetective, staying most of the time in his bed with his eyes
closed and practically totally motionless. At other times, however, but on very rare occassions and at
short intervals he apparently wakes up and then he walks around, and makes signs and ritualistic
movements with the extremities and other parts of the body. Ordinarily he takes his meal but at times
he refuses to take even the food offered by his mother or sister, so that there have been days in the
hospital when he did not take any nourishment. On several occassions he refused to have the bath, or to
have his hair cut and beard shaved, and thus appear untidy. He would also sometimes refuse his
medicine, and during some of the intervals he displayed impulsive acts, such as stricking his chest or
other parts of the body with his fists and at one time after a short interview, he struck strongly with his
fist the door of the nurse's office without apparent motivation. He also sometimes laughs, or smiles, or
claps his hands strongly without provocation.

(b) Stream of talk. — Usually the patient is speechless, can't be persuaded to speak, and would not
answer in any form the questions propounded to him. Very often he is seen with his eyes closed
apparently praying as he was mumbling words but would not answer at all when talked to. At one time
he was seen in this condition with a cross made of small pieces of strick in his hand. He at times during
the interviews recited passages in the literature as for example the following.

"La virtud y las buenas costumbres son la verdadera nobleza del hombre. (Truthfulness, honesty and
loyalty are among the attributes of a dependable character.)"

At one time he tried to recite the mass in a very loud voice in the hospital.

(c) Mood. — Patient is usually apathetic and indifferent but at times he looks anxious and rather
irritable. He himself states that the often feels said in the hospital.
(d) Orientation. — During the periods that he was acccessible he was found oriented as to place and
person but he did not know the day or the date.

(e) Illusion and hallucination. — The patient states that during the nights that he could not sleep he
could hear voices telling him many things. Voices, for example, told that he should escape. That he was
going to be killed because he was benevolet. That he could sometimes see the shadow of his former
sweetheart in the hospital. There are times however when he could not hear or see at all anything.

(f ) Delusion and misinterpretation. — On one occassion he told the examiner that he could not talk in
his first day in the hospital because of a mass he felt he had in his throat. He sometimes thinks that he is
already dead and already buried in the La Loma Cemetery.

(g) Compulsive phenomena. — None.

(h) Memory. — The patient has a fairly good memory for remote events, but his memory for recent
events or for example, for events that took place during his stay in the hospital he has no recollection at
all.

(i) Grasp of general informartion. — He has a fairly good grasp of general information. He could not,
however, do simple numerial tests as the 100-7 test.

( j) Insight and judgment. — At his fairly clear periods he stated that he might have been insane during
his first days in the hospital, but just during the interview on January 14, 1935, he felt fairly well. Insight
and judgment were, of course, nil during his stuporous condition. During the last two days he has shown
marked improvement in his behavior as to be cooperative, and coherent in his speech.

2. OPINION AND DIAGNOSIS:

The patient during his confinement in the hospital has been found suffering from a form of physchosis,
called Manic depressive psychosis.

(Sgd.) TORIBIO JOSON, M. D.

Assistant Alienist

In the subsequent report, dated June 11, 1935 (Exhibit 5), filed by Dr. Jose A. Fernandez, another
assistant alienist in the Insular Pshychopatic Hospital, the following conclusion was reached:

I am of the opinion that actually this patient is sick. He is suffering from the Manic Depressive form of
psychosis. It might be premature to state before the court has decided this case, but I believe it a duty to
state, that this person is not safe to be at large. He has a peculiar personality make-up, a personality
lacking in control, overtly serious in his dealings with the every day events of this earthly world, taking
justice with his own hands and many times executing it in an impulsive manner as to make his action
over proportionate — beyond normal acceptance. He is sensitive, overtly religious, too idealistic has
taste and desires as to make him queer before the average conception of an earthly man.

He will always have troubles and difficulaties with this world of realities.

(Sgd.) J. A. Fernandez, M. D.
Assistant Alienist
To prove motive and premeditation and, indirectly, mental normlacy of the accused at the time of the
commission of the crime, the prosecution called on policeman Damaso Arnoco. Arnoco testified that
upon arresting the defendant-appellant he inquired from the latter for the reason for the assault and
the defendant-appellant replied that the deceased Guison owed him P55 and would pay; that appellant
bought the knife, Exhibit A, for 55 centavos in Tabora Street and that for two days he had been watching
for Guison in order to kill him (pp. 5, 6, t. s. n.). Benjamin Cruz, a detective, was also called and
corroborated the testimony of policeman Arnoco. That such kind of evidence is not necessarily proof of
the sanity of the accused during the commission of the offense, is clear from what Dr. Sydney Smith,
Regius Professor of Forensic Medicine, University of Edinburg, said in his work on Forensic Medicine (3d
ed. [London], p. 382), that in the type of dementia præcox, "the crime is ussually preceded by
much complaining andplanning. In these people, homicidal attcks are common, because of delusions
that they are being interfered with sexually or that their property is being taken."

In view of the foregoing, we are of the opinion that the defendant-appellant was demented at the time
he perpetrated the serious offense charged in the information and that conseuently he is exempt from
criminal liability. Accordingly, the judgment of the lower court is hereby reversed, and the defendant-
appellant acquitted, with costs de oficio in both instances. In conforminty with paragraph 1 of article 12
of the Revised Penal Code, the defendant shall kept in confinement in the San Lazaro Hospital or such
other hospital for the insane as may be desiganted by the Director of the Philippine Health Service, there
to remain confined until the Court of First Instance of Manila shall otherwise order or decree. So
ordered.

G.R. No. 97471 February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-
appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castañeda for accused-appellants.

REGALADO, J.:

The primal issue for resolution in this case is whether accused-appellants committed the felony of
kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a
violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as
contended by the Solicitor General and found by the trial court; or the offense of simple robbery
punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense.
In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch
103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom
allegedly committed in the following manner:

That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of
this Honorable Court, the said accused, being then private individuals, conspiring together,
confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and
feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of
extorting ransom, to the damage and prejudice of the said offended party in such amount as may be
awarded to her under the provisions of the Civil Code.1

On a plea of not guilty when arraigned,2 appellants went to trial which ultimately resulted in a judgment
promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a
highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE AMURAO
GUILTY as principals of robbery with extortion committed on a highway and, in accordance with P.D.
532, they are both sentenced to a jail term of reclusion perpetua.

The two accused are likewise ordered to pay jointly and severally the offended private victim Ma.
Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages.3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under
Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying
Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not
the offense proved and cannot rightly be used as the offense proved which is necessarily included in the
offense charged.4

For the material antecedents of this case, we quote with approval the following counter-statement of
facts in the People's brief5 which adopted the established findings of the court a quo, documenting the
same with page references to the transcripts of the proceedings, and which we note are without any
substantial divergence in the version proffered by the defense.

This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused
(tsn, Jan. 8, 1990, p. 7).

Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika
Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6).

At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal
driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local
election there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go to
Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place
(Id., pp. 8-9).

Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of
her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta
Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-
10).
Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma.
Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10).

Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get
money from you." She said she has money inside her bag and they may get it just so they will let her go.
The bag contained P7,000.00 and was taken (Id., pp. 11-14).

Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but
would they drop her at her gas station in Kamagong St., Makati where the money is? The car went about
the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed. Enrique's gun was
menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said he is an NPA and
threatened her (Id., p.15).

The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma.
Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations
of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she
refused (Id., pp. 17-23).

Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again
towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side
of the superhighway and, after some vehicles ignored her, she was finally able to flag down a fish
vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground and
was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).

On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).

Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00
check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13)6

As observed by the court below, the defense does not dispute said narrative of complainant, except
that, according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant
to step out of the car. He even slowed the car down as he drove away, until he saw that his employer
had gotten a ride, and he claimed that she fell down when she stubbed her toe while running across the
highway.7

Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando,
Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and
divided their loot.8 Much later, when he took the stand at the trial of this case, appellant Puno tried to
mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers.9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been
advanced as to what crime was committed by appellants. The trial court cohered with the submission of
the defense that the crime could not be kidnapping for ransom as charged in the information. We
likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime
for which the accused should be held liable in those instances where his acts partake of the nature of
variant offenses, and the same holds true with regard to the modifying or qualifying circumstances
thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in
arriving at a correct appreciation and accurate conclusion thereon.

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the
specific nature of the crime as, for instance, whether a murder was committed in the furtherance of
rebellion in which case the latter absorbs the former, or whether the accused had his own personal
motives for committing the murder independent of his membership in the rebellious movement in
which case rebellion and murder would constitute separate offenses. 10 Also, where injuries were
inflicted on a person in authority who was not then in the actual performance of his official duties, the
motive of the offender assumes importance because if the attack was by reason of the previous
performance of official duties by the person in authority, the crime would be direct assault; otherwise, it
would only be physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or
at the time they committed the wrongful acts against complainant, other than the extortion of money
from her under the compulsion of threats or intimidation. This much is admitted by both appellants,
without any other esoteric qualification or dubious justification. Appellant Puno, as already stated,
candidly laid the blame for his predicament on his need for funds for, in his own testimony, "(w)hile we
were along the way Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that
your (sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need money and
I had an ulcer and that I have been getting an (sic) advances from our office but they refused to give me
any bale (sic). . . ." 12

With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim,
we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be
indubitable proof that
the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where
such restraint of her freedom of action was merely an incident in the commission of another offense
primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently
reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims
by the accused, even for an appreciable period of time but for the primary and ultimate purpose of
killing them, holds the offenders liable for taking their lives or such other offenses they committed in
relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or
serious illegal detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her
personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:

Q At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew?

A Santo Domingo Exit.

Q And how about the checks, where were you already when the checks was (sic) being handed to you?

A Also at the Sto. Domingo exit when she signed the checks.

Q If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto.
Domingo, after all you already received the money and the checks?
A Because we had an agreement with her that when she signed the checks we will take her to her house
at Villa (sic) Verde.

Q And why did you not bring her back to her house at Valle Verde when she is (sic) already given you the
checks?

A Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or some
other place along the way we might be apprehended by the police. So when we reached Santa Rita exit I
told her "Mam (sic) we will already stop and allow you to get out of the car." 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom,
considering the immediacy of their obtention thereof from the complainant personally. Ransom, in
municipal criminal law, is the money, price or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that
when complainant readily gave the cash and checks demanded from her at gun point, what she gave
under the circumstances of this case can be equated with or was in the concept of ransom in the law of
kidnapping. These were merely amounts involuntarily surrendered by the victim upon the occasion of a
robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the
crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the
trial court that the same constitutes the highway robbery contemplated in and punished by Presidential
Decree No. 532.

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in the information that
the victim was carried away and extorted for more money. The accused admitted that the robbery was
carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the
way they intimidated Ma. Socorro to produce more money that she had with her at the time for which
reason Ma. Socorro, not having more cash, drew out three checks. . . .

In view of the foregoing the court is of the opinion that the crimes committed is that punishable under
P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974) under which where robbery on the
highway is accompanied by extortion the penalty is reclusion perpetua.18

The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of
said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly
Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an
evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the
pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive
pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of
Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306
and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of
"highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that
is, as "highway robbery/brigandage." This is but in line with our previous ruling, and which still holds
sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. 20
Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion
thereon in the proper context and perspective, we find that a band of brigands, also known as
highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter
reveals that during the early part of the American occupation of our country, roving bands were
organized for robbery and pillage and since the then existing law against robbery was inadequate to
cope with such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly explained in a treatise
on the subject and are of continuing validity:

The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the
offense consists in the formation of a band by more than three armed persons for the purpose indicated
in art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to
show, in a prosecution under it, that a member or members of the band actually committed robbery or
kidnapping or any other purpose attainable by violent means. The crime is proven when the
organization and purpose of the band are shown to be such as are contemplated by art 306. On the
other hand, if robbery is committed by a band, whose members were not primarily organized for the
purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only
robbery. Simply because robbery was committed by a band of more than three armed persons, it would
not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that
the band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a
particular robbery, the crime is only robbery, or robbery in band if there are at least four armed
participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for
the objectives announced therein, could not have been unaware of that distinction and is presumed to
have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the
rule on contemporaneous construction, since it is one drawn from the time when and the circumstances
under which the decree to be construed originated. Contemporaneous exposition or construction is the
best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of
robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways
as defined therein, and not acts of robbery committed against only a predetermined or particular victim,
is evident from the preambular clauses thereof, to wit:

WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts
of depredation upon the persons and properties of innocent and defenseless inhabitants who travel
from one place to another, thereby disturbing the peace, order and tranquility of the nation
and stunting the economic and social progress of the people:

WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the
highest forms of lawlessness condemned by the penal statutes of all countries;

WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of
depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all
obstacles to the economic, social, educational and community progress of the people. (Emphasis
supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the
accused as their specific victim could be considered as committed on the "innocent and defenseless
inhabitants who travel from one place to another," and which single act of depredation would be
capable of "stunting the economic and social progress of the people" as to be considered "among the
highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly
constitute an obstacle "to the economic, social, educational and community progress of the people, "
such that said isolated act would constitute the highway robbery or brigandage contemplated and
punished in said decree. This would be an exaggeration bordering on the ridiculous.

True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised
Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein
when committed on the highways and without prejudice to the liability for such acts if committed.
Furthermore, the decree does not require that there be at least four armed persons forming a band of
robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms
no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage
under the Code as a crime of depredation wherein the unlawful acts are directed not only against
specific, intended or preconceived victims, but against any and all prospective victims anywhere on the
highway and whosoever they may potentially be, is the same as the concept of brigandage which is
maintained in Presidential Decree No. 532, in the same manner as it was under its aforementioned
precursor in the Code and, for that matter, under the old Brigandage Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery
committed by appellants should be covered by the said amendatory decree just because it was
committed on a highway. Aside from what has already been stressed regarding the absence of the
requisite elements which thereby necessarily puts the offense charged outside the purview and
intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any
unlawful taking of property committed on our highways would be covered thereby. It is an elementary
rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter
thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers
merely the letter of an instrument goes but skin deep into its meaning, 26 and the fundamental rule that
criminal justice inclines in favor of the milder form of liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for the
application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not
absurd, effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad
absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls
far short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For,
if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the
accused who happened to take a fancy thereto, would the location of the vehicle at the time of the
unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus
rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the
scenario is one where the subject matter of the unlawful asportation is large cattle which are
incidentally being herded along and traversing the same highway and are impulsively set upon by the
accused, should we apply Presidential Decree No. 532 and completely disregard the explicit
prescriptions in the Anti-Cattle Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case
was committed inside a car which, in the natural course of things, was casually operating on a highway,
is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that
particular provision precisely defines "highway robbery/brigandage" and, as we have amply
demonstrated, the single act of robbery conceived and committed by appellants in this case does not
constitute highway robbery or brigandage.

Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293
and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its
maximum period to prision mayor in its medium period. Appellants have indisputably acted in
conspiracy as shown by their concerted acts evidentiary of a unity of thought and community of
purpose. In the determination of their respective liabilities, the aggravating circumstances of
craft 29 shall be appreciated against both appellants and that of abuse of confidence shall be further
applied against appellant Puno, with no mitigating circumstance in favor of either of them. At any rate,
the intimidation having been made with the use of a firearm, the penalty shall be imposed in the
maximum period as decreed by Article 295 of the Code.

We further hold that there is no procedural obstacle to the conviction of appellants of the crime of
simple robbery upon an information charging them with kidnapping for ransom, since the former
offense which has been proved is necessarily included in the latter offense with which they are
charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to
gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has
been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an
information where it is charged that there was unlawful taking (apoderamiento) and appropriation by
the offender of the things subject of the robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which, as
formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from
the complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly
convey that the taking of complainant's money and checks (inaccurately termed as ransom) was
unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge
of kidnapping for ransom does not include but could negate the presence of any of the elements of
robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered
CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as
Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and
IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum, and jointly and severally pay
the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages and
P20,000.00 as moral damages, with costs.

SO ORDERED.
[G.R. No. 126116. June 21, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERLINDO YAM-ID alias ELY, accused-appellant.

DECISION

MELO, J.:

Before us on automatic review is the decision dated June 17, 1997 of Branch 29 of the Regional Trial
Court of the 7th Judicial Region stationed in Toledo City in its Criminal Cases No. TCS-2381 and 2382
finding accused-appellant ERLINDO YAM-ID guilty of murder and frustrated homicide, respectively, and
sentencing him to suffer the supreme penalty of death in the first case. The dispositive portion of the
decision reads:

WHEREFORE, in view of the foregoing considerations, in Crim. Case No. TCS-2381 this Court finds the
accused GUILTY of the crime of Murder and pursuant to Rep. Act 7659 hereby imposes the Mandatory
penalty of DEATH and to indemnify the parents of the victim the sum of P50,000.00 and to pay actual
damages in the amount of P40,000.00.

In Crim. Case No. TCS-2382, this Court finds the accused GUILTY of the crime of Frustrated Homicide
under Art. 249 RPC in relation to Art. 50 and after applying the indeterminate sentence law, it is hereby
the sentence of this Court that said accused will suffer the penalty of SIX (6) Years and ONE (1) DAY of
Prision Mayor in its minimum period to TEN (10) YEARS of Prision mayor in its maximum period. The OIC,
Branch Clerk of Court is hereby directed to remand the records of these cases to the Supreme Court for
automatic review.

SO ORDERED.

(p. 45, Rollo.)

The case for the prosecution is summarized by the Office of the Solicitor General as follows:

Julius Cantutay was a resident of Saksak, Pinamungajan, Cebu. Appellant Erlindo was his neighbor. So,
too, was Danilo Tejamo, his uncle, and six (6) year old Jerry Tejamo his cousin (p. 2, tsn, July 31, 1995).

On April 1, 1994, at around 2:00 oclock in the afternoon, Julius was sent by his grandmother, Amanda
Ceniza, to Brgy. Tutay, Pinamungajan, Cebu, to deliver benignit, a local delicacy, to his aunt Bebing
Dequiado. Jerry Tejamo was with Julius. On their way to Dequiados house, they passed by the house of
appellant who greeted them, Good Evening. After said salutation, appellant suddenly unsheathed a long
bolo. On instinct, Julius pushed Jerry, who was then walking in front of him, and told the latter to run.
Appellant ran after the two. Jerry was overtaken by Julius. Julius momentarily stopped to wait for Jerry,
but appellant caught up with Jerry. Appellant stabbed Jerry with the bolo on the left portion of his back.
Not content, appellant held Jerry by the hair and hacked him on the nape. Jerry fell to the ground. As
a coup de grace, appellant stabbed Jerry on the right side of his back. Jerry died on the spot. Appellant
then knelt over the prostrate body of Jerry and sucked the blood from his neck (pp. 3-9, tsn, July 31,
1995).
Scared out of his wits, Julius ran towards the house of Jerry to the latters father, Danilo Tejamo. Danilo
was then sleeping, Julius narrated the harrowing incident to Aniceta Tejamo, wife of Danilo. Aniceta
Tejamo is the sister of Juliuss father, hence, an aunt (p. 5, tsn, Oct. 26, 1995).

Aniceta roused Danilo from his sleep and both of them ran to the site of the incident. Before they could
reach the place, however, they were met by appellant, who had a bolo in hand. Danilo asked appellant
the whereabouts of his son. Appellant instead answered, I will kill all of you, and immediately hacked
Danilo. Danilo was able to dodge the attack, but he slipped and fell to the ground. Appellant struck at
the fallen Danilo, who tried to parry the attack, but Danilo nevertheless got hit on the bridge of his nose.
Danilo tried to stand, but appellant hacked him anew. This time, Danilo was hit on the head, and he fell
to the ground, bloodied (pp. 7-11, tsn, Oct. 26, 1995).

Since Danilo was not moving anymore, Aniceta shouted that Danilo was already dead. Appellant took
hold of Danilos collar to finish him off. Inexplicably, the tip of the bolo hit appellants stomach and blood
oozed from the wound. Perturbed, appellant ran towards his house and threw the bolo to the ground.
Danilo regained consciousness and sought treatment (pp. 12-15, tsn, Oct. 26, 1995).

Expenses for the wake and burial of Jerry amounted to P40,000.00 (p. 14, tsn, ibid.)

(pp. 109-112, Rollo.)

During the trial, accused-appellant denied killing the 6-year old Jerry Tejamo and pleaded self-defense
for his assault on Danilo Tejamo, Jerrys father. He contended that due to a land dispute between his
family and the in-laws of Danilo Tejamo, the latter tried to kill him by firing at his house. In retaliation,
he hacked Danilo Tejamo at the forehead but Danilo shot him, hitting him below the navel, in the
process, causing a prolapse (the exposure of his intestines). Then, he lost consciousness.

The trial court did not give credence to accused-appellants tale and after trial on the merits, it found him
guilty as charged.

In this automatic review, accused-appellant now makes a complete turn-around and admits killing Jerry
Tejamo. He, however, would plead insanity, and, as to his conviction for frustrated homicide regarding
his attack on Danilo Tejamo, accused-appellant seeks reversal on the ground that the prosecution failed
to prove his intent to kill.

The People contends that accused-appellant should not be allowed to change his theory on appeal. We
do not agree. An appeal in a criminal case opens the whole action for review on any question including
those not raised by the parties (People vs. Villaruel, 261 SCRA 386 (1996); People vs. Godines, 196 SCRA
765 [1991]; People vs. Villagracia, 226 SCRA 374 [1993]; see also Tabuena vs. Sandiganbayan, 268 SCRA
332 [1997]). The reason for this rule is that every circumstance in favor of the accused should be
considered (Sacay vs. Sandiganbayan, 142 SCRA 593 [1986]). This legal maxim acquires greater
significance in this case where accused-appellant faces the supreme penalty of death. It is our policy
that in a death penalty case, the Court cannot rush to judgment even when a despicable homicidal felon
is involved for an erroneous conviction will have a lasting stain in our escutcheon of justice
(People vs. Alicundo, 251 SCRA 293 [1995]).

At this instance, the defense, now as represented by the Public Attorneys Office (PAO), contends that at
the time of the incident, accused-appellant was suffering from a chronic mental disorder, otherwise
known as schizophrenia, which is characterized by a persons inability to distinguish between fantasy and
reality and is often accompanied by hallucinations and delusions (Encyclopedia and Dictionary of
Medicine and Nursing, Miller-Keane, p. 860 cited in the Brief for the Accused-Appellant, p. 63, Rollo).

Accused-appellants defense of insanity is anchored on the testimony of Dr. Antonio Yapha who treated
his wound. Said doctor testified that contrary to accused-appellants claim that Danilo shot him, he did
not find any entrance for the alleged gunshot wound. The doctor said that a wound caused by a .38
caliber slug will not result in a prolapse, that is, the intestines slipping out of the usual place. In the
words of the defense, this belied the testimony of accused-appellant that his stomach had a prolapse
and instead bolstered the testimony of the prosecution witness that accused-appellant tried to kill
himself with a long bolo (Brief for the Accused-Appellant. p. 63, Rollo). As further proof of insanity, the
defense cites accused-appellants gruesome act of sucking Jerry Tejamos blood after he had mercilessly
stabbed the boy to death.

Insanity is a defense in the nature of confession and avoidance, and as such must be proved beyond
reasonable doubt (People vs. Ambal, 100 SCRA 35[1980]). In considering the plea of insanity as a
defense in a criminal prosecution, the starting premise is that the law presumes all persons to be of
sound mind, or otherwise stated, the law takes for granted that acts are done consciously. Insanity being
the exception rather than the rule in the human condition, the moral and legal presumption is that
freedom and intelligence constitute the normal condition of a person and that a felonious or criminal act
(delicto deloso) has been done with deliberate intent, that is, with freedom, intelligence and malice and
that whoever, therefore, invokes insanity as a defense has the burden of proving its existence (People
vs. Aldemita, 145 SCRA 451 [1987] citing Article 800, Civil Code; US vs. Martinez, 34 Phil. 305, 308
[1916]; People vs. Cruz, 109 Phil. 288, 292 [1960]; People vs. Tagasa, 68 Phil. 147, 153 [1939]; US vs.
Guevarra, 27 Phil. 547 [1914]; People vs. Renegado, 57 SCRA 275, 286 [1974]; US vs. Zamora, 32 Phil.
218 [1915]; People vs. Bascos, 44 Phil. 204 [1923]).

In the case at bar, the defense regrettably failed to discharge its burden of proving that accused-
appellant was insane at the time of the commission of the crime. The only intimation of insanity that
accused-appellant could point at is the non-medical opinion of the PAO that accused-appellant was
suffering from schizophrenia because he sipped his victims blood and tried to kill himself afterwards. No
medical certificate was presented to substantiate the claim of insanity. No testimony was proffered to
support the allegation. We are not aware that the PAO now has the expertise, more so the authority, to
diagnose its clients of their mental condition. While we agree that sucking Jerrys blood and stabbing
ones self in the stomach are not acts expected of a normal person, we, however, have to be careful in
distinguishing between insanity and passion or eccentricity, mental weakness or mere depression
resulting from some physical ailment. The State should guard against sane murderers escaping
punishment through a general plea of insanity (People vs. So, 247 SCRA 708 [1995]; People vs. Dungo,
199 SCRA 860 [1991] citing People vs. Bonoan, 64 Phil. 87; see also People vs. Ambal,supra).

We do not discount the possibility that accused-appellant may have lost his mind after killing the 6-year
old Jerry as manifested by his slurping of the boys blood and his attempt to commit suicide. However,
for insanity to be appreciated as an exempting circumstance, it must be present immediately before or
at the very moment the crime is committed, and not thereafter. We do not believe that accused-
appellant was insane when he killed Jerry and hacked Danilo before attempting to take his own life. To
reiterate, no iota of evidence was presented to prove the same. Verily, the defense of insanity was not
even raised during the trial of the case. It is invoked only now on appeal, giving us the impression that it
is but an afterthought.

And now to the propriety of the penalty imposed.

The trial court cited the following as the attendant circumstances that qualified the killing of Jerry
Tejamo to murder, or aggravated the same, to wit:

1. Bad blood existed between the family of the accused and the complainants father-in-law due to a
land dispute prior to the incident therefore premeditation exist;

2. Treachery - the sudden and unexpected attack by the accused against unarmed minor who is 6 years
old without any means to defend himself and the suddenness and unexpectedness of the attack (Pp. vs.
Molato, G.R. No. 66634, 29 February 1989; Pp. vs. Canzano, 95 SCRA);

3. The killing of the victim Jerry Tejamo, a minor 6 year old child constitutes an aggravating
circumstance. There is treachery when an adult illegally attacks a child of tender years and causes his
death (U.S. vs. Butag, 38 Phil. 746).

(p. 43, Rollo.)

and having earlier explained that

. . . The brutal and senseless killing of Jerry Tejamo, a 6 year old child manifest accuseds perversity and
callousness as a cold blooded murderer and brings him to fore as a heinous criminal under Rep. Act 7659
which defines heinous as a grievous, odious and hateful offense by reason of their inherent or manifest
wickedness, viciousness, atrocity and perversity and repugnant and outrageous to the common standard
and norms of decency and morality in a just civilized and orderly society. This is the kind of man the
accused is.

(p. 42, Rollo.)

meted out on accused-appellant the supreme penalty of death in Criminal Case No. TCS-2381.

We affirm the finding of the trial court that treachery attended the killing of the 6-year old Jerry Tejamo
for when an adult person illegally attacks a child of tender years and causes his death, treachery exists
(People vs. Sancholes, 271 SCRA 527 [1997]; see also People vs. Caritativo, 256 SCRA 1 [1996]).

The trial court, however, erred in finding that evident premeditation attended the commission of the
crime. The following requisites must concur before evident premeditation may be appreciated: (a) the
time when the accused determined to commit the crime; (b) an act manifestly indicating that the
accused had clung to his determination; and (c) sufficient lapse of time between such determination and
execution to allow him to reflect upon the consequences of his act (People v.Magno, 260 SCRA 300
[1996]). Here, the prosecution omitted or failed to present any evidence to show any, much less, all of
the above elements. The bad blood that allegedly exists between accused-appellants family and the in-
laws of Danilo Tejamo, Jerrys father, does not, in any way, prove evident premeditation.

It was thus treachery that qualified the killing of Jerry Tejamo to murder. However, there being neither
an aggravating nor a mitigating circumstance, the maximum penalty of death imposed by the trial court
must be reduced to the indivisible penalty of reclusion perpetua in line with our decisions in People vs.
Magno, supra, and People vs. Lucas, (240 SCRA 66 [1995]) where we explained that if there are neither
aggravating nor mitigating circumstances, then the crime, although falling under Republic Act No. 7659,
will not be punished by death but by the lesser penalty of reclusion perpetua.

Anent the penalty imposed in Criminal Case No. TCS-2382, the Office of the Solicitor General correctly
observes that the crime committed by accused-appellant in stabbing Danilo Tejamo constituted only
attempted homicide since the wounds suffered by Danilo were not life threatening. Article 253 of the
Revised Penal Code provides the penalty of reclusion temporal for the crime of homicide. Under Article
51 of the Revised Penal Code, the penalty for an attempted crime is two degrees lower than that
prescribed by law. Attempted homicide is thus punishable by prision correccional. Applying the
Indeterminate Sentence Law, the minimum penalty to be meted out on accused-appellant should be
anywhere within the range of one (1) month and one (1) day to six (6) months of arresto mayor, and the
maximum should be taken from the medium period of prision correccional (Art. 64, par. 1) the range of
which is two (2) years, four (4) months and one (1) day, to four (4) years and two (2) months.
Considering that no aggravating or mitigating circumstance attended the commission of the Attempted
Homicide, the accused-appellant shall be sentenced to an indeterminate prison term of two (2) months
and one (1) day of arresto mayor as minimum, to two (2) years, four (4) months and one (1) day
of prision correccional medium as maximum.

WHEREFORE, the appealed decision is hereby MODIFIED, finding accused-appellant GUILTY of MURDER
in Criminal Case No. TCS-2381 and sentencing him to suffer the reduced penalty of RECLUSION
PERPETUA. He is likewise ordered to indemnify the parents of the victim the sum of Fifty Thousand
(P50,000.00) Pesos and to pay actual damages in the amount of Forty Thousand (P40,000.00) Pesos. In
Criminal Case No. TCS-2382, accused-appellant is found guilty of ATTEMPTED HOMICIDE instead and
sentenced to two (2) months and one (1) day of arresto mayor, as minimum, to two (2) years, four (4)
months, and one (1) day of prision correcional, as maximum.

SO ORDERED.

[G.R. NO. 148695 : May 27, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. RANDY BELONIO yLANDAS, Appellant.

DECISION

PER CURIAM:

For automatic review before this Court is the Decision1 of the Regional Trial Court (RTC) of Negros
Occidental (Branch 50 stationed in Bacolod City) in Criminal Case No. 00-20595, dated February 26,
2001, finding Randy Belonio y Landas guilty beyond reasonable doubt of the crime of Murder and
sentencing him to death.

The Amended Information dated April 27, 2000, charged appellant with Murder as
follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

That on or about the 6th day of January, 2000, in the City of Talisay, Province of Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with
an improvised knife, with intent to kill, and with treachery and evident premeditation, did then and
there wilfully, unlawfully and feloniously attack, assault and stab one RAMY TAMAYO, thus causing
injuries in the vital parts of the body of the latter which caused his instantaneous death.

That accused RANDY BELONIO y LANDAS is a recidivist for having been convicted by final judgment of 4
years, two (2) months, one day to six years in Crim. Case 94-16609 entitled: People of the Philippines v.
Randy Belonio y Landas for Homicide.2 ςrνll

Upon his arraignment on May 24, 2000,3 appellant, assisted by his counsel de oficio, pleaded not guilty.

In his Brief,4 the Solicitor General narrates the factual antecedents of the case, as summarized by the
trial court, as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Jennifer Carampatana testified that on January 6, 2000, her grandmother was buried and there was a
wake in their house at Brgy. Zone 14 in the evening. Her first cousin, the late Ramy Tamayo, also called
Ramon Tamayo, arrived in their house at about 10:00 P.M. together with his wife.

Jennifer invited Ramy to talk outside of their house. Before they could sit on a nearby bench, Ramy
decided to buy cigarettes from a store only a few meters away. The store was furnished with a small
opening for the store-keeper to attend to the customers and Ramy was occupying that space in front of
the opening to pay when the accused Randy Belonio arrived. Randy tried to force his way in front of the
opening and as a consequence, he bumped on Ramy. Jennifer saw that Randy gave Ramy a long and
hard look.

Jennifer said that he and Ramy sat and talked on the bench. The accused came over and sat on the other
end of the bench. Then the accused asked Ramy for the latters cigarette lighter. The accused asked
Ramy from what place did he come from and why was he there. Ramy answered the accused in a
normal manner.

The accused left but after a few minutes he returned, Jennifer, who was facing the direction of the
approaching accused, saw him and noticed that he was wearing long sleeves. Ramy Tamayo could not
see the accused as he was facing sideways to Jennifer. Without saying a word and without warning, the
accused delivered a stabbing blow with a dagger which was concealed in his hand. Ramy was hit on the
right chest, Jennifer stood up and ran towards her house shouting for help. There at the gate of the
fence of her house, she heard another thudding sound of a stabbing blow.When Jennifer entered her
house, she announced that Ramy was stabbed.

Jennifer and her relatives rushed out of the house. Jennifer saw the accused running away towards the
back of the barangay hall. The Tanods who came over failed to find the accused. Then when the
Barangay Captain and the policemen arrived, Jennifer informed them of the direction towards which the
accused fled. The accused was arrested from one (1) of the houses near the barangay hall where he took
refuge.

Dr. Raul V. Pama, Jr. was the acting City Health Officer of Talisay City on January 6, 2000. He conducted
an autopsy on the remains of Ramy Tamayo and listed his findings in a necropsy report which he
prepared. These findings are as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

1.Stabbed wound, 1.7 cm. in length, sutured sharp on one (1) and (inferior portion) and blunt on the
other end (superior portion) located at the 4th intercostal space;chanroblesvirtuallawlibrary

Dr. Pama explained that the wound is just above the left nipple and it penetrated downward hitting the
left side on the heart;chanroblesvirtuallawlibrary

2.Stabbed wound at the sternal. The wound is situated just above the site of the first wound.

The first wound was fatal as it damaged the heart.5 ςrνll

In his Brief,6 Randy Belonio adopted the above findings of the trial court and the prosecution. However,
he raises the defense of insanity, an exempting circumstance, and for such purpose, depends on the
expert assessment of his witness, Dr. Antonio Gauzon, who certified
thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

This is an individual who is suffering from (Schizophrenia), Chronic Undifferentiated and probably
triggered by (s) ubstance abuse of Shabu and Marijuana.

Recommending treatment and rehabilitation in a mental institution like the National Center for Mental
(H) ealth in Mandaluyong City or treatment in the psychiatric unit of the Corazon Locsin Montelibano
Regional Hospital in Bacolod City and later rehabilitation in the Negros (O) ccidental Mental Health
Center at Paglaum Village, Bacolod City.7 ςrνll

The RTC was convinced beyond reasonable doubt that appellant was guilty of Murder and that he had
full control of his mental faculties. It held that the testimony of Dr. Ester Regina Servando was more
weighty and credible than that of Dr. Gauzon.8 ςrνll

The trial court convicted appellant, thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

FOR ALL THE FOREGOING, the Court finds the accused Randy Belonio y Landas GUILTY beyond
reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal
Code as charged in the Information, as Principal by Direct (Participation) with the qualifying aggravating
circumstance of treachery and the special aggravating circumstance of recidivism. There are no other
aggravating circumstances nor is there any mitigating circumstance. Accordingly, the accused is
sentenced to suffer the supreme penalty of DEATH.

The accused is held civilly liable to pay the heirs of Randy Tamayo the following amounts:

1.The sum of P50,000.00 as death indemnity;

2.The sum of P3,629.70 as reimbursement for hospital expenses;

3.The sum of P940,716.00 as compensatory damages; andcralawlibrary

4.The sum of P100,000.00 in favor of Mrs. Jinky Tamayo as moral damages.9 ςrνll

Hence this automatic review.

In his brief, appellant assigns this lone alleged error of the court a quo for our
consideration:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The trial court seriously erred in not appreciating the exempting circumstance of insanity pursuant to
Article 12 of the Revised Penal Code, as amended favoring the accused-appellant.10 ςrνll

In support of his appeal, appellant argues that he was not in his right and normal frame of mind when
the killing took place. He avers that no normal person would ever bump another person, give the latter a
hard look and eventually stab him to death. He adds that he and the victim did not know each other at
that time.11 ςrνll

Appellant also asseverates that Dr. Gauzon is a reliable expert witness and is more knowledgeable and
experienced than Dr. Servando.12 He explains that Dr. Servando was once under the tutelage of Dr.
Gauzon and that at the time of their respective testimonies, the former was only 37 years old, while the
latter was 57 years old.13 Appellant also cites portions of the trial courts Decision where Dr. Gauzon
referred him to the Bacolod City Health Office for psychiatric examination. The trial court also branded
the accused as a homicidal maniac, which appellant says, is judicial notice of his mental sickness.14 In
sum, he concludes that all of these circumstances show that he was insane at the time of the killing.

We find these arguments without merit.

The moral and legal presumption is that one acts with free will and intelligence, and that a felonious or
criminal act has been done with deliberate intent, that is, with freedom and intelligence.15 Whoever,
therefore, invokes insanity as a defense has the burden of proving its existence.

Insanity is a defense in the nature of confession and avoidance, and as such must be adequately
proved.16 The law presumes that all persons are of sound mind, and that acts are done
consciously.17 ςrνll

In the case at bar, the defense utterly failed to discharge its burden of proving that appellant was
insane. The testimony or proof of appellants insanity must relate to the time preceding or the very
moment of the commission of the offense charged.18 We find the evidence adduced by the defense
sorely insufficient to establish his claim that he was insane at the time he killed Tamayo.

The main circumstances presented by the defense that remotely evinces that appellant was insane at
that time was his act of bumping the victim, without any apparent reason, giving him a long hard look,
and then eventually stabbing him. However, this sequence of events cannot overcome the legal
presumption of sanity, let alone prove appellants insanity.

In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing
the act.Proof of the existence of some abnormality of the mental faculties will not exclude imputability,
if it can be shown that the offender was not completely deprived of freedom and intelligence.19 As
culled from the trial courts findings, Belonio, after giving the victim a hard and resentful look, sat near
the latter, lighted his cigarette and conversed with him.20 Afterwards, he left and came back armed
with a dagger with which he stabbed Tamayo. Immediately thereafter, he escaped and went into hiding.
Contrary to a finding of the existence of insanity, these acts tend to establish that Belonio was well
aware of what he had just committed, and was capable of distinguishing right from wrong. Otherwise,
he would not have attempted to escape and go into hiding.

Aside from the bumping incident earlier discussed, the only other evidence of insanity that appellant
could relevantly point to is the medical certificate prepared by Dr. Antonio Gauzon stating that Belonio
was suffering from schizophrenia. This witness was presented to refute the findings of the prosecutions
expert witness Dr. Ester Regina Servando which negated the existence of this mental condition.

A run-through of Dr. Gauzons testimony strengthens this Courts resolve to affirm the lower courts
findings. Part of his testimony is reproduced as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

ATTY. JACILDO:

Q.Now, from this Medical Certificate, Doctor, there is specifically mentioned here that the subject here
was found to be incoherent and irrelevant and disoriented as to time, person and place, and that there
was plight of ideas and adjustment, as well as insights. Will you kindly explain this to this Honorable
Court?chanroblesvirtualawlibrary

A.What meant there is that, when you talk to the individual, sometimes you get answers right,
sometimes it is wrong. That is when you say that he is incoherent. When you say irrelevant, that pertain
to the question. Now, as far as dates, he could not remember the date. As far (as) the place, he could
not recall the place when he was in my office.And some of the persons that were with him, he could not
identify them. Now, when I say that there was plight of ideas, that (was) when he was talking.As a
matter of fact, I gave an example, when I asked a question when I asked him about the first killing
incident and his answer was, face to face kami, simbahan namon kag inagaw namon ang baril because of
warship. That is only one, because there were others that you could not understand what he was talking
about whether you have to rely only on other things. And sometimes, he would talk on things which are
not there. That means he was hallucinating. Now, judgment is usually poor. Because, when I asked him
of what he will do regarding the case, he would just say that, Ti, amo na ya. And he said, Ano kamo da
ya? kay ang warship. So, I was asking him about the values of what he was doing and he could not give
me that answer. And he does not know what he was doing. That means that there was no reality testing.
He does not know what is the real fantasy.

xxxxxxxxx

Q.Now in your opinion as an expert in terms of Psychiatry, about how long has the subject, Randy
Belonio, been suffering from his mental disorder that you mentioned in your Medical
Certificate?chanroblesvirtualawlibrary

A.Since childhood. If you would notice, I put there in the history that his father was medically disabled
when he was ten (10) years old, and the mother was only a fish vendor and there were, I think, eight (8)
to ten (10) in the family and with a meager income and have to (fend) for themselves. And in a very
young age of ten (10), the parents had the attitude of Bahala na ang kabata-an. That means, they have
to take care of themselves. At age 13, he was brought by the relative to Manila, and although he was
incoherent, you can get from his answer by mentioning so many places, (like) Manila, Pasay, Caloocan,
Novaliches, MRT, Cubao. That means, at age 13, he was already around these areas (f) ending for
himself. And the (s) treet (u) rchins, you know for a fact, that they are influenced by drugs. So, by that
time, with that dysfunctional family, and without any family to take care of himself, he was not doing
what the society expects him to do. So that they have dysfunctional family and with dysfunctional
relatives. So, the value system was really poor. So that the thinking process of this individual was not
developed to what the society expects him to be. So, it started at that time. So, when he was taking
shabu, it triggered every tissue that the symptoms came out. Thats why, he became suspicious, (he)
became irritable and anybody who would try to not befriend him and tried to be angry with him, he
would immediately suspect that something would happen to him in which he would react by defending
himself, and probably by killing. This individual had, actually, committed, say, killing. I would not say
murder because thats your term, but he had killed already three (3) persons in different years. So, he
does not already know what he was doing because he was psychotic, which in your parlance is insane.

Q.Now, Doctor, on January 6, 2000, and even prior to this date, what you are trying to say is that, this
subject, Randy Belonio, was already suffering from schizophrenia?chanroblesvirtualawlibrary

A.Yes.21 ςrνll

Dr. Gauzon testified that based on his interview with Belonio on October 25, 2000 (around nine
months afterthe stabbing incident) the latter was suffering from schizophrenia. However, the evidence
of insanity after the fact of commission of the offense may be accorded weight only if there is also proof
of alleged abnormal behavior immediately before or simultaneous to the commission of the
crime.22 ςrνll

The first set of facts narrated by the doctor relates to Belonios condition during the interview, months
after the incident. His report was silent as regards the incidents occurring prior to or during the
circumstance for which Belonio stands trial. The second part of his testimony dwelt on Belonios life
history, which was offered to prove that he had been suffering from his alleged condition since
childhood.

However, perusing the story as narrated by the doctor, the same was a mere statement of Belonios life
and family history, explaining what brought about his supposed mental condition. There was no showing
that he was actually suffering from schizophrenia during his juvenile years. To demonstrate that he had
been suffering from this condition, the doctor pointed to the fact that he has already killed three (3)
persons, including the present incident. However, such conclusion is non sequitur and, at best, a
circuitous argument. Further, the veracity of these findings is belied by the fact that the accused did not
raise this defense during his prosecutions for the other killings. No other circumstances evincing its
existence were presented during trial.

Furthermore, Dr. Gauzons examination cannot surmount Dr. Servandos punctilious and overwhelming
analysis, which took two days to narrate. She explained the history of the accused, including his family
and medical background, conducted a mental status examination, which was based on her direct
interviews with him, and gave a series of other written psychological examinations.23 ςrνll

The portion of Dr. Servandos testimony pertinent to her findings regarding Belonios mental condition is
quoted as follows:

FISCAL AGRAVIADOR:
Q.Can you please read for the record this (r) esult which consist only of one (1)
sentence?chanroblesvirtualawlibrary

A.Psychiatric Evaluation Result. Base(d) on history, mental status examination, and psychological
examination, patient was noted to be evasive, suspicious, and manipulative but no psychotic features
were observed upon evaluation. x x x.

Q.So, let us first, may I ask, what do you me(a) n by patient was noted to be evasive, suspicious, and
manipulative?chanroblesvirtualawlibrary

A.Actually, during the psychological examination, we have to give series of questions. And then the
patient (does) not answer directly to our question. He would go around the bush. And then, after that,
we also found out during the result of the psychological examination that the same pattern was noted.

Q.Does this mean that he was totally capable of being manipulative or

evasive?chanroblesvirtualawlibrary

A.Yes.

Q.He did it intentionally?chanroblesvirtualawlibrary

A.Yes.

Q.With the knowledge that he knew the answer but does not want to give the
answer?chanroblesvirtualawlibrary

A.Yes.

Q.Meaning to say, that he has full control of his mental faculties that time?chanroblesvirtualawlibrary

A.Yes.

Q.Because there was an intention to be manipulative and there was an intention to be evasive because
he was suspicious?chanroblesvirtualawlibrary

A.Yes.

Q.When you said that there was no psychotic features(,) x x x (w) hat does this
mean?chanroblesvirtualawlibrary

A.When you say psychosis, those are compose[d] of symptoms such as delusion and hallucination that
are being extracted from the patient or being displayed by the patient. However, during the
examination, the symptom or the patients answers are not enough to put him to a criteria of psychosis
because the delusion and the hallucination as well as the thought process, the thought contents must be
concretized enough in order for us to determine to diagnose that this patient is actually suffering from
psychosis.

Q.So, subjected to your examination, this patient did not come up to the level where he could be
diagnosed as having delusion and hallucinations?chanroblesvirtualawlibrary

A.Leading to psychotic features.

Q.So, that is the meaning of not having psychotic features?chanroblesvirtualawlibrary

A.Yes.24 ςrνll

The insanity issue raised by appellant boils down to the credibility of these two expert witnesses and
their respective testimonies. The time-honored doctrine is that the question of which witness to believe
is one best addressed by the trial court. The findings of fact of the judges who heard the evidence are
accorded great respect and are seldom disturbed on appeal for they had the opportunity to directly
observe the witnesses, and to determine by their demeanor on the stand the probative value of their
testimonies.25 The Court finds no cogent reason to disturb the ruling of the trial court which found Dr.
Servandos testimony more credible for the following
reasons:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

1.It could not be gainsaid that Dr. Servando is a disinterested and unbiased witness. She does not know
the accused and she is not known to the accused. She will not be benefited if the Court upholds her
findings and she had no reason to testify falsely. On the other hand, Dr. Gauzon was admittedly paid for
his services, hence, it could not be truly said that he is an impartial and disinterested witness. If his
findings (are) upheld, the benefit to the practice of his profession is
enormous;chanroblesvirtuallawlibrary

2.As a government official, Dr. Servando has the presumption of regularity in the performance of her
duty. No such presumption arises in favor of Dr. Gauzon;chanroblesvirtuallawlibrary

3.The findings of Dr. Servando that the accused is evasive and manipulative is supported by the Courts
own observation. x x x.

xxx

4.The conclusion of Dr. Gauzon is principally based on his interview with the accused and the members
of the accuseds family. It was the members of the accuseds family, the sister of the accused who
informed Dr. Gauzon that at the age of 13, the accused began to use drugs. The information that the
family of the accused was impoverished; that the accused spent his adolescence in Metro-Manila; that
the accused was a neglected child were all supplied by the kins of the accused who were not presented
as witnesses. There was no showing that Dr. Gauzon took precautionary steps to validate the
information.On the other hand, Dr. Servando also conducted interview of the accused and his
accompanying relatives including the BJMP guard who escorted him. In addition, Dr. Servando
conducted a series of written tests which are tailored to determine the mental capacity of a person. The
result of the written tests confirms the observation of Dr. Servando in the interview that the accused is
evasive and manipulative.26 ςrνll

Unlike in other jurisdictions, Philippine courts have established a more stringent criterion for the
acceptance of insanity as an exempting circumstance. In our jurisdiction, mere abnormality of the
mental faculties is not enough; there must be a complete deprivation of intelligence in committing the
act.

Every individual is presumed to have acted with complete grasp of ones mental faculties. Appellants
past does not discredit the facts that (1) he did not act with complete absence of the power to discern;
(2) he was not deprived of reason; and (3) he was not totally deprived of his will.
As held in People v. Madarang,27 ςrνll

An accused invoking the insanity defense pleads not guilty by reason thereof. He admits committing the
crime but claims that he is not guilty because he was insane at the time of its commission. Hence, the
accused is tried on the issue of sanity alone and if found to be sane, a judgment of conviction is
rendered without any trial on the issue of guilt as he had already admitted committing the crime. x x
x.28 ςrνll

Inasmuch as Belonio failed to present convincing evidence to establish his alleged insanity at the time he
stabbed Tamayo, we are constrained to affirm his conviction.

We must add that we have meticulously reviewed the records of this case, especially the evidence of the
prosecution. We find no reason to modify, much less reverse, the findings of the trial court that, indeed,
appellants guilt for murder has been proven beyond reasonable doubt.

We now look into the propriety of the penalty imposed by the trial court.

Under Art. 248 of the Revised Penal Code, as amended by RA 7659, any person found guilty of murder
shall be punished by reclusion perpetua to death. The same Code further instructs that when in the
commission of the crime there is present an aggravating circumstance which is not offset by any
mitigating circumstance, the greater penalty shall be applied.29 ςrνll

A review of the records supports the conclusion of the trial court on the presence of treachery, which
qualified the crime to murder. For treachery to be appreciated, two elements must concur: (1) the
means of execution employed gave the person attacked no opportunity to defend himself or retaliate;
and (2) the means of execution was deliberately or consciously adopted.30 ςrνll

In the present case, Jennifer Carampatana testified on how the killing was executed, as follows:

Q.What did you do there?chanroblesvirtualawlibrary

A.While we were conversing at that bench, after a short while, or five (5) minutes, Randy Belonio came
and he asked to light his cigarette because Ramy was smoking at that time. He was allowed by Ramy to
light his cigarette.

Q.Was there any conversation between Ramy Tamayo and Randy Belonio aside from asking lighting of
cigarette?chanroblesvirtualawlibrary

A.While asking to light the cigarette, Randy inquired from Ramy why he was there, Ramy told him that
he is attending the wake of his grandmother. Further, Randy asked him where he came from?And Ramy
answered that he is from Hda. Bubog.

Q.After that what did Randy Belonio do if he did anything?chanroblesvirtualawlibrary

A.He (sat) for a while, and a little while after that, he took a look at Ramy. After some minutes, he went
out.

Q.And after few minutes was there any incident happened?chanroblesvirtualawlibrary

A.After three (3) minutes Randy went back. He just walk normally, and when he was near Ramy he
stabbed Ramy hitting on the chest and while the weapon was still on the breast of Ramy I stood up and
ran away.

Q.From what direction did Randy came when he approach you?chanroblesvirtualawlibrary

A.He came from their house because their house is near our house.

Q.In relation to you, where is this house located?chanroblesvirtualawlibrary

A.Witness indicating that he came from her side, where the house is situated.

Q.And which side did you sit, the side near the direction of the house of Randy Belonio or far from the
house of Belonio?chanroblesvirtualawlibrary

A.The other side.

COURT:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

It was Ramy who was sitting near the house of Ramy?chanroblesvirtualawlibrary

WITNESS:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Yes, sir.

APP AGRAVIADOR:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Q.And what was the position of Ramy Tamayo when he was suddenly stab.

A.He was sitting in this manner.

COURT INTERPRETER:

Witness illustrating by crossing her legs over the other legs and move slightly her body was in side way.

APP AGRAVIADOR:

Q.That means that Ramy Tamayo did not see Randy Belonio who was coming from the
house?chanroblesvirtualawlibrary

A.Yes, Maam.

COURT:

Let me interrupt. He was facing you?Ramy was facing you while you were facing the direction where the
house of Randy Belonio, so that Ramy was facing on the other side?chanroblesvirtualawlibrary

WITNESS:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

A.Yes, sir.

COURT:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Proceed.
APP AGRAVIADOR:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Q.When Randy Belonio suddenly thrust the knife on the chest of Ramy Tamayo, did you see the reaction
of Ramy Tamayo?chanroblesvirtualawlibrary

A.He was not able to move. After that, I want to ran to the house.

APP AGRAVIADOR:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Q.When for the first time did you see the weapon used by Randy Belonio in taking the life of Ramy
Tamayo?chanroblesvirtualawlibrary

A.When he thrusted that knife.

COURT:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Before or after he delivered the stabbing blow?chanroblesvirtualawlibrary

A.At the moment he delivered the stabbing blow, that was the first time I saw that knife.

APP AGRAVIADOR:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Q.When you saw Randy Belonio approaching Ramy Tamayo x x x, you did not see the
knife?chanroblesvirtualawlibrary

A.Because he was wearing long sleeve to cover his hand.31 ςrνll

Appellants acts of leaving, then returning after a few minutes armed with a knife -- which he concealed
while approaching the victim and which he used in stabbing him -- while the latter was sitting, unaware
and not forewarned of any danger, manifest a deliberate employment of means to ensure the killing
without risk to himself arising from the defense which the victim might make.

The aggravating circumstance of recidivism, which was alleged in the Information was also duly proven.
A recidivist is one who at the time of his trial for one crime, shall have been previously convicted by final
judgment of another crime embraced in the same title of this Code.32 The records33 show that
appellant was previously convicted by final judgment of Homicide, which like Murder, falls under the
title of Crimes against Persons.

The award by the court a quo of P50,000 as civil indemnity is in accordance with jurisprudence.34 The
amount of P25,000 as exemplary damages should also be given because of the presence of the
aggravating circumstance of recidivism. However, the court erred in awarding the amount ofP940,716 as
loss of earning capacity. In accordance with the formula adopted by the Court in Villa Rey Transit, Inc. v.
CA (31 SCRA 511 [1970]), and using the American Expectancy Table of Mortality,35 the loss of Tamayos
earning capacity is to be computed as follows:

Net earning capacity = Life expectancy x (Gross Annual Income Living

Expenses)

where: Life expectancy = 2/3 (80 the age of the deceased)

= 2/3 (80-24) x [(P200x365) -P36,500]

=P1,362,545

The award for loss of earning capacity should therefore be P1,362,545.

There being testimonial evidence in support of moral damages, an award for it is proper. However, it
should be reduced to the more reasonable amount of P50,000 considering that it is not meant to enrich
an injured party.

Actual damages for the hospital expenses in the amount of P3,627.70 were duly supported by receipts.
However instead of awarding actual damages, we grant temperate damages in accordance with People
v. Andres ,36 where the Court said:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

[W]e declared in the case of People v. Villanueva that:

when actual damages proven by receipts during the trial amount to less than P25,000, as in this case,
the award of temperate damages for P25,000 is justified in lieu of actual damages of a lesser amount.
Conversely, if the amount of actual damages proven exceeds P25,000, then temperate damages may no
longer be awarded; actual damages based on the receipts presented during trial should instead be
granted.

The victims heirs should, thus, be awarded temperate damages in the amount of P25,000.37 ςrνll

Three Justices of the Court maintain their position that R.A. No. 7659 is unconstitutional insofar as it
prescribes the death penalty. Nevertheless they submit to the ruling of the majority that the law is
constitutional and the death penalty can be lawfully imposed in the case at bar.

WHEREFORE, the assailed Decision in Criminal Case No. 00-20595 convicting the appellant of the crime
of murder and sentencing him to DEATHis AFFIRMED. The award for loss of earning capacity
is INCREASED to P1,362,545; moral damages is REDUCED to P50,000; actual damages is DELETED but
temperate damages of P25,000 and exemplary damages of P25,000 are awarded.

In accordance with Section 25 of R.A. 7659 amending Section 23 of the Revised Penal Code, let the
records of this case be forthwith forwarded, upon finality of this decision, to the Office of the President
for possible exercise of the pardoning power.

Costs against appellant.

SO ORDERED.

G.R. No. L-37673 March 31, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
POTENCIANO TANEO, defendant-appellant.

Carlos S. Tan for appellant.

Attorney-General Jaranilla for appellee.

AVANCEÑA, C.J.:

Potenciano Tadeo live with his wife in his parent's house of the barrio of Dolores, municipality of Ormoc,
Leyte. On January 16, 1932, a fiesta was being celebrated in the said barrio and visitors were
entertained in the house. Among them were Fred Tanner and Luis Malinao. Early that afternoon,
Potenciano Taneo, went to sleep and while sleeping, he suddenly got up, left the room bolo in hand and,
upon meeting his wife who tried to stop him, he wounded her in the abdomen. Potenciano Taneo
attacked Fred Tanner and Luis Malinao and tried to attack his father after which he wounded himself.
Potenciano's wife who was then seven months pregnant, died five days later as a result of her wound,
and also the foetus which was asphyxiated in the mother's womb.

An information for parricide was filed against Potenciano Taneo, and upon conviction he was sentenced
by the trial court to reclusion perpetua with the accessory penalties, to indemnity the heirs of the
deceased in the sum of P500 and to pay the costs. From this sentence, the defendant appealed.

It appears from the evidence that the day before the commission of the crime the defendant had a
quarrel over a glass of "tuba" with Enrique Collantes and Valentin Abadilla, who invited him to come
down to fight, and when he was about to go down, he was stopped by his wife and his mother. On the
day of the commission of the crime, it was noted that the defendant was sad and weak, and early in the
afternoon he had a severe stomachache which made it necessary for him to go to bed. It was then when
he fell asleep. The defendant states that when he fell asleep, he dreamed that Collantes was trying to
stab him with a bolo while Abadilla held his feet, by reason of which he got up; and as it seemed to him
that his enemies were inviting him to come down, he armed himself with a bolo and left the room. At
the door, he met his wife who seemed to say to him that she was wounded. Then he fancied seeing his
wife really wounded and in desperation wounded himself. As his enemies seemed to multiply around
him, he attacked everybody that came his way.

The evidence shows that the defendant not only did not have any trouble with his wife, but that he
loved her dearly. Neither did he have any dispute with Tanner and Malinao, or have any motive for
assaulting them.

Our conclusion is that the defendant acted while in a dream and his acts, with which he is charged, were
not voluntary in the sense of entailing criminal liability.

In arriving at this conclusion, we are taking into consideration the fact that the apparent lack of a motive
for committing a criminal act does not necessarily mean that there are none, but that simply they are
not known to us, for we cannot probe into depths of one's conscience where they may be found, hidden
away and inaccessible to our observation. We are also conscious of the fact that an extreme moral
perversion may lead a man commit a crime without a real motive but just for the sake of committing it.
But under the special circumstances of the case, in which the victim was the defendant's own wife
whom he dearly loved, and taking into consideration the fact that the defendant tried to attack also his
father, in whose house and under whose protection he lived, besides attacking Tanner and Malinao, his
guests, whom he himself invited as may be inferred from the evidence presented, we find not only a
lack of motives for the defendant to voluntarily commit the acts complained of, but also motives for not
committing said acts.

Doctor Serafica, an expert witness in this case, is also of the same opinion. The doctor stated that
considering the circumstances of the case, the defendant acted while in a dream, under the influence of
an hallucination and not in his right mind.

We have thus far regarded the case upon the supposition that the wound of the deceased was direct
result of the defendant's act performed in order to inflict it. Nevertheless we may say further that the
evidence does not clearly show this to have been the case, but that it may have been caused
accidentally. Nobody saw how the wound was inflicted. The defendant did not testify that he wounded
his wife. He only seemed to have heard her say that she was wounded. What the evidence shows is that
the deceased, who was in the sala, intercepted the defendant at the door of the room as he was coming
out. The defendant did not dream that he was assaulting his wife but he was defending himself from his
enemies. And so, believing that his wife was really wounded, in desperation, he stabbed himself.

In view of all these considerations, and reserving the judgment appealed from, the courts finds that the
defendant is not criminally liable for the offense with which he is charged, and it is ordered that he be
confined in the Government insane asylum, whence he shall not be released until the director thereof
finds that his liberty would no longer constitute a menace, with costs de oficio. So ordered.

[G.R. No. 149453. April 1, 2003.]

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE PHILIPPINE
NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUÑO, STATE PROSECUTORS PETER L. ONG
and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR CONRADO M. JAMOLIN and CITY
PROSECUTOR OF QUEZON CITY CLARO ARELLANO, Petitioners, v. PANFILO M. LACSON, Respondent.

RESOLUTION

CALLEJO, SR., J.:

Before the Court is the petitioners’ Motion for Reconsideration 1 of the Resolution 2 dated May 28,
2002, remanding this case to the Regional Trial Court (RTC) of Quezon City, Branch 81, for the
determination of several factual issues relative to the application of Section 8 of Rule 117 of the Revised
Rules of Criminal Procedure on the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 filed
against the respondent and his co-accused with the said court. In the aforesaid criminal cases, the
respondent and his co-accused were charged with multiple murder for the shooting and killing of eleven
male persons identified as Manuel Montero, a former Corporal of the Philippine Army, Rolando Siplon,
Sherwin Abalora, who was 16 years old, Ray Abalora, who was 19 years old, Joel Amora, Jevy Redillas,
Meleubren Sorronda, who was 14 years old, 3 Pacifico Montero, Jr., of the 44th Infantry Battalion of the
Philippine Army, Welbor Elcamel, SPO1 Carlito Alap-ap of the Zamboanga PNP, and Alex Neri, former
Corporal of the 44th Infantry Battalion of the Philippine Army, bandied as members of the Kuratong
Baleleng Gang. The respondent opposed petitioners’ motion for reconsideration. 4

The Court ruled in the Resolution sought to be reconsidered that the provisional dismissal of Criminal
Cases Nos. Q-99-81679 to Q-99-81689 were with the express consent of the respondent as he himself
moved for said provisional dismissal when he filed his motion for judicial determination of probable
cause and for examination of witnesses. The Court also held therein that although Section 8, Rule 117 of
the Revised Rules of Criminal Procedure could be given retroactive effect, there is still a need to
determine whether the requirements for its application are attendant. The trial court was thus directed
to resolve the following:chanrob1es virtual 1aw library

. . . (1) whether the provisional dismissal of the cases had the express consent of the accused; (2)
whether it was ordered by the court after notice to the offended party; (3) whether the 2-year period to
revive it has already lapsed; (4) whether there is any justification for the filing of the cases beyond the 2-
year period; (5) whether notices to the offended parties were given before the cases of respondent
Lacson were dismissed by then Judge Agnir; (6) whether there were affidavits of desistance executed by
the relatives of the three (3) other victims; (7) whether the multiple murder cases against respondent
Lacson are being revived within or beyond the 2-year bar.

The Court further held that the reckoning date of the two-year bar had to be first determined whether it
shall be from the date of the order of then Judge Agnir, Jr. dismissing the cases, or from the dates of
receipt thereof by the various offended parties, or from the date of effectivity of the new rule.
According to the Court, if the cases were revived only after the two-year bar, the State must be given
the opportunity to justify its failure to comply with the said time-bar. It emphasized that the new rule
fixes a time-bar to penalize the State for its inexcusable delay in prosecuting cases already filed in court.
However, the State is not precluded from presenting compelling reasons to justify the revival of cases
beyond the two-year bar.cralaw : red

In support of their Motion for Reconsideration, the petitioners contend that (a) Section 8, Rule 117 of
the Revised Rules of Criminal Procedure is not applicable to Criminal Cases Nos. Q-99-81679 to Q-99-
81689; and (b) the time-bar in said rule should not be applied retroactively.

The Court shall resolve the issues seriatim.

I. SECTION 8, RULE 117 OF THE

REVISED RULES OF CRIMINAL

PROCEDURE IS NOT APPLICABLE

TO CRIMINAL CASES NOS.

Q-99-81679 TO Q-99-81689.

The petitioners aver that Section 8, Rule 117 of the Revised Rules of Criminal Procedure is not applicable
to Criminal Cases Nos. Q-99-81679 to Q-99-81689 because the essential requirements for its application
were not present when Judge Agnir, Jr., issued his resolution of March 29, 1999. Disagreeing with the
ruling of the Court, the petitioners maintain that the respondent did not give his express consent to the
dismissal by Judge Agnir, Jr., of Criminal Cases Nos. Q-99-81679 to Q-99-81689. The respondent
allegedly admitted in his pleadings filed with the Court of Appeals and during the hearing thereat that he
did not file any motion to dismiss said cases, or even agree to a provisional dismissal thereof. Moreover,
the heirs of the victims were allegedly not given prior notices of the dismissal of the said cases by Judge
Agnir, Jr. According to the petitioners, the respondent’s express consent to the provisional dismissal of
the cases and the notice to all the heirs of the victims of the respondent’s motion and the hearing
thereon are conditions sine qua non to the application of the time-bar in the second paragraph of the
new rule.

The petitioners further submit that it is not necessary that the case be remanded to the RTC to
determine whether private complainants were notified of the March 22, 1999 hearing on the
respondent’s motion for judicial determination of the existence of probable cause. The records allegedly
indicate clearly that only the handling city prosecutor was furnished a copy of the notice of hearing on
said motion. There is allegedly no evidence that private prosecutor Atty. Godwin Valdez was properly
retained and authorized by all the private complainants to represent them at said hearing. It is their
contention that Atty. Valdez merely identified the purported affidavits of desistance and that he did not
confirm the truth of the allegations therein.

The respondent, on the other hand, insists that, as found by the Court in its Resolution and Judge Agnir,
Jr. in his resolution, the respondent himself moved for the provisional dismissal of the criminal cases. He
cites the resolution of Judge Agnir, Jr. stating that the respondent and the other accused filed separate
but identical motions for the dismissal of the criminal cases should the trial court find no probable cause
for the issuance of warrants of arrest against them.

The respondent further asserts that the heirs of the victims, through the public and private prosecutors,
were duly notified of said motion and the hearing thereof. He contends that it was sufficient that the
public prosecutor was present during the March 22, 1999 hearing on the motion for judicial
determination of the existence of probable cause because criminal actions are always prosecuted in the
name of the People, and the private complainants merely prosecute the civil aspect thereof.
The Court has reviewed the records and has found the contention of the petitioners meritorious.

Section 8, Rule 117 of the Revised Rules of Criminal Procedure reads:chanrob1es virtual 1aw library

Sec. 8. Provisional dismissal. — A case shall not be provisionally dismissed except with the express
consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of
any amount, or both, shall become permanent one (1) year after issuance of the order without the case
having been revived. With respect to offenses punishable by imprisonment of more than six (6) years,
their provisional dismissal shall become permanent two (2) years after issuance of the order without the
case having been revived.

Having invoked said rule before the petitioners-panel of prosecutors and before the Court of Appeals,
the respondent is burdened to establish the essential requisites of the first paragraph thereof,
namely:chanrob1es virtual 1aw library

1. the prosecution with the express conformity of the accused or the accused moves for a provisional
(sin perjuicio) dismissal of the case; or both the prosecution and the accused move for a provisional
dismissal of the case;

2. the offended party is notified of the motion for a provisional dismissal of the case;

3. the court issues an order granting the motion and dismissing the case provisionally;

4. the public prosecutor is served with a copy of the order of provisional dismissal of the case.

The foregoing requirements are conditions sine qua non to the application of the time-bar in the second
paragraph of the new rule. The raison d’ etre for the requirement of the express consent of the accused
to a provisional dismissal of a criminal case is to bar him from subsequently asserting that the revival of
the criminal case will place him in double jeopardy for the same offense or for an offense necessarily
included therein. 5

Although the second paragraph of the new rule states that the order of dismissal shall become
permanent one year after the issuance thereof without the case having been revived, the provision
should be construed to mean that the order of dismissal shall become permanent one year after service
of the order of dismissal on the public prosecutor who has control of the prosecution 6 without the
criminal case having been revived. The public prosecutor cannot be expected to comply with the
timeline unless he is served with a copy of the order of dismissal.chanrob1es virtua1 1aw 1ibrary

Express consent to a provisional dismissal is given either viva voce or in writing. It is a positive, direct,
unequivocal consent requiring no inference or implication to supply its meaning. 7 Where the accused
writes on the motion of a prosecutor for a provisional dismissal of the case No objection or With my
conformity, the writing amounts to express consent of the accused to a provisional dismissal of the case.
8 The mere inaction or silence of the accused to a motion for a provisional dismissal of the case 9 or his
failure to object to a provisional dismissal 10 does not amount to express consent.

A motion of the accused for a provisional dismissal of a case is an express consent to such provisional
dismissal. 11 If a criminal case is provisionally dismissed with the express consent of the accused, the
case may be revived only within the periods provided in the new rule. On the other hand, if a criminal
case is provisionally dismissed without the express consent of the accused or over his objection, the new
rule would not apply. The case may be revived or refiled even beyond the prescribed periods subject to
the right of the accused to oppose the same on the ground of double jeopardy 12 or that such revival or
refiling is barred by the statute of limitations. 13

The case may be revived by the State within the time-bar either by the refiling of the Information or by
the filing of a new Information for the same offense or an offense necessarily included therein. There
would be no need of a new preliminary investigation. 14 However, in a case wherein after the
provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them may
have recanted their testimonies or may have died or may no longer be available and new witnesses for
the State have emerged, a new preliminary investigation 15 must be conducted before an Information is
refiled or a new Information is filed. A new preliminary investigation is also required if aside from the
original accused, other persons are charged under a new criminal complaint for the same offense or
necessarily included therein; or if under a new criminal complaint, the original charge has been
upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from
that as an accessory to that as a principal. The accused must be accorded the right to submit counter-
affidavits and evidence. After all, "the fiscal is not called by the Rules of Court to wait in ambush; the
role of a fiscal is not mainly to prosecute but essentially to do justice to every man and to assist the
court in dispensing that justice." 16

In this case, the respondent has failed to prove that the first and second requisites of the first paragraph
of the new rule were present when Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-99-
81689. Irrefragably, the prosecution did not file any motion for the provisional dismissal of the said
criminal cases. For his part, the respondent merely filed a motion for judicial determination of probable
cause and for examination of prosecution witnesses alleging that under Article III, Section 2 of the
Constitution and the decision of this Court in Allado v. Diokno, 17 among other cases, there was a need
for the trial court to conduct a personal determination of probable cause for the issuance of a warrant
of arrest against respondent and to have the prosecution’s witnesses summoned before the court for its
examination. The respondent contended therein that until after the trial court shall have personally
determined the presence of probable cause, no warrant of arrest should be issued against the
respondent and if one had already been issued, the warrant should be recalled by the trial court. He
then prayed therein that:chanrob1es virtual 1aw library

1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be
conducted by this Honorable Court, and for this purpose, an order be issued directing the prosecution to
present the private complainants and their witnesses at a hearing scheduled therefor; and

2) warrants for the arrest of the accused-movants be withheld, or, if issued, recalled in the meantime
until the resolution of this incident.

Other equitable reliefs are also prayed for. 18

The respondent did not pray for the dismissal, provisional or otherwise, of Criminal Cases Nos. Q-99-
81679 to Q-99-81689. Neither did he ever agree, impliedly or expressly, to a mere provisional dismissal
of the cases. In fact, in his reply filed with the Court of Appeals, respondent emphasized
that:chanrob1es virtual 1aw library

. . . An examination of the Motion for Judicial Determination of Probable Cause and for Examination of
Prosecution Witnesses filed by the petitioner and his other co-accused in the said criminal cases would
show that the petitioner did not pray for the dismissal of the case. On the contrary, the reliefs prayed
for therein by the petitioner are: (1) a judicial determination of probable cause pursuant to Section 2,
Article III of the Constitution; and (2) that warrants for the arrest of the accused be withheld, or if
issued, recalled in the meantime until the resolution of the motion. It cannot be said, therefore, that the
dismissal of the case was made with the consent of the petitioner. A copy of the aforesaid motion is
hereto attached and made integral part hereof as Annex "A." 19

During the hearing in the Court of Appeals on July 31, 2001, the respondent, through counsel,
categorically, unequivocally, and definitely declared that he did not file any motion to dismiss the
criminal cases nor did he agree to a provisional dismissal thereof, thus:chanrob1es virtual 1aw library

JUSTICE SALONGA:chanrob1es virtual 1aw library

And it is your stand that the dismissal made by the Court was provisional in nature?

ATTY. FORTUN:chanrob1es virtual 1aw library

It was in (sic) that the accused did not ask for it. What they wanted at the onset was simply a judicial
determination of probable cause for warrants of arrest issued. Then Judge Agnir, upon the presentation
by the parties of their witnesses, particularly those who had withdrawn their affidavits, made one
further conclusion that not only was this case lacking in probable cause for purposes of the issuance of
an arrest warrant but also it did not justify proceeding to trial.

