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ARTICLE 246: PARRICIDE G.R. No. L-50905 September 23, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO JUMAWAN alias "KIKO", CESARIO JUMAWAN alias "SARIO", MANUEL JUMAWAN alias "OWEL" and PRESENTACION JUMAWAN-MAGNAYE alias "ESEN" accused-appellants. ABAD SANTOS, J.: On the basis of a written statement made by Vicente Recepeda on July 18, 1976, and an affidavit executed by Trinidad Alcantara on July 19, 1976, a complaint for murder was filed in the Municipal Court of Sariaya, Quezon, on July 19, 1976, by Station Commander Sisenando P. Alcantara, Jr. against Francisco Jumawan, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan for the death of Rodolfo Magnaye. The affidavit of Trinidad Alcantara clearly states that her son Rodolfo Magnaye was married to Presentacion Jumawan albeit they had been living separately from each other. (During the trial Presentacion admitted her marriage to Rodolfo. See t.s.n., pp. 811-812.) The Station Commander can perhaps be excused for not accusing Presentacion of parricide but when the case was elevated to the Court of First Instance of Quezon where it was docketed as Criminal Case No. 1408, the Provincial Fiscal perpetuated the mistake by filing an information for murder against all the accused. The information reads: The undersigned Provincial Fiscal accuses CESARIO JUMAWAN alias 'Sario,' MANUEL JUMAWAN alias 'Owel', FRANCISCO JUMAWAN alias 'Kiko' and PRESENTACION JUMAWAN alias 'ESEN', of the crime of murder, defined and punished under Article 248 of the Revised Penal Code, committed as follows: That on or about the 19th day of June 1976, in the Municipality of Sariaya, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bolo (gulukan), conspiring and confederating together and mutually helping one another, with intent to kill and with evident premeditation and treachery, taking advantage of their superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said bolo one Rodolfo Magnaye alias 'Digo', thereby inflicting upon the latter a stab wound on the chest, which directly caused his death. After a long trial and 1,211 pages of stenographic transcript, the trial court rendered the following judgment: Wherefore, the Court finds Cesario Jumawan, Presentacion Jumawan-Magnaye, Manuel Jumawan, and Francisco Jumawan guilty as principals beyond reasonable doubt of the crime of Murder as defined and punished under Art. 248 of the Revised Penal Code and hereby sentences each of them to suffer a penalty of life imprisonment and to indemnify jointly and severally the parents of the victim in the amount of Twenty-four Thousand (P24,000.00) Pesos. The case is now before this Court on appeal. The brief of the appellants gives the following: STATEMENT OF FACTS The Accused: Francisco Jumawan is the father of his co-accused, namely, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan. Presentacion Jumawan was married to Rodolfo Magnaye. Death of Rodolfo Magnaye: As described by the lower court, '... when Rodolfo Magnaye did not return home in (that) evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public market to look for him on the following day. She met four (4) children who told her that they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the police headquarters to report the matter. ...' (page 5, Judgment). For the death of Rodolfo Magnaye, the accused stand charged of the crime of MURDER. The People's brief, on the other hand, merely reproduces the trial court's findings of facts as follows: It appears from the evidence adduced during the trial that Rodolfo Magnaye was married on 26 January 1974 to Presentacion Jumawan, one of the accused in the above entitled criminal case. Presentacion Jumawan-Magnaye left the conjugal home and stayed with her sister Sebastiana Jumawan. Rodolfo Magnaye, on the other hand, went and stayed with his mother Trinidad Alcantara. The mother of Mrs. Presentacion Jumawan-Magnaye made several attempts to secure the signature of Rodolfo Magnaye on a document agreeing to a separation from his wife so that both he and his wife will be free to marry again but Rodolfo Magnaye persisted in refusing to sign said document. On one occasion the mother of Mrs. Presentacion Jumawan-Magnaye even brought Rodolfo Magnaye and his mother to the Provincial Constabulary Command to ask for the assistance of Sgt. Mortilla to assist her daughter in securing a separation from Rodolfo Magnaye but they were told by Sgt. Mortilla that it cannot be legally done. Between 5:00 and 6:00 o'clock in the afternoon of 19 June 1976 while Trinidad Alcantara was in her house, her son Rodolfo Magnaye was dressing up and told her that he was going to the public market because his wife asked him to fetch her. He asked his mother to prepare food because they are going to talk about their lives. He left home at about 6:00 o'clock in the evening. At about 9:30 o'clock in the evening of 19 June 1976 one Mr. Vicente Recepeda came from the Aglipayan fiesta in Sariaya, Quezon and after eating at the Sariling Atin eating place he went to the former BLTB station at Sariaya, Quezon. While he was infront of the public market on the way to the former BLTB station he heard the noise of pigs being butchered and being in the business of buying pigs and chicken he went to the direction of [the] slaughter house to inquire about the prices of pigs and chicken. Before reaching the slaughter house he heard the noise (sic) of a person being attacked by three (3) persons and a woman inside a store which was lighted. He saw accused Francisco Jumawan holding the hands of Rodolfo Magnaye while accused Manuel Jumawan was behind Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye while Cesario Jumawan was infront of Rodolfo Magnaye with his left hand holding the collar of Rodolfo Magnaye and in his right hand he was holding a small pointed bolo with which he stabbed Rodolfo Magnaye below the right nipple. At about 11:00 o'clock in that evening a certain Mr. Policarpio Trinidad who also came from the Aglipayan fiesta in Sariaya, Quezon was waiting infront of a gasoline station across the old station of the BLTB waiting for a ride home when he saw Cesario Jumawan and Manuel Jumawan with Rodolfo Magnaye between them while they were crossing the national highway towards the south to a road opposite the Emil Welding Shop. They went on walking after crossing the highway. At that time the head of Rodolfo Magnaye was bowed infront while his two (2) arms were on the shoulder of Cesario and Manuel Jumawan. Rodolfo Magnaye was not walking. At about 11:45 o'clock in the evening of 19 June 1976 Presentacion JumawanMagnaye reported to Patrolman Marcial Baera and Patrolman Albufera that the store of Bastiana (Sebastiana) Jumawan where she works is threatened to be robbed by Rodolfo Magnaye. When asked by Patrolman Baera Presentacion Jumawan-Magnaye denied being related to Rodolfo Magnaye. He went to investigate the reported attempt to rob the store of Sebastiana Jumawan and he saw one of the panels used to close the store was destroyed but nothing appears to have been taken from the store. Presentacion Jumawan-Magnaye and her companions Tita Daez and Anabelle Jumawan told Patrolman Baera that they will file charges against Rodolfo Magnaye. Patrolman Baera entered the report of Presentacion JumawanMagnaye in the police record book. When Rodolfo Magnaye did not return home in that evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public market to look for him on the following day. She met four (4) children who told her that they saw a man near the water. They accompanied her to the place and she recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the police headquarters to report the matter. The two Patrolmen Baera and Albufera went to the place and they saw the dead man without a shirt and wearing black pants with white shoes. They noticed a stab wound on the lower portion of the right breast. The dead man was lying face up. In the afternoon of the same day Patrolman Loreto Galeon went to the store of Sebastiana Jumawan located at the public market of Sariaya to follow up the investigation of the reported attempted robbery case against Magnaye. He asked the storekeeper for permission to look at the wood panels which are used to close the store. He found traces of blood in one of the wooden panels. He reported what he saw to Sgt. Labitigan when he returned to the police headquarters. The following day he was ordered by the chief of police to look again at the wooden panel with traces of blood but he saw that the wooden panels were already planed ('kinatam') and the traces of blood could no longer be seen. On 23 June 1976, Patrolman Rodrigo Cedonio was ordered to look for Tita Daez in Barrio Mamala Sariaya, Quezon because Tita Daez was allegedly in the store at the time of the alleged attempted robbery and at the time Rodolfo Magnaye was allegedly killed. Patrolman Cedonio was informed by the mother of Tita Daez that she had not gone to her home at barrio Mamala. She accompanied Patrolman Cedonio in trying to locate Tita Danez. They first went to the store of Sebastiana Jumawan which turned out to be closed on that day. They then went at Muntingbayan, Tayabas, Quezon where they were able to find Tita Danez together with Francisco Jumawan, Bienvenido Jumawan and Rosita Abratiga. Mr. Cesario Jumawan, one of the accused in the above entitled criminal case and a brother-in-law of the victim, set up the defense of alibi when he testified that between 3:00 and 4:00 o'clock in the afternoon of 19 June 1976 he was at Barrio Sampaloc, Sariaya, Quezon which is more or less three (3) kilometers away from the poblacion of Sariaya, Quezon. He went home to Barrio Pili of the same town early in the afternoon of the following day. He did not go anywhere else since 3:00 to 4:00 o'clock in the afternoon of 19 June 1976 up to and until he returned to Barrio Pili. Mr. Manuel Jumawan, another accused in the above entitled criminal case who is also a brother-in-law of the victim, likewise set up the defense of alibi when he

