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Republic of the Philippines SUPREME COURT Manila PEOPLE OF THE PHILIPPINES, Appellee, versus ALEJANDRO CALONGUI y LOPEZ, Appellant.

2006 Mar 31st Division G.R. No. 170566 DECISION YNARES-SANTIAGO, J.: This is an appeal from the October 26, 2005 Decision[1] of the Court Appeals in CA-G.R. CR-H.C. No. 00125, affirming with modification the December 23, 2002 Judgment[2] of the Regional Trial Court of Pili, Camarines Sur, Branch 33 in Criminal Case Nos. P-2813 and P-2814, convicting appellant Alejandro Calongui y Lopez for two counts of rape; sentencing him to reclusion perpetua, and ordering him to indemnify the victim P50,000.00 as civil liability, P50,000.00 as moral damages and P30,000.00 as exemplary damages, for each count of rape. On July 6, 1999, two separate informations were filed against appellant before the Regional Trial Court of Pili, Camarines Sur, docketed as Criminal Case Nos. P-2813 and P-2814. In Criminal Case No. P-2813, the Information reads: That on or about the 1st day of January 1998 at about 2:00 oclock in the morning, at Tagbong, Pili, Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the said accused, with lewd design, and by means of threats, force and violence, and being the first-cousin of the complaining witness did then and there, willfully, unlawfully and feloniously lie, sexually assaulted and succe[e]ded in having carnal knowledge with (sic) one Marinel O. Colangui, a 13 years old girl, at the latters house and against her will-to the latters damage and prejudice in such amount as may be proven in court. ACTS CONTRARY TO LAW.[3] The Information[4] in Criminal Case No. P-2814 is similarly worded except as to the alleged date and time of the commission of the rape which was on September 26, 1998 at 3:00 a.m. The appellant pleaded not guilty to the charges.[5] Thereafter, joint trial on the merits ensued. The prosecution presented four witnesses, namely, Marinel Calongui, Noel Calongui, Jr., Gracia Calongui, and Dr. Salvacion Pantorgo. Marinel testified that she was 5 years old when her family took in appellant, who is her first cousin and who was then 21 years old, to live with them and help in the upkeep of the familys farm.

On January 1, 1998, at 2:00 a.m., then 13-year-old Marinel, who slept in the same room as the appellant and her three siblings, awoke to find that appellant had removed her shorts and panties. The latter threatened to kill her and her siblings if she resisted his sexual advances. She tried to repel the sexual assault by moving her body and kicking the appellants thighs but appellant succeeded in having sexual congress with her. The next morning, she learned that her 12-year old brother, Noel, witnessed the incident but pretended to be asleep because the appellant might harm him. Marinel told Noel not to tell anyone about what he saw. She also did not report the matter to her parents for fear that appellant would make good his threats. On September 26, 1998 at 3:00 a.m., appellant again raped Marinel which was likewise witnessed by Noel. She was undressed from the waist down and threatened that she and her siblings would be killed if she resisted. Shortly after the second rape incident, appellant stayed at the B-Meg barracks where he worked as a laborer. Emboldened by his absence, Marinel told her mother of her ordeals which led to the filing of the instant criminal cases. Noel testified that he saw how appellant raped his sister on both occasions but pretended to be asleep out of fear. He did not report the matter to their parents upon instructions of Marinel and also because of the threats of the appellant. Gracia, Marinels mother, testified that Marinel informed her of the rape incidents on November 15, 1998. She thereafter accompanied her daughter to the police authorities. Dr. Salvacion Pantorgo, Medical Officer at the Bicol Medical Center in Naga City testified that on November 18, 1998, she physically examined Marinel and made the following findings: PPE: Sparse pubic hair; well-apposed labia majora and minora; (+) old superficial hymenal laceration at 3 and 4 oclock positions; (+) old complete hymenal lacerations at 6 and 11 oclock positions. IE: Admits 2 fingers with ease; cervix closed, firm; uterus small; (-) adnexae; (-) vaginal bleeding.[6] Dr. Pantorgo found Marinel to be in a non-virgin state consistent with the latters claim that appellant had sexual intercourse with her on two occasions. Appellant denied having sexual congress with Marinel on January 1, 1998. However, as regards the September 26, 1998 incident, he claimed that it was a consensual act considering that he and Marinel were sweethearts at that time. After trial, the Regional Trial Court rendered judgment finding the accused guilty of two counts of rape, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused ALEJANDRO CALONGUI y LOPEZ, as follows: 1. In Crim. Case No. P-2813, GUILTY beyond reasonable doubt of the crime of Rape under Article

266-A, paragraph 1(a), of Republic Act No. 8353 and imposing upon him the penalty of imprisonment ranging from TWENTY (20) YEARS and ONE (1) DAY TO FORTY (40) YEARS of RECLUSION PERPETUA. Accused is likewise ordered to pay the offended party, MARINEL O. CALONGUI, the sum of Fifty Thousand

Pesos (P50,000.00) as civil liability; Fifty Thousand Pesos (P50,000.00) as moral damages; Thirty Thousand Pesos (P30,000.00), as exemplary damages, all in Philippine Currency. 2. In Crim. Case No. P-2814, GUILTY beyond reasonable doubt of the crime of Rape under Article

266-A, paragraph 1(a), of Republic Act No. 8353 and imposing upon him the penalty of imprisonment ranging from TWENTY (20) YEARS and ONE (1) DAY TO FORTY (40) YEARS of RECLUSION PERPETUA. Accused is likewise ordered to pay the offended party, MARINEL O. CALONGUI, the sum of Fifty Thousand Pesos (P50,000.00) as civil liability; Fifty Thousand Pesos (P50,000.00) as moral damages; Thirty Thousand Pesos (P30,000.00) as exemplary damages; and 3. To pay the costs of the suit.

The accused is credited in full for the period of his preventive imprisonment if he agreed voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners; otherwise, with fourfifths thereof. SO ORDERED.[7] Appellant filed a notice of appeal[8] with this Court. In a Resolution[9] dated September 8, 2004 and pursuant to our ruling in People v. Mateo,[10] the case was transferred to the Court of Appeals, which rendered the assailed decision affirming with modification the judgment of the trial court thus: WHEREFORE, the appealed Judgment dated December 23, 2002 is affirmed, subject to the modification of the imprisonment sentence of reclusion perpetua in each case, by deleting the period of twenty (20) years and one (1) day to forty (40) years. The Judgment is affirmed in all other respects. SO ORDERED.[11] Hence, this appeal raising the sole issue of whether the prosecution proved appellants guilt beyond reasonable doubt. The appeal is bereft of merit. Regarding the January 1, 1998 rape incident, appellant offers his bare and unsubstantiated denial; a weak, negative and self-serving defense which cannot overcome affirmative testimonies from credible witnesses.[12] In the case at bar, the clear, candid and straightforward testimony of Marinel firmly established that appellant raped her on January 1, 1998. As regards the September 26, 1998 rape incident, we are not persuaded that what transpired between appellant and Marinel was consensual sexual intercourse. Well-settled is the rule that the sweethearts defense must be proven by compelling evidence, specifically, that the accused and the victim were lovers and that the victim consented to the alleged sexual relations.[13] Appellants claim that he and Marinel were lovers remained uncorroborated and unsubstantiated. No documentary evidence like mementos, love letters, notes, pictures and the like were presented.[14] Marinel denied the alleged love relationship on direct[15] and cross-examination.[16] Besides, the sweethearts defense does not rule out rape. Even if it were true, the relationship does not, by itself, establish consent for love is not a license for lust.[17]