JUSTICE SALONGA:chanrob1es virtual 1aw library

And it is expressly provided under Section 8 that a case shall not be provisionally dismissed except when
it is with the express conformity of the accused.

ATTY. FORTUN:chanrob1es virtual 1aw library

That is correct, Your Honor.

JUSTICE SALONGA:chanrob1es virtual 1aw library

And with notice to the offended party.

ATTY. FORTUN:chanrob1es virtual 1aw library

That is correct, Your Honor.

JUSTICE SALONGA:chanrob1es virtual 1aw library

Was there an express conformity on the part of the accused?

ATTY. FORTUN:chanrob1es virtual 1aw library

There was none, Your Honor. We were not asked to sign any order, or any statement, which would
normally be required by the Court on pre-trial or on other matters, including other provisional dismissal.
My very limited practice in criminal courts, Your Honor, had taught me that a judge must be very careful
on this matter of provisional dismissal. In fact they ask the accused to come forward, and the judge
himself or herself explains the implications of a provisional dismissal. Pumapayag ka ba dito. Puwede
bang pumirma ka?

JUSTICE ROSARIO:chanrob1es virtual 1aw library

You were present during the proceedings?

ATTY. FORTUN:chanrob1es virtual 1aw library

Yes, Your Honor.

JUSTICE ROSARIO:chanrob1es virtual 1aw library

You represented the petitioner in this case?

ATTY. FORTUN:chanrob1es virtual 1aw library

That is correct, Your Honor. And there was nothing of that sort which the good Judge Agnir, who is most
knowledgeable in criminal law, had done in respect of provisional dismissal or the matter of Mr. Lacson
agreeing to the provisional dismissal of the case.

JUSTICE GUERRERO:chanrob1es virtual 1aw library

Now, you filed a motion, the other accused then filed a motion for a judicial determination of probable
cause?

ATTY. FORTUN:chanrob1es virtual 1aw library

Yes, Your Honor.chanrob1es virtua1 1aw 1ibrary

JUSTICE GUERRERO:chanrob1es virtual 1aw library

Did you make any alternative prayer in your motion that if there is no probable cause what should the
Court do?

ATTY. FORTUN:chanrob1es virtual 1aw library

That the arrest warrants only be withheld. That was the only prayer that we asked. In fact, I have a copy
of that particular motion, and if I may read my prayer before the Court, it said: "Wherefore, it is
respectfully prayed that (1) a judicial determination of probable cause pursuant to Section 2, Article III of
the Constitution be conducted, and for this purpose, an order be issued directing the prosecution to
present the private complainants and their witnesses at the scheduled hearing for that purpose; and (2)
the warrants for the arrest of the accused be withheld, or, if issued, recalled in the meantime until
resolution of this incident.

JUSTICE GUERRERO:chanrob1es virtual 1aw library

There is no general prayer for any further relief?

ATTY. FORTUN:chanrob1es virtual 1aw library

There is but it simply says other equitable reliefs are prayed for.

JUSTICE GUERRERO:chanrob1es virtual 1aw library

Don’t you surmise Judge Agnir, now a member of this Court, precisely addressed your prayer for just
and equitable relief to dismiss the case because what would be the net effect of a situation where there
is no warrant of arrest being issued without dismissing the case?

ATTY. FORTUN:chanrob1es virtual 1aw library

Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is we did not agree to
the provisional dismissal, neither were we asked to sign any assent to the provisional dismissal.

JUSTICE GUERRERO:chanrob1es virtual 1aw library

If you did not agree to the provisional dismissal did you not file any motion for reconsideration of the
order of Judge Agnir that the case should be dismissed?

ATTY. FORTUN:chanrob1es virtual 1aw library

I did not, Your Honor, because I knew fully well at that time that my client had already been arraigned,
and the arraignment was valid as far as I was concerned. So, the dismissal, Your Honor, by Judge Agnir
operated to benefit me, and therefore I did not take any further step in addition to rocking the boat or
clarifying the matter further because it probably could prejudice the interest of my client.

JUSTICE GUERRERO:chanrob1es virtual 1aw library

Continue. 20

In his memorandum in lieu of the oral argument filed with the Court of Appeals, the respondent
declared in no uncertain terms that:chanrob1es virtual 1aw library

Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without
jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle, the case was
assigned to Branch 81. Petitioner and the others promptly filed a motion for judicial determination of
probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for the
dismissal of the Informations, contrary to respondent OSG’s claim. 21

The respondent’s admissions made in the course of the proceedings in the Court of Appeals are binding
and conclusive on him. The respondent is barred from repudiating his admissions absent evidence of
palpable mistake in making such admissions. 22

To apply the new rule in Criminal Cases Nos. Q-99-81679 to Q-99-81689 would be to add to or make
exceptions from the new rule which are not expressly or impliedly included therein. This the Court
cannot and should not do. 23

The Court also agrees with the petitioners’ contention that no notice of any motion for the provisional
dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or of the hearing thereon was served on the
heirs of the victims at least three days before said hearing as mandated by Rule 15, Section 4 of the
Rules of Court. It must be borne in mind that in crimes involving private interests, the new rule requires
that the offended party or parties or the heirs of the victims must be given adequate a priori notice of
any motion for the provisional dismissal of the criminal case. Such notice may be served on the offended
party or the heirs of the victim through the private prosecutor, if there is one, or through the public
prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable
them to confer with him before the hearing or appear in court during the hearing. The proof of such
service must be shown during the hearing on the motion, otherwise, the requirement of the new rule
will become illusory. Such notice will enable the offended party or the heirs of the victim the
opportunity to seasonably and effectively comment on or object to the motion on valid grounds,
including: (a) the collusion between the prosecution and the accused for the provisional dismissal of a
criminal case thereby depriving the State of its right to due process; (b) attempts to make witnesses
unavailable; or (c) the provisional dismissal of the case with the consequent release of the accused from
detention would enable him to threaten and kill the offended party or the other prosecution witnesses
or flee from Philippine jurisdiction, provide opportunity for the destruction or loss of the prosecution’s
physical and other evidence and prejudice the rights of the offended party to recover on the civil liability
of the accused by his concealment or furtive disposition of his property or the consequent lifting of the
writ of preliminary attachment against his property.

In the case at bar, even if the respondent’s motion for a determination of probable cause and
examination of witnesses may be considered for the nonce as his motion for a provisional dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689, however, the heirs of the victims were not notified
thereof prior to the hearing on said motion on March 22, 1999. It must be stressed that the respondent
filed his motion only on March 17, 1999 and set it for hearing on March 22, 1999 or barely five days
from the filing thereof. Although the public prosecutor was served with a copy of the motion, the
records do not show that notices thereof were separately given to the heirs of the victims or that
subpoenae were issued to and received by them, including those who executed their affidavits of
desistance who were residents of Dipolog City or Piñan, Zamboanga del Norte or Palompon, Leyte. 24
There is as well no proof in the records that the public prosecutor notified the heirs of the victims of said
motion or of the hearing thereof on March 22, 1999. Although Atty. Valdez entered his appearance as
private prosecutor, 25 he did so only for some but not all the close kins of the victims, namely, Nenita
Alap-ap, Imelda Montero, Margarita Redillas, Rufino Siplon, Carmelita Elcamel, Myrna Abalora, and
Leonora Amora who (except for Rufino Siplon) 26 executed their respective affidavits of desistance. 27
There was no appearance for the heirs of Alex Neri, Pacifico Montero, Jr., and Meleubren Sorronda.
There is no proof on record that all the heirs of the victims were served with copies of the resolution of
Judge Agnir, Jr. dismissing the said cases. In fine, there never was any attempt on the part of the trial
court, the public prosecutor and/or the private prosecutor to notify all the heirs of the victims of the
respondent’s motion and the hearing thereon and of the resolution of Judge Agnir, Jr. dismissing said
cases. The said heirs were thus deprived of their right to be heard on the respondent’s motion and to
protect their interests either in the trial court or in the appellate court.

Since the conditions sine qua non for the application of the new rule were not present when Judge
Agnir, Jr. issued his resolution, the State is not barred by the time limit set forth in the second paragraph
of Section 8 of Rule 117 of the Revised Rules of Criminal Procedure. The State can thus revive or refile
Criminal Cases Nos. Q-99-81679 to Q-99-81689 or file new Informations for multiple murder against
the Respondent.chanrob1es virtua1 1aw 1ibrary

II. THE TIME-BAR IN SECTION 8,

RULE 117 OF THE REVISED

RULES OF CRIMINAL PROCEDURE

SHOULD NOT BE APPLIED

RETROACTIVELY.

The petitioners contend that even on the assumption that the respondent expressly consented to a
provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 and all the heirs of the victims
were notified of the respondent’s motion before the hearing thereon and were served with copies of
the resolution of Judge Agnir, Jr. dismissing the eleven cases, the two-year bar in Section 8 of Rule 117
of the Revised Rules of Criminal Procedure should be applied prospectively and not retroactively against
the State. To apply the time limit retroactively to the criminal cases against the respondent and his co-
accused would violate the right of the People to due process, and unduly impair, reduce, and diminish
the State’s substantive right to prosecute the accused for multiple murder. They posit that under Article
90 of the Revised Penal Code, the State had twenty years within which to file the criminal complaints
against the accused. However, under the new rule, the State only had two years from notice of the
public prosecutor of the order of dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 within
which to revive the said cases. When the new rule took effect on December 1, 2000, the State only had
one year and three months within which to revive the cases or refile the Informations. The period for
the State to charge respondent for multiple murder under Article 90 of the Revised Penal Code was
considerably and arbitrarily reduced. They submit that in case of conflict between the Revised Penal
Code and the new rule, the former should prevail. They also insist that the State had consistently relied
on the prescriptive periods under Article 90 of the Revised Penal Code. It was not accorded a fair
warning that it would forever be barred beyond the two-year period by a retroactive application of the
new rule. 28 Petitioners thus pray to the Court to set aside its Resolution of May 28, 2002.

For his part, the respondent asserts that the new rule under Section 8 of Rule 117 of the Revised Rules
of Criminal Procedure may be applied retroactively since there is no substantive right of the State that
may be impaired by its application to the criminal cases in question since ‘[t]he State’s witnesses were
ready, willing and able to provide their testimony but the prosecution failed to act on these cases until it
became politically expedient in April 2001 for them to do so.’ 29 According to the respondent, penal
laws, either procedural or substantive, may be retroactively applied so long as they favor the accused.
30 He asserts that the two-year period commenced to run on March 29, 1999 and lapsed two years
thereafter was more than reasonable opportunity for the State to fairly indict him. 31 In any event, the
State is given the right under the Court’s assailed Resolution to justify the filing of the Information in
Criminal Cases Nos. 01-101102 to 01-101112 beyond the time-bar under the new rule.

The respondent insists that Section 8 of Rule 117 of the Revised Rules of Criminal Procedure does not
broaden the substantive right of double jeopardy to the prejudice of the State because the prohibition
against the revival of the cases within the one-year or two-year periods provided therein is a legal
concept distinct from the prohibition against the revival of a provisionally dismissed case within the
periods stated in Section 8 of Rule 117. Moreover, he claims that the effects of a provisional dismissal
under said rule do not modify or negate the operation of the prescriptive period under Article 90 of the
Revised Penal Code. Prescription under the Revised Penal Code simply becomes irrelevant upon the
application of Section 8, Rule 117 because a complaint or information has already been filed against the
accused, which filing tolls the running of the prescriptive period under Article 90. 32

The Court agrees with the respondent that the new rule is not a statute of limitations. Statutes of
limitations are construed as acts of grace, and a surrender by the sovereign of its right to prosecute or of
its right to prosecute at its discretion. Such statutes are considered as equivalent to acts of amnesty
founded on the liberal theory that prosecutions should not be allowed to ferment endlessly in the files
of the government to explode only after witnesses and proofs necessary for the protection of the
accused have by sheer lapse of time passed beyond availability. 33 The periods fixed under such statutes
are jurisdictional and are essential elements of the offenses covered. 34

On the other hand, the time-bar under Section 8 of Rule 117 is akin to a special procedural limitation
qualifying the right of the State to prosecute making the time-bar an essence of the given right or as an
inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to
prosecute the accused. 35

The time-bar under the new rule does not reduce the periods under Article 90 of the Revised Penal
Code, a substantive law. 36 It is but a limitation of the right of the State to revive a criminal case against
the accused after the Information had been filed but subsequently provisionally dismissed with the
express consent of the accused. Upon the lapse of the timeline under the new rule, the State is
presumed, albeit disputably, to have abandoned or waived its right to revive the case and prosecute the
accused. The dismissal becomes ipso facto permanent. He can no longer be charged anew for the same
crime or another crime necessarily included therein. 37 He is spared from the anguish and anxiety as
well as the expenses in any new indictments. 38 The State may revive a criminal case beyond the one-
year or two-year periods provided that there is a justifiable necessity for the delay. 39 By the same
token, if a criminal case is dismissed on motion of the accused because the trial is not concluded within
the period therefor, the prescriptive periods under the Revised Penal Code are not thereby diminished.
40 But whether or not the prosecution of the accused is barred by the statute of limitations or by the
lapse of the time-line under the new rule, the effect is basically the same. As the State Supreme Court of
Illinois held:chanrob1es virtual 1aw library

. . . This, in effect, enacts that when the specified period shall have arrived, the right of the state to
prosecute shall be gone, and the liability of the offender to be punished — to be deprived of his liberty
— shall cease. Its terms not only strike down the right of action which the state had acquired by the
offense, but also remove the flaw which the crime had created in the offender’s title to liberty. In this
respect, its language goes deeper than statutes barring civil remedies usually do. They expressly take
away only the remedy by suit, and that inferentially is held to abate the right which such remedy would
enforce, and perfect the title which such remedy would invade; but this statute is aimed directly at the
very right which the state has against the offender — the right to punish, as the only liability which the
offender has incurred, and declares that this right and this liability are at an end. . . . 41

The Court agrees with the respondent that procedural laws may be applied retroactively. As applied to
criminal law, procedural law provides or regulates the steps by which one who has committed a crime is
to be punished. In Tan, Jr. v. Court of Appeals, 42 this Court held that:chanrob1es virtual 1aw library

Statutes regulating the procedure of the courts will be construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that
extent. The fact that procedural statutes may somehow affect the litigants’ rights may not preclude their
retroactive application to pending actions. The retroactive application of procedural laws is not violative
of any right of a person who may feel that he is adversely affected. Nor is the retroactive application of
procedural statutes constitutionally objectionable. The reason is that as a general rule no vested right
may attach to, nor arise from, procedural laws. It has been held that "a person has no vested right in any
particular remedy, and a litigant cannot insist on the application to the trial of his case, whether civil or
criminal, of any other than the existing rules of procedure.

It further ruled therein that a procedural law may not be applied retroactively if to do so would work
injustice or would involve intricate problems of due process or impair the independence of the Court. In
a per curiam decision in Cipriano v. City of Houma, 43 the United States Supreme Court ruled that where
a decision of the court would produce substantial inequitable results if applied retroactively, there is
ample basis for avoiding "the injustice of hardship" by a holding of nonretroactivity. 44 A construction of
which a statute is fairly susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, and injurious consequences. 45 This Court should not adopt an interpretation of
a statute which produces absurd, unreasonable, unjust, or oppressive results if such interpretation could
be avoided. 46 Time and again, this Court has decreed that statutes are to be construed in light of the
purposes to be achieved and the evils sought to be remedied. In construing a statute, the reason for the
enactment should be kept in mind and the statute should be construed with reference to the intended
scope and purpose. 47

Remedial legislation, or procedural rule, or doctrine of the Court designed to enhance and implement
the constitutional rights of parties in criminal proceedings may be applied retroactively or prospectively
depending upon several factors, such as the history of the new rule, its purpose and effect, and whether
the retrospective application will further its operation, the particular conduct sought to be remedied
and the effect thereon in the administration of justice and of criminal laws in particular. 48 In a per
curiam decision in Stefano v. Woods, 49 the United States Supreme Court catalogued the factors in
determining whether a new rule or doctrine enunciated by the High Court should be given retrospective
or prospective effect:jgc:chanrobles.com.ph

"(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement
authorities on the old standards, and (c) the effect on the administration of justice of a retroactive
application of the new standards."cralaw virtua1aw library

In this case, the Court agrees with the petitioners that the time-bar of two years under the new rule
should not be applied retroactively against the State.

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two
years for the revival of criminal cases provisionally dismissed with the express consent of the accused
and with a priori notice to the offended party. The time-bar may appear, on first impression,
unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing
the time-bar, the Court balanced the societal interests and those of the accused for the orderly and
speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into
account the substantial rights of both the State and of the accused to due process. The Court believed
that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the
consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be
respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a
denial of justice. 50 The petitioners failed to show a manifest shortness or insufficiency of the time-
bar.chanrob1es virtua1 1aw 1ibrary
The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the
Court en banc primarily to enhance the administration of the criminal justice system and the rights to
due process of the State and the accused by eliminating the deleterious practice of trial courts of
provisionally dismissing criminal cases on motion of either the prosecution or the accused or jointly,
either with no time-bar for the revival thereof or with a specific or definite period for such revival by the
public prosecutor. There were times when such criminal cases were no longer revived or refiled due to
causes beyond the control of the public prosecutor or because of the indolence, apathy or the
lackadaisical attitude of public prosecutors to the prejudice of the State and the accused despite the
mandate to public prosecutors and trial judges to expedite criminal proceedings. 51

It is almost a universal experience that the accused welcomes delay as it usually operates in his favor, 52
especially if he greatly fears the consequences of his trial and conviction. He is hesitant to disturb the
hushed inaction by which dominant cases have been known to expire. 53

The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the
State to prove its case with the disappearance or nonavailability of its witnesses. Physical evidence may
have been lost. Memories of witnesses may have grown dim or have faded. Passage of time makes proof
of any fact more difficult. 54 The accused may become a fugitive from justice or commit another crime.
The longer the lapse of time from the dismissal of the case to the revival thereof, the more difficult it is
to prove the crime.

On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a
criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not
derail, the chances of the accused for employment, curtail his association, subject him to public obloquy
and create anxiety in him and his family. He is unable to lead a normal life because of community
suspicion and his own anxiety. He continues to suffer those penalties and disabilities incompatible with
the presumption of innocence. 55 He may also lose his witnesses or their memories may fade with the
passage of time. In the long run, it may diminish his capacity to defend himself and thus eschew the
fairness of the entire criminal justice system. 56

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the
administration of the criminal justice system for the benefit of the State and the accused; not for the
accused only.

The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year
period commenced to run on March 31, 1999 when the public prosecutor received his copy of the
resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the
new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had
considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-
81679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the Court
applied the new time-bar retroactively, the State would have only one year and three months or until
March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period
fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would
have two years from December 1, 2000 or until December 1, 2002 within which to revive the cases. This
is in consonance with the intendment of the new rule in fixing the time-bar and thus prevent injustice to
the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful results in the
administration of justice.

The period from April 1, 1999 to November 30, 1999 should be excluded in the computation of the two-
year period because the rule prescribing it was not yet in effect at the time and the State could not be
expected to comply with the time-bar. It cannot even be argued that the State waived its right to revive
the criminal cases against respondent or that it was negligent for not reviving them within the two-year
period under the new rule. As the United States Supreme Court said, per Justice Felix Frankfurter, in
Griffin v. People: 57

We should not indulge in the fiction that the law now announced has always been the law and,
therefore, that those who did not avail themselves of it waived their rights . . . .

The two-year period fixed in the new rule is for the benefit of both the State and the accused. It should
not be emasculated and reduced by an inordinate retroactive application of the time-bar therein
provided merely to benefit the accused. For to do so would cause an "injustice of hardship" to the State
and adversely affect the administration of justice in general and of criminal laws in particular.

To require the State to give a valid justification as a condition sine qua non to the revival of a case
provisionally dismissed with the express consent of the accused before the effective date of the new
rule is to assume that the State is obliged to comply with the time-bar under the new rule before it took
effect. This would be a rank denial of justice. The State must be given a period of one year or two years
as the case may be from December 1, 2000 to revive the criminal case without requiring the State to
make a valid justification for not reviving the case before the effective date of the new rule. Although in
criminal cases, the accused is entitled to justice and fairness, so is the State. As the United States
Supreme Court said, per Mr. Justice Benjamin Cardozo, in Snyder v. State of Massachusetts, 58 "the
concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance
true." In Dimatulac v. Villon, 59 this Court emphasized that "the judge’s action must not impair the
substantial rights of the accused nor the right of the State and offended party to due process of law. This
Court further said:chanrob1es virtual 1aw library

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused
alone. The interests of society and the offended parties which have been wronged must be equally
considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not
necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean
injustice. Justice then must be rendered even-handedly to both the accused, on one hand, and the State
and offended party, on the other.

In this case, the eleven Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed with the
Regional Trial Court on June 6, 2001 well within the two-year period.

In sum, this Court finds the motion for reconsideration of petitioners meritorious.
IN THE LIGHT OF ALL THE FOREGOING, the petitioners’ Motion for Reconsideration is GRANTED. The
Resolution of this Court, dated May 28, 2002, is SET ASIDE. The Decision of the Court of Appeals, dated
August 24, 2001, in CA-G.R. SP No. 65034 is REVERSED. The Petition of the Respondent with the Regional
Trial Court in Civil Case No. 01-100933 is DISMISSED for being moot and academic. The Regional Trial
Court of Quezon City, Branch 81, is DIRECTED to forthwith proceed with Criminal Cases Nos. 01-101102
to 01-101112 with deliberate dispatch.chanrob1es virtua1 1aw 1ibrary

No pronouncements as to costs.

SO ORDERED.

Davide, Jr., C.J., Mendoza, Panganiban, Austria-Martinez, Corona, Carpio-Morales and Azcuna, JJ.,
concur.

Carpio, J., took no part.

Separate Opinions

BELLOSILLO, J.:

If we make a mistake, we can only pray that their ghosts will not haunt us for the rest of our days . . .

"Amen!" I say to the clear and concise ponencia of our colleague, Mr. Justice Romeo J. Callejo Sr., who
touched the issues head on and resolved them with the calm deliberation of a dedicated jurist. Let me
just add a few more thoughts in the effort to reveal and rectify the hazards and uncertainties ordinarily
concealed by the glib use of formal illogic.

This case springs from the brutal slaughter of suspected members of the Kuratong Baleleng Gang on 18
May 1995. Eleven (11) restless souls — who perished in a shroud of mystery — remain shackled for
more than half a decade by the bondage of popular apathy and neglect, and condemned to an
ignominious fall by their infamy. Stigmatized and denounced, their demise must have been hailed by
many as the triumph of retributive justice —

. . . Gifted with the liberty they know not how to use; with a power and energy they know not how to
apply; with a life whose purpose and aim they comprehend not; they drag through their useless and
convulsed existence. Byron destroys them one after the other, as if he were the executioner of a
sentence decreed in heaven. They fall unwept, like a withered leaf into the stream of time . . . . They die,
as they have lived, alone; and a popular malediction hovers round their solitary tombs. 1

The dictates of prudence however would counsel us at this time to reserve judgment on their sins and
transgressions. The overriding consideration is the need to unveil the truth, for truth alone is the
veritable touchstone of justice. The rights of the eleven (11) victims, as much as those of the respondent
and his co-accused, deserve full recognition and protection. Only then can we say that we are truly
civilized — a breed apart from savages.chanrob1es virtua1 1aw 1ibrary

But the manner by which the carnage of 18 May 1995 was carried out sparked a public indignation that
prompted the Senate Committees on Justice and Human Rights, Crimes and National Defense and
Security to conduct a joint investigation on possible human rights violations involving police officers. The
inquiry focused on the issue of whether the death of the eleven (11) victims was the result of a "rub-
out" or summary killing, or a "shoot-out" or with exchange of gunfire, between the victims and the
police considering that the principal antagonists were policemen and civilians. On 21 June 1995 the
aforesaid Senate Committees, in Joint Committee Report No. 1021, found thus —

There is no clarity as to whether the bodies were handcuffed or hogtied with ropes when they were
killed. The evidence, however, establishes that those who died were defenseless and that except for
Soronda, none of them fired a gun. The forensic report and testimonies of De los Santos and De la Cruz
show that eleven (11) persons were killed in coldblood while in the custody of the law enforcers in the
early morning of May 18 in Commonwealth Avenue, Quezon City (Emphasis supplied),

concluded that the killings were done in cold blood and recommended the filing of the appropriate
charges against the police officers. 2

Thereafter multiple murder charges were filed by the Ombudsman before the Sandiganbayan against
respondent and twenty-five (25) other police officers, docketed as Crim. Cases Nos. 23047–23057. On
motion of the accused, the Ombudsman conducted a reinvestigation of the cases resulting in the filing
of Amended Informations, this time charging respondent, among other officers, as a mere accessory
after-the-fact. Arraignment followed and respondent entered a plea of not guilty.

Respondent challenged the jurisdiction of the Sandiganbayan contending in the main that the highest
ranking principal accused under the Amended Informations held the position of Chief Inspector with a
salary below that for Grade 27, for which reason, jurisdiction properly belonged to the Regional Trial
Court and not the Sandiganbayan. The issue of jurisdiction eventually reached the Supreme Court, which
ordered the transfer of the cases to the Regional Trial Court of Quezon City not because the highest
ranking principal accused was receiving a salary below Grade 27 but because the Amended Informations
did not show that the offenses charged were committed in relation to, or in the discharge of, official
functions of the accused.

The criminal cases were docketed as Crim. Cases Nos. Q-99-81679 to Q-99-81689, and raffled to RTC-Br.
81 then presided over by Judge Wenceslao Agnir, Jr. Respondent and the other accused filed separate
but identical motions praying for a judicial determination of probable cause, to hold in abeyance the
issuance of warrants of arrest in the meantime, and to dismiss the cases should the court find no
probable cause.

During the hearing on the motions, the seven (7) or eight (8) victims’ next of kin executed affidavits of
desistance while others recanted their affidavit-complaints. With this development, the trial court in its
Resolution of 29 March 1999 dismissed the cases for lack of probable cause to hold the accused for trial,
holding that "there is no more evidence to show that the crime(s) have been committed and that the
accused are probably guilty thereof." 3

Two (2) years later, or on 29 March 2001, Secretary Hernando B. Perez of the Department of Justice
received a letter from PNP Director General Leandro R. Mendoza indorsing for preliminary investigation
the sworn affidavits of two (2) new witnesses relative to the Kuratong Baleleng incident. Secretary Perez
constituted a panel of State Prosecutors to investigate the matter. The panel issued several subpoenas
to all the accused in Crim. Cases Nos. Q-99-81679 to Q-99-81689, including respondent Lacson, requiring
them to submit their counter-affidavits and to appear at the preliminary conference.

Consequently, on 28 May 2001, respondent and several of his co-accused filed a petition for prohibition
with application for a temporary restraining order and/or preliminary injunction with the RTC-Manila,
seeking to enjoin the Secretary of Justice and the State Prosecutors from further conducting a
preliminary investigation. The prohibition case was raffled to RTC-Br. 40, Manila, presided over by Judge
Herminia V. Pasamba. The filing of this petition notwithstanding, the Panel of State Prosecutors
proceeded to issue a Resolution finding probable cause to hold respondent and his co-accused for trial,
for eleven (11) counts of murder. Accordingly, Informations were filed before the RTC, Quezon City, and
docketed as Crim. Cases Nos. 01-101102 to 01-101112.

Deviating from the normal procedure, the Executive Judge, Vice-Executive Judges and Presiding Judges
of Quezon City dispensed with the customary raffle; instead, assigned the cases to Judge Ma. Theresa L.
Yadao of RTC-Br. 81, Quezon City, presumably as the successor of Judge Agnir in the same
branch.chanrob1es virtua1 1aw 1ibrary

Meanwhile, in the prohibition case before RTC-Br. 40, Manila, Judge Pasamba denied the prayer for the
issuance of a temporary restraining order thus —

After a study, this Court submits that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 is
not one on the merits and without any recorded arraignment and entered plea on the part of the herein
petitioners. The dismissal was a direct consequence of the finding of the Quezon City Regional Trial
Court that no probable cause exists for the issuance of warrants of arrest against petitioner herein and
to hold them for trial. The arraignment had with the Sandiganbayan does not put the case in a different
perspective since the Sandiganbayan was adjudged to be without any jurisdiction to try the cases. 4

Dissatisfied, respondent elevated the case on a petition for certiorari to the Court of Appeals which
thereafter rendered the assailed Decision of 24 August 2001 granting the petition, declaring null and
void all the proceedings conducted by the State Prosecutors, and ordering all the criminal Informations
dismissed —

The present controversy, being one involving "provisional dismissal" and revival of criminal cases, falls
within the purview of the prescriptive period provided under Section 8, Rule 117 of the 2000 Revised
Rules on Criminal Procedure. The second paragraph of the said provision is couched in clear, simple and
categorical words. It mandates that for offenses punishable by imprisonment of more than six (6) years,
as the subject criminal cases, their provisional dismissal shall become permanent two (2) years after the
issuance of the order without the case having been revived. It should be noted that the revival of the
subject criminal cases . . . was commenced only on April 19, 2001, that is, more than two (2) years after
the issuance, on March 29, 1999, of RTC-Quezon City’s Resolution . . . 5

Hence, the present recourse. The bone of contention, which crystallizes all the arguments of the parties
into a single point of inquiry, bears upon the nature and effects of a provisional dismissal which has
become permanent after the lapse of the periods provided in Sec. 8, Rule 117, 2000 Revised Rules on
Criminal Procedure. For facility of reference, the controversial provision of Sec. 8 quoted hereunder —

Sec. 8. Provisional dismissal. — A case shall not be provisionally dismissed except with the express
consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment . . . of more than six (6) years, their
provisional dismissal shall become permanent two (2) years after issuance of the order without the case
having been revived (Italics supplied).

Assuming that Sec. 8, Rule 117, is available to respondent although it is my position that it is not, the
question that should be asked is: Does the provisional dismissal of a criminal case which has become
permanent under Sec. 8 effectively foreclose the right of the State to prosecute an accused? I have
taken great pains analyzing the position of respondent; regretfully, I am unable to agree for my
conscience shivers at its debilitating, crippling if not crushing, impact upon our criminal justice
system.chanrob1es virtua1 1aw 1ibrary

The basic substantive laws on prescription of offenses are Arts. 90 and 91 of The Revised Penal Code,
which are quoted hereunder —

Art. 90. Prescription of crimes. — Crimes punishable by death, reclusion perpetua or reclusion temporal
shall prescribe in twenty years. Crimes punishable by other afflictive penalties shall prescribe in fifteen
years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those
punishable by arresto mayor, which shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year.

The offenses of oral defamation and slander by deed shall prescribe in six months.

Light offenses shall prescribe in two months

When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the
application of the rules contained in the first, second and third paragraphs of this article.
Art. 91. Computation of prescription of offenses. — The period of prescription shall commence to run
from the day on which the crime is discovered by the offended party, the authorities, or their agents,
and shall be interrupted by the filing of the complaint or information, and shall commence to run again
when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the Philippine Archipelago.

Evidently, respondent’s concept of a provisional dismissal that has become permanent under Sec. 8,
Rule 117, emasculates and renders illusory its very purpose. It effectively obliterates the different
prescriptive periods under Art. 90, which are fixed on the basis of the gravity of the penalty prescribed
for the offense, and supplants it with a uniform period of one (1) year or two (2) years, as the case may
be. It likewise substantially modifies the manner of computing the period of prescription in Art. 91 since
the reckoning of the one (1) or two (2)-year prescriptive period under Sec. 8 is constant and invariable,
and without regard to the number of interruptions. Regardless of the number of times the case against
an accused is provisionally dismissed, the prosecution would always have a full grace period of two (2)
years within which to revive the case; much unlike Art. 91 wherein the period consumed prior to the
filing of the complaint or information is tacked to the period consumed after the dismissal of the case
for purposes of determining whether the crime has prescribed.

Interestingly, a dividing line is drawn in the application of Arts. 90 and 91 of The Revised Penal Code, and
Sec. 8, Rule 117, of the 2000 Revised Rules on Criminal Procedure, obviously in an attempt to lend a
delusive semblance of plausibility to its construction of Sec. 8. It is posited that Art. 91 and Sec. 8
operate on "different planes," so to speak, the vital distinction being that Sec. 8, Rule 117, contemplates
a situation where a case had already been filed and was provisionally dismissed.

I do not agree. Article 91 of The Revised Penal Code distinctly speaks of "prescription . . . shall be
interrupted by the filing of the complaint or information, and shall commence to run again when such
proceedings terminate without the accused being convicted or acquitted, or unjustifiably stopped for
any reason not imputable to him." It can readily be seen therefore that the concept of a provisional
dismissal is subsumed in Art. 91 since in a provisional dismissal, proceedings necessarily terminate
without the accused being convicted or acquitted. Thus, to construe and apply Sec. 8 in the manner
suggested above would undeniably result in a direct and irreconcilable conflict with Art. 91.

In a provisional dismissal, the prosecution, the defense and the offended party, in effect, enter into a
tacit agreement for a temporary cessation of hostilities, i.e., to momentarily hold in abeyance the
prosecution of the accused. Paragraph 1 of Sec. 8 prescribes the requirements thereto: (a) consent of
the accused, and (b) notice to the offended party. It must be remembered however that permanent
dismissal of a case is but an offshoot of its previous provisional dismissal and the subsequent failure to
revive within the time frames set forth in Sec. 8. But does the permanent dismissal of the case arising
from a provisional dismissal affect the right of the State to prosecute within the periods provided in Art.
90 of The Revised Penal Code? Certainly not, for the prescriptive periods prescribed by law cannot be
affected directly or indirectly by any agreement or consent of the parties, much less be held hostage to
any procedural limitations. Verily, in matters of public crimes which have a direct bearing on public
interest, no agreements or personal arrangements should be brought to bear upon the penal action.

Courts cannot — by an act of judicial legislation — abridge, amend, alter, or nullify statutes. We do not
sit as councils of revision, empowered to judicially reform or fashion legislation in accordance with our
own notions of prudent public policy. Certainly, lest we are prepared to ride roughshod over this
prerogative of Congress, we cannot interfere with the power of the legislature to surrender, as an act of
grace, the right of the State to prosecute and to declare the offense no longer subject to prosecution
after certain periods of time as expressed in the statute.chanrob1es virtua1 1aw 1ibrary

Furthermore, the right of the State to prosecute criminals is a substantive, nay, inherent right. To unduly
limit the exercise of such right for a short period of one (1) or two (2) years through the expedient of a
procedural rule is unconstitutional, considering the limitation in our fundamental law on the rule-
making power of this Court, that is, its rules must not "diminish, increase or modify substantive rights."
6

Another decisive factor which militates heavily against the foregoing thesis that Art. 91 and Sec. 8
operate on "different planes," is the fact that the phrase "amounts to an acquittal," which appeared in
the original draft of what is now Sec. 8, Rule 117, was judiciously rejected by the Supreme Court when it
approved the final draft of the 2000 Revised Rules on Criminal Procedure —

JUSTICE PANGANIBAN: You know that prior to the wordings at present of Sec. 8, Rule 117, there was a
final committee draft that said and I quote: "the corresponding order shall state that the provisional
dismissal shall become permanent and amount to an acquittal one year after the issuance without the
case having been revived." What I am trying to point out is that, as originally worded, Section 8
expressly stated that the dismissal would amount to an acquittal. But the final wording eliminated the
words "amount to an acquittal," isn’t it?

ATTY. FORTUN: I would not know that, Your Honor. I have not seen that revised (interrupted) . . . .

JUSTICE PANGANIBAN: Well, that is true that those words were eliminated precisely because we wanted
to avoid making invocation of that rule equivalent to an acquittal. All right, (interrupted) . . .. 7

Had the intention been to confer on Sec. 8 the effect of acquittal, the Court should have retained the
express provision to that effect in the final draft. Obviously, the conspicuous absence therein of the
phrase "amounts to an acquittal," or its equivalent, forecloses a speculative approach to the meaning of
Sec. 8. Virtually crossed out, such clause cannot now be incised from the original draft and grafted into
the approved draft of the revised rules, without doing violence to its intent.

It must be stressed that Sec. 8 is nothing more than a rule of procedure. As part of the adjective law, it is
only a means to an end — an aid to substantive law — and should accordingly be interpreted and
applied in that concept. It was never meant to modify the settled provisions of law on the matter of
prescription of offenses; or to unduly curtail the right of the State to bring offenders before the bar of
justice. These matters are best left to the wisdom and sound judgment of the legislature.
Section 8 is very limited in scope and application. Justice Oscar M. Herrera, Consultant, Committee on
Revision of the Rules, in his Treatise on Historical Development and Highlights of Amendments of Rules
on Criminal Procedure (Rationale of Amendments of the Revised Rules on Criminal Procedure), made
the following commentaries on the import of the provision —

There had been so many instances where the National Bureau of Investigation or other police agencies
have refused to issue clearances for purposes of employment or travel abroad, to persons who have
pending cases, on the ground that the dismissal of their cases by the court was merely provisional,
notwithstanding the fact that such provisional dismissals, more often than not, had been done five or
ten years ago. This causes prejudice to the persons concerned. Accordingly, a rule was provided that the
provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any
amount, or both, shall become permanent one (1) year after issuance of the order without the case
having been revived. With respect to offenses punishable by imprisonment of more than six (6) years,
their provisional dismissal shall become permanent two (2) years after issuance of the order without the
case having been revived. 8

Clearly, the feverishly contested provision is purely administrative or regulatory in character. The policy
embodied therein is simply to grant the accused momentary relief from administrative restrictions
occasioned by the filing of a criminal case against him. He is freed in the meantime of the dire
consequences of his having been charged with a crime, and temporarily restored to his immunities as a
citizen, solely for purposes of government clearances. Section 8 imports no intricate nor ornate legal
signification that we need not discern from it a meaning that too far deviates from what it actually
purports to convey.

Indeed, were we to adhere to the thesis equating permanent dismissal with "finality" and "acquittal,"
we would be ascribing meaning to the provision which is not only at war with the demands of reason
but also contrary to the clear intention of the rule. The disastrous effect of respondent’s interpretation
of Sec. 8 upon our criminal justice system is not difficult to imagine. So construed, it would afford an
accused, endowed with a fertile imagination and creativeness, a plethora of opportunities to rig his
prosecution by silencing witnesses and suppressing evidence then letting the case hibernate for a much
shorter period of one (1) or two (2) years. To be sure, our procedural laws could not have intended to
sanction such a result. "A system of procedure," intoned Justice Cardozo, "is perverted from its proper
function when it multiplies impediments to justice without the warrant of a clear necessity." 9

Respondent conjures up the ingenious hypothesis that although Sec. 8 of Rule 117 and the "double
jeopardy" principle have different requisites, they are nonetheless cognate rules since Sec. 8 of Rule 117
affords the accused benefits analogous to that bestowed under the "double jeopardy" principle. 10
Implacable and unyielding is he in the position that a provisional dismissal that attains the character of
permanency produces the effect of a sui generis acquittal. In this respect, according to him, Sec. 8 of
Rule 117 is not in that Sec. 17 (Discharge of Accused to be State Witness) unique and Sec. 18 unique and
Sec. 18 (Discharge of Accused Operates as Acquittal) of Rule 119 of the 2000 Revised Rules on Criminal
Procedure is also invested with the benefits of double jeopardy when it grants the accused state witness
a discharge tantamount to an acquittal. In both instances, the absence of any or all of the essential
requisites of double jeopardy does not preclude the discharge of the accused state witness or one
whose case has attained permanent dismissal.

It bears recalling that since Anglo-Saxon jurisprudence on double jeopardy was swept into the shores of
Philippine constitutional and statutory history, our concept of double jeopardy has faithfully adhered to
the pronouncements first made by Kepner v. United States 11 that." . . (I)t is then the settled law of this
court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no
judgment be entered on the verdict, and it was found upon a defective indictment. The protection is
not . . . against the peril of second punishment, but against being tried again for the second offense."
The fundamental philosophy that underlies the finality of an acquittal is the recognition of the fact that
the state with its infinite resources and power should not be allowed to make repeated attempts to
convict an individual and expose him to a state of perpetual anxiety and embarrassment as well as
enhancing the possibility that although innocent, he may be found guilty.

Presently, the 2000 Revised Rules on Criminal Procedure is explicit in its prescription of the requisites for
the invocation of double jeopardy and the resultant effect thereon on acquittals. Section 7, Rule 117,
states —

Sec. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by a
court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient
in form and substance to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in the offense charged in the former
complaint or information.

Ensconced in the foregoing procedural tenet are the imperatives for invoking double jeopardy: (a) a
valid complaint or information; (b) before a court of competent jurisdiction; (c) the defendant had
pleaded to the charge; and, (d) the defendant was acquitted or convicted or the case against him
dismissed or otherwise terminated without his express consent.

In contrast, provisional dismissal under Sec. 8 of Rule 117 requires only the twin requirements of
consent of the accused and notice to the offended party. When a criminal case is provisionally dismissed
upon the express application of the defendant, the dismissal is not a bar to another prosecution for the
same offense because his action in having the case dismissed is a waiver of his constitutional prerogative
of double jeopardy as he, in a manner of speaking, throws a monkey wrench to the judicial process and
prevents the court from rendering a judgment of conviction against him. Jurisprudence has emphatically
enunciated that double jeopardy cannot be properly invoked where the case was dismissed with the
express conformity of the accused. This much is given as one of the requisites of double jeopardy, i.e.,
where the accused is acquitted or convicted, or the case against him dismissed or otherwise terminated
without his express consent. This assent by the accused to the dismissal is the operative act that
precludes the effects of double jeopardy from setting in, so that despite the permanency of the
dismissal due to the lapse of the periods set forth in Sec. 8 of Rule 117, the refiling of a case under a new
information does not trample upon this venerable doctrine.

The permanence of the dismissal should not be understood as the harbinger of final and absolute
liberation of the accused from future prosecution. It merely augurs the demise of the unrevived cases
but it does not prevent the state from exercising the right to re-prosecute the accused within the
prescriptive period provided in Art. 90 of the Revised Penal Code. With more weighty reason can we not
accommodate respondent in his plea to avail of the graces afforded by the doctrine since the records
would show that he has yet to enter his plea to the charges or that the trial on the merits has as yet to
commence.

Respondent also fires a shot in the dark when he suggests that there exists no marked difference
between revival and refiling of a criminal case as in fact, according to him, the two (2) concepts are
synonymous and interchangeable. A survey of jurisprudential antecedents reveal the distinction
between the revival and refiling of a new information. The authorities are unanimous in their
recognition of the fact that a provisionally dismissed case can be revived as it does not call for the
operation of the rule on double jeopardy and that cases can also be refiled under a new complaint or
information for the same offense. 12

While I agree however that the filing of Crim. Cases Nos. 01-101102–01-101112 is NOT a revival of the
earlier dismissed cases, I wish to emphasize, lest I be misconstrued, that the "New Informations" in the
subsequently refiled cases are new not because the respondent is charged thereunder as a co-principal,
instead of as a mere accessory, or that the number of the accused has been increased from 26 to 34;
rather, the new Informations which are the bases for the prosecution of the respondent again under the
same offense, are new for the singular reason that they are separate and distinct from those in the
previously dismissed cases. Simply stated, it is not of consequence whether the allegations in the two (2)
sets of Informations are quintessentially identical or different in form and substance insofar as concerns
the right of the state to prosecute the respondent anew after the provisional dismissal became
permanent.

A question may be asked: Suppose that the new information is a verbatim reproduction of the
information in the permanently dismissed case, can we not now say that the newly filed case is a mere
revival of the case previously dismissed? After all, stripped of semantic finery, their being identical
would lead to the impression, although erroneous, that one is but a revival of the other. On the surface
one may see no apparent difference between the two (2) sets of Informations, but a subtle yet
significant functional distinction in fact exists. Once a case is permanently dismissed after the lapse of
the prescriptive periods set forth in Sec. 8, the case is dead and, for all intents and purposes, beyond
resuscitation. All the on-going proceedings and those still to be had, e.g., preliminary investigation,
arraignment, trial, etc., shall cease and be terminated. In the event however that the accused is
prosecuted anew with the same offense, albeit under an identical information, the previously
terminated proceedings will not be reactivated, the previous case having been set at rest; instead, new
proceedings will be conducted as if the accused has been charged afresh. To my mind, the foregoing
interpretation of Sec. 8, Rule 117 has in its favor the soundest policy considerations based no less on the
fundamental objectives of procedural rules.
Incidentally, I find it particularly disturbing that the Informations in Crim. Cases Nos. Q-99-81679 to Q-
99-81689 were dismissed by the trial judge without complying with one of the requirements of the first
paragraph of Sec. 8, i.e., the dismissal must be with notice to the offended party. There is nothing in the
records which would show that all the offended parties were ever notified that the cases against
respondent and his co-accused would be dismissed. Even if we proceed on the assumption that the filing
of affidavits of desistance by the offended parties may be considered a substantial equivalent of notice,
still the dismissal appears to be procedurally infirm since only seven (7) of the offended parties
representing eight (8) of the eleven (11) victims, executed affidavits of desistance. 13 No similar
affidavits were submitted for the three (3) remaining victims. 14 Cannot the next of kin of these three
(3) remaining victims, who were not even notified of the provisional dismissal of the cases, prosecute
those responsible for killing them within the prescriptive period provided in Art. 90 of The Revised Penal
Code? Are they now without any remedy in law if witnesses belatedly surface, they who cowered in fear
at the time because of the positions of power held by those perceived to be responsible therefor?

Significantly also, I am at a loss as to why the Court of Appeals reckoned the two (2)-year period from 29
March 1999 as the date of issuance of the resolution of dismissal. When Sec. 8 speaks of "issuance" it
should be construed not with reference to the date as appearing in the resolution of dismissal but on
the date it was actually delivered to the proper person and received by him. Otherwise, how would the
offended parties know that such resolution was issued as to reckon with the two (2)-year period after
which the provisional dismissal would be considered permanent?chanrob1es virtua1 1aw 1ibrary

In the instant case, the records do not clearly identify who the offended parties are, or whether they
were all notified of Judge Agnir’s order of dismissal dated 29 March 1999 as they do not even appear to
have been properly named. In the absence of such evidence, the reckoning point for computing the two
(2)-year period under Sec. 8 becomes indeterminable. Assuming that Sec. 8 is available to respondent,
to which we do not even agree, still respondent has failed to discharge his burden of proving that the
two (2)-year period has indeed elapsed to make the provisional dismissal permanent.

These circumstances cast a heavy pall of doubt on whether the dismissal of the eleven (11) Informations
has indeed attained the status of permanence as to prevent the prosecution from refiling them. The
notice requirement in the first paragraph of Sec. 8 as well as the notice of the order of dismissal are by
no means trivial formalities; they are meaningful and significant. The offended parties, seeking justice
and vindication for the wrong done, would naturally be keenly interested in the progress and outcome
of the criminal prosecution. Hence, it is but proper that all of them be notified of the termination of the
cases and given an equal opportunity to object to the dismissal.

A view has been expressed that respondent’s rights to speedy trial and to speedy disposition of his cases
were violated; this despite the fact that the right was not invoked by respondent before us. Accordingly,
the twenty-six (26) month delay in the refiling of cases relative to the Kuratong Baleleng killings is
claimed to be vexatious, capricious and oppressive, and hence sufficient to activate the protection of the
Bill of Rights, specifically, on the rights to speedy trial and to speedy disposition of his cases. Sections 14
(2) and 16, Art. III, of the 1987 Constitution respectively provides —

Sec. 14. . . . (2) In all criminal prosecutions, the accused . . . shall enjoy the right . . . to have a speedy,
impartial and public trial . . . .

Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies.

These provisions uphold the time-honored tradition of speedy justice for, as stated in the oft-repeated
dictum, "justice delayed is justice denied." Their express inclusion in the present Constitution was in
response to the common charge against perennial delays in the administration of justice which have
plagued our judicial system. 15

The right to speedy trial under Sec. 14 and the right to speedy disposition of cases in Sec. 16, both of Art.
III, of the 1987 Constitution, are kindred constitutional norms similar in nature and legal effects, sharing
common operational principles, and subject to the same test for purposes of determining violations
thereof. Thus, the cornerstone of both rights is to prevent delays in the administration of justice by
requiring tribunals to proceed with reasonable dispatch in the trial and disposition of cases.

Speedy disposition of cases, like the constitutional guarantee of speedy trial, is necessarily relative. It is
consistent with delays and depends upon the circumstances of a particular case. 16 Verily, these rights
are more indistinct concepts than other constitutional rights. It is, for example, impossible to determine
with precision when the rights have been denied. We cannot definitely say how long is too long in a
system where justice is supposed to be swift but deliberate. As a consequence, these rights cannot be
quantified into a specified number of days or months. There is no fixed point in the proceeding when a
party may exercise or be deemed to have waived these rights. Finally, the amorphous quality of the
rights sometimes lead to the drastic remedy of dismissal of a case when the rights have been infringed.
This is indeed a serious consequence because it means that an accused who may be guilty of a grave
offense will go scot-free without being tried and held responsible therefor. Such a remedy is more
radical than an exclusionary rule or a reversal for a new trial.

At any rate, the framers of the Constitution recognized the right to speedy disposition of cases distinctly
from the right to speedy trial in criminal cases. It should be noted that Sec. 16 covers all phases before,
during and after trial, and extends protection to all parties in all types of cases: civil, criminal and
administrative. In this respect, it affords a broader protection than Sec. 14 (2) which guarantees merely
the right to a speedy trial in criminal cases. 17

Against this backdrop, I turn to inquire into the parameters of the right to speedy disposition of cases.
Just how broad is its mantle of protection as applied in criminal cases? When does the right attach
during the criminal process, and when may it be properly asserted by a party? A criminal prosecution
has many stages, and delay may occur during or between any of them. As applied in the instant case, it
appears that the speedy disposition guarantee of the Bill of Rights is asserted to include the period of
delay from the provisional dismissal of the case to its revival or refiling since "respondent is as much
entitled to a speedy reinvestigation and refiling of the provisionally dismissed cases against him." 18

Such interpretation, however, does not seem to be in consonance with the unmistakable language, nor
by the obvious intent, of Sec. 16. The provision speaks of "speedy disposition of cases before all judicial,
quasi-judicial, or administrative bodies." It clearly and logically contemplates a situation wherein there
exists an outstanding case, proceeding or some incident upon which the assertion of the right may be
predicated. Evidently, it would be idle, not to say anomalous, to speak of "speedy disposition of cases"
in the absence of anything to dispose of in the first place.

A review of pertinent jurisprudence attests abundantly to the indispensable requirement of a "pending

case, proceeding or some incident," as sine qua non before the constitutional right to speedy disposition
of cases may be invoked. Thus, in Tatad v. Sandiganbayan 19 we held that the long delay of three (3)
years in the termination of the preliminary investigation by the Tanodbayan was violative of the
Constitutional right of speedy disposition of cases because political motivations played a vital role in
activating and propelling the prosecutorial process in this case. Similarly in Duterte v. Sandiganbayan 20
involving an inordinate delay in the conduct of preliminary investigation, we ruled that such unjustified
delay infringes upon the right to speedy disposition of cases.chanrob1es virtua1 1aw 1ibrary

In Binay v. Sandiganbayan 21 we ruled out any violation of petitioner’s right to speedy disposition of
cases despite a six-year delay from the filing of the charges in the Office of the Ombudsman to the time
the Informations were filed in the Sandiganbayan. Then in Dansal v. Fernandez, Sr. 22 we rejected the
allegation of inordinate delay in terminating the preliminary investigation. Finally, in Cervantes v.
Sandiganbayan 23 we held that the inordinate delay of six (6) years by the Special Prosecutor
(succeeding the Tanodbayan) in the filing of the initiatory complaint before he decided to file an
Information for the offense with the Sandiganbayan violated petitioner’s constitutional guaranty to
speedy disposition of the case.

Invariably, the foregoing cases demonstrate that the broad protective cloak of the constitutional right to
speedy disposition of cases becomes available only in instances where preliminary proceedings have
been initiated, or a case has already been filed or any other incident pertaining thereto already had. As
we succinctly stated in Binay v. Sandiganbayan 24 —

The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when
the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or when without cause or unjustifiable motive a
long period of time is allowed to elapse without the party having his case tried (Italics supplied).

It goes without saying therefore that the right to speedy disposition of cases is unavailing in the absence
of any proceedings conducted before, during, or after, trial. Significantly, there is no precedent, for
indeed there is none, to support the novel conclusion that even after the dismissal of the cases, an
accused may still invoke the constitutional guarantee.

In the case before us, nothing was left to be done after the issuance of the 29 March 1999 Order of
Judge Agnir dismissing all criminal charges against respondent relative to the Kuratong Baleleng
incident. During the hiatus following the dismissal of the criminal charges, no formal proceeding
remained outstanding. Not even court processes were issued to restrain respondent’s liberty or subject
him to any form of public accusation; he was free to go about his affairs, to practice his profession, and
to continue on with his life. Respondent was legally and constitutionally in the same posture as though
no charges had been made. Hence, it was only at the time when he was subjected to another pre-
indictment investigation and accused anew that respondent may invoke his right to speedy disposition
of his cases. The delay after the charges against him were dismissed, like any delay before those charges
were filed, should not be included in reckoning the time and determining whether he was denied his
right to a speedy disposition of his cases.

The provisional nature of the dismissal of the original criminal cases is quite immaterial. The fact that
the cases were dismissed conditionally or "without prejudice" to the subsequent filing of new cases,
does not make the order of dismissal any less a disposition of the cases. Although provisional, it
nonetheless terminated all proceedings against respondent such that there remained in the meantime
no pending case which the court could act upon and resolve, and which could be made the basis for the
application of the right to speedy disposition of respondent’s cases.25cralaw:red

Clearly, we would be reinventing the wheel, so to speak, if we are to include within the protective shield
of the right to speedy disposition of cases the reinvestigation and refiling of the provisionally dismissed
cases. The matter of reinvestigation and refiling of cases at some future time are not by themselves
“pending incidents related to the dismissed cases;” they are mere possibilities or expectancies. The
State has no definite decision yet on whether to really commence a reinvestigation and refiling of the
cases, and only indicates, at the most, a probable action at some future time. Until such time that the
State decided to exercise these rights, they cannot ripen into a pending case, proceeding or incident for
purposes of the speedy disposition safeguard.

Certainly, the constitutional pledge mandates merely the swift resolution or termination of a pending
case or proceeding, and not the initiation or institution of a new case or proceeding. It has no
application to inexistent proceedings but only to those currently being undertaken. Were we to hold
otherwise, we would in effect be granting to every accused an unbridled license to impose his will upon
the State and demand that he be immediately reinvestigated and a case filed against him. The
determination of whether to file or when to file a case lies within the sole discretion of the prosecution
depending upon the availability of his evidence and provided that it is filed within the prescriptive
period. As American Jurisprudence would hold —

It requires no extended argument to establish that prosecutors do not deviate from "fundamental
conceptions of justice" when they defer seeking indictments until they have probable cause to believe
an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment
on less than probable cause. It should be equally obvious that prosecutors are under no duty to file
charges as soon as probable cause exists but before they are satisfied they will be able to establish the
suspect’s guilt beyond a reasonable doubt. To impose such a duty "would have a deleterious effect both
upon the rights of the accused and upon the ability of society to protect itself." From the perspective of
potential defendants, requiring prosecutions to commence when probable cause is established is
undesirable because it would increase the likelihood of unwarranted charges being filed, and would add
to the time during which defendants stand accused but untried . . . . From the perspective of law
enforcement officials, a requirement of immediate prosecution upon probable cause is equally
unacceptable because it could make obtaining proof of guilt beyond reasonable doubt impossible by
causing potentially fruitful sources of information to evaporate before they are fully exploited. And from
the standpoint of the courts, such a requirement is unwise because it would cause scarce resources to
be consumed on cases that prove to be insubstantial, or that involve only some of the responsible
parties or some of the criminal acts. 26

To reiterate, respondent’s right to speedy disposition of his criminal cases attached only at that precise
moment the Department of Justice constituted a panel of prosecutors and conducted a new preliminary
investigation. Even then, the conduct of the prosecutors cannot be assailed as violative of the speedy
disposition guarantee. As shown by the records, the government can hardly be accused of foot-dragging
for, in fact, they lost no time in commencing the new preliminary investigation and thereafter filing the
corresponding Informations in court upon the appearance of new witnesses against respondent and his
co-accused. The expeditious action of the government in the instant case certainly cannot be viewed
with suspicion.

In fairness to petitioners, they cannot be faulted in demonstrating alacrity in performing their mandate,
nor can they be castigated for the so-called "unusual haste" in reopening the cases against Respondent.
No impure motive should be imputed to them other than the fact that they regularly performed their
duty in their apparent desire to unravel the Kuratong Baleleng mystery.

For the petitioners, this is a classic case of "damn-if-you-do-and-damn-if-you-don’t" situation.

Petitioners are being put to task for their alleged negligence and delay in reviving the cases, but then
again, they are also being pilloried for persecuting the respondent because of the supposed "unusual
haste" and "uncharacteristic vigor" in pursuing the criminal cases against him and his co-accused.

For the reasons stated, I decline to extend to respondent the protection guaranteed by Sec. 16. Plain
common sense dictates that the provision cannot be applied to situations not contemplated by it. Verily,
we cannot expand the letter and spirit of the provision and read into it a meaning that is not there.

This does not, of course, mean that respondent is utterly unprotected in this regard. On the contrary,
there are other constitutional and statutory mechanisms to guard against possible and actual prejudice
to the accused, resulting from the passage of time. Primarily, the statute of limitations under Art. 90 of
The Revised Penal Code is the principal safeguard against prosecuting overly stale criminal charges. The
statute represents legislative assessments of relative interests of the State and the defendant in
administering and receiving justice; it protects not only the accused from prejudice to his defense, but
also balances his interest in repose against society’s interest in the apprehension and punishment of
criminals. 27 This statute provides predictability by specifying a limit beyond which there is an
irrefutable presumption that the rights of an accused to a fair trial would be prejudiced. 28

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed
period of time following the occurrence of those acts the legislature has decided to punish by criminal
sanctions. Such a limitation is designed to protect individuals from having to defend themselves against
charges when the basic facts may have become obscured by the passage of time and to minimize the
danger of official punishment because of acts in the far-distant past. Such a time limit may also have the
salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal
activity. 29
Moreover, the sweeping command of the Due Process Clause always protects defendants against
fundamentally unfair treatment by the government in criminal proceedings. Procedural fairness
required by due process decrees the dismissal of an indictment if it be shown that delay caused
substantial prejudice to the rights of an accused to a fair trial and that the delay was an intentional
device to gain tactical advantage over the accused.

But even if we proceed on the assumption that respondent may rightfully invoke the speedy disposition
clause for the respondent, still I find that the circumstances of this case fail to measure up to the criteria
set forth under the Balancing Test.

In Caballero v. Alfonso 30 we adopted a four-factor Balancing Test to determine whether an accused has
been denied the constitutional right to speedy disposition of his case, i.e., (a) length of the delay, (b)
reason for the delay, (c) assertion of the right or failure to assert it, and, (d) prejudice caused by the
delay.

With these relevant factors, the otherwise abstract concept of speedy disposition of cases is provided
with at least a modicum of structure. The Balancing Test, in which the conduct of both the prosecution
and the defense are considered, prescribes flexible standards based on practical considerations. It
necessarily compels courts to approach speedy disposition cases on an ad hoc basis. No single factor in
the Balancing Test is definitive because all four (4) must be weighed against the others in determining
whether a violation of the right to speedy disposition of cases occurred. In other words, these factors
have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But,
because we are dealing with a fundamental right of the accused, this process must be carried out in full
recognition of the accused’s interest in the speedy disposition of his case as specifically affirmed in the
Constitution. 31

I proceed to consider the four (4) factors in the Balancing Test in seriatim. The length of delay is to some
extent a triggering mechanism. Until it is shown that the delay has crossed the threshold dividing
ordinary delay from presumptively prejudicial delay, there is no necessity for inquiry into the other
factors that go into the balance. 32 Considering the serious nature of the charges against respondent,
and more importantly, the criminal cases sought to be filed being deeply impressed with public interest,
involving as they do high ranking police officers, I am of the view that the claimed two (2) years and
three (3) months lag between the provisional dismissal of the first criminal cases on 29 March 1999 and
the filing of new Informations on 6 June 2001 sketches below the bare minimum needed to provoke
such an inquiry. At any rate, I will assume, without conceding, that it is sufficiently long for purposes of
triggering a full analysis under the three (3) remaining factors.chanrob1es virtua1 1aw 1ibrary

The banner the litigants seek to capture is the second factor — the reason the government assigns to
justify the delay. Here too, different weights should be assigned to different reasons. For instance, a
deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against
the government. A more neutral reason such as negligence or overcrowded courts should be weighed
less heavily. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
33
I find it hard to accept that in the criminal cases against respondent the government is on the wrong
side of the divide between acceptable and unacceptable reasons for delaying the prosecution
of Respondent. It simplistically and unrealistically assumes that the availability of witnesses Yu and Enad
prior to 2001 renders the seeming lethargy of the government unjustifiable. It completely disregards
other considerations affecting the decision of the government to stay its entire prosecutorial machinery.

The government may delay for a variety of reasons such as to gain time in which to strengthen and
document its case. The government may also delay, not with the view of ensuring conviction of the
accused, but because the government lacks sufficient resources to move quickly. The species of
governmental delay that are anathema to the right to speedy disposition of cases are those which are
purposely or negligently employed to harm or gain impermissible advantage over the accused at the
trial. The reason is that, in such circumstance, the fair administration of justice is imperiled.

In the present recourse, there is nothing to demonstrate that the delay in reviving the cases against
respondent was deliberately availed of for an impermissible purpose. It was not explained what
improper tactical advantage was gained or sought by the government; nor can I discern any such
advantage from the records. To be sure, if as claimed by respondent this whole mess is nothing more
than a pure and simple political vendetta, carried out by a possè bent on lynching him politically and
personally — which I am not inclined to acknowledge at this stage — the government could have moved
against respondent with deliberate haste, for delay is not exactly to its best interest.

Neither can we safely conclude that the public prosecutors are guilty of negligent omission. Insufficiency
of evidence is a legitimate reason for delay. The government is naturally not expected to go forward
with the trial and incur costs unless it is convinced it has an iron-clad case to make a worthwhile
indictment. Verily, it needs time to gather evidence, track down and collect witnesses, as well as
document its case. As to how much time it needs depends on such other factors as the availability of
witnesses and resources to enable it to move quickly. In U.S. v. Lovasco 34 it was held —

. . . investigative delay is fundamentally unlike delay under taken by the Government solely "to gain
tactical advantage over the accused," precisely because investigative delay is not so one-sided. Rather
than deviating from elementary standards of "fair play and decency," a prosecutor abides by them if he
refuses to seek indictments until he is completely satisfied that he should prosecute and will be able to
promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for
these reasons would subordinate the goal of "orderly expedition" to that of "mere speed."cralaw
virtua1aw library

In no mean measure, the many constitutional and procedural safeguards provided an accused can also
present obstacles. It is doubly difficult in this particular case considering the recantation and
disappearance of all available vital witnesses for the prosecution.

If we were to turn the tables against the respondent, we say that the unavailability of the witnesses for
the prosecution may be attributed to the conventional tendency of our people never to antagonize the
powerful and the influential. We are not insinuating that respondent had a hand in the recantation or
desistance of the complainants, or the non-appearance or the shortage of witnesses for the prosecution;
what we are simply saying is that accusing an individual of respondent’s stature naturally engenders fear
of physical harm, real or imagined, and can intimidate even the most stout-hearted and temerarious
individuals. This circumstance should have been given weight in resolving the present controversy.

The third factor — the extent to which respondent has asserted his right to speedy disposition of his
case — further weakens his position. When and how a defendant asserts his right should be given strong
evidentiary weight in determining whether the accused is being deprived of the right. The more serious
the deprivation, the more likely an accused is to complain. But the failure to invoke the right will make it
difficult for an accused to prove that he was denied thereof. 35

I do not think that the vigor with which respondent defended himself in the original cases against him,
and the vigilance with which he assailed the filing of the new Informations now subject of the instant
petition, is the equivalent to an assertion of his right to speedy disposition. The trouble with this
observation is that every accused in a criminal case has the intense desire to seek acquittal, or at least to
see the swift end of the accusation against him. To this end, it is natural for him to exert every effort
within his capacity to resist prosecution. But is it correct to assume that, in every instance, the accused
in resisting his criminal prosecution is also asserting his right to speedy disposition?

Respondent’s reliance on Sec. 8, Rule 117, of the 2000 Revised Rules on Criminal Procedure, which some
have said is based on the constitutional right to speedy disposition of cases, cannot be equated with a
positive assertion of the right to speedy disposition. A perusal of the records would reveal that the issue
of applicability of Sec. 8, Rule 117, was raised by respondent for the first time before the Court of
Appeals, in his Second Amended Petition — undoubtedly a mere afterthought. It was not his original
position before the trial court, which centered on the "lack of valid ‘complaints’ to justify a preliminary
investigation of cases which had long been dismissed." It was not even his initial position in the early
stages of the proceedings before the Court of Appeals. Within the context of the Balancing Test,
respondent’s tardy, inexplicit and vague invocation of this right makes it seriously difficult for him to
prove the denial thereof.

Finally, the fourth factor is prejudice to the accused. Prejudice, of course, should be assessed in the light
of the interests of accused which the speedy disposition right as well as the speedy trial right are
designed to protect. There are three (3) of such interests: (a) to prevent oppressive pretrial
incarceration; (b) to minimize anxiety and concern of the accused; and, (c) to limit the possibility that
the defense will be impaired. 36 Of the three (3), the most significant is the last because the inability of
the defendant to adequately prepare his case skews the fairness of the entire system. 37

Needless to say, respondent was never arrested or taken into custody, or otherwise deprived of his
liberty in any manner. These render the first criterion inapplicable. Thus, the only conceivable harm to
respondent from the lapse of time may arise from anxiety and the potential prejudice to his ability to
defend his case. Even then, the harm suffered by respondent occasioned by the filing of the criminal
cases against him is too minimal and insubstantial to tip the scales in his favor.

Concededly, anxiety typically accompanies a criminal charge. But not every claim of anxiety affords the
accused a ground to decry a violation of the rights to speedy disposition of cases and to speedy trial. The
anxiety must be of such nature and degree that it becomes oppressive, unnecessary and notoriously
disproportionate to the nature of the criminal charge. To illustrate, a prosecution for the serious crime
of multiple murder naturally generates greater degree of anxiety, than an indictment for, say, simple
estafa. The anxiety and the tarnished "reputation and image of respondent who is, after all, presently
and newly elected member of the Senate," does not amount to that degree that would justify a
nullification of the appropriate and regular steps that must be taken to assure that while the innocent
should go unpunished, those guilty must expiate for their offense. Verily, they pale in importance to the
gravity of the charges and the paramount considerations of seeking justice for the victims as well as
redeeming the sullied integrity and reputation of the Philippine National Police for their alleged
involvement in the perpetration of the ghastly crimes.

We cannot therefore hold, on the facts before us, that the delay in the reinvestigation and refiling of the
criminal cases weighed sufficiently in support of the view that respondent’s right to speedy disposition
of his cases has been violated. The delay simply does not justify the severe remedy of dismissing the
indictments.chanrob1es virtua1 1aw 1ibrary

Consistent with the views expressed above, I hold that no constitutional, statutory and procedural
impediments exist against the subsequent re-indictment of Respondent. Although we are dealing here
with alleged members of the notorious Kuratong Baleleng Gang, against whom society must be
protected, we must bear in mind that they too were human beings with human rights. Indeed, life is so
precious that its loss cannot simply be consigned to oblivion in so short a time. Withal, the seriousness
of the accusations against respondent and other high-ranking officers of the PNP goes into the very
foundation of our law enforcement institutions. We must ferret out the truth: Is the Philippine National
Police so contaminated to the core with corrupt and murderous police officers, worse than the criminal
elements they are trained to exterminate? Let us give the courts a chance to find out — and more
importantly — to absolve respondent and erase any taint in his name, if innocent. Injustice anywhere is
a threat to justice everywhere.

I vote to GRANT the Motion for Reconsideration.

Quisumbing, J., concur with J. Bellosillo’s opinion.

PUNO, J., dissenting:chanrob1es virtual 1aw library

PRECIS

Our Resolution of May 28, 2002 was the result of a long and exhaustive, nay, exhausting discussion of
the meaning of section 8, Rule 117 of the Revised Rules of Criminal Procedure. As summed up in the
new ponencia of Mr. Justice Callejo, the Court ruled that section 8, Rule 117 is applicable to the case at
bar. Nonetheless evidence has to be adduced by the parties to prove certain facts which shall determine
whether said section can be beneficially invoked by respondent Lacson. These vital facts, to quote the
new ponencia, are (1) whether the provisional dismissal of the cases had the express consent of the
accused; (2) whether notices to the offended parties were given before the cases of respondent Lacson
were dismissed by then Judge Agnir, Jr.; (3) whether there were affidavits of desistance executed by the
relatives of the three (3) other victims; (4) whether the 2-year period to revive the cases has already
lapsed; (5) whether there is any justification for the re-filing of the cases beyond the 2-year period; (6)
whether the reckoning date of the 2-year bar shall be from the date of the order of then Judge Agnir, Jr.
dismissing the cases, or from the dates of receipt thereof by the various offended parties, or from the
date of effectivity of the new rule; and (7) if the cases were revived only after the 2-year bar, the State
must justify its failure to comply with the said time-bar. Thus, the case at bar was remanded to the RTC-
Quezon City, Branch 81 to enable the parties to adduce evidence on these factual issues. On the basis of
the evidence to be presented, the trial court will rule on the applicability of section 8, Rule 117 to
respondent Lacson.chanrob1es virtua1 1aw 1ibrary

It is noteworthy that except for JJ Melo and Carpio, who inhibited themselves, the resolution was a
unanimous one. The new ponencia now seeks to reverse the unanimous resolution of this Court. The
Court has four new members and the passage of time has put a mist on some of the themes and sub-
themes considered in the discussion of section 8, Rule 117. I wish therefore to restate my humble
understanding of section 8, Rule 117, as chairman of the Committee on Revision of the Rules of Court
that drafted the said rule.

I start with the statement that the Committee was confronted with the following problem:chanrob1es
virtual 1aw library

1. A complaint or information has been filed with a court of competent jurisdiction;

2. The prosecution after a number of settings cannot proceed with the case for some reasons but usually
due to the unavailability of the complainant or witnesses to testify;

3. The accused is ready to proceed but cannot move to dismiss the case and invoke his right to speedy
trial because the delay of the prosecution is not yet unreasonable;

4. As a half-way measure and to relieve himself of the heavy burden of a pending criminal case, the
accused agrees to a provisional dismissal of the complaint or information against him;

5. Under the rules and case-law prior to year 2000, the provisional dismissal of a criminal case is open-
ended. The case can be revived by the prosecution without any time limit except when it is already
barred by prescription. It is not unusual for the case to be frozen for an unreasonable length of time. It
remains in the docket of the court and contributes to its clogging. Worse, it hangs like a sword of
Damocles over the head of the accused. It can fall principally depending on the predilection and
prejudice of the prosecutor.

First. It was this undesirable situation that the Committee on Revision of the Rules of Court addressed
when it designed section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure. The Court en banc
found no difficulty appreciating the rationale of the new rule for it approved the rule with but a minor
amendment. The amendment lengthened the time within which the prosecution can revive the
provisionally dismissed case in offenses punishable by more than six (6) years of imprisonment. The time
to revive was stretched to two (2) years after a survey was made of offenses punishable by
imprisonment of six (6) years or more and a study of its probable adverse impact on the government
campaign against crimes. In promulgating the new rule, the Court en banc struck a fine balance between
the sovereign right of the State to prosecute crimes and the inherent right of the accused to be
protected from the unnecessary burdens of criminal litigation. The timeline within which provisionally
dismissed cases can be revived forms the crux of the delicate balance.