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testified that on 19 June 1976 he was in his house at Barrio Pili, Sariaya, Quezon which is about five (5) kilometers from the poblacion of Sariaya, Quezon. He went to bed at about 7:00 o'clock in the evening of 19 June 1976. He woke up at about 6:30 o'clock in the morning. He further claims that he suffers from an abnormality of the left arm which he cannot raise in a normal way and that he was suffering from said disability since childhood when he fell from a cow continuously up to the present. Said accused presented a medical certificate, Exhibit 7, issued by Dr. Concepcion dela Merced, a radiologist of the National Orthopedic Hospital certifying to the fact that Manuel Jumawan is negative for fracture dislocation and that he suffers from a deformity of the proximal and left humerous probably from a previous fracture. There is no showing that Manuel Jumawan is incapable of raising his left arm around the neck of Rodolfo Magnaye whose actual height was not established by the evidence nor was Dr. Concepcion dela Merced presented to testify on her findings. Presentacion Jumawan-Magnaye claims that in the evening of 19 June 1976 she was in the store of Sebastiana Jumawan together with Anabelle Jumawan and Tita Daez when she heard a person who wanted to enter the store. She shouted 'thieves' ('magnanakaw'). In response to her shouts several people arrived and chased the person who wanted to enter the store. She then went to the house of Sebastiana Jumawan where hats are being made and where her father Francisco Jumawan was staying that night. While she was in the house where her father was staying, their adjoining neighbor, a certain Mateo Diamante informed her that the person being chased by several men was Rodolfo Magnaye. She, however, did not talk with any of the person who chased her husband nor does she know any of them. She then went with her father, Francisco Jumawan, to report the matter to the police whom they met at the Filipina Restaurant. While Presentacion Jumawan-Magnaye gave the name of Rodolfo Magnaye as the suspect in the attempted robbery, she did not reveal to the investigating policemen that he was her husband even if she was asked why they knew his name, neither did she inform the police that her husband was chased by several persons nor did she give the direction where her husband supposedly ran. The two policemen, Patrolmen Baera and Albufera, actually went to the store of Sebastiana Jumawan and after looking at the store, these two patrolmen told Presentacion Jumawan-Magnaye that because nothing happened they will continue the investigation on the next day. None of those who allegedly chased her husband that evening was even presented as a witness. Mr. Francisco Jumawan, who is the father of his three (3) other co-accused, likewise set up the defense of alibi when he testified that in the evening of 19 June 1976 at about 8:00 o'clock more or less he was alone in the house of Sebastiana Jumawan situated near the former garage of the BLTB in Sariaya, Quezon and that he was awakened only when his daughter Presentacion woke him up to ten him that someone was trying to enter the store of Sebastiana Jumawan. In a brief which is more noteworthy for legal rhetoric rather than a critical analysis of the evidence, the appellants claim that the trial court committed the following errors: THE LOWER COURT ERRED IN NOT FOCUSING OBJECTIVELY AND IMPARTIALLY THE EVIDENCE FOR THE PROSECUTION EVEN AS IT FOCUSED SUBJECTIVELY AND UNFAIRLY ON SUPPOSED WEAKNESS OF THE EVIDENCE FOR THE DEFENSE. THE CONSTITUTIONAL GUARANTEE THAT THE ACCUSED ARE PRESUMED INNOCENT OF THE CRIME CHARGED AND ARE ENTITLED TO A RIGHT TO A DAY IN COURT CANNOT BE OVERTURNED BY THE DOCTRINE THAT APPELLATE COURTS ARE NOT PRONE TO DISTURB THE FINDINGS OF THE TRIAL COURT WITH RESPECT TO THE CREDIBILITY OF WITNESSES. THE LOWER COURT ERRED IN NOT FINDING AND TAKING INTO SERIOUS ACCOUNT THE FATAL WEAKNESSES OF THE EVIDENCE FOR THE PROSECUTION IN TERMS OF IMPROBABILITIES, GROSS INCONSISTENCIES AND IRRECONCILABLE CONTRADICTIONS. THE LOWER COURT ERRED IN GIVING CREDIT AND CREDENCE TO THE TESTIMONIES OF THE STAR PROSECUTION WITNESS CONSIDERING THE GLARING WEAKNESS THEREOF, EVEN AS THE LOWER COURT CONVENIENTLY DENIED THE DEFENSE REASONABLE OPPORTUNITY OF THE PROSECUTION WITNESSES. THE LOWER COURT ERRED IN ITS ERRONEOUS APPROACH TO AND APPLICATION OF THE PRINCIPLES CONCERNING THE DEFENSE OF ALIBI IN THE CASE AT BAR. SPECIALLY IN THE LIGHT OF THE FACT THAT THERE WAS NO POSITIVE IdENTIFICATION OF ACCUSED AND ALSO THAT THE PROSECUTION FAILED TO EFFECTIVELY REBUT THE DEFENSES OF ALIBI WHICH WOULD HAVE BEEN EASY TO DO IF SUCH DEFENSES WERE REALLY CONCOCTIONS. The foregoing assignment of errors can be reduced to the simple proposition whether the evidence against the accused, independent of their alibis, has overcome the presumption of innocence in their favor and created a moral certainty as to their guilt. Except for Vicente Recepeda and Policarpio Trinidad, the appellants do not question the credibility of the witnesses for the prosecution. Hence, the testimony of these witnesses deserves scrutiny. Vicente Recepeda was 67 years old, jobless and a resident of Lucena City when he first testified on April 29, 1977. He testified that on June 19, 1976, he went to Sariaya, Quezon, to attend the Aglipayan fiesta; he arrived there at about 5:00 o'clock and thereafter did the following: listened to the music and singing, went to the Aglipayan church and the "perya," ate at a restaurant, and walked to the public market where there was a former BLTB station. While he was waiting for a trip to Lucena, he heard the shriek of pigs being killed so he walked toward the butchers for the purpose of asking the price of pigs since he was then engaged in the business of buying and selling pigs. In fact, at one time Rodolfo Magnaye, the deceased, tied the feet of a pig which he had bought. He was not able to talk to the butchers because an unusual event intervened which in his own words was: Q. At about 9:30 o'clock in the evening of June 19, 1976, do you remember where were you? A. Yes sir. Q. Where were you on that particular date and hour? A. I was in the public market of Sariaya, Quezon, sir. Q. While you were in the market of Sariaya, Quezon, on that particular date and hour, do you remember if there was any unusual incident that you witnessed? A. There was, sir. Q. What was that unusual incident that happened on that particular place and hour? A. I saw a person being attacked by three persons, sir. Q. What else did you see there on that particular occasion, aside from a person being attacked by three persons? A. There was a woman who ordered the three persons to stab and kill the person being attacked by these three persons, sir. Q. Where in particular in the public market of Sariaya, Quezon did you see this incident happen? A. Inside the store within the public market of Sariaya, Quezon, sir. Q. Did you recognize, or did you come to know these three persons whom you said were inside the store within the public market of Sariaya, Quezon at about 9:30 o'clock in the evening of June 19, 1976? A. I recognize their faces, sir. Q. Did you come to know their names later on? A. Yes sir. Q. What is the name of the woman whom you said was there on that particular occasion? A. Presentacion Jumawan, sir. Q. If you will see that Presentacion Jumawan again, will you be able to Identify her? A. Yes, sir. Q. Will you please look around the courtroom and point to Presentacion Jumawan if she is here. A. She is here sir. Q. Please point her out to this Honorable Court. A. That one sir. ATTY. ALCALA: May we respectfully ask if your honor please that the person pointed to by the witness Identify herself. COURT: Ask the person to Identify herself. INTERPRETER: What is your name? A. Presentacion Jumawan. INTERPRETER: The person pointed to by the witness your honor, Identified herself as Presentacion Jumawan. ATTY. ALCALA: And what is the name of the person whom you said was being attacked by the three men on that particular occasion inside the store? A. Rodolfo Magnaye, sir. Q. And what are the names of the three persons attacking Rodolfo Magnaye, will you please state it before this Honorable Court? A. Yes, sir, one is Francisco Jumawan, Manuel Jumawan and the other one is Cesario Jumawan. Q. That Francisco Jumawan whom you said was one of the persons attacking Rodolfo Magnaye, on that particular occasion, will you be able to recognize him if you will see him again? A. Yes, sir. Q. If this Francisco Jumawan is inside the courtroom, will you please point him out before this Honorable Court? A. Yes, sir. Q. Please do so. A. That one sir. ATTY. ALCALA: Your honor please may we ask that the person pointed to by the witness Identify himself.