Appellant further claims that Marinel has bigger physique than him, hence she could have resisted and overcome his advances; or she could have shouted for help because her siblings and parents were nearby. Appellants contentions are untenable. Marinel was only 13 years old at the time of the rape incidents. At such a tender age, she could not be expected to put up a resistance as would be expected from a mature woman. Besides, Marinel testified that she was not of bigger built than the appellant at the time she was raped, although at the time she testified two years after the incidents, she indeed look bigger than the appellant.[18] Moreover, her failure to offer tenacious resistance did not make voluntary her submission to the criminal acts.[19] There is nothing unusual in Marinels testimony that the sexual intercourse lasted for 30 minutes. A rape victim is not expected to recall every peripheral and sordid detail of her horrible ordeal such as the exact duration of the sexual intercourse. Minor lapses are to be expected when a person is recounting details of a traumatic experience too painful to recall.[20] The presence of force, threats, and intimidation during the two rape incidents was clearly established, thus: Q: Now, with respect to the rape incidents you alleged to have occurred on January 1, 1998 at around

2:00 oclock in the morning, please tell us how did it happen? A: xxxx Q: A: Q: A: Q: A: Q: A: Q: A: When Alejandro was already on top of you without underwear, what did he do? He just rode on top of me. What did he do when he rode on top of you? He held both my hands. Why did he took hold of your two hands? Because I was fighting him. Why, what was he doing? (Witness is crying.) He placed his ano in my ano. What is this thing that you named ano that was placed in your ano that you were referring to? He placed his sex organ or penis inside my I was already asleep when I found out that I did not have my shorts anymore.[21]

(Witness is pointing to her sex organ, vagina.)[22] xxxx

Q: A: Q: A: xxxx Q: A: xxxx Q: A: Q: A: xxxx Q: A: Q: A: Q: A: xxxx Q: A: Q: A: Q:

What did you do also when he was kissing you when his penis inserted into your vagina? I shouted. How loud did you shout? Not so loud.[23]

Why did you not report the matter to your mother or to your parents? Because he told me that if I report the matter to my parents he will kill us.[24]

When did he tell you that? When he was doing that thing which is bad to me. Are you referring to his acts of rape to you? Yes, sir.[25]

How did that rape incident happen on September 26, 1998 at around 3:00 oclock in the morning? He took off my shorts and panty. Afterwards, what did he do? He went on top of me. After he went on top of you, what did he do? He inserted his penis into my vagina.[26]

Did you resist? Yes, sir. How did you resist? I kicked him. After you kicked him twice, what happened?

A: xxxx Q: A: Q: A: xxxx Q:

He told me that I should stop moving otherwise he will kill us.[27]

Did you not call your parents when he was raping you on September 26, 1998? No, sir. Why did you not call them? Because he said that if I report the matter he will kill us.[28]

Why did it take you to report the matter until November of 1998, when the rape were done to you

on January 1 and September 26, 1998? A: Because he was practically watching my every move and would watch me wherever I go and he was

very watchful every time there are conversations and story telling at home.[29] In sum, we find that the prosecution satisfactorily proved beyond reasonable doubt that appellant had carnal knowledge of Marinel through force, threats and intimidation on January 1, 1998 and September 26, 1998. Under Articles 266-A[30] and 266-B[31] of the Revised Penal Code, as amended by Republic Act No. 8353, or the Anti-Rape Law of 1997, simple rape is punishable by reclusion perpetua. Since the appellant is guilty of two counts of simple rape, the trial court correctly meted out the penalty of reclusion perpetua for each count of rape. Anent the award of damages, civil indemnity ex delicto is mandatory upon finding of the fact of rape[32] while moral damages is awarded upon such finding without need of further proof because it is assumed that a rape victim has actually suffered moral injuries entitling the victim to such award.[33] Thus, the trial court correctly awarded the sum of P50,000.00 as civil liability and P50,000.00 as moral damages to the offended party in accordance with prevailing jurisprudence.[34] However, with respect to the award of exemplary damages, the trial court failed to cite any factual and legal bases therefor. In People v. Catubig,[35] we held that the presence of an aggravating circumstance, whether ordinary or qualifying, entitles the offended party to an award of exemplary damages. The Revised Rules of Criminal Procedure which took effect on December 1, 2000 now provides that aggravating circumstances must be alleged in the information in order to be validly appreciated by the court.[36] However, the acts of rape and the filing of the two informations in the instant case occurred prior to the effectivity of these rules. Pursuant to People v. Catubig, the retroactive application of the Revised Rules of Criminal Procedure cannot adversely affect the rights of a private offended party that have become vested before the effectivity of these rules.[37] Thus, aggravating circumstances which were not alleged in the informations but proved during the trial may be appreciated for the limited purpose of determining the accuseds liability for exemplary damages. This notwithstanding, a review of the records shows that there are no aggravating circumstances present in the case at bar. Dwelling cannot be appreciated because Marinel and the appellant lived in the same house at the time of the rape incidents.[38] As a result, the rationale for considering dwelling as an

aggravating circumstance, i.e., the violation by the offender of the sanctity of the home of the victim by trespassing therein to commit a crime,[39] is absent. Night time cannot likewise be appreciated because there is no proof that the appellant deliberately sought the cover of darkness to facilitate the commission of the crime.[40] Similarly, relationship is not aggravating because the relationship between Marinel and the appellant as first cousins is not within the concept contemplated in Article 15[41] of the Revised Penal Code.[42] Abuse of confidence is likewise absent because the prosecution did not establish that it facilitated the attainment of the rape. Finally, use of a deadly weapon cannot be appreciated as an aggravating circumstance because Marinels belated assertion on cross-examination that the appellant used a knife to perpetrate the two rapes raised doubts as to the knifes existence. She also stated on cross-examination that what she saw was an object that looked like a knife.[43] In view of the foregoing, the award of exemplary damages by the trial court should be deleted. WHEREFORE, the appeal is DENIED. The October 26, 2005 Decision of the Court Appeals in CA-G.R. CRH.C. No. 00125 modifying the December 23, 2002 Judgment of the Regional Trial Court, Branch 33 of Pili, Camarines Sur in Criminal Case Nos. P-2813 and P-2814 is AFFIRMED with the MODIFICATION that the award of exemplary damages is DELETED. SO ORDERED.