Second. Section 8, Rule 117 is a rule that gives an accused a new right that is distinct from, among
others, the right to speedy trial and the right against double jeopardy. The resistance to recognize this
new right and the effort to unnecessarily link it with other rights of the accused are the main causes of
its misunderstanding. Thus, section 8, Rule 117 should not be confused with Rule 119 1 which is the rule
of procedure that implements the constitutional right of an accused to speedy trial. The confusion can
obliterate the difference in the time requirements in the two rules. The right to speedy trial is
determined by a flexible time standard. We resolve claims of denial of the right to speedy trial by
balancing the following factors: (1) the duration of the delay, (2) the reason thereof, (3) the assertion of
the right or failure to assert it by the accused, and (4) the prejudice caused by such delay. On the other
hand, the timeline that restricts the right of the State to revive a case in a section 8, Rule 117 situation is
inflexible if it is shown that it has slept on its right without reason. Section 8, Rule 117 should not also be
confused with section 3(i), Rule 117 which is the rule of procedure that protects the constitutional right
of an accused against double jeopardy. Again, the two rules are distinct, hence, it is not proper to
require the element of prior plea in double jeopardy cases in a section 8, Rule 117 situation. In fine,
section 8, Rule 117 is a new rule that is complete by itself and should not be construed in light of rules
implementing other rights of an accused.

Third. The provisional dismissal under section 8 of Rule 119 becomes permanent after the lapse of one
or two years depending on the gravity of the offense involved. There can be no hedging on the meaning
of the word permanent for the new rule used the word without a bit of embroidery. To be emphatic, the
lapse of the one (1) or two (2) years time puts a period to the provisionally dismissed case and not a
mere comma. It is true that during the deliberations of the Committee, the provision was originally
worded as follows: "The corresponding order shall state that the provisional dismissal shall become
permanent and amount to acquittal one (1) year after its issuance without the case having been
revived." In the final version of the provision, however, the phrase "amount to acquittal" was deleted.
The deletion was dictated by the belief that the phrase was a redundancy in light of the clear and
unequivocal import of the word "permanent." The deletion cannot be distorted to mean that a case
permanently dismissed can still be revived. For if that were the intent, the rule could have easily stated
that the accused whose case has been permanently dismissed could nevertheless be prosecuted for the
same offense.

Fourth. The permanent dismissal of an unrevived case under section 8, Rule 117 does not unduly
shorten the prescriptive period of offenses provided for in Articles 90 and 91 of the Revised Penal Code.
The new rule merely regulates the conduct of the prosecution of an offense once the case is filed in
court. It cannot be doubted that after a case is filed in court, its conduct by the prosecution can be
regulated by rules of procedure which are within the exclusive power of this Court to promulgate. More
specifically, the new rule regulates the time when the State must complete the prosecution of a pending
case after its provisional dismissal. It provides the consequence when the State sleeps on its duty to
revive a provisionally dismissed case. If the State loses the right to continue the prosecution of an
offense already filed in court, it is not because the rule has amended the prescriptive period of the crime
provided by our substantive law. Rather, it is a simple case where the State forfeited its right to
prosecute by its own inaction, an inaction that unless justified cannot be allowed to further impair the
rights of an accused.

Fifth. The permanent dismissal under section 8, Rule 117 precludes the prosecution of the accused for
the same offense under a new information. Again, it is true that we have rulings to the effect that a trial
court may, in the interest of justice, dismiss a case provisionally but without prejudice to reinstating it
before the order of dismissal becomes final or without prejudice to the subsequent filing of a new
information for the same offense. But note should be taken of the important fact that these rulings
were handed down before section 8, Rule 117 came into being. Section 8, Rule 117 changed the old rule
that dismissals which are provisional in character lack the imprimatur of finality, hence, they do not bar
the revival of the offense charged or the filing of a new information for the same offense. The old rule
was precisely jettisoned by the Committee and by this Court because of its unfairness to the accused.
Again, I respectfully submit that the new rule would be useless if it would leave unfettered the
discretion of the prosecutor in reviving the same offense under the fig leaf of a new information.

Sixth. I do not share the thesis that the re-filing of Criminal Cases Nos. Q-01-101102 to Q-01-101112 is
not a revival of Criminal Cases Nos. Q-99-81679 to Q-99-81689. There cannot be any dispute on the
meaning of the word revival in section 8, Rule 117. Revival means reanimating or renewing the case that
has become dormant because of its provisional dismissal. The cases that were provisionally dismissed
for lack of probable cause refer to the eleven (11) Informations for murder filed against the respondent,
Et Al., allegedly for the summary execution of some members of the Kuratong Baleleng gang. Without
doubt, these are the same cases re-filed against the respondent after another preliminary investigation
with the principal difference that respondent is now charged as a principal and no longer as an
accessory.

I respectfully submit that the test to determine whether a case can be revived is not whether a new
preliminary investigation has been conducted by the prosecution. That test, if allowed, would torture
out of context the intent of section 8, Rule 117. The new rule speaks of "case" and "offenses." It clearly
prohibits the revival of the case against an accused which has been provisionally dismissed for failure of
the State to continue its prosecution without any justification. I like to underscore that the prohibition
against revival is not a free gift by the State to an accused. The right against revival is the result of a
trade-off of valuable rights for the accused can exercise it only if he surrenders his right to an early
permanent dismissal of the case against him due to the inability of the State to prosecute. In so doing,
the accused suffers a detriment for he gives the State one to two years to revive a case which has
already been frozen for failure to prosecute. During this waiting period, the accused cannot move to
dismiss the charge against him while the State can locate its missing witnesses, secure them if they are
threatened and even gather new evidence. In exchange for this period of grace given to the State, the
rule sets a timeline for the prosecutors to revive the case against the accused. The timeline is fixed for
the accused has suffered an indubitable detriment and the trade-off for this detriment is the duty
imposed on the prosecution either to continue or discontinue with the case within the 1 or 2-year grace
period. We cannot allow the undue extension of this detriment unless the State can show compelling
reasons to justify its failure to prosecute. The open-ended practice under the old rule which makes
provisional dismissal permanently provisional is precisely the evil sought to be extirpated by section 8,
Rule 117.chanrob1es virtua1 1aw 1ibrary

Seventh, I wish to stress the bigger reason for section 8, Rule 117. The new rule does enhance the
constitutional rights of an accused to speedy trial and speedy disposition of the case(s) against him but it
is much more than that. More broadly, the new rule was designed to achieve one of the end-goals of the
criminal process — to minimize the burdens of accusation and litigation. This end-goal is well explained
by La Fave and Israel, conceded authorities in Criminal Procedure, viz: 2

"(d) Minimizing the Burdens of Accusation and Litigation. Even though eventually acquitted, an innocent
person charged with a crime suffers substantial burdens. The accusation casts a doubt on the person’s
reputation that is not easily erased. Frequently, the public remembers the accusation and still suspects
guilt even after an acquittal. Moreover, even where an acquittal is accepted as fully vindicating the
accused, it hardly remedies other costs suffered in the course of gaining that verdict. The period spent
by the accused awaiting trial commonly is filled with a substantial degree of anxiety and insecurity that
disrupts the daily flow of his life. That disruption is, of course, even greater if he is incarcerated pending
trial. The accused also must bear the expense and ordeal of the litigation process itself."cralaw
virtua1aw library

This end-goal is by no means novel. We have various rules of criminal procedure to minimize the
burdens of litigation. Our rules on bail, venue, double jeopardy, speedy trial, speedy disposition of cases,
etc., are among them. In fine, we have been promulgating rules to minimize the burdens of litigation for
a long, long time.

Let me also underscore that section 8, Rule 117 was promulgated in the exercise of the expanded power
of this Court to enact rules of procedure under section 5(5) of the 1987 Constitution,
viz:jgc:chanrobles.com.ph

"SEC. 5. The Supreme Court shall have the following powers:chanrob1es virtual 1aw library

x x x

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the Supreme Court."cralaw virtua1aw library
This provision 3 expanded the rule making power of this Court for (1) it extended its power not only to
cover pleading, practice and procedure in all courts, admission to the practice of law and the integration
of the Bar but also to encompass the protection and enforcement of constitutional rights and legal
assistance to the underprivileged, and (2) it no longer contained the restriction that said rules "may be
repealed, altered or supplemented by the Batasang Pambansa." 4 As aforediscussed, section 8, Rule 117
was designed to diminish the burdens of litigation by fixing a timeline on provisional dismissal of cases
beyond which they cannot be revived. The regulation of the conduct of a criminal case once filed in
court, including the time within which it must be terminated, is inherent in judicial power. Section 8,
Rule 117 is an exercise of this power, a power that this Court has exercised without any question since
the 1935 Constitution.

II

The dismissal of the cases against respondent Lacson bears his express consent

This Court did not err when it ruled "that the provisional dismissal of the case against respondent Lacson
bears his express consent."cralaw virtua1aw library

The records will show that respondent Lacson filed before then Judge Agnir, Jr. who was to try Criminal
Cases Nos. Q-99-81679 to Q-99-81689, a motion for judicial determination of probable cause. The
motion contained the following prayer:jgc:chanrobles.com.ph

"x x x

(1) a judicial determination of probable cause pursuant to section 2, Article III of the Constitution be
conducted by this Honorable Court, and for this purpose, an order be issued directing the prosecution to
present the private complainants and their witnesses at a hearing scheduled therefore; and

(2) warrants for the arrest of the accused-movants be withheld, or, if issued recalled in the meantime
until the resolution of this incident.

Other equitable reliefs are also prayed for." 5

In ruling that the dismissal of the cases against respondent Lacson did not bear his consent, the
ponencia states that." . . respondent merely filed a motion for judicial determination of probable
cause . . .." 6 It emphasizes that no motion for provisional dismissal of the cases was filed. With due
respect, the effort to distinguish the two motions is futile for it is seeking a distinction when there is no
difference. The essence of both motions is the lack of probable cause of the Informations. If the motions
succeed, there is only one course of action for the judge to take — to dismiss the Informations. For all
intents and purposes, a motion for judicial determination of probable cause can be treated as a motion
to dismiss for lack of probable cause. Thus, Judge Agnir, Jr. prefaced the resolution of respondent
Lacson’s motion in this wise:jgc:chanrobles.com.ph
"Before the Court are five (5) separate but identical motions filed thru their respective counsel by the
twenty-six (26) accused in the above numbered cases, praying the Court to (1) make a judicial
determination of the existence of probable cause for the issuance of warrants of arrest, (2) to hold in
abeyance the issuance of warrants in the meantime, and (3) to dismiss the cases should the court find
lack of probable cause."cralaw virtua1aw library

Prescinding from this understanding, then Judge Agnir, Jr. issued his Resolution dismissing Criminal
Cases Nos. Q-99-81679 to Q-99-81689, viz:jgc:chanrobles.com.ph

"As already seen, the documents attached to the Informations in support thereof have been rendered
meaningless, if not absurd, with the recantation of the principal prosecution witnesses and the
desistance of the private complainants. There is no more evidence to show that a crime has been
committed and that the accused are probably guilty thereof. Following the doctrine above-cited, there is
no more reason to hold the accused for trial and further expose them to an open and public accusation.
It is time to write finis to these cases and lay to rest the ghost of the incident of May 18, 1995 so that all
those involved — the accused, the prosecution witnesses and the private complainants alike — may get
on with their lives.

The Court is not unmindful of the admonition in the recent case of People v. Court of Appeals (G.R. No.
126005, January 21, 1999) where the Supreme Court said that the general rule is that ‘if the Information
is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on
the part of the public prosecutor, courts should not dismiss it for want of evidence, because evidentiary
matters should be presented and heard during the trial’, and that the ruling in Allado v. Diokno ‘is an
exception to the general rule and may be invoked only if similar circumstances are clearly shown to
exist.’

This Court holds that the circumstances in the case at bench clearly make an exception to the general
rule.

WHEREFORE, in view of the foregoing, the Court finds no probable cause for the issuance of the
warrants of arrest against the accused or to hold them for trial. Accordingly, the Informations in the
above-numbered cases are hereby ordered dismissed."cralaw virtua1aw library

SO ORDERED.” (Emphasis supplied)

G.R. No. 166040 April 26, 2006

NIEL F. LLAVE, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
26962 affirming, with modification, the Decision2 of the Regional Trial Court (RTC) of Pasay City, Branch
109, in Criminal Case No. 02-1779 convicting Petitioner Neil F. Llave of rape.

On September 27, 2002, an Information charging petitioner (then only 12 years old) with rape was filed
with the RTC of Pasay City. The inculpatory portion of the Information reads:

That on or about the 24th day of September 2002, in Pasay City, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, NEIL LLAVE Y FLORES, aka NIEL F.
LLAVE, a minor over nine (9) years of age and under fifteen (15) but acting with discernment, by means
of force threat and intimidation, did then and there willfully, unlawfully, feloniously have carnal
knowledge of the complainant, DEBBIELYN SANTOS y QUITALES, a minor, seven (7) years of age, against
her will and consent.

Contrary to law.3

The Case for the Prosecution

The spouses Domingo and Marilou Santos were residents of Pasay City.4 One of their children,
Debbielyn, was born on December 8, 1994.5 In 2002, she was a Grade II student at the Villamor Air Base
Elementary School in Pasay City6 and attended classes from 12:00 noon to 6:00 p.m.7

Domingo eked out a living as a jeepney driver, while Marilou sold quail eggs at a nearby
church.8 Adjacent to their house was that of Teofisto Bucud, a barbecue vendor who would usually start
selling at 6:30 p.m.9 Next to Teofisto’s residence was a vacant house.10

Debbielyn testified that on September 24, 2002, she arrived home at past 6:00 p.m. She changed her
clothes and proceeded to her mother’s store. Marilou asked her daughter to bring home the container
with the unsold quail eggs.11 Debbielyn did as told and went on her way. As she neared the vacant
house, she saw petitioner, who suddenly pulled her behind a pile of hollow blocks which was in front of
the vacant house. There was a little light from the lamp post.12 She resisted to no avail.13 Petitioner
ordered her to lie down on the cement. Petrified, she complied. He removed her shorts and underwear
then removed his own. He got on top of her.14 She felt his penis being inserted into her vagina. He
kissed her.15 She felt pain and cried.16 She was sure there were passersby on the street near the vacant
house at the time.

It was then that Teofisto came out of their house and heard the girl’s cries. He rushed to the place and
saw petitioner on top of Debbielyn, naked from the waist down. Teofisto shouted at petitioner, and the
latter fled from the scene. Teofisto told Debbielyn to inform her parents about what happened.17 She
told her father about the incident.18 Her parents later reported what happened to the police
authorities.19 Debbielyn told the police that petitioner was a bad boy because he was a rapist.20
Teofisto testified that at about 6:25 p.m. on September 24, 2002, he went out of their house to get his
barbecue grill. He heard someone moaning from within the adjacent vacant house.21 He rushed to the
place and saw petitioner, naked from waist down, on top of Debbielyn, making pumping motions on her
anus.22 The girl was crying. He shouted at petitioner, "Hoy, bakit ginawa mo ’yan?"23 Petitioner
hurriedly put his shorts on and fled.24 Neighbors who had heard Teofisto shouting arrived.25 Later,
Teofisto gave a written statement to the police investigator regarding the incident.26

Domingo Santos testified that at about 6:30 p.m. that day, he was inside their house. His daughter,
Kimberly Rose, suddenly told him that Debbielyn had been raped near the vacant house by
petitioner.27 He rushed to the place and found her daughter crying. When he asked her what
happened, she replied that she had been abused. He brought Debbielyn to their house and then
left.28 He then looked for petitioner and found him at his grandmother’s house. A barangay tanod
brought petitioner to the barangay hall.29 On September 25, 2002, he brought her daughter to the
Philippine General Hospital Child Protection Unit at Taft Avenue, Manila where she was examined by Dr.
Mariella S. Castillo.

Dr. Castillo declared on the witness stand that she was a physician at the Child Protection Unit of the
Philippine General Hospital. On September 25, 2002, she interviewed the victim who told her "Masakit
ang pepe ko," "Ni-rape ako."30 Dr. Castillo also conducted a genital examination on the child, and found
no injury on the hymen and perineum, but found scanty yellowish discharge between the labia
minora.31 There was also a fresh abrasion of the perineal skin at 1 o’clock position near the anal
opening.32 She declared that the findings support the theory that blunt force or penetrating trauma
(such as an erect penis, finger, or any other foreign body33) was applied to the perineal area34 not
more than six or seven days before.35 The abrasion could have been caused on September 24, 2002.
She found no spermatozoa in the vaginal area or injury at the external genitalia;36 neither did she find
any other injury or abrasion on the other parts of the victim’s body.37 She concluded that her findings
were consistent with the victim’s claim that she was sexually abused by petitioner.

Barangay Tanod Jorge Dominguez, for his part, testified that on September 24, 2002, Marilou Santos
arrived at the barangay hall and reported that her daughter had been raped by petitioner who was then
in his aunt’s house at Cadena de Amor Street. Barangay Captain Greg Florante ordered him and
Barangay Tanod Efren Gonzales to proceed to Cadena de Amor Street and take the boy into custody,
and they did as they were told.38

The Case for the Accused

Petitioner, through counsel, presented Dr. Castillo as witness. She declared that the abrasions in the
perineal area could have been caused while the offender was on top of the victim.39 She explained that
the distance between the anus and the genital area is between 2.5 to 3 centimeters.40 The abrasion was
located at ¼ of an inch from the anal orifice.

Petitioner testified and declared that he was a freshman at the Pasay City South High School.41 He had
been one of the three outstanding students in grade school and received awards such as Best in
Mathematics.42 He also finished a computer course and received a Certificate of Completion from the
Philippine Air Force Management Information Center.43 He denied having raped the private
complainant. He declared that at 6:30 p.m. on September 24, 2002, he was outside of their house to buy
rice in the carinderia44 and he saw her on his way back.45 He also met his father, who asked him what
he had done to their neighbor. He was also told that the victim’s father was so angry that the latter
wanted to kill him.46 He did not ask his father for the name of the angry neighbor. He was also told to
pass by Cadena de Amor Street in going to his aunt’s house. Petitioner also declared that his mother
prodded him to go to his aunt’s house.47 Later, Domingo and Barangay Tanod Jorge Dominguez arrived
at his aunt’s house and brought him to the barangay hall. He did not know of any reason why Debbielyn
and her parents would charge him with rape.48

Petitioner also declared that he played cards with Debbielyn.49 While confined at the Pasay City Youth
Home during trial, he had a crush on "Issa," a young female inmate. Using a piece of broken glass
(bubog) about half-an-inch long, he inscribed her name on his right thigh, left leg and left arm.50

Nida Llave testified and identified her son’s Certificate of Live Birth, in which it appears that he was born
on March 6, 1990.51 She declared that at about 6:30 p.m. on September 24, 2000, Marilou Santos and
Marilyn Bucud arrived in their house looking for her son. According to Marilyn, her son had raped the
private complainant. She went to their house to look for her son and came across Domingo Santos who
threatened to kill her son. She and her husband proceeded to the house of his sister Josefina at Cadena
de Amor Street where petitioner had hidden for a while.52

At the conclusion of the trial, the court rendered judgment convicting Neil of the crime charged. The
decretal portion of the decision reads:

FROM ALL THE FOREGOING, the Court opines that the prosecution has proven the guilt of the xxx Niel
Llave y Flores beyond reasonable doubt when he forcibly pulled the complainant towards the vacant lot,
laid on top of her and had carnal knowledge with the [complainant] against her will and consent who is
only seven (7) years old (sic). Moreover, he being a minor, he cannot be meted with the Death penalty.

WHEREFORE, the Court finds the CICL [Child in Conflict with the Law] Niel Llave y Flores guilty beyond
reasonable doubt, and crediting him with the special mitigating circumstance of minority, this Court
hereby sentences him to prision mayor minimum, Six (6) years and One (1) day to Eight (8) years, and
pay civil indemnity of Fifty Thousand Pesos (Php50,000.00).53

The trial court declared that based on the evidence of the prosecution that petitioner pushed the victim
towards the vacant house and sexually abused her, petitioner acted with discernment. It also considered
petitioner’s declaration that he had been a consistent honor student.54

Petitioner appealed the decision to the CA, where he averred the following in his Brief as appellant
therein:

THE LOWER COURT ERRED WHEN IT DISREGARDED THE MATERIAL INCONSISTENCIES OF THE
TESTIMONY OF COMPLAINING WITNESS WITH THAT OF THE MEDICAL REPORT ON THE FACTUAL
ALLEGATION OF BLEEDING.

II

THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE TESTIMONY OF THE PROSECUTION
WITNESS TEOFISTO BUCUD WHO HAS REASON TO FABRICATE A SCENARIO AGAINST ACCUSED-
APPELLANT BECAUSE HE HAS PERSONAL VENDETTA AGAINST THE LATTER’S FAMILY/RELATIVES.
III

THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE PROSECUTION OF RAPE BY HAVING
CARNAL KNOWLEDGE, BEING CONTRARY TO THE PHYSICAL EVIDENCE.55

The CA rendered judgment affirming the decision with modification as to the penalty meted on him.

WHEREFORE, the decision subject of the instant appeal is hereby MODIFIED in that the accused-
appellant is sentenced to an indeterminate penalty of two (2) years and four (4) months of prision
correccional medium as the minimum to eight (8) years and one (1) day of prision mayor medium as the
maximum. Additionally, the accused-appellant is ordered to pay the complaining witness the amount of
₱50,000 by way of moral damages and ₱20,000 by way of exemplary damages.

SO ORDERED.56

Petitioner filed a Motion for the Reconsideration,57contending that the prosecution failed to adduce
proof that he acted with discernment; hence, he should be acquitted. The appellate court denied the
motion in a Resolution58dated November 12, 2004 on the following finding:

As regards the issue of whether the accused-appellant acted with discernment, his conduct during and
after the "crime" betrays the theory that as a minor, the accused-appellant does not have the mental
faculty to grasp the propriety and consequences of the act he made. As correctly pointed out by the
prosecution, the fact that forthrightly upon discovery, the accused-appellant fled the scene and hid in
his grandmother’s house intimates that he knew that he did something that merits punishment.

Contrary to the urgings of the defense, the fact that the accused-appellant is a recipient of several
academic awards and is an honor student further reinforces the finding that he [is] possessed [of]
intelligence well beyond his years and is thus poised to distinguish, better at least than other minors his
age could, which conduct is right and which is morally reprehensible.59

Petitioner now raises the following issues and arguments in the instant petition before this Court:

ISSUES

WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT PETITIONER BEYOND REASONABLE DOUBT.

II

WHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9 YEARS BUT BELOW 15 YEARS OF AGE AT
THE TIME OF THE CRIME, ACTED WITH DISCERNMENT.

III

WHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF LAW.

ARGUMENTS

I
THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF COMPLAINING WITNESS WITH THE
MEDICAL REPORT BELIE THE FINDING OF RAPE.

II

PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.

III

PETITIONER ACTED WITHOUT DISCERNMENT.

IV

THE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.

THE COMPLAINT IS FABRICATED.

VI

PETITIONER WAS DENIED DUE PROCESS OF LAW.60

The issues raised by the petitioner in this case may be summarized as follows: (1) whether he was
deprived of his right to a preliminary investigation; (2) whether he had carnal knowledge of the private
complainant, and if in the affirmative, whether he acted with discernment in perpetrating the crime; (3)
whether the penalty imposed by the appellate court is correct; and (4) whether he is liable to pay moral
damages to the private complainant.

On the first issue, petitioner avers that he was deprived of his right to a preliminary investigation before
the Information against him was filed.

On the second issue, petitioner claims that the prosecution failed to prove beyond reasonable doubt
that he had carnal knowledge of Debbielyn. He insists that her testimony is inconsistent on material
points. He points out that she claimed to have felt pain in her vagina when petitioner inserted his penis
to the point that she cried; this, however, is negated by Dr. Castillo’s report stating that there was no
evidence of injury on the victim’s external genitalia. Petitioner maintains that as against the victim’s
testimony and that of Dr. Castillo’s report, the latter should prevail.

According to petitioner, mere touching of the female organ will not suffice as factual basis of conviction
for consummated rape. Moreover, the victim’s testimony lacks credibility in view of her admission that,
while she was being allegedly ravished by him, there were passersby along the street. Besides,
petitioner avers, an abrasion may be caused by an invasion of the body through the protective covering
of the skin. Petitioner insists that the prosecution failed to prove the cause of the abrasion.

Petitioner also claims that the victim was tutored or coached by her parents on her testimony before
the trial court. Dr. Castillo testified that when she interviewed Debbielyn, the latter admitted to her that
she did not understand the meaning of the word "rape" and its Filipino translation, "hinalay," and that
the genital examination of the girl was at the insistence of the latter’s parents.
Petitioner avers that Teofisto Bucud’s testimony has no probative weight because and had an ill-motive
to testify against him. Petitioner stated, on cross-examination, that his uncle, Boy, had the house rented
by Teofisto demolished. Petitioner avers that the witness persuaded the victim’s parents to complain
against him, as gleaned from the testimony of Police Investigator Milagros Carroso.

For its part, the Office of the Solicitor General (OSG) avers that petitioner was subjected to an inquest
investigation under Section 7, Rule 112 of the Revised Rules of Criminal Procedure, as gleaned from the
Certification of the City Prosecutor incorporated in the Information. It avers that the absence of external
injuries does not negate rape; neither is it necessary that lacerations be found on the hymen of a victim.
Rape is consummated if there is some degree of penetration within the vaginal surface. Corroborative
evidence is not necessary to prove rape. As long as the testimony of the victim is credible, such
testimony will suffice for conviction of consummated rape. When the victim testified that she was
raped, she was, in effect, saying all that is necessary to prove that rape was consummated. Petitioner’s
evidence to prove ill-motive on the part of Teofisto Bucud in testifying against him is at best flimsy.
Moreover, it is incredible that the victim and her parents would charge petitioner with rape solely on
Teofisto’s proddings.

The OSG insists that the petitioner acted with discernment before, during, and after the rape based on
the undisputed facts. The submission of the OSG follows:

Petitioner argues that since he was only 12 years old at the time of the alleged rape incident, he is
presumed to have acted without discernment under paragraph 3 of Article 12 of the Revised Penal
Code. Under said provision, the prosecution has the burden of proving that he acted with discernment.
In the instant case, petitioner insists that there was no evidence presented by the prosecution to show
that he acted with discernment. Hence, he should be exempt from criminal liability.

Petitioner’s arguments are bereft of merit.

Discernment, as used in Article 12(3) of the Revised Penal Code is defined as follows: "the discernment
that constitutes an exception to the exemption from criminal liability of a minor under fifteen (15) years
of age but over nine (9), who commits an act prohibited by law, is his mental capacity to understand the
difference between right and wrong" (People v. Doquena, 68 Phil. 580 [1939]). For a minor above nine
but below fifteen years of age, he must discern the rightness or wrongness of the effects of his act
(Guevarra v. Almodova, G.R. No. 75256, January 26, 1989).

Professor Ambrocio Padilla, in his annotation of Criminal Law (p. 375, 1998 Ed.), writes that
"discernment is more than the mere understanding between right and wrong. Rather, it means the
mental capacity of a minor between 9 and 15 years of age to fully appreciate the consequences of his
unlawful act" (People v. Navarro, [CA] [51 O.G. 4062]). Hence, in judging whether a minor accused acted
with discernment, his mental capacity to understand the difference between right and wrong, which
may be known and should be determined by considering all the circumstances disclosed by the record of
the case, his appearance, his attitude and his behavior and conduct, not only before and during the
commission of the act, but also after and even during the trial should be taken into consideration
(People v. Doquena, supra).

In the instant case, petitioner’s actuations during and after the rape incident, as well as his behavior
during the trial showed that he acted with discernment.
The fact appears undisputed that immediately after being discovered by the prosecution’s witness,
Teofisto Bucud, petitioner immediately stood up and ran away. Shortly thereafter, when his parents
became aware of the charges against him and that private complainant’s father was looking for him,
petitioner went into hiding. It was not until the Barangay Tanod came to arrest him in his grandmother’s
house that petitioner came out in the open to face the charges against him. His flight as well as his act of
going into hiding clearly conveys the idea that he was fully aware of the moral depravity of his act and
that he knew he committed something wrong. Otherwise, if he was indeed innocent or if he was not
least aware of the moral consequences of his acts, he would have immediately confronted private
complainant and her parents and denied having sexually abused their daughter.

During the trial, petitioner submitted documentary evidence to show that he was a consistent honor
student and has, in fact, garnered several academic awards. This allegation further bolstered that he
acted with discernment, with full knowledge and intelligence. The fact that petitioner was a recipient of
several academic awards and was an honor student further reinforces the finding that he was possessed
of intelligence well beyond his years and thus was able to distinguish, better than other minors of his
age could, which conduct is right and which is morally reprehensible. Hence, although appellant was still
a minor of twelve years of age, he possessed intelligence far beyond his age. It cannot then be denied
that he had the mental capacity to understand the difference between right and wrong. This is
important in cases where the accused is minor. It is worthy to note that the basic reason behind the
enactment of the exempting circumstances under Article 12 of the Revised Penal Code is the complete
absence of intelligence, freedom of action, or intent on the part of the accused. In expounding on
intelligence as the second element of dolus, the Supreme Court has stated: "The second element of
dolus is intelligence; without this power, necessary to determine the morality of human acts to
distinguish a licit from an illicit act, no crime can exist, and because … the infant has no intelligence, the
law exempts (him) from criminal liability" (Guevarra v. Aldomovar, 169 SCRA 476 [1989], at page 482).

The foregoing circumstances, from the time the incident up to the time the petitioner was being held for
trial, sufficiently satisfied the trial court that petitioner acted with discernment before, during and after
the rape incident. For a boy wanting in discernment would simply be gripped with fear or keep mum. In
this case, petitioner was fully aware of the nature and illegality of his wrongful act. He should not,
therefore, be exempted from criminal liability. The prosecution has sufficiently proved that petitioner
acted with discernment.61

In reply, petitioner asserts that the only abrasion found by Dr. Castillo was on the peri-anal skin and not
in the labia of the hymen. He further insists that there can be no consummated rape absent a slight
penetration on the female organ. It was incumbent on the prosecution to prove that the accused acted
with discernment but failed. The mere fact that he was an honor student is not enough evidence to
prove that he acted with discernment.

The petition is not meritorious.

On the first issue, petitioner’s contention that he was deprived of his right to a regular preliminary
investigation is barren of factual and legal basis. The record shows that petitioner was lawfully arrested
without a warrant. Section 7, Rule 112 of the Revised Rules of Criminal Procedure provides:

SEC. 7. When accused lawfully arrested without warrant. – When a person is lawfully arrested without a
warrant involving an offense which requires a preliminary investigation, the complaint or information
may be filed by a prosecutor without need of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor,
the complaint may be filed by the offended party or a peace officer directly with the proper court on the
basis of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation
in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for
bail and the investigation must be terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary investigation, the accused
may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided for in this Rule.

As gleaned from the Certification62 of the City Prosecutor which was incorporated in the Information,
petitioner did not execute any waiver of the provisions of Article 125 of the Revised Penal Code before
the Information was filed. He was arraigned with the assistance of counsel on October 10, 2002, and
thereafter filed a petition for bail.63Petitioner’s failure to file a motion for a preliminary investigation
within five days from finding out that an Information had been filed against him effectively operates as a
waiver of his right to such preliminary investigation.64

On the second issue, a careful review of the records shows that the prosecution adduced evidence to
prove beyond reasonable doubt that petitioner had carnal knowledge of the private complainant as
charged in the Information. In People v. Morata65 the Court ruled that penetration, no matter how
slight, or the mere introduction of the male organ into the labia of the pudendum, constitutes carnal
knowledge. Hence, even if the penetration is only slight, the fact that the private complainant felt pains,
points to the conclusion that the rape was consummated.66

From the victim’s testimony, it can be logically concluded that petitioner’s penis touched the middle
part of her vagina and penetrated the labia of the pudendum. She may not have had knowledge of the
extent of the penetration; however, her straightforward testimony shows that the rape passed the stage
of consummation.67 She testified that petitioner dragged her behind a pile of hollow blocks near the
vacant house and ordered her to lie down. He then removed her shorts and panty and spread her legs.
He then mounted her and inserted his penis into her vagina:

Fiscal Barrera:

Q: From what time up to what time?

A: From 12:00 o’clock noon up to 6:00 p.m.

Q: September 24, 2002 and going over the calendar, it was Tuesday. Did you go to school from 12:00
o’clock noon up to 6:00 p.m.?

A: Yes, Sir, on the same date I went to school.

Q: At about 6:00 p.m., Sept. 24, 2002, where were you?

A: I went home.
Q: And by whom you are referring to your house at 1-C Carnation St., R. Higgins, Maricaban, Pasay City?

A: Yes, Sir.

Q: And what did you do after you went home?

A: I changed my clothes and then I proceeded to the store of my mother.

Q: And where is that store of your mother where you went?

A: It is near our house, walking distance.

Q: What is your mother selling in that store?

A: She sells quail eggs.

Q: And were you able to immediately go to the store of your mother where she was selling quail eggs?

A: Yes, sir.

Q: And that was past 6:00 p.m. already?

A: Yes, sir.

Q: And what happened when you went to the store where your mother is selling quail eggs past 6:00
p.m.?

A: My mother asked me to bring home something.

Q: What were these things you were asked by your mother to bring home?

A: The things she used in selling.

Q: And did you obey what your mother told you to bring home something?

A: Yes, Sir.

Q: And what happened to you in going to your house?

A: Totoy pulled me.

Q: Pulled you where?

A: Totoy pulled me towards an uninhabited house.

Q: What happened after Totoy pulled you in an uninhabited house?

A: He told me to lie down on the cement.

Q: What happened after he laid you down on the cement?

A: He removed my shorts and panty. He also removed his shorts.

Q: After Totoy removed your shorts and panty and he also removed his shorts, what happened next?

A: He inserted his penis inside my vagina.

Q: What did you feel when Totoy inserted his penis inside your vagina?

A: It was painful.

Q: Aside from inserting his penis inside your vagina, what else did you do to you?

A: He kissed me on my lips.

Q: After Totoy inserted his penis inside your vagina and kissed you on your lips, what did you do?

A: I cried.

Q: What happened when you were crying when he inserted his penis inside your vagina and kissed you
on your lips. What happened next?

A: Somebody heard me crying.

Q: Who heard you crying?

A: Kuya Teofe, Sir.

Q: What happened after you cried and when somebody heard you crying?

A: Totoy ran away.

Q: After Totoy ran away, what happened next?

A: When Totoy ran away, I was left and Kuya Teofe told me to tell the matter to my parents.

Q: Did you tell your parents what Totoy did to you?

A: Yes, Sir.68

On cross-examination, the victim was steadfast in her declarations:

ATTY. BALIAD:

Q: Again, in what particular position were you placed by Totoy when he inserted his penis inside your
vagina?

A: I was lying down.

Q: Aside from lying down, how was your body positioned at that time?

A: He placed on top of me.

Q: After he placed on top of you, what else did he do to you, if any?

A: He started to kiss me and then he inserted his penis inside my vagina.

Q: Did you feel his penis coming in into your vagina?

A: Yes, Sir.

Q: Are you sure that his penis was inserted inside your vagina?
A: Yes, Sir.69

When questioned on cross-examination whether she could distinguish a vagina from an anus, the victim
declared that she could and proceeded to demonstrate. She reiterated that the penis of petitioner
penetrated her vagina, thus, consummating the crime charged:

Atty. Baliad:

Q: Do you recall having stated during the last hearing that the accused, Neil Llave or "Totoy" inserted his
penis in your vagina, do you recall that?

A: Yes, Sir.

Q: And likewise, you testified that you feel that the penis of Neil entered your vagina?

A: Yes, Sir.

Q: Could you distinguish vagina from your anus?

A: Yes, Sir.

Q: Where is your "pepe"?

A: (Witness pointing to her vagina.)

Q: Where is your anus?

A: (Witness pointing at her back, at the anus.)

Q: In your statement, am I correct to say that Neil, the accused in this case penetrated only in your
vagina and not in your anus?

A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his penis touched any part of your
anus?

A: He did not insert anything on my anus, Sir.70

While it is true that Dr. Castillo did not find any abrasion or laceration in the private complainant’s
genitalia, such fact does not negate the latter’s testimony the petitioner had carnal knowledge of her.
The absence of abrasions and lacerations does not disprove sexual abuses, especially when the victim is
a young girl as in this case.71 According to Dr. Castillo, the hymen is elastic and is capable of stretching
and reverting to its original form.72 The doctor testified that her report is compatible with the victim’s
testimony that she was sexually assaulted by petitioner:

Atty. Baliad:

Q: Do you recall having stated during the last hearing that the accused, Neil Llave or "Totoy" inserted his
penis in your vagina, do you recall that?

A: Yes, Sir.

Q: And likewise, you testified that you feel (sic) that the penis of Neil entered your vagina?
A: Yes, Sir.

Q: Could you distinguish vagina from your anus?

A: Yes, Sir.

Q: Where is your "pepe"?

A: (Witness pointing to her vagina.)

Q: Where is your anus?

A: (Witness pointing at her back, at the anus.)

Q: In your statement, am I correct to say that Neil, the accused in this case penetrated only in your
vagina and not in your anus?

A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his penis touched any part of your
anus?

A: He did not insert anything on my anus, Sir.

xxxx

Fiscal Barrera:

Q: Based on your testimony doctor, and the medico genital examination propounded on the report that
the victim here, Debbielyn Santos is complaining that around 6:00 in the evening of September 24, 2002,
she was sexually abused and that on the following day, September 25, you interviewed her and stated to
you that her genitalia was hurting and in binocular (sic) "masakit ang pepe ko, ni-rape ako," would your
findings as contained in this Exh. B and C be compatible with the allegation if the minor victim that she
was sexually abused on September 24. 2002 at around 6:00 p.m.?

Atty. Baliad:

Objection, Your Honor. The one who narrated the incident is the mother.

Court:

What is your objection?

Atty. Baliad:

The objection, Your Honor, is the question propounded is that it was the minor who made the complaint
regarding the allegation.

Fiscal Barrera:

The answer were provided…..

Court:
The doctor is being asked whether or not her findings is compatible with the complaint of the minor.
Overruled. Answer.

Witness:

A It is compatible with the allegation of the minor.

Fiscal Barrera:

Confronting you again with your two (2) medico-genital documents, the Provincial and Final Report
mark[ed] in evidence as Exhs. B and C, at the lower portion of these two exhibits there appears to be a
signature above the typewritten word, Mariella Castillo, M.D., whose signature is that doctor?

A Both are my signatures, Sir.73

Dr. Castillo even testified that the abrasion near the private complainant’s anal orifice could have been
caused by petitioner while consummating the crime charged:

Fiscal Barrera:

Q: With your answer, would it be possible doctor that in the process of the male person inserting his
erect penis inside the vagina, in the process, would it be possible that this abrasion could have been
caused while in the process of inserting the penis into the vagina touch the portion of the anus where
you find the abrasion?

A: It is possible, Sir.

Q: Now, are you aware, in the course of your examination, that the alleged perpetrator is a 12-year-old
minor?

A: I only fount it out, Sir, when I testified.

Q: Do you still recall your answer that a 12-year-old boy could cause an erection of his penis?

A: Yes, sir.

Q: To enlight[en] us doctor, we, not being a physician, at what age could a male person can have
erection?

A: Even infants have an erection.74

Petitioner’s contention that the private complainant was coached by her parents into testifying is barren
of merit. It bears stressing that the private complainant testified in a straightforward and spontaneous
manner and remained steadfast despite rigorous and intensive cross-examination by the indefatigable
counsel of the petitioner. She spontaneously pointed to and identified the petitioner as the perpetrator.

It is inconceivable that the private complainant, then only a seven- year old Grade II pupil, could have
woven an intricate story of defloration unless her plaint was true.75 The Presiding Judge of the trial
court observed and monitored the private complainant at close range as she testified and found her
testimony credible. Case law is that the calibration by the trial court of the evidence on record and its
assessment of the credibility of witnesses, as well as its findings of facts and the conclusions anchored
on said findings, are accorded conclusive effect by this Court unless facts and circumstances of
substance were overlooked, misconstrued or misinterpreted, which, if considered would merit a
nullification or reversal of the decision. We have held that when the offended party is young and
immature, from the age of thirteen to sixteen, courts are inclined to give credence to their account of
what transpired, considering not only their relative vulnerability but also the shame and embarrassment
to which they would be exposed if the matter to which they testified is not true.76

Neither do we lend credence to petitioner’s claim that the charge against him is but a fabrication and
concoction of the private complainant’s parents. Indeed, petitioner admitted in no uncertain terms that
the spouses had no ill-motive against him. Thus, Neil testified as follows:

Fiscal Barrera:

Q: As you testified earlier that you have played post cards with Debbielyn Santos alias Lyn-lyn and you
have no quarrel or misunderstanding with Lyn-lyn. Do you know of any reason why Lyn-lyn complaint
(sic) against you for sexual abuse?

A: I don’t know of any reason, Sir.

Q: You also testified that you do not have any quarrel or misunderstanding with Lyn-lyn’s parents,
spouses Domingo Santos, Jr. and Marilou Santos, do you think of any reason as to why they would file a
complaint against you for molesting their 7-year-old daughter?

A: I do not know of any reason why they filed a complaint against me, Sir.

Fiscal Barrera:

That would be all, Your Honor.77

There is no evidence that the parents of the offended party coached their daughter before she testified.
No mother or father would stoop so low as to subject their daughter to the tribulations and the
embarrassment of a public trial knowing that such a traumatic experience would damage their
daughter’s psyche and mar her life if the charge is not true.78

On the other hand, when the parents learned that their daughter had been assaulted by petitioner,
Domingo tried to locate the offender and when he failed, he and his wife reported the matter to the
barangay authorities. This manifested their ardent desire to have petitioner indicted and punished for
his delictual acts.

That petitioner ravished the victim not far from the street where residents passed by does not negate
the act of rape committed by petitioner. Rape is not a respecter of time and place. The crime may be
committed by the roadside and even in occupied premises.79 The presence of people nearby does not
deter rapists from committing the odious act.80 In this case, petitioner was so daring that he ravished
the private complainant near the house of Teofisto even as commuters passed by, impervious to the fact
that a crime was being committed in their midst.

Case law has it that in view of the intrinsic nature of rape, the only evidence that can be offered to prove
the guilt of the offender is the testimony of the offended party. Even absent a medical certificate, her
testimony, standing alone, can be made the basis of conviction if such testimony is credible.
Corroborative testimony is not essential to warrant a conviction of the perpetrator.81 Thus, even
without the testimony of Teofisto Bucud, the testimonies of the offended party and Dr. Castillo
constitute evidence beyond reasonable doubt warranting the conviction of petitioner.

Teofisto’s testimony cannot be discredited by petitioner simply because his uncle caused the demolition
of the house where Teofisto and his family were residing. It bears stressing that Teofisto gave a sworn
statement to the police investigator on the very day that the petitioner raped Debbielyn and narrated
how he witnessed the crime being committed by the petitioner.82 In the absence of proof of improper
motive, the presumption is that Teofisto had no ill-motive to so testify, hence, his testimony is entitled
to full faith and credit.83

The trial court correctly ruled that the petitioner acted with discernment when he had carnal knowledge
of the offended party; hence, the CA cannot be faulted for affirming the trial court’s ruling.1âwphi1

Article 12, paragraph 3 of the Revised Penal Code provides that a person over nine years of age and
under fifteen is exempt from criminal liability, unless he acted with discernment. The basic reason
behind the exempting circumstance is complete absence of intelligence, freedom of action of the
offender which is an essential element of a felony either by dolus or by culpa. Intelligence is the power
necessary to determine the morality of human acts to distinguish a licit from an illicit act.84 On the
other hand, discernment is the mental capacity to understand the difference between right and wrong.
The prosecution is burdened to prove that the accused acted with discernment by evidence of physical
appearance, attitude or deportment not only before and during the commission of the act, but also after
and during the trial.85 The surrounding circumstances must demonstrate that the minor knew what he
was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the
minor’s cunning and shrewdness.

In the present case, the petitioner, with methodical fashion, dragged the resisting victim behind the pile
of hollow blocks near the vacant house to insure that passersby would not be able to discover his
dastardly acts. When he was discovered by Teofisto Bucud who shouted at him, the petitioner hastily
fled from the scene to escape arrest. Upon the prodding of his father and her mother, he hid in his
grandmother’s house to avoid being arrested by policemen and remained thereat until barangay tanods
arrived and took him into custody.

The petitioner also testified that he had been an outstanding grade school student and even received
awards. While in Grade I, he was the best in his class in his academic subjects. He represented his class
in a quiz bee contest.86At his the age of 12, he finished a computer course.

In People v. Doqueña,87 the Court held that the accused-appellant therein acted with discernment in
raping the victim under the following facts:

Taking into account the fact that when the accused Valentin Doqueña committed the crime in question,
he was a 7th grade pupil in the intermediate school of the municipality of Sual, Pangasinan, and as such
pupil, he was one of the brightest in said school and was a captain of a company of the cadet corps
thereof, and during the time he was studying therein he always obtain excellent marks, this court is
convinced that the accused, in committing the crime, acted with discernment and was conscious of the
nature and consequences of his act, and so also has this court observed at the time said accused was
testifying in his behalf during the trial of this case.88
The CA ordered petitioner to pay ₱50,000.00 as moral damages and ₱20,000.00 as exemplary damages.
There is no factual basis for the award of exemplary damages. Under Article 2231, of the New Civil Code,
exemplary damages may be awarded if the crime was committed with one or more aggravating
circumstances. In this case, no aggravating circumstance was alleged in the Information and proved by
the People; hence, the award must be deleted.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The decision of the Court of
Appeals in CA-G.R. CR No. 26962 is AFFIRMED WITH MODIFICATION that the award of exemplary
damages is DELETED.

SO ORDERED.

[G.R. No. 129792. December 21, 1999]

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA

PANELO, Petitioners, v. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R.
AGUILAR, Respondents.

DECISION

DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal
of the 17 June 1996 decision1 of the Court of Appeals in C.A. G.R. No. CV 37937 and the
resolution2denying their motion for reconsideration. The assailed decision set aside the 15 January 1992
judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered
petitioners to pay damages and attorneys fees to private respondents Conrado and Criselda (CRISELDA)
Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati City. Petitioners
Leonardo Kong, Jose Tiope and Elisa Panelo are the stores branch manager, operations manager, and
supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar
(ZHIENETH).

In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvels Department
Store, Makati City. CRISELDA was signing her credit card slip at the payment and verification counter
when she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her
daughter ZHIENETH on the floor, her young body pinned by the bulk of the stores gift-wrapping
counter/structure. ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was quick
to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the
floor.3
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day
ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The
injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident
or on 22 May 1983, on the hospital bed. She was six years old.4

The cause of her death was attributed to the injuries she sustained. The provisional medical
certificate5 issued by ZHIENETHs attending doctor described the extent of her injuries:

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, private respondents demanded upon petitioners the reimbursement
of the hospitalization, medical bills and wake and funeral expenses6 which they had incurred.
Petitioners refused to pay. Consequently, private respondents filed a complaint for damages, docketed
as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual damages, P300,000
for moral damages, P20,000 for attorneys fees and an unspecified amount for loss of income and
exemplary damages.

In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death
of ZHIENETH. They claimed that CRISELDA was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a store filled with glassware and appliances.
ZHIENETH too, was guilty of contributory negligence since she climbed the counter, triggering its
eventual collapse on her. Petitioners also emphasized that the counter was made of sturdy wood with a
strong support; it never fell nor collapsed for the past fifteen years since its construction.

Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good
father of a family in the selection, supervision and control of its employees. The other petitioners
likewise raised due care and diligence in the performance of their duties and countered that the
complaint was malicious for which they suffered besmirched reputation and mental anguish. They
sought the dismissal of the complaint and an award of moral and exemplary damages and attorneys fees
in their favor.

In its decision7 the trial court dismissed the complaint and counterclaim after finding that the
preponderance of the evidence favored petitioners. It ruled that the proximate cause of the fall of the
counter on ZHIENETH was her act of clinging to it. It believed petitioners witnesses who testified that
ZHIENETH clung to the counter, afterwhich the structure and the girl fell with the structure falling on top
of her, pinning her stomach. In contrast, none of private respondents witnesses testified on how the
counter fell. The trial court also held that CRISELDAs negligence contributed to ZHIENETHs accident.

In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the
end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as an
attractive nuisance.8 The counter was higher than ZHIENETH. It has been in existence for fifteen years.
Its structure was safe and well-balanced. ZHIENETH, therefore, had no business climbing on and clinging
to it.

Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the
proximate cause of the fall of the counter was ZHIENETHs misbehavior; (2) CRISELDA was negligent in
her care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and (4)
petitioners were not liable for the death of ZHIENETH.

Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption
that a child below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6)
years old, was already capable of contributory negligence, still it was physically impossible for her to
have propped herself on the counter. She had a small frame (four feet high and seventy pounds) and the
counter was much higher and heavier than she was. Also, the testimony of one of the stores former
employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency
room of the Makati Medical Center belied petitioners theory that ZHIENETH climbed the counter.
Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied,
[N]othing, I did not come near the counter and the counter just fell on me.9 Accordingly, Gonzales
testimony on ZHIENETHs spontaneous declaration should not only be considered as part of res
gestae but also accorded credit.

Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of
ZHIENETH at the precise moment that she was signing the credit card slip.

Finally, private respondents vigorously maintained that the proximate cause of ZHIENETHs death, was
petitioners negligence in failing to institute measures to have the counter permanently nailed.

On the other hand, petitioners argued that private respondents raised purely factual issues which could
no longer be disturbed. They explained that ZHIENETHs death while unfortunate and tragic, was an
accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless.
Further, petitioners adverted to the trial courts rejection of Gonzales testimony as unworthy of
credence.

As to private respondents claim that the counter should have been nailed to the ground, petitioners
justified that it was not necessary. The counter had been in existence for several years without any prior
accident and was deliberately placed at a corner to avoid such accidents. Truth to tell, they acted
without fault or negligence for they had exercised due diligence on the matter. In fact, the criminal
case10 for homicide through simple negligence filed by private respondents against the individual
petitioners was dismissed; a verdict of acquittal was rendered in their favor.

The Court of Appeals, however, decided in favor of private respondents and reversed the appealed
judgment. It found that petitioners were negligent in maintaining a structurally dangerous counter. The
counter was shaped like an inverted L11 with a top wider than the base. It was top heavy and the weight
of the upper portion was neither evenly distributed nor supported by its narrow base. Thus, the counter
was defective, unstable and dangerous; a downward pressure on the overhanging portion or a push
from the front could cause the counter to fall. Two former employees of petitioners had already
previously brought to the attention of the management the danger the counter could cause. But the
latter ignored their concern. The Court of Appeals faulted the petitioners for this omission, and
concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the
defective counter. It was inconsequential that the counter had been in use for some time without a prior
incident.

The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the
incident, was absolutely incapable of negligence or other tort. It reasoned that since a child under nine
(9) years could not be held liable even for an intentional wrong, then the six-year old ZHIENETH could
not be made to account for a mere mischief or reckless act. It also absolved CRISELDA of any negligence,
finding nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while she signed
the document at the nearby counter.

The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased
and prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of
Appeals then awarded P99,420.86 as actual damages, the amount representing the hospitalization
expenses incurred by private respondents as evidenced by the hospital's statement of account.12 It
denied an award for funeral expenses for lack of proof to substantiate the same. Instead, a
compensatory damage of P50,000 was awarded for the death of ZHIENETH.

We quote the dispositive portion of the assailed decision,13 thus:

WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is
entered against [petitioners], ordering them to pay jointly and severally unto [private respondents] the
following:

1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest
(6% p.a.) from 27 April 1984;

2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from
27 April 1984;

3. P100,000.00 as moral and exemplary damages;

4. P20,000.00 in the concept of attorneys fees; and

5. Costs.

Private respondents sought a reconsideration of the decision but the same was denied in the Court of
Appeals resolution14 of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals decision and the reinstatement of the
judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in disregarding
the factual findings and conclusions of the trial court. They stress that since the action was based on
tort, any finding of negligence on the part of the private respondents would necessarily negate their
claim for damages, where said negligence was the proximate cause of the injury sustained. The injury in
the instant case was the death of ZHIENETH. The proximate cause was ZHIENETHs act of clinging to the
counter. This act in turn caused the counter to fall on her. This and CRISELDAs contributory negligence,
through her failure to provide the proper care and attention to her child while inside the store, nullified
private respondents claim for damages. It is also for these reasons that parents are made accountable
for the damage or injury inflicted on others by their minor children. Under these circumstances,
petitioners could not be held responsible for the accident that befell ZHIENETH.

Petitioners also assail the credibility of Gonzales who was already separated from Syvels at the time he
testified; hence, his testimony might have been tarnished by ill-feelings against them.

For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor
CRISELDA was negligent at any time while inside the store; the findings and conclusions of the Court of
Appeals are substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospitals emergency room should receive credence; and
finally, ZHIENETHs part of the res gestae declaration that she did nothing to cause the heavy structure to
fall on her should be considered as the correct version of the gruesome events.

We deny the petition.

The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to
negligence; and (2) in case of a finding of negligence, whether the same was attributable to private
respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due
and reasonable care while inside the store premises.

An accident pertains to an unforeseen event in which no fault or negligence attaches to the

defendant.15 It is a fortuitous circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens.16

On the other hand, negligence is the omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do.17 Negligence is the failure to observe,
for the protection of the interest of another person, that degree of care, precaution and vigilance which
the circumstances justly demand, whereby such other person suffers injury.18

Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs
when the person concerned is exercising ordinary care, which is not caused by fault of any person and
which could not have been prevented by any means suggested by common prudence.19

The test in determining the existence of negligence is enunciated in the landmark case of Picart v.
Smith,20 thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of
negligence.21

We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs death could only
be attributed to negligence.

We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied
CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while the child was being
treated?

A At the emergency room we were all surrounding the child. And when the doctor asked the child what
did you do, the child said nothing, I did not come near the counter and the counter just fell on me.

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?

ATTY. BELTRAN

Yes, your Honor.

COURT

Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.22

This testimony of Gonzales pertaining to ZHIENETHs statement formed (and should be admitted as) part
of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:

Part of res gestae. Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part of the res gestae.

It is axiomatic that matters relating to declarations of pain or suffering and statements made to a
physician are generally considered declarations and admissions.23 All that is required for their
admissibility as part of the res gestae is that they be made or uttered under the influence of a startling
event before the declarant had the time to think and concoct a falsehood as witnessed by the person
who testified in court. Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of
such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life. We
therefore accord credence to Gonzales testimony on the matter, i.e., ZHIENETH performed no act that
facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to secure or
make stable the counters base.

Gonzales earlier testimony on petitioners insistence to keep and maintain the structurally unstable gift-
wrapping counter proved their negligence, thus:

Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift
wrapping counter, were you able to examine?

A Because every morning before I start working I used to clean that counter and since it is not nailed and
it was only standing on the floor, it was shaky.

xxx

Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the
top of it was heavy and considering that it was not nailed, it can collapse at anytime, since the top is
heavy.

xxx

Q And what did you do?

A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of putting
display decorations on tables, he even told me that I would put some decorations. But since I told him
that it not [sic] nailed and it is shaky he told me better inform also the company about it. And since the
company did not do anything about the counter, so I also did not do anything about the
counter.24[Emphasis supplied]

Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:

Q Will you please described [sic] to the honorable Court the counter where you were assigned in
January 1983?

xxx

A That counter assigned to me was when my supervisor ordered me to carry that counter to another
place. I told him that the counter needs nailing and it has to be nailed because it might cause injury or
accident to another since it was shaky.

Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you
please describe that to the honorable Court?

A I told her that the counter wrapper [sic] is really in good [sic]condition; it was shaky. I told her that we
had to nail it.

Q When you said she, to whom are you referring to [sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?

A She told me Why do you have to teach me. You are only my subordinate and you are to teach me?
And she even got angry at me when I told her that.

xxx

Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the
management do to that (sic)

xxx

Witness:

None, sir. They never nailed the counter. They only nailed the counter after the accident
happened.25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger
posed by the unstable counter. Yet, neither initiated any concrete action to remedy the situation nor
ensure the safety of the stores employees and patrons as a reasonable and ordinary prudent man would
have done. Thus, as confronted by the situation petitioners miserably failed to discharge the due
diligence required of a good father of a family.

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the formers
testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and
Guevarras testimonies were blemished by ill feelings against petitioners since they (Gonzales and
Guevarra) were already separated from the company at the time their testimonies were offered in court
was but mere speculation and deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a
general rule disturb the findings of the trial court, which is in a better position to determine the same.
The trial court has the distinct advantage of actually hearing the testimony of and observing the
deportment of the witnesses.26 However, the rule admits of exceptions such as when its evaluation was
reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances of weight and
substance which could affect the result of the case.27 In the instant case, petitioners failed to bring their
claim within the exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children
below nine (9) years old in that they are incapable of contributory negligence. In his book,28 former
Judge Cezar S. Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without
discernment, and is, on that account, exempt from criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment. Since negligence may be a felony and a quasi-
delict and required discernment as a condition of liability, either criminal or civil, a child under nine
years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in the case of a child over nine but
under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under
nine years of age must be conclusively presumed incapable of contributory negligence as a matter of
law. [Emphasis supplied]

Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the
counter, no injury should have occurred if we accept petitioners theory that the counter was stable and
sturdy. For if that was the truth, a frail six-year old could not have caused the counter to collapse. The
physical analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the
evidence29on record reveal otherwise, i.e., it was not durable after all. Shaped like an inverted L, the
counter was heavy, huge, and its top laden with formica. It protruded towards the customer waiting
area and its base was not secured.30

CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to
CRISELDAs waist, later to the latters hand.31 CRISELDA momentarily released the childs hand from her
clutch when she signed her credit card slip. At this precise moment, it was reasonable and usual for
CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was
just a foot away from her mother; and the gift-wrapping counter was just four meters away from
CRISELDA.32 The time and distance were both significant. ZHIENETH was near her mother and did not
loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her at
the hospital that she did not do anything; the counter just fell on her.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of
the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

G.R. No. 1352 March 29, 1905

THE UNITED STATES, complainant-appelle,

vs.
APOLONIO CABALLEROS, ET AL., defendants-appellants.

Hipolito Magsalin for appellants.

Office of the Solicitor-General Araneta for appellee.

MAPA, J.:

The defendants have been sentenced by the Court of First Instance of Cebu to the penalty of seven
years of presidio mayor as accessories after the fact in the crime of assassination or murder perpetrated
on the persons of the American school-teachers Louis A. Thomas, Clyde O. France, John E. Wells, and
Ernest Eger, because, without having taken part in the said crime as principals or as accomplices, they
took part in the burial of the corpses of the victims in order to conceal the crime.

The evidence does not justify, in our opinion, this sentence. As regards Roberto Baculi, although he
confessed to having assisted in the burial of the corpses, it appears that he did so because he was
compelled to do so by the murderers of the four teachers. And not only does the defendant affirm this,
but he is corroborated by the only eyewitness to the crime, Teodoro Sabate, who, by the way, is a
witness for the prosecution. This witness says he was present when the Americans were killed; that
Roberto Baculi was not a member of the group who killed the Americans, but the he was in a banana
plantation on his property gathering some bananas; that when he heard the shots he began to run; that
he was, however, seen by Damaso and Isidoro, the leaders of the band; that the latter called to him and
striking him with the butts of their guns they forced him to bury the corpses.

The Penal Code exempts from liability any person who performs the act by reason of irresistible force
(par. 9, art. 8). Baculi acted, doubtless, under such circumstances when he executed the acts which are
charged against him.
As regards the other defendant, Apolonio Caballeros, there is no proof that he took any part in any way
in the execution of the crime with which he has been charged; there is conclusive proof to the contrary,
since Baculi, as well as one of the witnesses for the prosecution, Teodoro Sabate, expressly declare that
he, Caballeros, did not take any part in the burial of the aforesaid corpses, nor was he even in the place
of the occurrence when the burial took place. The confession of his supposed liability and guilt, made
before an official of the division of information of the Constabulary, Enrique Calderon, as the latter
states when testifying as a witness, can not be considered as legal proof, because the same witness says
that Roberto Baculi was the only one of the defendants who made a confession to him voluntarily. It
appears besides, from the statements of another witness for the prosecution, Meliton Covarrubias, that
the confession of Apolonio Caballeros was made through the promise made to him and to the other
defendants that nothing would be done to them. Confessions which do not appear to have been made
freely and voluntarily, without force, intimidation, or promise of pardon, can not be accepted as proof
on a trial. (Sec. 4, Act No. 619 of the Philippine Commission).

The fact of the defendants not reporting to the authorities the perpetration of the crime, which seems
to be one of the motives for the conviction and which the court below takes into consideration in his
judgment, is not punished by the Penal Code and therefore that can not render the defendants
criminally liable according to law.

By virtue, then, of the above considerations, and with a reversal of the judgment appealed from, we
acquit the defendants, appellants, with the costs de oficio in both instances. So ordered.

G.R. No. 1481 February 17, 1904

THE UNITED STATES, complainant-appellee,

vs.
LIBERATO EXALTACION, ET AL., defendants-appellants.

Alberto Barretto for appellants.

Office of the Solicitor-General Araneta for appellee.

TORRES, J.:

March 26, 1903, the provincial fiscal of Bulacan presented to the court of that province an information
charging Liberato Exaltacion and Buenaventura Tanchinco with the crime of rebellion, in that they,
subsequently to the 4th day of November, 1901, willfully and illegally bound themselves to take part in a
rebellion against the Government of the United States in these Islands, swearing allegiance to the
Katipunan Society, the purpose of which was to overthrow the said Government by force of arms, this
against the statute in the case made and provided.
In the course of the trial Don Pablo Tecson, the provincial governor of Bulacan, testified under oath that
the two defendants were arrested in the month of March, 1903, the police some days before having
captured a number of documents in the encampment of one Contreras, as so-called general of bandits,
situated at a place called Langca, of the town of Meycauayan, among which documents appeared the
papers now on pages 2 and 3 of the record, signed by the said Exaltacion and Tanchinco, who
recognized the said documents when they were exhibited to them; that the said defendants stated to
the witness that they had signed the said documents under compulsion; that the purpose of the
Katipunan Society was to obtain the independence of the Philippines; that this statement was made in
the house of the parish priest of Meycauayan in the presence of Exequiel Casas and Fernando Nieto. The
latter, upon their examination as witnesses, testified to the same facts, stating that the defendants told
Governor Tecson that they had signed the said documents under fear of death at the hands of the
thieves by whom they had been captured. The witness Casas, the municipal president of Meycauayan,
testified that he held office as such in place of the former president, Don Tomas Testa, who was
kidnapped in the month of October, 1902.

The said documents, the first of which was dated July 4 and the second July 17, 1902, were written in
Tagalog, and contain an oath taken in the name of God, and a covenant on the part of the subscribers to
carry out the superior orders of the Katipunan, and never disobey them until their death in the defense
of the mother country. The two accused, under oath, testified to having signed the said documents and
alleged that they did so under compulsion and force while they were held as captives by the thieves;
that the defendant Tanchinco was captured in the fields one day when he was going to work on his farm
by three armed men, unknown to him, who asked him if he was an agent or friend of President Testa,
and upon his replying in the negative they compelled him in view of his denial to sign a document, now
on page 3 of the record.

The defendant Tanchinco cited Lazaro Yusay to testify to the fact that he was captured at a place called
Kaibiga in the township of Novaliches, and that on the day following his release, having been unable to
pay the $300 which was demanded of him, he reported to the president, Tomas Testa. The defendant
Liberato Exaltacion under oath testified that he was captured near Meycauayan by five persons,
unknown, dressed as policemen and armed with guns or revolvers; that these men bound him and took
him into the forest and there compelled him by threats of death to sign the documents now on page 2
of the record; that thereupon they allowed him to go upon promise to return. This defendant testified
that Antero Villano and Tomas Rivera saw him while on the road in the hands of the thieves. Both the
accused testified that as soon as they were released they presented themselves to the president, Don
Tomas Testa, in the presence of witnesses, and subsequently went to Bonifacio Morales, a lieutenant of
volunteers, and reported to him the fact that they had been captured.

The witnesses Morales, Lazaro Yusay, Antero Villano, Dalmacio Ferrer, and Hipolito de Leon — of whom
the last two were present when Tanchinco appeared before Senor Testa, the president of Meycauayan,
and reported to him what had happened to him — all testified to the same fact and corroborated the
statements of the accused with respect to their capture and their subsequent report to President Testa
and to the witness Morales.

The evidence for the prosecution, and especially the two documents above referred to, signed by the
accused, is not sufficient to prove the guilt of the latter or to justify the imposition upon them of the
penalty inflicted by the judgment of the court below.
The facts, established by the evidence, that the defendants were kidnapped by brigands who belonged
to the Contreras band, and that they signed the said documents under compulsion and while in
captivity, relieve them from all criminal liability from the crime of rebellion of which they are charged.
The conduct of the defendants in presenting themselves first to the local president of Meycauayan and
subsequently to Lieut. Bonifacio Morales, of the Bulacan Government Volunteers, as soon as they were
released by the bandits is corroborative of their testimony, and is the best demonstration of their
innocence. This conclusion is not overcome by the trifling discrepancy between the testimony of the
witness Yusay and that of the defendant Tanchinco nor the fact the Exaltacion was unable to determine
the date when he was captured or that on which he appeared before President Testa.

The guilt of the defendants of the crime defined and punished by Act No. 292 not having been
established at the trial beyond a reasonable doubt, we are of the opinion that the judgment below must
be reversed and the defendants acquitted with the costs de oficio. The judge below will be informed of
this decision and a copy of the judgment entered herein will be furnished him for his information and
guidance. So ordered.

G.R. No. L-30801 March 27, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DOMINGO URAL, accused-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres and Solicitor
Vicente P. Evangelista for plaintiff-appellee.

Vicente Cerilles and Emeliano Deleverio for accused-appellant.

AQUINO, J.:p

This is an appeal of defendant Domingo Ural from the decision of Judge Vicente G. Ericta of the Court of
First Instance of Zamboanga del Sur, convicting him of murder, sentencing him to reclusion perpetua,
and ordering him to indemnify the heirs of Felix Napola in the sum of twelve thousand pesos and to pay
the costs (Criminal Case No. 3280).

The judgment of conviction was based on the testimony of Brigido Alberto, a twenty-six year old former
detention prisoner in Buug, Zamboanga del Sur. He had been accused of murder and then set at liberty
on June 9, 1966 after posting bail. He went to Barrio Camongo, Dumalinao where his father resided. On
July 31, 1966, he intended to go to his residence at Barrio Upper Lamari, Buug but night overtook him in
the town. He decided to sleep in the Buug municipal building where there would be more security.
Upon arrival in the municipal building at around eight o'clock, he witnessed an extraordinary
occurrence. He saw Policeman Ural (with whom he was already acquainted) inside the jail. Ural was
boxing the detention prisoner, Felix Napola. As a consequence of the fistic blows, Napola collapsed on
the floor. Ural, the tormentor, stepped on his prostrate body.

Ural went out of the cell. After a short interval, he returned with a bottle. He poured its contents on
Napola's recumbent body. Then, he ignited it with a match and left the cell. Napola screamed in agony.
He shouted for help. Nobody came to succor him.

Much perturbed by the barbarity which he had just seen, Alberto left the municipal building. Before his
departure, Ural cautioned him: "You better keep quiet of what I have done" (sic). Alberto did not sleep
anymore that night. From the municipal building, he went to the crossing, where the cargo trucks
passed. He hitchhiked in a truck hauling iron ore and went home.

Doctor Luzonia R. Bakil, the municipal health officer, certified that the thirty-year old victim, whom she
treated twice, sustained second-degree burns on the arms, neck, left side of the face and one-half of the
body including the back (Exh. A). She testified that his dermis and epidermis were burned. If the burns
were not properly treated, death would unsue from toxemia and tetanus infection. "Without any
medical intervention", the burns would cause death", she said. She explained that, because there was
water in the burnt area, secondary infection would set in, or there would be complications.

Napola died on August 25, 1966. The sanitary inspector issued a certificate of death indicating "burn" as
the cause of death (Exh. B).

The trial court fittingly deplored the half-hearted manner in which the prosecution (represented by
Fiscal Roque and the private prosecutor, Delfin Agbu) handled the case. It bewailed the prosecution's
failure to present as witnesses Juanito de la Serna and Ernesto Ogoc, the detention prisoners who saw
the burning of Napola. They had executed a joint affidavit which was one of the bases of the information
for murder.1

It noted that Rufina Paler, the victim's widow, who was present in court, was a vital witness who should
have been presented as a witness to prove the victim's dying declaration or his statements which were
part of the res gestae.2

In this appeal appellant's three assignment of error may be condensed into the issue of credibility or the
sufficiency of the prosecution's evidence to prove his guilt beyond reasonable doubt.

His story is that at around nine o'clock in the evening of July 31, 1966 he was in the municipal jail on
guard duty. He heard a scream for help from Napola. He entered the cell and found Napola's shirt in
flames. With the assistance of Ernesto Ogoc and Anecio Siton, Ural removed Napola's shirt. Ural did not
summon a doctor because, according to Napola, the burns were not serious. Besides, he (Ural) was
alone in the municipal building.

Felicisima Escareal, Ogoc's common-law wife, whom the trial court branded "as a complete liar",
testified that she heard Napola's scream for help. She saw that Napola's shirt was burning but she did
not know how it happened to be burned. She said that Ural and Siton removed the shirt of Napola and
put out the fire.
Teofilo Matugas, a policeman, declared that he was relieved as guard by Ural at eight-thirty in the
evening of July 31st. Matugas denied that Alberio was in the municipal building at eight o'clock.

The trial court held that Ural's denials cannot prevail over the positive testimony of Alberio. It observed
that Ural's alleged act of removing Napola's burning shirt was at most an indication that he was
"belatedly alarmed by the consequence of his evil act" but would not mean that he was not the
incendiary.

Appellant Ural (he was thirty-four years old in March, 1969), in assailing the credibility of Alberio,
pointed out that he was not listed as a prosecution witness and that he was convicted of murder.

Those circumstances would not preclude Alberio from being a credible witness. It should be noted that
the accused was a policeman. Ordinarily, a crime should be investigated by the police. In this case, there
was no police investigation. The crime was investigated by a special counsel of the fiscal's office. That
might explain why it was not immediately discovered that Alberio was an eyewitness of the atrocity
perpetrated by Ural.

The testimonies of Felicisima Escareal, Ogoc's common-law wife, and Policeman Matugas are
compatible with the prosecution's theory that Ural burned Napola's shirt. Ultimately, the factual issue is:
who should be given credence, Alberio or Ural? As already stated, the trial court which had the
advantage of seeing their demeanor and behavior on the witness stand, chose to believe Alberio. This
Court, after a searching scrutiny of the whole record, does not find any justification for disbelieving
Alberio.

This case is covered by article 4 of the Revised Penal code which provides that "criminal liability shall be
incurred by any person committing a felony (delito) although the wrongful act done be different from
that which he intended". The presumption is "that a person intends the ordinary consequences of his
voluntary act" (Sec. 5[c], Rule 131, Rules of Court).

The rationale of the rule in article 4 is found in the doctrine that "el que es causa de la causa es causa del
mal causado" (he who is the cause of the cause is the cause of the evil caused)."Conforme a dicha
doctrina no alteran la relacion de causalidad las condiciones preexistentes (como las condiciones
patologicasdel lesionado, la predisposicion del ofendido, la constitucion fisica del herido, etc.); ni las
condiciones sobrevenidas (como el tetanos, la pulmonia, o la gangrena sobrevenidos a consequencia de
la herida)" (1 Cuello Calon, Codigo Penal, 12th Ed., 1968, p. 335-336).

The similar rule in American jurisprudence is that "if the act of the accused was the cause of the cause of
death, no more is required" (40 C.J.S. 854). So, where during a quarrel, the accused struck the victim
with a lighted lamp, which broke and fell to the floor, causing the oil to ignite and set fire to the rug,
and, in the course of the scuffle, which ensued on the floor, the victim's clothes caught fire, resulting in
burns from which he died, there was a sufficient causal relation between the death and the acts of the
accused to warrant a conviction of homicide (Williams vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).

There is a rule that "an individual who unlawfully inflicts wounds upon another person, which result in
the death of the latter, is guilty of the crime of homicide, and the fact that the injured person did not
receive proper medical attendance does not affect the criminal responsibility" (U.S. vs. Escalona, 12 Phil.
54). In the Escalona case, the victim was wounded on the wrist. It would not have caused death had it
been properly treated. The victim died sixty days after the infliction of the wound. It was held that lack
of medical care could not be attributed to the wounded man. The person who inflicted the wound was
responsible for the result thereof.