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COURT: Ask the Identity of the person pointed to by the witness. INTERPRETER:What is your name? A. Francisco Jumawan. INTERPRETER: The person pointed to by the witness your honor Identify himself as Francisco Jumawan. Q. And that person whom you said the name as Manuel Jumawan will you be able to recognize him if you will see him again? A. Yes, sir. Q. Please look around the courtroom and point out to this Honorable Court if Manuel Jumawan is here inside the courtroom. A. Yes, sir, that one. ATTY. ALCALA: May we ask Your Honor that the person pointed to by the witness be made to Identify himself. COURT: Ask the person pointed to by the witness to Identify himself. INTERPRETER: What is your name? A. Manuel Jumawan. INTERPRETER:The person pointed to by the witness Your Honor Identified himself as Manuel Jumawan. Q. And that person whom you mentioned is named Cesario Jumawan, will you be able to Identify him if you will him again? A. Yes, sir. Q. Please look around the courtroom and point to this Honorable Court the person whom you said is Cesario Jumawan. That one sir. ATTY. ALCALA:May we request your honor that the person pointed to by the witness Identify himself. COURT: Ask the person pointed to by the witness to Identify himself. INTERPRETER: What is your name? A. Cesario Jumawan. INTERPRETER: The person pointed to by the witness Identify himself as Cesario Jumawan Your Honor. Q. On that occasion what was Francisco Jumawan doing at that time you saw him? A. He was standing besides Rodolfo Magnaye and holding his hands. Q. Who was holding his hands? A. Francisco Jumawan was holding the hands of Rodolfo Magnaye, sir. Q. How about Manuel Jumawan, what was he doing? A. Manuel Jumawan was at the back of Rodolfo Magnaye with his arm around the neck of Rodolfo Magnaye, sir. Q. How about Cesario Jumawan what was he doing on that particular occasion? A. He was in front of Rodolfo Magnaye, his left hand is holding the collar of Rodolfo Magnaye and his right hand holding a bolo, sir. Q. How about Presentacion Jumawan, what was she doing on that particular occasion? A. She was standing inside the store ordering the three persons to stab and kill Rodolfo Magnaye, sir. Q. What happened when Presentacion Jumawan give that order? A. Rodolfo Magnaye was stabbed, sir. Q. Who stabbed Rodolfo Magnaye on that occasion? A. Cesario Jumawan, sir. Q. At that time that Cesario Jumawan stabbed Rodolfo Magnaye on that particular occasion, what were Francisco Jumawan and Manuel Jumawan doing.? A. Francisco Jumawan was holding the hands of Rodolfo Magnaye with his arms around the neck of Rodolfo Magnaye, sir. Q. What happened to Rodolfo Magnaye when he was stabbed by Cesario Jumawan on that occasion? A. He was hit by the stab, sir. Q. Where was Rodolfo Magnaye hit by the stab of Cesario Jumawan on that occasion? A. Under the right nipple, sir. Below the right nipple. Q. What did Rodolfo Magnaye do on that particular occasion after he was hit? A. He said, why did you stab me. Q. What did you do after that? A. I left, sir. Q. While you were walking away did you hear anything? .A. Yes, sir. Q. What did you hear? A. A voice of a woman shouting, thief, thief. Q. What did you do when you heard the shout of a woman? A. I hurriedly walked away, sir. Q. Did you finally came to know what happened to Rodolfo Magnaye as a result of that incident? A. Yes, sir. Q. What happened to him? A. He died, sir. (t.s.n., pp. 494-509.) Policarpio Trinidad was 28 years old and a laborer at the time he first testified on June 27, 1977. He testified that he knew Manuel Jumawan, Cesario Jumawan and Rodolfo Magnaye; that on June 19, 1976, at about 11:00 p.m., he was in Sariaya, Quezon, near the old station of the BLTB; and on that occasion he saw the aforesaid persons thus: Q. Will you please describe before this Honorable Court their position when you saw them? A. Their hands were on the shoulders of each other. Q. And who was in the middle? A. Rodolfo Magnaye, sir. Q. Will you please tell this Honorable Court the appearance of Rodolfo Magnaye when you saw him being in the middle of Cesario Jumawan and Manuel Jumawan on that occasion? A. His head falls and his two hands were on the shoulder of Cesario Jumawan and Manuel Jumawan. Q. Did you see where these persons were going on that particular occasion when you said you saw them? ATTY. CUARTOY Objection Your Honor, that has already been answered, that they are going out of the old BLTB station. COURT: Witness may answer. A. They cross the highway, sir. Q. In what particular place did they go when they cross the highway? A.. They went to the road opposite the Emil Welding Shop, sir. Q. Did you see on that particular occasion whether Rodolfo Magnaye was walking? A. He was not walking and he cannot step his feet, sir. Q. When they went to that place, near the Emil Welding Shop, did they go any further? A. They proceeded walking, sir. Q. Where did you go upon seeing them? A. I went directly to my house, sir. (t.s.n., pp. 628-631.) The testimony of Vicente Recepeda linked to that of Trinidad Alcantara and Policarpio Trinidad shows that the four appellants conspired and cooperated in the assassination of Rodolfo Magnaye. The victim and his wife had a rendezvous in the evening of June 19, 1976, in order to discuss the fate of their marriage. While it is not known if they actually conversed, the purpose of the rendezvous was in fact accomplished; the marriage was terminated by the murder of the husband. The report to the police by Presentacion that Rodolfo Magnaye had attempted to rob the store of Sebastiana Jumawan was a crude diversionary tactic to enable Cesario and Manuel to transfer the cadaver to another place. The alibis of Francisco, Cesario and Manuela are for naught. Francisco claimed that in the evening of June 19, 1976, he was in the house of Sebastiana Jumawan, not in her store. Cesario said that while his residence was Barrio Pili, Sariaya, on the night of June 19, 1976, he and his wife were in Barrio Sampaloc, Sariaya, visiting his brother Benigno Jumawan and they did not return to Pili until the next day. Manuel said that on the night of June 19, 1976, he was in his house at Barrio Pili. These alibi cannot prevail for the following reasons: (a) Francisco, Cesario and Manuel were positively Identified to be at the scene of the crime by Vicente Recepeda and Cesario and Manuel were similarly Identified by Policarpio Trinidad; and (b) the places where they claimed to be were not far from the scene of the crimeso that it was not impossible fro them to be there. Sebastiana Jumawan's house where Francisco was supposed to be is within walking distance from the former's store. Barrio Sampaloc, where Cesario claimed he was, is only about three kilometers from the poblacion of Sariaya. Barrio Pili, where Manuel said he slept that night, is about five kilometers from the same poblacion. Presentacion should have been accused of parricide but as it is, since her relationship to the deceased is not alleged in the information, she, like the others, can be convicted of murder only qualified by abuse of superior strength. Although not alleged in the information, relationship as an aggravating circumstance should be assigned against the appellants. True, relationship is inherent in parricide, but Presentacion stands convicted of murder. And as to the others, the relationships of father-in-law and brother-in-law aggravate the crime. (Aquino, Penal Code, Vol. I. p. 406 [1976].) The penalty for murder with an aggravating circumstances is death. However, for lack of necessary votes, the penalty is reduced to reclusion perpetua. [G.R. No. 115686. December 2, 1996] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO MALABAGO y VILLAESPIN, accusedappellant. D E C I S I O N PUNO, J.: This is an automatic review of the decision of the Regional Trial Court of Dipolog City, Branch 10 which imposed the penalty of death on accusedappellant, Pedro Malabago y Villaespin, in Criminal Case No. 6598, viz: WHEREFORE, the court finds accused Pedro Malabago guilty beyond reasonable doubt of the crime of PARRICIDE as defined and penalized under Article 246 of the Revised Penal Code. With reluctance and a heavy heart