Republic of the Philipppines SUPREME COURT Manila THIRD DIVISION [G.R. No. 138261. April 17, 2001] PEOPLE OF THE PHILIPPINES, appellee, vs. PEDRO RAMIREZ, appellant. DECISION

PANGANIBAN, J.:

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The credibility of witnesses and their testimonies is best assessed by the trial court, which had the opportunity to observe their demeanor and conduct on the stand. Moreover, reclusion perpetua is an indivisible penalty; hence, it is imposed in its entirety.
The Case

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Pedro Ramirez appeals the Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 4195-O, finding him guilty of murder and sentencing him to suffer imprisonment of forty (40) years reclusion perpetua. chanroblesvirtuallawlibrary Ormoc City Prosecutor Alberto L. Canopio filed an Information dated June 16, 1993, charging appellant with murder allegedly committed as follows: chanroblesvirtuallawlibrary

That on or about the 21st day of May 1993, at around 7:30 oclock in the evening, Brgy. San Jose, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused PEDRO RAMIREZ, with treachery, evident premeditation and intent to kill, did then and there willfully, unlawfully and feloniously attack, assault, stab and wound the person of the victim herein JONATHAN Jojo ALKUINO, without giving the latter sufficient time to defend himself, thereby inflicting upon said JONATHAN Jojo ALKUINO mortal wounds which caused his death. Medical Certificate is hereto attached.[2] chanroblesvirtuallawlibrary When arraigned on March 20, 1997, appellant, with the assistance of counsel,[3] entered a plea of not guilty. Trial on the merits ensued. On February 18, 1999, the trial court promulgated its assailed Decision, the dispositive portion of which reads as follows: chanroblesvirtuallawlibrary WHEREFORE, having moral certainty from all of the foregoing, the Court finds the accused Pedro Ramirez GUILTY beyond reasonable doubt of the crime of murder and hereby sentences him to suffer imprisonment of forty (40) years reclusion perpetua and to pay the aggrieved party the sum of P50,000.00 as indemnity and another sum of P50,000.00 as moral damages.chanroblesvirtuallawlibrary If the accused is a detainee, his period of detention shall be credited to him in full if he abides in writing by the terms for convicted prisoners; otherwise, for only four-fifths (4/5) thereof.chanroblesvirtuallawlibrary In view of the penalty imposed, the appeal was lodged directly with this Court. [4]
The Facts Version of the Prosecution

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In its Brief, the Office of the Solicitor General summarizes the prosecutions version of the facts in this wise:[5] chanroblesvirtuallawlibrary 1. On May 21, 1993 at around 7:30 in the evening, Montano Baez, after entertaining his visitors on the occasion of the town fiesta of Bgy. San Jose, Ormoc City, was strolling in the public plaza where he met Jonathan Jojo Alkuino, a former resident of the barangay (pp. 6-11, tsn, July 22, 1997).chanroblesvirtuallawlibrary 2. Montano Baez took him aside and invited Jojo to a drinking spree in a nearby store. They sat side by side on a bench outside the store and while exchanging pleasantries and drinking, appellant Pedro Ramirez suddenly came in front of them. Appellant ordered beer. Then he calmly approached Jojo hitting him on the right side of the body just below the ribs (pp. 6-11, tsn, supra).chanroblesvirtuallawlibrary 3. Jojo Alkuino was brought to the Ormoc District Hospital and was examined and treated by Dr. Kierulf who issued the medical certificate (Exhibit A) with the following findings:chanroblesvirtuallawlibrary The stab wound that hit the victim was at his right anterior chest wall, at the level of 4th ICS penetrating thoracic abdominal cavity, incising the right lobe of the liner with massive hemothorax and hemoperit[o]neumchanroblesvirtuallawlibrary Although the victim was conscious and alive when he was admitted on May 21, 1993 at around 9:55 in the evening, he, however, died the following day at about 5:30 in the afternoon due to hypovolemic shock or massive blood loss (p. 24, tsn, July 17, 1998).
Version of the Defense

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In his Brief, appellant presents the following statement of facts:[6] chanroblesvirtuallawlibrary

The first witness, Remegio Montalban, testified that he [was] a resident and farmer of Brgy. Sta. Cruz, San Francisco, Camotes, Cebu, and a neighbor of Pedro Ramirez, the accused. On May 21, 1993, he remembered he and Pedro Ramirez were working on his farm in said barangay. They had been working on the farm since 1991. He knows that the accused went to Ormoc City in 1986 but he returned in 1990 and since then he never left their barangay. On cross examination, the witness admit[ed] there [was] a regular trip from San Francisco, Camotes to Ormoc City and the trip would take only more than an hour to negotiate. When asked, however, as to the birth dates of his 8 children, he could not tell all. Even on the date of the arrest of the accused, his testimony falter[ed] (TSN of July 29, 1998, pp. 6-21).chanroblesvirtuallawlibrary The second witness was the accused himself. His line of testimony corroborate[d] the testimonies of his first and third witnesses. Accused admit[ted] having gone to Ormoc City and that was in the year 1986 when he was hired by Poten Larrazabal to harvest his sugarcane plantation. He stayed there for four (4) years, up to 1990, in Laray, Valencia together with his wife and two children (TSN of September 2, 1998, p. 9, p. 44). He testified that on May 21, 1993 he was at Barangay Santa Cruz, Camotes, Cebu working. He even denie[d] knowing where Barangay San Jose, Ormoc City, [was][;] in short, he denie[d] the charge against him.chanroblesvirtuallawlibrary On cross examination, the accused testified that he did not go out too often while he was living in Sitio Laray, Valencia; that he did not even hear of Barangay San Jose (TSN of September 2, 1996. Pp. 2223).chanroblesvirtuallawlibrary The last witness, Eduardo Austria, corroborate[d] the line of theory of the accused and the first witness. They had a kind of cooperative work, Ramirez, he, and Montalban. It was an inconsequential routine work and a passing of day that occurred on May 21, 1993 and the following day (TSN of October 5, 1998, pp. 7-14)chanroblesvirtuallawlibrary On cross examination, the witness testified there was no cooperative work with Ramirez around in May of 1994, 1995 and 1996; that the witness [did] not even know the date of the incident involved in this case. (TSN, pp. 20-31)
The Trial Courts Ruling

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In convicting appellant, the trial court gave credence to the prosecution witnesses testimonies. It ruled as follows: chanroblesvirtuallawlibrary We can notice that from the testimony of Montano Baez up to the last witness Amelito Biyu, there was positive identification of the assailant, the one who stabbed Jonathan Alkuino; there was knowledge about the accused and the victim. The testimonies of the witnesses were in details, not in generalities, and [the] testimony of the father, Milchisedeck Alkuino relate[d] x x x the dying declaration of his son, the victim in this case. The evidence so far adduced by the prosecution established the elements of the crime of murder: the killing of an individual [did] not [fall] under parricide and the killing was attended by treachery, the fact that the stabbing was sudden and the victim was sitting while the assailant was standing and there was therefore no means for the victim to defend himself.[7] chanroblesvirtuallawlibrary On the other hand, the RTC rejected the defense witnesses testimonies for being weak, unreliable and full of uncertainties. It concluded that the prosecution evidence was not substantially overcome or overwhelmed by the defenses own proof or evidence.[8]
Issues

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In his Brief, appellant cites the following alleged errors:[9] Ichanroblesvirtuallawlibrary

The Court a quo erred in giving credence to the witnesses for the prosecution. IIchanroblesvirtuallawlibrary The Court a quo erred in appreciating treachery notwithstanding the failure of the prosecution to prove the same. IIIchanroblesvirtuallawlibrary The Court a quo erred in convicting the accused notwithstanding the failure of the prosecution to prove his guilt beyond reasonable doubt.chanroblesvirtuallawlibrary In the main, the Court will resolve the following matters: (1) sufficiency of the prosecution evidence and (2) presence of treachery. In addition, it will also determine the propriety of appellants penalty and civil liability.
This Courts Ruling

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The appeal is devoid of merit.