The crime committed by appellant Ural was murder by means of fire (incendio) (Par. 3, Art. 248, Revised
Penal Code; People vs. Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432, 440).3

The trial court correctly held that the accused took advantage of his public position (Par. 1, Art. 14,
Revised Penal Code). He could not have maltreated Napola if he was not a policeman on guard duty.
Because of his position, he had access to the cell where Napola was confined. The prisoner was under
his custody. "The policeman, who taking advantage of his public position maltreats a private citizen,
merits no judicial leniency. The methods sanctioned by medieval practice are surely not appropriate for
an enlightened democratic civilization. While the law protects the police officer in the proper discharge
of his duties, it must at the same time just as effectively protect the individual from the abuse of the
police." U.S. vs. Pabalan, 37 Phil. 352).

But the trial court failed to appreciate the mitigating circumstance "that the offender had no intention
to commit so grave a wrong as that committed" (Par. 3, Art. 13, Revised Penal Code). It is manifest from
the proven facts that appellant Ural had no intent to kill Napola. His design was only to maltreat him
may be because in his drunken condition he was making a nuisance of himself inside the detention cell.
When Ural realized the fearful consequences of his felonious act, he allowed Napola to secure medical
treatment at the municipal dispensary.

Lack of intent to commit so grave a wrong offsets the generic aggravating, circumstance of abuse of his
official position. The trial court properly imposed the penalty of reclusion perpetua which is the medium
period of the penalty for murder (Arts. 64[4] and 248, Revised Penal Code).

Finding no error in the trial court's judgment, the same is affirmed with costs against the appellant.

So ordered.

[G.R. No. 135701 : May 9, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELBERT CALLET y SABANAL, accused-appellant.

DECISION

PUNO, J.:

The accused, ELBERT CALLET y SABANAL was charged with Murder before the Regional Trial Court of
Negros Oriental, Dumaguete City, Branch 30. The crime was allegedly committed as follows:1

That on or about 5:00 oclock in the afternoon of September 15, 1996, at Barangay Tambulan, Tayasan,
Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully
and feloniously attack, assault and stab one ALFREDO SENADOR with the use of a knife with which the
said accused was then armed and provided, thereby inflicting upon said victim the following injury, to
wit:

A stab wound measuring two (2) cm. in length, 0.3 cm. in width and eleven (11) cm. in deepness located
at the left side of the trunk, about two (2) cm. above the left clavicular bone. The wound was directed
downward and slightly to the right.

which injury or wound caused the death of said ALFREDO SENADOR shortly thereafter.

Contrary to Article 248 of the Revised Penal Code.

When arraigned on June 11, 1997, the accused pled not guilty. 2cräläwvirtualibräry

The prosecution presented the testimonies of Dr. Rogelio Kho, Lecpoy Senador, Eduardo Perater,
Manuel Gabonales and Francisca Senador. For the defense, the accused, Elbert Callet, PO3 Roy
Balasabas, Barangay Captain Dominador Calijan and Nilo Callet testified.

The evidence for the prosecution shows that on September 15, 1996, at 5:00 p.m., the victim, Alfredo
Senador, his 12-year old son, Lecpoy Senador, and Eduardo Perater were at the flea market
of barangay Tambulan, Tayasan, Negros Oriental. There were many people in the vicinity. Some were
playing cara y cruz while others were playing volleyball.

Alfredo, Lecpoy and Eduardo were beside each other as they watched a cara y cruz game. Alfredo sat
close to the ground, with his buttocks resting on his right foot. Lecpoy and Eduardo sat on a piece of
wood and on a stone, respectively.

Out of nowhere, the accused, Elbert Callet, appeared behind Alfredo and stabbed the latter on the left
shoulder near the base of the neck with a 9-inch hunting knife. Instinctively, Alfredo stood up and
managed to walk a few meters. When he fell on the ground, Lecpoy and Eduardo rushed to help him but
to no avail. Alfredo died shortly thereafter.

Manuel Gabonales was also at the flea market at that time. At 5:00 p.m., he saw people running away
from the place where there was a cara y cruz game. Next, he saw Alfredo and the accused. Alfredo was
soaked in blood while the accused was running towards the basketball court. He asked Alfredo what
happened to him. Alfredo replied that the accused stabbed him. The accused was then standing at the
basketball court. Manuel helped Lecpoy and Eduardo carry Alfredo under a mango tree. He thought of
bringing Alfredo to the hospital when he saw blood oozing from his mouth. After a moment, Alfredo
died.

Dr. Rogelio Kho, Municipal Health Officer at Tayasan, autopsied the body of Alfredo on September 16,
1996. The doctor found a stab wound on the left shoulder of Alfredo, near the base of the neck. He
opined that the victim died due to severe hemorrhage and irreversible shock due to stab
wound.3cräläwvirtualibräry

The defense gave a different account of the stabbing incident.

Allegedly, at 3:00 p.m., the accused, Elbert Callet, played volleyball near the flea market. After two (2)
games, he stopped playing. It was past 4:00 p.m. He stayed at the flea market and watched as others
played volleyball. While watching the game, he was hit on the left side of the body by Alfredos elbow.
He asked Alfredo why he hit him. Alfredo retorted, Are you angry? Next, Alfredo grabbed his left arm
and tried to twist it. He pleaded with Alfredo to let go of his arm, but Alfredo warned that he would be
his third victim if he would get angry with him. As Alfredo was pulling out a hunting knife from his waist,
he (the accused) managed to stab him first. Thereafter, he ran towards the municipal hall to surrender.

Dominador Calijan, the Barangay Captain of Tayasan, happened to be at the basketball court near the
scene of the crime. He encountered Alfredo along the road after the stabbing incident. Alfredo had a
stab wound on the lower nape. Calijan asked Alfredo who stabbed him and the latter gave the name of
the accused. He directed his barangay tanods to arrest the accused.

Barangay tanods Nilo Callet and Jesus Dagodog were able to catch up with the accused three (3)
kilometers away from the scene of the crime. He was still holding the hunting knife and refused to
surrender it for fear that the relatives of Alfredo would retaliate. The barangay tanods escorted him to
the municipal hall. Along the way, they asked him why he stabbed Alfredo. The accused replied that he
could not help it and that everything happened too fast. Upon reaching the municipal hall, the accused
surrendered the hunting knife. He was turned over to PO3 Roy Balasbas for investigation.

After the trial, the accused was found guilty of murder. The falloof the trial courts decision4 states:

WHEREFORE, finding the accused ELBERT CALLET Y SABANAL guilty beyond a scintilla of doubt for the
crime of MURDER penalized under Article 248 of the Revised Penal Code, taking into account the
mitigating circumstance of voluntary surrender without any aggravating circumstance, the accused is
hereby sentenced to RECLUSION PERPETUA with all the accessory penalties provided under Article 41 of
the Revised Penal Code.

Accused is ordered to pay the legal heirs of Alfredo Senador the sum of Fifty Thousand Pesos
(P50,000.00) as indemnity for his death.

Costs against the accused.

Hence, the appeal. The accused contends that:5cräläwvirtualibräry

1. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE IN
FINDING THAT THE ACCUSED KILLED THE VICTIM WITH TREACHERY;

2. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE IN
FINDING THAT THE ACCUSED FAILED TO PROVE THE ELEMENTS OF SELF-DEFENSE;

3. THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED IN FAILING TO CONSIDER THE MITIGATING
CIRCUMSTANCE THAT THE ACCUSED DID NOT INTEND TO COMMIT SO GRAVE A WRONG.

We affirm. The conviction of the accused is clearly supported by the evidence.

Two (2) eyewitnesses positively identified the accused, Elbert Callet, as the one who fatally stabbed the
victim, Alfredo Senador. Eyewitness Lecpoy Senador testified as follows:6cräläwvirtualibräry

(PROS. HERMOSA):

Q: About that time 5:00 clock in the afternoon on September 15, 1996, where were you and your
companions situated or stationed since you said you were particularly at the flea market?

xxx
A: We were in Tambulan.

Q: In what particular place were you at the flea market?

A: In the place where there was a cara y cruz.

xxx

Q: What were you and your father as well as Eduardo Perater doing at that moment at 5:00 oclock on
September 15 at the place where there was a game of cara y cruz?

A: We were looking at the cara y cruz.

Q: While you were looking at the cara y cruz game, do you recall if there was an unusual incident that
happened?

A: Yes, there was.

Q: What was this unusual incident that happened?

A: My father was stabbed.

Q: Who stabbed your father?

A: Elbert Callet.

Q: Elbert Callet whom you just identified a while ago?

A: Yes.

xxx

Q: Where was Elbert Callet in relation to your father when he stabbed your father?

A: At the back of my father.

Q: What was the position of your father when he was stabbed by the accused?

A: He was sitting.

Q: Where was your father hit if you know?

A: Left shoulder.

Q: What happened after Elbert Callet stabbed your father?

A: My father walked.

Q: Towards what place?

A: Towards the area where there was a volleyball game.

Q: And what eventually happened to him?

A: He fell down.
Q: And then, what happened after he fell down?

A: We carried him to a place where there was a mango tree.

xxx

Q: What happened or what transpired after you brought your father towards the mango tree?

A: My father died.

Q: After stabbing your father, what did Elbert Callet do if he did anything?

A: He ran away.

Q: What did he use in stabbing your father?

A: Hunting knife.

(emphases ours)

Another eyewitness, Eduardo Perater, testified as follows:7cräläwvirtualibräry

(PROS. HERMOSA):

Q: All right, at about 5:00 oclock in the afternoon of that day, can you recall if there was an unusual
incident that happened?

A: Yes, there was.

Q: What was that unusual incident?

A: There was a stabbing incident.

Q: Who was stabbed?

A: Alfredo Senador.

Q: Who stabbed Alfredo Senador?

A: Elbert Callet.

Q: The same Elbert Callet whom you just identified a while ago in the courtroom?

A: Yes.

Q: What was the position of Alfredo Senador when he was stabbed by Elbert Callet?

A: He was sitting down.

Q: Will you please demonstrate to us the manner how Alfredo Senador was sitting down at the time
when he was stabbed by the accused in this case?

A: (Witness in squatting position, he was sitting with his buttock on his right foot).

xxx
Q: Where was Elbert Callet situated when he stabbed Alfredo Senador?

A: At the back of Alfredo Senador.

Q: Was there any argument between Alfredo Senador and Elbert Callet before Alfredo Senador was
stabbed?

A: There was none.

xxx

Q: How many times did Elbert Callet stab Alfredo Senador?

A: Only one (1).

Q: Was Alfredo hit when he was stabbed by Elbert Callet?

A: Yes.

Q: In what part of the body of Alfredo Senador was hit?

A: In the left shoulder.

xxx

Q: What happened after Alfredo Senador was hit by the stabbing of Elbert Callet?

A: He stood up.

Q: What did Elbert Callet use in stabbing Alfredo Senador?

A: A hunting knife.

xxx

Q: What about Elbert Callet, what did he do after stabbing Alfredo Senador?

A: He ran away.

Q: What did he do with his knife which he used in stabbing Alfredo senador?

A: He carried it with him.

(emphases ours)

We give full faith and credit to the testimonies of Lecpoy and Eduardo. Their testimonies were vivid with
details. They were clear and consistent with each other.

The accused laments that Lecpoy Senador is a biased witness, being a son of the victim. We are not
convinced.

The fact that Lecpoy is a son of the victim would not necessarily make him untrustworthy. This Court has
ruled that (b)lood relationship between a witness and the victim does not by itself impair the credibility
of witnesses. On the contrary, relationship may strengthen credibility, for it is unnatural for an aggrieved
relative to falsely accuse someone other than the real culprit. The earnest desire to seek justice for a
dead kin is not served should the witness abandon his conscience and prudence and blame one who is
innocent of the crime.8 Significantly, there is no showing that this young eyewitness has any ill motive to
testify falsely against the accused.

To be sure, even without the testimony of Lecpoy, the testimonies of Eduardo Perater and Manuel
Gabonales would suffice to convict the accused. They are disinterested witnesses.9 Their identification
of the accused as the assailant is beyond question.

Still assailing the credibility of the eyewitnesses, the accused points out that in the joint affidavit10 f
Lecpoy and Eduardo, it was stated that the victim was standing with his back facing Elbert Callet.
However, they contradicted their affidavit when they testified at the trial that the victim was sitting,
with his buttocks resting on his right foot.

The cited inconsistency will not exculpate the accused. We quote with approval the following
observations of the trial court:11

In the instant case, the direct and candid testimonies of eyewitnesses Lecpoy Senador and Eduardo
Perater clearly showed that the killing of Alfredo Senador was attended by treachery. Alfredo Senador
was sitting with his buttocks on his right foot watching the game of cara y cruz when Elbert Callet who
was at the back of the victim stabbed him using a nine (9) inch hunting knife hitting him near the base of
his neck. The victim was not in a position to defend himself from the accused who deliberately and
consciously positioned himself at the back of the unsuspecting victim to ensure the accomplishment of
his evil desire without risk to himself. The location of the stab wound at the left side of the trunk about
two (2) centimeters from the base of the neck and four (4) centimeters above the left clavicular bone
with a deepness of eleven (11) centimeters directed downward and slightly to the right also suggests
that the accused deliberately and consciously selected that part of the human body to ensure the
instantaneous death of the victim. Although the counsel of the accused tried to discredit the testimonies
of the prosecution witnesses by pointing that in their joint affidavit dated 20 September 1996 Lecpoy
Senador and Eduardo Perater stated that Alfredo Senador was standing when he was stabbed, the said
discrepancy could not in any way affect the categorical, candid, consistent and straightforward
declaration of the said eyewitnesses made in open court that Alfredo Senador was sitting when he was
stabbed by the accused. Discrepancies between sworn statements or affidavits and testimonies made at
the witness stand do no necessarily discredit the witnesses(People vs. Ferrer, 255 SCRA 19). This is
because it is a matter of judicial experience that an affidavit being taken ex parte is almost always
incomplete and often inaccurate (People vs. Castillo, 261 SCRA 493). Moreover, as noted by this
Court the word standing was superimposed after the original typewritten word was erased using a
snopic (sic) or white substance. (emphases ours)

In addition, we note that Lecpoy and Eduardo did not countersign the superimposition in the subject
affidavit. In the absence of clear proof that they confirmed the change, they should not be bound by it.

The accused invokes self-defense for his acquittal. In self-defense, the burden of proof rests upon the
accused. Thus, he must present clear and convincing evidence that the following elements are present,
to wit: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it;
and (3) lack of sufficient provocation on the part of the person defending himself.12 The accused failed
to discharge this task.
The accused alleged that he and the victim had hunting knives during their encounter. After the victims
elbow hit the left side of his body, the victim grabbed his left arm and tried to twist it with his right arm.
A verbal exchange ensued between them and then the victim, using the left arm tried to unsheathe the
knife that was tucked at his left side. However, the victim was not able to pull out the knife because it
got entangled with his shirt tucked in his pants. In defense, the accused allegedly pulled out his own
knife that was tucked in the right side of his waist using his left arm and stabbed the victim on the left
shoulder. He then retreated and left as the victim was still trying to approach him.13

The version of the accused does not inspire belief. The incident happened in plain view of many
witnesses at the flea market. He even claimed he was with a certain Guale and one Sonny Boy at that
time.14 Yet, nobody corroborated his story. Indeed, his narration on how the victim attacked him is
improbable. In the witness chair, he admitted that the victim was bigger than him and that his left hand
was restrained by the victim.15 It is thus incredible how he could pull out his knife from his right side,
with the use of his left hand,16 raise that knife high enough to hit the shoulder of the victim and inflict
an 11-cm. deep wound upon him. It is more probable that the victim was sitting down when the accused
attacked him from behind as the prosecution witnesses testified. Equally incredulous is the claim that
after being injured, the victim still tried to approach and attack him, hence, he had to retreat. The
accuseds uncorroborated plea of self-defense cannot be entertained, especially when it is, in itself,
extremely doubtful.17cräläwvirtualibräry

The Information charged that evident premeditation and treachery attended the commission of the
crime. The evidence failed to prove evident premeditation. Evident premeditation requires proof of: (1)
the time when the accused decided to commit the crime; (2) an overt act manifestly indicating that he
has clung to his determination; and (3) sufficient lapse of time between the decision and the execution
to allow the accused to reflect upon the consequences of his act.18 The records show that the
prosecution did not adduce any evidence to prove these elements.

Treachery or alevosia exists when the offender commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make.19

The trial court correctly held that treachery qualified the killing of the victim to murder. The stabbing
was from behind, done in a sudden and unexpected manner while the victim was sitting close to the
ground, with his buttocks resting on his right foot, and while his attention was focused on the on-
going cara y cruzgame.20 Clearly, the victim was not able to defend himself from the mode of attack.

The trial court also correctly credited the accused with voluntary surrender to mitigate his liability.
Voluntary surrender requires that the offender had not been actually arrested; that he surrendered
himself to a person in authority or to the latters agent; and that the surrender was voluntary.

The records reveal that the accused ran toward the municipal building after the stabbing incident. On his
way to the municipal building, he admitted to Barangay Tanods Nilo Callet and Jesus Dagodog that he
stabbed the victim. Although he did not immediately turn over his weapon to them for fear of retaliation
from the victims relatives, he did so as soon as they reached the municipal building. Undoubtedly, the
conduct he displayed was spontaneous as it shows his interest to give himself up unconditionally to the
authorities, thus saving the State the trouble and expenses necessarily incurred in his search and
capture.21cräläwvirtualibräry
The accused also claims that his liability should be mitigated by the fact that he had no intention to
commit so grave a wrong. We are not persuaded.

The lack of intent to commit a wrong so grave is an internal state. It is weighed based on the weapon
used, the part of the body injured, the injury inflicted and the manner it is inflicted. The fact that the
accused used a 9-inch hunting knife in attacking the victim from behind, without giving him an
opportunity to defend himself, clearly shows that he intended to do what he actually did, and he must
be held responsible therefor, without the benefit of this mitigating circumstance.22

As the killing was attended by treachery, the accused is liable for the crime of murder. The prescribed
penalty therefor is reclusion perpetua to death.23 In view of the presence of the mitigating
circumstance of voluntary surrender, the trial court correctly meted the penalty
of reclusion perpetua against the accused.

The civil indemnity awarded in favor of the legal heirs of the victim, Alfredo Senador, in the amount
of P50,000.00 is in accord with the Courts current policy.

IN VIEW WHEREOF, the decision appealed from, finding the accused, ELBERT CALLET, guilty beyond
reasonable doubt of Murder in Criminal Case No. 12995, and sentencing him to suffer reclusion
perpetua and to pay the legal heirs of the victim, ALFREDO SENADOR, the amount of P50,000.00 as civil
indemnity, and to pay the costs, is AFFIRMED.

Costs against accused-appellant.

SO ORDERED.

G.R. No. 120367 October 16, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO BARRETA, DANILO BARRETA, LITO BARRETA, DOMINGO BARRETA (At Large), EDGAR BARRETA,
and ROGELIO BARRETA, accused.
ANTONIO BARRETA, LITO BARRETA, EDGAR BARRETA, and ROGELIO BARRETA, accused-appellants

QUISUMBING, J.:

On appeal is the joint decision of the Regional Trial Court of Palo, Leyte, Branch 8, in Criminal Cases Nos.
8459-60, promulgated on June 2, 1993, finding accused-appellants Antonio, Edgar, Lito, and Rogelio, all
surnamed Barreta, guilty beyond reasonable doubt of robbery in band in Criminal Case No. 8459 and
murder in Criminal Case No. 8460, thus:

WHEREFORE, in view of the foregoing, this Court finds each of the four accused Lito Barreta, Antonio
Barreta, Edgar Barreta and Rogelio Barreta, guilty of the crime of Murder punishable by reclusion
perpetuawith accessory penalties provided by law and to indemnify jointly and severally the legal heirs
of the deceased Clemente Tesaluna, Sr.1 in the sum of P50,000.00, plus costs. The imposable penalty
being reclusion perpetua, the provisions of the Indeterminate Sentence Law do not apply.

The prosecution having proved beyond reasonable doubt, the crime of robbery in band in conspiracy,
each of the four accused is likewise guilty for the crime of robbery in band under Article 294 (5) which is
(sic) prision correccional maximum to prision mayor medium or four (4) years two (2) months and one
(1) day to ten (10) years should be imposed.

Applying the Indeterminate Sentence Law, each of the four accused is sentenced to an indeterminate
penalty ranging from four (4) years of prision correccional as minimum to eight (8) years and twenty one
(21) days of prision mayor as maximum. The sum of P700.00 and the properties taken such as hoe,
scythe and bolo should be returned to the private complainants.

Issue Warrants of Arrest to Antonio2 and Danilo3 both surnamed Barreta who are still at large.

SO ORDERED.4

The facts of this case, as gleaned from the records, are as follows:

On January 26, 1988, sometime between 5:00 to 6:00 o'clock in the afternoon, a much-frightened
Epifania Balboa arrived at the farmhouse of her son, Dominador Balboa, in Taguite, Babatngon, Leyte.
She informed him that there were suspicious-looking persons in the house of his half brother, Clemente
Tesaluna, Jr., some 200 meters away. Dominador and his hired hand, named Celso Salas, became
concerned. They farmed in a remote part of a mountainous area accessible only by walking. Strangers
were seldom seen there. Dominador dashed off to Clemente's house.

Near the house he stopped, for he could not get nearer than fifty (50) meters. There he easily
recognized the brothers Antonio, Danilo, Domingo, Edgar, Lito and Rogelio, all surnamed Barreta.
Dominador was familiar with the Barretas, since they resided in Bagong Silang, a neighboring barangay.
Three of them, namely Antonio, Lito and Danilo were holding an unarmed Clemente. They were holding
bolos, locally known as "pisao." He saw Antonio, Lito and Danilo stab Clemente with their bolos. Antonio
hit Clemente on the right side of his body. Danilo stabbed him on the left, followed by a thrust by Lito to
Clemente's right. Meanwhile Domingo, Edgar and Rogelio ransacked Clemente's house. Domingo then
took Clemente's hoe, scythe and bolo, then hurriedly left the place. They jumped out of the house and
escaped towards the mountains.5

Clemente died from the wounds inflicted on him by the Barreta brothers. Epifania informed the victim's
wife, Renila, of her husband's fate. Renila asked for help from the barangay chairman. Several barangay
officials and some relatives accompanied her home. They found Clemente dead with three clearly visible
wounds. The clothes and personal effects of the Tesaluna couple were scattered all over the floor. Some
P700.00 in cash and farm implements were missing. The bag where Clemente kept his money was
forced open with a bolo. The police investigated the incident. Dr. Victor Hilarion Cruz, of the Leyte
Provincial Hospital, performed an autopsy on Clemente. He reported on three stab wounds and a
hacking wound. He identified the cause of death as "cardiorespiratory arrest (due) to hacking wound."6

The Provincial Prosecutor's Officer filed the Information, docketed as Criminal Case No. 8460, with the
RTC of Palo, Leyte. He charged Antonio, Danilo, Domingo, Edgar, Lito, and Rogelio, thus:
That on or about the 26th day of January, 1988 in the municipality of Babatngon, Province of Leyte,
Philippines, within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, did, then and there with malice aforethought and with
deliberate intent to take the life of Clemente Tesaluna, Sr., willfully, unlawfully and feloniously suddenly,
unexpectedly and treacherously take advantage of superior strength and with the aid of armed men
attack and hack the latter with long bolos, producing fatal wounds on the body of the said Clemente
Tesaluna, Sr., thereby causing his direct and immediate death.

Contrary to law.7

A separate Information in Criminal Case No. 8459 also charged the six brothers for robbery in band,
allegedly committed as follows:

That on or about the 26th day of January, 1988, in the Municipality of Babatngon, Province of Leyte,
Philippines, within the jurisdiction of this Honorable Court, the above-named accused who were all
armed with long-bladed bolos conspiring, confederating and mutually helping one another did, then and
there, willfully, unlawfully, and feloniously with intent to gain and with the use of force upon things to
wit: by forcibly breaking open with a bolo the clothes bag belonging to Clemente Tesaluna, Sr., take and
carry away money in an undetermined amount, to the damage and prejudice of the said owner.

Contrary to law.8

Warrants for the arrest of the six Barreta brothers were issued, but only four, namely Antonio, Edgar,
Lito and Rogelio were apprehended. The remaining brothers went into hiding.

On arraignment Antonio, Edgar, Lito and Rogelio pleaded not guilty to the charges of murder and
robbery in band. Criminal Cases Nos. 8459 and 8460 were then jointly tried.

The prosecution's relied on the testimony of Dominador Balboa who positively identified the Barreta
brothers as the malefactors who killed Clemente Tesaluna, Jr., and robbed his house of money and
belongings.

The defense averred that it was Lito Barreta alone who killed Clemente. In the afternoon of January 26,
1988, according to the defense's version, Lito was on his way to buy cigarettes at Taguite. Clemente,
who suspected that Lito gathered tuba from his coconut tree, accosted him. Clemente challenged Lito to
a fight. Lito denied Clemente's accusation. The latter drew his bolo, but since Lito was quicker, he beat
Clemente to the draw. Lito stabbed Clemente twice with his bolo. He immediately went home. Lito
denied that his brothers were involved. He also denied that they robbed Clemente, whom he knew only
by name. He could not understand why his brothers were implicated in the stabbing. He also denied that
he knew Dominador Balboa, Celso Salas, and Epifania Balboa. He admitted he hit Clemente first below
his left armpit and then, while Clemente was down, on his face.9

Antonio, Edgar, and Rogelio denied any participation in the murder and robbery. All three testified that
at the time of incident, they were at Barangay Silang, Babatngon, Leyte, carousing and making merry
after a hard day's work. They presented Fausto Rosales, a farmer, who testified that from January 20,
1988 to January 28, 1988, he hired the three accused to work on his farm from January 20-28, 1988. At
the time of the incident, Antonio, Edgar and Rogelio were working on his farm as hired hands. On
January 28, 1988, they had a drinking spree in a residence of a certain Bunglas. That day, they cut the
tall grasses on Fausto's farm from 7:00 A.M. to 5:00 P.M., pausing only at 12:00 noon to eat lunch. They
went home after their work on January 28, 1988 at five o'clock in the afternoon. He was sure that they
were home on January 28, 1988, because when he brought the 1/2 gallon of tuba to Bunglas' house, the
three brothers were with their father, Celestino, in the drinking spree, which lasted until 7:00 P.M.
When he went home, he knew nothing of the incident at sitio Bosque, which is 9 to 10 kilometers
distant from Barangay Bagong Silang, and could only be negotiated by foot. He did not know the
deceased Clemente.10

The lower court gave full faith and credence to the prosecution's evidence and, as earlier noted,
convicted accused-appellants of the offenses charged.

Appellants moved for reconsideration of the lower court's judgment with respect to Criminal Case No.
8460, arguing that since the trial court found that they were all minors at the time of the incident, they
were entitled to the privileged mitigating circumstance of minority under Article 6811 of the Revised
Penal Code. They prayed that the penalty imposed upon them be reduced to four (4) years, two (2)
months, and one (1) day of prision correccional as minimum to twelve (12) years and one (1) day
of reclusion temporal as maximum. The prosecution opposed the motion, on the ground that only
Rogelio Barreta could be considered a minor, and doubtfully at that, there being no evidence to support
his claim that he was only seventeen years old at the time of the incident. On November 15, 1993, the
trial court denied the motion.

Hence, the instant case, with appellants assigning the following errors allegedly committed by the trial
court:

THE TRIAL COURT GRAVELY ERRED IN FINDING ALL THE ACCUSED GUILTY OF THE CRIMES OF ROBBERY
AND MURDER BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN NOT PRESCRIBING THE CORRECT PENALTY FOR THE PROPER
CRIME AND IN NOT APPRECIATING THE PRIVILEGE(D) MITIGATING CIRCUMSTANCE OF MINORITY IN
FAVOR OF ACCUSED-APPELLANTS.

We find pertinent the following issues: (1) Whether the guilt of appellants of the crimes of robbery in
band and murder were proven by the prosecution beyond reasonable doubt; and (2) Whether minority
should be considered as a privileged mitigating circumstance in favor of appellants.

Appellants assail the testimony of Dominador Balboa for being "incredible."12 They submit that
Dominador testified that it was both late in the afternoon and windy, and the scene "definitely dark and
turbulent."13 With poor vision and being fifty meters away, Dominador could not have positively
identified the accused who were inside the house. Appellants also argue that Epifania Balboa did not
know the "six persons" who came to the house of the victim; her identification of appellants as the
perpetrators of the crime is thus doubtful. Appellants suggest that the relatives of the victim would like
to see virtually all the members of the Barreta family suffer because Lito Barreta killed the latter in a
fight. Finally, appellants charge that the trial court erred in refusing to appreciate their alibi, which was
corroborated by Fausto Rosales.
We have carefully examined the records of this case and find nothing in them to support appellants'
claim that it was so dark and turbulent so as to make positive identification difficult. What Dominador
testified to was that he decided not to prepare smoke for copra because it was already late and it was
windy.14 Nothing would show that Dominador had poor vision. Dominador's positive identification was
unshaken under rigorous cross-examination. It was straightforward and candid. As a rule, appellate
courts will not interfere with the judgment of the trial court in passing upon the credibility of a witness,
unless there appears in the record some fact or circumstance of weight and influence which has been
overlooked or the significance of which has been misinterpreted or misapprehended.15That general
rule holds true in this case.

Nor do we doubt Epifania's identification because she did not know the "six persons." Even if she did not
know their names prior to the incident,16 she was able to identify them in open court. There is nothing
in law or jurisprudence which requires, as a condition sine qua non, that, for a positive identification of a
felon by a prosecution witness to be good, the witness must first know the former personally.17 The
witness need not have to know the names of the accused for so long as she recognizes their
faces.18 Besides, the defense did not contradict her identification of appellants whose presence so
frightened her that she ran off to call for help.

Neither are we convinced of any alleged malicious motive on the part of the witnesses who testified
against the appellants. The records are bare of any evidentiary support for such an allegation. The
presumption is that no such improper motive exists and their testimonies should thereby be accorded
full faith and credit.19

Appellants insinuate that since Dominador Balboa is a half-brother of the victim, he had motive enough
to testify against them, even falsely. But as often stated, we hold that relatives of a victim would not
avenge the death of their kin by blaming it on persons whom they know to be innocent.20 Family
members who have witnessed the killing of their loved one usually strive to remember the faces of the
assailants,21 so that justice would be served.

The alibi of Antonio, Edgar, and Rogelio likewise fails to persuade us against the positive identification
made by the eyewitness. For alibi to prosper, the accused should prove not only that he was at some
other place when the crime was committed but also that it was physically impossible for him to be at
the locus criminis at the time of the commission.22 The distance between Taguite and Bagong Silang,
Babatngon is a mere 3.5 kilometers which can be negotiated by walking in two hours.23 The distance of
3.5 kilometers to the crime scene cannot provide sufficient credence to appellants' alibi.

That Lito alone killed Clemente in self-defense is less than believable. He said he met the victim in a
chance encounter on the road to Taguite after the latter accused him of stealing tuba from his coconut
palm.24 He said he stabbed the victim twice in self-defense, after which he left the victim.25 Physical
evidence, however, does not support Lito's testimony. For he claimed that he inflicted two stab wounds
on the victim. The autopsy report26 clearly showed that the victim suffered three (3) stab wounds and
one (1) hacking wound.27 Further Lito's claim that he left the victim dead on the road is contradicted by
the Renila Tesaluna's testimony that she and barangay officials found her husband's corpse in their
kitchen.28 Thus, on the first issue, we must conclude that no errors were committed by the court a quo.

On the second issue, without admitting their guilt, appellants fault the trial court for convicting them of
the separate offenses of murder and robbery in band, instead of the special complex crime of robbery
with homicide. They also claim that said court erred in failing to consider the special privileged
mitigating circumstance of minority of appellants in imposing upon them the penalty of reclusion
perpetua for murder.

In robbery with homicide, the prosecution must prove the following elements: (1) the taking of personal
property with the use of violence or intimidation against a person; (2) the property thus taken belongs
to another; (3) the taking is characterized by animus lucrandi; and (4) on the occasion of the robbery or
by reason thereof, the crime of homicide, as used in its generic sense, was committed.29 In robbery
with homicide, the principal purpose of the accused must be shown to be to commit robbery, the
homicide being committed either by reason of, or on occasion of the robbery.30 The homicide may
precede or occur after the robbery. What is essential is that there is a nexus, an intimate connection
between robbery and the killing, whether the latter be prior or subsequent to the former, or whether
both crimes be committed at the same time.31

In the instant case, the testimony of prosecution eyewitness Dominador Balboa shows, that the killing of
the deceased took place simultaneously with the robbery.32 While Antonio, Lito, and Danilo attacked
the victim in his kitchen, Danilo, Domingo, and Rogelio were ransacking the house for valuables to steal.
These simultaneous events show applicants' intention to both rob and kill the victim. There is no
showing that the robbery was committed after the homicide as an afterthought or as a minor incident to
the homicide. The criminal acts of appellants cannot, thus, be viewed as two distinct offenses. Hence,
appellants should not have been convicted of the separate offenses of murder and robbery in band
under Articles 248 (1)33 and 29634 of the Revised Penal Code, respectively, but of robbery with
homicide under Article 294 (1)35 of the Revised Penal Code.

Finally, appellants, except for Rogelio, are not entitled to the privileged mitigating circumstance of
minority. When appellant Antonio Barreta testified in his defense on January 8, 1991, he admitted that
he was 24 years old.36Appellant Lito Barreta, in turn, declared that he was 22 years of age, when he
took the witness stand on September 17, 1990,37 while appellant Rogelio Barreta admitted to being 19
years of age when he testified on November 6, 1990.38 Since the incident in question took place on
January 26, 1988, appellant Antonio Barreta must have been 22 years old at that time, appellant Lito
Barreta, 20 years old, and appellant Rogelio Barreta 17 years old, if their claims and admissions are to be
taken at face value. Thus, only Rogelio can be deemed a minor at the time of the commission of the
offense. Mitigating circumstances are personal to an accused in whose favor they are determined to
exist and cannot be enjoyed by his co-accused.39 Rogelio, being below 18 years of age at the time the
crime was committed, is entitled to the privileged circumstance of minority pursuant to Article 68 (1) of
the Revised Penal Code. The penalty for robo con homicidio at the time of the commission of the
offense is reclusion perpetua to death. At that time, the imposition of the death penalty was suspended
by virtue of Article III, Section 19 (1) of the Constitution. Hence, the maximum allowable penalty
was reclusion perpetua, which the trial court imposed in Criminal Case No. 8460. Under Article 68 (2) of
the Revised Penal Code, where the offender is over 15 and under 18 years of age, "the penalty next
lower than that prescribed by law shall be imposed, but always in the proper period." The penalty next
lower is reclusion temporal. Applying the Indeterminate Sentence Law, the penalty imposable upon
Rogelio is prision mayor maximum to reclusion temporal medium, or from ten (10) years and one (1) day
to seventeen (17) years and four (4) months. The penalty imposed in Criminal Case No. 8459 (robbery in
band) should be deleted as this will favor all the accused, the proper charge being for a special complex
crime of robbery with homicide, instead of two separate offenses of murder and robbery in band.
WHEREFORE, the decision of the Regional Trial Court of Palo, Leyte, Branch 8, in Criminal Cases Nos.
8459-60, dated June 2, 1993, is MODIFIED. Appellants Antonio, Edgar, Lito and Rogelio, all surnamed
Barreta are found GUILTY beyond reasonable doubt of the special complex crime of ROBBERY WITH
HOMICIDE as defined and penalized under Article 294 (1) of the Revised Penal Code. Antonio, Edgar and
Lito, all surnamed Barreta, are hereby sentenced to suffer the penalty of reclusion perpetua with the
accessory penalties provided by law. The privileged mitigating circumstance of minority being in Rogelio
Barreta's favor, he is hereby sentenced to a prison term of ten (10) years and one (1) day of prision
mayor as minimum to twelve (12) years, five (5) months, and ten (10) days of reclusion temporal as
maximum. Appellants are also ordered to jointly and severally pay the heirs of Clemente Tesaluna, Jr.,
P50,000.00 as civil indemnity.

No pronouncement as to costs.

SO ORDERED.

G.R. Nos. 132325-26 July 26, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO ESPINA, accused-appellant.

YNARES-SANTIAGO, J.:

This is an appeal from the Decision1 of the Regional Trial Court of Tagbilaran, Branch 47, in Criminal
Case Nos. 8194 and 8155 convicting accused-appellant of the crime of Murder qualified by Illegal
Possession of Firearms under P.D. No. 1866, as amended by R.A. No. 8294; and sentencing him to suffer
the penalty of Reclusion Perpetuaand to pay the heirs of the deceased the sum of P50,000.00 and the
costs.

The information for the crime of murder alleged:

That on or about the 30th day of September, 1992, in the municipality of Tubigon, province of Bohol,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused without
justifiable motive, with treachery and abuse of superior strength, the accused being then armed with a
short firearm and without giving opportunity to the victim to defend himself, did then and there
willfully, unlawfully and feloniously attack, assault and shoot one Romeo Bulicatin, with the use of said
firearm, hitting the latter on the vital part of his body resulting to his death; to the damage and
prejudice of the heirs of the deceased.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code with the aggravating
circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate
the commission of the crime.2
For Illegal Possession of Firearms, the information stated:

That on or about the 30th day of September, 1992, in the municipality of Tubigon, province of Bohol,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to
possess firearm and ammunition did then and there willfully, unlawfully and criminally keep, carry and
have in his possession, custody and control a short firearm and ammunition without first obtaining the
necessary permit or license to possess the said firearm and ammunition from competent authority,
which firearm and ammunition were carried by the accused outside of his residence and used by him in
committing the crime of Murder of which one Romeo Bulicatin was the victim; to the damage and
prejudice of the Republic of the Philippines. Acts committed contrary to the provisions of Presidential
Decree No. 1866.3

Upon arraignment on June 27, 1994, accused-appellant pleaded not guilty to both charges;4 thereafter
trial followed.

The facts as adduced by the prosecution are synthesized in the People's Brief, thus -

In the afternoon of September 30, 1992, the members of an association locally known as the "ripa-ripa"
went to the house of Eufronia Pagas located at sitio Batic, Tan-awan, Tubigon, Bohol for their scheduled
contribution to a fund intended for a wedding celebration. (p. 3, August 23, 1996, TSN; p. 3, January 21,
1997, TSN) Among those present thereat were Romeo Bulicatin, Rogelio Espina, Samson Abuloc who
were having a drinking spree and playing "chikika", a card game. (p. 4, May 9, 1995, TSN).

When accused-appellant arrived, Romeo asked three (3) bottles of "kulafu" wine from him and he
acceded by buying three (3) bottles of "kulafu" wine from the store of Eufronia Pagas. Later on, at
around 4:00 of that afternoon, Romeo again demanded another bottle of "kulafu" wine from accused-
appellant but this time, the latter refused to give in to the demand. (p. 4, January 21, 1997, TSN) Romeo
then proceeded to where accused-appellant was playing cards and without any warning, urinated on the
latter and clipped him under his (Romeo) arms. (p. 4, August 23, 1996, TSN) Accused-appellant got
angry. He however did not engage Romeo in any altercation but instead turned away and went home.
(p. 5, May 9, 1995, TSN)

Later on in the evening, at about 9:00 p.m., while Romeo, Rogelio and Samson were still having a
drinking spree at the store of Eufronia Pagas, they heard accused-appellant calling Romeo from outside,
saying, "Borgs, get out because I have something to say." The trio came down from the house. Rogelio
went down first, followed by Samson and Romeo (pp. 5-6, ibid.) When Rogelio reached the ground,
accused-appellant told him to drop down while Samson also dropped himself to the ground when he
saw accused-appellant about to draw his firearm. At that juncture, Romeo was still at the stairway and
when he turned his back towards accused-appellant, the latter shot him, hitting him at the back. Romeo
ran away but he was chased by accused-appellant who fired two (2) more shots at him. (p. 5, March 19,
1996, TSN; p. 7, May 9, 1995)

Samson ran away from the scene of the incident and upon reaching the house of Poloy Concha, he saw
Romeo outside the house asking for help. Samson asked some of residents to help him bring Romeo to
barangay Cawayanan. (pp. 14-15, March 19, 1996, TSN) They loaded Romeo in a rattan cradle and upon
reaching the said barangay at about 3:00 o'clock of the following morning, they transferred him to the
vehicle owned by a certain Emiliano Fucanan. From the said barangay, Romeo was taken to the house of
Mayor Placing Mascarinas in Poblacion, Tubigon, Bohol where he was transferred to the ambulance
which took him to the Celestino Gallares Memorial Hospital in Tagbilaran City. On the way to the
hospital, Felix Celmar asked Romeo what happened to him and the latter answered that he was shot by
accused-appellant. (pp. 4-8, July 29, 1996, TSN) Romeo was brought to the emergency room and
underwent operation. He however died at about 5:00 p.m. of October 2, 1992, due to septic shock
irreversible, generalized peritonitis, gunshot wound, perforating ileum. (pp. 7 & 11, June 18, 1996, TSN)5

The defense presented four witnesses, namely: Rogelio Espina, Dr. Harold B. Gallego, Maximiano Dormal
and accused-appellant himself.

The testimonies of accused-appellant and Maximiano Dormal may be summarized as follows:

At around 1:00 o'clock in the afternoon of September 30, 1992, accused-appellant was in the house of
Eufronia Pagas to represent his father in a meeting to prepare for a wedding celebration. Among those
present in the said gathering were accused-appellant's brother, Rogelio Espina, and the deceased,
Romeo Bulicatin who were having a drinking spree. When accused-appellant arrived thereat, Bulicatin
asked him to buy 3 bottles of "kulafu" wine to which he acceded. At around 4:00 o'clock of the same
afternoon, Bulicatin again demanded another bottle of "kulafu" wine from accused-appellant. The latter,
however, refused to obey, prompting Bulicatin to urinate on accused-appellant. This infuriated accused-
appellant, but instead of assaulting Bulicatin, he turned his back and walked away because he knew that
Bulicatin always carried a knife. When accused-appellant was about 12 meters away from the house of
Eufronia Pagas, Bulicatin pursued him. Accused-appellant tried to evade Bulicatin but the latter caught
up with him and stabbed him on his side. Consequently, accused-appellant sustained a deep punctured
wound but was fortunately able to escape until he passed out.6

At around 6:00 o'clock p.m. of the same day, Maximiano Dormal who was then on his way home, saw
accused-appellant wounded and lying on the ground. Recognizing the latter, Dormal immediately
informed and accompanied accused-appellant's parents who lost no time in bringing him to the
hospital.7

On the other hand, defense witness Rogelio Espina (Rogelio), declared that in the afternoon of
September 30, 1992, he was in the house of Eufronia Pagas, having a drinking spree with Romeo
Bulicatin and Samson Abuloc, while his brother, herein accused-appellant, was playing cards. At around
3:00 o'clock p.m., he saw Bulicatin approach accused-appellant and forthwith urinated on him.
Thereafter, Bulicatin grabbed accused-appellant under his arms but the latter was able to extricate
himself from the hold of Bulicatin and ran away. Rogelio wanted to follow accused-appellant but was
prevailed upon by Bulicatin to stay. They then continued their drinking spree until 9:00 o'clock p.m.
When they were about to go home, Rogelio heard somebody calling Bulicatin, saying - "Get out, Borgs,
as I have something to tell you." According to Rogelio, he is certain that the voice was not that of
accused-appellant. When they decided to go home, he was the first one to go downstairs, followed by
Samson Abuloc, and then by Bulicatin. Upon reaching the ground, Rogelio heard a gunshot and
immediately scampered away without looking back to see who was shot. He claimed that it was only
two days after the incident that he came to know who the victim of the shooting incident was. He added
that from the house of Eufronia Pagas, he directly went home where he was told by his mother that
accused-appellant was stabbed and was brought to the hospital.

On August 25, 1997, the trial court rendered the assailed decision, holding as follows:
WHEREFORE, Premises Considered, the Court finds the accused, Romeo Espina, guilty beyond
reasonable doubt, for the crime of Murder defined and penalized by Article 248 of the Revised Penal
Code and Qualified Illegal Possession of Firearms under Presidential Decree No. 1866, as amended by
Republic Act No. 8294 and sentences him to suffer the straight penalty of imprisonment of RECLUSION
PERPETUA with the inherent accessory penalties provided by law, there being a mitigating circumstance
of vindication for a grave offense committed on the accused; to indemnify the heirs of the deceased,
Romeo Bulicatin, in the amount of Fifty Thousand (P50,000.00) Pesos; and to pay the costs.

SO ORDERED.8

Hence, this appeal on the following grounds:

THAT THE LOWER COURT HAS OVERLOOKED OR MISINTERPRETED THE SIGNIFICANCE OF SOME FACTS
OR CIRCUMSTANCES OF WEIGHT AND INFLUENCE APPEARING IN THE RECORD IN FINDING THE ACCUSED
GUILTY OF THE OFFENSES CHARGED.

II

THAT THE LOWER COURT HAS GRAVELY ABUSED ITS DISCRETION IN FINDING ACCUSED GUILTY BEYOND
REASONABLE DOUBT OF THE OFFENSES CHARGED.9

In particular, accused-appellant points to the following facts and circumstances that had been allegedly
overlooked by the trial court, to wit -

1) The resolutions of the 2nd Municipal Circuit Trial Court of Tubigon, Bohol in Criminal Case Nos. 1245
and 1246 to the effect that there was no sufficient evidence that accused-appellant had committed the
crimes charged;

2) The non-presentation of Eufronia Pagas (the owner of the house where the victim and his
companions had a drinking spree), despite being listed in the information as one of the witnesses for the
prosecution.

3) The testimony of prosecution eyewitness Samson Abuloc, that he does not know Felix Celmar who
claimed to be one of the persons asked by the former to help him bring the victim to the hospital.

4) The incredibility of the testimony of Samson Abuloc as regards his having identified accused-appellant
through his voice and the type of firearm used by the latter in shooting the victim as well as his having
seen the victim being hit at the back by the first gunshot fired at him by accused-appellant;

5) The fact that at about 6:00 o'clock in the evening of September 30, 1992, accused-appellant was
found by one Maximiano Dormal lying wounded and groaning near a pathway leading to the latter's
house; and

6) The length of time that elapsed before Felix Celmar revealed that the victim told him that accused-
appellant was the one who shot him.10

Accused-appellant makes capital of the November 23, 1992 Resolutions11 of the 2nd Municipal Circuit
Trial Court of Tagbuin-Clarin Bohol, which found the evidence against accused-appellant to be
insufficient after conducting the preliminary investigation. We note, however, that said resolutions were
reversed and superseded by the February 2, 1993 Omnibus Resolution12 of the Second Assistant
Provincial Prosecutor, who, after conducting a re-investigation of the instant case, found probable cause
to hold accused-appellant for trial and accordingly filed the corresponding informations against accused-
appellant.

Moreover, the basis of the investigating judge in declaring insufficiency of evidence does not appear to
be substantial. Pertinent portion of said resolution reads:

Upon the foregoing facts, the court finds and is satisfied that the offense complained of has been
committed, but there is insufficiency of evidence that the herein accused Romeo Espina committed the
crime for the simple reason that according to the declaration of Eufronia Pagas who is an unbiased
witness as compared to the declaration of Samson Abuloc who was a close barcada of the victim, the
herein accused Romeo Espina was not in her house where the drinking spree was held from 6:00 to 9:00
o'clock in the evening of September 30, 1992.13

Clearly, the fact that Eufronia did not see accused-appellant in her house between 6:00 – 9:00 o'clock in
the evening of September 30, 1992, does not in any way contradict or refute the claim of the
prosecution that accused-appellant left the house of Eufronia at around 4:00 in the afternoon after
being urinated on by the victim and thereafter returned at about 9:00 p.m. and shot the victim outside
the house of Eufronia.

Then too, the non-presentation of Eufronia Pagas as a prosecution witness is not damaging to the case
of the prosecution. In Eufronia's affidavit, she declared that after Rogelio Espina, Samson Abuloc and the
deceased went out of her house, she heard three gunshots but bothered not to go outside because of
fear.14 Evidently, Eufronia Pagas is not an eyewitness and her testimony would not do much for the
prosecution. At any rate, it is the prosecution's prerogative to determine who should be presented as
witnesses on the basis of its own assessment of their necessity.15 Hence, its choice of witnesses can not
be successfully challenged by accused-appellant.

Whether or not prosecution witness Samson Abuloc knew Felix Celmar who claimed to be one of the
persons asked by the former to help him bring the victim to the hospital, is of no consequence. As
correctly pointed out by the Solicitor General, it is possible that Felix Celmar, a resident of another
barangay, is not known by name to Abuloc, especially so since their meeting on that fateful day was only
casual.

Neither do we find improbable the testimony of Samson Abuloc that he recognized the voice of accused-
appellant. Being a friend and a second cousin of accused-appellant, he is expected to be familiar with his
voice. So also, we find no reason to doubt the testimony of Abuloc that he was able to identify the pistol
used by accused-appellant as well as witnessed the stabbing of the victim at the back. Not only was
Abuloc only three to four meters away from accused-appellant,16 the prosecution was likewise able to
establish that the moonlight illuminating the locus criminisafforded the witness a clear view of the
shooting incident.17 The Court has previously held that the light from the stars or the moon, an oven, or
a wick lamp or gasera can give ample illumination to enable a person to identify or recognize
another.18 Under the circumstances, therefore, Abuloc could not have failed to recognize accused-
appellant who is not only his "barkada" but a second cousin as well.
Contrary to the claim of accused-appellant, the trial court did not overlook his contention that he could
not have committed the offenses charged because at around 4:00 o'clock p.m. of September 30, 1992,
he was unconscious due to a stab wound. In fact, the trial court treated the same as a defense of denial
and alibi. Indeed, these defenses cannot prevail over the categorical and positive identification of
accused-appellant by prosecution witness Abuloc who was not shown to have any ill motive to testify
falsely against him.19

Moreover, it is doctrinally settled that the assessment of the credibility of witnesses and their
testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe
the witnesses first hand and to note their demeanor, conduct and attitude under grilling
examination.20 In the case at bar, the trial court did not err in giving credence to the version of the
prosecution. The facts and circumstances alleged to have been overlooked by the trial court are not
material to the case and will not affect the disposition thereof.

The alleged dying declaration of the victim should not have been admitted as an ante
mortem statement, considering that the prosecution failed to show that the subject declaration was
made under the consciousness of an impending death. Prosecution witness Celmar testified that on the
way to the hospital, the victim told him that it was accused-appellant who shot him. Though the victim
eventually died two days after he was shot, there is nothing in the records that would show that the
victim was under the impression that he was going to die. However, the declaration of the deceased
pointing to accused-appellant as the culprit is admissible as part of res gestae. Having been made shortly
after a startling occurrence and under the influence thereof, the victim evidently had no opportunity to
contrive.21 Furthermore, the delay of Felix Celmar in revealing the declaration of accused-appellant
does not make Celmar's testimony unworthy of belief. Delay in revealing the identity of the perpetrator
of a crime does not necessarily impair the credibility of a witness, especially where such witness gives a
sufficient explanation. In the case at bar, such delay was amply explained by the witness. Celmar
testified that it took him four months to reveal what he knew because he thought he would not be
utilized as witness for the prosecution. Moreover, after the incident, he had to leave for his work in
Albay.

In convicting accused-appellant, the trial court appreciated the special aggravating circumstance of use
of unlicensed firearm, pursuant to P.D. No. 1866, as amended by R.A. No. 8294. Considering the penalty
provided for in Article 248 of the Revised Penal Code, as amended by R.A. No. 7659, the trial court
imposed the penalty of death on accused-appellant. However, in view of the suspension of the
imposition of the death penalty then, accused-appellant was sentenced to suffer the penalty
of reclusion perpetua.

The third paragraph, Section 1, of R.A. No. 8294 (which took effect on July 6, 1997), amending P.D. No.
1866, provides that "If homicide or murder is committed with the use of an unlicensed firearm, such use
of an unlicensed firearm shall be used as an aggravating circumstance." This amendment, however,
cannot be applied in the present case. It bears stressing that when the offenses at bar were perpetrated
on September 30, 1992, the unlicensed firearm used in taking the life of another was not yet a special
aggravating circumstance in murder or homicide. Not being favorable to the accused, the amendatory
provision cannot be applied to accused-appellant, lest it acquires the character of an ex
post facto law.22
Likewise, the trial court erred in treating alevosia merely as a generic aggravating circumstance, moreso
in offsetting the same by the generic mitigating circumstance of having committed the crime in
immediate vindication of a grave offense. The treachery employed by accused-appellant in shooting the
victim is actually a circumstance that qualified the killing to murder. Such being the case, treachery
cannot be offset by a mitigating circumstance.

The trial court correctly appreciated the mitigating circumstance of having acted in immediate
vindication of a grave offense. As the evidence on record show, accused-appellant was urinated on by
the victim in front of the guests. The act of the victim, which undoubtedly insulted and humiliated
accused-appellant, came within the purview of a "grave offense" under Article 13, paragraph 5, of the
Revised Penal Code. Thus, this mitigating circumstance should be appreciated in favor of accused-
appellant.

As to the imposable penalty, the applicable provision is Article 248 of the Revised Penal Code before its
amendment by R.A. No. 7659 on December 31, 1993, the crime having been committed on September
30, 1992. Thereunder, the penalty for murder was reclusion temporal in its maximum period to death.
With one generic mitigating circumstance and no aggravating circumstance to offset it, the penalty
should be imposed in its minimum period, i.e., reclusion temporal maximum. Applying the
Indeterminate Sentence Law, accused-appellant should be sentenced to an indeterminate penalty of
eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months,
and one (1) day of reclusion temporal, as maximum.

WHEREFORE, the Decision of the Regional Trial Court of Tagbilaran, Branch 47, in Criminal Case Nos.
8194 and 8195 finding the accused-appellant Romeo Espina guilty beyond reasonable doubt of the
crime of murder, is AFFIRMED with MODIFICATION that the accused-appellant is hereby sentenced to
suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum; and to pay
the heirs of Romeo Bulicatin the sum of P50,000.00 as death indemnity and to pay the
costs.1âwphi1.nêt

SO ORDERED.

G.R. No. L-12883 November 26, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
CLEMENTE AMPAR, defendant-appellant.

Filemon A. Cosio for appellant.

Acting Attorney-General Paredes for appellee.

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

G.R. No. 96444 June 23, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEANDRO PAJARES y FLORENTINO, accused-appellant.
PARAS, J.:

This is an appeal from the decision * of the Regional Trial Court, NCJR, Branch VIII, Manila dated October
25, 1990 in Criminal Case No. 85-40579 entitled "People of the Philippines v. Leandro Pajares y
Florentino" convicting herein appellant Pajares of the crime of Murder.

Herein appellant was charged with the aforementioned crime in an Information which reads as follows:

That on or about the 11th day of October, 1985, at night time, purposely sought to insure and better
accomplish his criminal design, in the City of Manila. Philippines, the said accused, conspiring and
confederating together with five (5) others whose true names, real Identities, and present whereabouts
are still unknown and helping one another, did then and there willfully, unlawfully and feloniously, with
intent to kill, evident premeditation, and treachery, attack, assault. and use personal violence upon one
DIOSDADO VIOJAN Y SABAYAN, by then and there mauling him and hitting him with a baseball bat at the
back of the head, a vital part of the body, thereby inflicting upon the said DIOSDADO VIOJAN Y SABAYAN
a club wound on the head which was the direct and immediate cause of his death.

Contrary to law. (Original Records of Criminal Case No, 85-40579, p. 1)

He was likewise charged with the crime of Frustrated Homicide in an Information which reads as
follows:

That on or about the 11th day of October, 1985, at night time, purposely sought to insure and better
accomplish his criminal design, in the City of Manila, Philippines, the said accused, conspiring and
confederating together with five (5) others whose true names, real identities, and present whereabouts
are still unknown, and helping one another, with intent to kill, did then and there willfully, unlawfully
and feloniously attack, assault and use personal violence upon one RENATO PEREZ Y RUIDERA, by
mauling and hitting him with a baseball bat at the back, a vital part of the body, thereby inflicting upon
him a club wound at the back which is necessarily mortal and fatal, thus performing all the acts of
execution which would have produced the crime of homicide, as a consequence, but nevertheless did
not produce it by reason of causes independent of the will of the accused, that is, because of the timely
and able medical attendance rendered upon the said RENATO PEREZ RUIDERA which prevented his
death.

Contrary to law (Original Records of Criminal Case No. 85-40580, p. 1)

Appellant Pajares pleaded not guilty to both charges (Original Records of Criminal Case No. 85-40579, p.
5; Original Records of Criminal Case No. 85-40580, p. 8). Upon the petition of herein appellant that the
two (2) cases be consolidated, a joint trial ensued.

The prosecution presented Renato R. Perez, Cpl. Benigno Dong, Salud Manguba, Pat. Conrado Bustillos,
Dr. Norman Torres, Dr. Prospero Cabanayan, Rosita Viojan and Arlene Viojan as witnesses while only
appellant Leandro Pajares took the witness stand for the defense.

Renato R. Perez, a resident of 1386-K Burgos St., Paco, Manila, is the same Renato Perez who is the
victim in Criminal Case No. 85-40580 for Frustrated Homicide. He testified that at about 11:30 p.m. on
October 11, 1985, he and the deceased Diosdado Viojan were on their way to a store located at Gomez
St., Paco, Manila to buy something. They were walking abreast with each other, the deceased was at his
right side and was a bit ahead of him, when appellant Pajares suddenly appeared from behind and hit
Viojan with a baseball bat at the back of his head. The latter ran a short distance and fell down near the
store of one Alex Blas. When Perez tried to help Viojan. he, too, was attacked by Pajares with the
baseball bat hitting him at the back below the left shoulder. He then grappled with the appellant for the
possession of the baseball bat but the latter's companions, namely: Rudy Dokling, Popoy, Inggo and
Lauro Duado mauled him until he lost consciousness. He was brought to the Philippine General Hospital
by Eugene Panibit and Joselito Perez where he was treated for the injuries he sustained (TSN, Hearing of
January 7, 1986, pp. 4-23). He identified in court the baseball bat used by Pajares (TSN, Hearing of
September 16, 1986, p. 36).

On cross examination, he averred that he has known appellant Pajares for less than a year and that
although they both live in Zone 89, he and the deceased belonged to a group which is an adversary of
the group of the accused (Ibid., pp. 39-41).

Cpl. Benigno Dong, of the Zamora Police Department Station No. 6, WPD, testified that he was on duty
on October 12, 1985 when one Napoleon Gabawa sought their assistance regarding a killing incident
that happened in Gomez Street, Paco, Manila. They went to the house of appellant Leandro Pajares at
1453 Gomez St., Paco, Manila and invited the latter and his brother to the station for questioning
regarding the aforementioned incident. Pajares verbally admitted his participation in the incident (TSN,
Hearing of March 11, 1986, p. 26). The incident was registered in the Police Blotter Entry (Exhibits "A" to
"A-3", Original Records of Criminal Case No. 85-40579. pp. 30-33)

On cross examination, he admitted that he placed appellant Pajares under arrest after he verbally
admitted that he was responsible for the death of Diosdado Viojan, but the booking sheet and arrest
report has not been accomplished yet (TSN, Hearing of March 11, 1986, p 27).

Salud Manguba, Forensic Chemist of the National, Bureau of Investigation, testified that she examined a
baseball bat for the presence of blood upon the written request of Pat. Conrado Bustillos (Exhibit "C-1",
Original Records of Criminal Case No. 85-40579, p. 69). In connection with the study she made, she
submitted Biology Report No. B-85-1342 (Exhibit "C". Original Records of Criminal Case No. 85-40579, p.
68) that shows the absence of blood on the baseball bat (TSN, Hearing of June 23, 1986, pp. 30-32).

Pat. Conrado G. Bustillos, testified that relative to a telephone call he received from the Philippine
General Hospital on October 12 1985 he went to the morgue of the said hospital to investigate a dead
on arrival case of one Diosdado Viojan. A close examination of the body of the latter showed that he
suffered a fracture at the back of the skull. Thereafter, he proceeded to the scene of the crime to make
an ocular inspection where he was informed that there was another victim by the name Renato Perez.
Pat. Bustillos further testified that Renato Perez was investigated at the Homicide Section and that the
latter executed a sworn statement (Exhibit "F" Original Records of Criminal Case No, 85-40579, p 208) in
relation to the incident. In the same manner, Roberto Pajares. brother of herein appellant was also
investigated and who also executed a sworn statement (Exhibit "G", Ibid., p. 219) The alleged murder
weapon, a baseball bat, was turned over to him by Cpl. Ben Macalindog (TSN, November 18, 1986, p.
46).

Dr. Norman Torres, a resident physician at the Philippine General Hospital, testified that on October 12,
1985, a certain Diosdado Viojan was brought to the emergency room of the Philippine General Hospital
for head injury, left occipital region. The victim was in critical condition necessitating immediate surgery.
He did not personally attend the operation but learned that the victim died while undergoing the
surgery. Witness further averred that the injury could have been caused by a blunt instrument like a
baseball bat (TSN, Hearing of December 2, 1986, p. 46).

Dr. Prospero Cabanayan, Legal Officer of the National Bureau of Investigation, testified that he
conducted an autopsy on the body of Diosdado Viojan and in connection therewith submitted Autopsy
Report No. N-85-2161 (Exhibit "L", Original Records on Criminal Case No. 85-40579, p. 224) indicating
that the cause of death was "Hemorrhage, meningeal, severe, traumatic". He further testified that a
single forceful blow against the head using a blunt instrument like a baseball bat could have caused the
injury (TSN, Hearing of June 15, 1987, pp. 58-60).

Rosita S. Viojan, mother of the deceased Diosdado Viojan, testified that when her son died, she hired
the services of Tree Amigos Funeral Parlor for P12,000.00 as evidenced by Official Receipt No. 10511
(Exhibits "P" and "Q", Original Records of Criminal Case No. 85-40579, pp. 228-229) (TSN, Hearing of
February 23. 1988, p. 66).

Arlene Viojan, widow of Diosdado Viojan. testified that prior to the incident her husband was working
with PEMCO earning about P500.00 a week. At the time of the incident, she was three (3) months on the
family way. She gave birth to a baby girl and it was her parents-in-law who paid for the expenses during
her delivery. At the moment, she is living with her parents (TSN, Hearing of April 4, 1988, p. 67).

Appellant Leandro Pajares y Florentino denied the allegations of the prosecution. He asserts that he
knew the deceased Diosdado Viojan by the name Dado, having met him once at the store, and Renato
Perez by the name Balat. At the time of the incident, he was inside the store of Alex Blas with about
eight (8) other People watching television. Hence, he did not see who hit Diosdado Viojan and Renato
Perez. After the commotion, upon the advise of Alex Blas, he went home and slept. At about 3:30 in the
morning of October 12, 1985, he was arrested inside their house. Without asking any question, he went
with the arresting officers to the police station (TSN, Hearing of August 1, 1988, pp. 72-76).

At the police detachment, he was coerced to admit his participation in the crime since a gun was poked
at him. He identified his signature at the Booking Sheet and Arrest Report (Exhibit "J", Original Records
of Criminal Case No 85-40579, p. 222) but alleged that he signed the same without being allowed to
read the contents thereof without the assistance of counsel and while being held at the collar at the
back of his shirt. He likewise averred that during investigation the investigating policemen molested him
like "pinipitik-pitik" his ears with rubber band or chopping his neck with karate chops (Ibid., pp. .77-78).
He, however, admitted that even after several days he did not complain about what were done to him
(Ibid., p. 128).

On cross examination, he testified that his house is about five (5) houses away from the store of Alex
Blas, the scene of the crime (TSN, Hearing of August 22, 1983, pp. 90-91). He likewise denied any
knowledge about any quarrel between his brother, Roberto Pajares and the deceased Diosdado Viojan
(TSN, Hearing of September 19, 1988, p. 108).

As aforementioned, the trial court rendered a decision on October 25, 1990, the dispositive portion of
which reads:

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered finding herein
accused LEANDRO PAJARES y FLORENTINO of 1433-B, Gomez St., Paco, Manila, GUILTY beyond
reasonable doubt of the charges against him, as follows:
CRIM. CASE NO. 85-40579:

The Court finds accused GUILTY beyond reasonable doubt of the crime of Murder as defined and
penalized by Art. 248, par, 1, Rev. Penal Code, and there being no modifying circumstance to consider,
hereby sentences him to suffer imprisonment of RECLUSION PERPETUA with the accessory penalties of
the law; to pay Arlene Viojan and her child the sum of: P30,000,00; P12,000.00 as funeral expenses;
P15,000.00 as moral damages; and P10,000.00 as litigation expenses and attorney's fees; and finally the
costs of the suit.

CRIM. CASE NO. 85-40580:

The Court finds accused GUILTY beyond reasonable doubt of the crime of Slight Physical Injuries as
defined in par. 1, Art. 266 and penalized by Art. 27, both of the Rev. Penal Code, hereby sentencing him
to an imprisonment of ONE (1) MONTH; and to pay the cost of suit.

Done in Manila, this 25th day of October, 1990.

SO ORDERED. (RTC Decision, Rollo, p. 38)

Hence this appeal.

Appellant Pajares asserts that the trial court gravely erred in imposing the penalty of reclusion
perpetua upon him. He avers that such a penalty is tantamount to a cruel, degrading or inhuman
punishment which is prohibited by the Constitution. Appellant points out that hours before the clubbing
incident, Roberto Pajares, appellant's younger brother, was mauled by the group of Diosdado Viojan as
cited by the lower court referring to the entry in the Police Blotter and the sworn statement of Roberto
Pajares. The mauling of the latter is a big insult and truly offending to the appellant and his family.
Hence, the clubbing of Diosdado Viojan by herein appellant was a vindication of the grave offense
committed against his family. a mitigating circumstance under paragraph 5 of Article 13 of the Revised
Penal Code. Considering further that the appellant was just nineteen (19) years old at the time he
committed the offense the penalty imposed by the court a quo should have been seventeen (17) years,
four (4) months and one (1) day (Brief for the Appellant, Rollo, pp. 52-58).

The appeal is devoid of merit.

In convicting herein appellant of the crime of murder, qualified by treachery, the trial court relied
heavily on the testimony of prosecution witness Renato Perez which it found to be credible. According
to the lower court, the latter "gave his account on what was done to them by the accused and his
companions in a simple, candid, straightforward manner" (RTC Decision. Rollo, p. 36).

It is doctrinally entrenched that the evaluation of the testimony of witnesses by the trial court is
received on appeal with the highest respect because it is the trial court that has the opportunity to
observe them on the stand and detect if they are telling the truth or lying in their teeth (People v.
Santito, Jr., G.R. No. 91628, August 22, 1991 [201 SCRA 87]). The appellate court can only read in cold
print the testimony of the witnesses which commonly is translated from the local dialect into English. In
the process of converting into written form the statement of living human beings, not only fine nuances
but a world of meaning apparent to the judge present, watching and listening, may escape the reader of
the written translated words (People v. Arroyo, G.R. No. 99258, September 13, 1991 [201 SCRA 616]).
Appellant's sole defense is alibi. According to him, he was inside the store of Alex Blas, watching
television, when the incident occurred, Alex Blas even advised him to go home so as not to be involved
in the incident. However, the latter was not presented to corroborate appellant's testimony. Alibi is the
weakest defense an accused can concoct. In order to prosper, it must be so convincing as to preclude
any doubt that the accused could have been physically present at the place of the crime or its vicinity at
the time of the commission (People v. Lacao, Sr., G.R. No. 94320, September 4. 1991 (201 SCRA 317]). In
the case at bar, appellant was within the vicinity of the scene of the crime at the time of its commission.

Furthermore, appellant was Positively identified by Renato Perez as the perpetrator of the crime. In the
face of the clear and positive testimony of the prosecution witness regarding the participation of the
accused in the crime, the accused's alibi dwindles into nothingness. The Positive identification of the
accused by the witness as the perpetrator of the crime cannot be overcome by the mere denial of the
accused. Such positive identification of the accused that he killed the victim establishes the guilt of the
accused beyond moral certainty (People v Arroyo, supra).

The trial court correctly ruled that the crime was attended by treachery. There is treachery, the law says,
when the offender adopts means, methods or forms in the execution of the felony which ensure its
commission without risk to himself arising from the defense which the offended party might make
(People v. Cuyo, G.R. No. 76211, April 30, 1991 [196 SCRA 447]). As found by the trial court, appellant
Pajares hit Diosdado Viojan with a baseball bat from behind without any warning thereby precluding any
possible retaliation from the victim.

Having established the guilt of herein appellant. the next question is whether or not the mitigating
circumstance of immediate vindication of a grave offense can be appreciated in his favor. While it may
be true that appellant's brother Roberto Pajares was mauled by the companions of the deceased at
about 11:30 a.m. of October 11, 1985 as show in the entry in the Police Blotter (Exhibits "A" to "A-3",
Original Records of Criminal Case No. 85-40579. pp. 30-33) and by appellant's brother himself (Exhibits
"G", "Q" and "A" Nos. 7-9, Ibid., p. 219), it must be emphasized that there is a lapse of about ten (10)
hours between said incident and the killing of Diosdado Viojan. Such interval of time was more than
sufficient to enable appellant to recover his serenity (People v. Benito, G.R. No. L-32042, December 17,
1976 [74 SCRA 271]). Hence, the mitigating circumstance of immediate vindication of a grave offense
cannot be appreciated in his favor.

IN VIEW OF THE FOREGOING, the decision appealed from is AFFIRMED with modification that the
indemnity is increased to P50,000.00 in accordance with the policy of this Court on the matter.

SO ORDERED.

G.R. No. L-456 March 29, 1949

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CUCUFATE ADLAWAN, defendant-appellant.
C. de la Victoria & Ramon Duterte and Sotto & Sotto for appellant.
First Assistance Solicitor General Jose B.L. Reyes and Solicitor Jose B. Jimenez for appellee.

REYES, J.:

We are called upon in this case to review the sentence of death and a fine of P20,000 imposed by the
People's Court upon the appellants who was charged with treason but convicted of what the said court
terms "complex crime of crime of treason with murder robbery and rape."

The convicted is based on defendants plea of guilty to a complaint which as amended contains the
following counts:

1. That on or about and during the period comprised between March 1943 and May 3, 1945 in the city
of Cebu. Philippines and within the Jurisdiction of this court the accused Cucufate Adlawan adhering to
the enemy the Empire of Japan and its Imperial Japanese forces with treasonable intent to give as he did
give aid and comfort to said enemy did then and there wilfully unlawfully feloniously and treasonably
join and become a member of the so-called Philippines Constabulary, an enemy-sponsored military
organization knowing fully well that the aims and purposes of said organization are among other to
extend every aid and cooperation with said enemy in the prosecution of her war efforts against the
United States of America and the Commonwealth of the Philippines and during the period aforesaid as a
member of said enemy-sponsored Philippines Constabulary the said accused further adhering to the
enemy with treasonable intent to give as he did give aid and comfort to them did go out on numerous
patrol in company with Japanese soldier in search of guerrilla and other elements and other elements
resisting said enemy in the Philippines.

2. That on our about and during the period comprised between December 1, 1943 and May 3, 1945, and
the City of Cebu Philippines and within the Jurisdiction of this court the accused Cucufate Adlawan
adhering to the enemy the Empire of Japan and the Imperial Forces with treasonable to give as he did
give aid and comfort to said enemy in violation of his allegiance and fidelity to the United States of
America and the Commonwealth of the Philippines did then and there willfully unlawfully feloniously
and treasonably join the Japanese Military Police otherwise known as the Kempei-tai under the
command of a T. Yushida, performing the function and duties of an informer spy and chief undercover
man of the Cebu district of said military police and did during the period aforesaid in various places in
the Province of Cebu Philippines and within the jurisdiction of this Court in furtherance of his adherence
to said enemy with treasonable intent to give as he did give and comfort aid and comfort to them did in
company with other member of the Japanese Military Police go out on patrols to apprehend guerrilla as
they did apprehend capture and torture guerrillas loot civilians and otherwise commit acts of atrocities
in furtherance of the hostile design of the enemy and to weaken the cause of the United States of
America in the Philippines.