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therefore, inspired by the personal feeling and view of the undersigned with respect to the wisdom of the penalty of death for any crime, the court finds itself with no other alternative but to impose the penalty provided for by the express mandate of the law which is now restored under Republic Act No. 7659. The accused (Pedro Malabago y Villaespin) is hereby sentenced to DEATH for the terrible crime he has committed and, to indemnify the heirs of the victim in the sum of P50,000.00 conformable to the recent jurisprudence on the matter (People v. Sison, 189 SCRA 643). DIPOLOG CITY, Philippines, this 10th day of May 1994. (Sgd.) WILFREDO C. OCHOTORENA Acting Presiding Judge1 In an information dated January 7, 1994, accused-appellant was charged with the crime of parricide committed as follows: That in the evening, on or about the 5th day of January 1994, at Barangay Gulayon, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and without any justifiable cause, did then and there wilfully, unlawfully and feloniously hack and strike with a bolo one Letecia R. Malabago, his lawfully wedded wife, hitting the latter on her face and neck, which caused the victims instantaneous death, to the damage and prejudice of the heirs of the victim, in the amount of P30,000.00 as death indemnity, and also moral and exemplary damages in the amounts to be established during the trial.2 The following facts were established by the prosecution: On January 5, 1994, at about 7:00 in the evening, Guillerma Romano, appellants mother-in-law, was tending her sari-sari store in Barangay Gulayon, Dipolog City. The Store and its premises were lit by a kerosene lamp and the fluorescent light from the adjoining house of Dodong Opulentisima. Guillermas daugther. Letecia Romano Malabago, arrived and sat on one of the benches outside the store. She had just come from selling some jackfruit. Allandel, Letecias fourteen-year old son, appeared and sat on the bench facing her. He listened to his mother and grandmother who were conversing. A few minutes later, accused-appellant came and interrupted his wife and mother-in-laws conversation. He and Letecia began arguing. Guillerma turned away but heard the couples altercation over money and appellants jealousy of someone. Suddenly, Guillerma heard a loud sound and she thought that appellant slapped Letecia on the face. Letecia cried out Agay! Looking out the store window, Guillerma saw Letecias face bloodied with a slash along her right ear. Appellant was facing Letecia, and with a bolo in his hand, struck her again, this time hitting the lower left side of her face, from the lips down to the neck. Letecia fell to the ground. Guillerma rushed towards her daughter and shouted for help.3 She was lifeless. Appellant fled to Dodong Opulentisimas house. Dodong Opulentisima later called the police. They came, fetched appellant and brought him to their station.4 On investigation, the police found a bloodied bolo in the pineapple plantation near appellants house.5 Letecia was found to have died of cardio-respiratory arrest; shock hemorrhage, massive; hack wounds, multiple.6 Accused-appellant pled not guilty to the crime. He claimed that on January 5, 1994, he was in the poblacion of Dipolog City. He alleged he did not know who hacked his wife and had no means of finding the culprit because he was placed in jail after her killing.7 He claimed through his son, Allandel, as defense witness, that Guillerma testified against him because she was against their marriage. He was then jobless.8 The proccedings show that Guillerma, together with her husband, catalino, and appellants and Letecias three children namely, Allandel, Aljun and Alex later signed as affidavit of desistance and moved to dismiss the case against him.9 The trial court upheld the prosecution and on May 10, 1994 convicted accusedappellant of parricide and sentenced him to death pursuant to republic Act No. 7659. Before us appellant assigns the following errors: I: The sentence of death imposed by the trial court on the appellant is an unconstitutional penalty for being violative of fundamental human rights and is, thus, null and void. II: The judgment of conviction is null and void for having been rendered by a trial court ousted of jurisdiction because of the grave violations of the appellants rights to due process committed by no less that the presiding judge himself as shown by his conduct at trial. III: Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in convicting the appellant of parricide considering that the prosecution failed to prove his guilt beyond reasonable doubt as demonstrated by: (a) The prosecutions failure to prove the legitimate marital relation between appellant and the victim; (b) The prosecutions failure to prove the fact and cause of death; (cThe prosecutions failure to establish the chain of custody over the alleged instrument of death; IV: Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in convicting the appellant when it arbitrarily and selectively gave full weight and credence only to Guillerma Romanos inculpatory but inconsistent and inadmissible testimony and disregarded her exculpatory statements. V: Assuming without conceding that the trial court was not ousted of jurisdiction, it nevertheless gravely erred in peremptorily dismissing the appellants defense of alibi as inherently weak. VI: Assuming without conceding that the finding of parricide is correct, the trial court nevertheless gravely erred in appreciating the existence of treachery as an aggravating and qualifying circumstance. VII: Assuming without conceding that the finding of parricide is correct, the trial court nevertheless gravely erred in refusing to consider the mitigating circumstance of voluntary surrender in favor of the appellant, despite the prosecutions failure to contradict and challenge the appellants claim of this mitigator. VIII: Assuming without conceding that it was not ousted of jurisdiction, the trial court nevertheless gravely erred in awarding civil indemnity arising from the death of Letecia Malabago considering that the prosecution failed to prove said death as a fact during trial.10 We affirm the trial courts findings with modification The crime of parricide defined in Article 246 of the Revised Penal Code as amended by Republic Act 765911 states: Art. 246. Parricide. -- 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. Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendants or other descendants, or the legitimate spouse of the accused.12 The key element in parricide is the relationship of the offender with the victim.13 In the case at 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.14 Guillerma Romano testified on direct examination that: PROSECUTOR MAH: Q On January 5, 1994 at about 7:00 in the evening, can you still recall where you were at that particular time? A I was in my store. Q While you were in your store at that particular time and date, can you still remember if there was an unusual incident [that] happened? A Yes, sir. Q Please tell us what that incident was about? A At that moment, I heard a loud sound (paka). Q Did you investigate what that loud sound [was] all about? A I did not mind because they are husband and wife. Q What was that loud sound about? A I thought it was a slap on the face but she was nit by a bolo. Q What was that incident about? A There was an altercation between husband and wife. Q After the altercation between husband and wife, what happened? A I saw the hacking two times and I saw blood. Q Who was hacked? A My daugther Letecia was hacked by Pedro Malabago. xxx xxx x x x.15 Guillerma Romanos testimony on direct examination affirmed the narration in her affidavit taken the day after the incident. The affidavit was adopted by the prosecution as its Exhibit A and it reads in part: Q What is your purpose in coming to the Office of the Investigator of the Dipolog City Police? A To file a complaint against Pedro malabago y Villaespin, 42 years old and a resident of Gulayon, Dipolog City, Q What is your complaint against said person? A He hacked to death my daughter who is his wife with the use of a bolo. Q How many times did the suspect hack his wife, Letecia R. Malabago? A Twice, hitting the victim on the right side of her face and on the neck resulting in her instanteneous death. xxx xxx x x x.16 Appellant did not object to Guillermas testimony and sworn statement that he and Letecia were husband and wife.17 Appellant himelf corroborated Guillermas testimony, to wit: COURT: (to the witness) Q You are Pedro Malabago, the accused herein? A Yes, sir. Q What is your relation to the late Letecia Romano Malabago? A She was my wife, your honor. Q You mean to say you were legally married to Letecia Romano Malabago? A Yes, sir.