First Issue: Sufficiency of Prosecution Evidence

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The conviction of appellant was based on the eyewitness accounts of Montano Baez and Amelito Biyu. Baez testified that he was with the victim when the crime was committed. He narrated the incident in this wise:[10] chanroblesvirtuallawlibrary Q. Now at that particular time while you were having a round of drink with the said Jonathan Jojo Alkuino, what happened?chanroblesvirtuallawlibrary A. Pedro Ramirez approached us, sir. x x x x x x x x x chanroblesvirtuallawlibrary Q. What did Pedro Ramirez do when he approached you and Jojo Alkuino?chanroblesvirtuallawlibrary A. They introduced each other and immediately thereafter he stabbed him, sir. x x x x x x x x x chanroblesvirtuallawlibrary Q. Who delivered that stab thrust?chanroblesvirtuallawlibrary A. It was Pedro Ramirez, sir.chanroblesvirtuallawlibrary Q. What kind of weapon did he use in stabbing the victim?chanroblesvirtuallawlibrary A. A knife, sir. x x x x x x x x x chanroblesvirtuallawlibrary Q. When Pedro Ramirez whom you have identified earlier delivered a stab thrust toward Jonathan Jojo Alkuino was the latter hit?chanroblesvirtuallawlibrary

A. Yes sir, he was hit.chanroblesvirtuallawlibrary Q. Which part was x x x hit?chanroblesvirtuallawlibrary A. Here sir (witness tapping at his right just below the ribs).chanroblesvirtuallawlibrary Q. Now, after Pedro Ramirez stabbed Jonathan Jojo Alkuino, what did Pedro do next?chanroblesvirtuallawlibrary A. They ran away, sir.chanroblesvirtuallawlibrary The foregoing narration was corroborated by Biyu, who was then a few meters away from the crime scene. Pertinent portions of his testimony are reproduced hereunder:[11] chanroblesvirtuallawlibrary Q. After having bought banana cue for your child, what happened?chanroblesvirtuallawlibrary A. After I bought banana cue, I also bought one bottle of beer in front of the store where Jonathan Alkuino and Pedro Ramirez were having a drinking spree.chanroblesvirtuallawlibrary Q. How far is that store [from] where Jonathan Alkuino and Pedro Ramirez were?chanroblesvirtuallawlibrary A. About 3 meters more or less.chanroblesvirtuallawlibrary Q. What did you observe next?chanroblesvirtuallawlibrary A. While I was drinking one bottle of beer, he, Pedro Ramirez, approached Jonathan Alkuino and Montano Baez (the witness pointed to the person earlier identified as Pedro Ramirez).chanroblesvirtuallawlibrary Q. What did he do?chanroblesvirtuallawlibrary A. As far as I have seen, he approached Jonathan Alkuino and he talked for awhile and after that he drew a knife and immediately stabbed.chanroblesvirtuallawlibrary Q. Was Jonathan Alkuino hit by the stab thrust delivered by the assailant?chanroblesvirtuallawlibrary A. Yes, sir.chanroblesvirtuallawlibrary Q. How many times did the assailant deliver his stab thrust?chanroblesvirtuallawlibrary A. Only once.chanroblesvirtuallawlibrary Q. After seeing that incident, wherein Jonathan Alkuino sustained an injury, what did you do?chanroblesvirtuallawlibrary A. After he stabbed, he ran and Jonathan Alkuino asked for help, saying [H]elp me because I [have been] stabbed by Pedro Ramirez.chanroblesvirtuallawlibrary As earlier noted, the trial court gave credence to these testimonies. Time and time again, the Court has held that the trial court's findings on the credibility of witnesses and their testimonies are accorded great weight and respect, in the absence of a clear showing that some facts or circumstances of weight or substance have been overlooked, misunderstood or misapplied.[12] Indeed, the lower

court had the opportunity to observe directly the demeanor of the witnesses as they testified. In this case, appellant has not given us any valid ground to reverse or modify the trial courts assessment.
Alleged Inconsistencies

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Appellant contends that the trial court should not have accorded credence to the prosecution witnesses, whose testimonies were full of inconsistencies and contradictions.[13] He points out discrepancies regarding (1) the manner in which appellant initiated the attack and (2) the behavior of the victim after the incident. chanroblesvirtuallawlibrary Appellant insists that [a]ccording to Montano Baez, Pedro approached the victim, and without saying any word, immediately stabbed the latter x x x. However, Amelito Biyu testified that Pedro Ramirez approached Jonathan Alkuino and talked to him for a while.[14] chanroblesvirtuallawlibrary This argument is not borne by the records. Contrary to the claim of the defense, Baez did not say that appellant had approached the victim and stabbed the latter without saying a word. In fact, Baez testified that appellant and the victim had indeed talked very briefly. chanroblesvirtuallawlibrary Q. Exactly, what did Pedro Ramirez say?chanroblesvirtuallawlibrary A. There were no words uttered sir, except to introduce themselves.chanroblesvirtuallawlibrary Q. So, when the accused Ramirez introduced himself to the victim, Jojo Alkuino also introduced himself to him, is that correct?chanroblesvirtuallawlibrary A. Yes, sir.[15] chanroblesvirtuallawlibrary Appellant also contends that the testimony of Biyu -- that the victim was aided by friends and acquaintances after the incident was inconsistent with that of Baez, who allegedly stated that the victim was still able to go home, without mentioning whether he was aided by anyone.[16] It should be stressed, however, that Baez did not say that the victim left the crime scene alone. [17] The mere fact that the former was silent on whether the victim was assisted by others does not mean that the latter was not assisted at all. chanroblesvirtuallawlibrary Likewise, we reject appellants claim that the testimony of Baez -- that the latter saw appellant stab the right side of the victims body, below the ribs -- was inconsistent with that of the victims father, Milchisedeck Alkuino, who said that the injury of his son was at his leftarm.[18] chanroblesvirtuallawlibrary This alleged inconsistency pertains to a very trivial matter which does not in any way affect the disposition of the case. It has been held that inconsistencies referring only to minor details do not weaken the credibility of witnesses. On the contrary, these inconsistencies are signs that the witnesses were not rehearsed.[19] chanroblesvirtuallawlibrary In all, we agree with the trial court in convicting appellant based on the eyewitness accounts of Baez and Biyu. The two saw the incident and positively identified appellant as the perpetrator.
Appellants Alibi