3. That sometime in June 1944 in various places in the Province of Bohol Philippines and within the
jurisdiction of this Court the accused Cucufate Adlawan adhering to the enemy the Empire of Japan and
the Imperial Japanese Forces with treasonable intent to give as he did give aid and comfort to said
enemy in his capacity as a member of the enemy-sponsored constabulary attached to the Japanese
Military Police and a guide of the Japanese Army Jointly and in cooperation with soldier of the Japanese
Imperial Army did then and there wilfully unlawfully feloniously and treasonably conduct and carry out a
so-called mopping up operation for the purpose of suppressing guerrillas and other element engaged in
resistance against said enemy and as a result thereof ten guerrillas were killed.

4. That on or about during the period comprised between September 1944 and November 1944 in the
City of Cebu Philippines and within the Jurisdiction of this Court the accused Cucufate Adlawan adhering
to the enemy the Empire of Japan and the Imperial Japanese Forces with treasonable intent to give as
he did give aid and comfort to said enemy did then and there wilfully unlawfully feloniously and
treasonably help in the a construction of air raid shelters for the protection of Japanese soldier against
allied air raids and did help in the acquisition of as he did acquire food supplies for the enemy in
preparation against the expected landing of America forces.

5. That on or about August 18, 1944 in the municipality of Minglanilla province of Cebu Philippines the
accused Cucufate Adlawan adhering the enemy the Empire of Japan and the Imperial Japanese Forces
with treasonable intent to give as he did aid and comfort to the said enemy in company with Japanese
Military soldier of the Japanese Military Police and other Filipino enemy spies did then and there wilfully
unlawfully feloniously and treasonably arrest maltreat and otherwise torture Primitivo Cansancio in an
effort to force the latter to disclose the whereabouts of Lt. Antonio Karedo a guerrilla officer to cause
said Primitivo Cansancio to confess his guerrilla activities.

6. That on or about December 7, 1944 in the municipality of Minglanilla Province of Cebu Philippines and
within the jurisdiction of this Court Empire of Japan and the Imperial Japanese forces with treasonable
intent to give as he did give aid and comfort to said enemy in company with a patrol of Japanese soldier
s of the Japanese Military Police and other enemy spices and informers did then and there willfully,
unlawfully, feloniously and treasonably apprehend and arrest Francisco Larrobia and did kick said
Francisco Larrobia strike him on the face and head with a pistol and subsequently bayoneting and killing
said Francisco Larrobia on the suspicion that he was a guerrilla.

7. That on or about September 6, 1944 in the municipality of Talisay province of Cebu, Philippines and
within the Jurisdiction of this court the accused Cucufate Adlawan adhering to the enemy the Empire of
Japan and its Imperial Japanese Forces with treasonable intent to give as he did give aid and comfort to
the said enemy in his capacity as chief undercover man for the Japanese Military Police Cebu District in
company with Japanese soldier and Santiago Bernaba another Japanese spy did then and there willfully
unlawfully feloniously and treasonably arrest Numariano Bellesa on suspicion of being a guerrilla
thereafter taking said Numeriano Bellesa to Inayawan Cebu City and thereat herein accused did
investigate said Numeriano Bellesa about the latter's firearms in order to help said enemy in gathering
up arms in gathering up arms in furtherance of their hostile design and did strike said Numeriano Bellesa
on the face and body and otherwise maltreat him in the course of said investigation.

8. That on or about August 18, 1944 in Sitio Tubod municipality of Minglanilla Province of Cebu
Philippines and within the jurisdiction of this court the accused Cucufate Adlawan adhering to the
enemy the Empire of Japan and its imperial Forces with treasonable intent to give as he did give aid he
did give aid and comfort to said enemy acting in his capacity as chief undercover man informer and spy
of the Japanese Military Police Cebu District and in company with Japanese soldier of the Japanese
Military Police did then and there wilfully, feloniously and treasonably apprehend and arrest Cipriano
Trazona and did investigate the latter as to the whereabouts of guerrillas especially Nicolas Adlawan
food procurement officer of the guerrilla and upon his denial of knowledge of said whereabouts herein
accused did torture said Cipriano Trazona by hanging the latter by the arms so that his body dangled
down striking his stomach and with an empty bottle inflicting wounds on his head and finally striking his
mouth with a flashlight splitting said Cipriano Trazona's lower lips.

9. That on or about October 2, 1944 in the municipality of Talisay Province of Cebu Philippines and
within the Jurisdiction of this court the accused Cucufate Adlawan adhering to the enemy the Imperial
Japanese Government and her armed forces with treasonable intent to give as he did give aid and
comfort to said enemy acting in his capacity as chief undercover man informer and spy in the employ of
the Japanese Military Police Cebu District in company with other informers said Military Police, did then
and there apprehend and arrest Albina Alpez and accused herein did wilfully and treasonably investigate
said Albina Alpez as to the whereabouts of her husband Ponciano Alpez, a guerrilla, attached to the 2nd
Division Cebu Area Command and when said Albina Alpez denied knowledge of her aforesaid husband's
whereabouts herein accused did slap kick and throw her to the ground hang her by the arms strike her
on the breast with his revolver threaten her with a dagger pointed at her throat and otherwise maltreat
and torture said Albina Alpez.

10. That on or about December 25, 1944 in the municipality of Minglanilla province of Cebu Philippines
and within the jurisdiction of this court the accused. Cucufate Adlawan adhering to the enemy the
Empire of Japan and its Imperial of Japan its Imperial Japanese Forces with treasonable intent to give as
he did give aid and comfort said enemy in company with five Japanese soldier and fourteen agent of the
Japanese Military Police otherwise known as the Kempei-Tai and his capacity Military Police for the Cebu
District did then and there wilfully, unlawfully, feloniously and treasonably apprehend and arrest
Victoriano Primacio and one Juan Unadia on suspicion of being guerrillas and said accused did box, beat
slap and strike said Victoriano Primacio and Juan Unadia with his rifle several times and did turn over
said Victoriano Primacio and Juan Unadia to the Japanese Military Police on the ground that said person
were guerrilla and as a result of which said Victoriano Primacio and Juan Unadia have not been heard of
ever since then.

11. That on or about January 27, 1944 at sitio Tacba, Cebu City, Philippines and within the jurisdiction of
this court the accused Cucufate Adlawan adhering to the enemy the Empire of Japan and its Imperial
Japanese Forces with treasonable intent to give as he did give aid and comfort to said enemy acting in
his capacity as chief undercover man informer and spy of the Japanese Military Police Cebu District, did,
then and there, wilfully, unlawfully, feloniously and treasonably shoot and kill Lt. Miguel Dacallos, a
USAFFE officer, in furtherance of the hostile designs of said enemy.

12. That on or about September 6, 1944, at sitio San Isidro, municipality of Talisay, Province of Cebu,
Philippines, and within furtherance of his adherence to the enemy, the Empire of Japan and its Imperial
Japanese Forces, with treasonable intent to give, as he did give aid and comfort to said enemy, acting in
his capacity as chief undercover man, informer and spy of the Japanese Military Police, Cebu District,
and inn company with Japanese soldier, did, then and there wilfully, unlawfully, feloniously and
treasonably arrest one Jose Murillo on suspicion that the latter was a guerrilla.

13. That on or about November 13, 1944 in the City of Cebu, Philippines, and within the jurisdiction of
this Court, the accused, Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its Imperial
Japanese Forces, with treasonable intent to give, as he did and comfort to said enemy, did then and
there, wilfully, feloniously and treasonably apprehend and arrest Basilia Arong and did take the latter to
headquarters of the Japanese Military Police and thereat herein accused did question and investigate
said Basilia Arong as to the whereabouts by the enemy of guerrilla activities, and when said Basilia
Arong denied knowledge of their whereabouts, herein accused did said Basilia Arong by her arms, strip
her of her clothing, severely beat her and otherwise torture her, finally forcing said Basilia Arong to sign
a letter addressed to her aforesaid husband, Pedro Arong asking the latter to report top the Japanese
Kempei-Tai headquarters and when said Pedro C. Arong did report to said headquarters in compliance
of said letter, he not been seen ever since.

14. That on or about August 10, 1944, at Sitio Gapas, Gaps Island, in the Province of Cebu, Philippines
and within the jurisdiction of this Court the accused Cucufate Adlawan, adhering to the enemy, the
Empire of Japan and its Imperial Japanese Forces, with treasonable to give as he did give aid comfort to,
said enemy, acting in his capacity as chief undercover man, informer and spy of the Japanese Military
Police of Cebu District and in company with Japanese Kempei-Tai informers and spies, did then and
there wilfully, feloniously and treasonably apprehend and arrest Pedro Cabanada and did question the
latter as the whereabouts of Alejandrino Ciriaco, a guerrilla Intelligence operative, and, in the course of
said investigation, the accused did hang said Pedro Cabanada by his arms, strike him with clubs and an
iron pipe thereby inflicting several wounds on his head for the latter's refusal to divulge said guerrilla
whereabouts.

15. That on or about June 2, 1944, in sitio Basac, Mambaling, in the City of Cebu Philippines and within
the Jurisdiction of this court the accused, Cucufate Adlawan, adhering to the enemy, the Empire of
Japan and its Imperial Japanese Forces, with treasonable intent to give, as he did give aid comfort to said
enemy, acting in his capacity as chief undercover man, informer and spy in the employ of the Japanese
Military Police of the Cebu District, in company with two Japanese soldiers and three other Japanese
informers and spies, did then and there wilfully, unlawfully, feloniously and treasonably apprehend and
arrest Marciano Alejandro, Carlos Numera and Jose Rada, killing said Marciano Alejandro, and Carlos
Numera, and wounding said Jose Rada on the charge that said person had contact with guerrillas.

16. That on or about October 8, 1943, in the municipality of Tisa, Province of Cebu, Philippines, and
within the jurisdiction of this court, the accused Cucufate Adlawan, adhering to the enemy, the Empire
of Japan and its Imperial Japanese Forces, with treasonable intent to give, as he did give aid and comfort
to said enemy, acting in his capacity as an informer and spy of said enemy, did, then and there wilfully,
unlawfully, feloniously and treasonably shoot and kill Bernardo Laborte, a guerrilla soldier for the latter's
guerrilla activities and resistance to said enemy.

17. That sometime in the month of April, 1944, in different place in the Province of Cebu, Philippines,
particularly in the area comprised between Tubano and Minglanilla, and within the jurisdiction of this
Court, the accused, Cucufate Adlawan, adhering to the enemy, thee Empire of Japan and its Imperial
Japanese Forces, with treasonable intent to give, as he did give aid and comfort to said enemy, as
member of the enemy-sponsored constabulary and as informer and spy of the Japanese Army, did then
and there, willfully, unlawfully, feloniously and treasonable join and take part in the general mopping up
operation conducted by the Japanese Army under the command of Sergeant T. Yushida, particularly in
the area of Tubonok to Minglanilla for the Purpose of apprehending guerrillas and other elements
engaged in resisting said enemy.

18. That on or about August 19, 1944, in the municipality of Cordoba, Province of Cebu, Philippines and
within the jurisdiction of this Court, the accused, Cucufate Adlawan, adhering to the enemy, Empire of
Japan and its Imperial Japanese Forces, with treasonable intent to give, as he did give aid and comfort to
said enemy, acting in his capacity as chief informer and spy under the employ of the Japanese Military
Police, Cebu District, in company with the member of said Japanese Military Police under the command
of Sergeant T. Yushida of the Japanese Army, did, then and there wilfully, unlawfully, feloniously and
treasonably arrest, maltreat and torture Martin Francisco and did expose the latter's wife and some
Filipino girls naked, raping them, and, did steal and carry away the following articles belonging to said
Martin Francisco:

2 diamond rings, a ring and one wrist watch

P500 in Cebu Emergency and Currency Notes
P1,858 in Japanese Military Notes
3 pairs white pants
2 out shirts
2 pairs shoes
1 buntal hat
1 wedding ring

on suspicion that said Martin Francisco was a guerrilla.

19. That sometime in 1944, at sitio Cabadiangan, Province of Cebu, Philippines, and within the
Jurisdiction of this Court, the accused, Cucufate Adlawan, adhering to the enemy, the Empire of Japan
and its Imperial Japanese forces, with treasonable intent to give, as he did give aid and comfort to said
enemy, acting as an informer to the enemy and in company with soldiers of the Japanese Army, did then
and there wilfully, unlawfully, feloniously and treasonably conduct and carry out a raid for the purpose
of apprehending guerrillas and as a result of which, Governor Hilario Abellana of Cebu then in hiding
from said enemy, was captured.

20. That on or about February 12, 1944, in the City of Cebu, Philippines and within the Jurisdiction of this
Court, the accused, Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its Imperial
Japanese Forces, with treasonable intent give, as he did give aid and comfort to said enemy, acting in his
capacity as chief undercover man, informer and spy of the Japanese Military Police, Cebu District, did
then and there, wilfully, unlawfully, feloniously and treasonably beat and strike Vicente Padilla with a
baseball bat, hang said Vicente Padilla by the arms, and otherwise torture him in an effort to extract
confession of the latter's connection with guerrillas.

21. That on or about July 19, 1944 at Cebu, City Philippines and within the Jurisdiction of this Court, the
accused, Cucufate Adlawan, adhering to the Empire of Japan and its Imperial Japanese Forces, with
treasonable intent to give, as he did give aid and comfort to said enemy, acting as chief informer and spy
of the Japanese Military Police of the Cebu District, in company with Japanese soldier and other agent of
the Japanese Military Police otherwise known as the Kempei-tai, did then and there, wilfully, unlawfully,
feloniously and treasonably arrest Bartolome Rosal, Antonio de la Serna, and Braulio Padilla and did tie
up the hands of said persons, severely inflicting wounds on them, on suspicion of being guerrillas and as
consequence of said maltreatment and torture, Braulio Padilla died a few days thereafter.

22. That on or about December 20, 1944, in the city of Cebu, Philippines and within the Jurisdiction of
this Court, the accused, Cucufate Adlawan, adhering to the enemy, Empire of Japan and its Imperial
Japanese Forces, with treasonable intent to give, as did give and comfort to said enemy, acting in his
capacity as chief informer, spy and undercover man of the Japanese Military Police of the Cebu District,
did and there wilfully unlawfully, feloniously arrest at the point of his gun, Paulita Delgado and "John
Doe" her husband, on suspicion that said persons were cooperating and helping the guerrillas and did
thereafter bring said Paulita Delgado and her husband to the Kempei-Tai headquarters and once thereat
herein accused did torture them by hanging them by their arms did otherwise maltreat them.

23. That sometime in September, 1944, at Pasil Market, Cebu City, Philippines and within the jurisdiction
of this Court the accused Cucufate Adlawan, adhering to the enemy, the Empire of Japan and Imperial
Japanese Army, with treasonable intent to give, as he did give aid and comfort to said enemy, acting in
his capacity as member of the enemy-sponsored Philippines Constabulary attached to the Japanese
Military Police, did then and there, wilfully, unlawfully, feloniously and treasonably kill Dionisio Abatol, a
guerrilla, for his activities and resistance to the said enemy.

By his plea of guilty appellant admit having committed the treasonous acts alleged in the information.
But he now pleads for modification of the sentence, contending that the lower court erred:

1. In not taking into consideration, as mitigating circumstances, the following facts:(1) voluntary
surrender; (2) the facts that the accused has been and is being utilized as witness by the CIC in cases
against Japanese soldiers under trial by the military commission; on and (3) the facts that the accused
helped and saved the lives of many civilian and from death in the hands of the Japanese;

2. In making as a matter of set-off the plea of guilty entered by the defendant-appellant on the strength
of the assurance that no death penalty would be imposed upon him;

3. In considering, as aggravating circumstances, treachery, abuse of superiority and unnecessary cruelty;

4. In holding that the crime committed by then accused is a complex crime of treason with murder, rape
and robbery;

5. In sentencing the accused to death and to pay a fine of P20,000.

Taking up first the fourth alleged error, we find merit in the contention that appellant should not have
been convicted of the so-called "complex crime of treason with murder, robbery, and rape." The killings,
robbery, and raping mentioned in the information are therein alleged not as specific offenses but as
mere elements of the crime of treason for which the accused is being prosecuted. Being merged in and
identified with the general charge, they can not be used in combination with treason to increase the
penalty under article 48 of the Revised Penal Code. (People vs. Prieto,1 L-399, January 29, 1948.)
Appellant should, therefore, be held guilty of treason only.

Appellant's claim of voluntary surrender has not been satisfactorily proved. On the other hand, his
admission that he was "taken" from the house of his mother by an agent of the CIC, is proof that he was
in fact arrested. Where there has been actual arrest the mitigating circumstance of voluntary surrender
cannot be invoked (People vs. Conwi,2 40 Off. Gaz. [14th Supp.], No. 23, p. 166; People vs. Siojo, 61 Phil.,
307.)

The meritorious acts which appellant claims to have performed in aid of the CIC and his countrymen
have not been established by satisfactory proof and may not in any event be considered as mitigating
circumstances under the Revised Penal Code.

There is nothing to the claim that appellant entered a plea guilty on the assurance that he would not be
sentenced to death. The claim is not supported by proof. On the other hand, it is denied by both the
prosecution and the trial court, the latter stating in its order denying appellant' motions for
reconsideration that "No responsible judge can or would advance his opinion in connection with the
decision to be rendered in any case before he has properly deliberated on the merit of the same."

There is, however, merit in the contention that the aggravating circumstances of treachery and abuse of
superior strength should not have been considered. These circumstances are "by their nature, inherent
in the offense of treason and may not be taken to aggravate the penalty." (People vs. Racaza, 82 Phil.,
623) But the facts alleged in the information show that appellant in committing the crime of treason,
deliberately augmented the wrong by being unnecessarily cruel to captured guerrilla suspects,
subjecting them to barbarous forms of torture and finally putting them to death, and as appears in
count No. 18, he also chose to add ignominy to his treasonous act in arresting and maltreating a guerrilla
suspect by stripping his wife of her clothes and then abusing her together with other Filipino girls.
Clearly shown as they are by the allegations of the complaint and deemed admitted by appellant's plea
of guilty, these two aggravating circumstances of unnecessary cruelty and ignominy may be appreciated
against him. As this said in the case of People vs. Racaza, supra.

But the law does abhor inhumanity and the abuse of strength to commit acts unnecessary to the
commission of treason. There is no incompatibility between treason and decent, human treatment of
prisoners. Rapes, wanton robbery for personal grain and other forms of cruelties are condemned and
their perpetration will be regarded as aggravating circumstances of ignominy will be regarded as
aggravating circumstances of ignominy and of deliberately augmenting unnecessary wrong to the main
criminal objective under paragraphs 17 and 21 of article 14 of the Revised Penal Code. The atrocities
above mentioned of which the appellant is beyond doubt guilty, fall within the term of the above
paragraphs.

For the very reason that premeditation treachery and use of superior strength are adsorbed in treason
characterized by killings, the killings themselves and other and other accompanying crimes should be
taken in to consideration for measuring the degree and gravity of criminal responsibility irrespective of
the manner in which they were committed. Were not this the rule treason, the highest crime known to
law, would confer on its perpetrators advantages that are denied simple murderers. To avoid such
incongruity and injustice, the penalty in treason will be adapted, within the range provided in the
Revised Penal Code, to the danger and harm to which the culprit has exposed his exposed his country
and his people and to the wrongs and injuries that resulted from his deed. The letter and pervading
spirit of the Revised Penal Code just penalties to the perversity of the mind that conceived and carried
the crime into execution. Where the system of graduating penalties by the prescribed standards is
inapplicable, as in the case of homicides connected with treason, the method of analogies to fit the
punishment with the enormity of the offense may be summoned to the service of justice and
consistency and in furtherance of the law's aims.

The penalty prescribed for the crime of treason is reclusion temporal to death and a fine of not to
exceed P20,00 Giving the appellant the benefit of the mitigating circumstances of voluntary confession
of guilty, but appreciating against him the aggravating circumstances of ignominy and unnecessary cruel,
the said penalty should be imposed in its maximum. But since five member of this court are opposed to
the imposition of the death penalty in this case, the appellant can only be sentenced to reclusion
perpetua and a fine of P20,000.
Wherefore, the judgment below is modified in the sense that the appellant is declared guilty of treason
and sentenced to reclusion perpetua and to pay a fine of P20,000, with costs in this instance de oficio.

G.R. No. 4971 September 23, 1909

THE UNITED STATES, plaintiff,

vs.
AUGUSTUS HICKS, defendant.

Office of the Solicitor-General Harvey for plaintiff.

Jose Robles Lahesa for 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.

G.R. No. L-7094 March 29, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
HILARIO DE LA CRUZ, defendant-appellant.

F.C. Fisher for appellant.

Acting Attorney-General Harvey for appellee.

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.

G.R. No. 130654 July 28, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDUARDO BASIN JAVIER, accused-appellant.

ROMERO, J.:

Before us on automatic review is the Decision 1 dated April 15, 1997 of the Regional Trial Court of Agoo,
La Union, Branch 32,2 in Criminal Case No. A-3155, convicting accused-appellant Eduardo Javier of the
crime of parricide and sentencing him to suffer the penalty of death and to indemnify the heirs of the
victim in the amount of P50,000.00 as moral damages and P21,730.00 as actual expenses.1âwphi1.nêt

The Information filed before the trial court which charged accused-appellant with the crime of parricide
reads as follows:

That on or about the 15th day of June 1996, in the Municipality of Santo Tomas, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with the
intent to and being then armed with a bolo, did then and there willfully, unlawfully and feloniously
attack, assault and use of personal violence, by hacking with the said weapon one FLORENTINA JAVIER Y
LACESTE, his legitimate spouse, and as a result of which his said wife suffered fatal injuries which
directly caused her death immediately thereafter, to the damage and prejudice of the heirs of the
victim.

Contrary to law. 3

Upon arraignment, the accused-appellant pleaded not guilty and trial ensued.

The prosecution evidence, consisting of the testimonies of Consolacion Javier Panit and Alma Javier,
daughters of the victim and accused-appellant, and SPO1 Rotelio Pacho are detailed as follows:

Accused-appellant Eduardo Javier and the victim Florentina Laceste Javier were legally married on
December 18, 1954. 4 In their forty-one years of marriage, they begot ten children. Accused-appellant
and Florentina lived at Tubod, Sto. Tomas, La Union with one of their daughters, Alma Javier.5

On June 15, 1996 between two o'clock and three o'clock in the morning, Consolacion Javier Panit, who
lives near her parent's house about ten to fifteen meters away, heard her mother, Florentina shouting
"Arayatan dac ta papatayen nac ni Tatangyo" (Your father is going to kill me). After she heard her
mother scream for help, Consolacion rushed out of her house and met her sister, Alma who, weeping,
told her that their parents were quarrelling. Alma, at the time of the incident was living in her parents'
house. Consolacion and Alma then proceeded to their brother Manuel's house, which is located about
seventy to eighty meters away from their parents' house. The three then proceeded to their parents'
house. Manuel, who entered first, found the lifeless body of his mother and his father, accused-
appellant, wounded in the abdomen. Manuel then ordered Consolacion to get a tricycle to bring their
father to the hospital. At this point, Manuel informed her sisters that their mother was dead and that
their father confessed to him that he killed his wife and there after allegedly stabbed himself. Florentina
was found dead in their bedroom, drenched in her own blood. 6

Accused-appellant was brought to the hospital by Consolacion's husband, and her son, Jefferson, while
Manuel went out to get help. 7

SPO1 Rotelio Pacho, assigned as desk investigator at the Sto. Tomas Police Station in La Union, testified
in the investigation he conducted with SP04 Manuel Zarate and SPO1 Agaton Laroza regarding the
incident of June 15, 1996. He stated that he received a call for assistance from the barangay captain of
Tugod, Sto. Tomas because accused-appellant allegedly killed his wife. The police authorities then
proceeded to accused-appellant's house in Brgy. Tugod, Sto.Tomas, where they saw Florentina lying in
the bedroom floor covered with blood. Upon interviewing the victim's children, Pacho testified that
Manuel told him that his father confessed to killing his wife. Manuel then surrendered to him the bolo
covered with blood which was found in the bedroom. The bolo was allegedly used by accused-appellant
in assaulting his wife. 8 The medical findings indicated that the victim suffered from multiple injuries and
her neck was almost cut off from her body. 9

Accused-appellant Eduardo Javier, in his testimony, admitted killing his wife in their bedroom with the
use of a sharp bolo. He identified the bolo as the same one presented by the prosecution as Exhibit "A"
and which he used in wounding himself. Accused-appellant told the court that he killed his wife because
he could not sleep for almost a month. He claimed that when the killing took place, his mind went
totally blank and he did not know what he was doing. 10 He claims that he was insane at the time of the
incident.
The trial court rejected accused-appellant's defense of insanity and on April 15, 1997 rendered a
decision finding him guilty of parricide and sentenced him to suffer the penalty of death. The dispositive
portion of the decision reads as follows:

WHEREFORE, in view of all the foregoing consideration, the accused, Eduardo Javier y Basin is hereby
sentenced to suffer the penalty of death; to pay the heirs of the victims the amount of P50,000.00 as
moral damages for the death of the victim and P21,730.00 as actual expenses; and to pay the cost of the
proceedings.

SO ORDERED.11

In this appeal, accused-appellant alleged that the trial court erred in imposing the death penalty,
considering the presence of two mitigating circumstances of illness of the offender and passion and
obfuscation. 12 While accused-appellant does not question the decision of the trial court in rejecting his
defense of insanity, he argues that he should be meted a lower penalty because at the time of the
incident, he was suffering from loss of sleep for a prolonged period of time, which would have caused
him to commit the crime.

He further contends that his suspicion that his wife was having an illicit relationship with another man,
aggravated by his illness, goaded him to commit the crime.

The Office of the Solicitor General, on the other hand, argues that accused-appellant cannot claim the
mitigating circumstance of illness in the absence of a medical finding to support his claim. Accused-
appellant cannot likewise be entitled to the mitigating circumstance of passion and obfuscation in the
absence of sufficient evidence.

We find the appeal bereft of merit.

Accused-appellant, during trial, admitted killing his wife, but interposed as defense the exempting
circumstance of insanity. However, the trial court rejected this defense of insanity for failure of the
defense to prove that accused-appellant was indeed insane at the time of the incident. The defense
never presented any medical record of the accused-appellant, nor was a psychiatrist ever presented to
validate the defense of insanity. Equally important, the defense, during trial, never alleged the above-
claimed mitigating circumstances of illness and passion and obfuscation, thus weakening the case of
accused-appellant.

In this appeal, accused-appellant alleged that prior to the incident, he had been suffering from insomnia
for around a month, thus leading him to commit an act beyond his control, the killing of his wife,
Florentina. The defense went on to cite medical literature on the effects of total and partial sleep loss to
support his contentions. 13

For the mitigating circumstance of illness of the offender to be appreciated, the law requires the
presence of the following requisites: (1) illness must diminish the exercise of the will-power of the
offender; and (2) such illness should not deprive the offender of consciousness of his acts. 14

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the
claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the
accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was
presented regarding his mental condition at the time of killing. This Court can hardly rely on the bare
allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and convincing
evidence was shown that accused-appellant was suffering an illness which diminished his exercise of
will-power at the time of the killing.

On the other hand, it is clear that accused-appellant was aware of the acts he committed. First, he
remembered killing his wife in their bedroom with the use of a bolo, where he mangled her neck twice;
he remembered trying to commit suicide, by wounding himself with the same bolo he used in killing his
wife; and he remembered being brought to the hospital. Since he remembered the vital circumstances
surrounding the ghastly incident, from the time of the killing up to the time he was brought to the
hospital, it shows that he was in full control of his mental faculties. This negates his claim that he was
suffering from an illness that diminished the exercise of his will-power. On the basis of the foregoing, we
cannot appreciate the mitigating circumstance alleged by accused-appellant.

Neither can we appreciate the circumstance of passion and obfuscation to mitigate his criminal liability.

In order to be entitled to the mitigating circumstance of passion and to obfuscation, the following
elements should concur: (1) there should be an act both unlawful and sufficient to produce such
condition of mind; and (2) said act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the perpetrator might recover
his moral equanimity. 15 The foregoing elements were not proved to be present in instant case. In fact,
during accused-appellant's testimony, he even stated that he was not jealous of his wife.

As correctly observed by the Office of the Solicitor General:

In the case of appellant, there is lack of proof of the cause which produced alleged passion and
obfuscation. Appellant, in his testimony, did not account how he killed his wife nor did he explain the
cause why he was prompted to kill his wife. Verily, there exists no justifiable basis for applying to him
this mitigating circumstance of passion and obfuscation as the cause which produced it has not been
established. 16

All told, the allegations propounded by accused-appellant that his suspicions regarding his wife,
aggravated by his illness made it possible for him to kill his own wife, is but a mere afterthought to
whittle down his criminal liability.

Additionally, it is a settled rule that factual findings of the trial courts will generally not be disturbed by
the appellate court because it is in the best position to properly evaluate testimonial evidence
considering that it observes the demeanor, conduct and attitude of witnesses during the trial. In the
case at bar, the trial court was able to observe the behavior of accused-appellant and it stated that his
recollection of the details surrounding the killing is so impeccable that only a person in his right mind
can make it.

Thus, the trial court was correct in convicting accused-appellant of the crime of parricide under Article
246 of the Revised Penal Code (as amended by Republic Act No. 7659, Section 5) which provides that:

Any person who shall kill his father, mother or child, whether legitimate or illegitimate, or any of his
ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the
penalty of reclusion perpetua to death.
The crime of parricide, not being a capital crime per se as it is not punishable by mandatory death
penalty but by the flexible penalty of reclusion perpetua to death, two indivisible penalties, the
application of the lesser or the greater penalty depends on the presence of mitigating and aggravating
circumstances.17

In this case, the information for parricide against accused-appellant did not allege any aggravating
circumstance. Nor did the evidence show that the prosecution was able to prove any aggravating
circumstance. 18 Likewise, no mitigating circumstance is appreciated by this Court in favor of the
accused-appellant. Thus, in the absence of any aggravating or mitigating circumstance for the accused-
appellant, the lesser penalty of reclusion perpetua should be imposed.

As regards the monetary liability, the Court takes the amount of P50,000.00 imposed by the trial court
as one of civil indemnity instead of as moral damages.1âwphi1.nêt

WHEREFORE, the decision of the Regional Trial Court of Agoo, La Union, Branch 32, in Criminal Case No.
A-3155 is hereby AFFIRMED with the MODIFICATION that accused-appellant Eduardo Javier y Basin
should suffer the penalty of reclusion perpetua.

SO ORDERED.

G.R. No. 140937 February 28, 2001

EXUPERANCIO CANTA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

MENDOZA, J.:

This is a petition for review on certiorari of the decision, dated August 31, 1999, and resolution, dated
November 22, 1999, of the Court of Appeals,1 which affirmed the decision of the Regional Trial Court,
Branch 25, Maasin, Southern Leyte,2 finding petitioner Exuperancio Canta guilty of violation of P.D. No.
533, otherwise known as the Anti-Cattle Rustling Law of 1974, and sentencing him to ten (10) years and
one (1) day of prision mayor, as minimum, to twelve (12) years, five (5) months, and eleven (11) days
of reclusion temporal medium, as maximum, and to pay the costs.

The information against petitioner alleged:

That on or about March 14, 1986, in the municipality of Malitbog, province of Southern Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to
gain, did then and there, willfully, unlawfully and feloniously, take, steal and carry away one (1) black
female cow belonging to Narciso Gabriel valued at Three Thousand Pesos (P3,000.00) without the
knowledge and consent of the aforesaid owner, to his damage and prejudice in the amount
aforestated.1âwphi1.nêt
CONTRARY TO LAW.3

The prosecution established the following facts:

Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the case, upon its birth on
March 10, 1984. The cow remained under the care of Erlinda Monter for sometime. Subsequently,
Narciso gave the care and custody of the animal, first, to Generoso Cabonce, from October 24, 1984 to
March 17, 1985; then to Maria Tura, from May 17, 1985 to March 2, 1986; and lastly, to Gardenio
Agapay, from March 3, 1986 until March 14, 1986 when it was lost.4 It appears that at 5 o'clock in the
afternoon of March 13, 1986, Agapay took the cow to graze in the mountain of Pilipogan in Barangay
Candatag, about 40 meters from his hut. However, when he came back for it at past 9 o'clock in the
morning of March 14, 1986, Agapay found the cow gone. He found hoof prints which led to the house of
Filomeno Vallejos. He was told that petitioner Exuperancio Canta had taken the animal.5

Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal from petitioner's
wife, but they were informed that petitioner had delivered the cow to his father, Florentino Canta, who
was at that time barangay captain of Laca, Padre Burgos, Southern Leyte. Accordingly, the two went to
Florentino's house. On their way, they met petitioner who told them that if Narciso was the owner, he
should claim the cow himself. Nevertheless, petitioner accompanied the two to his father's house,
where Maria recognized the cow. As petitioner's father was not in the house, petitioner told Gardenio
and Maria he would call them the next day so that they could talk the matter over with his father.

However, petitioner never called them. Hence, Narciso Gabriel reported the matter to the police of
Malitbog, Southern Leyte.6 As a result, Narciso and petitioner Exuperancio were called to an
investigation. Petitioner admitted taking the cow but claimed that it was his and that it was lost on
December 3, 1985. He presented two certificates of ownership, one dated March 17, 1986 and another
dated February 27, 1985, to support his claim (Exh. B).7

Narciso presented a certificate of ownership issued on March 9, 1986, signed by the municipal treasurer,
in which the cow was described as two years old and female. On the reverse side of the certificate is the
drawing of a cow with cowlicks in the middle of the forehead, between the ears, on the right and left
back, and at the base of the forelegs and hindlegs (Exhs. C, C-1 to 4).8 All four caretakers of the cow
identified the cow as the same one they had taken care of, based on the location of its cowlicks, its sex,
and its color. Gardenio described the cow as black in color, with a small portion of its abdomen
containing a brownish cowlick, a cowlick in the middle of the forehead, another at the back portion
between the two ears, and four cowlicks located near the base of its forelegs and the hindlegs.9

On the other hand, petitioner claimed he acquired the animal under an agreement which he had with
Pat. Diosdado Villanueva, that petitioner take care of a female cow of Pat. Villanueva in consideration
for which petitioner would get a calf if the cow produced two offsprings. Petitioner claimed that the cow
in question was his share and that it was born on December 5, 1984. This cow, however, was lost on
December 2, 1985. Petitioner said he reported the loss to the police of Macrohon, Padre Burgos, and
Malitbog, on December 3, 1985 (Exh. A and Exh. 1).10

Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the cow at Pilipogan,
under the care of Gardenio Agapay. He, therefore, went to Pilipogan with the mother cow on March 14,
1986 to see whether the cow would suckle the mother cow. As the cow did, petitioner took it with him
and brought it, together with the mother cow, to his father Florentino Canta.11 Maria Tura tried to get
the cow, but Florentino refused to give it to her and instead told her to call Narciso so that they could
determine the ownership of the cow.12 As Narciso did not come the following day, although Maria did,
Florentino said he told his son to take the cow to the Municipal Hall of Padre Burgos. Petitioner did as he
was told. Three days later, Florentino and Exuperancio were called to the police station for
investigation.13

Petitioner presented a Certificate of Ownership of Large Cattle dated February 27, 198514 and a
statement executed by Franklin Telen, janitor at the treasurer's office of the municipality of Padre
Burgos, to the effect that he issued a Certificate of Ownership of Large Cattle in the name of petitioner
Exuperancio Canta on February 27, 1985 (Exh. 5).15 The statement was executed at the preliminary
investigation of the complaint filed by petitioner against Narciso.16

Petitioner's Certificate of Ownership was, however, denied by the municipal treasurer, who stated that
petitioner Exuperancio Canta had no Certificate of Ownership of Large Cattle in the municipality of
Padre Burgos (Exhs. E, E-1 and 2).17 On the other hand, Telen testified that he issued the Certificate of
Ownership of Large Cattle to petitioner on March 24, 1986 but, at the instance of petitioner, he (Telen)
antedated it to February 27, 1985.18

On January 24, 1997, the trial court rendered its decision finding petitioner guilty of the offense
charged. In giving credence to the evidence for the prosecution, the trial court stated:

From the affidavits and testimonies of the complainant and his witnesses, it is indubitable that it was
accused Exuperancio Canta who actually took the cow away without the knowledge and consent of
either the owner/raiser/caretaker Gardenio Agapay.

That the taking of the cow by the accused was done with strategy and stealth considering that it was
made at the time when Gardenio Agapay was at his shelter-hut forty (40) meters away tethered to a
coconut tree but separated by a hill.

The accused in his defense tried to justify his taking away of the cow by claiming ownership. He,
however, failed to prove such ownership. Accused alleged that on February 27, 1985 he was issued a
Certificate of Ownership of Large Cattle (Exh. 2-A) for his cow by Franklin Telen, a janitor at the Office of
the Municipal Treasurer of Padre Burgos, a neighboring town. On rebuttal Franklin Telen denied in Court
the testimony of the accused and even categorically declared that it was only on March 24, 1986 that
the accused brought the cow to the Municipal Hall of Padre Burgos, when he issued a Certificate of
Ownership of Large Cattle for the cow, and not on February 27, 1985. Franklin Telen testified thus:

"Q. According to the defense, this Certificate of Ownership of Large Cattle was issued by you on
February 27, 1985. Is that correct?

A. Based on the request of Exuperancio, I antedated this.

(TSN, June 3, 1992, p. 7)"

The testimony of Franklin Telen was confirmed in open court by no less than the Municipal Treasurer of
Padre Burgos, Mr. Feliciano Salva. (TSN, September 29, 1992, pp. 5-8).
If accused Exuperancio Canta were the owner of the cow in question, why would he lie on its
registration? And why would he have to ask Mr. Franklin Telen to antedate its registry? It is clear that
accused secured a Certificate of Ownership of Large Cattle (Exh. 2-A) by feigning and manipulation (Exhs.
A & B) only after the act complained of in the instant case was committed on March 14, 1986. His claim
of ownership upon which he justifies his taking away of the cow has no leg to stand on. Upon the other
hand, the complainant has shown all the regular and necessary proofs of ownership of the cow in
question.19

The Court of Appeals affirmed the trial court's decision and denied petitioner's motion for
reconsideration. Hence, this petition. It is contended that the prosecution failed to prove beyond
reasonable doubt his criminal intent in taking the disputed cow.

First. Petitioner claims good faith and honest belief in taking the cow. He cites the following
circumstances to prove his claim:

1. He brought the mother cow to Pilipogan to see if the cow in question would suckle to the mother
cow, thus proving his ownership of it;

2. He compared the cowlicks of the subject cow to that indicated in the Certificate of Ownership of
Large Cattle issued on February 27, 1985 in his name, and found that they tally;

3. He immediately turned over the cow to the barangay captain, after taking it, and later to the police
authorities, after a dispute arose as to its ownership; and

4. He filed a criminal complaint against Narciso Gabriel for violation of P. D. No. 533.

These contentions are without merit.

P.D. No. 533, §2(c) defines cattle-rustling as

. . . the taking away by any means, methods or scheme, without the consent of the owner/raiser, of any
of the abovementioned animals whether or not for profit or gain, or whether committed with or without
violence against or intimidation of any person or force upon things.

The crime is committed if the following elements concur: (1) a large cattle is taken; (2) it belongs to
another; (3) the taking is done without the consent of the owner; (4) the taking is done by any means,
methods or scheme; (5) the taking is with or without intent to gain; and (6) the taking is accomplished
with or without violence or intimidation against person or force upon things.20

These requisites are present in this case. First, there is no question that the cow belongs to Narciso
Gabriel. Petitioner's only defense is that in taking the animal he acted in good faith and in the honest
belief that it was the cow which he had lost. Second, petitioner, without the consent of the owner, took
the cow from the custody of the caretaker, Gardenio Agapay, despite the fact that he knew all along
that the latter was holding the animal for the owner, Narciso. Third, petitioner falsified his Certificate of
Ownership of Large Cattle by asking Telen to antedate it prior to the taking to make it appear that he
owned the cow in question. Fourth, petitioner adopted "means, methods, or schemes" to deprive
Narciso of his possession of his cow, thus manifesting his intent to gain. Fifth, no violence or intimidation
against persons or force upon things attended the commission of the crime.
Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which petitioner presented
to prove his ownership was falsified. Franklin Telen, the janitor in the municipal treasurer's office,
admitted that he issued the certificate to petitioner 10 days after Narciso's cow had been stolen.
Although Telen has previously executed a sworn statement claiming that he issued the certificate on
February 27, 1985, he later admitted that he antedated it at the instance of petitioner Exuperancio
Canta, his friend, who assured him that the cow was his.21

Telen's testimony was corroborated by the certification of the municipal treasurer of Padre Burgos that
no registration in the name of petitioner was recorded in the municipal records. Thus, petitioner's claim
that the cowlicks found on the cow tally with that indicated on the Certificate of Ownership of Large
Cattle has no value, as this same certificate was issued after the cow had been taken by petitioner from
Gardenio Agapay. Obviously, he had every opportunity to make sure that the drawings on the certificate
would tally with that existing on the cow in question.

The fact that petitioner took the cow to the barangay captain and later to the police authorities does not
prove his good faith. He had already committed the crime, and the barangay captain to whom he
delivered the cow after taking it from its owner is his own father. While the records show that he filed
on April 30, 1986 a criminal complaint against Narciso Gabriel, the complaint was dismissed after it was
shown that it was filed as a countercharge to a complaint earlier filed on April 16, 1986 against him by
Narciso Gabriel.

Petitioner says that he brought a mother cow to see if the cow in question would suckle to the mother
cow. But cows frequently attempt to suckle to alien cows.22 Hence, the fact that the cow suckled to the
mother cow brought by petitioner is not conclusive proof that it was the offspring of the mother cow.

Second. Petitioner contends that even assuming that his Certificate of Ownership is "not in order," it
does not necessarily follow that he did not believe in good faith that the cow was his. If it turned out
later that he was mistaken, he argues that he committed only a mistake of fact but he is not criminally
liable.

Petitioner's Certificate of Ownership is not only "not in order." It is fraudulent, having been antedated to
make it appear it had been issued to him before he allegedly took the cow in question. That he obtained
such fraudulent certificate and made use of it negates his claim of good faith and honest mistake. That
he took the cow despite the fact that he knew it was in the custody of its caretaker cannot save him
from the consequences of his act.23 As the Solicitor General states in his Comment:

If petitioner had been responsible and careful he would have first verified the identity and/or ownership
of the cow from either Narciso Gabriel or Gardenio Agapay, who is petitioner's cousin (TSN, 9/12/91, p.
26). Petitioner, however, did not do so despite the opportunity and instead rushed to take the cow.
Thus, even if petitioner had committed a mistake of fact he is not exempted from criminal liability due
to his negligence.24

In any event, petitioner was not justified in taking the cow without the knowledge and permission of its
owner. If he thought it was the cow he had allegedly lost, he should have resorted to the court for the
settlement of his claim. Art. 433 of the Civil Code provides that "The true owner must resort to judicial
process for the recovery of the property." What petitioner did in this case was to take the law in his own
hands.25 He surreptitiously took the cow from the custody of the caretaker, Gardenio Agapay, which act
belies his claim of good faith.

For the foregoing reasons, we hold that the evidence fully supports the finding of both the trial court
and the Court of Appeals that accused-appellant is guilty as charged. There is therefore no reason to
disturb their findings.

However, the decision of the Court of Appeals should be modified in two respects.

First, accused-appellant should be given the benefit of the mitigating circumstance analogous to
voluntary surrender. The circumstance of voluntary surrender has the following elements: (1) the
offender has not actually been arrested; (2) the offender surrenders to a person in authority or to the
latter's agent; and (3) the surrender is voluntary.26 In the present case, petitioner Exuperancio Canta
had not actually been arrested. In fact, no complaint had yet been filed against him when he
surrendered the cow to the authorities. It has been repeatedly held that for surrender to be voluntary,
there must be an intent to submit oneself unconditionally to the authorities, showing an intention to
save the authorities the trouble and expense that his search and capture would require.27 In
petitioner's case, he voluntarily took the cow to the municipal hall of Padre Burgos to place it
unconditionally in the custody of the authorities and thus saved them the trouble of having to recover
the cow from him. This circumstance can be considered analogous to voluntary surrender and should be
considered in favor of petitioner.

Second, the trial court correctly found petitioner guilty of violation of §2(c) of P. D. No. 533, otherwise
known as the Anti-Cattle Rustling Law of 1974. However, it erred in imposing the penalty of 10 years and
1 day of prision mayor, as minimum, to 12 years, 5 months and 11 days of reclusion temporal medium,
as maximum. The trial court apparently considered P. D. No. 533 as a special law and applied §1 of the
Indeterminate Sentence Law, which provides that "if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by
the same." However, as held in People v. Macatanda,28 P. D. No. 533 is not a special law. The penalty
for its violation is in terms of the classification and duration of penalties prescribed in the Revised Penal
Code, thus indicating that the intent of the lawmaker was to amend the Revised Penal Code with respect
to the offense of theft of large cattle. In fact, §10 of the law provides:

The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the Revised Penal Code, as
amended, pertinent provisions of the Revised Administrative Code, as amended, all laws, decrees,
orders, instructions, rules and regulations which are inconsistent with this Decree are hereby repealed
or modified accordingly.

There being one mitigating circumstance and no aggravating circumstance in the commission of the
crime, the penalty to be imposed in this case should be fixed in its minimum period. Applying the
Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal Code, petitioner should be
sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next
lower in degree, i. e., prision correccional maximum to prision mayor medium, and the maximum of
which is prision mayor in its maximum period.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the modification that petitioner
Exuperancio Canta is hereby SENTENCED to suffer a prison term of four (4) years and two (2) months
of prision correccionalmaximum, as minimum, to ten (10) years and one (1) day of prision
mayor maximum, as maximum.

SO ORDERED.1âwphi1.nêt

G.R. No. L-35156 November 20, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORO RODIL defendant-appellant.

MAKASIAR, J.:

Accused Floro Rodil was found guilty, beyond reasonable doubt, of the crime of murder by the Circuit
Criminal Court of Pasig, Rizal, for the death of Lt. Guillermo Masana of the Philippine Constabulary.
Accordingly, he was sentenced to death, to indemnify the heirs of the deceased in the amount of
P12,000.00, to pay the amount of P10,000.00 as moral damages and another P10,000.00 as exemplary
damages, and to pay the costs.

The information alleges:

That on or about April 24, 1971, in the Municipality of Indang, Province of Cavite, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, armed with a double-bladed dagger,
with evident premeditation and treachery, and with intent to kill, did, then and there, wilfully,
unlawfully, and feloniously, attack and stab PC Lt. Guillermo Masana while the latter was in the
performance of his official duties, inflicting upon him stab wounds on the different parts of his body
which directly caused his death.

Contrary to law

From the evidence adduced by the prosecution, We glean the following facts:

At about 1:00 o'clock in the afternoon of April 24, 1971, the deceased, PC Lt. Guillermo Masana together
with PC soldier Virgilio Fidel, Philippine Coast Guard serviceman Ricardo Ligsa and Patrolman Felix
Mojica of Indang, Cavite, was having lunch inside a restaurant in front of the Indang market (pp. 2,3,
t.s.n., Oct. 30, 1971; pp. 10, 19, t.s.n., Nov. 22, 1971; p. 21, t.s.n., Jan. 20, 1972). While they were eating,
they saw, through the glass panel of the restaurant, appellant outside the restaurant blowing his
whistle. Their attention having been drawn to what appellant was doing, Lt. Masana then in civilian
clothing, accompanied by PC soldier Virgilio Fidel, went out of the restaurant, approached appellant and
asked the latter, after Identifying himself as a PC officer, whether the gun that was tucked in his waist
had a license. Instead of answering the question of Lt. Masana appellant moved one step backward and
attempted to draw his gun. PC soldier Virgilio Fidel immediately grabbed appellant's gun from
appellant's waist and gave it to Lt. Masana After that, Lt. Masana told the appellant to go inside the
restaurant. PC soldier Virgilio Fidel followed. Lt. Masana and the appellant occupied a separate table
about one and one-half (1 1/2) meters from the table of Lt. Masana's three companions — Fidel, Ligsa
and Mojica (p. 10, t.s.n., Nov. 22, 1971). After the two were already seated, Lt. Masana placed
appellant's gun on the table. After that Lt. Masana pulled out a piece of coupon bond paper from his
pocket and wrote thereon the receipt for the gun, and after signing it, he asked appellant to countersign
the same, but appellant refused to do so. Instead, he asked Lt. Masana to return the gun to him. Lt.
Masana rejected appellant's plea, telling, the latter that they would talk the matter over in the municipal
building of Indang, Cavite. When Lt. Masana was about to stand up, appellant suddenly pulled out a
double-bladed dagger and with it he stabbed Lt. Masana several times, on the chest and stomach
causing his death several hours thereafter (pp. 4, 5, 6, 7, 8, t.s.n., Oct. 30, 1971; pp. 10, 11, 12, t.s.n.,
Nov. 22, 1971).

While the stabbing incident was taking place, the three companions of Lt. Masana — PC soldier Virgilio
Fidel, Coast Guard Ricardo Ligsa and policeman Felix Mojica — who were all seated at a separate table
about one and one-half (1 1/2) meters away from that occupied by the accused and Lt. Masana stood up
to assist Lt. Masana but Chief of Police Primo Panaligan of Indang, Cavite, who happened to be taking his
lunch in the same restaurant, was quicker than any of them in going near the combatants and embraced
and/or grabbed the accused from behind, and thereafter wrested the dagger from the accused-
appellant. Immediately thereafter, the Chief of Police brought the accused to the municipal building of
Indang, Cavite (p. 8, t.s.n., Oct. 30, 1971; pp. 19-20, t.s.n., Nov. 22, 1971; pp. 26, 28, t.s.n., Jan. 20, 1972),
while the companions of Lt. Masana brought the latter to the V. Luna Hospital in Quezon City where he
expired several hours later as a result of the stab wounds inflicted by the accused (pp. 21, 22, t.s.n., Nov.
22, 1971). Dr. Felicisimo del Rosario, Medico-Legal Officer of the Armed Forces of the Philippines,
conducted an autopsy of the cadaver of Lt. Masana and made the following findings, which are
embodied in his Report, Exhibits "D" and "D-1 " (pp. 88-89, rec.), and which reads as follows:

Postmortem findings.

General:

Fairly developed and nourished male subject in rigor mortis with postmortem lividity over the
dependent portions of the body. Pupils are dilated. Finger and toe tips are pale. There is an exploratory
laparotomy incision at the abdomen, measuring 21 cm. long, 3 cm. left of the anterior midline, with
eighteen (18) stitches applied. There are surgical incisions at the left and right abdomen, measuring 2
cm. long, 9 cm. from the anterior midline and 2 cm. long, 6.5 cm. from the anterior midline with two (2)
stitches applied and a rubber drain sticking out of each, respectively.

TRUNK:

(1) Stab wound, left chest, measuring 0.9 by 0.4 cm., 5 cm. from the anterior midline, 128 cm. above the
heel, 1 cm. deep, directed posterior wards and slightly upwards, passing superficially between muscles
and tissues.
(2) Stab wound, left chest, measuring 1.2 by 0.4 cm., 9 cm. from the anterior midline, 121 cm. above the
heel, 5.5. cm. deep, directed posterior wards, downwards and to the left, lacerating the muscles at the
4th intercostal space.

(3) Stab wound, abdomen, measuring 0.9 by 0.2 cm. just left of the anterior midline, 96 cm. above the
heel 11 cm. deep, directed posterior wards, upwards and to the left, perforating the greater curvature of
the stomach and the gastric vessels, grazing the liver, perforating the diaphragm and infero-medial
border of the lower lobe of the right lung.

(4) Impact abrasion, right scapular region, measuring 2 by 0.2 cm., 12 cm. from the posterior midline,
127 cm. above the heel.

UPPER EXTREMITIES:

(5) Incised wound, anterior aspect of the distal third of the left arm, measuring 3 by 0.5 cm., just medial
to its anterior midline.

(6) Incised wound, posterior aspect of the proximal phalange of the right index finger, measuring 1 by
0.2 cm., just medial to its posterior midline.

Five hundred (500) cc. blood and blood clots accumulated in the thoracic cavity.

There are four (4) sutures applied at a lacerated wound at the greater curvature of the stomach.

There is nothing remarkable in the unaffected organs internally.

REMARKS:

Cause of death is cardio-respiratory arrest due to severe shock and intrathoracic hemorrhage as a result
of multiple stab wounds of the body, perforating the stomach, gastric vessels, liver, diaphragm and
lower lobe of the right lung.

Claiming self-defense, the accused, on the other hand, maintains and relies on the following facts:

At about 1: 00 o'clock in the afternoon of April 24, 1971, the accused and his wife were in a restaurant
near the market place of Indang, Cavite, in order to take their lunch. They had just come from
Mandaluyong, Rizal where they reside (pp. 21, 22, t.s.n., Dec. 10, 1971). Inside the restaurant, the
accused saw three persons to his right, eating, while to his left he saw a person whom he later learned
to be Lt. Guillermo Masana drinking beer alone. While the accused and his wife were waiting for the
food to be served, Lt. Masana approached him and asked him whether he was Floro Rodil and whether
he was a member of the Anti- Smuggling Unit. After receiving an affirmative answer, Lt. Masana invited
the accused to join him in his table. The accused accepted the invitation so the two moved over to the
officer's table where the deceased offered beer to the accused who, however, refused saying he was
still hungry. In the course of their conversation, Lt. Masana told the accused not to report any matter
about smuggling to the PC. The accused informed the officer that he had not reported any smuggling
activity to the authorities. Lt. Masana then asked the accused for his identification card as a member of
the Anti-Smuggling Unit, which the latter did by showing his ID card, Exhibit " 1 ", bearing his picture and
indicating that he was an officer of the Anti-Communist League of the Philippines (pp. 62-68, t.s.n., Dec.
7, 1971).
Thereupon, Lt. Masana told the accused that the latter's ID was fake, and after the accused insisted that
it was genuine, Lt. Masana tried to take it away from the accused when the latter was about to put it
back in his pocket. Because of his refusal to give his Id card to Lt. Masana the latter got mad and, in an
angry tone of voice, demanded: "Will you give it to me or not?" (P. 7 1, Ibid). Still the accused refused to
surrender his ID to Lt. Masana Thereupon, the latter pulled a gun from his waist and hit the accused on
the head with its handle two (2) time Immediately, blood gushed from his head and face. When Lt.
Masana was about to hit the accused for the third time, the latter parried the right hand of the officer,
pulled his "pangsaksak" and stabbed the officer two or three times and then pushed him away from him
and ran out of the restaurant (pp. 74,75,79, Ibid).

The accused went in the direction of the municipal building of Indang, Cavite, where he intended to
surrender to the authorities. But on his way, he met Primo Panaligan, the Chief of Police of Indang,
Cavite. The Chief of Police asked him why his head and face were bloody and he answered that he was
hit by Lt. Masana on the head with a gun (pp. 86, 89, t.s.n., Ibid). If here upon, the Chief of Police asked
somebody to accompany the accused to the municipal building. Arriving there, one Victor, a policeman
of Indang, Cavite, accompanied him to Dr. Ruben Ochoa, whose clinic was just across the street where
the municipal building is located (p. 9, t.s.n., Ibid; p. 4, t.s.n., Dec. 15, 1971). After he was given first aid
treatment, he was brought back by the Indang policeman to the municipal, building where he was
detained for two days before he was picked up by the Philippine Constabulary operatives and
transferred to the 121th PC Headquarters in Tagaytay City (pp. 90-91, t.s.n., Ibid; pp. 4, 39, 40, t.s.n.,
Dec. 10, 1971; p. 6, t.s.n., Dec. 15, 1971; p. 5, t.s.n., Jan. 20, 1972).

After due trial, the court a quo rendered a decision sentencing the accused as heretofore stated.

Self-defense is an affirmative allegation that must be proven by clear, sufficient, satisfactory and
convincing evidence (People vs. Libed 14 SCRA 410, 413; People vs. Mendoza, 13 SCRA 11, 17; People vs.
Solaña, 6 SCRA 60, 65-66; People vs. Davis, 1 SCRA 473; 477; People vs. Paras, 80 Phil. 149; 152; People
vs. Berio 59 Phil. 533; 536; People vs. Gimena, 59 Phil. 509, 514). Moreover, to prove justification, the
accused must rely on the strength of his own evidence and not on the weakness of that of the
prosecution, for even if it were weak, it could not be disbelieved after the accused had admitted the
killing (People vs. Llamera, 51 SCRA 48, 57; People vs. Talaboc, 30 SCRA 87; People vs. Navarro, 25 SCRA
491; 496; People vs. Solaña, 6 SCRA 60, 65-66; People vs. Espenilla, 62 Phil. 264, 270; People vs.
Apolinario, 58 Phil 586-588; People vs. Ansoyon, 65 Phil. 7 7 2). The rationale for this jurisprudence is
that, having admitted the wounding or killing of the victim, the accused must be held criminally liable for
the crime unless he establishes to the satisfaction of the court the fact of legitimate self-defense.

In the case at bar, the accused contends that it was the deceased, Lt. Guillermo Masana who committed
unlawful aggression when the latter hit him on his head with the handle of his gun after he refused to
surrender his (accused's) ID to him.

This claim does not merit belief.

The accused claims that after he refused to give his ID to the deceased because the same was his and he
also spent money for it, the latter hit him with the handle of his (deceased's) gun. WE cannot perceive
how this refusal of the accused could have provoked or enraged the deceased to the extent of initiating
the aggression by drawing his pistol and hitting the accused with its butt, knowing that the accused was
no longer armed after the latter's gun had earlier been taken away from him. Besides, an agent of
authority, like the deceased, ordinarily is not authorized to use force, except in an extreme case when
he is attacked, or subject to active resistance, and finds no other way to comply with his duty or cause
himself to be obeyed by the offender. Furthermore, the records reveal an unrebutted fact to the effect
that the deceased was unarmed when the incident happened, he being then on leave. As a matter of
fact, he was then in civilian clothing (pp. 29-30, t.s.n., Jan. 20, 1972). WE are, therefore, inclined to
believe that it was the accused who had every reason to be resentful of the deceased and to be enraged
after the deceased refused to heed his plea that his gun be returned him; because he might be
prosecuted for illegal possession of firearms. Accordingly, We are constrained to draw the inescapable
conclusion that it was the accused, not the deceased, who initiated the aggression which ended in the
fatal wounding of the deceased resulting in his death.

The accused further claims that he was hit twice by the deceased before he parried the third blow. This
claim is belied by the record. During the trial, the court a quo asked the accused to show the scar
produced by the injuries inflicted by the deceased when he refused to give his ID thus —

Court

Q Where is that scar?

(Witness showing his right side of the head to the Court)"

[pp. 86,88, t.s.n., Dec. 7, 1971].

Dr. Ruben Ochoa who treated the injuries of the accused corroborated the foregoing testimony in his
medical findings, Exhibit "3", which reads:

Injuries:

(1) lacerated wound 1/2 inch, parietal region.

(2) lacerated wound, 1 1/2 inches, rt ear lobe

(3) contusion, right mastoid area [Exh. "3"; p. 116, rec] .

The record reveals that the deceased was a right-handed person (pp. 76-77, t.s.n., Dec. 7, 1971). It also
shows that before the stabbing incident took place, the deceased and the accused were facing each
other. If that was the case, and considering that the deceased was, according to the accused, holding
the gun with his right hand, why was the accused hit on the right side of his head and and on his right
ear lobe WE find that this particular claim of the accused that it was the deceased who first hit him twice
with the handle of his gun before parrying the third blow and then stabbing the latter is definitely belied
not only by the location of the scar but also by the medical finding of Dr. Ochoa aforequoted. Indeed, if
the protagonists were facing each other, and it appearing that they were both right- handed (p. 13,
t.s.n., Nov. 22, 1971), the blow given by one, if not parried by the other, would perforce land on the left,
and not on the right, side of the body of the recipient of the blow. WE, therefore, reject such claim for
being improbable, the same being contrary to the natural course of human behavior.
The fact of the matter, however, as testified to by state witness PC soldier Virgilio Fidel, is that the victim
parried with both hands the thrust of the appellant with such force that appellant bumped his head on
the edge of the table causing blood to ooze from the resulting injury on his head.

When the accused allegedly met the Chief of Police of Indang, Cavite, on his way to the municipal
building from the scene of the stabbing incident purportedly to surrender to the authorities, he claims
that he told the Chief of Police that Lt. Masana hit him on his head with the handle of his (Masana's)
gun. On his return from the clinic of Dr. Ochoa where his injuries were treated, he was detained in the
municipal building of Indang, Cavite for two days before he was transferred to the Tagaytay PC
Headquarters. During all this time, he did not give any written statement, much less inform any PC or
other police agency that he stabbed Lt. Masana in self-defense. It was only on July 8, 1971. after the
lapse of more than two and one-half (2 1/2) months that he claimed self-defense during the preliminary
investigation of the case before the municipal judge of Indang, Cavite (pp. 44, t.s.n., Dec. 10, 1971). If
the accused had really acted in self-defense, he would surely have so informed the Chief of Police at the
first opportunity. He only allegedly told the Chief of Police, who allegedly asked him why his head and
face were bloody, that Lt. Masana hit him with a gun. He did not tell the Police Chief that he was
surrendering for stabbing the deceased in self-defense. This claim of the accused made before the
municipal judge of Indang, Cavite, on July 8, 1971 aforesaid constitutes an exculpatory statement made
so long after the crime was committed on April 24, 1971. Such claim does not deserve credence since
the same is obviously an afterthought, which cannot overthrow the straightforward testimony of
prosecution witnesses PC soldier Virgilio Fidel and Coast Guard serviceman Ricardo Ligsa both
disinterested and unbiased witnesses, whose testimony as peace officers, in the absence of any showing
as to any motive that would impel them to distort the truth, must be afforded full faith and credit as a
whole.

The fact that the chief of police detained the accused that same day after he was treated by Dr. Ochoa,
confirms the testimony of the state witnesses that the police was present during the incident between
the appellant and the victim and that the police chief embraced appellant and grabbed the knife from
appellant, whom he thereafter brought to the municipal building.

II

Was the crime committed murder or homicide merely or murder or homicide complexed with assault
upon an agent of authority?

According to the Solicitor General, the crime committed was murder because "it was established by the
prosecution that during the stabbing incident, appellant suddenly and without giving the victim a chance
to defend himself, stabbed the latter several times with a dagger, inflicting upon mortal wounds on the
chest and stomach. ...Needless to say, such a sudden and unexpected attack with a deadly weapon on
an unarmed and unsuspecting victim, which made it impossible for the latter to flee or defend himself
before the fatal blow is delivered, is alevosia or treachery" (p. 14, Appellee's brief).

In support of his contention, the Solicitor General cited the cases of U.S. vs. Cornejo (28 Phil.
475); People vs. Palomo (43 O.G. No. 10, 4190).

WE do not agree with the Solicitor General. Alevosia or treachery is belied by the following testimony of
Virgilio Fidel, star witness for the prosecution:
COURT

Q What is the truth?

A The truth is that when I saw that Floro Rodil stabbed Lt. Guillermo Masana, Masana parried him and
his head (Rodil's head) bumped on the edge of a table; that is why he sustained an injury and blood
oozed from his head (pp. 8-9, t.s.n., Jan. 20, 1972; emphasis supplied).

Then, on cross-examination, the same witness testified:

ATTY. MUÑOZ

Q You said that Floro Rodil's head was bumped on the edge of a table and you saw blood oozing from
his head, is that correct?

A Yes, sir.

Q Who bumped the head of Rodil on the table?

A When Masana parried his stab with his hands he accidentally bumped his head on the table.

Q Is it not a fact that Floro Rodil is much bigger than Lt. Masana

A Yes, sir.

Q You mean, by simple parrying, Floro Rodil was pushed to the extent that he bumped his head on the
table?

A The force of Lt. Masana might have been strong in parrying.

xxx xxx xxx

Q When the head of Rodil bumped on the table, was Lt. Masana already stabbed?

A It could be that he was already stabbed or he was not yet stabbed.

pp 30-31, 33, t.s.n., Jan. 20, 1972; emphasis supplied].

After a thorough analysis of the aforequoted portions of the testimony of Virgilio Fidel, one of the
prosecution witnesses, WE can only conclude that the assailant and the victim were indeed face to face
when the stabbing took place. As such the attack was not treacherous because the victim was able to
ward off the same with his hand. As a matter of fact, the force he used in warding off the attack was so
strong that the accused bumped his head on a table nearby, causing injuries to him which necessitated
medical treatment. In short, the attack on the victim was made on the spur of the moment. The
suddenness of the attack does not by itself suffice to support a finding of treachery (People vs. Torejas,
et al., 43 SCRA 158, 167). Besides, the record failed to show that the accused made any preparation to
kill his victim so as to insure the commission of the crime, making it at the same time possible or hard
for the victim to defend himself or retaliate (People vs. Saez, 1 11 Phil. 546, 553, citing the case of
People vs. Tumaob, 83 Phil. 738). Neither does it show that the accused employed means directly and
specially tending to insure the killing without risk to himself. On the contrary, it shows that the accused
was easily within striking distance of his three companions, two of whom were police officers.
Furthermore, there was an altercation between the accused and the victim about the confiscation by
the latter of the gun belonging to the former, and at the moment when the victim was about to stand
up, the accused drew a knife from his pocket and with it stabbed the victim in the chest. Clearly,
therefore, the impelling motive for the attack by appellant on his victim was the latter's performance of
official duty, which the former resented. This kind of evidence does not clearly show the presence of
treachery in the commission of the crime. Alevosia is not to be presumed, but must be proved as
conclusively as the act which it qualifies (People vs. Abril, 51 Phil. 670, 675). This is so because in the
explicit language of the Revised Penal Code, alevosia or treachery exists when the offender commits any
of the crimes against the person, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself arising from the defense which
the offended party might make [Art. 14, par. 16, Revised Penal Code].

While the evidence definitely demonstrated that appellant knew because the victim, who was in civilian
clothing, told him that he was an agent of a person in authority; he cannot be convicted of the complex
crime of homicide with assault upon an agent of a person in authority, for the simple reason that the
information does not allege the fact that the accused then knew that, before or at the time of the
assault, the victim was an agent of a person in authority. The information simply alleges that appellant
did attack and stab PC Lt. Guillermo Masana while the latter was in the performance of his official
duties, ..." Such an allegation cannot be an adequate substitute for the essential averment to justify a
conviction of the complex crime, which necessarily requires the imposition of the maximum period of
the penalty prescribed for the graver offense. Like a qualifying circumstance, such knowledge must be
expressly and specifically averred in the information; otherwise, in the absence of such allegation, the
required knowledge, like a qualifying circumstance, although proven, would only be appreciated as a
generic aggravating circumstance. Applying this principle, the attack on the victim, who was known to
the appellant as a peace officer, could be considered only as aggravating, being "in contempt or with
insult to the public authorities" (Par. 1, Art. XIV of the Revised Penal Code), or as an "insult or in
disregard of the respect due the offended party on account of his rank, ..." (par. 3, Art. XIV, Revised
Penal Code).

It is essential that the accused must have knowledge that the person attacked was a person in authority
or his agent in the exercise of his duties, because the accused must have the intention to offend, injure,
or assault the offended party as a person in authority or agent of a person in authority (People vs.
Villaseñor 35 SCRA 460 [19701, People vs. Rellin 72 Phil. 1038 [1947]; US vs. Alvear et al., 35 Phil. 626
[1916]).

In the case of People vs. Balbar (21 SCRA 1119, Nov. 29, 1967), it was held that failure to expressly
alleged in the information that the accused had knowledge that the person attacked was a person in
authority does not render the information defective so long as there are facts alleged therein from
which it can be implied that the accused knew that the person attacked was a person in authority. Thus,
the information for Direct Assault upon a person in authority reads as follows:

The undersigned Assistant Provincial Fiscal accuses Tiburcio Balbar of the crime of Assault upon a Person
in Authority, committed as follows:

That on or about the 29th day of August, 1960, in Barrio Cumba, Municipality of Lian, Province of
Batangas, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused did
then and there wilfully, unlawfully and feloniously assault Miss Ester Gonzales, a public school teacher in
the school bonding of Lian, duly qualified and appointed as such and while in the performance of her
official duties or on the occasion therefor, by then and there pulling his dagger, embraced and kissed.
and repeatedly trying to embrace and kiss the said teacher, Miss Ester Gonzales. That the crime was
committed with the aggravating circumstances of having committed it inside the school building and
during school classes.

Contrary to law.

And the ruling of the Court was:

Direct assault is committed 'by any person or persons who, without a public uprising, ... shall attack,
employ force, or seriously intimidate or resist any person in authority or any of his agents, while
engaged in the performance of official duties, or on occasion of such performance' (See Art. 148,
Revised Penal Code).

By express provision of law (Com. Act No. 578, now part of Article 152 of the Revised Penal Code, as
amended by Republic Act No. 1978), "teachers, professors, and persons charged with the supervision of
public or duly recognized private schools, colleges and universities shall be deemed persons in authority,
in applying the provisions of article 148." This special classification is obviously intended to give teachers
protection, dignity, and respect while in the performance of their official duties. The lower court,
however, dismissed the information on the ground that there is no express allegation in the information
that the accused had knowledge that the person attacked was a person in authority. This is clearly
erroneous.

Complainant was a teacher. The information sufficiently alleges that the accused knew that fact, since
she was in her classroom and engaged in the performance of her duties. He therefore knew that she was
a person in authority, as she was so by specific provision of law. It matters not that such knowledge on
his part is not expressly alleged, complainant's status as a person in authority being a matter of law and
not of fact, ignorance thereof could not excuse non- compliance on his part (Article 3, Civil Code). This
article applies to all kinds of domestic laws, whether civil or penal (De Luna vs. Linatoc, 74 Phil 15) and
whether substantive or remedial (Zulueta vs. Zulueta, 1 Phil. 254) for reasons of expediency, policy and
necessity.

But, in the case of People vs. CFI of Quezon, Branch V (68 SCRA 305, Nov. 28, 1975), the information for
Direct Assault reads:

That on or about the 17th day of January, 1974, at Barrio Languyin, Municipality of Potillo, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
Ernesto Busto, Paulo Coralde, Dony Grande and Jose Astjada each of whom was armed with a piece of
wood, except Paulo Coraide conspiring and confederating together and mutually helping one another,
did then and there wilfully, unlawfully and feloniously attack, assault, box and strike with said pieces of
wood one Rufino Camonias a councilman of barrio Languyin of said municipality, duly elected and
qualified as such while said councilman was engaged in the actual performance of his duties.

The trial court dismissed the same on the ground that:

Of importance in this case is the lack of allegation in the complaint or in the information that the
offended party was an agent of a person in authority and that such fact was known to the accused. The
absence of such allegation is fatal in this case."
The People appealed to this Court through a petition for review on certiorari.

This Court held that the fiscal's proper course of action is not a petition for review on certiorari but the
refiling of a valid information against the accused, for the following considerations:

The Solicitor General in his comment of November 4, 1975 duly observed that '(I)t is patent that the
acquittal of the accused herein is not on the merits. There is want of factual finding upon which their
conviction or acquittal could have been based.'

It need only be observed that contrary to the fiscal's contention, the information was deficient in that it
did not allege an essential element of the crime of direct assault that the accused had knowledge of or
knew the position of authority held by the person attacked, viz. that of a barrio councilman (and hence
the agent of a person in authority under Article 152 of the Revised Penal Code as amended by Republic
Act No. 1978) [See U.S. vs. Alvear 35 Phil. 626; People vs. Rellin 77 Phil. 1038; Vol. 11, Padilla's Revised
Penal Code, 10th Ed., p. 225].

What was held in People vs. Balbar 21 SCRA, 119,1123, cited by the fiscal is that it is sufficient that the
information alleged that the accused knew the position of authority, held by the offended party, in that
case a public school teacher, then engaged in the performance of her official duties, and that it is not
necessary to allege further that the accused also knew that such position was that of a person in
authority, since 'this is a matter of law' thus:

Complainant was a teacher. The information sufficiently alleges that the accused knew that fact, since
she was in her classroom and engaged in the performance of her duties. He therefore knew that she was
a person in authority, as she was so by specific provision of law. It matters not that such knowledge on
`his part is not expressly alleged, complainant's status as a person in authority being a matter of law and
not of fact, ignorance whereof could not excuse non-compliance on his part (Article 3, Civil Code). This
article applies to all kinds of domestic laws, whether civil or penal (De Luna vs. Linatoc, 74 Phil. 15) and
whether substantive or remedial (Zulueta vs. Zulueta, 1 Phil, 254) for reasons of expediency, policy and
necessity.