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Q Who solemnized the marriages? A Mayor Barinaga, your honor. Q When? A In the year 1970, your honor. Q Who were the witnesses, could you still remember? A I can only remember Sergio Vidal, your honor. Q But then you were legally married by civil ceremony officiated by Mayor Barinaga? A Yes, your honor. xxx xxx x x x.18 The testimony of the accused that he was married to the deceased is an admission against his penal interest. It is a confirmation of the semper praesumitur matrimonio and the presumption that a man and a woman deporting themselves as husbands and wife have entered into a lawful contract of marriage.19 Appellant alleges that the prosecution failed to establish the fact and cause of Letecias death because Dr. Dominador Celemin, the City Health Officer who signed the death certificate, did not personally examine her cadaver.20 It is content that the consent of the death certificate issued by Dr. Celemin is hearsay.21 Letecias death certificate is not the only proof of her death. Guillerma, in her affidavit, stated that her daughter died as a result of the hack wounds.22 Called also as a hostile witness to the defense, she testified: COURT Q At the time, you actually saw the accused hacked (sic) the bolo to (sic) your daughter? A Yes, you honor. Q In fact, you witnessed the blood oozing on the face of your daughter? A Yes, your honor. Q In other words, you actually saw the accused herein hack the bolo to your daughter, am I right? A Yes, your honor. Q And the cause of death of your daughter was hacking of Pedro Malabago? A Yes, your honor. Q I have observed a while ago while you were testifying, you were crying. Why? A Because of worries that Pedro had done to my daughter. Q You mean to say, you cried because your daughter was killed by her husband? A Yes, your honor. xxx xxx x x x.23 Appellant affirmed on cross examination that his wife died as a result of the hacking, thus: FISCAL MAH: (to the witness) Q Mr. Witness, you know Letecia Malabago because she was your wife? A Yes, sir. Q Where is she now? A She is already buried in the cemetery. Q You mean to say she is already dead? A Yes, sir. Q What was the cause of her death? A She was hacked, sir. Q Hacked by whom? A I do not know who hacked my wife. xxx xxx x x x.24 Accused-appellant also claims that the trial court showed partiality to the prosecution by unduly interfering in the presentation of evidence. By asking questions, the judge allegedly elicited prejudicial admissions from witnesses without affording appellants counsel the right to examine them on their answers to the court, in violation of appellants constitutional right to due process and right against self-incrimination.25 The records disclosed that the questions the trial judge propounded were made mainly to clarify what the prosecution and defense witnesses had testified on direct and cross examinations. The essential elements of the crime of parricide like appellantss marriage to Letecia, the cause of Letecias death and appellants participation therein were facts already established by the prosecution in its evidence in chief. Using his discretion, the trial judge questioned the witnesses to clear up obscurities in their testimonies ans sworn statements.26 The wise use of such discretion cannot be assailed as a specie of bias. A judge is called upon to ascertain the truth of the controversy before him. He may properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time27 and clarify obscure and incomplete details after the witness had given direct testimony.28 After all, the judge is the arbiter and he ought to satisfy himself as to the respective merits of the claims of both parties in accord with the stringent demands of due process.29 In the case at bar, the trial judge had strong reasons to question the material witnesses who executed affidavits of desistance contradicting their previous stance. If to the mind of the parties, the trial judge was unduly interfering in their presentation of evidence, they were free to manifest their objection. They were likewise free to ask redirect questions from their witness after interrogation by the trial court. In the instant case, however, they never manifested that the questions of the trial judge had traversed the allowable parameters. Even assuming that some of the questions were incriminating, we cannot hold that the witnesses were compelled to incriminate themselves. The records show they answered the questions of the court freely and voluntarily and without any objection from their respective counsels. The prosecution evidence is based solely on the testimony of Guillerma Romano. Nonetheless, her testimony is clear, spontaneous and straightforward. Her inconsistencies are minor and inconsequential and they are not incongruous with her credibility.30 Her testimony was not eroded even when she was presented by the defense as a hostile witness. She admittedly signed the affidavit of desistance for the sake of her three grandchildren and this is understandable in light of the circumstances of the case. Allandel and his brothers pled that she withdraw the complaint because they did not want their father to be in prison.31 Deep in her heart, however, Guillerma wanted justice for her daughter and thus, she testified for the prosecution.32 The fact that she objected to her daughters marriage to appellant is too flimsy a reason to impel her to testify against the father of her grandchildren. We agree with the trial court that appellants defense of alibi is weak and unconvincing. Appellant was positively identified as the one who hacked his wife to death. Moreover, it was not physically impossible for him to be at the scene of the crime on that fateful evening. The poblacion of Dipolog City is merely four kilometers from Barangay Gulayon and this distance may be traversed within a few minutes by motorized vehicle.33 Be that as it may, we find that the trial court erred in appreciating the aggravating circumstance of treachery. For treachery to be present, two conditions must concur: (a) the employment of means of execution which would ensure the safety of the offender from defensive and rataliatory acts of the victim, giving the victim no opportunity to defend himself; and (b) the means, method and manner of execution were deliberately and consciously adopted by the offender.34 It is true that appellant hacked his wife who was then unarmed and had no opportunity to defend herself. However, the evidence does not show that appellant deliberately and consciously employed this particular mode of attack to ensure the killing of the victim. The unembroidered facts reveal that appellant hacked his wife in the midst of a sudden, unscripted heated argument. This precludes the idea that appellant priorly planned to kill his wife. Indeed, appellant was not carrying his bolo at that time. The bolo was hanging in its usual place on one of the posts of the sari-sari store.35 Treachery, to be appreciated, must spark an attack that is deliberate, sudden and unexpected not where it is prefaced by an unforeseen heated argument with the victim standing face to face with her assailant.36 The trial court also erred in disregarding the mitigating circumstance of voluntary surrender. In answer to questions by the trial court, appellant declared: COURT: (to the witness) Q Do you have suspects as to the alleged killers of your wife? A I have no suspect, your honor. Q Because you denied killing your wife, you did not surrender to the police authorities? A I surrendered because I was accused of killing my wife. Q Immediately after the incident? A Yes, sir. Q Was it placed in the police blotter that you surrendered? A Yes, sir. Q Will you give the name of the person or police officer to whom you surrendered? A I forgot the name, your honor. Q Are you telling the truth? A Yes, sir. Appellant testified that he voluntarily surrendered to the police when they fetched him at Dodong Opulentisimas house. The prosecution did not dispute appellants claim of voluntarily surrender. Guillerma herself testified that without any resistance, appellant went with the police when they fetched him at Dodongs house.38 Indeed, appellant did not escape after Dodong Opulentisima called the police. Instead, he voluntarily placed himself at the disposal of the police authorities. In the absence of an aggravating circumstance39 and the presence of a mitigating circumstance the penalty imposable to appellant is reclusion perpetua.40 Considering the death of the victim, a civil indemnity of P50,000.00 must be awarded to her heirs. In light of the above disquisitions, the Court need not resolve the alleged unconstitutionality of R.A. No. 7659, as amended. Nonetheless, the Court expresses its appreciation to the scholarly arguments of our amici curiae, Senator Arturo M. Tolentino and Fr. Joaquin G. Bernas, S.J., on the constitutional aspects of R.A. No. 7659, as amended. Death not being the lis mota of the

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instant case, the Court has to await for more appropriate case to pass upon the constitutionality of R.A. No. 7659, as amended. IN VIEW WHEREOF, the decision appealed from is affirmed with the modification that the penalty of death imposed by the Regional Trial court of Dipolog City, Branch 10 on accused-appellant Pedro Malabago y Villaespin in Criminal Case No. 6598 is reduced to reclusion perpetua. [G.R. No. 135981. January 15, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. D E C I S I O N 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 childs. 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 Decision[1] 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 Information[3] 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 prosecutions 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, Bens 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 Bens house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas rented house, he heard her say I wont 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 sons 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 aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray. About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Bens death was cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone]. Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas house. Ecel went home despite appellants 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

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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 husbands 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 Bens parents, together with Bens 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. Bens 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 Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Bens aid again and saw blood from Bens forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness. Mrs. Iluminada Genosa, Marivics 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 Marivics 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 Bens 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 lets 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 couldnt 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 Marivics house on November 15, 1995, the couple were still quarreling. 7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees 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. Caings 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

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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. xxx xxx xxx 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, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants 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 Marivics 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. Josephs 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 sociodemographic 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

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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 hardheaded and persistent. She has higher sensitivity and her self-world is damaged. Dr. Pajarillo said that an abnormal family background relates to an individuals illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally internalizes what is around him within the environment. And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong faade but in it there are doubts in himself and prone to act without thinking. xxx xxx xxx Dr. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind. xxx xxx xxx Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household. He said a victim resorts to weapons when she has reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively. xxx xxx xxx Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001. xxx xxx xxx On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivicc mental condition was that she was reexperiencing 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 appellants 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 Courts Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan[10] 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 Courts 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 Marivics 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 Courts Ruling: The appeal is partly meritorious.