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In the light of the foregoing, we reject appellants alibi that he was in Cebu when the crime was committed in Ormoc City on May 21, 1993. The well-settled rule is that alibi cannot prevail over the positive identification of appellant by credible witnesses.[20]
Second Issue:

Treachery

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Appellant contends that treachery was not established in this case, considering that the stabbing was neither swift nor sudden. He points out that there was an exchange of words between the accused and the victim.[21] chanroblesvirtuallawlibrary We are not convinced. There is treachery when one employs means, methods or forms in the execution of a crime without risk to oneself arising from the defense which the offended party might make.[22] chanroblesvirtuallawlibrary In this case, treachery was not negated by the mere fact that the attacker and the victim had spoken to each other briefly.[23] The prosecution established that the attack was sudden and that the victim was defenseless, unarmed and with no opportunity to retaliate. This fact is clear from Baezs following testimony:[24] chanroblesvirtuallawlibrary Q. Was there an opportunity for Jojo Alkuino to retaliate?chanroblesvirtuallawlibrary A. There was none, sir.chanroblesvirtuallawlibrary Q. Was Jojo armed at that time?chanroblesvirtuallawlibrary A. No sir, he was no[t].chanroblesvirtuallawlibrary Q. In other words, he was defenseless when he was attacked.chanroblesvirtuallawlibrary A. Yes sir, he was defenseless.chanroblesvirtuallawlibrary Q. Why do you say that he was defenseless?chanroblesvirtuallawlibrary A. Was defenseless sir, because he was sitting then.chanroblesvirtuallawlibrary Q. He was able to parry that stab thrust?chanroblesvirtuallawlibrary A. No sir, he was not.chanroblesvirtuallawlibrary Q. Why not?chanroblesvirtuallawlibrary A. How could he parry the thrust made by Pedro Ramirez, [when] the thrust was so sudden, sir.
Penalty and Civil Liability

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In line with current jurisprudence,[25] we affirm the award of indemnity ex delicto to the heirs of the victim in the sum of P50,000. This award needs no proof other than the commission of the crime. Likewise, we sustain the award of P50,000 for moral damages, which has evidentiary basis. The victims father testified that as a result of the crime, he suffered heaviness of heart as well as mental anguish.[26] chanroblesvirtuallawlibrary We disagree with the trial court, however, in sentencing appellant to suffer imprisonment of forty (40) years reclusion perpetua. There was no justification or need for the trial court to specify the length of imprisonment, because reclusion perpetua is an indivisible penalty. The significance of this fundamental principle was laid down by the Court in People v. Diquit:[27] Since reclusion perpetua is an indivisible penalty, it has no minimum, medium or maximum periods. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have attended the commission of

the crime. (Art. 63, Revised Penal Code) Reclusion perpetua is imprisonment for life but the person sentenced to suffer it shall be pardoned after undergoing the penalty for thirty (30) years, unless by reason of his conduct or some other serious cause, he shall be considered by the Chief Executive as unworthy of pardon (Art. 27, Revised Penal Code). chanroblesvirtuallawlibrary WHEREFORE, the appealed Decision is AFFIRMED, except in regard to the penalty, which is hereby MODIFIED; accordingly, appellant is sentenced to the indivisible penalty of reclusion perpetua. Costs against appellant. chanroblesvirtuallawlibrary SO ORDERED. chanroblesvirtuallawlibrary Melo (Chairman), Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant, vs. WONG CHENG (alias WONG CHUN), defendant-appellee. Attorney-General Villa-Real for appellant. Eduardo Gutierrez Repide for appellee. ROMUALDEZ, J.: In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila, sustaining the demurrer presented by the defendant to the information that initiated this case and in which the appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English nationality while said vessel was anchored in Manila Bay two and a half miles from the shores of the city. The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case. The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not be erroneous according as said court has or has no jurisdiction over said offense. The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved, committed aboard merchant vessels anchored in our jurisdiction waters.
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There are two fundamental rules on this particular matter in connection with International Law; to wit, the French rule, according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the courts of the country within whose territorial jurisdiction they were

committed, unless their commission affects the peace and security of the territory; and the English rule, based on the territorial principle and followed in the United States, according to which, crimes perpetrated under such circumstances are in general triable in the courts of the country within territory they were committed. Of this two rules, it is the last one that obtains in this jurisdiction, because at present the theories and jurisprudence prevailing in the United States on this matter are authority in the Philippines which is now a territory of the United States. In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall said: . . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. . . . In United States vs. Bull (15 Phil., 7), this court held: . . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or within the territorial waters of any other country, but when she came within three miles of a line drawn from the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that sovereignty through the proper political agency. . . . It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that: . . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to prevent it. Hence in United States vs. Look Chaw (18 Phil., 573), this court held that: Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation of the laws of the land is committed with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, no court other than that established in the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty.

As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the following: There shall be between the territories of the United States of America, and all the territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation respectively shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.) We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable by or courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines against the disastrous effects entailed by the use of this drug, its mere possession in such a ship, without being used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding. Hence such a mere possession is not considered a disturbance of the public order. But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the public order here established, because it causes such drug to produce its pernicious effects within our territory. It seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the Attorney-General aptly observes: . . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese residents to smoke opium on board. The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in accordance with law, without special findings as to costs. So ordered. Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-35748 December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants. Teofilo Mendoza for appellants. Attorney-General Jaranilla for appellee.

VILLA-REAL, J.: Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of Bulacan convicting them upon the information of the crime of arson as follows: The former as principal by direct participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years and one day ofpresidio mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs. Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the following assignments of error with reference to Romana Silvestre, to wit: 1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the information. 2. Finally, the court erred in not acquitting said defendant from the information upon the ground of insufficient evidence, or at the least, of reasonable doubt. The following facts were proved at the hearing beyond a reasonable doubt: Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary investigation of the case, the two defendants begged the municipal president of Paombong, Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants' petition to the complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the adultery case commenced against the accused, and cancelled the bonds given by them, with the costs against the complainant. The accused then left the barrio of Masocol and went to live in that of Santo Nio, in the same municipality of Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la Cruz, in the barrio of Santo Nio, and under pretext of asking him for some nipa leaves, followed him home to the village of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin Atienza told said couple to take their furniture out of the house because he was going to set fire to it. Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-inlaw, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire started, and Romana Silvestre leaving it.
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As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of arson as charged, as principal by direct participation. With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband; that in view of the petition of the accused, who promised to discontinue their life together, and to leave the barrio of Masocol, and through the good offices of the municipal president of Paombong, the complaining husband asked for the dismissal of the complaint; that in pursuance of their promise, both of the accused went to lived in the barrio of Santo Nio, in the same municipality; that under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to the barrio of Santo Nio, Romana Silvestre followed him to his house in the barrio of Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his intention of burning the house as the only means of taking his revenge on the Masocol resident, who had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these facts, the court below found her guilty of arson as accomplice. Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who does not take a direct part in the commission of the act, who does not force or induce other to commit it, nor cooperates in the commission of the act by another act without which it would not have been accomplished, yet cooperates in the execution of the act by previous or simultaneous actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their house as the only means of revenging himself on the barrio residents, her passive presence when Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and her failure to give the alarm when the house was already on fire? The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice, encouragement, or agreement, or material, through external acts. In the case of the accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit the crime in question. Her mere presence and silence while they are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that being a subsequent act it does not make her liable as an accomplice. The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550, paragraph 2, of the Penal Code, which reads as follows: ART. 550. The penalty of cadena temporal shall be imposed upon:

2. Any person who shall set fire to any inhabited house or any building in which people are accustomed to meet together, without knowing whether or not such building or house was occupied at the time, or any freight train in motion, if the damage caused in such cases shall exceed six thousand two hundred and fiftypesetas. While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less serious than what the trial court sentenced him for, inasmuch as that house was the means of destroying the others, and he did not know whether these were occupied at the time or not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not know whether there are people in it at the time, depends upon the danger to which the inmates are exposed, not less serious is the arson committed by setting fire to inhabited houses by means of another inhabited house which the firebrand knew to be empty at the moment of committing the act, if he did not know whether there were people or not in the others, inasmuch as the same danger exists. With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information had alleged that at the time of setting fire to the house, the defendant knew that the other houses were occupied, taking into account that barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night. For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the scene of another's crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for complicity in the commission of the crime witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing whether there are people in them or not, sets fire to one known to be vacant at the time, which results in destroying the rest, commits the crime of arson, defined and penalized in article 550, paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant Romana Silvestre, who is hereby acquitted with one-half of the costs de oficio. So ordered. Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-7929 November 18, 1912

THE UNITED STATES, plaintiff-appellee, vs. GENOVEVA APEGO, defendants-appellant. Tirso de Irureta Goyena, for appellant. Attorney-General Villamor, for appellee.

TORRES, J.: This case comes to us on appeal from a judgment of February 15, 1912, by which the Honorable Mariano Cui, judge, sentenced the appellant to the penalty of twelve years and one day of reclusion temporal, to the accessories, to pay an indemnity of P1,000 to the heirs of the deceased, and the costs. At about 8 o'clock in the evening of December 24, 1911, the spouses, Pio Bautista and Maria Apego, coming from the municipality of Nasugbu, returned to their house, situated in the barrio of Sampaga, pueblo of Balayan, Batangas, and before entering the same called to Genoveva Apego, the woman's sister, who they knew was therein, and as they received no reply, went up into the house; the husband led the way and opened the door; he was followed by band led the way and opened the door; he was followed by his wife who, once inside, lit a match and then a small kerosene lamp there was in the house. In the meantime the husband approached the place where Genoveva was, who, startled, immediately awoke, seized a pocketknife used in spinning hemp, which was in a box at her side, and with it attacked and struck Bautista, who was near her, a blow in the breast; thereupon her sister Maria, who was not aware of the aggression, asked Genoveva why empty tincans and other articles were scattered about the azotea of the house, to which Genoveva replied by saying: "What! have you arrive already?" and at once got up in front of the said spouses; at this moment Maria advised her to cogitate and reflect, but Genoveva immediately ran out of the house, asking for help; it was then that the wife noticed that her husband was seriously wounded, and when he was afterwards examined by a physician it was ascertained that he bore a downward, penetrating wound, in the shape of a T, in the intercostal space between the second and third ribs of the left side, that it reached one of the lungs and the heart, was necessarily fatal, and was inflicted with a sharp-pointed, cutting instrument. A few moments after its infliction the injured man died.

By reason of the foregoing, an information was filed in the Court of First Instance of Batangas, on January 8, 1912, by the provincial fiscal, charging Genoveva Apego with the crime of murder, and upon the institution of this case the aforementioned judgment was rendered. We accept the classification of homicide given by the trial judge to the facts involving the violent death of Pio Bautista, since, in the commission of the crime, it does not appear that there was present any of the qualifying circumstance that determine a more serious crime and penalty. It is unquestionable and beyond all doubt that Genoveva Apego, un unmarried woman of about 25 years of age, inflicted upon the deceased with a pocketknife a serious wound of a necessarily mortal nature, for he died shortly afterwards between the second and third ribs of the same side from an upper toward a lower and an outward toward an inner direction and reached the heart and one of the lungs. The record does not show whether the deceased was able to make any ante-mortem statement, nor does it appear to have been ascertained what was the motive of the fatal aggression of which the said Pio Bautista was the victim. The following conclusions of fact are derived from a careful study of this case: upon the arrival of Maria Apego and her husband, Pio Bautista, at the stairs of their house, and as Genoveva Apego did not reply to the call made to her from the outside by her sister Maria, the said spouses went to the upper floor of the house; Bautista led the way and, in order to enter, opened the outside door, a sliding door, and as there was no light inside stumbled against Genoveva Apego, who was sleeping near the said door, and touched her left arm; thereupon, Genoveva awoke and believing, as she testified, that somebody was trying to abuse her, seized the pocketknife aforementioned, asking at the same time who was beside her, and as she did not receive a reply immediately, she got up and struck the person before her a blow with the said knife; in the meanwhile Maria Apego had separated from her husband to light a match and then a kerosene lamp there was in the house and was not aware of the assault made upon her husband by her sister Genoveva in front of Bautista, who had already been wounded and was in an attitude indicating that he was about to fall to the floor; thereupon Genoveva went down out of the house, calling for help, and ran to the house of an aunt of hers where she was arrested by the policeman, Manuel Peinado, to whom she then and there delivered the pocketknife with which she had assaulted her brother-in-law. In view of the shape and direction of the wound received by the deceased and the part of the body where it was inflicted, according to the detailed report of the medical examination, it is questionable that the wound was inflicted by the defendant after she was arisen from the place where she had been sleeping, or, at least, when she had raised up in a sitting posture or was seated on the floor, at the time that the deceased perhaps stooped over, in stumbling against her, and touched her left arm; but in no manner may it be presumed that she was assaulted her brother-in-law, Bautista, while she was still lying on the floor of the house; such a presumption is precluded by a consideration of the direction the weapon took penetrating the deceased's breast. Maria Apego testified that, during the two years her sister Genoveva lived in their house, the latter had conducted herself correctly, that they had always gotten along well and harmoniously together and had never the least misunderstanding between them. The record does not show whether there had been any trouble or there existed any resentment between the defendant and the deceased who, before he died and during the few moments he lived after he was wounded, made no statement whatever relative to this point or to the conduct observed by the defendant with respect to the assault of which he was the victim, and, therefore, the defendant's testimony must be accepted, to wit, that she struck a blow with the pocketknife at the person beside her, and who afterwards