Since the 'decision' of acquittal was really a mere dismissal of the information for failure to charge an
offense and was not a decision on the merits with factual findings as per the trial judge's own disavowal
it is patent that the fiscal's proper course is not the present petition but the refiling of a valid
information against respondents-accused, as herein indicated.

ACCORDINGLY, the petition is dismissed without prejudice to the refiling of a valid information against
respondents-accused as hereinabove indicated (emphasis supplied).

The ruling in the aforementioned case of People vs. CFI of Quezon, etc., supra, applies to the instant
case; because the information in the former is strikingly similar to the information in the latter and does
not allege facts from which inference can be deduced that the accused knew that the person assaulted
is a person, or an agent of a person, in authority.

The aggravating circumstance of disregard of rank should be appreciated because it is obvious that the
victim, PC. Lt. Masana Identified himself as a PC officer to the accused who is merely a member of the
Anti-Smuggling Unit and therefore inferior both in rank and social status to the victim.
The term "rank" should be given its plain, ordinary meaning, and as such, refers to a high social position
or standing as a grade in the armed forces (Webster's Third New International Dictionary of the English
Language Unabridged, p. 1881); or to a graded official standing or social position or station (75 CJS 458);
or to the order or place in which said officers are placed in the army and navy in relation to others
(Encyclopedic Law Dictionary, Third Edition, Walter A. Shumaker and George Foster Longsdorf, p. 90); or
to the designation or title of distinction conferred upon an officer in order to fix his relative position in
reference to other officers in matters of privileges, precedence, and sometimes of command or by which
to determine his pay and emoluments as in the case of army staff officers (Bouvier's Law Dictionary,
Third Edition, p. 2804); or to a grade or official standing, relative position in civil or social life, or in any
scale of comparison, status, grade, including its grade, status or scale of comparison within a position
(Vol. 36, Words and Phrases, Permanent Edition, p. 100).

Thus, rank aggravated the killing of a staff sergeant by his corporal (People vs. Mil 92 SCRA 89, 105-106,
July 30, 1979), the killing of the Assistant Chief of Personnel Transaction of the Civil Service Commission
by a clerk therein (People vs. Benito, 62 SCRA 351, 357-358, Feb. 13, 1975), the murder by a pupil of his
teacher (U.S. vs. Cabling, 7 Phil. 469. 474; People vs. Aragon & Lopez, 107 Phil. 706, 709), the murder of
a municipal mayor (People vs. Lopez de Leon, et al., 69 Phil. 298), the murder -of a city chief of police by
the chief of the secret service division (People vs. Hollero 88 Phil. 167), assault upon a 66-year old
District Judge of the Court of First Instance by a justice of the peace (People vs. Torrecarreori CA 52 OG
7644), the killing of a Spanish consul by his subordinate — a mere chancellor (People vs. Godinez, 106
Phil. 597, 606607), and the killing of an army general (People vs. Torres, et al., L-4642, May 29, 1953).

As explained by Mr. Justice Mariano Albert, then of the Court of Appeals, those "generally considered of
high station in life, on account of their rank (as well as age or sex), deserve to be respected. Therefore,
whenever there is a difference in social condition between the offender and the offended party, this
aggravating circumstance sometimes is present" (Albert M.A. — The Revised Penal Code Annotated,
1946 Ed., p. 109).

The difference in official or social status between a P.C. lieutenant and a mere member of an anti-
smuggling unit, is patent.

If the accused herein were charged with the complex crime of murder with assault against an agent of a
person in authority, and not merely murder, then the aggravating circumstance of disregard of rank or
contempt of or insult to public authority cannot be appreciated as aggravating because either
circumstance is inherent in the charge of assault against a person in authority or an agent of a person in
authority. But in the case at bar, the appellant is accused of murder only. Consequently, either
aggravating circumstance should be considered in the imposition of the penalty.

Thus, in the following cases where the charge was merely murder or frustrated murder, the aggravating
circumstance of disregard of rank was appreciated:

(1) People vs. Benito, supra — the appellant, a clerk in the Civil Service Commission, was charged with
and convicted of the murder of the assistant chief of the personnel transaction of the said Commission;

(2) People vs. Torres, et al., supra — the appellants were charged with and convicted of murder for the
death of Army Col. Valentin Salgado and attempted murder for the injuries inflicted on Army Gen.
Mariano Castaneda;
(3) People vs. Valeriano, et al. — appellants were accused and convicted of robbery with homicide for
the killing of District Judge Bautista of the Court of First Instance of Pampanga [90 Phil. 15, 34-35]; and

(4) People vs. Hollero supra — where the accused chief of the Secret Division of the Bacolod City Police
Department was convicted of murder for the killing of the chief of police.

The aggravating circumstance of contempt of, or insult to, public authority under paragraph 2 of Article
14 of the Revised Penal Code can likewise be appreciated in the case at bar.

The evidence of the prosecution clearly established that Chief of Police Primo Panaligan of Indang was
present as he was taking his lunch in the same restaurant when the incident occurred.

As a matter of fact, the said chief of police was the one who embraced or grabbed the accused from
behind, wrested the dagger from him and thereafter brought him to the municipal building of Indang.
And appellant admittedly knew him even then as the town chief of police, although he now claims that
he went to the municipal building to surrender to the chief of police who was not allegedly in the
restaurant during the incident.

While it is true that in the cases of U.S. vs. Rodriguez, et al. (19 Phil. 150, 157-158), People vs. Siojo (61
Phil. 307, 317), and People vs. Verzo (21 SCRA 1403), this Court ruled that the term public authority
refers to a person in authority and that a PC lieutenant or town chief of police is not a public
authority but merely an agent of a person in authority; there is need of re-examining such a ruling since
it is not justified by the employment of the term public authority in aforesaid paragraph 2 of Article 14
instead of the term person in authority which is specifically used in Articles 148 and 152 of the Revised
Penal Code. There is no extended reasoning of the doctrine enunciated in the aforesaid three (3) cases
why the phrase public authority should comprehend only persons in authority. The lawmaker could have
easily utilized the term "persons in authority" in the aforesaid paragraph 2 of Article 14 in much the
same way that it employed the said phrase in Articles 148 and 1452. The lawmaker must have intended
a different meaning for the term public authority, which may however include, but not limited
to persons in authority.

Under the decided cases, a municipal mayor, barrio captain, barrio lieutenant or barangay captain is a
person in authority or a public authority. Even a public school teacher is now considered a person in
authority under CA 578 amending Article 152 of the Revised Penal Code (Sarcepudes vs. People, 90 Phil
228). So is the town municipal health officer (People vs. Quebral et al., 73 Phil 640), as well as a nurse, a
municipal councilor or an agent of the Bureau of Internal Revenue (People vs. Yosoya, CA-GR No. 8522-
R, May 26, 1955; People vs. Reyes, et al O.G.S. 11 p. 24).

The chief of police should therefore be considered a public authority or a person in authority; for he is
vested with jurisdiction or authority to maintain peace and order and is specifically duty bound to
prosecute and to apprehend violators of the laws and municipal ordinances, more than the
aforementioned officials who cannot prosecute and who are not even enjoined to arrest malefactors
although specifically mentioned as persons in authority by the decided cases and by Article 152 of the
Revised Penal Code as amended by R.A. 1978 of June 22, 1957. The town chief of police heads and
supervises the entire police force in the municipality as well as exercises his authority over the entire
territory of the municipality, which is patently greater than and includes the school premises or the
town clinic or barrio, to which small area the authority or jurisdiction of the teacher, nurse, or barrio
lieutenant, respectively, is limited.

With two aggravating circumstances and no mitigating circumstance, the appellant should therefore be
condemned to suffer the maximum period of reclusion temporal the penalty prescribed for homicide.

WHEREFORE, HAVING BEEN FOUND GUILTY BEYOND REASONABLE DOUBT OF HOMICIDE AGGRAVATED
BY CONTEMPT FOR OR INSULT TO A PUBLIC AUTHORITY OR DISREGARD OF THE RESPECT DUE THE
OFFENDED PARTY ON ACCOUNT OF HIS RANK, APPELLANT FLORO RODIL IS HEREBY SENTENCED TO
SUFFER AN INDETERMINATE TERM OF IMPRISONMENT RANGING FROM 12 YEARS OF RECLUSION
TEMPORAL AS MAXIMUM.

THUS MODIFIED, THE JUDGMENT APPEALED FROM IS HEREBY AFFIRMED IN ALL OTHER RESPECTS.

Aquino, Concepcion Jr., Fernandez and Guerrero, JJ., concur.

Fernando, C.J., concur in the result.

Separate Opinions

TEEHANKEE, J., concurring:

I concur with the judgment's imposition of the maximum penalty for homicide, although I join Mme.
Justice Herrera's partial dissent insofar as she holds that the aggravating circumstance of contempt of or
insult to the public authorities may not be appreciated. However, disregard of rank was properly
appreciated as a generic aggravating circumstance, and hence the maximum penalty for homicide is
properly imposed in the absence of any mitigating circumstance.

Barredo, J., concur.

MELENCIO-HERRERA, J., dissenting:

I believe that neither the aggravating circumstance of contempt of, or insult to the public authorities
under Article 14, par. 2 of the Revised Penal Code, nor that of insult or disregard of the respect due to
the offended party on account of his rank under Article 14, par. 3 of the same Code, is applicable to the
present case.

1. For the circumstance of contempt of, or with insult to, public authorities to be considered
aggravating, it is essential (a) that the crime is committed in the presence of a public authority, not a
mere agent of the authorities (People vs. Siojo, 61 Phil. 307 [19351; People vs. Verzo, et al 21 SCRA 1403
[1967]; and (b) that the public authority is engaged in the exercise of his functions and is not the person
against whom the crime is committed (People vs. Siojo, citing U.S. vs. Rodriguez, 19 Phil. 150 [191];
Decision of the Supreme Court of Spain dated January 24, 1881, 1 Viada 310), nor the one injured by the
commission of the offense (People vs. Pardo, 79 Phil. 568 [1947]).
In this case, Lt. Guillermo Masana of the Philippine Constabulary is not a public authority nor a person in
authority as these terms are defined by Article 152, par. 1 of the Revised Penal Code for he is not
directly vested with jurisdiction, that is, power or authority to govern and execute the laws or to hear
and decide a cause; he is a mere agent of a person in authority as defined by Article 152, par. 2 of the
Revised Penal Code, he being a member of the Philippine Constabulary which is a government military
agency in charge of the maintenance of public order and the protection and security of fife and
property. In fact, the Decision itself calls him an agent of a person in authority (p. 13).

And even if Lt. Masana were a person in authority, this aggravating circumstance cannot be taken into
account because it is he himself who is the offended party (People vs. Siojo, supra).

2. Neither can the second circumstance, that of disregard of the respect due to rank, be made to apply.
It is not the existence alone of rank of the offended party that determines the presence of this
aggravating circumstance. There must be a difference in the social condition of the offender and the
offended party.

El concepto de dignidad en su aspects general no esta constituido solo por el caracter de authoridad
solo por la funcion publica o cargo que desempene el ofendido sino tambien pro la diferencia de
condicion social entre la victims y el ofensor ... (Cuello Calon, Derecho Penal Decimotercera edicion
Tomo I, p. 554).

Where the offender and the offended party are of the same rank, this aggravating circumstance does
not apply.

Las personas constituidas en dignidad, y que por esta razon merecen mayor respeto, son las que
generalmente se consideran por todo el mundo como superiores o mas elevadas que el que comets el
delito: tales son los sacerdotes y las Autoridades respecto de los particulares, los maestros con relacion
a sus discipulos, los guardadores respecto de sus pupilos, etc. Siempre, pues, que hay diferencia de
condicion social entre el ofensor y el ofendido, concurrira la agravante de este numero, mas no cuando
hay igualdad Asi pues, si un Sacerdote o un Magistrado calumnian a otro Sacerdote o Magistrado
respectivamente, no existira la circunstancia de agravacion que comentamos. (Viada Codigo Penal
Reformado de 1870, Tomo II, p. 316).

The provision contemplates such a different in rank as that of a teacher where the offender is a pupil
(U.S. vs. Cabiling, 7 Phil. 469 [1907]) (although a teacher is now considered a person in authority);
a Judge where the offender is a private citizen (People vs. Valeriano, et al., 90 Phil. 15 [1951]);
a General of the Philippine Army where the offender is a private citizen (People vs. Torres, et al., L-
4642, May 29, 1953); a Chief of Police, a superior of the accused, who was chief of a division of the
secret police (People vs. Hollero 88 Phil. 167 [1951]); a ranking official of the Civil Service Commission
where the offender is a clerk thereat (People vs. Benito, 74 SCRA 271 [1976]); a Consul who was killed by
a chancellor in the Consulate, who is a subordinate (People vs. Martinez Godinez, 106 Phil 597 [1959]).

In the case at bar, the difference in the social condition and rank of the victim, a Lieutenant in the
Philippine Constabulary, and that of the accused, who is a member of an anti-smuggling unit and an
officer of the Anti-Communist League of the Philippines, is not of such a degree as to justify
consideration of disrespect of rank due to the offended party as an aggravating circumstance.
In the absence of the two aggravating circumstances discussed above or of any mitigating circumstance,
the penalty imposable is reclusion temporal in its medium period, and the accused should be sentenced
to an indeterminate term of imprisonment ranging from ten (10) years of prision mayor, as minimum, to
seventeen (17) years of reclusion temporal as maximum.

G.R. No. L-40330 November 20, 1978

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADO DANIEL alias "AMADO ATO", accused-appellant.

Eraulio D. Yaranon for appellant.

Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Rosalio A.
de Leon for appellee.

MUÑOZ PALMA, J:

This case originated from the Court of First Instance of Baguio City by virtue of a complaint filed by 13-
year old Margarita Paleng accusing Amado Daniel alias "Amado Ato" of rape alleged to have been
committed as follows:

That on or about the 20th day of September, 1965, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused, armed with a sharp instrument and by means of
force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of
the undersignedcomplaint, against her will, and in her own room situated at No. 25 Interior, Pinsao,
Guisad, Baguio City.

That in the commission of the crime, the aggravating circumstance that it was committed in the dwelling
of the offended party, the latter not having givenprovocation for it, is present. (p. 1, CFI record)

The trial court, presided then by Hon. Feliciano Belmonte, after due trial rendered its decision on May
30, 1966, finding the accused guilty and sentencing him to suffer "not more than TWELVE (12) YEARS
and ONE (1) DAY of reclusion temporal and not less than SIX (6) YEARS and ONE (1) DAY of prision
mayor, and to pay the costs." 1

His motion for reconsideration and new trial having been denied, accused filed a notice of appeal;
forthwith the case was forwarded to the Court of Appeals.

On September 23, 1974, the Court of Appeals through its Tenth Division rendered a decision the
dispositive portion of which follows:
PREMISES CONSIDERED, We find that the guilt of the accused Amado Daniel has been proven beyond
reasonable doubt, and he should accordingly suffer the penalty for the crime herein charged.

We find, however, that the sentence imposed the accused in the judgment appealed from is not in
accordance with law.

Republic Act No. 4111, which took effect on June 20, 1964, amended Article 335 of the Revised Penal
Code, providing that —

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.

Under Section 17 of Chapter 11 of the Judiciary Act of 1948 (Republic Act No. 296, as amended) —

The Supreme Court shall have exclusive jurisdiction to review, revise, reverse, modify or affirm on
appeal, as the law or rules of court may provide, final judgments and decrees of inferior courts as herein
provided, in —

(1) All criminal cases involving offenses for which the penalty imposed is death or life imprisonment; ...

WHEREFORE, We hereby certify this case to the Supreme Court for appropriate further proceedings
pursuant to law. 2

By virtue of the foregoing decision of the Court of Appeals the case was certified to this Court and in a
Resolution of March 6, 1975, the same was ordered docketed. 3

Preliminary question —

The certification of the case to Us poses a preliminary question which strikes at the very root of a long
standing practice and procedure evoked for the last forty years or so since the creation of the Court of
Appeals. 4

Is the Supreme Court with jurisdiction to act on an appeal in a criminal case where the offense is
punishable by reclusion perpetua or death certified to it by the Court of Appeals with findings of facts
and of the guilt of the accused, but without imposing the penalty of reclusion perpetua or death on the
appellant pursuant to Rule 124, Section 12, paragraph 2, of the Rules of Court?5

Mr. Chief Justice Fred Ruiz Castro, joined by other ,Justices, expresses the view that for this Court to
acquire jurisdiction over the appeal, the decision before Us must have imposed on the appellant the
penalty either of reclusion perpetua or death as the facts warranted.

The rest of the Justices together with the writer of this Opinion, believe otherwise and hold the view
that the dispositive portion of the decision as written and rendered is in accordance with the
Constitution and the law, and vests jurisdiction on the Court to act on the appeal.

A. In People v. Ramos, decided on November 28, 1947, 6 a case was certified to this Court by the Court
of Appeals without findings of facts and simply on the ground that it was "on the opinion that the
penalty that should be imposed ill this case is reclusion perpetua, as recommended by the Solicitor-
General, and not reclusion temporal, as imposed by tile lower court." The question arose as to the
proper procedure to be followed by the appellate court in certifying cases to this Court under Section
145-K of the Revised Administrative Code as amended by Republic Act No. 52 which read:

Whenever in any criminal cases submitted to a division the said division should be of the opinion that
the penalty of death or life imprisonment should be imposed, the said Court shall refrain from entering
judgment thereon and shall forthwith certify the case to the Supreme Court for final determination, as if
the case had been brought before it on appeal.

In disposing of the issue several matters came up which evoked different, and We may say, strong
reactions from the Justices then composing the Court, but for brevity we shall not dwell on them. Simply
stated, it is was ruled that the Court of Appeals was duty bound to make its findings of facts to support
its opinion that the penalty to the imposed upon the appellant was either life imprisonment or death so
as to bring the case within the jurisdiction of this Court.

From the Resolution written for the Court by then Mr. Chief Justice Manuel V. Moran, We quoted the
following pertinent portions:

The jurisdiction of this Court predicated upon the opinion of the Court of Appeals, as provided in the
above-quoted provisions of the law, must of necessity defend upon the correctness of that opi nion
There is nothing in the law precluding this Court from exercising ing its authority to pass upon such
question which concerns its own jurisdiction. And in order that this Court may exercise its power of
review the Court of appeals is bound to make in its order f certification such findings of facts as are
necessary to support its conclusion that either life imprisonment or death is the penalty to be imposed.
This is indeed covered by Rule 52, section 3, which provides th where a court to which an appeal has
been taken has no appellate jurisdiction over lic case and it certifies the same to the proper court, it
must do so "with a specific and clear statement of grounds therefor." the requirement of with and
specific grounds is precisely a device to prevent erroneous transmissions of jurisdiction from a lower to
a superior court.

Furthermore, the words "shall refrain from entering judgment thereon" appearing in the provision
above quoted, are sufficient indication that the Court of Appeals, at the time of certifying the case to
this Court, had already examined the evidence and was ready to render judgment on the merits, but
having found from the facts established by proof that the penalty to be imposed is either death or life
imprisonment, instead of entering judgment thereon , it certifies the case to the Supreme Court for final
determination. Since the Certification is the only ground for determining our jurisdiction, it must contain
not only conclusions of law but also findings of fact, the latter being more important than the former for
they supply the real basis for determining jurisdiction ...

The instant case cannot be compared with cases coming directly from a Court of First Instance wherein
either life imprisonment or death penalty is imposed, for in such cases, if we assume jurisdiction even
where the judgment appears to be erroneous on its face, it is because the Court of First Instance has
already exhausted its jurisdiction by rendering judgment on the merits containing both findings of fact
and conclusions of law, and under such circumstance it is more practical for the administration of the
law that this Court should exercise its appellate jurisdiction by examining the evidence and correcting all
errors both of fact and of law that might have been committed by the trial court. But here, the Court of
Appeals is refraining from rendering judgment on the merits and is refusing to complete the exercise of
appellate jurisdiction because it believes that such jurisdiction belongs to the Supreme Court and thus, it
proceeds to transfer the case to this Court. lt is in that transfer that we believe we may intervene in
order to prevent an erroneous transfer,

xxx xxx xxx

Section 145-K of the Administrative Code is merely a method designed to make effective the appellate
jurisdiction of both the Court of Appeals and this Court, as defined by law. According to the law of
jurisdiction (section 138, Revised Administrative Code, as amended by Commonwealth Acts Nos. 3 and
259), offenses, for which the penalty imposed is death or life imprisonment, including offenses arising
from the same occurrence or committed on the same occasion, come within the appellate jurisdiction of
the Supreme Court, and the remaining offenses fall within the appellate jurisdiction of the Court of
Appeals ...

We are of the opinion and so hold, therefore, that in a case like this, the Court of Appeals, in certifying it
to this Court, must state its findings of fact necessary to support its conclusion that the penalty to be
imposed is either life imprisonment or death. While this Court will not review the findings of fact, it will
pass upon the correctness of the legal conclusions derived therefrom. And if this Court finds the
conclusions to be correct, it will assume jurisdiction. If it finds them to be wrong, the case will be
returned to the Court of Appeals. (pp. 613-616, supra, emphasis supplied)

In Ramos, the case was accepted because the Court considered that there was substantial compliance
with the law as the order of certification made reference to the opinion and recommendation of the
Solicitor General whose brief contained sufficient findings of fact to warrant the conclusion that life
imprisonment should be imposed upon the appellant. Justices Paras, Feria, Pablo, Hilado and Briones
concurred in the Resolution.

Justice Gregorio Perfecto in a separate opinion concurred with the principle that the Court of Appeals is
bound to make its findings of fact and study the evidence so as to determine whether the appellant is
guilty or not, but dissented from that portion of the Resolution which accepted the case as he was of the
opinion that the case should have been remanded to the Court of Appeals.7

Justice Pedro Tuason wrote a separate opinion and dissented from the majority insofar as it held that it
was necessary for the Court of Appeals or a division thereof to state the reasons for its opinion that
death penalty or life imprisonment should be imposed. He particularly dissented from statements that if
this Court found the conclusions of the Court of Appeals to be wrong, the case should be returned to the
Court of Appeals for further proceedings. According to Justice Tuason when a case is certified to this
Court it is placed, by force of the Court of Appeals' opinion, within the jurisdiction of the Supreme Court
for the latter to decide the appeal on the merits; findings of fact of the Court of Appeals are neither
essential nor necessary. Justice Tuason was joined in his dissent by Justice Cesar Bengzon who later
became Chief Justice of this Court and Justice Sabino Padilla.8

B. The theory is now advanced that We go one step further than that ruled in Ramos — that is, for the
Court of Appeals not only to make its findings of fact and finding of guilt, but also to impose the penalty
either of reclusion perpetua or death as the facts warrant in order that We may exercise Our appellate
jurisdiction.
We believe that such a judicial ruling will be violence to the letter and spirit of the law which confers on
the Supreme Court the exclusive prerogative to review on appeal and impose the corresponding penalty
in criminal cases where the offense is punishable by reclusion perpetua or death.

Both the 1935 and the 1973 Constitutions vest upon the Supreme Court appellate jurisdiction, in "(A)ll
criminal cases in which the penalty imposed is death or life imprisonment."9 This jurisdiction is
constitutional: the Supreme Court ma not be deprived thereof by, Congress then, now the National
Assembly. 10

Section 17 of the Judiciary Act 1948 as amended in turn provides that the foregoing appellate
jurisdiction of the Supreme Court is exclusive.

Basically therefore, the objection to this new theory is one of jurisdiction - the lack of jurisdiction of the
Court of Appeals to impose the penalty of reclusion perpetua or death.

The present controversy springs from the construction given to the second paragraph of Sec. 12, Rule
124, Rules of Court 11 more particularly to the use of the phrases "should be imposed" and "shall refrain
from entering judgment", viz:

xxx xxx xxx

Whenever in any criminal case submitted to a division the said division should be of the opinion that the
penalty of death or life imprisonment should be imposed, the said court shall refrain from entering
judgment thereon and shall forthwith certify the case to the Supreme Court for final determination, as if
the case had been brought before it on appeal. (Emphasis supplied)

As we construe it, the Rule cited does not charge the appellate court with the duty of imposing the
penalty of reclusion perpetua or death. All that the Rule requires is that should the Court of Appeals be
of the opinion that death or life imprisonment should be imposed, it "shall refrain from entering
judgment thereon ...

The clause "entering judgment" means "rendering judgment". Thus, the Court of Appeals shall refrain
from rendering judgment if and when it is of the opinion that reclusion perpetua or death is the proper
penalty for the crime committed. This can be the only logical interpretation considering that the Court
of Appeals is without jurisdiction to impose the penalties concerned. The phrase "entering judgment" is
not to be equated with an "entry of judgment" as the latter is understood in Rule 36 in relation to
Section 8, Rule 121 and Section 16, Rule 124, Rules of Court. "Entry of judgment" presupposes a final
judgment — final in the sense that no appeal was taken from the decision of the trial or appellate court
within the reglementary period. A judgment in a criminal case becomes final after the lapse of the
period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or
the defendant has expressly waived in writing his right to appeal.12 It is only then that there is a
judgment which is to be entered or recorded in the book of entries of judgments. 13

It would be incongruous or absurd to state that Section 12, second paragraph, Rule 124 enjoins the
Court of Appeals from entering judgment" when there is no judgment to be entered .

But then the argument is advanced — what is there to be reviewed by the Supreme Court when the
decision being certified contains no penalty or sentence, as distinguished from appeals from the Court
of First Instance where there is a complete judgment to be passed upon. The answer is simple. Section
12 itself states that the case is for final determination by the Supreme Court as if the case had been
brought before it on appeal. Hence, based on the findings of facts of the appellate court which as a rule
are conclusive and binding on Us, this Court "will pass upon the correctness of the legal conclusions
derived therefrom" (People v. Ramos, supra) and impose the correct penalty for the offense committed.

We realize that had Section 12, Rule 124 used the phrase shall refrain from rendering judgment " there
would be no cause for any ambiguity. We can only assume that the intent of the Rule was so clear to the
Court when it drafted the Revised Rules of Court that it did not envision a possible contrary or adverse
interpretation or ambiguity in its implementation under the phraseology used. It is incumbent upon Us
to construe the Rule in the spirit and intent it was conceived and in harmony with pertinent laws and
jurisprudence.

On the merits of the appeal —

1. Generally in a case of this nature, the evidence of the prosecution consists solely of the testimony of
the offended party. Here We have the declaration of the victim, who at the time of the incident was a
little less than 13 years of age, on the basis of which the trial court found the charge of rape duly
established. The happenings are briefly summarized in the People's brief as follows:

The offended party in this case is Margarita Paleng who was born on November 20, 1952 (p. 3, t.s.n.,
Manipon). She is a native of Balangabang Tublay, Mountain Province (pp. 3, 12, Id.) At the time of the
incident in question on September 20, 1965, complainant was temporarily boarding at a house located
at Pinsao Guisad Baguio City, as she was then a first year high school student at the Baguio Eastern High
School (pp. 3, 12, 20, Id.; p. 36, Estigoy).

On September 20, 1965, at about three o'clock in the afternoon, she had just arrived in the City from
Tublay in a Dangwa bus (p. 3, Manipon). Because it was then raining and the bus was parked several
meters away from the bus station, she waited inside the bus (pp. 3, 22, Id.). After about three minutes of
waiting, the accused came and started molesting her by inquiring her name and getting hold of her bag
(pp. 4, 22-24, Id.). But she did not allow him to hold her bag (p. 24, Id.). She called the attention of the
bus driver and the conductor about the actuation of the accused, but it seemed that the former were
also afraid of him (pp. 24-25, Id.).

Despite the rain, she left the bus and went to ride in a jeep parked some 100 meters away (pp. 4,
25, Id.). The accused closely followed her (p. 4, Id.). When the jeep started to go, the accused also rode
and sat beside her (p. 5, Id.).

When the jeep reached Guisad, she alighted on the road but she still had to negotiate a distance of ten
meters (p. 5, Id.). The accused also alighted and again he tried to carry her bag (p. 5, Id.). Although he
was not allowed to carry her bag, her was adamant in following her (p. 5, Id.).

Reaching her boarding house, she opened the door and was about to close it when the accused dashed
in and closed the door behind him (pp. 31-32, Id.). When she entered her room, the accused went in (p.
7, Id.). He pulled a dagger eight inches long and threatened her: "If you will talk, 1 will kill you". (p.
7, Id.). Margarita was stunned into silence because of her fear (p. i Id.). Thereupon, the accused held her
hair with his left hand and forced her Lo lie down in bed (p. 7, Id.) He also placed his left hand with a
handkerchief in Margarita's mouth, at the same time holding the dagger and her neck with his right
hand (pp. 7-8, Id.). She was forcibly made to the down and, at this moment, the accused removed the
buttons of his pants (p. 8, Id.). He then put down the dagger on tile bed (p. 8, Id.). Her attempts to
extricate herself from the accused was to no avail assile was only 4 ft. and 8 inches tall and weighed
about 95 to 100 pounds (p. 35, Id.) while the accused was 5 ft. and 7 inches tall and weighed about 126
pounds (pp. 8, 59, Id.). He then held his penis (pp. 8. 36, Id.), used his thigh to separate the legs of
Margarita (p. 38, Id.). tried, but failed. to remove her panty (p. 36, Id.). He nonetheless guided his penis
and inserted it inside the vagina of the complainant after prying open the part of her panty covering her
private parts (pp. 9, 36, Id.). Then he succeeded in having carnal knowledge of the offended party (p.
9, Id.). Margarita lost consciousness. When she recovered, he was already gone (p. 9, Id.).

The following morning, her father came to visit her. She confided to him the terrible misfortune which
befell her (pp. 9-10, Id.). She was immediately brought to the Baguio General Hospital where she was
examined (p. 10, Id.). Then they proceeded to the Police Department. The Chief of Police accompanied
them to the Health Center where she was again examined by Dr. Perfecto O. Micu who thereafter
submitted his medical report (Exh. C; p. 3, rec.; pp. 11, 14-16, Id.). Margarita and her father gave their
respective statements before the police authorities (Exh. B, pp, 5-6, rec.; p. 11, t.s.n.). She signed her
criminal complaint prepared by the Fiscal's Office of Baguio (Exh. A; p. 1, rec.; p. 11, t.s.n. (pp. 2-4, Brief
at p. 83, rollo

The City Medico-Legal Officer, Dr. Perfecto Micu was called to the witness stand and he testified on the
physical examination conducted on the person of Margarita Paleng on September 23, 1965 and his
findings as contained in the report were as follows:

1. Hymen-circular-stellate type with healing lacerations at 6:00, 8:00, 9:00 and 11:00 o'clock positions in
the face of a clock.

2. Contusions at the base of the hymen at 3:00 & 9:00 o'clock regions.

3. Vaginal Orifice - tight and hardly admits 2 fingers.

4. Vaginal wall — tight and vaginal folds are prominent.

5. Vaginal smear — negative for spermatozoa and for gram negative intra or extra-cellular diplococci.
(Exh. "C", p. 3, CFI record)

Dr. Micu concluded that "defloration was recent". He further declared that the condition of the hymen
revealed that Margarita Paleng was a virgin before the incident complained of, and that the number of
lacerations and contusions at the base of the hymen indicated the degree of force exerted to effect the
sexual act. 14

For his defense, appellant claimed that he and Margarita were acquainted with each other since 1963,
and there were occasions when they rode together in a bus; that the incident of September 20, 1965
inside the room of Margarita was with the latter's consent, and in fact it was the second time he had
carnal knowledge with her, the first time having occurred inside a shack; that he promised Margarita
that he would marry her, but to his surprise, she filed the instant complaint against him. 15

2. The issue being one of credibility, We find no cogent reasons for discarding the findings of facts of the
trial court which were sustained by the Court of Appeals after the latter had examined the evidence as a
result of which it certified the case to this Court.
Appellant assails the veracity of the testimony of the complainant. But what possible motive could a
thirteen-year old girl barely in her teens have in fabricating a story that could only bring down on her
and her family shame and humiliation and make her an object of gossip and curiosity among her
classmates and the people of her hometown. It cannot be denied that a public trial involving a crime of
this nature subjects the victim to what can be a harrowing experience of submitting to a physical
examination of her body, an investigation by police authorities, appearance in court for the hearing
where she has to unravel lewd and hideous details of a painful event which she would prefer to forget
and leave it unknown to others. If Margarita did forego all these and preferred to face the cruel realities
of the situation it was due to her simple and natural instincts of speaking out the truth.

The insinuation that this complaint was filed because appellant had not married the girl although he
promised to marry her, is preposterous. On September 20, 1965, Margarita was only twelve years and
ten months old and was not of marriageable age, hence, marriage was a legal impossibility. And as
regards appellant's testimony that the complaint was instigated by the Chief of Police of Tublay who was
Margarita's uncle, the trial court did not give credit to such a declaration.

Counsel for appellant stresses that notwithstanding that Margarita had the opportunity to ask for help
or attract the attention of other people before she reached her boarding house, she failed to do so.
According to counsel there were people at the Dangwa station, in the busy streets, in the market place,
in the jeepney parking place where the girl took a jeep to proceed to the boarding house, and in the
neighboring houses the closest of which was about 5 meters away, but no attempt was ever made by
complainant to seek help so as to prevent appellant from molesting her. 16

Appellant's contention presupposes that Margarita was well aware all the time from the moment she
saw the appellate inside the bus that the latter had intentions of abusing or raping her. All that the
appellant did inside the bus was to hold her bag and she caged the attention of the driver and the
conductor to the impertinence of appellant but the two did not do anything about it. 17 And when
Margarita walked from the bus to the jeepney station, although she saw appellant walking behind her
she did not suspect that he was following her. To a question propounded by His Honor whether she
suspected that appellant was following her, Margarita answered: "No sir, I did not suspect." 18 All along
Margarita could not call the attention of the people in the street or shout for help inasmuch as at that
particular moment the appellant was not doing anything against her. And when Margarita reached the
boarding house there were no persons around 19 and in fact she went straight to her room and it was at
that particular moment when appellant barged into the room before she could close the door. In short,
the Poor girl was simply taken by surprise by the forced entrance of appellant who immediately took out
an 8-inch long dagger and said "If you will talk I will kill you."

Persons can have different reactions to a situation like that — some may manifest an aggressive or
violent attitude of confronting a molesting or impertinent fellow while others, like 12-year old
Margarita, may assume a silent. fearful attitude.

Appellant's counsel also claims that Margarita did not offer any resistance to the acts of the accused at
the time the latter was allegedly forcing himself on her as shown by the medical findings that there were
no signs of extra-genital injuries on the girl's body, and no blood stains on her dress and underwear.

The foregoing arguments are inadequate to weaken and destroy the veracity of Margarita's
straightforward and positive declaration as to how appellant, a 22-year old farmer in the prime of his
manhood, weighing 126 lbs and five feet 21 and six inches tall,20 overpowered her and succeeded in
accomplishing the sexual act despite her resistance. Margarita was less than 13 years of age, was 4' 8 "
in height, and weighed around 95 lbs.21

In a crime of rape, force need not be irresistible; "it need but be present, and so long as it brings about
the desired result, all consideration of whether it was more or less irresistible, is beside the point. 22

All that is necessary is that the force used by the accused is sufficient for him to consummate his evil
purpose. In U.S. v. Villarosa, 1905, there was a similar situation. A 12 year old girl was sexually abused in
the woods by a man of superior physical strength. In holding the accused Villarosa guilty of rape the
Court held:

It is a doctrine well established by the courts that in order to consider the existence of the crime of rape
it is not necessary that the force employed in accomplishing it be so great or of such character as could
not be resisted; it is only necessary that the force used by the guilty party be sufficient to consummate
the purpose which he had in view. (4 Phil. 434, 437 citing Judgment May 14, 1878, Supreme Court of
Spain. The Villarosa doctrine has been followed in numerous cases involving the crime of rape and one
of the latest is People v. Equec, 1977, per Justice Enrique Fernando, 70 SCRA 665.)

And as stated in People v. Savellano, per Justice Ramon Aquino, the force or violence necessary in rape
is naturally a relative term, depending on the age, size, and strength of the parties and their relation to
each other. 23

Rape is likewise committed when intimidation is used on the victim and the latter submits herself
against her will because of fear for her life and personal safety. In this case of Margarita Paleng,
appellant was armed with a dagger and with it threatened to kill the girl if she would talk or scream for
help. Her fear naturally weakened whatever resistance Margarita could muster at the time and as a
result appellant was able to consummate his coitus on the victim. 24

One last point raised by the able counsel of appellant, Atty. Braulio D. Yaranon, who at the time of the
trial in 1965 was the Vice-Mayor of Baguio City, was that appellant voluntarily submitted to a lie
detector test with the National Bureau of Investigation and the report of the lie detector examiner is in
appellant's favor, that is, the latter was telling the truth on the questions propounded to him one of
which was whether he forced Margarita Paleng into having sexual intercourse with him and the reply
was "No". 25

On this matter We find the trial Judge's observations and conclusions meritorious and We quote from
his decision the following:

As to the N.B.I. lie detector test report, the Court does not put much faith and credit on it. It is well
known that the same is not conclusive. Its efficacy depends upon the time, place and circumstances
when taken and the nature of the subject. If subject is hard and the circumstances, as in this instant,
were not conducive to affect the subject emotionally, the test will fail. The subject had nothing more to
fear because the trial was over. He was not confronted by the victim or other persons whom he had a
reason to fear. Naturally, his reaction to the questions propounded was normal and unaffected and the
apparatus could not detect it. (pp. 172-173, CFI record)
To conclude, the crime committed by the appellant is rape with the use of a deadly weapon with the
aggravating circumstance of having been committed in the dwelling of the offended party. Although
Margarita was merely renting a bedspace in a boarding house, her room constituted for all intents and
purposes a "dwelling" as the term is used in Article 14(3), Revised Penal Code. It is not necessary, under
the law, that the victim owns the place where he lives or dwells. Be he a lessee, a boarder, or a bed-
spacer, the place is his home the sanctity of which the law seeks to protect and uphold.

Hence, the correct penalty for the crime committed is death pursuant to Article 335 of the Revised Penal
Code as amended. However, for lack of the necessary number of votes, the penalty next lower in degree
is to be applied.

PREMISES CONSIDERED, We affirm the judgment of conviction of Amado Daniel for the crime of rape as
charged, and We sentence him to suffer the penalty of reclusion perpetua and order him to indemnify
Margarita Paleng by way of moral damages in the amount of Twelve Thousand Pesos (P12,000.00) and
pay the costs.

Decision Modified.

SO ORDERED.

[G.R. No. 120420. April 21, 1999]

PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee, v. RUFINO MIRANDILLA BERMAS, accused-appellant.

DECISION

VITUG, J.:

In convicting an accused, it is not enough that proof beyond reasonable doubt has been adduced; it is
also essential that the accused has been duly afforded his fundamental rights.

Rufino Mirandilla Bermas pleaded not guilty before the Regional Trial Court of Paraaque, Branch 274,
Metro Manila, to the crime of rape under a criminal complaint, which read:

COMPLAINT

The undersigned complainant as assisted by her mother accuses Rufino Mirandilla Bermas, of the crime
of Rape, committed as follows:

"That on or about the 3rd day of August 1994, in the Municipality of Paraaque, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, while armed
with a knife and by means of force and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge of the undersigned complainant against her will.

CONTRARY TO LAW
Paraaque, Metro Manila

August 8, 1994

(SGD) MANUEL P. BERMAS

Complainant

Assisted by:

(SGD) ROSITA BERMAS

Mother1cräläwvirtualibräry

Evidence was adduced during trial by the parties at the conclusion of which the lower court, presided
over by Hon. Amelita G. Tolentino, rendered its decision, dated 02 May 1995, finding the accused guilty
of the offense charged and sentencing him to suffer the extreme penalty of death.

The death penalty having been imposed, the case has reached this Court by way of automatic review
pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No.
7659 (otherwise known as An Act To Impose Death Penalty on Certain Heinous Crimes, Amending For
That Purpose The Revised Penal Code, as amended, Other Special Penal Laws, and For Other Purposes,
which took effect on 31 December 1993).

The prosecution, through the Office of the Solicitor General, gave an account, rather briefly, of the
evidence submitted by the prosecution.

"On August 3, 1994, complainant Manuela Bermas, 15 years old, was raped by her own father, appellant
Rufino Bermas, while she was lying down on a wooden bed inside their house at Creek Drive II, San
Antonio Valley 8, Paraaque, Metro Manila (pp. 6-7, TSN, Oct. 19, 1994). Armed with a knife, appellant
removed the victim's shorts and panty, placed himself above her, inserted his penis in her vagina and
conducted coital movements (pp. 7-8, ibid.). After the appellant satisfied his lustful desire, he
threatened the victim with death if she reports the incident to anyone. (p. 9, ibid.)

"On August 9, 1994, complainant was medically examined at the NBI, which yielded the following
findings:

"The findings concluded: 1. No evident sign of extragenital physical injuries noted on the body of the
subject at the time of examination; 2. Hymen, intact but distensible and its orifice wide (2.7 cm. In
diameter) as to allow complete penetration by an average sized, adult, Filipino male organ in full
erection without producing any hymenal laceration."2cräläwvirtualibräry

The defense proffered the testimony of the accused, who denied the charge, and that of his married
daughter, Luzviminda Mendez, who attributed the accusation made by her younger sister to a mere
resentment by the latter. The trial court gave a summary of the testimony given by the accused and his
daughter Luzviminda; viz:

The accused vehemently denied that he has ever committed the crime of rape on her daughter, the
complainant. He told the Court that he could not do such a thing because he loves so much his daughter
and his other children. In fact, he said that he even performed the dual role of a father and a mother to
his children since the time of his separation from his wife. The accused further told the Court that in
charging him of the crime of rape, the complainant might have been motivated by ill-will or revenge in
view of the numerous scoldings that she has received from him on account of her frequent coming
home late at night. The accused stressed that he knew of no other reason as to why his daughter, the
complainant, would ever charge him of the crime of rape except probably in retaliation for being
admonished by him whenever she comes home late in the night.

The married daughter of the accused, who testified in his behalf, denied that the complainant was raped
by the accused. She said that the complainant did not come home in the night of August 3, 1994, and
that, she is a liar. She told the Court that the concoction by the complainant of the rape story is probably
due to the resentment by the latter of the frequent scoldings that she has been receiving from the
accused. She further added that she was told by the previous household employer of the complainant
that the latter is a liar. She went on to testify further that she does not believe that the accused, who is
her father, raped the complainant, who is her younger sister.3cräläwvirtualibräry

The trial court, in its decision of 02 May 1995, found the case of the prosecution against the accused as
having been duly established and so ruled out the defense theory of denial and supposed ill-will on the
part of private complainant that allegedly had motivated the filing of the complaint against her father.
The court adjudged:

"WHEREFORE, this Court finds the accused guilty beyond reasonable doubt of the crime of rape and
hereby sentences him to suffer the DEATH PENALTY, to indemnify the complainant in the amount of
P75,000.00, Philippine Currency, and to pay the costs.

"SO ORDERED."4cräläwvirtualibräry

In their 61-page brief, defense counsel Fernandez & Kasilag-Villanueva (in collaboration with the Anti-
Death Penalty Task Force), detailed several errors allegedly committed by the court a quo; thus:

I. THE ACCUSED WAS DEPRIVED OF DUE PROCESS.

A. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE AND VIGILANT COUNSEL

1. The trial court did not observe the correct selection process in appointing the accused's counsel de
officio;

2. The Public Attorney could not give justice to the accused;

a. Negligent in not moving to quash the information on the ground of illegal arrest;

b. Negligent in not moving to quash the information on the ground of invalid filing of the information;

c. Negligent in not moving for a preliminary investigation;

d. Negligent in not pointing out the unexplained change in the case number;

e. Negligent in not moving to inhibit the judge;

f. Negligent in her conduct at the initial trial.

3. The Vanishing Second Counsel de Officio

a. He was not dedicated nor devoted to the accused;

b. His work was shoddy;

4. The Reluctant Third Counsel de Officio

5. The performance of all three counsels de officio was ineffective and prejudicial to the accused.

B. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE TRIED BY AN IMPARTIAL JUDGE AND
TO BE PRESUMED INNOCENT.

C. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE HEARD AND FOR WITNESSES TO
TESTIFY IN HIS BEHALF.

D. THE ARRAIGNMENT OF THE ACCUSED WAS INVALID.

E. THE ACCUSED WAS DENIED THE EQUAL PROTECTION OF THE LAW.

II. THE TRIAL COURT DID NOT `SCRUTINIZE WITH EXTREME CAUTION THE PROSECUTION'S EVIDENCE,
MISAPPRECIATED THE FACTS AND THEREFORE ERRED IN FINDING THE ACCUSED GUILTY OF RAPE
BEYOND REASONABLE DOUBT."5cräläwvirtualibräry

The Court, after a painstaking review of the records, finds merit in the appeal enough to warrant a
remand of the case for new trial.

It would appear that on 08 August 1994 Manuela P. Bermas, then 15 years of age, assisted by her
mother Rosita Bermas, executed a sworn statement before SPO1 Dominador Nipas, Jr., of the Paraaque
Police Station, stating, in sum, that she had been raped by accused Rufino Mirandilla Bermas, her own
father, in 1991 and 1993, as well as on 03 August 1994, particularly the subject matter of the complaint,
hereinbefore quoted, duly signed and filed conformably with Section 7, Rule 112, of the Rules of Court.
The Second Assistant Prosecutor, issued a certification to the effect that the accused had waived his
right to a preliminary investigation.

On the day scheduled for his arraignment on 03 October 1994, the accused was brought before the trial
court without counsel. The court thereupon assigned Atty. Rosa Elmira C. Villamin of the Public
Attorney's Office to be the counsel de officio. Accused forthwith pleaded not guilty. The pre-trial was
waived.

The initial reception of evidence was held on 19 October 1994. The prosecution placed complainant
Manuela Bermas at the witness stand. She testified on direct examination with hardly any participation
by defense counsel who, inexplicably, later waived the cross-examination and then asked the court to be
relieved of her duty as counsel de officio.

"ATTY. VILLARIN:

And I am requesting if this Honorable Court would allow me and my paero besides me, would accede to
my request that I be relieved as counsel de officio because I could not also give justice to the accused
because as a lady lawyer . . . if my paero here and if this Honorable Court will accede to my request.

"COURT:

It is your sworn duty to defend the helpless and the defenseless. That is your sworn duty, Mrs. Counsel
de Officio. Are you retracting?
"ATTY. VILLARIN:

That is why I am asking this Honorable Court."6cräläwvirtualibräry

Counsel's request was granted, and Atty. Roberto Gomez was appointed the new counsel de officio.
While Atty. Gomez was ultimately allowed to cross-examine the complainant, it should be quite evident,
however, that he barely had time, to prepare therefor. On this score, defense counsel Fernandez &
Kasilag-Villanueva in the instant appeal would later point out:

To substitute for her, the Public Attorney recommended Atty. Roberto Gomez to be appointed as
defense counsel de oficio. And so the trial court appointed him.

Atty. Gomez asked for a ten minute recess before he began his cross examination, presumably to
prepare. But a ten minute preparation to cross examine the complainant upon whose testimony largely
rests the verdict on the accused who stands to be meted the death penalty if found guilty, is far too
inadequate. He could not possibly have familiarized himself with the records and surrounding
circumstances of the case, read the complaint, the statement of the complainant, the medico-legal
report, memos of the police, transcripts and other relevant documents and confer with the accused and
his witnesses, all in ten minutes.7cräläwvirtualibräry

The prosecution abruptly rested its case after the medico-legal officer had testified.

The reception of the defense evidence was scheduled for 12 December 1994; it was later reset to 09
January 1995. When the case was called on 09 January 1995, the following transpired:

COURT:

Where is the counsel for the accused?

COURT:

Did he file his withdrawal in this case? It is supposed to be the turn of the defense to present its
evidence.

PROSECUTOR GARCIA:

Yes, Your Honor. The prosecution had already rested its case.

COURT:

Last time he asked for the continuance of this case and considering that the accused is under
detention ... it seems he cannot comply with his obligation.

COURT:

(To the accused) Nasaan ang abogado mo?

ACCUSED R. BERMAS:

Wala po.

COURT:
It is already the turn of the defense to present its evidence in this case. In view of the fact that the
defense counsel is not interested anymore in defending the accused because last time he moved for the
continuance of the hearing of this case and since this time he did not appear, he is unduly delaying the
proceedings of this case and considering the accused here is under detention, I think it would be better
if the Court appoints another lawyer. He should file his withdrawal if he is not interested anymore.

In view of the fact that the counsel de officio has repeatedly failed to appear in this Court to defend his
client-accused, the Court is hereby constrained to appoint another counsel de officio to handle the
defense of the accused. For this purpose, Atty. Nicanor Lonzame is hereby appointed as the counsel de
officio for accused Rufino Mirandilla Bermas.8cräläwvirtualibräry

The hearing scheduled for that day was reset to 16 January 1995 upon the request of Atty. Lonzame. On
even date, Atty. Lonzame himself asked to be relieved as counsel de officio but later, albeit reluctantly,
retracted; thus:

COURT:

Where is the accused? Where is the counsel de officio?

ATTY. NICANOR LONZAME:

As counsel de officio, Your Honor. The lawyer from the PAO is here, may I be allowed to give her my
responsibility as counsel de officio considering that the lawyer from the PAO ...

COURT:

What about?

ATTY. LONZAME:

I was appointed because the PAO lawyer was not around. If the Court will allow us to be relieved from
our responsibility as appointed counsel de officio of the accused ...

COURT:

You want to be relieved of your responsibility as appointed counsel de officio? As an officer of the Court
you don't want to handle the defense of the accused in this case?

ATTY. LONZAME:

I will be withdrawing my previous manifestation that I be relieved of my responsibility as counsel de

officio.

COURT:

So, therefore, counsel, are you now ready?

ATTY. LONZAME:

Yes, Your Honor.9cräläwvirtualibräry

Trial proceeded with the accused being the first to be put at the witness stand. He denied the accusation
against him. The next witness to be presented was his married daughter who corroborated her fathers
claim of innocence.

The defense counsel in the instant appeal took over from Atty. Lonzame who himself, for one reason or
another, had ceased to appear for and in behalf of accused-appellant.

This Court finds and must hold, most regrettably, that accused-appellant has not properly and
effectively been accorded the right to counsel. So important is the right to counsel that it has been
enshrined in our fundamental law and its precursor laws. Indeed, even prior to the advent of the 1935
Constitution, the right to counsel of an accused has already been recognized under General Order No.
58, dated 23 April 1900, stating that a defendant in all criminal prosecutions is entitled to counsel at
every stage of the proceedings,10 and that if he is unable to employ counsel, the court must assign one
to defend him.11 The 1935 Constitution has no less been expressive in declaring, in Article III, Section
17, thereof, that -

(17) In all criminal prosecutions, the accused shall be presumed to be innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of witnesses in his behalf.

Except for a proviso allowing trial in absentia, the right to counsel under the 1973 Constitution,
essentially, has remained unchanged. Under the 1987 Constitution, a worthwhile innovation that has
been introduced is the provision from which prevailing jurisprudence on the availability of the right to
counsel as early as the stage of custodial interrogation can be deemed to be predicated. The rule, found
in Sections 12 and 14, Article III, of the 1987 Constitution, states -

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.

xxx

Sec. 14. x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the production of evidence
in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his failure to appear is unjustifiable.

The constitutional mandate is reflected in the 1985 Rules of Criminal Procedures which declares in
Section 1, Rule 115, thereof, that it is a right of the accused at the trial to be present in person and by
counsel at every stage of the proceedings from the arraignment to the promulgation of the judgment.

The presence and participation of counsel in the defense of an accused in criminal proceedings should
never be taken lightly.12Chief Justice Moran in People vs. Holgado,13 explained:
"In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated man may have no skill in the science of the law,
particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty
but because he does not know how to establish his innocence. And this can happen more easily to
persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is
deemed so important that it has become a constitutional right and it so implemented that under our
rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it
is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court
should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to
procure an attorney of his own."14cräläwvirtualibräry

In William vs. Kaiser,15 the United States Supreme Court, through the late Justice Douglas, has rightly
observed that the accused needs the aid of counsel lest he be the victim of overzealous prosecutors, of
the laws complexity or of his own ignorance or bewilderment. An accused must be given the right to be
represented by counsel for, unless so represented, there is great danger that any defense presented in
his behalf will be as inadequate considering the legal perquisites and skills needed in the court
proceedings.16 The right to counsel proceeds from the fundamental principle of due process which
basically means that a person must be heard before being condemned. The due process requirement is
a part of a persons basic rights; it is not a mere formality that may be dispensed with or performed
perfunctorily.

The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections. The right to counsel means that the accused is amply
accorded legal assistance extended by a counsel who commits himself to the cause for the defense and
acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly
at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-
versed on the case, and his knowing the fundamental procedures, essential laws and existing
jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of
his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal
assistance and not a simple perfunctory representation.17

It is never enough that accused be simply informed of his right to counsel; he should also be asked
whether he wants to avail himself of one and should be told that he can hire a counsel of his own choice
if he so desires or that one can be provided to him at his request.18 Section 7, Rule 116, of the Rules of
Criminal Procedure provides:

Sec. 7. Appointment of counsel de oficio. - The court, considering the gravity of the offense and the
difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the
bar in good standing who, by reason of their experience and ability may adequately defend the accused.
But in localities where such members of the bar are not available, the court may appoint any person,
resident of the province and of good repute for probity and ability, to defend the accused.

A counsel de oficio is expected to do his utmost.19 A mere pro-forma appointment of de oficio counsel
who fails to genuinely protect the interests of the accused merits disapprobation.20 The exacting
demands expected of a lawyer should be no less than stringent when one is a counsel de officio. He
must take the case not as a burden but as an opportunity to assist in the proper dispensation of justice.
No lawyer is to be excused from this responsibility except only for the most compelling and cogent
reasons.21

Just weeks ago, in People vs. Sevilleno, G.R. No. 129058, promulgated on 29 March 1999, this Court has
said:

We cannot right finis to this discussion without making known our displeasure over the manner by
which the PAO lawyers dispensed with their duties. All three (3) of them displayed manifest disinterest
on the plight of their client.

xxx

Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost
dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his
negligence in this regard renders him administratively liable. Obviously, in the instant case, the
aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the accused.
Instead, they haphazardly performed their function as counsel de oficio to the detriment and prejudice
of the accused Sevilleno, however guilty he might have been found to be after trial. Inevitably, this Court
must advise Attys. Agravante, Pabalinas and Saldavia to adhere closely and faithfully to the tenets
espoused in the Code of Professional Responsibility; otherwise, commission of any similar act in the
future will be severely sanctioned.

The Court sees no other choice than to direct the remand of the case to the court a quo for new trial.

WHEREFORE, let this case be REMANDED to the court a quo for trial on the basis of the complaint,
aforequoted, under which he was arraigned. Atty. Ricardo A. Fernandez, Jr. of the Anti-Death Penalty
Task Force is hereby appointed counsel de officio for the appellant.

Attys. Rosa Elmina Villamin of the Public Attorney's Office, Paraaque, Roberto Gomez and Nicanor
Lonzame are hereby ADMONISHED for having fallen much too short of their responsibility as officers of
the court and as members of the Bar and are warned that any similar infraction shall be dealt with most
severely.

SO ORDERED.

G.R. L-No. 5292 August 28, 1909

THE UNITED STATES, plaintiff,

vs.
THE MORO MANALINDE, defendant.

Office of the Solicitor-General Harvey for plaintiff.

Ramon Diokno for defendant.

TORRES, J.:
Between 2 and 3 o'clock on the afternoon of the 19th of January, 1909, while Juan Igual, a Spaniard, was
seated on a chair in the doorway of Sousa's store in Cotabato, Moro Province, he suddenly received a
wound on the head delivered from behind and inflicted with a kris. Ricardo Doroteo, a clerk in the said
store, who was standing behind the counter, upon hearing the noise and the cry of the wounded man,
ran to his assistance and found him lying on the ground. Meanwhile the aggressor, the Moro Manalinde,
approached a Chinaman named Choa, who was passing along the street, and just as the latter was
putting down his load in front of the door of a store and was about to enter, attacked him with the same
weapon, inflicting a severe wound in the left shoulder, on account of which he fell to the ground. The
Moro, who came from the rancheria of Dupit and had entered the town carrying his weapon wrapped
up in banana leaves, in the meantime escaped by running away from the town. Both wounded men, the
Chinaman and the Spaniard, were taken to the hospital, where the former died within an hour, the
record not stating the result of the wound inflicted on the Spaniard Juan Igual.

In view of the above a complaint was filed by the provincial fiscal with the district court charging
Manalinde with the crime of murder, and proceedings having been instituted, the trial judge, in view of
the evidence adduced, rendered judgment on the 5th of February of said year, sentencing the accused
to the penalty of death, 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.

From the above facts fully substantiated in this case, it appears beyond doubt that the crime of murder,
defined and punished by article 403 of the Penal Code, was committed on the person of the Chinaman
Choa, in that the deceased was unexpectedly and suddenly attacked, receiving a deep cut on the left
shoulder at the moment when he had just put down the load that he was carrying and was about to
start for the door of the store in front of which he stopped for the purpose of entering therein. As a
result of the tremendous wound inflicted upon him by the heavy and unexpected blow, he was unable,
not only to defend himself, apart from the fact that he was unarmed, but even to flee from the danger,
and falling to the ground, died in an hour's time. It is unquestionable that by the means and form
employed in the attack the violent death of the said Chinaman was consummated with deceit and
treachery (alevosia), one of the five qualifying circumstances enumerated in the aforesaid article as
calling for the greatest punishment.

When Manalinde was arrested he pleaded guilty and confessed that he had perpetrated the crime
herein mentioned, stating that his wife had died about one hundred days before and that he had come
from his home in Catumaldu by order of the Datto Rajamudah Mupuck, who had directed him to
go juramentado in Cotabato in order to kill somebody, because the said Mupuck had certain grievances
to avenge against a lieutenant and a sergeant, the said datto further stating that if he, Manalinde, was
successful in the matter, he would give him a pretty woman on his return, but that in case he was
captured he was to say that he performed the killing by order of Maticayo, Datto Piang, Tambal and
Inug. In order to carry out his intention to kill two persons in the town of Cotabato he provided himself
with a kris, which he concealed in banana leaves, and, traveling for a day and a night from his home,
upon reaching the town, attacked from behind a Spaniard who was seated in front of a store and,
wounding him, immediately after attacked a Chinaman, who was close by, just as the latter was placing
a tin that he was carrying on the ground and he was about to enter a store near by, cutting him on the
left shoulder and fleeing at once; he further stated that he had no quarrel with the assaulted persons.
From the statements made by the accused his culpability as the sole-confessed and self-convicted
author of the crime in question has been unquestionably established, nor can his allegation that he
acted by order of Datto Mupuck and that therefore he was not responsible exculpate him, because it
was not a matter of proper obedience. The excuse that he went juramentado by order of the said datto
and on that account killed only two persons, whereas if he had taken the oath of his own volition he
would have killed many more, because it is the barbarous and savage custom of a juramentado to kill
anyone without any motive or reason whatever, can not under any consideration be accepted or
considered under the laws of civilized nations; such exhibitions of ferocity and savagery must be
restrained, especially as the very people who up to the present time have been practicing such acts are
well aware that the established authorities in this country can never allow them to go unpunished, and
as has happened a number of times in towns where juramentados are in the habit of appearing, the
punishment of the author has followed every crime so committed.

In the commission of the crime of murder the presence of aggravating circumstances 3 and 7 of article
10 of the Penal Code should be taken into consideration in that promise of reward and premeditation
are present, which in the present case are held to be generic, since the crime has already been qualified
as committed with the treachery, because the accused confessed that he voluntarily obeyed the order
given him by Datto Mupuck to go juramentadoand kill some one in the town of Cotabato, with the
promise that if he escaped punishment he would be rewarded with a pretty woman. Upon complying
with the order the accused undoubtedly acted of his own volition and with the knowledge that he would
inflict irreparable injury on some of his fellow-beings, depriving them of life without any reason
whatever, well knowing that he was about to commit a most serious deed which the laws in force in this
country and the constituted authorities could by no means permit. Datto Mupuck, who ordered and
induced him to commit the crimes, as well as the accused knew perfectly well that he might be caught
and punished in the act of committing them.

As to the other circumstance it is also unquestionable that the accused, upon accepting the order and
undertaking the journey in order to comply therewith, deliberately considered and carefully and
thoughtfully meditated over the nature and the consequences of the acts which, under orders received
from the said datto, he was about to carry out, and to that end provided himself with a weapon,
concealing it by wrapping it up, and started on a journey of a day and a night for the sole purpose of
taking the life of two unfortunate persons whom he did not know, and with whom he had never had any
trouble; nor did there exist any reason which, to a certain extent, might warrant his perverse deed. The
fact that the arrangement between the instigator and the tool considered the killing of unknown
persons, the first encountered, does not bar the consideration of the circumstance of premeditation.
The nature and the circumstances which characterize the crime, the perversity of the culprit, and the
material and moral injury are the same, and the fact that the victim was not predetermined does not
affect nor alter the nature of the crime. The person having been deprived of his life by deeds executed
with deliberate intent, the crime is considered a premeditated one as the firm and persistent intention
of the accused from the moment, before said death, when he received the order until the crime was
committed in manifestly evident. Even though in a crime committed upon offer of money, reward or
promise, premeditation is sometimes present, the latter not being inherent in the former, and there
existing no incompatibility between the two, premeditation can not necessarily be considered as
included merely because an offer of money, reward or promise was made, for the latter might have
existed without the former, the one being independent of the other. In the present case there can be no
doubt that after the crime was agreed upon by means of a promise of reward, the criminal by his
subsequent conduct showed a persistency and firm intent in his plan to carry out the crime which he
intentionally agreed to execute, it being immaterial whether Datto Mupuck did or did not conceive the
crime, once Manalinde obeyed the inducement and voluntarily executed it.

The facts in this case are quite different from those in the proceedings instituted by the United States vs.
Caranto et al., wherein the decision on page 256 of Volume IV of the Philippine Reports was rendered,
as may be seen from the mere perusal of the statement of facts. It is also different from the case where
a criminal who has made up his mind to kill a certain individual kills a person other than the object of his
criminal intent. On going to Cotabato the Moro Manalinde intended to and did kill the first two persons
he encountered, and the fact that the victim was not predetermined does not alter the nature,
conditions, or circumstances of the crime, for the reason that to cause the violent death of a human
being without any reasonable motive is always punishable with a more or less grave penalty according
to the nature of the concurrent circumstances.

For the above reasons and in view of the fact that no mitigating circumstance is present to neutralize
the effects of the aggravating ones, it is our opinion that the judgment appealed from should be
affirmed with costs provided however, that the penalty imposed on the culprit shall be executed in
accordance with the provisions of Acts. Nos. 451 and 1577, and that in the event of a pardon being
granted he shall likewise be sentenced to suffer the accessory penalties imposed by article 53 of the
Penal Code. So ordered.

G.R. No. 136892 - April 11, 2002

PEOPLE OF THE PHILIPPINES, appellee, vs. SUEENE DISCALSOTA Y JUGAR, appellant.

PANGANIBAN, J.:

Without any proven qualifying circumstance, a killing constitutes homicide which is punishable
by reclusion temporal, not death. Where the attack was made openly and the victim had ample
opportunity to escape, treachery cannot be appreciated.

The Case

For automatic review by this Court is the Decision1 dated September 28, 1998, issued by the Regional
Trial Court (RTC) of Bacolod City (Branch 53), finding Sueene Discalsota y Jugar guilty of murder beyond
reasonable doubt. The decretal portion of the Decision reads as follows:
"WHEREFORE, the court finds the accused Sueene Discalsota, alias Ronnie de la Peña, GUILTY of the
crime of Murder, punished under Article 248 of the Revised Penal Code as amended by R.A. 7659, of
Herbert Suarnaba. Applying Art. 63, of the Revised Penal Code, paragraph 2, No. 1, on the application of
indivisible penalties, which provides that whenever 'there is present only one aggravating penalty, the
greater penalty shall applied,' and there is no mitigating circumstance. The Court hereby imposes upon
the accused Sueene Discalsota the penalty of DEATH.

"The accused is further ordered to pay the heirs of the deceased the sum of P50,000.00, as civil
indemnity; P30,000.00 as moral damages, and P25,000.00 as actual expenses for the wake and funeral,
and costs."2

The Information3 against appellant reads as follows:

"That on or about the 24th day of January, 1996, in the City of Bacolod, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused, without any justifiable cause or motive, being
then armed with a bladed weapon, with intent to kill and by means of treachery and evident
premeditation, did, then and there wilfully, unlawfully, and feloniously assault, attack and stab with said
weapon one HERBERT SUARNABA Y CATALAN, thereby inflicting upon the person of the latter the
following wounds:

'I.W. 4 cm, left posterior lumbar area, level of L2 L4 penetrating Retroperiton[e]al Cavity completely
transacting left kidney, inferior pole, penetrating abdominal cavity completely transacting pancreas,
body, perforating posterior surface of Stomach, pundus with massive gastric spillage.

'Cause of Death: Hypovolemic Shock 2

which were the direct and immediate cause of his death."

When arraigned on July 9, 1997, appellant, with the assistance of counsel,4 pleaded "not guilty."5In due
course, the former was tried by the RTC which found him guilty of murder.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarized the evidence for the prosecution in this wise:6

"At about 1:00 P.M. of January 24, 1996, the victim, Herbert Suarnaba, 16 years old, along with his
neighborhood friends, Jenny Aplaza (17 years old), Pedro Ramos (17 years old) and Rowell Lavega (17
years old) left 6th Street, Bacolod City and went to Plaza Mart, a shopping mall, where they loitered for
about an hour or two. They decided to visit their friend, 'Novieboy' del Rosario, who used to be their
neighbor at Purok Pag-asa but who ha[d] since transferred to Libertad Baybay. They took [a] jeepney
and arrived there at around 3:00 P.M. They proceeded to the inner portion of the barangay, passing by
several houses [o]n a footwalk to the house of 'Novieboy' del Rosario. They were welcomed by the latter
and [they] then listened to music on the tape recorder. When 'Novieboy's' mother arrived, she offered
them 'chorizo' (sausage) which she brought with her from Kalibo.

"While peacefully enjoying themselves, they were suddenly startled by shouts coming from a group of
men outside the house. Looking out, they saw about nine (9) men with their leader shouting: 'Gua kamo
dira, kay pamatyon ta kamo! Nga-a nagsulod-sulod kamo diri sa amon teritoryo? Gua kamo dira kay
pamatyon ta kamo! (You there, get out and we will kill you!) The four (4) teen-agers were terrified since
they did not know the men who were threatening them. Nor did they know of any grudge or
misunderstanding between their group and the men outside. They then called Mrs. Del Rosario
('Novieboy's' mother) who advised them not to go out of the house and called for the police. However,
after waiting for some time, no police assistance came. Mrs. Del Rosario then went out and returned
with four (4) barangay tanods. The tanods entered the house and talked to the teen-agers and assured
them that no harm would come to them and that there would be a police 'Bac[k]-up' waiting for them at
the road. The group was then escorted out of the house by the tanods and were accompanied by two
(2) of them and Mrs. Del Rosario towards the footpath leading to the main road. It was already dusk by
that time. The men threatening them were still outside when they went out of the house and they
followed the group. When the group reached the main road, no police 'Bac[k]-up' was in sight but Mrs.
Del Rosario remained with them.

"There was a single 'trisikad' (pedicab) outside and the four (4) boarded it. Since the pedicab could only
accommodate two (2) persons inside, Rowell Lavega stood on the rail at the back of the pedicab while
the victim sat in front.

"The pedicab had not left when Rowell saw a man running towards them from the footwalk. He was
about 50 meters away when Rowell first saw him. The four jumped out of the pedicab when Mrs. Del
Rosario and the people there shouted at them to run. Despite efforts by the barangay tanods to stop
him, the man rushed headlong towards Rowell and the victim. He was about to strike at Rowell when
Mrs. Del Rosario pushed Rowell to run. When Mrs. Del Rosario fell down as if to faint, the victim helped
her stand up. Mrs. Del Rosario then told the victim to run and he ran around the pedicab more than a
foot long. While the victim was running away trying to escape, the man holding the knife caught up with
him and thrust his knife at the fleeing victim who was hit at the back. The victim fell and crawled, while
gasping for breath, and he managed to enter a house pleading for help.

"Rowell saw what happened to his friend and wanted to help him but could not because the attacker
was still there. After seeing the victim fall down, bloodied, his attacker ran towards the interior of the
barangay. Meanwhile, Pedro, Jenny and Rowell ran as fast [as] they could because the companions of
the attacker also came rushing out of the footwalk and were charging at them with drawn knives. They
escaped being hurt when they sought refuge in the house of a friend at the opposite side of the
basketball court. Mrs. Del Rosario fainted upon seeing the attack on the victim.

"Pedro and Rowell recognized the attacker as the one who earlier shouted at them while they were still
inside the house of Mrs. Del Rosario. They stayed for about an hour inside the house of their friend
where they sought refuge and there they learned that the man who chased them and struck the victim
was known by the nickname, 'Yawa' and is also known as Ronnie de la Peña although his real name is
Sueene Discalsota. Much later, when the police finally came and investigated them, Pedro was shown
pictures of the suspects and he picked out the picture of accused-appellant.

"Louie Gregorio, a reluctant witness who testified only on pain of arrest for contempt of court, declared
that he was a 'live-in' partner of Nieves del Rosario; that while resting at the house of Nieves del Rosario
around 4:00 P.M. of January 24, 1996, he confirmed that the victim and three (3) others were at the
house and that no untoward incident happened while they were inside the house. Several minutes after
the boys were escorted out of the house by four (4) barangay tanods, he learned that a stabbing
incident happened outside and when he went out to investigate, he saw accused-appellant running
towards the house of his girlfriend. He was only about five (5) arms length from accused-appellant who
was carrying a bloodied long knife which he did not even bother to conceal. He heard accused-appellant
shouting, 'Naigo ko gid!' (I got him). He also confirmed that Ronnie de la Peña is the same accused-
appellant Sueene Discalsota.

"The victim was rushed to the Corazon Locsin Montelibano Memorial Hospital. He was still alive when
the police and his mother arrived. However, he was already breathing heavily, in a critical condition, and
could no longer respond. A few minutes later, he was pronounced dead by the doctor.

"Dr. Hildegard B. Madalag conducted the autopsy on the body of the victim and submitted a Report of
his findings (Exhibit D). He confirmed his findings in open court and further testified that upon
examination, he found the kidney of the victim completely 'transacted' or totally cut. The knife's entry
point was at the back, a direct and straight thrust which went through three (3) vital organs - pancreas,
stomach and the kidney, causing 'massive gastric spillage.' He gave the cause of death in the Certificate
of Death (Exhibit E) as 'Hypo-volemic shock.'

"Despite lack of cooperation from the residents of the area where the incident happened, the police
authorities were able to arrest accused-appellant on the identification of Pedro Ramos and Rowell
Lavega."7

Version of the Defense

On the other hand, the Public Attorney's Office narrated appellants' version of the incident as follows:8

"SUEENE DISCALSOTA, denied that he was [the] one who stabbed and killed Herbert Suarnaba. He
testified that in the afternoon of January 24, 1996, he was in their house at Purok Kingfisher, Libertad
Baybay, Bacolod City, from 3:00 to 5:00 P.M. He was tending their store where he acted as cashier. His
companion thereat were older sister Aileen and younger sister Yvette. He never left their store even
after 5:00 P.M. When his mother Lilia Discalsota arrived from the Central Market she took over the
chores in the store. He only learned that there was a stabbing incident on the following day (January 25,
1996).

"He learned that he was charged [with] Murder on April 7, 1997, when he was arrested by policemen in
the house of his wife, Christina at Purok Tulihaw, Brgy. 16, Bacolod City. He was surprised when the
policemen presented a warrant for his arrest. The policemen told him that he was involved in a murder
case in Libertad, Baybay, Bacolod City in January 1996. He did not want to go with the policemen, but it
was a certain Tiyo Erwin who prevailed upon him to go with the arresting officers. He was then brought
to Bac[k]-up I and later to headquarters. He was subsequently detained at the 'Lock-up'.