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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 appellants 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 courts 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 judges 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 appellants 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 Bens 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 victims 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 selfdefense 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 appellants 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 courts 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 batterers 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

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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 womans 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.

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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 testified[36] 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 oclock at night, because the couple were very noisy and I heard something was broken like a vase. Then Marivic came running into Ecels 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 oclock. Q What happened when you arrived in your residence? A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year. Q Who was this cousin of yours who you requested to sleep with you? A Ecel Arao, the one who testified. Q Did Ecel sleep with you in your house on that evening? A No, because she expressed fears, she said her father would not allow her because of Ben. Q During this period November 15, 1995, were you pregnant? A Yes, 8 months. Q How advance was your pregnancy? A Eight (8) months. Q Was the baby subsequently born? A Yes, sir. Q Whats 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?

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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 Its 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 latters ordeal to the court a quo as follows: Q: What can you say, that you found Marivic as a battered wife? Could you in laymans 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 shes 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 Im 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 Courts 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, ones 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 latters 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 selfsacrificing 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 latters belief that she provoked the violence, that she has an obligation to

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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 victims 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 study[53] 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 individuals 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 individuals set of beliefs or perceptions concerning the situation. Battered women dont attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances.[54] Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape.[55] Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.[56] Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more.[57] In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS. The defense fell short of proving all three phases of the cycle of violence supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern. How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Bens 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 mothers or fathers 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 others 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 selfdefense.[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 offense[60] -- 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 selfdefense must face a real threat on ones 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 childrens 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 childrens 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 defendants use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger.[66] Considering such circumstances and the existence of BWS, self-defense may be appreciated. We reiterate the principle that aggression, if not continuous, does not warrant self-defense.[67] In the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.[68] Thus, Marivics 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 selfcontrol. 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

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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 9[74] and 10[75] 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. Pajarillos testimony[80] 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.[82] Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.[83] Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an open, depressed, circular fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death: Q You said that when Ben came back to your house, he dragged you? How did he drag you? 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 inch wide. Q It is a flexible blade? A Its 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?

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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 Ive 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 victims position relative to appellants 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 5[88] 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--vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modernday 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 appellants 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 persons 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 selfdefense. 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. ARTICLE 247: DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES G.R. No. 74433 September 14, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant. SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows: xxx xxx xxx The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows: That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1 xxx xxx xxx On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows: Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984). On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.).

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The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2 On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows: xxx xxx xxx WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila. SO ORDERED. 3 xxx xxx xxx The accused-appellant assigns the following errors committed by the court a quo: I.: IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE; II.: IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 4 The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under exceptional circumstances, complexed with double frustrated murder. Article 247 reads in full: ART. 247. Death or physical injuries inflicted under exceptional circumstances. Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said: xxx xxx xxx As may readily be seen from its provisions and its place in the Code, the abovequoted article, far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be is punished only with destierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. ... 7 xxx xxx xxx Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case. The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10 that is not enough a precaution to absolve him for the