turned out to be her brother-in-law, Pio Bautista, without knowing who he was and in the belief that, since he touched her left arm, he was about to commit an attempt against her honor. Under this hypothesis, it can not be denied that, upon the defendant's awakening, startled at feeling somebody grasp her left arm and believing that an attempt was being made against her honor, as she received no reply whatever to her question as to who was beside her in the darkness of the house, she understood that there was a positive unlawful aggression from which she had to defend herself with the said pocketknife, and it is also undeniable that there was no previous provication on her part; but it is unquestionable that, in making use of this deadly weapon, even in the defense of her person and rights, by decidely wounding him who had touched her or caught her by the arm, the defendant exceeded her right of defense, since there was no real need of wounding with the said weapon him who had merely caught by her arm, and perhaps did so to awake her, as she was asleep and had not replied to her sister's calls; and as the party who she believed was making an attempt against her honor, because he had caught her by the arm, performed no other act of aggression such as might indicate a decided purpose to commit an attempt against her honor than merely to catch her by the arm, and although the defendant believed that it was the commencement of such an attempt and that she had to defend herself therefrom, it is true that, once awake and provided with an effective weapon for her defense, there was no just nor reasonable cause for striking a blow therewith in the center of the body, where the principal vital organs are seated, of the man who had not performed any act which might be considered as an actual attempt against her honor. From the foregoing considerations it is concluded that in the commission of the crime there was present the circumstance of incomplete exemption from responsibility, as all the three requisites specified in subarticle 4 of article of the Penal Code are not applicable; wherefore the criminal act is not altogether excusable, on account of the lack of the second of the said requisites, although a majority of them were present, that is, the first and the third requisites; and, therefore, in accordance with the provisions of article 86 of the code, a penalty lower by one or two degrees than that prescribed by article 404 of the code, in the discretion of the court, must be imposed upon the defendant. In view of the fact that the accused is an ignorant woman, wholly uneducated, and that it was not shown that, at the time when she assaulted the deceased, she knew that he was her brother-in-law, account must be taken of the circumstance prescribed by article 11 of the code, in connection with Act No. 2142, as no aggravating circumstance whatever was present to counteract the effects of the said extenuating circumstance; therefore, the penalty applicable to the defendant is the one lower by two degrees and in the minimum period. For the foregoing reasons it is our opinion that, with a reversal of the judgment appealed from, the defendant, Genoveva Apego, should be, as she is hereby, sentenced to the penalty of two years of prision correccional, to the accessories of article 61, to pay an indemnity of five hundred pesos to the heirs of the deceased, and, in case of insolvency, to subsidiary imprisonment which shall not exceed one-third of the principal penalty, and to the payment of the costs of both instances. In computing the time of the sentence, credit shall be allowed for one-half of the time of imprisonment suffered by the defendant while awaiting trial. So ordered. Arellano, C.J., Mapa and Johnson, JJ., concur. Separate Opinions CARSON, J., dissenting:

I dissent. I am of opinion that there was no criminal intent on the part of the accused, and that she did what she did in the reasonable belief that she was acting in defense of her virtue. (U. S. vs. Ah Chong, 15 Phil. Rep., 488.) TRENT, J., dissenting: I dissent. I think the appellant should be acquitted upon the facts stated in the majority opinion. This court says: The following conclusions of fact are derived from a careful study of this case: Upon the arrival of Maria Apego and her husband, Pio Bautista, at the stairs of their house, and as Genoveva Apego did not reply to the call made to her from the outside by her sister Maria, the said spouses went to the upper floor of the house; Bautista led the way and, in order to enter, opened the outside door, a sliding door, and as there was no light inside stumbled against Genoveva Apego, who was sleeping near the said door, and touched her left arm; thereupon, Genoveva awoke and believing, as she testified, that somebody was trying to abuse her, seized the pocketknife aforementioned, asking at the same time who was beside her, and as she did not receive a reply immediately, she got up and struck the person before her a blow with the said knife; in the meanwhile Maria Apego had separated from her husband to light a match and then a kerosene lamp there was in the house and was not aware of the assault made upon her husband by her sister, and only when the light had been lit did she see her sister Genoveva in front of Bautista, who had already been wounded and was in an attitude indicating that he was about to fall to the floor; . . . . . . the defendant's testimony must be accepted, to wit, that she struck a blow with the pocketknife at the person beside her, and who afterwards turned out to be her brother-inlaw, without knowing who he was and in the belief that, since he touched her left arm, he was about to commit an attempt against her honor. The court further finds that the appellant immediately upon discovering what she had done ran out of the house calling for help, and that she, her sister, and the deceased were on the very friendliest terms. The result is that the appellant, a single woman 25 years of age, was alone in the house when the deceased and his wife arrived. The entry was made without the appellant's knowing anything about it, and she was awakened by some stumbling against her and touching her left arm. She then realized that someone was in the house, and it, being so dark that she could not distinguish the person, and believing as the court says, that the person had entered for the purpose of raping her, she arose and struck in the dark with the knife. It later developed that she had struck her own brother-in-law and killed him. The very moment she awoke was when she conceived the idea that some one had entered the house for the purpose of raping her. In the short interval of time between her awakening and the striking of the fatal blow, was there any possibility of her disabusing her mind of such a belief, which, to her, must have amounted to man overpowering fear? The wife of the deceased did not strike the match nor light the lamp until after the appellant had struck the blow. All was in darkness. It was then impossible for her to ascertain the identity of the deceased before she had used the knife. So far as the record shows, no word was spoken by either of the spouses until after the blow had been delivered, and the accused received no reply to her injury as to who was beside her. We must appreciate, therefore, the entrance of the spouses with more or less noise, their groping around in darkness of the interior of the house, the awakening of the defendant from a sound sleep, her being alone in the house, her instant thought that some one is coming toward her intent upon committing a rape, increased by the failure of the deceased to answer her question, and the utter absence of anything to disabuse her mind of such an idea. With her mind still somewhat sluggish, she realizes