"He further testified that he [did] not know Louie Gregorio, one of the witnesses for the prosecution. He
[did] not know whether Louie Gregorio [was] the common law husband of Nieves del Rosario but he met
her only at the City jail, when she visited her common-law husband Marcial Flores, in January 1998.
Marcial Flores [was] his neighbor at Libertad, Baybay.

"Discalsota also denied leaving Libertad, Baybay, Bacolod City after the incident. He was there on
January 25, 1996, and he was even able to leave their house that day. He continued staying in their
house x x x until April 1996. Eventually their house was demolished in 1997 and his family transferred to
Tangub. He nevertheless, remained in the area and stayed with his wife at her house in Purok Tulinaw,
which was just about 30 meters away from the house of Nieves del Rosario.

"He denied membership [in] any fraternity, much less U-2. He declared that 'Yawa,' x x x Ming, Michael
Bartolo, Da-dan, were not his neighbors, but admitted they were residents of the place. These persons
are members of Red-O fraternity. He denied knowing Ulysses Tonggoy. He admitted knowing x x x
Alfonso one of the CVO's mentioned by prosecution's [witness] Alfonso de la Cruz. He mentioned that
he [was] not 'Yawa' but one Stephen.

"EVETTE DISCALSOTA corroborated the testimony of Suenne Discalsota. She testified that she was
tending their store the whole day of January 24, 1996. Her companions thereat were her brother,
Sueene[;] and sister, Aileen. Their store opened at 7:00 A.M. and closed on that particular day, at 9:00
P.M. her brother Sueene never left the store from 7:00 A.M. to 9:00 P.M. Sueene was then acting as the
cashier of their store.

"She also testified that she did not know that her brother Sueene was charged in court. When her
brother was arrested she went to the police station and inquired why Sueene was detained and she was
told he had a case. She then told the police that on the day the alleged stabbing was committed Sueene
was not able to leave the house the whole day."9

Ruling of the Trial Court

The RTC ruled that appellant had positively been identified by the prosecution witnesses as the culprit
responsible for the death of Herbert Suarnaba. It gave no credence to the denial and alibi proffered by
appellant. It also appreciated evident premeditation and treachery as qualifying and aggravating
circumstances, respectively, and thus sentenced him to death.

Hence, this automatic review before us.10

Assignment of Errors

In his Brief, appellant faults the trial court with the following alleged errors:

"I

The trial court gravely erred in finding accused-appellant guilty beyond reasonable doubt of the crime of
murder as charged in the information despite the failure of the prosecution to prove the qualifying
circumstances of evident premeditation and treachery.

"II

The trial court erred in imposing the death penalty upon the accused-appellant."11

The Court's Ruling

The appeal is partly meritorious.

Preliminary Matter
Appellant no longer questions the finding of the RTC that he stabbed and killed Herbert Suarnaba.
However, an appeal in a criminal case opens the whole case to review. Thus, we shall still pass upon the
matter.

The prosecution witnesses were one in identifying appellant as the person who had wielded a knife and
stabbed the victim. Appellant had nothing to offer in his defense but an alibi corroborated by his two
sisters. A careful scrutiny of the records shows no reason to disbelieve the prosecution witnesses and to
overturn the court a quo's finding that they were credible.

Basic is the rule that the findings of the trial court on the credibility of witnesses are entitled to the
highest respect and will not be disturbed on appeal in the absence of any showing that it overlooked,
misunderstood, or misapplied some facts or circumstances of weight and substance.12

Also, the RTC was correct in disregarding the alibi of appellant. As it aptly ruled, his "defense of alibi
crumbles in the face of the positive identification of the accused by prosecution witnesses as being
present in the scene of the crime."13

First Issue:

Evident Premeditation and Treachery

Appellant contends that evident premeditation should not have been appreciated by the trial court as a
qualifying circumstance.

It is settled that qualifying circumstances cannot be presumed, but must be established by clear and
convincing evidence as conclusively as the killing itself.14

"[F]or evident premeditation to be appreciated, there must be proof, as clear as the evidence of the
crime itself of the following elements thereof, viz: (a) the time when the accused determined to commit
the crime; (b) an act manifestly indicating that the accused has clung to his determination, and (c)
sufficient lapse of time between the determination and execution to allow himself to reflect upon the
consequences of his act."15

In this case, the first two elements of evident premeditation are present. As found by the RTC, the time
appellant determined to commit the crime was when he started shouting at the victim and the latter's
companions: "You, there, get out and we will kill you!" By staying outside the house and following the
victim's companions when they came out, he manifestly indicated that he clung to his determination.

As for the third element, the prosecution evidence shows that appellant started shouting outside Mrs.
del Rosario's house at 3:30 p.m.16 When the victim's group left the house, it was not yet dark;17 it was
only past four o'clock in the afternoon.18 The police received information on the stabbing incident at
4:3019 p.m. on the same day. It took less than an hour from the time appellant evinced a desire to
commit the crime, as manifested by his shouts outside the house, up to the time he stabbed the victim.
The span of less than one hour could not have afforded the former full opportunity for meditation and
reflection on the consequences of the crime he committed.

The essence of premeditation is that the execution of the criminal act must be preceded by cool thought
and reflection on the resolution to carry out the criminal intent during a space of time sufficient to arrive
at a calm judgment.20
"To justify the inference of deliberate premeditation, there must be a period sufficient in a judicial sense
to afford full opportunity for meditation and reflection and to allow the conscience of the actor to
overcome the resolution of his will if he desires to hearken to its warning."21

Where no sufficient lapse of time is appreciable from the determination to commit the crime until its
execution, evident premeditation cannot be appreciated.22 Hence, the lower court erred in holding that
evident premeditation qualified the killing to murder.

No Treachery

Appellant also argues that treachery did not attend the commission of the crime.

There is treachery when the offender commits any of the crimes against persons employing means,
methods, or forms of attack that tend directly and specially to insure the execution of the crime without
risk arising from the defense that the offended party might make.23

"For treachery to exist, two essential elements must concur: (a) the employment of means of execution
that gives the person attacked no opportunity to defend himself or to retaliate, and (b) the said means
of execution was deliberately or consciously adopted."24 Treachery cannot be presumed; it must be
proved by clear and convincing evidence or as conclusively as the killing itself.25

In the present case, the victim had the opportunity to escape or to defend himself. Before he and his
group left the house of Mrs. del Rosario, they had already been forewarned of violent aggression from
appellant, whose words and stance while outside the house made its imminence clear. The mode of
attack adopted by appellant was not without risk to himself; neither was it sudden. When he began his
menacing approach, he was visible to the victim and the latter's companions. Appellant was out in the
open and thus at risk from any defense which the group might make. The presence of such risk and the
existence of ample opportunity for the victim to escape or defend himself negated treachery.

Second Issue:

Proper Penalty

In his Brief, appellant further claims to have been a minor at the time of the commission of the crime.
This matter was, however, not raised during the trial. Furthermore, in his direct examination held on
June 11, 1998, he stated for the record that he was a 20-year-old married man. Hence, we cannot agree
to appreciate minority as a privileged mitigating circumstance.

Absent any qualifying circumstance, appellant may be convicted of homicide only. Considering further
the absence of any aggravating or mitigating circumstance, the imposable penalty of reclusion
temporal should be in the medium period26 and encompassed by the Indeterminate Sentence Law.

Damages

We affirm the RTC's award of P50,000 as civil indemnity and P30,000.00 as moral damages. However,
the grant of actual damages should be reduced to P10,890, since this is the only amount duly supported
by a statement of account and receipts. "To justify an award of actual damages, it is necessary to prove
with a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable by the injured party, the actual amount of loss."27
WHEREFORE, the appeal is PARTLY GRANTED. Appellant is CONVICTED of homicide and is SENTENCED to
an indeterminate penalty of 10 years of prision mayor medium as minimum to 17 years and 4 months
of reclusion temporal medium as maximum. The grant of civil indemnity and moral damages
is AFFIRMED, but that of actual damages is reduced to P10,890. No pronouncement as to costs.

SO ORDERED.

G.R. No. L-32914 August 30, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LAUREANO SANGALANG, accused-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Octavio R. Ramirez and
Solicitor Ma. Rosario Quetulio Losa for plaintiff-appellee.

Narciso V. Cruz, Jr. for accused-appellant.

AQUINO, J.:p

This is a murder case. The testimonies of the two prosecution eyewitnesses disclose that at around six
o'clock in the morning of June 9, 1968 Ricardo Cortez left his nipa hut located at Sitio Adlas, Barrio
Biluso, Silang, Cavite to gather tuba from a coconut tree nearby. Flora Sarno, his wife, was left inside the
hut. While he was on top of the tree gathering tuba, he was struck by a volley of shots. He fell to the
ground at the base of the coconut tree.

His wife Flora heard three successive shot coming south of the hut. She went outside the hut. From a
distance of about twenty-five meters, she saw five men, each armed with a long firearm, firing at her
husband. He was already wounded and was lying on the ground at the foot of the coconut tree. His
assailants were about five meters away from him.

She recognized Laureano Sangalang as one of the five armed men who were firing at her husband. She
and her brother Ricardo had known Sangalang since their childhood. She also recognized Conrado
Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the other malefactors.

Flora ran towards the place where her husband had fallen. She shouted, "Bakit ninyo pinagbabaril ang
aking asawa". The five persons fired at her. She was then about twenty meters away from them. She
retreated to the hut for cover. She heard some more shots. After the lapse of about five minutes,
Laureano Sangalang and his companions left the place. When Flora returned to the spot where her
husband was prostrate, he was already dead.

On the occasion already described, Ricardo Sarno, twenty-seven years old, a brother of Flora, was inside
his own nipa hut which was about ten meters away from Flora's hut. He was drinking coffee. His wife
and children were eating breakfast. He heard several shots. He came out of his hut. He saw his brother-
in-law being shot by Laureano Sangalang, Eleuterio Cuyom, Perino Canuel, Irineo Canuel and Conrado
Gonzales. He saw Sangalang using a Garand carbine in shooting his brother-in-law. The latter fell from
the top of the coconut tree after he was shot (10 tsn). His sister Flora was trying to approach her
husband but she had to flee to her hut when Sangalang and his companions fired at her. He wanted to
join her but he was likewise fired upon by the five men. So, he retired and took refuge in his own hut.

Later, Sarno saw his sister Flora, sitting inside her hut. He followed her after she left the hut and went to
see her dead husband, who was lying on the ground, face up, at the base of the coconut tree. When he
noticed that his brother-in-law was already dead, he gathered his children and brought them to Sitio
Biga, which was more or less thirty meters away from his hut in Sitio Adlas. Ricardo reported the killing
to the chief of police who went to the scene of the crime with some policemen and Constabularymen.

The necropsy report shows that the twenty-five-year-old Cortez sustained twenty-three gunshot
wounds on the different parts of the body, fourteen of which were entrance-wounds, and nine were
exit-wounds (Exh. A and B). He died due to the multiple gunshot wounds (Exh. C).

On June 10, 1968 or on the day following the killing, Flora and Ricardo were interrogated by the Silang
police. They executed sworn statements before the Municipal Judge pointing to Laureano Sangalang,
Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the assassins of Ricardo Cortez.
Flora said in her statement that she knew those persons because from time to time they used to pass by
her place. They resided at Barrio Capitula, Dasmariñas, which is near Barrio Adlas. On the basis of those
statements, the police filed on June 10 in the Municipal Court a complaint for murder against the five
aforenamed persons. Sangalang was arrested. He posted bail in the sum of P50,000 on June 13. He
waived the second stage of the preliminary investigation. The other accused have not been
apprehended. On August 8, 1968 the Provincial Fiscal filed an information for murder against Sangalang.

After trial, the Court of First Instance of Cavite, Tagaytay City Branch, rendered a judgment convicting
Sangalang of murder, sentencing him to reclusion perpetua and ordering him to pay the heirs of Ricardo
Cortez an indemnity of twelve thousand pesos and to pay his widow moral damages in the sum of ten
thousand pesos (Criminal Case No. TG-162). Sangalang appealed.

The appellant, a fifty-six-year old farmer, admitted that he knew Cortez and that he knows his wife,
Flora Sarno. He pleaded an alibi. He declared that in the afternoon of June 8, 1968 he and Crispulo
Mendoza went to the house of Julian Gatdula at Dapitan Street, Sampaloc, Manila. He arrived at
Gatdula's place at six o'clock. He wanted to borrow money from Gatdula to defray the matriculation fees
of his children.

As Gatdula had no money at that time, he advised Sangalang to wait until morning. He would try to raise
the sum of two hundred pesos which Sangalang desired to borrow. Sangalang and Mendoza agreed.
They allegedly slept in Gatdula's house on the night of June 8th. The next morning, they breakfasted in
that house. At about ten o'clock on June 9, Gatdula delivered the two hundred pesos to Sangalang. He
and Mendoza then went to the Central Market in Manila and then to Quiapo. They returned to Cavite
and arrived at seven o'clock in the evening of June 9 in Barrio Capdula. Gatdula and Mendoza
corroborated Sangalang's alibi.

In this appeal Sangalang insists on his alibi and impugns the credibility of the prosecution eyewitnesses,
Mrs. Cortez and the victim's brother-in-law, Ricardo Sarno. The basic issue is whether their eyewitness-
testimony that they saw appellant Sangalang as one of the five armed persons, who riddled Cortez with
fourteen gunshot wounds of entry, is sufficient to overcome his alibi. In essence, the case projects the
ever recurring conflict in criminal jurisprudence between positive identification and alibi.

The trial court rejected appellant's alibi. It noted that although his witnesses, Mendoza and Gatdula,
learned of his arrest, and Mendoza even visited him in the municipal jail, Sangalang and his witnesses
did not interpose the defense of alibi when he was investigated by the police and when he was
summoned at the preliminary investigation.

Sangalang points to certain discrepancies in the declarations of Mrs. Cortez and her brother Ricardo
Sarno. Those inconsistencies, which are not glaring, strengthen their credibility and show that their
testimonies were not coached nor rehearsed. The discrepancies may be attributed to deficiencies in
observation and recollection, or misapprehension of the misleading and confusing questions during
cross-examination, or to the defective translation of the questions and answers but they do not
necessarily indicate a wilful attempt to commit falsehood (People vs. Selfaison, 110 Phil. 839; People vs.
Resayaga, L-23234, December 26, 1973, 54 SCRA 350).

The controlling fact is that Mrs. Cortez and Sarno clearly and consistently testified that they saw
Sangalang, a person already well-known to them, among the five armed persons who shot Ricardo
Cortez. That unwavering identification negates appellant's alibi.

The prosecution did not prove the motive for the killing. On the other hand, Sangalang did not show that
Mrs. Cortez and Sarno were impelled by a malicious desire to falsely incriminate him. .

Counsel de oficio meticulously examined the contradictions and deficiencies in the evidence for the
prosecution. He made a spirited defense of the appellant. However, his efforts failed to cast any
reasonable doubt on Sangalang's complicity in the killing.

The victim was shot while he was gathering tuba on top of a coconut tree. He was unarmed and
defenseless. He was not expecting to be assaulted. He did not give any immediate provocation. The
deliberate, surprise attack shows that Sangalang and his companions employed a mode of execution
which insured the killing without any risk to them arising from any defense which the victim could have
made. The qualifying circumstance of treachery (alevosia), which was alleged in the information, was
duly established (See art. 14[16], Revised Penal Code). Hence, the killing can be categorized as murder
(See People vs. Sedenio, 94 Phil. 1046). Treachery absorbs the aggravating circumstance of band(U. S. vs.
Abelinde, 1 Phil. 568). Evident premeditation, which was alleged in the information, was not proven.

The trial court correctly imposed the penalty of reclusion perpetua on Sangalang (Arts. 64[1] and 248,
Revised Penal Code).

Finding no error in its judgment, the same is affirmed with costs against the appellant.

SO ORDERED.
G.R. No. 126281. June 10, 2003]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SERGIO A. CARATAO, appellant.

DECISION

AZCUNA, J.:

Sergio A. Caratao appeals from the decision of the Regional Trial Court of Libertad, Butuan City, Branch
3, in Criminal Case No. 5143, dated December 22, 1995, finding him guilty of murder, as follows:

WHEREFORE, in the light of the foregoing findings of facts and law, with the attendan[ce] of the
qualifying circumstance of treachery, the court finds the accused Sergio A. Caratao guilty beyond
reasonable doubt of the crime of murder under Art. 248, Revised Penal Code. Republic Act No. 7659
defining heinous crimes was not yet passed and effective at the time of the commission of the crime.
Accused Sergio A. Caratao is hereby sentenced to suffer the penalty of reclusion perpetua, with all the
accessory penalties provided for in Art. 41, Revised Penal Code. Further, the knife used in the
commission of the crime is hereby declared confiscated and forfeited in favor of the government.
Furthermore, he is ordered to indemnify the heirs of the deceased Edgardo Tado Bulawin, the following:

(1) P50,000.00 for the death of Edgardo Tado Bulawin;

(2) P22,050.00 as actual damages ; and

(3) P20,000.00 as moral damages.

And also to pay the costs.1cräläwvirtualibräry

On July 21, 1992, appellant was charged under an amended information, thus:

That on or about the 27th day of April, 1992, at, more or less, 4:20 oclock in the evening, at Nalco
Commissary Compound, Hill Top Village, Nasipit, Agusan del Norte, Philippines, and within the
jurisdiction of this Honorable Court, the above-name[d] accused, armed with a bladed weapon, with
intent to kill and with evident premeditation and treachery and with cruelty, did then and there willfully,
unlawfully, and feloniously attack, assault and stab Edgardo Bulawin, thus inflicting upon him stab
wounds on the different parts of his body, which directly caused his death.

CONTRARY TO LAW: (Article 248, of the Revised Penal Code).2cräläwvirtualibräry

Upon his arraignment on August 11, 1992, appellant, assisted by his counsel, entered a plea of not
guilty.3 Trial thereafter ensued and the court a quo rendered the assailed decision.

The prosecution relies on the eyewitness accounts of Martin Sugala, Eugenio Agudera and Roberto
Mangmang. The widow of the deceased, Moreta Bulawin, testified to prove civil damages. Their
testimonies are summarized below.

Martin Sugala, a rice dispatching checker employed with Nasipit Agusan Lumber Company (NALCO) at
Nasipit, Agusan del Norte, testified that at around 4:00 p.m., appellant and his wife entered the
commissary canteen of NALCO. Appellants wife approached Sugala and told him that her husband was
angry. Sugala asked appellant about this. Appellant replied, saying that he was not given additional
rice vale by the victim Edgardo Tado Bulawin, NALCOs rice vale issuer. After checking that there was
extra rice available, Sugala assured appellant that he would give him an additional 25 kilos.

Shortly thereafter, Sugala saw the victim walk out of the canteen. Sensing that appellant was about to
rush to the victim, the witness restrained him and said, Do not do anything harsh because we are all
brothers here, anyway I am giving you [an] additional 25 kilos of rice. He placed his arm around
appellant and accompanied him to the issuing area for the additional rice. Upon reaching the issuing
area, he first checked the rice being issued to two employees. After this, he noticed that appellant was
no longer near him. Through the canteens screened windows, he next saw appellant standing one meter
behind the victim, who was then already astride his motorbike. About 5 meters from Sugalas position,
the victims motorbike was facing towards the exit gate, with its engine already running.4 At that
moment, he saw appellant attack the victim from behind:

Q. What did you observe next?

A. When I saw that Sergio Caratao was already about 1 meter away from the back of Edgardo Bulawin, I
shouted to him saying Bay, your rice is ready. At that moment, I saw that the left hand of Caratao was
on the shoulder of Bulawin and his right hand was on the side of Bulawin. I thought he only boxed the
latter.

Q. Aside from thrusting his hand at the side of Bulawin, what else if any did you see Caratao do with his
hand?

A. When the right hand was on the side of Bulawin, it was retracted very fast and I saw that that hand
was holding a knife, and [that he] immediately made another thrust towards here. (witness pointing to
his nose)

ATTY. GONZALES: With the permission of the Court, may we request the witness to re-enact what [he]
actually saw, and we request the jail guard to act as the victim.

COURT: Okay.

INTERPRETER: (Jail guard Meode being requested to act as Edgardo Bulawin and the witness as accused
Sergio Caratao.)

(Edgardo Bulawin made an initial stance as if riding on a motorcycle with both hands on the handle bars
of the motorcycle.)

ATTY GONZALES:

Q. Where was Caratao when you first saw him, how far was he?

A. This distance, [S]ir. (witness demonstrating a distance of about 1 meter from the back of Bulawin)

Q. Then re-enact what you saw.

A. After I shouted Bay, your rice is ready, I saw Sergio Caratao, in a simultaneous action, place his left
hand on the left shoulder of Bulawin and the right hand of Caratao on the right side of Bulawin. When
Sergio Caratao withdrew his right hand from the right side of Bulawin, I saw that the right hand has a
knife in it, and a second thrusting motion was made towards the face of Bulawin. After that, Bulawin got
off from his motorcycle and ran towards the cemented road. Sergio Caratao remained standing on the
place of the incident still holding that knife, and after that, Caratao and his wife went
home.5cräläwvirtualibräry

Sugala also recalled seeing many people at the scene of the incident, such as some NALCO employees,
security guards, and outsiders who buy rice from the canteen called the
blackmarketers.6cräläwvirtualibräry

Roberto Mangmang, canteen dispatcher of NALCO, corroborated Sugalas testimony. He testified that in
the afternoon of April 27, 1992, while walking from the canteen towards the gate, he saw the victim in a
squatting position, tinkering with his motorbike.7 Shortly thereafter, on his way back to the canteen, at
around 4:20 p.m., he saw appellant behind the victim who was already astride his motorbike facing the
gate, with his hands on its handle bars. From a distance of one and a half meter, he witnessed appellant
put his left hand on the victims left shoulder and thrust his right hand on the victims right side.
Immediately thereafter, appellant made another thrust at the victims face. At that point, Mangmang
saw that appellant was holding a dagger, and he later heard somebody shout, Do, run! The victim then
ran out through the gate towards the hospital, while appellant ran home. Mangmang followed the
victim and saw his intestines bulging and coming out. He then brought the victim to the nearby hospital
aboard a tricycle.8 He testified having seen many employees in the area at the time of the incident,
whom he could not identify.9cräläwvirtualibräry

Eugenio Agudera, the security guard of NALCO, testified that on April 27, 1992, he likewise saw the
stabbing incident four meters away from the guardhouse by the gate of the canteen. At around 4:15
p.m., he witnessed appellant sneak from behind the victim who was astride his motorcycle, and stab the
victims right side with a knife. Immediately thereafter, appellant delivered a second blow, with a
slashing motion across the victims mouth. Upon seeing this, he shouted, Run, Do!, directed at the victim.
The victim then ran out towards the highway through the gate, while clutching his stomach as it bled
profusely.10 Agudera also confirmed the presence of those who witnessed the incident such as
Clemente Felias, Roberto Mangmang, Dino Macabugto, Martin Sugala and the
blackmarketers.11cräläwvirtualibräry

Moreta Bulawin, wife of the victim, testified that she saw her husband in St. Christopher Hospital
around 4:30 p.m. with stab wounds on his right stomach and upper lip, and a cut across his right
cheek.12 Shortly thereafter, the victim was transferred to Butuan Doctors Hospital, where he expired.
She presented her husbands death certificate to prove his age at the time of death,13 and his latest
income tax return to prove his annual gross income of P37,432.14 She testified that she spent more
than P30,000 for hospital and funeral expenses, some of which were supported with
receipts.15cräläwvirtualibräry

The defense presented four witnesses, namely, appellant, Nancy Sotis, Delia Peramide, and SPO4
Bienvenido Capablanca.

Taking the witness stand, appellant Sergio Caratao admitted stabbing the victim, but interposed self-
defense to exculpate himself. He testified that on April 27, 1992, at around 4:00 p.m., he was with his
wife at the NALCO Commissary Canteen, where the victim was then on duty as rice valeissuer. He
requested the victim for his rice vale. The victim told him to wait. Appellant hence waited nearby for
around ten minutes, while the victim issued rice to others. Appellant thereafter kept begging the victim
for his turn, telling him Do, give me my rice because I have nothing to eat for supper, but the victim
made no reply. Despite repeated pleas, he was not given any rice. Upon seeing the victim leave the
issuing area, he kept silent and walked away. He went to his wife and told her that he was unable to get
rice. His wife then left.

Shortly thereafter, appellant also left to go home. On his way out, he saw the victim getting his
motorbike. He approached the victim, who at that point was already mounted on his motorcycle,
holding the handle bars, with the engine already running. As appellant stood one meter away from the
victim, along the right side of the motorcycle, he asked, Do, how about my rice? The victim answered,
That is no longer my problem. Why are you forcing me? Appellant persisted with his pleas, and the
victim angrily answered back, Are you forcing me? Immediately thereafter, the victim punched
appellants face with his right fist and said, You are always like that, you are forcing me. Appellant was
thrown backward, and the victim moved his motorbike forward, hitting appellants left thigh near the
groin. Appellant then held the victims right hand, and when the victim tried to break free, he twisted it.
Thereafter, with a knife on his right hand, he stabbed the right portion of the victims belly. In retaliation,
the victim punched appellant with his left fist, hitting appellants mouth. The victim thereafter ran, while
appellant remained standing for about ten minutes. He later followed the victim to the gate, and saw
the victim from afar boarding a tricycle alone. Appellant went home to get his tricycle and immediately
drove to the municipal hall, where he voluntarily surrendered.16cräläwvirtualibräry

In his testimony, appellant denied seeing any guard at the guardhouse at the time of the incident. He
saw Mangmang only, inside the canteen,17 and denied hearing anyone shout Run, Do!18 On his way out
of the gate after the stabbing, he noticed only one person in the compound, a woman sitting under the
jackfruit tree at the corner by the gate, whom he does not know. He recalled seeing other people
outside the gate of the canteen, whom he could not identify.19 On cross-examination, however, he
confirmed the presence of Agudera outside the said gate.20cräläwvirtualibräry

Nancy Sotis, a blackmarketer who frequented the NALCO canteen, testified that she was seated under a
jackfruit tree by the gate of the canteen the whole day of April 27, 1992.21 At about 4:00 p.m., from a
distance of four meters, she saw the victim astride his motorcycle, with its engine already running.
Appellant then approached the victim and stood in front of the latter, a little obliquely to the right. She
saw appellant utter something to the victim, which she did not hear because of the sound of the engine.
She looked away, and when she glanced back at their direction, she saw the victim punch appellant in
the face with his right hand. Appellant then thrust something near the victims abdomen. Upon seeing
appellant pull out a knife from the victims abdomen, she shouted to the people outside the fence of the
canteen. When she looked back, he saw the victim raise his right fist towards appellants face. Appellant
then stabbed the victims face with his knife. The victim thereafter alighted from his motorcycle and
walked towards the gate, holding his bleeding abdomen. The people outside the fence were about to
meet and assist him, but they later turned back when they saw appellant following the
victim.22cräläwvirtualibräry

Sotis testified that there was nobody near the victim and appellant at the time of the incident.23She
denied seeing Mangmang,24 but confirmed that Sugala was then inside the canteen.25 She admitted
having seen in the morning a security guard at the guardhouse, by the name of Felias, but was uncertain
as to his presence from noontime onwards.26 She denied seeing any guard at the gatepost at the time
of the incident,27 but admitted seeing Agudera approach the victim when the latter was about to go out
of the gate.28cräläwvirtualibräry

Delia Peramide, a blackmarketer like Sotis, testified to rebut the statement of prosecution eyewitness
Mangmang, who declared that he brought the victim to the hospital aboard a tricycle. She narrated that
in the afternoon of April 27, 1992, while she was in line for consultation inside St. Christopher Hospital,
she heard someone shout, Doctor, there is an emergency. She ran to look outside, and saw a tricycle
parked outside the hospital, about 20 to 25 meters away from where she stood. She saw the driver, and
a bloodied person curled up on the passengers seat, whom she later recognized as Tado Bulawin.29 She
declared that when she saw the victim in the tricycle, Mangmang was not with him. She saw Mangmang
in the hospital only after 15 minutes, when he was on his way to the emergency room to visit the
victim.30cräläwvirtualibräry

SPO4 Bienvenido Capablanca, chief of the operations division at Nasipit PNP Station, testified that at
about 4:30 p.m. of April 27, 1992, appellant, looking cool and composed, arrived at the station and told
him, Sir, I voluntarily surrender myself because I have killed somebody. Appellant identified the victim as
a certain Tado, and also surrendered his knife.31cräläwvirtualibräry

For its rebuttal evidence, the prosecution recalled Roberto Mangmang and presented a new witness,
Clemente Felias.

Roberto Mangmang, the prosecution eyewitness who testified earlier, added that the victim never
boxed appellant, nor did he try to run over the latter with his motorcycle prior to the stabbing, contrary
to appellants claim.32cräläwvirtualibräry

Clemente Felias, the NALCO security guard whose shift was previous to that of prosecution eyewitness
Agudera, testified that throughout his tour of duty from 8:00 a.m. to 4:00 p.m., he never saw defense
eyewitness Sotis within the compound. He also testified that he, too, witnessed the incident, and
declared that it was not true that the victim punched appellant before the
stabbing. 33cräläwvirtualibräry

The trial court gave credence to the prosecutions version of the incident. It found that the victims
indifference to appellants repeated pleas for rice must have angered appellant to the point of attacking
the victim upon seeing the latter about to leave without heeding his request. It rejected the plea of self-
defense for appellants failure to prove unlawful aggression on the part of the victim. It upheld the
presence of treachery, but ruled out the aggravating circumstances of evident premeditation and
cruelty, for lack of evidence.

Hence, this appeal.

In his brief, appellant submits the following errors:

I. THE HONORABLE COURT GRAVELY ERRED IN NOT FINDING THAT THE KILLING OF THE DECEASED WAS
ATTENDED BY [THE] JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE.

II. THE LOWER COURT LIKEWISE GRAVELY ERRED IN HOLDING THAT ACCUSED COMMITTED MURDER BY
TREACHERY.
III. THE LOWER COURT ALSO GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED-
APPELLANT.34cräläwvirtualibräry

In his first and third assignment of errors, appellant assails the trial court for giving credence to the
prosecutions evidence and disregarding his claim of self-defense.

The settled rule is that where an accused admits killing the victim but invokes self-defense to escape
criminal liability, he assumes the burden to establish his plea by credible, clear and convincing evidence;
otherwise, conviction would follow from his admission that he killed the victim.35 This is known as a
shift in the burden of the evidence, and as a result thereof the person claiming self-defense must rely on
the strength of his own evidence and not on the weakness of the prosecutions.36 Furthermore, on
appeal, appellant must show that the court below committed reversible error in appreciating the
evidence.37cräläwvirtualibräry

To prove self-defense, the accused must show with clear and convincing evidence: (1) that the victim
committed unlawful aggression amounting to actual or imminent threat to the life and limb of the
person claiming self-defense; (2) that there was reasonable necessity in the means employed to prevent
or repel the unlawful aggression; and (3) that there was lack of sufficient provocation on the part of the
person claiming self-defense or, at least, that any provocation executed by the person claiming self-
defense was not the proximate and immediate cause of the victims aggression.38cräläwvirtualibräry

At the heart of the claim for self-defense is the presence of an unlawful aggression committed against
appellant. Without unlawful aggression, self-defense will not have a leg to stand on and this justifying
circumstance cannot and will not be appreciated, even if the other elements are present.39 Unlawful
aggression refers to an attack amounting to actual or imminent threat to the life and limb of the person
claiming self-defense.40 The admission of appellant in his testimony that he stabbed the victim makes it
incumbent upon him convincingly to prove that there was unlawful aggression on the part of the victim
which necessitated the use of deadly force.41 In the case at bar, appellant tried to prove that the
unlawful aggression emanated from the victim, who punched him in the face and hit him in the thigh
with his motorbike, without provocation on his part. This the trial court found unconvincing, thus:

Under the situation where Tado Bulawin was in a riding position on his motorcycle, holding its handle
bars, ready to start the engine, the court finds it incredible for him to be the unlawful aggressor. Instead,
Sergio Carataos being made to wait and make repeated requests or pleas for his vale of rice must have
moved him to be the unlawful aggressor thereby inflicting stab wounds on the victim Tado Bulawin. For
the circumstance of self-defense to be appreciated, it must be shown that the compulsion is of such
character that the accused is left with no opportunity to escape or self-defense [sic] in equal combat
(People v. Fronda, 222 SCRA 71). And this is not the set-up in the case at bar. The prosecution version
merits belief and credence beyond reasonable doubt.42cräläwvirtualibräry

We agree with the foregoing finding of the trial court. Appellants account of the circumstances of the
attack does not inspire belief.

First, according to appellants testimony, after an exchange of words, the victim punched him in the face,
and thereafter hit his left thigh with his motorcycle. Appellant held the victims hand, twisted it and
stabbed the latter in the abdomen. The victim then punched appellant in the mouth with his left fist.
After this, the victim ran away. Noticeably, in this narration, nowhere did appellant mention that he
stabbed the victim for the second time in the face. This is in conflict with the testimonies of the
prosecution witnesses, and even of the defense witness Sotis, who all narrated that appellant stabbed
the victim in the mouth. Appellants account, moreover, does not jibe with the physical evidence
showing the victims injuries below the nose and across the cheek.43cräläwvirtualibräry

Second, on cross-examination, appellant missed the part where the victim allegedly hit his left thigh
with the motorcycle, testifying that after the first punch, he immediately stabbed the
victim.44 Interestingly, defense witness Sotis also made no mention of this important
portion,45rendering it highly dubious.

Third, we agree with the trial courts observation that the circumstances of the victims alleged assault on
appellant is not credible, thus:

xxx xxx xxx

Further, his contention that Tado Bulawin while still in that riding position boxed him and that Tado
Bulawin let run his motorcycle pushing forward hitting accused on his thigh also do not inspire belief
because accused Sergio Caratao was positioned at the right side of the motorcycle, not in front, and if at
all Tado Bulawin boxed him in that riding position, the motorcycle could have probably fallen down. But
[there was] no proof that it did fall.46cräläwvirtualibräry

xxx xxx xxx

We further observe that in their relative positions, appellant had more freedom of action than the
victim who was riding his motorcycle. Moreover, it is hardly believable that the victim in that position
would have the strength to punch appellant in the face with his left fist, after being stabbed in his right
abdomen. All the eyewitness accounts showed that, after being stabbed, the victim left his motorcycle
and walked away while clutching his bleeding abdomen with both hands.47cräläwvirtualibräry

Fourth, we note that as between appellant and the victim, appellant had more hatred to harbor arising
from the fact that the victim refused to give him his rice vale. He thus had more motive to do harm than
the victim. On the witness stand, he reasoned that he stabbed the victim, not to repel the victims attack,
nor out of fear for his life, but specifically because he lost his temper.48cräläwvirtualibräry

Fifth, we note that appellants plea of self-defense is rendered doubtful by the fact that he invoked it for
the first time only upon taking the witness stand for his defense. When he surrendered at the police
station, he only reported that he had killed a certain Tado, but never raised self-defense to exculpate
himself. Records also show that appellant waived his right to a preliminary investigation and submission
of counter-affidavits.49 We have ruled that an appellants failure to inform the police upon his surrender
that he acted in self-defense is fatal to his defense.50 A righteous individual will not cower in fear but
rather unabashedly admit the killing at the earliest opportunity if he were morally justified in so doing. A
belated plea suggests that it is false and only an afterthought made as a last-ditch effort to avoid the
consequences of the crime.51cräläwvirtualibräry

Appellant tried to obtain corroboration from Sotis and Peramide to prop up his defense and to assail the
prosecutions testimonies. The account of Sotis, however, was put to question by the rebuttal testimony
of Felias, whom Sotis admitted to having seen on the day of the incident. Felias in his testimony denied
seeing her under the jackfruit tree near the guardhouse, or anywhere within the compound on that day.
Peramides testimony, on the other hand, failed to cast doubt on the testimony of prosecution witness
Mangmang, as it was established that when she saw the tricycle where Mangmang claimed to have
ridden going to the hospital, it was already parked. It therefore does not render false Mangmangs claim
that he brought the victim to the hospital, as he could already have alighted from the vehicle by the
time Peramide saw it.

Moreover, appellant has not shown that the prosecution witnesses had any ill motive against him, which
would have moved them falsely to implicate him. On the contrary, he admitted on cross-examination
that prosecution witness Sugala is his friend.52 Prosecution witness Mangmang further testified that
appellant was his neighbor in their younger days, and that appellants brother is his friend.53 It is worth
reiterating that where there is no evidence that the principal witnesses of the prosecution were
actuated by ill motives, their testimonies are entitled to full faith and credit.54cräläwvirtualibräry

All told, no matter how appellant tried to cast doubt on the veracity of the testimonies of the
prosecution, we find the prosecution witnesses to be more credible than those of the defense. There
may have been inconsistencies in the narration of the prosecution witnesses on minor details, but these
do not affect the weight of their testimonies, as these cannot be expected to be uniform to the last
details.55 In fact, a perfectly dovetailing narration by different witnesses could mean that their
testimonies were prefabricated and rehearsed.56 What is primordial is that the mass of testimony jibes
on material points.57cräläwvirtualibräry

Furthermore, even assuming that appellant succeeded in weakening the prosecutions evidence, such
will not suffice to exculpate him. He must rely on the strength of his own evidence, and not on the
weakness of that of the prosecution, for even if it were weak, it could not be disbelieved after his open
admission of responsibility for the killing.58cräläwvirtualibräry

Finally, the question whether or not appellant acted in self-defense is essentially a question of
fact.59 The trial court found the testimonies of the prosecution worthy of belief. As to who between the
prosecution and the defense witnesses are to be believed, the trial courts assessment enjoys a great
amount of respect for the reason that the trial court has the advantage of observing the demeanor of
the witnesses as they testify, unless found to be clearly arbitrary or unfounded.60 In the present case,
appellant failed to point out any arbitrariness on the part of the trial court.

Thus, we find that the court a quo was correct in upholding the testimonies of the prosecution. The
unlawful aggression was convincingly established to have emanated from appellant, and not from the
victim. Appellant having failed to discharge the burden of establishing his defense, his conviction
necessarily follows on the basis of his admission of the killing.61cräläwvirtualibräry

This brings us to appellants second assignment of error on the finding of treachery.

Treachery is present when two conditions concur, namely: (1) that the means, methods and forms of
execution employed gave the person attacked no opportunity to defend himself or to retaliate; and (2)
that such means, methods and forms of execution were deliberately and consciously adopted by the
accused without danger to his person.62 In the case at bar, the first element was established by the fact
that appellant suddenly attacked from behind the unsuspecting and unarmed victim who was then
astride his motorcycle. However, we find the prosecutions evidence insufficient to sustain the finding of
the presence of the second element, namely, that appellant deliberately adopted the mode of attack.
Repeatedly upheld has been the rule that chance encounters, impulse killing or crimes committed at the
spur of the moment, or those that were preceded by heated altercations are generally not attended by
treachery, for lack of opportunity of the accused deliberately to employ a treacherous mode of
attack.63 In the present case, it appears from the evidence that appellants grudge against the victim was
brought about only moments before the attack, when the latter ignored his repeated pleas for rice. As
observed by the trial court, the sight of the victim leaving the compound without heeding appellants
request must have worsened his anger.64 In his testimony, appellant admitted that at that moment, he
forgot himself.65 Further, he explained that it was then customary for him to bring a knife for his own
safety, in defense against lawless elements in their area at the time.66 It was thus only by chance and
not by plan that he attacked the victim the way he did. The stabbing was evidently a result of a rash and
impetuous impulse of the moment arising from what appellant perceived to be an unjust act of the
victim, rather than from a deliberated action.67 Hence, as the killing was done at the spur of the
moment, treachery cannot be appreciated.68cräläwvirtualibräry

Furthermore, we find the mitigating circumstance of voluntary surrender present in the case at bar. To
benefit an accused, the following requisites of this circumstance must be proven, namely: (1) the
offender has not actually been arrested; (2) the offender surrendered himself to a person in authority;
and (3) the surrender was voluntary.69 In the present case, based on SPO4 Capablancas testimony,
appellants surrender at the station immediately after the incident was spontaneous, showing his intent
to submit himself unconditionally to the authorities. He expressly acknowledged having killed the victim,
surrendered his knife, and allowed himself to be detained in prison.

In the absence of the qualifying circumstance of treachery, the crime committed is Homicide, not
Murder.70 The penalty therefor, under Article 249 of the Revised Penal Code, is reclusion
temporal. Considering the attendant mitigating circumstance of voluntary surrender, the penalty should
be imposed in its minimum period, pursuant to Article 64 (2) of the aforesaid Code.71 Applying the
Indeterminate Sentence Law, appellants sentence will consist of a minimum that is anywhere within the
full range of prision mayor, and a maximum which is anywhere within reclusion temporal in its minimum
period. We hereby fix it to be from eight (8) years of prision mayor as minimum, to thirteen (13) years
of reclusion temporal, as maximum.

Coming now to the matter of damages, we affirm the award of actual damages in the amount
of P22,050, as these are duly substantiated by receipts and appear to have been genuinely incurred in
connection with the death, wake and burial of the victim. The award of civil indemnity in the amount
of P50,000 is likewise sustained, pursuant to controlling case law.72 However, we increase the award of
moral damages to a more reasonable amount of P30,000, in line with prevailing
jurisprudence.73cräläwvirtualibräry

Finally, we rule that the heirs of the victim are also entitled to indemnification for the loss of the latters
earning capacity. In a recent case, we explained how to arrive at the amount of this indemnity, thus:

The following factors should be considered in determining the compensable amount of lost earnings: (1)
the number of years for which the victim would have otherwise lived; and (2) the rate of loss sustained
by the heirs of the deceased. Life expectancy is computed using the formula adopted in the American
Combined Experience Table of Mortality: 2/3 x (80 age at death). The rate of loss is arrived at by
multiplying life expectancy by the net earnings of the deceased, i.e.,the total earnings less expenses
necessary in the creation of such earnings or income and less living and other incidental expenses. The
net earning is ordinarily pegged at fifty percent of the gross earnings.74cräläwvirtualibräry

Evidence on record reveals that the victim died at the age of 41,75 and that he was earning an annual
gross income of P37,432 from his employment with NALCO.76 The widows testimony regarding the
victims income from his sideline cannot be considered for lack of the necessary unbiased proof.77 Thus,
applying the above-cited formula, appellant should pay the victims heirs P486,616 as shown by the
following computation:

2/3 [80-41(age at the time of death)] = 26 (life expectancy)

26 x [P37,432 x 50% (annual net income)]= P 486, 61678cräläwvirtualibräry

WHEREFORE, the decision of the court a quo is MODIFIED. Appellant Sergio A. Caratao is found GUILTY
beyond reasonable doubt of Homicide, and is sentenced to suffer the penalty of an indeterminate
sentence of from eight (8) years of prision mayor as minimum to thirteen (13) years of reclusion
temporal as maximum. Appellant is further ordered to pay the heirs of the victim the amounts
of P50,000 as death indemnity, P30,000 as moral damages, P22,050 as actual damages and P486,616 as
indemnity for the victims loss of earning capacity. The decision under review is AFFIRMED in all other
respects. Cost de oficio.

SO ORDERED.

G.R. No. 134362 : February 27, 2002

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. EMELITO SITCHON y TAYAG, Accused-Appellant.

DECISION

KAPUNAN, J.:

For beating to death the two-year old son of his common-law wife, accused-appellant Emelito
Sitchon y Tayag was convicted of murder and sentenced to death by the Regional Trial Court of Manila.
His case is now before this Court on automatic review.

Appellant was charged in an information stating:

That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation,
attack, assault and use personal violence upon one MARK ANTHONY FERNANDEZ y TABORA a minor, 2
years old, by then and there mauling and clubbing him on the different parts of his body with the use of
a steel hammer and a wooden stick, approximately 18 inches long, thereby inflicting upon the latter
mortal wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.1cräläwvirtualibräry

Appellant pleaded not guilty to the above charge.2 However, before testifying in his own defense
on June 4, 1998, appellant admitted that he killed the victim and changed his plea to
guilty.3cräläwvirtualibräry

Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year old
brother Roberto; the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medico-legal
officer of the National Bureau of Investigation (NBI); and Felicisima Francisco, a forensic chemist of the
same agency.

Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street,
Tondo, Manila. His neighbor of two months, Lilia Garcia, resided in the first floor of the same house.

At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her children
when she heard the sound of a boy crying. Curious, Lilia went up the stairway, her children in tow. The
open door of the upper floor allowed Lilia to witness appellant beating two-year old Mark Anthony
Fernandez. From a distance of less than three arms length, Lilia saw appellant hit various parts of the
boys body with a piece of wood, about 14 inches in length and 2 inches in diameter. Appellant also
banged the head of the boy against the wooden wall.

The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to bring
him to the hospital. The two-year old was already black and no longer moving.4cräläwvirtualibräry

Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According to
Roberto, Macky had scattered his feces all over the house. Appellant, whom Roberto called Kuya Chito,
thus beat Macky with a belt, a hammer and a 2x2 piece of wood. Roberto could not do anything to help
his brother because he was afraid Kuya Chito might also beat him up. When Kuya Chito brought Macky
to the hospital, his little brother, who could barely talk, was not crying anymore.5cräläwvirtualibräry

Roberto identified the two pieces of wood6 that appellant allegedly used in beating the victim. He also
identified the T-shirt7 that Macky wore when he died.

A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy had
been admitted there. When PO3 Javier went to the hospital, he found the boy already dead. He
observed that the child had wounds on the left middle finger, the right index finger and both feet. The
child also had lacerations in the upper lip and contusions all over his head and body.

PO3 Javier proceeded to appellants house at No. 2001, Batangas Ext., Tondo, Manila. Human feces and
fresh blood splattered on the floor. PO3 Javier recovered from the house the broken wooden sticks, the
steel hammer,8 which were allegedly used to beat up the boy, as well as a bloodstained white T-shirt.

PO3 Javier then went to the house of appellants sister in Del Fierro St., Tondo, who informed him of
matters relative to appellants identification. Thereafter, the police conducted a search operation in
Cavite where appellants mother lived but they did not find him there. Later that afternoon, PO3 Javier
learned that appellant had surrendered to Station 3 of their district.
The following day, a staff member of the television program Magandang Gabi Bayan turned over to PO3
Javier a brown belt which appellant allegedly also used in beating the victim. Roberto Fernandez, the
victims brother, had given the belt to the staff member.9cräläwvirtualibräry

Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of the
victims body on June 12, 1996 at 4:40 p.m. He found that the boy had suffered many injuries, including
three wounds at the head and the anterior chest, which could have been inflicted with the use of blunt
objects such as a piece of wood or a fist. The child could have been dead three to four hours, or not
more than eight hours, prior to the postmortem examination. Dr. Lagonera concluded that the victim
died of bilateral pneumonia secondary to multiple blunt traversal injuries or complication of the lungs
due to said injuries.10 The autopsy report of Dr. Lagonera shows that Mark Anthony Fernandez
sustained the following injuries:

EXTERNAL FINDINGS:

1. Multiple old scars, forehead.

2. Healing lacerated wound, left forehead.

3. Healed lacerated wound, above the left eyebrow, measuring 1.2x0.2 cm.

4. Healed linear abrasions, left cheek.

5. Lacerated wound, extending up to the mucous membrane of the upper lip, measuring 2 x0.3 cm.

6. Contussion (sic), left temporo-parietal region, measuring 6x5 cms.

7. Healing lacerated wound, left zygomatic region, measuring 0.5x0.3 cm.

8. Contussion (sic), left jaw, measuring 1.5x1 cm.

9. Contussion (sic), right anterior thorax, measuring 17x12 cms.

10. Contussion (sic), right anterior forearm.

11. Lacerated wound, tip of the forefinger, right.

12. Old scar, upper 3rd , right anterior thigh.

13. Contussion (sic), right lower leg, above and below the knee measuring 9x5 cms.

14. Contussion (sic), left lower leg, above and below the knee, measuring 13x6 cms.

15. Hematoma, big toe, under the nail bed, right.

16. Contusso-abrasion, dorsum of the left foot, measuring 6x2 cms.

17. Contussion (sic), left posterior thorax, measuring 17x6 cms.

18. Contussion (sic), right postero-lateral thorax, extending up to the right lumbar region, measuring
13x6 cms.

19. Contussion (sic), right posterior forearm, measuring 24x8 cms.

20. Contussion (sic), left posterior forearm, measuring 22x7 cms.

21. Healing abrasion, right buttocks, measuring 2x0.5 cm.

22. Plucked finger nail, left middle finger, with hematoma of the nail bed.

23. Posterior hand, both swollen.

INTERNAL FINDINGS:

1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the mid-occipital
region.

2. Hematoma over the sternum and pectoralis muscles.

3. Both lungs showed patcy and confluent consolidations.

4. Small amount of rice porridge was recovered from the stomach.11cräläwvirtualibräry

Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence and
grouping of human blood found on the steel hammer, the wooden sticks, and the T-shirt that were sent
to his office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the Western Police District in Manila.12 She
prepared Report No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for human
blood but insufficient for blood group. Specimen Nos. 2 (the broken wooden sticks) and 3 (the white T-
shirt) were also positive for human blood showing reactions of Group A.13cräläwvirtualibräry

Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant admitted
killing the two-year old victim, the son of his live-in partner. He and the boys mother had lived together
for two years before the incident, starting when the boy was about a year old. He claimed he enjoyed a
harmonious relationship with his partner and that he killed the boy only because he was under the
influence of shabu, marijuana and Valium 10 at that time. Appellant professed that he began using drugs
in 1974 and that he had also taken drugs two weeks before the incident.

On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the pillow,
the bed sheets and the curtains. Appellant scolded the boy, Putang-ina ka Macky! Bakit mo ikinalat ng
ganyan ang tae mo? Halika, dadalhin kita sa baba para hugasan!Appellant got hold of Macky but the boy
struggled to free himself from appellants grasp. Appellant, still reeling from the Valium 10 he had just
taken, became so angry that he picked up a broom with a wooden handle, and hit the boy. Appellant did
not realize that he had hit Macky hard until he saw the boy sprawled on the floor, breathing with
difficulty. He dressed Macky and brought him to the Galang Medical Center at the corner of Abad Santos
Avenue and Tayabas Street, Manila. He prayed to God that nothing serious would happen to the boy.

A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can to
save the child; otherwise, he would be in serious trouble. After examining the child, the doctor told
appellant that she could not do anything more Macky was dead. The same day, appellant surrendered
to the police. He was brought to the Homicide Section at 3:00 p.m.

Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He
reiterated that he was under the influence of drugs, which he had taken one after the other. He was a
drug dependent and, in fact, had been confined at the Tagaytay Rehabilitation Center. He said he was
conscious when the incident happened but he simply did not realize that he had hit the child hard with
the brooms wooden handle. He denied having hit the boy with a hammer or having banged his head
against the wall. He hoped the trial court would be lenient with him because of his voluntary surrender.
He prayed that the court would not impose upon him the death penalty.14cräläwvirtualibräry

Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of which
reads:

WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of
the crime of murder and is sentenced to suffer the death penalty and to pay the costs. The accused is
further ordered to pay the mother of the victim Christina Tabora, moral and nominal damages in the
respective sums of P100,000.00 and P50,000.00, plus death compensation in the sum of P50,000.00,
with interest thereon at the legal rate from this date until fully paid.

SO ORDERED.15cräläwvirtualibräry

The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony Fernandez.
Appellants guilt was adequately established by the testimonies of Lilia Garcia and Roberto Fernandez,
who both saw appellant beat Macky. These testimonies were further corroborated by those of PO3 Paul
Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as well as the various pieces of object
evidence. Indeed, appellant in open court admitted beating the poor child, which beating resulted in the
latters death.

That appellant purportedly did not intend to kill the toddler would not exculpate him from liability.
Article 4(1) of the Revised Penal Code provides that criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful act done be different from that which he intended.
The rationale of the rule is found in the doctrine that el que es causa de la causa es causa del mal
causado (he who is the cause of the cause is the cause of the evil caused).16cräläwvirtualibräry

Thus, where the accused violently kicked the sleeping victim in vital parts of the latters body, the
accused is liable for the supervening death as a consequence of the injuries.17 Assuming, therefore, that
appellant merely intended to inflict physical injuries upon the boy, he is nevertheless liable for the death
of the victim caused by such injuries.

The killing in this case was attended by treachery. There is treachery when the offender commits any of
the crimes against persons, employing means, methods or forms in the execution thereof which tend
directly and especially to insure its execution without risk to himself arising from the defense which the
offended party might make.18 It is beyond dispute that the killing of minor children who, by reason of
their tender years, could not be expected to put up a defense, is treacherous.19cräläwvirtualibräry

Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution
must prove: (a) the time the accused decided to commit the crime; (b) an overt act manifestly indicating
that he clung to his determination; and (c) sufficient lapse of time between the decision and the
execution to allow the accused to reflect upon the consequence of his act.20 The prosecution failed to
establish any of these requisites.

The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty as an
aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by
causing another wrong not necessary for its commission, or inhumanly increased the victims suffering or
outraged or scoffed at his person or corpse.21 The nature of cruelty lies in the fact that the culprit
enjoys and delights in making his victim suffer slowly and gradually, causing him moral and physical pain
which is unnecessary for the consummation of the criminal act which he intended to commit.22 The
sheer number of wounds, however, is not a test for determining whether cruelty attended the
commission of a crime.23cräläwvirtualibräry

The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The inordinate
force employed by appellant appears to have been caused not by any sadistic bend but rather by the
drugs that diminished his capacity.

The trial court also considered intoxication as an aggravating circumstance. The Solicitor General
defends this ruling, contending that appellants habitual drug addiction is an alternative circumstance
analogous to habitual intoxication under Article 15 of the Revised Penal Code:

Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the
offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to
the plan to commit said felony; but when the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance.

The Court does not agree. Article 13 of the Revised Penal Code provides a list of mitigating
circumstances, which work to reduce the accuseds penalty. Article 13(10) allows courts to consider any
other circumstance of a similar nature and analogous to those mentioned therein. Neither Article 14 of
the same Code on aggravating circumstances24 nor Article 15 on alternative circumstances,25 however,
contain a provision similar to Article 13(10). Accordingly, the Court cannot consider appellants drug
addiction as an aggravating circumstance. Criminal statutes are to be strictly construed and no person
should be brought within their terms who is not clearly within them.26cräläwvirtualibräry

Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court said
in People v. Ramos:27cräläwvirtualibräry

To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first
opportunity, indicating repentance on the part of the accused. In determining the timeliness of a plea of
guilty, nothing could be more explicit than the provisions of the Revised Penal Code requiring that the
offender voluntarily confess his guilt before the court prior to the presentation of the evidence for the
prosecution. It is well-settled that a plea of guilty made after arraignment and after trial had begun does
not entitle the accused to have such plea considered as a mitigating circumstance.

As appellant changed his plea only after the prosecution had rested its case and just when he was just
about to testify, said mitigating circumstance is unavailing.

The trial court credited appellant with the mitigating circumstance of voluntary surrender. For voluntary
surrender to be appreciated, these elements must be established: (1) the offender has not been actually
arrested; (2) he surrendered himself to a person in authority or an agent of a person in authority; and (3)
his surrender was voluntary.28 It is sufficient that the surrender be spontaneous and made in a manner
clearly indicating the intent of the accused to surrender unconditionally, either because he
acknowledges his guilt or he wishes to save the authorities the trouble and expense which will
necessarily be incurred in searching for and capturing him.29cräläwvirtualibräry
Appellant has failed to adequately prove voluntary surrender. While he claimed that he surrendered to
the police on the same day that the victim was killed, he did not detail the circumstances like the time
and place of such surrender. Neither did appellant state to whom he surrendered. He did not indicate if
the person was a person in authority or an agent of the latter. PO3 Javiers testimony that he learned of
appellants alleged surrender is hearsay and does not serve to corroborate appellants claim.

The Court, however, discerns no intention on the part of appellant to commit so grave a wrong against
his victim. Appellants intention was merely to maltreat the victim, not to kill him. When appellant
realized the horrible consequences of his felonious act, he immediately brought the victim to the
hospital.30 Sadly, his efforts were for naught.

In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is
qualified to murder, punishable under Article 248 of the Revised Penal Code by reclusion perpetua to
death. The murder was attended by the mitigating circumstance of lack of intention to commit so grave
a wrong and there is no aggravating circumstance. Hence, the lesser penalty of reclusion perpetua must
be imposed upon appellant.31cräläwvirtualibräry

Appellant is liable for civil indemnity of P50,000.00 without proof of damages.32 Moral damages that
are recoverable for the mental anguish or emotional distress suffered by the heirs of the victim cannot
be awarded here as the prosecution did not present any evidence to justify its
award.33cräläwvirtualibräry

WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt of
Murder, as defined and punished by Article 248 of the Revised Penal Code, and is sentenced to suffer
the penalty of reclusion perpetua. He is ordered to pay the heirs of Mark Anthony Fernandez civil
indemnity in the amount of P50,000.00.

SO ORDERED.

G.R. No. L-46250 July 26, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VICENTE P. ANCHETA, defendant-appellant.

Claro M. Recto for appellant.

Office of the Solicitor-General Ozaeta for appelle.

PER CURIAM:
Again this case occupies the attention of this court by reason of the petition filed by the accused and
appellant Vicente P. Ancheta for reconsideration of the judgment rendered against him, which affirms
that formerly entered by the Court of First Instance of Palawan sentencing him to the indeterminate
penalty of from six months of arresto mayor to four years of prision correccional, with the costs of the
proceedings. His petition is based on the following grounds:

I. That it is an error to hold that the detention of Bibiana Sanson ordered by the appellant was not
justified, on the ground that it has not been proven that she had conspired with her brothers to assault
said appellant.

II. That the conviction of the appellant in this case, after this Supreme Court has found in its decision
that "there are circumstances in support of the theory of the defense" that the appellant ordered the
arrest of Bibiana Sanson for having conspired with her brothers and with the deceased Salazar to assault
said appellant, is a deviation from the uniform ruling that peace officers are empowered to make arrests
without warrant when they have reasonable cause to believe that an offense or violation of law has
been committed and that the accused is guilty thereof, and is likewise contrary to the express provision
of section 848 of the Administrative Code pertinent thereto.

We have reviewed the record and firmly adhere to the finding that it was the accused-appellant who
really ordered the arrest of Bibiana Sanson upon the belief that she had taken part in the assault
committed upon him by the Sanson brothers, Rufo and Cirilo and by justice of the peace Guillermo
Salazar. The only question now to be determined anew is: "Was the detention of said woman arbitrary
under said circumstances?"

Without making a tedious repetition of the facts pertinent to the case, which already appear in the
decision rendered in case, which already appear in the decision rendered in case G.R. No. 45344 (37 Off.
Gaz., 620), and in the one under reconsideration, it should be stated, however, that the assault
committed by the Sanson brothers and justice of the peace Salazar upon the accused-appellant took
place immediately after the latter had been approached by Bibiana Sanson in the middle of the street,
while he was passing in front of the store situated under the house owned by the Sansons. Under said
circumstances, the appellant undoubtedly had well founded reasons to believe that Bibiana Sanson was
not innocent of said aggression: first, because it was strange for her, to approach him in the middle of
the street feigning friendship, a thing she had never done before, and her brothers, Rufo and Cirilo and
justice of the peace Salazar, immediately afterwards and knowing him to be a peace officer, to fall upon
him and assault him, punching and kicking him until he fell to the ground, and at the same time wresting
from him the revolver which he carried in his belt; second, because the four of them harbored a grudge
against him, and he knew it, by reason of his break with Bibiana and of the slander of which she had
allegedly been informed and which she had reached the ears of the Sansons thereby naturally offending
them, that he had been spreading the news that she had in his possession some of the Bibiana's
innermost garments, and by reason of having complained of the behaviour and investigated the conduct
of justice of the peace Salazar in various cases in which the latter had intervened as such justice of the
peace; third because Bibiana made no efforts to prevent her brothers and said justice of the peace from
maltreating as they in fact maltreated him; and lastly, because after the assault, all the four went up the
house of the Sansons, locking up themselves therein until they were compelled to surrender by the
Constabulary.
There is no doubt that the above-stated facts constitute in themselves strong circumstantial evidence
that the aggression was premeditated and was the result of a previous conspiracy in which Bibiana
Sanson could not but have a part. Anybody who found himself in the same circumstances as the
appellant, who have believed so himself and would have made the same decision, all the more so
because the person involved was not merely a peace officer but a commanding officer of a detachment
of constabulary soldiers, called upon, by reason of his position, to act promptly in order to preserve
order and to bring to the authorities those whom be believes in good faith to be violators of the law. It
should be borne in mind that on the same day on which the appellant ordered the detention of Bibiana
Sanson, he caused the presentation of a complaint for frustrated homicide, which was so done in fact
not only against her but also against her to brothers, because he was then of the opinion that such was
the crime committed by them against him. The complaint was filed with the acting vice-president Emilio
Castro, on the belief that said official could act upon it, in the absence of the justice of the peace and of
the municipal president of Balbac. It seems clear that the appellant ceased to have any responsibility
from the time the complaint was filed with the authorities, because it was not then incumbent upon him
to take the steps subsequent to said act, such as that of effecting the provisional release of Bibiana
Sanson on bail, or that of dismissing the complaint against her for the reason that she does not appear
to be liable for any crime, after the corresponding preliminary investigation.

In crimes of arbitrary detention (article 124 of the Revised Penal Code, which is equivalent to article 200
of the old Penal Code), the legality of the detention made by a person in authority or an agent thereof,
as stated by the Supreme Court of Spain in its decision of January 27, 1855, does not depend upon the
judicial and much less judicial fact of a crime which, at the time of its commission, is not and cannot
definitively be determined for lack of the necessary data and of jurisdiction, but upon the nature of the
deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to
whom the law at that moment leaves the decision for the urgent purpose of suspending the liberty of
the citizen.

The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a
necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to
be perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably
sufficient grounds to believe the existence of an act having the characteristics of a crime and that the
same grounds exist to believe that the person sought to be detained participated therein (Decision of
the Supreme Court of Spain of November 5, 1892).

This same ruling was upheld by this court in several cases, among them being that of United
States vs. Santos (36 Phil., 853), where it was stated that the reasonable or probable cause which must
exist to justify an arrest without warrant consists in a ground sufficient in itself to convince a reasonable
man to believe that the person arrested by him is guilty; and that, besides reasonable ground of
suspicion, action in good faith is another protective bulwark for the peace officer making the arrest. It
was likewise stated therein that under such conditions, even if the suspected person is later found to be
innocent, the peace officer who arrested him is not liable, adding that one should not expect too much
of a policeman, and the same is true with a constabulary officer as the appellant, because both are not
presumed to have the training and preparation of a judicial officer, not having as they do not often have
the opportunity to make proper investigation but must act in haste on their own belief to prevent the
escape of the criminal. It should likewise be borne in mind that the law (section 848 of the
Administrative Code and article 124 of the Revised Penal Code) allows members of the Constabulary or
policemen, and in general, every public officer or employee, to make arrest without warrant, not only
when a crime is being committed or is about to be committed in their own presence, but also when they
reasonably believe or have ground to suspect that a crime has been committed and that it has been
committed precisely by the person arrested (U.S . vs. Fortaleza, 12 Phil., 472; U.S. vs. Samonte, 16 Phil.,
516; U.S. vs. Batallones, 23 Phil., 46; U.S. vs. Santos, supra; People vs. Kagui Malasugui, 63 Phil., 221).
Bibiana Sanson's detention ordered by the appellant took place exactly under these same
circumstances.

Wherefore, judgment is rendered acquitting the appellant Vicente P. Ancheta, lieutenant of the
Constabulary, of the crime of arbitrary detention with which he was charged, the detention of Bibiana
Sanson ordered by him being as it is now declared sufficiently justified, in view of the circumstances
surrounding the same, with the costs de oficio. So ordered.

[G.R. No. 125633. December 9, 1999]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROLANDO ALFANTA y ALO, Accused-Appellant.

DECISION

VITUG, J.:

Before this Court, by way of automatic review, is the decision, dated 29 July 1996, of the Regional Trial
Court of Makati City, Branch 82, convicting1 accused-appellant Rolando Alfanta y Alo of rape with two
aggravating circumstances and sentencing him to suffer the extreme penalty of death.

Rolando Alfanta was charged with the crime of rape in an information that simply read:

That on or about the 26th day of August, 1995, in the City of Makati, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did
then and there willfully, unlawfully and feloniously have carnal knowledge upon the person of one NITA
FERNANDEZ y JOSEFA against her will and consent.2

When arraigned on 27 September 1995, accused-appellant entered a plea of not guilty to the crime
charged. Trial thereupon ensued.

The evidence of the parties has been recited in good detail by the trial court in its decision under review,
thus:

The first prosecution witness was Dr. Noel Minay, Medico Legal Officer of the National Bureau of
Investigation who testified that on August 27, 1995 at around 5:45 in the afternoon, he performed a
physical examination and medico genital examination on one Nita Fernandez for alleged rape. Upon
physical examination he found mark swelling on the left lower jaw or on the mandibular area left
portion; and, upon examination of the hymen, he found that the labia majora and minora gaping, similar
to the appearance of a woman who had just given birth; or a normal appearance as a result of several
sexual intercourses that had been performed. He submitted a report on his findings (Exhibit A).
The next witness was Nita Fernandez, the offended party alleged in the information who testified that
on August 26, 1995 at around 12:00 o'clock midnight, while asleep in the residence of a friend at AFOVAI
Fort Bonifacio, Makati city, a man whom she had not seen before suddenly entered the house where
she was sleeping, pulled her, boxed her jaw and put his hand on her mouth, and told her that if she will
not obey him, he will kill her. She resisted, but could not do anything. Thereafter, she was forced to
climb a fence. Because of fear, as the man was holding a bolo, she followed. After climbing the fence,
the man instructed her to go to a vacant house. She followed, as instructed. While at the vacant house,
she was told to undress, she did because of fear, as the man was holding a bolo. Thereafter, the man
embraced and kissed her. Then she was told to lie down and told to separate her legs. The man inserted
his penis into her vagina. After inserting the mans penis to her vagina, she was told to lie face down. She
complied, thereafter, the man inserted his penis into her anus. After inserting the mans penis into her
anus, she was told to turn around face up. All these acts of the man hurt her. After turning around face
up, the man inserted his fingers in and out into her private part. After the man had finished inserting his
fingers in and out of her private part, she was told to go near him and lie beside him, and not to dress up
as he was going to take a rest and at the same time telling her not to tell what happened to others
saying that lahat ng nirape ko ay pinatay ko dahil sa ayokong may magsumbong. All the time the man
was inserting his penis and fingers into her private part and into her anus, she was shouting: tulungan po
ninyo ako,' but nobody responded. Noticing that the man was already sleeping, she suddenly got the
knife at waist of the man and stab the man on his chest. The knife broke. She suddenly grabbed the bolo
and hack the man several times. Thereafter, she put on her dress, got hold of the bolo and ran to the
signal office of soldiers. When she arrived at the signal office of soldiers, she told the persons she met
that she killed a man. The bolo was taken from her by the soldiers. With, soldiers, they went to the place
where she was raped. They found the man lying down still alive. The man was brought to the hospital.
The man turned out to be accused Rolando Alfanta y Alo. Thereafter, she executed an affidavit (Exh. C),
narrating what happened to her to the police; and was brought to the NBI Medico-Legal Officer for
examination.

On cross examination she testified that, from Valle Verde, Pasig City, where she worked as housemaid,
she went to her friends house named Patrick because she brought mongo and because she and Patricks
wife Inday, are friends, arriving in the house of Patrick at 6:30 in the evening of August 26, 1995. She
was not able to go back to her place of work at Valle Verde, Pasig because it was already late at night
and was told to sleep at Patricks house. Earlier that evening, at 9:00, she saw accused passed by in front
of the house. Aside from her two (2) other persons slept in the house of Patrick, Inday and son. She slept
in the sala, while Inday and her son in a room. The door of the house was closed, but was not locked. In
entering the house were she slept, one has to reach the sala first. When awakened, she shouted, but
nobody heard her because they were sleeping and at the same time the accused placed his hand on her
mouth. She was really afraid because she was boxed on her chest and accused was holding a bolo. While
outside the house she was boxed. At the garage, which was not lighted, she was told to undress. She
followed, because of fear. Accused also undressed himself. While accused was on top of her, holding a
bolo, she cried. Accused is not her sweetheart. She even said, why will I hack him if he is my sweetheart.

The last witness for prosecution was Lilia Hogar of the Womens Desk Unit, Makati Police Station who
testified that she came into the possession of the bolo, Exh. D, because Nita Fernandez was brought to
Sub-Station A. The bolo, which was brought by Nita Fernandez to the Military Signal Village, was in turn
given to the Central Police Desk wherein she is the Investigator. After the bolo was handed to her by the
soldiers of the Signal Village, she conducted an investigation. Based on her investigation, she learned
from Nita Fernandez that when Nita Fernandez woke up at 12:00 midnight on August 26, 1995, Nita
Fernandez saw a man standing beside her. Nita was punched on the left portion of the face and ordered
her to go outside, instructed to climb over a fence on the other side of the house. After climbing the
fence, Nita Fernandez was told to undress, was boxed on her breast and was told to lie down in a vacant
house owned by Captain Pascua, where suspect raped Nita Fernandez. On their way to the hospital on
board the Makati Police car, she asked accused why he rape Nita Fernandez. Accused answered that
Fernandez was not telling the truth because they were sweethearts.

Defense presented the accused. Accused testified that on August 26, 1995, while at AFOVAI Village,
Municipality of Makati, fixing the fence of the house of General Renato Icarma together with many
other laborers, somebody told him that his wife was waiting for him in the house of Captain Pascua. At
10:00 oclock that evening, he went to the house of Captain Pascua; and upon reaching the house, he
knocked, and called Patrick Augusto Ablon, the caretaker of Captain Pascua. Belinda Ablon, the cousin of
Patrick Augusto Ablon, opened the door. After opening the door, Nita Fernandez, his live-in partner for
almost a year came out, in an angry mood, because she has been waiting for him for long, and asked
him why he was late. He explained that he did not expect her to come, as his understanding with Nita
Fernandez was, he will call her by phone or write her before she comes. Then Nita Fernandez told him
that they talk outside as she was ashamed with the neighbor, and they will disturb the child who was
sleeping. After half hour talking, he invited Nita to sleep. He and Nita went to a vacant house, owned by
a Colonel passing a fence. When they arrived in the vacant house, it was closed, so they slept in the
terrace. He denied doing what Nita Fernandez claimed he did. He claimed that, he was surprised why
Fernandez hacked him, for he knows of no reason why Nita Fernandez will hack him. He believes that
Nita Fernandez concocted the story of rape because of fear that he will file a case against Nita
Fernandez for hacking him.