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injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her recovery period.) 12 For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellant arresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13 WHEREFORE, the decision appealed from is hereby MODIFIED. The accusedappellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs. IT IS SO ORDERED. ARTICLE 248: MURDER G.R. No. L-32103 September 28, 1984 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and ERNESTO JOSON, defendants-appellants. MELENCIO-HERRERA, J.: This is an appeal from the Decision of the then Court of First Instance of Bataan, sitting in Balanga, in Criminal Case No. 6182, convicting Jose BUENSUCESO, Rodolfo AGUILAR, Conrado IZON and Ernesto JOSON, all members of the police force of Dinalupihan, Bataan, of Murder, and sentencing "said accused each to suffer the penalty of RECLUSION PERPETUA; to jointly and severally indemnify the heirs of the deceased Pariseo Tayag in the amount of P12,000.00; and each to pay the proportionate costs." 1 The Information filed against said four accused together with two other policeman, Eduardo MALLARI and Fidel DE LA CRUZ, charged them with Murder as follows: That on April 21, 1967 at about 5:00 o'clock in the afternoon at Dinalupihan, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by conspiring, confederating and helping one another, with intent to kill, treachery and by taking advantage of their official positions and superior strength, using their service revolvers did then and there willfully, unlawfully and feloniously shoot one PARESEO TAYAG Y ANGELES hitting him in the different parts of his body inflicting upon his person several gunshot wounds which caused his death to the damage and prejudice of his heirs. 2 After pleas of not guilty and after due trial, accused BUENSUCESO SUCESO, AGUILAR, IZON and JOSON were found guilty of Murder and, as aforestated, were sentenced to suffer reclusion perpetua. MALLARI and DE LA CRUZ were both absolved on reasonable doubt. 3 Three separate Briefs were filed: the first was for IZON and JOSON; the other was for BUENSUCESO; and the third one was for AGUILAR. The Solicitor General filed a consolidated Brief. The prosecution synthesized the occurrence as follows: Between 5:00 and 6:00 o'clock in the afternoon of April 21, 1967, while prosecution witness Apolonio Salvador was in his small store beside the market near the municipal building of Dinalupihan Bataan, he saw Patrolman Rodolfo Aguilar and Pariseo Tayag con. conversing as they were walking side by side, each resting his hand on the shoulder of the other, going towards the municipal building (pp. 22-24, tsn, July 25, 1967). Pat. Aguilar was trying to take the fan knife of Tayag, but could not take it because Tayag prevented him from taking it by gripping it with his right hand and swaying it left and right as ff playing (p. 24, tsn, Id.). Tayag did not want to , the give knife because he was not making any trouble (p. 25, tsn., Id.). At the suggestion of Pat. Aguilar, Tayag readily agreed to go to the office of the chief of police (pp. 25, 26, tsn, Id.). When they arrived in the said office, there were two persons there, namely, Enrique Mallo and Pat. Eduardo Mallari (p. 27, t.s.n. Id.). Pat. Mallari was then the municipal guard and in uniform (p 8, tsn., July 26, 1967). Subsequently, a heated argument took place between Pat. Aguilar and Tayag arising from the latter's refusal to give his fan knife to the former (p. 28, tsn July 25, 1967). later on, Pat. Fidel de la Cruz appeared at the doorway (pp. 30, 32, tsn Id.). Thereafter , when Tayag was about to leave the office, Chief of Police Adriano Canlas arrived and inquired what the trouble was an about (p. 31, tsn, Id.). Pat. Aguilar answered that the two of them (Aguilar and Canlas) had been cursed by Tayag (p. 32, tsn Id.). Tayag asserted that he did not curse either of them, but that Aguilar was to force him to give up his knife (p. 32, tsn, Id.). Thereafter Tayag hurriedly left the office. He was followed by Pat. Aguilar, Mallari and de la Cruz who walked fast, with Aguilar and Mallari holding guns (p. 33, tan, Id.). After having gone out of the building, Pat. Aguilar fired his gun upward (p. 34, tsn, Id.). Hearing the shot, Tayag turned about, then retreated backwards until he reached the fence of the plaza (Id.). When Tayag was near the wooden fence about a knee high, Pat. Aguilar aimed his gun at Tayag and fired, hitting him above the right knee (pp. 34, 36, tsn, Id.). Tayag continued to run towards his house followed by de la Cruz without a gun (p. 36, tsn, Id.). Pat. Mallari went to the waiting shed to intercept Tayag (Id.). Pat. Mallari had a gun at that time (p. 37, tsn, Id.). Pat. Aguilar followed Mallari in the shed and they took opposite sides of the road, that is, Rizal Street, in front of the Catholic Church (Id.). Then there were several successive gun shots, more or less nine in number (p. 39 tsn, tsn, Id.). After the commotion, Tayag was seen lying prostrate near the back of a jeep parked at the corner of Rizal and San Juan Streets, about 60 meters away from the municipal building (p. 38, tsn. Id.). Pat. de la Cruz took the knife from Tayag and gave it to Pat. Jose Buensuceso (p. 39, tsn, Id.), who at the precise moment had his revolver tucked in its holster (p. 42, tsn, Id.). Pat. Conrado Izon and Pat. Ernesto Jose were also seen in the immediate vicinity of the crane scene by witness Apolonio Salvador (Id.). Witness did not know, however, where Pat. Izon and Joson came from (p. 45, tsn, Id.). Both had their guns in their holsters (Id.). Later, at about 5:50 that afternoon of April 21, 1967, Sgt. Romualdo-Espiritu of the P.C. stationed at Balanga Bataan, arrived at the corner of Rizal and San Juan Bautista streets in Dinalupihan (pp. 1, 2, tsn, July 26, 1967). He noticed a commotion in the plaza and as a peace officer he inquired from people around what was going on (p. 2, tsn, July 26, 1967). He was told that a certain person was shot (Id.). He went to the place where people were converging and found Pariseo Tayag dead lying down on a pool of blood, some 10 to 15 yards from the corner of Rizal and San Juan Bautista Streets (Id.). He ordered that deceased be brought to the municipal health center where a cursory inspection of the cadaver was made by the Municipal Health Officer, Dr. Sta. Maria (Id.) and photographs (Exhs. "F" and "G", p. 6, tan, Id.) taken of the deceased (p. 5, tsn, Id.). Thereafter, he proceeded to the municipal building and investigated (p. 2, tsn, Id.). Upon learning that some police officers were involved he investigated the suspects. He first saw Pat. Aguilar who was then recounting the incident to Pat. de la Cruz (Id.). He asked for his service pistol inspected the cylinder and found three (3) empty shells and three (3) live ammunitions (Id.). He smelled the barrel Of the gun and found out that it had been fired (Id.). Then he proceeded to the office of the chief of police (p. 3, tsn, Id.) Moments later, Pat. Buensuceso arrived (Id.). He asked for Buensuceso's service revolver, inspected the cylinder, and found four (4) empty shells and two (2) live ammunitions (Id.). He smelled the barrel of the gun and found that it also had been fired. He also asked for the service revolver of Pat. de la Cruz but the latter manifested that he had no firearm at the time but pointed to Pat. Mallari from whom he (Pat. de la Cruz) got a pistol while they were on the ground door of the municipal building (Id.). Sgt. Espiritu then proceeded to the Patrol base or detachment of the 161st PC Co. at Layac Dinalupihan, Bataan and from there he reported the incident by calling up headquarters in Balanga, Bataan (Id.), and at the same time asked for investigators to come over (Id.). Later on, while Sgt. Espiritu was preparing an on-the-spot report in the office of the Dinalupihan Police Dept. Capt. Antonio Resurreccion of the 161st PC Co. arrived with his investigators (Id.). Sgt. Espiritu turned over to Capt. Resurreccion the revolvers of Aguilar and Buensuceso, which are both Smith and Wesson Cal. 38, Sgt. Espiritu Identified in court as Exhibit "C"a Smith and Wesson cal. 38 revolver, with Serial No. K617092 as belonging to Pat. Buensuceso, and as Exhibit 'D' the other revolver with Serial No. C-73130, Cal. 38, as belonging to Pat. Aguilar (p. 4, tsn, July 26, 1967). Jose Penaflor, Acting Chief of Police of Dinalupihan, Bataan (pp 12, 13, 14, tsn, Id.) and the municipal treasurer, Ludovico Simpao (pp. 17, 18, tsn, Id.), testified that on the basis of the memorandum receipt and records in their offices (Exhibits "H", "I", "J"), the respective firearms issued to the policemen of Dinalupihan, Bataan, bear the following serial numbers: Eduardo Mallari Serial No. L- 597615 (Exh. H-1; J-4); Rodolfo Aguilar Serial No.C 73130; Jose Buensuceso Serial No. K-617092 (Exh H-3; J-3) ; Ernesto Joson Serial No. K-617201 (Exh. H-4; J-3) ; Conrado Izon Serial No. 73534 (Exh. H-5; 1-1) ; The deceased Pariseo Tayag died of gunshot wounds as found by Dr. Ceferino Cunanan, a medico-legal officer of the National Bureau of Investigation. His findings and conclusions are reflected in his necropsy report No. N-67-445 (Exh. L; p. 5, tsn., Aug. 15, 1967), as follows: 1. Entrance located at the scapular region, left, directed forward slightly upward and medially; ... 2. Entrance located at the infrascapular region, left, * * * directed forward, upward and medially; * * * ... 3. Entrance located at the thigh, right, distal 3rd, antero-lateral aspect, *** directed backward, downward and laterally; ... 4. Entrance located at the leg, right, proximal ward, antero-lateral aspect * * * directed upward, backward and laterally; * * * fracturing communitedly the