the presence of some one bending over her has not uttered a word; he makes no reply when she asks him who he is; and she is unable to recognize him. What more natural than that a vituous woman would instantly arrive at the conclusion that she was about to be made the victim of an immoral and lewd assault? The court says that in the absence of any evidence showing resentment existing between the deceased and the accused, her testimony to the effect that she believed an attempt was being made against her honor must be believed. I fail to see what possible bearing resentment entertained by the accused toward the deceased would have. She did not recognize her assailant until after the light had been struck. The identity of the deceased did not enter into belief that she was about to be raped. Had her assailant been worst enemy she would not have known it until after the harm had been done. But the facts of the case conclusively show that the accused entertained no resentment toward the deceased testified that her sister had lived in the house for a long time and that she and her sister had always been on the most amicable of terms. After the accused became aware of the identity of the deceased she made not the slightest move to continue her attack or defense. I therefore agree with the conclusion of the court but without reservation that the testimony of the defendant that she struck the blow under the impression that she was about to become the victim of an unchaste must be accepted as true. If the defendant believed that she was subjected to such an unlawful attack, the question arises, was such a belief excusable under the circumstances? The party killing, to justify, must have reasonable apprehension or fear of death or serious bodily harm, at the time of the killing. . . . But to whom must the appearance of danger the apprehension of the party killing reasonably appear? To the jury after hearing all the evidence--after ascertaining the real facts? . . . Or, must the real or apparent danger appear to the defendant at the time of the homicide to be reasonable? We think the latter correct. The jury must view the facts upon his standpoint. Each juror must place himself in the position of the defendant at the time of the homicide, and determine from all the facts, as they appeared to defendant at the time of the killing, whether his apprehension or fear of death or serious bodily harm was reasonable; and if so, they should acquit. (Bell vs. The State, 20 Tex. App., 445, and other authorities cited in the monographic note to The State vs. Sumner, 74 Am. St. Rep., 707, 723.) I think that the circumstances of the case at bar, so far as the appellant could perceive them at the time, were perfectly applicable to an assault with intent to commit rape, and that, therefore, the only possible way to arrive at a decision in this case on the merits is to view the whole affair from the moment on the defendant awoke until the fatal blow was struck as an attempt to commit rape, which resulted in the death of the ravisher. The court does not expressly state its views on this branch of the case. I understand, however, that the sentence of conviction her right of self-defense to a disproportionate degree. At least such would be gathered from the following language: . . . and although the defendant believed that it was the commencement of such an attempt and that she had to defend herself therefrom, it is true that, once awake and provided with an effective weapon for her defense, there was no just nor reasonable cause for striking a blow therewith in the center of the body, where the principal vital organs are seated, of the man who had not performed any act which might be considered as an actual attempt against her honor. As a matter of fact, the acts of the deceased were perfectly harmless. There was, as a matter of law, based upon those actual facts, no unlawful aggression. Based upon those actual facts of the case, there was no excuse whatever for the homicide. Based upon those actual facts, the crime of homicide was committed with several aggravating circumstances. The court, however, has imposed a sentence of two years imprisonment and accessories. I must therefore believe that the court has

tacitly, at least, adopted the view of the case that the sentence of conviction should be predicated upon the following operative facts: A would-be ravisher approached the accused in the house where she was sleeping alone, etc.; in exercising her right of self-defense, she exceeded the limits of reasonable resistance against her assailant. In this view of the case, the question arises as to whether a woman may ever go so far in defense of her chastity as to kill her assailant, and if so, whether such extreme action was warranted in view of the circumstances as they presented themselves to the accused at the time she killed the deceased. To the first part of this question the answer must be, yes. In repulsing a felonious attack a person may go as far in his self-defense as may reasonably be necessary, viewing the circumstances of the case from his point of view. The books are full of cases where this principle has been applied; but it is doubtful if any may be found where the victim of an attempted rape was tried for the murder of her assailant. In the case of United States vs. Santa Ana (22 Phil. Rep., 249), this court, in banc, said: When a man becomes so debased as to lose every instinct of manhood and engages himself in the commission of so serious a crime (rape), he certainly takes his life and liberty in his own hands, and if he loses the latter or receives serious physical injuries, his loss is no greater that he deserves. The appellant is therefore entitled to an absolute acquittal upon the ground of self-defense. As to the second part of the question, it is necessary to again view the circumstances of the case as they appeared to the appellant at the time she struck the blow with the knife. The court is of the opinion that she was not justified in striking that blow because it says the man "had not performed any act which might be considered as an actual attempt against her honor." This statement is inexplicable. The only acts which the deceased performed at all were those of stumbling against her body and touching her left arm, and the court had already arrived at the conclusion that the woman believed an attack was being made against her honor. In other words, the attempt had progressed to the point where her assailant had come in physical contact with her. Due either to willfulness or negligence, he did no reassure her as he should have done by answering her inquiry as to who he was. He was not merely standing at a distance threatening her or making indecent gestures. She was alone in the house. There was no possible way of retreat. Her physical inferiority must be conceded. In another instant he would have grasped her by the arms and thus prevented her from using the knife at all. Was this the time to temporize, to threaten, to plead for mercy, or to strike halfheartedly with a weapon which would be useless to her in another moment of time? The court would have had her select a less vital part of the body for the blow; this in the darkness and most probably without being able to distinguish even the outlines of the human being who had attacked her. This would have called for deliberation and cool and discriminating but instant action. Every indication points to the fact that she struck wildly, perhaps while not yet fully awake, and, by the merest chance, with fatal results.
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In the case of United States vs. Ah Chong (15 Phil. Rep., 488), the defendant, Ah Chong, and Pascual Gualberto, were employed at the officers' mess in Fort McKinley, the former as a cook and the latter as a muchacho. The two occupied the same room and no one else occupied the same building. On the night of August 14, 1908, Gualberto had gone out for a walk, leaving Ah Chong alone in the room. About 10 o'clock on that night Ah Chong was suddenly awakened by some one trying to force open the door of the room. He called out, "Who is there?" Receiving no reply, he said: "If you enter the room I will kill you." He then seized a knife and went to the door, which was suddenly pushed open, and Gualberto entered. It was very dark in the room. Ah Chong struct out wildly at the intruder, and inflicted blows upon Gualberto which very shortly thereafter resulted in his death. Ah Chong thought the intruder was a ladron. He was tried for the killing of Gualberto and found guilty of homicide and sentenced to six years and one day of presidio mayor. Upon appeal he was acquitted. This court said, pp. 492,493:

Under these provisions (Art. 8, penal Code) we think that there can be no doubt that defendant would be entitled to complete exemption from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or ladron as the defendant believed him to be. xxx xxx xxx

But the evidence clearly discloses that the intruder was not a thief or ladron. That neither the defendant nor his property nor any of the property under his charge was in real danger at the time he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or ladron as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge. In this case a strong man, Ah Chong, was acquitted for killing his friend upon the ground that he believed that the intruder was a thief or a ladron seeking entrance for the purpose of larceny or robbery. In the case at bar, a woman is convicted because she exceeded the means necessary to defend her honor. Had she stated that she believed that the person who touched her arm had entered for the purpose of larceny or robbery, the two cases would have been, mutatis mutandis, identical; and under the former, if the court had followed the doctrine laid down in that case, she would have been acquitted. But as she was defending her honor she has been convicted. The court squarely places the loss of the property in the former case above the loss of the honor and virtue of a woman in the latter case. To my mind there is no comparison between the gravity of the two offenses. The loss of a few personal articles, either by theft or robbery, cannot compare with the loss of woman's virtue taken from her forcibly. Rape is one of the most heinous crimes, from a moral standpoint, known to the human race. A virtuous woman had rather die than be raped. Yet, under the doctrine enunciated by this court, she is not authorized to use the same means in repelling a vicious attack upon her honor that she would be in defending her personal property. Considering the cases together, this court has said that a man may kill a person whom he believes to be entering his premises at nighttime for the purpose of robbery, but that a woman must not go to that extent to defend her honor. I cannot assent to such holding. The appellant should be, in my opinion, acquitted.

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