On cross-examination, accused testified that, he has been staying in the house of General Romeo Icarma
(the house where he and 15 other workers were constructing a fence), since 1990. His livelihood was, as
a Mason, since 1993. In February 1995, the daughter of Nita Fernandez named, Lucia who is married to
Lito introduced him to Nita. He and Nita became sweethearts in February 1995. They have not live
together because Nita was working at Valle Verde. They only meet during Nitas day off. He has been at
Nitas place of work, but he used to call then at her telephone numbers which are 6326062 and 6356060.
They used to see each other at Gen. Icarmas place where he lived. On August 26, 1995, when the
incident in questioned happened, Lucia and Lito were no longer residing at Gen. Icarmas place because
they were told to leave in April 1993. On August 26, 1995, while in the squatters area, just 100 meters
away from the house of Gen. Icarma, Nita came, looking for him. Because Nita does not know the
workers in Gen. Icarmas house, Nita left and went to the house of Captain Pascua, just at the back of the
house of Gen. Icarma. While at the squatters area, Melchor Rudy Abella told him that Nita was looking
for him. He went to the house of Captain Pascua. At Captain Pascuas place, he met Nita. Present in the
house of Captain Pascua were Augusto Ablon, his wife Rubylin, Belinda, a cousin and a small child who
were all awake, except the child. Although Ablon was very much willing to accommodate him in Ablons
house, he brought Nita to the house of the Air Force Colonel because if it rains, there is a roof to protect
them and ashamed to stay at Ablons house. Even Nita does not like to sleep in Ablons place, saying that
instead of sleeping at Ablons place, she prefers to go back at Valle Verde. He did not allow Nita to go
back at Valle Verde because it was already late at night and if anything happens to her, her daughter
who knows his relationship with Nita will blame him. He did not bring Nita to Gen. Icarmas house
because it is crowded and the Colonels house is just 20 meters from Captain Pascuas house. They went
to the Colonels house, climbing the fence. When they climbed the wall, he was carrying banig, pillow
and blanket, and did not notice that Nita was carrying a knife. Nobody live in the Colonels house and
was closed. They slept in the terrace of the house on a cement flooring. While he was sleeping Nita
hacked him with a kitchen knife. When hacked, he just said aray. The bolo was not used in hacking him.
After stabbing him, Nita left and went to the Military Police leaving the kitchen knife. When the Military
Police arrived, he was no longer at the Colonels house because he went to another house, where he
slept. After he was stabbed, he asked the assistance of Ablon. Ablon was the one who called for the
Military Police. He did not leave the colonels house. He just stayed in the premises. Despite his wounds,
he was able to sleep and woke up at 5:00 in the morning. When asked why Nita stabbed him, he said
that it was because he hurt Nita by holding Nita's hand and pushing her on her chest when Nita insisted
in leaving for Valle Verde; and because he hurt Nita, he did not file a complaint against Nita for hacking
him.3

In the decretal portion of the decision, the court a quo has pronounced judgment, thus:

WHEREFORE, this court finds accused Rolando Alfanta y Alo guilty beyond reasonable doubt of the crime
of rape, penalized by Art. 335 of the Revised Penal Code, as amended, with aggravating circumstances of
nighttime and ignominy, he is hereby sentenced to suffer the maximum penalty of death, and indemnify
complainant Nita Fernandez the sum of P50,000.00, plus the costs of the suit.4

Now before the Court, accused-appellant seeks the reversal of the conviction and the imposition of the
death penalty decreed by the trial court; he contends that -

I. THE TRIAL COURT [HAS] ERRED IN FINDING AND CONVICTING THE ACCUSED-APPELLANT OF THE
CRIME OF RAPE.

II. THE TRIAL COURT [HAS] ERRED IN TAKING INTO CONSIDERATION THE AGGRAVATING
CIRCUMSTANCES OF NIGHTTIME AND IGNOMINY.5

The case can be described as not really being too far from the typical rape cases that have been
previously reviewed by the Court. It is a case, like the instances before it, of two people, each testifying
on the same incident but making a clearly discordant testimony. Since only the participants could
directly testify on the sexual congress, here conceded to have taken place, extreme care is observed in
evaluating the respective declarations of the complainant and the accused. The doctrinally accepted rule
is to accord great respect over the assessment of the trial court on the credibility of the witnesses and,
in the usual words of similar import employed by the Court, it would be best not to disturb the findings
of the court which has heard the evidence except only when a material or substantial fact has truly been
overlooked or misappreciated which if properly taken into account can alter the outcome of the
case.6 Regrettably for accused-appellant, no such exceptive instances of possible oversight are
perceived or evident in this case.

Complainant gave a thorough narrative account, so found to be credible by the trial court and by this
Court as well, of what had transpired during the late hour of the night in question.

Prosecutor Manola:
Q Mrs. Witness will you kindly tell the Honorable Court where you were on August 26, 1995 at around
12:00 oclock midnight?

A At Fort Bonifacio.

Q What city or municipality?

A I do not know but it must be here sir.

Q Meaning Makati City?

A Yes sir.

Q Why were you there on that date and time Mrs. Witness?

A I was sleeping in my friends residence.

Court:

Q What is the address of that friends residence at Fort Bonifacio?

A At AFOVAI Fort Bonifacio Makati sir.

Q Why were you there at that time?

A Because I always go there and my sons residence is beside the house of my friend sir.

Court: Proceed fiscal:

Pros. Manola:

Q Now, while you were there on that date and time at the house of your friend in AFOVAI Fort Bonifacio
Makati City do you recall of any unusual incident that happened?

A There was sir.

Q Will you kindly tell what that incident was?

A During that time while I was sleeping in the residence of my friend suddenly there was a man who
entered the house where I was sleeping.

Q So when you saw that man entered the house what did he do if any?

A I stood up because he was pulling me and then he put his hand in my mouth sir.

Q What else happened after that?

A When I was resisting he boxed me and at that time he was holding a bolo and he said if I will not obey
him he will be going to kill me sir.

Q After that what transpired next Mr. Witness?

A He forced me to climb the fence and then I saw he was holding a bolo.

Q Did you climb over the fence?

A I climb sir because he forced me to climb the fence.

Q Were you able to go over the fence?

A When I was over the fence already he told me to go to a vacant house.

Q How about the accused where was he when he ordered you to climb over the fence?

A He was at my back and he told me to go first and then he followed.

Q So after you went or cross over the fence what happened next Madam witness?

A He told me to go to the vacant house and there he himself told me to undress and I took off my
clothes he embraced me and kissed me sir.

Q Now when this man told you to go to the vacant house did you obey him?

A I was told to go to the vacant house there he told me to undress.

Q Did you obey him?

A He told me to undress and he was holding a bolo.

Court:

Q The question of the prosecutor to you was did you obey the instruction of the accused for you to
undress?

A Yes sir.

Prosecutor Manola:

Q Tell the Honorable Court why you do followed the instruction of that Man to go to that vacant house
and to undress why did you follow this instruction?

A I was afraid that he might kill me sir.

Q Why do you say that he might kill you?

A He like to rape me sir.

Court:

Q You did not answer the question of the prosecutor why were you afraid?

A Because he was holding a bolo and he was at the same time boxing me sir.

Prosecutor Manola:

Q So what happened after according to you you were instructed to undress?

A He embraced me and kissed me and told me to lie down.

Q And did you lie down as instructed by this Man?

A He forced me to lie down and then he forced me to separate my legs sir.

Q And what happened when you were forced to open your legs?

A He told me not to shout because if I will shout he will kill me and the he inserted his penis to my
vagina sir.

Q After this Man inserted his penis in your vagina or private part what happened next Mrs. Witness?

A He told me to lie front my face down and he inserted his penis to my anus sir.

Q After that what happened next Mrs. Witness?

A Then he told me again to lie down and at the same time he inserted his fingers to my private parts
going it and out sir.

Q After that what happened next Mrs. Witness?

A He lie down because he was already tired of molesting.

Q How about you what were you doing at that time when the accused this person according to you lie
down after he put his fingers inside your private part?

A He asked me to go near him and lie down beside him.

Q Did you follow his instruction for you to lie near him?

A Yes sir because he was holding a bolo sir.

Q So what happened after you lie down beside this person?

A He told me to put on my dress and at the same time he also told me that he does not want me to tell
it to anybody because he have raped many.

Q Now if this person whom according to you raped you inside the court room would you be able to
recognize him?

A Yes sir I could recognize him.

Q Will you kindly look around the court room if you could recognize this person if he is inside?

Note: Witness pointed to a man who was pointed as the man who raped him and when asked his name
answered as Rolando Alfanta.

Q Now after this person whom you just pointed to who answered by the name of Rolando Alfanta
uttered the words lahat nang ni rape ko ay pinapatay ko dahil sa ayokong may magsumbong what
happened next Mrs. Witness?

A I pleaded to him and he said not to put on my dress because he is going to take a rest.

Q After that what happened next if any Mrs. Witness?

A I saw him that he was sleeping already and then I suddenly got the knife and stab him in the chest sir.

Q After you stabbed him on his chest what happened next Mrs. Witness?

A The knife broke and then I suddenly grabbed the bolo and hack and hack him sir.
Q After you hacked this person who raped you what happened next Mrs. Witness?

A I immediately put on my shirt and I got hold of the bolo and I run to the signal where the soldiers
were.

Q Did you reach this place signal where there are soldiers according to you?

A Yes sir.

Q And what did you do when then when you arrived there?

A I told him that I killed a person therein and give them the bolo.

Q What happened after that when you informed the solders at signal that according to you you have
killed a person what happened next?

A We went to the person who raped me sir.

Q And did you see him there?

A Yes sir.

Q Who were with you when you went back to the place where you were allegedly raped?

A The soldiers sir.

Q Did you find this person who raped you?

A Yes sir.

Q What was he doing?

A He was lying down sir.

Q What happened after that?

A When we arrived there he was still alive and he was brought to the hospital.

Q Who brought him to the hospital?

A The ambulance of the soldier.

Q Now do you remember having given a statement to the Makati Police in connection with what you
have just narrated or told or testified to this afternoon?

A I could remember.

Q If that statement is shown to you would you be able to recognize it?

A Yes sir.

Q Now showing you a statement attached to the records of the prosecutors office consisting of two
pages kindly go over it and tell us if you recognize this statement?

A Yes sir I could recognize this.

Q Is that your statement

A Yes sir.

xxx xxx xxx.

Q Now this bolo which according to you surrendered to the soldier at the signal if you see this bolo again
would you be able to recognize it again?

A Yes sir.

Prosecutor Manola:

We would like to make reservation for this witness to identify this bolo when this bolo is presented by
the policeman who is in custody of this bolo.

Court:

Q How about the knife which according to you was seen by you at the waist line of the accused did you
bring it also?

A I did not bring it sir because it was broken sir it was only the bolo that I brought.

Q Now while you were being raped did you shout for help?

A Yes sir.

Q How did you ask for help?

A I asked for help but they were sleeping they did not hear me sir.

Q The question to you was how did you ask for help?

A I cried and I said tulungan po ninyo ako.

Q Did anybody respond to your cries for help?

A None sir.

Q Now how did you feel while the accused was inserting his private part to your private part?

A It hurt sir my vagina and my anus, my mouth that he boxed me sir.

Q Now why did you say that the accused was able to insert his penis into your vagina?

A He forced that to insert it.

Q Forced it to where?

A He forced it to enter my vagina sir.

Q Did you feel when the private part of the accused entered to your vagina?

A Yes sir I feel it sir.

Q By the way do you know the accused prior to the date that you were awakened?
A I do not know him.

Q In short he is a complete stranger to you when he entered the room?

A I saw him around 7:00 oclock in the evening that he was passing thru the front of the house of my
friends where I was sleeping.

Q At that time that you were awaken by the accused with whom were you sleeping?

A Only me sir.

Prosecutor Manola:

Q Now you said that while you and the accused were lying down first you stab him with the knife how
many times have you stabbed him with the knife?

A I was not able to count because I was afraid of him.

Q You said that after stabbing him with the knife which you broke you got hold of the bolo you hacked
him how many times have you hacked him?

A I failed to count how many times. I hacked him because I was afraid of him he might kill me.

Prosecutor Manola: That will be all for the witness.

Court: Cross-examination.

Atty. Manalo: With the permission of the Honorable Court.

Court: Proceed.

Atty. Manalo:

Q Now who were with you at the time when you were sleeping at the house of your friend at AFOVAI
Fort Bonifacio?

A One of their children so there were three and I was one.

Q Were you sleeping in one room?

A I was sleeping in the sala sir.

Q Now before you sleep in that house at the sala did you close the door of that house?

A It was closed but it was not locked.

xxx xxx xxx.

Q Now when why were you interested in sleeping in the house of your friend when you could already at
the house of your employer?

A Because I was bringing mongo to my friend because I am indebted to them sir.

Q Now why did you not return to your employer after giving or handing that mongo to your friend?
A They told me to sleep there because it was already late at night.

Q By the way what time did you go there?

A Around 6:00 to 6:30 in the evening.

Q And what time did you reach your friend at AFOVAI?

A 6:30 sir.

Q And Valle Verde is just in Pasig isnt?

A Yes sir.

Q It is near where you are employed and it will take you one ride only to reach that place isnt?

A Three rides sir.

Q Now which is first to be reached from the front door of the house where you were sleeping at the
time the place where you were sleeping or the place of the room where the owner of the house were
sleeping?

A First it is the sala where he passed.

Q Now you said that the door was not locked was there any other improvised locked placed in that door
like a wood?

A They did not lock the door because they are in confident.

Q Now what is the name of the owner of the house where you slept at that time?

A Patrick sir.

Q And how are you related to Patrick?

A His wife is my friend sir.

Q What is the name of his wife?

A Inday sir.

Q Now when you were awaken while you were sleeping in the sala of the house of your friend Inday did
you not shout when you saw a person pulling you holding a bolo?

A I shouted but they did not hear me because they were sleeping and at the same time he placed his
hands on my mouth sir.

Q Now you said that you were boxed on the chest by the accused how many times were you boxed by
the accused on the chest?

A I do not know how many times I was boxed sir because I was really afraid of him.

Q But you were sure that you were boxed at the chest?

A Yes sir.
Note: Witness demonstrating with her hands first pointing on her chest and also on her mouth.

Q Was it strong?

A Yes sir it was strong because the following day it has marked.

Note: Witness holding on his left chin.

Q How about on the chest?

Note: Witness demonstrating it was pointed on her chest.

A It was not too strong sir.

Q Did you fall down on your knee when you were hit by the blow?

A Yes sir.

Q Where?

A I fell on the ground down.

Q Where were you boxed by the accused?

A Outside sir of the house.

Q Now you said that you were ordered to undress and to lie down on the ground is that correct?

A Yes sir.

Q And you followed him?

A He told me to undress in the garage and he also undressed himself and because I was afraid because
he was holding a bolo sir.

Q When he undressed himself was he still holding a bolo?

A Yes sir one hand was holding the bolo the other one hand he was undressing himself.

Q Was it lighted the place?

A None sir.

Q How far were you when the accused was undressing himself?

A Near sir.

Q Did you see his private part when he undressed himself?

A Yes sir.

Q How big?

Prosecutor Manola: Immaterial your honor.

Atty. Manalo: To test the credibility, your honor.

Court: Answer

A It was dark and I was able to see and I do not know because I was afraid.

Atty. Manalo:

Q And then you lie down?

A He told me to lie down and he placed himself on top of me.

Q Was he still holding the bolo?

A Yes sir he was holding the bolo on his one hand.

Q How did you see him?

A When he was holding the bolo with his one hand while I he was on top of me I cried and he was
holding the bolo.

Note: Witness demonstrating the accused holding the bolo upward.

A When I cried he was on top of me sir.

Q What was he doing when he was on top of you?

A He was molesting me sir.

xxx xxx xxx

Q Now what time did you see him passed by the house of your friend according to you?

A 9:00 oclock in the evening sir.

Q Why were you sure that he was the one who passed by the house of your friend?

A I saw him that he was passing.

Q Where were you at the time?

A I was seating by the window sir.7

The testimony of the complainant about the incident is straightforward categorical, and relatively free
from any serious flaw. No compelling reason is advanced to sufficiently persuade the Court to conclude
that the trial court has erred in giving due weight and credence to the testimony of the complainant.
Neither is evidence adduced to show that the complainant has had any ulterior motive to prevaricate
and enmesh accused-appellant in a fabricated charge. The Court repeats the familiar doctrine that when
a woman claims that she has been raped, she says in effect all that is necessary to show such a fact so
long as her testimony can meet the test of credibility,8 for it is said that no woman in her right mind will
cry rape, allow examination of her private parts, or subject herself and her family to the humiliation
concomitant to the prosecution of the case, unless the story were true.9

Testifying in his defense, accused-appellant claimed that he and the complainant had been lived-in
partner for almost a year, and that while they did sleep together on 26 August 1995 at the porch of the
house of a certain Air Force officer, accused-appellant denied any carnal knowledge of the victim that
evening. In his appeal brief, accused-appellant sought to negate any possible or likely use of violence or
intimidation, considering that: (a) in the house where the victim was sleeping on the night of 26 August
1995, there were at least three persons (the caretaker of the house Patrick Augusto Ablon, his wife
Rubylin and the couples son) who could have responded to any shout for help from the victim; (b) the
door of the house was purposely left unlocked in order to enable accused-appellant to come into the
house, and (c) when the victim was made to climb a fence followed by the accused, she could have
escaped but did not.

The sweetheart theory of accused-appellant would appear to be another worn out strategy, often
resorted to as a last ditch effort, to exculpate oneself from criminal liability. No documentary evidence
of any sort, like a letter or a photograph or any piece of memento, was presented to confirm a romantic
liaison between accused-appellant and the complainant. The latter testified:

Q Is it not a fact that you and the accused were sweethearts?

A No sir.

Q And that you went to that place AFOVAI just to meet him in that place?

A No sir he is not my sweetheart. Why will I hack him if he is my sweetheart?

Q You hacked him with the bolo because of you are too much jealousy is concerned because your
sweetheart was then womanizing?

Prosecutor Manola: Misleading your honor.

Atty. Manalo: I am on cross-examination your Honor.

Court: Answer.

A Why will I get jealous I have nothing to do with him. I do not know him sir.

Atty. Manalo:

Q Really?

A I do not know him. I really do not know him sir.10

It would be rather strange an occurrence for a love-partner, if true, to stab her beloved for petty
reasons. The trial court was not out of line when it made this evaluation; viz:

This Court cannot accept the claim of accused that he and complainant Nita Fernandez were
sweethearts, for such a claim defies rationality, let alone common sense, because if they were
sweethearts, she will not hack him. Not only that, the manner on which she stabbed and hacked him,
first with a knife, then with a bolo, shows a complete anger to vindicate the outrage on her. If they were
sweethearts, she would not have acted in the manner she did in stabbing and hacking him. At least, if
they have some relationship, she would not show anger the way she did.11

Neither would the presence of at least three persons on the night of 26 August 1995 in the house where
victim was sleeping necessarily disprove the sexual assault. It was already close to midnight when the
incident occurred, and the other occupants of the house were by then apparently all sound asleep. The
evidence is to the effect that accused-appellant immediately after getting into the house hit her on the
jaw, put his hand on her mouth and threatened to kill her if she dared refuse to yield to his demands.
Understandably, the victim was shocked, gripped by fear and then cowed into submission. Intimidation
should be viewed in the light of the perception and judgment of the victim at the time of the
commission of the offense and not by any kind of hard and fast rule. It would be unreasonable to expect
the victim to act with equanimity of disposition and to have the courage and intelligence to disregard
the threat made by accused-appellant.12

The claim that the unlocked door of the house was a sign that the complainant wanted accused-
appellant to have a chance to see her during the late evening indeed should deserve scant
consideration. The so-called love angle was properly ruled out by the trial court for lack of concrete
evidence to establish any such relationship.

Anent the failure of the complainant to escape when accused-appellant ordered her to climb a fence, it
should be enough to state she did not appear to have had any real opportunity to flee from the clutches
of the intruder who was, in fact, just behind her. After scaling the fence and while inside the abandoned
and enclosed house, she could not have done any much better since she was all the time within striking
distance of the bolo-wielding malefactor.

And now on the propriety of an appreciation of the aggravating circumstances of nighttime and
ignominy.

Nighttime is said to be that period of darkness beginning at the end of dusk and ending at dawn.13 The
law defines nights as being from sunset to sunrise.14 By and of itself, nighttime would not be an
aggravating circumstance unless it is specially sought by the offender, or it is specially taken advantage
of by him, or it facilitates the commission of the crime by insuring the offenders immunity from
capture.15 As an ordinary aggravating circumstance, nighttime can be so considered provided it is duly
proved although not alleged in the information.16 The Court entertains no doubt that appellant has
specially taken advantage of the cover of darkness to facilitate the commission of the crime without
being recognized. Accused-appellant has abducted his victim, brought her to an abandoned and unlit
house and then unleashed his carnal desire on her, assured of the stillness of a sleeping world.17 The
Court has long held that this aggravating circumstance can be considered when an accused takes
advantage of the silence and darkness of the night to ensure impunity from his illegal act.18

With respect to ignominy, the victim testified that after appellant had inserted his penis into her vagina,
appellant ordered her to lie face down and while in that position had his penis into her anus. Thereafter,
he ordered her to lie down again and this time he inserted his finger inside her. The Solicitor General
correctly invoked the case of People v.Saylan,19 where this Court said:

The trial court held that there was ignominy because the appellant used not only the missionary
position, i.e. male superior, female inferior, but also the same position as dogs do i.e., entry from
behind. The appellant claims there was no ignominy because The studies of many experts in the matter
have shown that this position is not novel and has repeatedly and often been resorted to by couples in
the act of copulation. (Brief, p. 24.) This may well be if the sexual act is performed by consenting
partners but not otherwise.20
Article 14, paragraph 17, of the Revised Penal Code considers to be an aggravating circumstance any
means employed or circumstance brought about which add ignominy to the natural effects of the act.
The circumstance, it is said,21 "pertains to the moral order [and] adds disagree and obloquy to the
material injury caused by the crime.

The crime of rape is committed by having carnal knowledge of a woman under any of the following
circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.22

In the case at bar, it remained uncontroverted that accused-appellant was armed with a bolo to realize
his criminal objective. Nonetheless, the use of a deadly weapon could not be considered as a qualifying
circumstance in the crime of rape23 for not having been correspondingly alleged in the information as
to make the offense fall under the jurisprudentially referred qualified rape punishable by reclusion
perpetua to death. In People v. Garcia,24 the Court declared:

One further observation. Article 335 originally provided only for simple rape punishable by reclusion
perpetua, but Republic Act No. 4111 introduced amendments thereto by providing for qualified forms of
rape carrying the death penalty, that is, when committed with the use of a deadly weapon or by two or
more persons, when by reason or on the occasion of the rape the victim becomes insane, or, under the
same circumstances, a homicide is committed. The homicide in the last two instances in effect created a
special complex crime of rape with homicide. The first two attendant circumstances are considered as
equivalent to qualifying circumstances since they increase the penalties by degrees, and not merely as
aggravating circumstances which affect only the period of the penalty but do not increase it to a higher
degree. The original provisions of Article 335 and the amendments of Republic Act No. 4111 are still
maintained.

xxx xxx xxx.

Now, it has long been the rule that qualifying circumstances must be properly pleaded in the indictment.
If the same are not pleaded but proved, they shall be considered only as aggravating circumstances,
(People v. Collado, 60 Phil. 610 [1934]; People v.Jovellano, et al., L-32421, March 27, 1974, 56 SCRA 156;
People v.Fuertes, G.R. No. 104067, January 17, 1994, 229 SCRA 289; People v.Rodico, et al., G.R. No.
107101, October 16, 1995, 249 SCRA 309.) since the latter admit of proof even if not pleaded.
(U.S. v. Campo, 23 Phil. 368 [1912]; People v. Domondon, 60 Phil. 729 [1934]; People v. De Guzman, G.R.
No. 73464, August 1988, 164 SCRA 215.) Indeed, it would be a denial of the right of the accused to be
informed of the charges against him and, consequently, a denial of due process, if he is charged with
simple rape and be convicted of its qualified form punishable with death, although the attendant
circumstance qualifying the offense and resulting in capital punishment was not alleged in the
indictment on which he was arraigned.25
Simple rape is punishable by a single indivisible penalty of reclusion perpetua. Thus, even if there were
aggravating circumstances of nighttime and ignominy in attendance the appropriate penalty would still
be reclusion perpetua under the law. Article 63 of the Revised Penal Code provides that in all cases in
which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any
mitigating or aggravating circumstances that may have attended the commission of the deed.

WHEREFORE, the decision of the trial court finding accused-appellant Rolando Alfanta guilty beyond
reasonable doubt of the crime of rape is AFFIRMED WITH MODIFICATION by hereby lowering the
penalty therein imposed from death to reclusion perpetua. An award of P50,000.00 for moral damages
is likewise ordered to be paid by accused-appellant Rolando Alfanta to the victim Nita Hernandez in
addition to the sum of P50,000.00 by way of indemnity ex delictu granted by the trial court.

SO ORDERED

G.R. Nos. 134522-24 and 139508-09. April 3, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. APSALON DIZON Y ABLIR, Accused-Appellant.

DECISION

BELLOSILLO, J.:

APSALON DIZON Y ABLIR was charged before the court a quo with rape of his own daughter Esperanza
Dizon y Ramirez, then nine (9) years old, allegedly committed in the first week of April 1992 and
continuously thereafter.1 Consequently, three (3) other rape cases were filed against the accused by the
same daughter allegedly committed in the middle of 1994,2 in the first quarter of 1993,3 and on 27
March 1992.4 A fifth case involving the same parties was also filed allegedly committed in the second
quarter of 1994 but this time only for attempted rape.5cräläwvirtualibräry

On 24 April 1998 a consolidated judgment was rendered by the trial court.

In Crim. Case No. SC-6576 Apsalon Dizon was held guilty of acts of lasciviousness instead of rape as
charged. He was sentenced to an indeterminate prison term of six (6) months of arresto mayor as
minimum to six (6) years of prision correccional as maximum, and to pay his daughter Esperanza
Dizon P5,000.00 as civil indemnity, P5,000.00 as moral damages and P5,000.00 as exemplary damages.

In Crim. Case No. SC-6577, he was held guilty of consummated rape and sentenced to death. He was
ordered to pay P50,000.00 as civil indemnity, another P50,000.00 as moral damages and still
another P50,000.00 as exemplary damages.

In Crim. Case No. SC-6578, he was also found guilty of consummated rape. Although he was ordered to
pay the same amounts awarded in Crim. Case No. SC-6577, he was only sentenced to reclusion
perpetua.

In Crim. Case No. SC-6579, he was also held guilty of acts of lasciviousness against the same daughter
Esperanza Dizon and meted the same penalty and required to pay the same monetary awards ordered
in Crim. Case No. SC-6576.
Finally, in Crim. Case No. SC-6580, he was declared guilty of consummated rape and sentenced to the
same penalty imposed and ordered to pay the same monetary awards granted in Crim. Case No. SC-
6578. He was also ordered to pay the costs in all the cases against him.6cräläwvirtualibräry

Born on 28 November 1982 Esperanza Dizon is one of accused Apsalon Dizon's seven (7) children with
Teresa Ramirez. The spouses have four (4) boys and two (2) other girls.

On 27 March 1992, at around 10:30 in the morning, accused Apsalon Dizon brought along with him his
nine (9)-year old daughter Esperanza to gather vegetables in Kanluran, Barangay Cabanbanan,
Pagsanjan, Laguna. On their way home he suddenly dragged her towards a forested area. He ordered
her to remove her panty after which he forced her to lie down on the grass. He kissed her lips, sucked
her breasts and licked her vagina. Then he inserted his penis into her vagina. She felt pain. After a while,
he pulled out his penis and moved it around the lower portion of her abdomen. A substance which to
her comprehension resembled urine came out of it and dripped below her navel. She felt nandidiri so
she wiped the substance off and then put on her panty. At that time, she was not aware about the
actual consequences of what he did to her. He threatened to kill her and members of their family if she
told anybody about the incident.

In the morning of April 1992 Esperanza found herself alone with her father Apsalon in their house in
Brgy. Cabanbanan. Teresa was out selling goods while Esperanzas brothers and sisters were out
wandering around. While Esperanza was standing, Apsalon lifted her dress and started sucking her
breasts. Julieta, aunt of Esperanza, chanced upon them while in the act. Julieta immediately summoned
Esperanza to her house and asked her what her father did to her. She naively replied that her father was
sucking her breasts. At lunchtime, Julieta informed Esperanza's maternal grandparents about the
incident. The grandmother of Esperanza ordered the young girl and her mother Teresa to look for a
person who could kill Apsalon. Teresa simply cried.

But Apsalon could not be deterred. In 1993, he sexually molested Esperanza on three (3) more
occasions. One molestation happened inside their house. While she was cleaning their house, he
ordered her siblings to go out and buy something. The two (2) other molestations occurred in the
eastern and western portions of Brgy. Cabanbanan after gathering vegetables and picking young
coconuts. In those occasions, Apsalon had carnal knowledge of Esperanza and threatened to kill her if
she complained. Nonetheless, she reported the incidents to her mother who, unfortunately, paid no
heed to her disclosures.

In 1994 Apsalon continued abusing Esperanza. Sometime in the middle part of that year, Esperanza and
younger sister May Ann went along with their father to the western portion of Brgy. Cabanbanan to
gather dalanghita. When they reached the citrus plantation, Esperanza told him she liked buko. So he
accompanied her to where they could gather buko, thus leaving May Ann behind. Along the way, he
ordered Esperanza to stop. Then he started kissing her neck. She resisted and pushed him away. He
unsheathed his bolo which prompted her to run away only to return home with May Ann. Esperanza did
not bother to report the incident to her mother considering that her previous revelations had been
simply ignored.

Again, in the middle part of 1994, at a time when Esperanza's family had nothing to eat, she and her
father went to the western portion of Brgy. Cabanbanan to gather vegetables. At first, she was hesitant
to go with him alone but her mother prevailed upon her saying that her brothers and a sister would
accompany them. However, she told her siblings not to join them anymore because they might
experience difficulty in walking. After gathering vegetables, Apsalon brought Esperanza to a forested
area and raped her again. She reported the incident to her mother but, again, there was no response
from her.

One time, while Esperanza was planting palay, she asked Apsalon why he was doing such things to her
instead of to her mother. He retorted, "Akala mo lang 'yon, 'yong ibang magulang ginagawa din 'yan sa
kanilang anak," adding that soon she would easily be a grown-up lady.

In April 1995 Esperanza left for Floridablanca, Pampanga, to work as a saleslady in the variety store of
her Lola Ela, her mothers aunt. Before leaving however the accused raped her anew in the rice field of
Brgy. Bubukal, Pagsanjan, Laguna. Shortly before November or December 1995 she related to her Lola
Ela the things that her father had done to her. She advised her to file a complaint.

On 27 January 1997 her Lola Ela took Esperanza back to Laguna because she was entertaining a suitor
and her Lola Ela did not want to assume responsibility. Having known however about the sexual abuses
of Apsalon, her Lola Ela placed Esperanza under the care of her Lolo Dominador Ramirez, uncle of
Teresa, who was residing in Brgy. Bubukal. While there, Esperanza told Dominador everything that her
father had done to her. On the same day, Esperanza and Dominador proceeded to the Pagsanjan Police
Station and blottered several counts of rape against the accused. She was then subjected to physical
examination. The physician who examined her found that she had healed hymenal lacerations at 3:00
and 9:00 o'clock positions.7cräläwvirtualibräry

Accused Apsalon Dizon, thirty-four (34) years old when he took the witness stand, denied all the charges
against him. He claimed that they were instigated by Dominador. Also, he asserted that Esperanza
hurled the accusations against him because previously, he hit her with the side of his bolo. Teresa sided
with the accused and so did his mother Rosalita Dizon.

The trial court found Esperanza's testimony straightforward, clear and convincing, and dismissed that of
the accused as totally unbelievable. In fact, the defense consisted principally of mere blanket denial.

As regards the supposed instigation by Dominador, the trial court did not accord it any consideration as
it was never proved.

With respect to the alleged motive of Esperanza in filing the cases, the trial court said that even
assuming its veracity it was not sufficient reason for a young daughter to concoct such grave offenses
involving her very own father.

Concerning the testimonies of Teresa and Rosalita, the trial court categorized them as self-serving.

Accused-appellant would cast some dubiety on Esperanza's actuation in going with him alone in the
middle part of 1994 to the western portion of Brgy. Cabanbanan instead of insisting on being
accompanied by her siblings so that the alleged rape would have been prevented. He then banks on the
circumstance that Teresa testified in his favor and in relation thereto draws attention to the human
experience that no sane mother would testify against her own daughter if the latter was telling the
truth. He theorizes that if he had been raping Esperanza he would not have allowed her to work in
Pampanga but would have required her instead to stay in Laguna to avoid the disclosure of the incidents
to others. Lastly, he points out an alleged inconsistency in her testimony regarding the place of the
commission of the claimed first rape incident, to wit: during the direct examination she said that it was
in the forested place of Kanluran, Brgy. Cabanbanan, but during the cross examination she narrated that
it was at the back of the house of her grandparents.

We sustain the assailed ruling. In rape cases, the evaluation of the credibility of witnesses is addressed
to the sound determination of the trial court whose conclusion thereon deserves much weight and
respect.8Moreover, courts usually give credence to the testimony of a girl who is a victim of sexual
assault, particularly if it constitutes incestuous rape because, normally, no person would be willing to
undergo the humiliation of a public trial and to testify on the details of her ordeal were it not to
condemn an injustice.9 The trial court evaluated the testimony of Esperanza to be straightforward, clear
and convincing. We find no reason to hold otherwise.

The narration of Esperanza as to what transpired between her and accused-appellant on 27 March 1992
is enlightening -

Q: In what particular place in Cabanbanan, Pagsanjan, Laguna that first incident happened?

A: Forested place at Kanluran, Cabanbanan, Pagsanjan, Laguna, sir x x x x

Q: Would you please tell us why you were in that forested place on that date at around 10:30 in the
morning?

A: He ordered me to come with him because he would be getting vegetables x x x x

Q: Would you please tell us what actually happened on that date and time?

A: It was when we were already on our way home when he pulled me to the forested place. He ordered
me to put off my panty. I was forced to lay down on the grass.

Q: What happened next when you already removed your panty?

A: He put out his penis when he saw that I had removed my panty. He saw my vagina. He licked his
tongue on my vagina. He inilapat his penis on my vagina.

Q: When you said inilapat, would you please tell us what you mean by inilapat his penis?

A: He inserted his penis in my vagina and I felt so hurt x x x x

Q: What was he doing when you felt that his penis was already inside your vagina?

A: I just felt so much hurt and I saw that something which resembles urine came out of his penis x x x x

Q: How were you able to see that substance?

A: I looked at it because he still tried to rotate his penis on the lower portion of my umbilical chord (sic)
over my vagina x x x x

Q: What else did he do to you aside from inserting his penis on that occasion?

A: He sucked my breast x x x x

Q: Did he kiss you on your face, your lips?

A: Yes, he did, sir.

Q: What happened after you saw substance coming out from his penis?

A: I wiped my body (witness pointing to the lower portion of her abdomen over her vagina below her
ambilical [sic] cord). I was so nandidiri.

Q: What did you do next after wiping that white substance on your stomach?

A: I put on my panty.

Q: Did you ask your father why did he do that thing to you?

A: No, sir.

Q: Why did you not ask him?

A: I did not know what he was actually doing to me, that is the reason why I was not able to ask him why
xxxx

Q: How about your father, did he threaten you not to tell to anybody what he did to you? Please tell us
what did he say to you before and after that incident?

A: He would kill us.10cräläwvirtualibräry

Esperanza continued her testimony by recounting what happened between her and her father in April
1992 -

Q: Would you please tell us what happened in that month of April 1992?

A: x x x x My father was doing lascivious act on me when he was sucking my breast, somebody saw it.

Q: Where were you in particular when your father was sucking your breast?

A: In our house, sir x x x x

Q: Would you please tell us your exact position at the time when your father was sucking your breast?

A: I was standing, sir.

Q: How about your father, what was his position then?

A: He was likewise standing, sir.

COURT: At that time, did you have your clothes on?

A: It was raised up, Your Honor.

Q: Who raised up your dress?

A: My father, Your Honor x x x x

Q: You said somebody saw you on that particular point and time x x x x Would you please tell us the
name of that person?
A: Ate Julieta, sir x x x x

Q: Any relation to you?

A: My aunt, sir.

Q: At the time the incident happened, who were inside your house x x x aside from the two of you?

A: Nobody else, sir.

Q: Where were your other sisters at that time?

A: Wandering around, sir.

Q: How about your mother, where was she at that time?

A: Vending, sir.

Q: What was the reaction of Julieta when she noticed your father doing that sucking of your breast at
that time?

A: She called me to their house, sir x x x x

Q: Tell us what you talked about.

A: She asked what my father was doing to me, sir.

COURT: What was your answer?

A: I told my aunt that my father was sucking my breast, Your Honor.11cräläwvirtualibräry

Esperanza further narrated three (3) other incidents that took place involving her and accused-appellant
in 1993 -

Q: Would you please tell us what happened in that incident sometime in 1993 inside your house?

A: I was then cleaning our house and my brothers and sisters were with me, (my father) ordered (them)
to go out to buy something x x x then he closed the door of our house x x x x

Q: What did he do to you after closing the door of your house?

A: He ginalaw na niya ako by holding all parts of my body and ordered me to undress.

Q: And when you were already undressed, what else did he do to you?

A: He caused me to lay (sic) down, sir.

Q: What did he do to you when you were already lying down?

A: He kissed my vagina thereafter he put out his penis, sir.

Q: What did he do with his penis?

A: He put it in my vagina, sir.

Q: Were you able to actually see your father inserting his penis into your vagina?
A: Yes, sir x x x x

Q: Will you tell us whether he was doing anything aside from trying to insert his penis in your vagina x x
xx

A: He was sucking my breast, sir.

COURT: When you said your father was inserting his penis inside your vagina, will you tell the Court
what movement, if any, your father was doing at that time x x x x

A: Umaandayog or kumakayog, moving upward and downward strokes, Your Honor, as well
as kinakayog, sir.

Q: What did you feel when he was moving that downward and upward strokes?

A: I was hurt, sir x x x x I was just a little girl then and I couldn't stand the thing he was doing to me then,
sir x x x x

Q: Why did you not complain?

A: It is because he always threatened me that he would kill me, sir.

Q: Did you believe him?

A: Yes, sir.12cräläwvirtualibräry

The second incident in 1993 was narrated by Esperanza thus -

Q: What happened in that second incident in the year 1993 at Silangan-Eastern portion?

A: He ordered me to come with him on the eastern portion because we used to gather vegetables there,
sir.

Q: According to you, you were also abused, raped by your father in that particular incident at that
Silangan-Eastern portion x x x x please tell us how you were abused or raped by your father?

A: He used to undress me and when I have undressed, he did all the things to me prior to that incident,
sir.

COURT: Will you be specific in stating what are those prior acts done to you by your father?

A: He undressed me, sucked my breast, sucked my vagina then he put out his penis and inserted in my
vagina, Your Honor.

Q: What did you feel?

A: I was always hurt, Your Honor.13cräläwvirtualibräry

As to the third incident in 1993, Esperanza continued -

Q: How about the third time, incident that happened at Kanluran Western portion, where is this place
located?

A: It is a portion of Brgy. Cabanbanan, Pagsanjan, Laguna, sir x x x x

Q: Please tell us what was done by your father to you on that occasion?

A: I am very fond of buko or young coconut, he always tells me to go with him to get buko and after I
have eaten, he dragged me on the grass which caused me to lay down, ordered me to remove my panty,
sucked my vagina and inserted his penis inside my vagina, sir.14cräläwvirtualibräry

As Esperanza continued with her narration, she also mentioned an incident in 1994 that concerned her
and her father -

Q: After the year 1993 what transpired next between you and your father x x x x

A: It was on that occasion sometime in 1994, my younger sister by the name of May Ann was with us
and we were about to gather dalanghita or oranges. I told my father that I like (sic) buko or young
coconut. We left my sister in the citrus plantation dalandanan where we could pick her up upon return.
When we were on our way to the place where we would gather young coconut, we stopped because my
father ordered me to stop x x x x

Q: By the way, what place are you referring to where you gathered fruits x x x x

A: Western portion of Bgry. Cabanbanan, Pagsanjan, Laguna, sir x x x x

Q: What happened there after your father instructed you to stop on that place?

A: He held me by my arm, he started to kiss me on my neck, I fought back nanlaban and I was able to
push him, however, there was a bolo that was tucked on his back and he was able to put out the bolo on
his waist, sir.

Q: What did he do when he was able to get the bolo out of the scabbard?

A: When I pushed him, I ran away and proceeded to the direction where my sister was, sir. We tried to
go home alone, we do (sic) not know the way in going home together with my younger sister.

Q: Were you able to go home on that particular occasion?

A: Yes, sir.

Q: Did you tell your mother of what happened on that particular morning?

A: No, sir x x x x I have been telling my mother what my father had done to me but she did not mind at
all.15cräläwvirtualibräry

Esperanza also described the second incident in 1994 -

Q: What happened next after that incident sometime in the middle year of 1994?

A: On that same year, another incident happened when my father ordered me to gather vegetables
again because we had nothing to eat then, sir.

Q: Did you go with him on that particular occasion despite of what happened to you?

A: Yes, sir x x x x because we had nothing to eat then and my mother was forcing me to go with my
father since I have my brothers and sister as companions, sir.
Q: And in what particular place did you go? x x x x

A: Also in the western portion x x x x Barangay Cabanbanan, Pagsanjan, Laguna, sir x x x x

Q: Aside from you and your father, who are the other brothers and sister who accompanied you at that
time?

A: Nobody, sir x x x x

Q: Did you not tell a while ago that your mother was insisting that you go with your father for anyway
your brothers and sister will go along with you?

A: Yes x x x x I did not tell my brothers and sister to go with us anymore because they would have some
difficulty in walking, we just walked in going to the forested area x x x x

Q: What happened on that particular occasion?

A: Whenever we finished gathering vegetables my father took me to the forested area, specifically
where grasses were thick, then he ordered me to remove my panty, he sucked my breast again as well
as my vagina, sir x x x x

Q: On that occasion, may we know if your father was able to insert his penis?

A: Yes, sir.16cräläwvirtualibräry

As against these testimonies of Esperanza which demonstrate no earmarks of falsehood, the testimony
of accused-appellant cannot prevail. It was nothing but a sweeping denial which could not overcome the
categorical and positive testimony of the victim.17 Besides, the testimonies of Teresa and Rosalita which
merely corroborated the disavowal were no less self-serving. But even assuming that accused-appellant
had previously hit Esperanza with the side of his bolo, parental punishment is not a reason compelling
enough to drive a daughter to falsely accuse her father of rape.18 It was not shown either that
her LoloDominador had instigated the filing of the present cases.

Accused-appellant faults Esperanza for not insisting on being accompanied by her siblings in going to the
western portion of Brgy. Cabanbanan in the middle part of 1994 so that the alleged rape could not have
happened. In this regard, the Court agrees with the observation of the Solicitor General that Esperanza
was then very young, immature and innocent of the ways of the world, being barely nine (9) years old.
She could not be expected to act the way mature individuals would when placed in such a situation, i.e.,
to insist that her siblings join them to deter any sexual molestation by her father. It is not proper to
judge the actions of children who have undergone traumatic experience by the norms of behavior
expected from adults under similar circumstances.19As it was, Esperanza was concerned more with the
difficulty in walking that her siblings might encounter. At any rate, it would have been futile to bring
along her siblings with them as their father could have easily devised a way to get rid of them as he had
done in the past. In one of the incidents in 1993, accused-appellant ordered all his children except
Esperanza to go out of the house and buy something which turned out be a ploy to have her all to
himself. In another occasion, in 1994, May Ann accompanied Esperanza and their father in going to the
forested area in Brgy. Cabanbanan only to be left behind when Esperanza and Apsalon proceeded to
another place to gather buko.
Accused-appellant capitalizes on the circumstance that his wife Teresa aligned herself with him which,
he asserts, should be taken in conjunction with the human experience that no sane mother would testify
against her own daughter if the latter were telling the truth.

It is lamentable that Teresa's being a mother is only skin-deep. She did not lend succor to Esperanza
when the rape incidents were disclosed to her. Such reports of rape by Esperanza, especially where the
assailant is a first degree ascendant should have at least triggered the maternal instinct in her and
impelled her to confront her husband. Teresa's basis for disbelieving the rape claims of Esperanza, as
disclosed during the trial, was that she did not see any evidence thereof such as blood on her underwear
nor any unusual behavior on her part.20 Be that as it may, the prudent course of action of Teresa should
have been to subject her daughter to physical examination as a confirmatory measure. Teresa's
supportive stance for accused-appellant before the trial court was clearly in line with her indifference
towards Esperanza's allegations of sexual abuse. But, as the trial court unearthed from the clarificatory
questions propounded on Teresa, her real motive in claiming that Esperanza did not tell the truth was -

Q: You are testifying because you want to help your husband Apsalon Dizon?

A: Yes, Your Honor.

Q: As a matter of fact, you want him acquitted of the rape charges filed against him?

A: Yes, Your Honor.

Q: And that is precisely the reason why you are now saying that your daughter is lying?

A: Yes, Your Honor.21cräläwvirtualibräry

We share the view of the Solicitor General that Teresa's love for accused-appellant was more intense
than her love for her own child. Truly, some wives are overwhelmed by emotional attachments to their
husbands to such an extent that the welfare of their own offsprings takes back seat. Le coeur a ses
raisons que la raison ne connait point.22 Knowingly or otherwise, they suppress the truth and act as
medium for injustice to preponderate. Though heavens fall, they would stand by their man. Teresa
exemplifies this breed of women.

Accused-appellant invokes another circumstance that, he claims, preponderates in his favor, i.e., he
allowed Esperanza to work in Pampanga. He theorizes that if he had been abusing her he would have
instead made her stay in Laguna to forestall the possibility that his sexual assaults on her would come
out in the open.

But that is futile. It cannot help to exonerate him. Our analysis is that he must have felt secure in the
belief that he had sufficiently instilled fear in her mind that in the span of three (3) years or from the
time the first rape incident occurred up to the time she left for Pampanga his sexual abuses were kept
under wraps. For, it is not uncommon for a girl of tender age to be intimidated or cowed into silence by
the slightest threat to her life.23cräläwvirtualibräry

Accused-appellant also claims that Esperanza contradicted herself when she testified during the direct
examination that the first rape incident took place in the forested area of Brgy. Cabanbanan whereas
during the cross examination she said that it occurred at the back of her grandparents' house.
Indeed, Esperanza might have described under cross examination a different crime scene regarding the
first rape incident. Nonetheless, the matter was readily clarified by her when she explained that she was
just confused, then reiterated her statement in the direct examination that the first rape incident
occurred in the forested area in Brgy. Cabanbanan.24Minor lapses are to be expected when a person is
recounting details of a traumatic experience too painful and too nauseating to
recall.25cräläwvirtualibräry

Thus, the trial court did not err in finding accused-appellant guilty of three (3) counts of rape and two (2)
counts of acts of lasciviousness. He had forced sexual intercourse with his nine (9)-year old daughter
Esperanza on 27 March 1992, in the first quarter of 1993, and in the middle part of 1994. She
complained of only one (1) incident of rape in 1993 per advice of the police officers. Inasmuch as the
Information so charged a single offense of rape in 1993, even if the evidence showed two (2) other
rapes committed that year, conviction for only one (1) can be proper.26 The presence of lewd designs,
or the lack of them, is inferred from the nature of the acts themselves and the environmental
circumstances.27 Here, the presence of lewd designs was obviously deducible from his separate acts of
sucking her breasts inside their house and kissing her neck while they were in the western portion of
Brgy. Cabanbanan to gather dalanghita.

Article 335 of The Revised Penal Code as amended by Sec. 11, RA 765928punishes rape with reclusion
perpetua but justifies the imposition of the death penalty (w)hen the victim is under eighteen (18) years
of age and the offender is a parent x x x which is properly alleged in the Information. However, as we
have now repeatedly held, there is need for independent proof of the age of the victim, aside from her
testimonial evidence or that of her relatives, even though her age is not contested by the
defense.29cräläwvirtualibräry

The records show that Esperanza merely testified that she was born on 28 November 1982 without
presenting independent proof thereof such as her birth certificate. Neither is there any showing that the
document was lost or destroyed to justify non-presentation thereof. The imposition of death in Crim.
Case No. SC-6577 is therefore erroneous, which we consequently lower to reclusion perpetua. The
penalties of reclusion perpetua in Crim. Cases Nos. SC-6578 and SC-6580 are affirmed.

On the other hand, the crime of acts of lasciviousness is punished under Art. 336 of the same Code
by prision correccional. Applying the Indeterminate Sentence Law and appreciating relationship as an
aggravating circumstance, we find it appropriate to impose upon accused-appellant the same penalty
meted by the trial court for each of the two (2) counts of acts of lasciviousness in Crim. Cases Nos. SC-
6576 and SC-6579, to wit, six (6) months of arresto mayor maximum as minimum to six (6) years
of prision correccional as maximum, with the modification that six (6) months of arresto mayor should
be more accurately referred to as arresto mayor maximum, as minimum, and the six (6) years ofprision
correccional should be properly denominated as prision correccional maximum, as maximum.

Civil indemnity of P50,000.00 is automatically given to the offended party without need of further
evidence other than the fact of the commission of rape which we award for each count.30 The
requirement of proof of mental and physical suffering has been dispensed with and this Court
recognizes the victim's injury as being inherently concomitant with and necessarily resulting from the
odious crime of rape to warrant per se an award for moral damages,31 and we consider P50,000.00
adequate and proper for each count. An award for exemplary damages is also proper to deter other
fathers with similar perverse tendencies or aberrant sexual behavior from sexually abusing their own
daughters,32 which we however reduce to P25,000.00 for each count.

The civil indemnity of P5,000.00 for each count of acts of lasciviousness is deleted for lack of basis. But
moral damages of P5,000.00 is affirmed as Esperanza had to stop going to school and reached only fifth
grade because of these proceedings which brought shame and scandal to her.33The award for
exemplary damages for the reason earlier mentioned is reduced to P2,000.00 for each of the cases for
acts of lasciviousness.

WHEREFORE, the Decision appealed from finding accused-appellant APSALON DIZON Y ABLIR guilty of
three (3) counts of rape and two (2) counts of acts of lasciviousness is AFFIRMED subject to
MODIFICATION as to the penalties and monetary awards in favor of his own daughter, complaining
witness Esperanza Dizon.

In Crim. Case No. SC-6577 (G.R. No. 134523) for Rape, accused-appellant is sentenced to reclusion
perpetua and ordered to pay Esperanza Dizon P50,000.00 for civil indemnity, another P50,000.00 for
moral damages and P25,000.00 for exemplary damages.

In Crim. Case No. SC-6578 (G.R. No. 134524) for Rape, he is sentenced to reclusion perpetua and
ordered to pay Esperanza Dizon P50,000.00 for civil indemnity, another P50,000.00 for moral damages
and P25,000.00 for exemplary damages.

In Crim. Case No. SC-6580 (G.R. No. 139509) for Rape, he is sentenced to reclusion perpetua and
ordered to pay Esperanza Dizon P50,000.00 for civil indemnity, another P50,000.00 for moral damages
and P25,000.00 for exemplary damages.

In Crim. Case No. SC-6576 (G.R. No. 134522) for Acts of Lasciviousness, he is sentenced to an
indeterminate prison term of six (6) months of arresto mayor maximum as minimum to six (6) years
of prision correccional maximum as maximum and ordered to pay Esperanza Dizon P5,000.00 for moral
damages and P2,000.00 for exemplary damages.

In Crim. Case No. SC-6579 (G.R. No. 139508) for Acts of Lasciviousness, he is sentenced to an
indeterminate prison term of six (6) months of arresto mayor maximum as minimum, to six (6) years
of prision correccional maximum as maximum and ordered to pay Esperanza Dizon P5,000.00 for moral
damages and P2,000.00 for exemplary damages.

Costs against accused-appellant in all five (5) cases.

SO ORDERED.

G.R. No. L-36662-63 July 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FILOMENO CAMANO, defendant-appellant.
The Solicitor General for plaintiff-appellee.

Deogracias Eufemio for defendant-appellant.

CONCEPCION JR., J.:

MANDATORY REVIEW of the death sentence imposed upon the accused Filomeno Camano by the Court
of First Instance of Camarines Sur, in Criminal Case Nos. T-20 and T-21, for the killing of Godofredo
Pascual and Mariano Buenaflor.

The inculpatory facts as stated by the trial court show that:

On February 17, 1970, in the barrio of Nato, Municipality of Sagñay, Province of Camarines Sur, between
the hours of four and five o'clock in the afternoon, after the accused had been drinking liquor, he
stabbed twice the victim Godofredo Pascua with a bolo, called in the vernacular Bicol "palas" which is a
sharp bladed and pointed instrument about two feet long including the black handle, tapering to the
end, about one and one-half inches in width, (Exhibit "C") while the latter was walking alone along the
barrio street almost infront of the store of one Socorro Buates. The victim, Godofredo Pascua, sustained
two mortal wounds for which he died instantaneously, described by Dr. Constancio A. Tan, Municipal
Health Officer, of Sagñay Camarines Sur, in his Autopsy Report (Exhibit "A", pp. 5, Record Crim. Case No.
T-21) as follows:

NATURE OF WOUNDS UPON AUTOPSY:

1. WOUND STAB - three (3) inches long at left side, three (3) inches below left axilla, a little bit
posteriorly, cutting the skin, subcutaneous tissues, muscles one (1) rib, pleura of left lung, pericardium,
penetrating the ventricles of the heart, Media stinum, the right lung and exit to the right chest. One inch
opening.

2. WOUND INCISED, one inch long at the left arm

CAUSE OF DEATH - Wound No. 1 causing instant death due to severe hemorrhage.

After hacking and stabbing to death Godofredo Pascua, the accused proceeded to the seashore of the
barrio, and on finding Mariano Buenaflor leaning at the gate of the fence of his house, in a kneeling
position, with both arms on top of the fence, and his head stooping down hacked the latter with the
same bolo, first on the head, and after the victim fell and rolled to the ground, after said blow, he
continued hacking him, until he lay prostrate on the ground, face up, when the accused gave him a final
thrust of the bolo at the left side of the chest above the nipple running and penetrating to the right side
a little posteriorly and superiorly with an exit at the back, of one (1) inch opening, (Exhibit B) causing
instant death. The victim, Mariano Buenaflor sustained eight wounds, which were specifically described
by Dr. Tan in his Autopsy Report (Exhibit "B" dated February 17, 1970, as follows:

NATURE OF WOUNDS UPON AUTOPSY:

1. WOUND STAB, Two (2) inches long at the left side of chest above the nipple, running to the right side
a little posteriorly and superiorly with an exit at the back of one (1) inch opening. Penetrating the skin,
subcutaneous tissues, pericardium the auricles of the heart, the left lung towards the right side of back.
2. WOUND STAB at sternum one and one-half (1-1/2) inches deep three-fourth (3/4) inch long
penetrating the skin and the sternum.

3. WOUND STAB left side of neck three-fourth (3/4) inch long one and one-half (1-1/2) inches deep.

4. WOUND HACKED, cutting left ear and bone four (4) inches long.

5. WOUND HACKED, left leg three (3) inches long cutting skin and bone of anterior side.

6. WOUND INCISED left palm two (2) inches long.

7. WOUND STAB, one (1) inch long two (2) inches deep at the back near spinal column.

8. WOUND HACKED, two (2) inches long at dome of head cutting skin and bone.

CAUSE OF DEATH — Wound number one (1) causing instant death due to severe hemorrhage from the
heart." Out of the eight (8) wounds, two (2) are mortal wounds, namely wound Number one (1) and
wound Number Three (3), (Exhibit "B") (t.s.n., pp. 18-20, Session November 22, 1971). The two victims
Godofredo Pascua and Mariano Buenaflor, together with the accused are neighbors, residing at the
same street of Barrio Nato, Sagñay, Camarines Sur (t.s.n., pp. 31, Session Nov. 22, 1971). The bloody
incident was not preceded or precipitated by any altercation between the victims and the accused (t.s.n.
p. 60, Nov. 22, 1971).

Likewise, it is an undisputed fact that three years prior to this incident, the two victims had a
misunderstanding with the accused while fishing along Sagnay River. During this occasion it appears that
the accused requested Godofredo Pascua to tow his fishing boat with the motor boat owned by Mariano
Buenaflor but the request was refused by both. This refusal greatly offended and embittered the
accused against the victims. From this time on, the accused begrudged the two, and entertained
personal resentment against them. And although on several occasions, the accused was seen at the
game table with Godofredo Pascual drinking liquor, the friendly attitude towards Pascua, seems to be
merely artificial than real, more so, with respect to Mariano Buenaflor whom he openly detested. He
consistently refused to associate since then with the two victim especially, Mariano Buenaflor. In fact,
no less than ten attempts were made by Amado Payago, a neighbor, inviting the accused for
reconciliation with the victims but were refused. Instead, defendant when intoxicated or drunk, used to
challenge Mariano Buenaflor to a fight and announce his evil intention to kill them. (t.s.n., pp. 50-53,
session November 22, 1971.)

Also proved beyond dispute, the fact that the bolo or "palas" belongs to the accused. That after killing
the two victims, he returned to his house, where he subsequently surrendered to Policemen Adolfo
Avila, Juan Chavez, Erasmo Valencia, upon demand by laid peace officers for him to surrender. When
brought to the Police headquarters of the town for investigation he revealed that the bolo he used in
the killing was hidden by him under the table of his house. Following this tip, Patrolman Jose Baluyot
was dispatched, and recovered the weapon at the place indicated, which when presented to he Chief of
Police was still stained with human blood from the base of the handle to the point of the blade. And
when asked as to who was he owner of said bolo, the accused admitted it as his. He also admitted the
killing of Godofredo Pascua and Mariano Buenaflor. however, when he was asked to sign a statement,
he refused. 1
For the killing of Godofredo Pascua and Mariano Buenaflor, Filomeno Camano was charged, under two
(2) separate informations, with the crime of murder attended by evident premeditation and treachery.
By agreement of the parties, the two cases were tried jointly.

The accused admitted killing Mariano Buenaflor, but claims that he did so in self-defense. He denied
killing Godofredo Pascua. He also denied holding a grudge against Godofredo Pascua and Mariano
Buenaflor and belittled the fist fight he had with Mariano Buenaflor. He said that while they were
drinking, they had a heated discussion, and because they were drunk, it resulted in a fist fight, which
they had soon forgotten. 2

His version of the incident is that in the early morning of February 17, 1970, he was fishing in the open
sea. He went ashore at about 7:00 o'clock in the morning and was met by Mariano Buenaflor who, upon
seeing that he had a big catch, demanded a percentage. for the fishery commission. When he refused to
give what was asked, Buenaflor remarked that he was hard-headed. He went home, taking his things
along with him. After eating breakfast, he went to sleep and awoke at about 3:30 o'clock in the
afternoon. 3 He ate his dinner 4 and prepared to go out to sea again. While he was standing in the yard
of his house, Mariano Buenaflor, Godofredo Pascua, Gorio Carable, Jesus Carable, Tomas Carable,
Abelardo Bolaye, Amado Payago, and Loreto Payago, who were drinking at the store of Socorro Buates,
went to him and Godofredo Pascua, without any provocation whatsoever, boxed him. He recounted
what happened next: "I defend myself but inspite of that I was hit on my upper arm. Then after that I
was again boxed by Mariano Buenaflor and I was hit on my lower jaw. (Witness pointing to the bolo
marked Exhibit C.) And I was able to grab that bolo from him."

"When I met Godofredo Pascua he was on the act of boloing me but I was able to take hold of his hands
and I was able to grab the bolo. After I have taken the bolo from Godofredo Pascua, all I know is that he
fell on the ground and the rest of the group except Mariano Buenaflor run away after seeing that
Godofredo Pascua fell already on the ground. Mariano Buenaflor approached me having also a bolo then
immediately when we meet each other I boloed him and when he has wounded he run away and when
he was running away I run after him. After I have boloed Mariano Buenaflor he run away so I run after
him because I know that he has a gun and if he reach home he will get that gun and he might shoot
me." 5 Mariano Buenaflor was hit on the head.

The trial court, however, rejected the defense of the accused, saying:

Coming to the evidence for the defense, the Court, much to its regret cannot give credence to the
testimony and story of the accused, and his lone witness, Nemesio Camano, who is his first cousin. The
claim of self-defense does not find support in the evidence presented. The claim, that a group of eight
(8) men headed by Godofredo Pascua and Mariano Buenaflor ganged up on him by boxing him one after
another while others were throwing stones at him; that he was attacked by Godofredo Pascua with a
bolo which he succeeded in wresting from him; that he did not know Godofredo Pascua was killed; that
he killed said Mariano Buenaflor after a bolo duel, are mere fictions of a desperate man without
evidentiary support. His testimony on these points, and that of his cousin Nemesio Camano are simply
incredible not only because they are inherently improbable in themselves, but also because of their
clear inconsistencies on contradictions against each other. For, conceding in gratia argumenti that he
was really ganged up by eight (8) persons, some boxing him while others throwing stones at him, and
two of whom were armed with a bolo, and that he was all alone fighting them and yet he did not suffer
any physical injury, is indeed incredible and beyond belief. With eight (8) persons to contend with, two
armed with bolos, it is simply unbelievable that he should come out of the melee unscathed.

The Court has carefully examined and verified very carefully each and every piece of evidence presented
by the defense and has relaxed all technical rules of evidence in favor of the accused in search for
evidentiary support of his claim of self-defense in vain. Conscious of the enormity of the offense and the
bitterness attached to an adverse decision, the Court has earnestly searched in vain for facts upon which
to lay the basis at least of a finding of reasonable doubt in favor of the accused at least just to avoid the
ugly and unpleasant task of signing an adverse court decision. But, the falsity of their concocted story is
so apparent and self-evident to need further elucidation. This is demonstrated by the record. They
simply cannot stand, as basis of belief. Moreover, the Court feels very much intrigued by the fact that
notwithstanding that many people witnessed the incidents, having occurred in broad daylight, and that
the accused had more sufficient time to look for witnesses among his friends, relatives, and neighbors in
the barrio, during the long period that this case has been pending trial since February 17, 1970, that he
could not get any witness to testify in his favor, other than his lone witness, Nemesio Camano, whose
testimony, coming as it is from a very close relative is naturally very vulnerable to grave doubt and
suspicion for coming from a biased source. Could this mean lack of public sympathy because the horrible
act was in truth committed by the accused? Is this a sign of public condemnation? Be it as it may, this
unpleasant circumstance has no bearing or influence in the painful decision of this case. What impelled
and compelled this Court in making this painful decision, much to his dislike, are the bare and
incontrovertible facts of the case born out by the evidence presented indicating beyond per adventure
of doubt the stark reality which shows that there exist that moral certainty that convinces and satisfies
the reason and conscience of those who are to act upon it. (People v. Lavarios, L-24339, June 29, 1968,
22 SCRA 1321) For the bitter conclusions herein reached, is based on the compelling and irresistible
facts born out by the evidence of record found after sleepless night of study that the accused is guilty
beyond reasonable doubt of the crime charged committed with the aggravating circumstances of
evident premeditation, treachery, abuse of superior strength, and intoxication with no mitigating
circumstance. The accused and his only witness, Nemesio Camano changed their declarations not only
once, twice, or thrice, but many times, placing the Court in quandary and confused what theory or
testimony is to be believed and considered among the mess of contradictory, inconsistent, and
diametrically opposed statements. Considering the manner and tenor they were given, - the accused
and his only witness changing stand in every turn, leaves no room for doubt than that said testimonies
are merely concocted and fabricated as a desperate attempt to salvage a hopeless case. 6

In this appeal, the fact of death of Godofredo Pascua and Mariano Buenaflor and the cause of their
deaths are not disputed. Counsel de oficio merely claims that the accused is guilty of homicide only in
each case, and not murder, as charged; and prays for the modification of the judgment and the
consequent reduction of the penalty imposed upon the accused Filomeno Camano.

(1) Counsel contends that there is no evident premeditation since the acts of the accused, as testified to
by the prosecution witnesses, are all indicative of E, "spur-of-the-moment" decision and action.

The contention is well taken. There is evident premeditation when the killing had been carefully Planned
by the offender, when he prepared beforehand the means which he deemed suitable for carrying it into
execution, and when he had sufficient time dispassionately to consider and accept the consequences,
and when there has been a concerted plan. 7 It has also been held that evident premeditation requires
proof of the following: (1) the time when the offender determined to commit the crime; (2) an act
manifestly indicating that the culprit had clung to his determination; and (3) a sufficient lapse of time
between the determination and the execution of the crime to allow him to reflect upon the
consequences of his act and to allow his conscience to overcome the resolution of his will. 8 In the
instant case, it cannot be stated that the killing of Pascua and Buenaflor was a preconceived plan. There
is no proof as to how and when the plan to kill Pascua and Buenaflor was hatched or what time had
elapsed before the plan was carried out. The trial court merely concluded that the killing of Pascua and
Buenaflor was premeditated because "the accused has been nursing the evil design to kill both the
victims since three years prior to the occurrence of the incident on February 18, 1970, when both of
them refused the request of the accused to have his boat towed by the motor boat belonging to
Mariano Buenaflor while fishing along Sañgay River," and "from that time on, to the fatal killings, said
accused refused consistently to join his neighbors in their drinking spree where both the victims
especially Mariano Buenaflor were present;" "in fact, no less than ten attempts made by witness Amado
Payago inviting the accused to be reconciled with the victims were rejected;" and that "on the contrary,
it has been established that whenever the accused was drunk, he announces his intention to kill the
victims, and as a matter of fact he challenged several times Mariano Buenaflor to a fight."

The incident referred to, however, does not establish the tune when the appellant decided to commit
the crime. If ever, the aforementioned incident merely established the motive for the killing of the two
victims. 9

The fact that the accused had challenged Mariano Buenaflor to a fight whenever he was drunk and
announces his intention to kill the latter does not reveal a persistence of a criminal design since there is
no showing that in between the utterances of the threats and the consummation of the crime, the
appellant made plans or sought the deceased to accomplish the killing.

As there is no direct evidence of the planning or preparation in the killing of Pascua and Buenaflor and
of the marked persistence to accomplish that plan, the trial court's conclusion cannot be sustained.

(2) Counsel for the accused also claims that treachery is not present in the commission of the crime.

The contention is without merit. Amado Payago categorically declared that Filomeno Camano attacked
Godofredo Pascua from behind, a method which has ensured the accomplishment of the criminal act
without any risk to the perpetrator arising from the defense that his victim may put up. His testimony
reads, as follows:

Q At that time and date while you were in front of your house did you notice whether there is anything
unusual incident that happened?

A Yes, sir.

Q Can you relate before this Honorable Court?

A Yes, sir.

Q Please relate it?

A I saw Filomeno Camano run towards his house and took a bolo and run after Godofredo Pascua and
immediately stabbed him.
Q How far more or less were you when Godofredo Pascua was stabbed by Filomeno Camano?

A More or less 12 to 15 meters.

Q What was Godofredo Pascua doing when he was stabbed by Filomeno Camano?

A He was walking to his house.

Q In relation to Godofredo Pascua where was Filomeno Camano at the time that Filomeno Camano
stabbed Godofredo Pascua?

A From behind sir.

Q After Godofredo Pascua was stabbed by Filomeno Camano what happened to Godofredo Pascua?

A He fell down and keep on turning.

Q What about Filomeno Camano, what did he do after Godofredo Pascua fell down?

A He run towards the seashore looking after Mariano Buenaflor. 10

His testimony is corroborated by the nature and location of the wounds sustained by the deceased
Godofredo Pascua. The autopsy report, 11 showed that the point of entry of the stab wound inflicted
upon Pascua was three (3) inches long and three (3) inches below the left armpit, a little bit posteriorly
or toward the hinder end of the body; and the point of exit was the right chest, one (1) inch Iateral to
the right nipple with a one (1) inch opening. If the deceased was stabbed while he was facing his
assailant, as claimed by counsel for the accused, the entrance wound would have been in the front part
of the body, and its exit wound, if any, would be at the back. The trial court, therefore, did not commit
an error in finding that the deceased Godofredo Pascua was assaulted from behind.

With respect to Mariano Buenaflor, the evidence shows that he was attacked while in a kneeling
position, with his arms on top of the gate of the fence surrounding his hut and his head was "stooping
down." 12 He was hacked on the head, causing him to fall to the ground, and then successively hacked
and stabbed without respite, as he lay on the ground, until he died. The attack was also sudden,
unexpected, and lethal, such as to disable and incapacitate the victim from putting up any defense.

(3) Counsel de oficio further claims that the aggravating circumstance of abuse of superior strength,
which the lower court appreciated in fixing the penalty, is absorbed in treachery.

This contention is likewise correct. The rule is already settled that abuse of superiority is absorbed in
treachery. 13

(4) Counsel next contends that the alternative circumstance of intoxication was erroneously appreciated
as an aggravating circumstance. Counsel argues thusly:

As to the alternative circumstance of intoxication, it is respectfully submitted that there was no proof
that the accused was intoxicated at the time of the killing other than the bare testimony of Payago that
from his house he allegedly saw the accused drinking in his house which is about 30 meters away. The
prosecution did not present any police report or doctor's certification that accused was found to be
intoxicated at the time of the killing. Moreover, it was not shown by competent evidence that accused
purposedly became drunk to facilitate the commission of the offense.
If at all, intoxication should be properly appreciated as a mitigating circumstance because it affected
accused's mental facilities such that it diminished his capacity to know the injustice of his acts and to
comprehend fully the consequences of his acts. 14

There is merit in the contention. Drunkenness or intoxication is mitigating if accidental, not habitual nor
intentional, that is, not subsequent to the plan to commit the crime. It is aggravating if habitual or
intentional. 15 To be mitigating, it must be indubitably proved. 16 A habitual drunkard is one given to
intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed. It is
unnecessary that it be a matter of daily occurrence. It lessens individual resistance to evil thought and
undermines will-power making its victim a potential evildoer. 17

The records of these cases do not show that the appellant was given to excessive use of intoxicating
drinks although he used to get drunk every now and then. The testimony of Amado Payago to this
effect, reads as follows:

Q But after that incident Godofredo Pascua and Filomeno Camano are already in good terms because
they even go on drinking spree, is it not?

A Yes, sir, that is true but Filomeno Camano has an evil plan against Godofredo Pascua.

Q And how did you come to know about this plan?

A He talk(s) (about) that very openly specially when he is drunk.

Q During the three years that the incident where Camano's boat was not towed, could you remember
how many times more or less did you hear him speak about his plan before the stabbing incident?

A Whenever he is drunk.

Q Can you not remember more or less how many times have you heard him?

A I cannot remember, sir.

Q About five times?

FISCAL CLEDERA:

Already answered.

A Whenever he is drunk.

ATTY. TRIA:

Q How often does he drunk (sic), if you know?

A I cannot estimate, sir.

Q What about Mariano Buenaflor, could you also state that there had been an altercation between him
and Filomeno Camano prior to the incident, is it not?

A Yes, sir.

Q What was this altercation about?

A It started when the request of Filomeno Camano to tow his boat was refused by Godofredo Pascua
because that boat used by Godofredo Pascua is owned by Mariano Buenaflor.

Q How did you also know that Camano resented against (sic) this Buenaflor?

A Everytime he is drunk he keep(s) on challenging Mariano Buenaflor.

xxx xxx xxx

Q Have you ever seen the accused Filomeno Camano drink liquor immediately prior to the incident?

A Yes, sir.

Q Where?

A In his house.

Q When you saw him where were you?

A I was also in my house because I can just see his house from our window.

Q About how far is your house from the house of Filomeno Camano so that you can see from your
house?

A More or less 30 meters.

Q With whom was Filomeno Camano drinking?

A Bienvenido Pascua, Leopoldo Balaye and this (sic) persons (who) are arriving far from our house.

Q According to your personal knowledge do you know whether or not the accused was drunk when this
incident happened?

A Yes, sir.

Q But the truth is that, you still affirm that you don't know of any incident immediately prior that has
precipitated this stabbing incident between the accused and the victim

A None, sir.

ATTY. TRIA:

Q How about you, did you now drink that time?

No, sir. 18

The intoxication of the appellant not being habitual, and considering that the said appellant was in a
state of intoxication at the time of the commission of the felony, the alternative circumstance of
intoxication should be considered as a mitigating circumstance.

5. Finally, counsel claims that death is a cruel and unusual penalty and not proper in the cases at bar,
citing Art. IV, Sec. 21 of the Constitution which provides that: "Excessive fines shag not be imposed, nor
cruel or unusual punishment inflicted."
The contention is without merit. The death penalty is not cruel, unjust or excessive. In the case
of Harden vs. Director of Prisons, 19 the Court said:

The penalty complained of is neither cruel, unjust nor excessive. In Ex-Parte Kemmler, 136 U.S. 436, the
United States Supreme Court said that "punishments are cruel when they involve torture or a lingering
death, but the punishment of death is not cruel, within the meaning of that word as used in the
Constitution." It implies there something inhuman and barbarous, something more than the mere
extinguishment of life."

The trial court, therefore, did not err in finding the accused Filomeno Camano guilty of Murder in each
of the two cases. The offense being attended by the mitigating circumstance of intoxication, without any
aggravating circumstance to offset it, the imposable penalty is the minimum of that provided by law or
17 years, 4 months and 1 day to 20 years of reclusion temporal. Applying the Indeterminate Sentence
Law, the appellant should be, as he is hereby, sentenced to suffer an indeterminate penalty ranging
from 10 years and 1 day of prision mayor, as minimum, to 17 years, 4 months and 1 day of reclusion
temporal, as maximum, in each case.

WHEREFORE, with the modification of the penalty imposed upon the appellant, as above indicated, the
judgment appealed from should be, as it is hereby, AFFIRMED in all other respects. With costs against
the said appellant.

SO ORDERED.