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upper 3rd of the tibia and a slug was recovered at a point at the level of the knee, *** Dr. Cunanan testified that gunshot wound No. 4 is not a through and though wound, but instead the bullet was recovered with its course at Exhibits Q-3 and S (pp. 7, 8, tsn, Aug. 15, 1967). The bullet is preserved in their office and the photo of the slug is shown in Exhibits T and T-1 (p. 8, tsn, Id.). He explained that gunshot wounds Nos. 1 and 2 were inflicted by a .38 caliber bullet (p. 8, tsn, Id.), while wound No. 3 may have been inflicted by a .32 or .38 cal. bullet. Wound No. 1 must have been fired by an assailant behind and to the left of the victim (p. 9, tsn, Id.). The shot causing Wound No, 2 must have been fired by an assailant while in the same position when Wound No. 1 was inflicted on the victim. Wound No. 3 is located on the lower extremity which is movable part of the body and could be inflicted on the victim assuming different positions. Wound No. 4 could be inflicted when the victim was lying down and assailant was in a lower position than the victim both standing erect face to face. Wounds No. 1 and 2 were fatal. Wound No. 1 involves the heart and lungs and Wound No. 2 involves the lungs, spleen and the liver (pp. 9, 10, tsn, Id.). Lunges diphenylamine tests were made on the dorsal aspect of both hands of the accused from the wrist joint to the fingertips, which produced the following results, to wit: Chemistry Report No. G-67-204-Conrado Izon Left Hand Positive Right Hand Negative Chemistry Report No. G-67-203-Fidel de la Cruz Negative results Chemistry Report No. G-67-202-Ernesto Joson Left Hand Positive Right Hand Negative Chemistry Report No. G-67-200 Eduardo Mallari Negative results. Filemon Mamaril, Supervising Ballistician and Chief, Forensic Ballistic of the National Bureau of Investigation, who conducted a ballistic examination of the firearms and shells and ammunitions received from the office of the provincial fiscal of Bataan in connection with this case, rendered his Ballistic Reports Nos. B-41-867 and B-44-867 (Exh. V, pp. 4, 5, tsn, April 17, 1968). Exhibit W which is a deformed jacketed bullet which was received from Dr. Cunanan (p. 6, tsn, Id.), showed that it was fired from the Smith and Wesson revolver, Cal. 38, bearing Serial No. K-617092 (p. 7, tsn, Id.). He also found that the empty shells, Exhs. "Y", "Y-1" and "Y-2" and "Y-3" were fired from the revolver marked Exh. "C" (Id.). The three empty shells, Exhs. "Y-4", "Y-5" and "Y-6" were fired from a Smith and Wesson revolver, Cal. 38, with Serial No. C73130 (pp. 123, 124, tsn., April 18, 1969) marked Exh. "D" (p. 4, tsn., July 26, 1967). 4 The testimony of one of the accused, Eduardo MALLARI, in his defense was summarized by the Trial Court thus: In his defense, the accused Eduardo Mallari testified that at about 5:30 o'clock in the afternoon of April 21, 1967, he closed the office of the Chief of Police on the 2nd floor of the municipal building. Then he went down to the office of the Deputy Chief of Police on the ground floor. While descending to the ground floor, he saw a person in the office of the Deputy Chief of Police facing Cpl. Aguilar. The person was holding a knife and cursing the Chief of Police. Suddenly the person raised his right hand with the knife stating, "You can only get this from me, Aguilar, when I am already dead." Then the person and Aguilar pursued one another around the table, the person with a knife as the pursuer. He saw the person pushed aside Aguilar and stabbed him but Aguilar was not hit. Thereupon Aguilar ran towards the outside of the building. The person followed Aguilar. At this juncture Pat. Fidel de la Cruz arrived. De la Cruz asked Mallari what happened. As De la Cruz and Mallari were conversing, Mallari heard a shot fired outside the building. Thereupon, De la Cruz grabbed Mallari's gun and rushed outside the building. Mallari also ran outside of the building. He saw the person, whom he later recognized as Pariseo Tayag, running away. He heard other shots, not less than five of them. He was short distance from the main door of the municipal building and he saw a commotion of the people. Fidel de la Cruz returned Mallari's gun after the shooting and when they were already inside the building. Thereafter Sgt. Romualdo Espiritu of the P.C. arrived. Sgt. Espiritu got Mallari's gun from De la Cruz, smelled it, then handed it back to De la Cruz, saying: "It was not fired". Another defense witness, Corazon Cruz, a waitress, testified that the deceased together with some companions had drunk beer inside Freddie's Restaurant before the shooting incident. After her testimony, the defense without presenting the other accused on the witness stand, offered its evidence and submitted the case for decision. Accused-appellants, in their respective Briefs, assigned the following errors: 1) By IZON and JOSON: I: THE LOWER COURT ERRED IN HOLDING THE APPELLANTS CONRADO IZON AND ERNESTO JOSON GUILTY OF THE CRIME CHARGED IN THE INFORMATION PENALIZED UNDER ARTICLE 248 OF THE REVISED PENAL CODE. II: THE LOWER COURT LIKEWISE ERRED IN FINDING THE APPELLANTS IZON AND JOSON AS CO. PRINCIPAL IN THE COMMISSION OF THE CRIME. 2) By BUENSUCESO: I :THE LOWER COURT ERRED IN GIVING UNDUE CREDENCE TO THE NECROPSY REPORT EXHIBIT L) OF DR. CEFERINO CUNANAN AND THE BALLISTICS REPORT (EXHIBIT V) OF THE BALLISTICIAN FILEMON MAMARIL, AS WELL AS THEIR TESTIMONIES AND IN RELYING THEREON OR MAKING THE SAME AS ITS BASIS FOR CONCLUDING THAT THE SLUG (EXHIBIT W) WHICH WAS ALLEGEDLY RECOVERED FROM THE KNEE OF THE ALLEGED VICTIM WAS FIRED FROM THE REVOLVER (EXHIBIT C) OF THE APPELLANT JOSE BUENSUCESO. II :THE TRIAL COURT ERRED IN RULING THAT THE TWO FATAL WOUNDS WHICH CAUSED THE INSTANTANEOUS DEATH OF THE ALLEGED VICTIM WERE INFLICTED BY BULLETS FIRED FROM THE GUNS OF THE APPELLANTS JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and ERNESTO JOSON. III :THE COURT BELOW ERRED IN CONVICTING THE APPELLANT JOSE BUENSUCESO FOR MURDER NOTWITHSTANDING ITS OWN FINDING THAT THERE WAS NO CONSPIRACY ESTABLISHED BY THE PROSECUTION, ASIDE FROM THE FACT THAT THERE WAS ABSOLUTELY NO EVIDENCE ON RECORD TO SHOW THAT HE ACTUALLY PARTICIPATED IN THE KILLING OF THE VICTIM. 3) By AGUILAR: I :THE LOWER COURT ERRED IN HOLDING THAT THERE WAS TREACHERY, MORE SPECIFICALLY ON THE PART OF DEFENDANT AGUILAR THAT WOULD QUALIFY THE CRIME TO MURDER. II:THE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED AGUILAR THOUGH ACTING INDEPENDENTLY SHOULD BE LIKEWISE HELD LIABLE AS THE REST OF THE ACCUSED FOR THE DEATH OF THE VICTIM. III :THE LOWER COURT ERRED IN NOT HOLDING THAT DEFENDANT WAS MERELY ACTING IN LEGITIMATE SELF-DEFENSE WHEN HE INFLICTED THE WOUND ON THE VICTIM. The assigned errors find no support from the evidence on record. Firstly, all four appellants were seen by Apolonio Salvador, one of the prosecution eyewitnesses, to have been present at the crime scene at the nine of the incident, armed with .38 caliber service revolvers. 5 Secondly, the autopsy conducted on the body of the victim showed that he died as a result of four (4) gunshot wounds, 6 two of which were fatal. 7 The examining physician testified that the wounds were inflicted by .38 cal. revolvers and that a deformed bullet, also .38 cal., which caused wound No. 4, was recovered (Exhibit "W" ). Thirdly, upon an on-the-spot inspection by PC Sgt. Romualdo Espiritu soon after the incident, he found that the service pistol of AGUILAR had been fired and that its cylinder contained three (3) empty shells and three (3) live ammunitions. Similarly, he smelled the barrel of BUENSUCESO's revolver and found that it, too, had been fired and that its cylinder had four (4) empty shells, and two live ammunitions. 8 Fourthly, ballistic examination disclosed that the deformed jacketed bullet recovered from the knee of the victim was fired from a .38 cal. Smith & Wesson revolver, with Serial No. K-617092, (Exhibit "C") issued to BUENSUCESO; that the four (4) empty shells (Exhibits "Y", "Y-1", "Y-2", and "Y-3") were fired also from BUENSUCESO's firearm; while the three (3) other empty shells (Exhibits "Y-4", "Y-5", and "Y-6") were fired from AGUILAR's Smith & Wesson revolver, cal. 38, with Serial No. C-73130 (Exhibit "D"). 9 Fifth, the Chemistry Reports on the paraffin tests showed the following results, particularly in respect of IZON and JOSON: Chemistry Report No. G-67-204 Conrado Izon Left Hand Positive Right Hand Negative Chemistry Report No. G-67-203 Fidel de la Cruz Negative Results. Chemistry Report No. G-67-202 Ernesto Joson Left Hand Positive Right Hand Negative Chemistry Report No. G-67-200 Eduardo Mallari Negative Results. 10 (Emphasis ours) The positive finding, insofar as IZON and JOSON are concerned, confirm prosecution witness Apolonio Salvador's declaration that they were in the vicinity of the crime at the time of its occurrence. Although they had their guns in their holsters when Salvador saw them the fact remains that, upon examination, their left hands were positive for nitrates.

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AGUILAR's plea of self-defense is evidently unmeritorious. AGUILAR followed the victim right after the latter hurriedly left the office of the Chief of Police. Once outside the building, AGUILAR fired his gun upward. And when the victim turned around and retreated backwards, AGUILAR fired upon him hitting him above the right knee. If, as contended, the victim had thrust his knife at AGUILAR inside the Municipal Building malting the former the unlawful aggressor, to be sure, the incident would have happened there and then and not some 60 meters away from the building. We discredit AGUILAR's testimony that it was the victim who had pursued him rather than the other way around. BUENSUCESO's contention that there is serious doubt that the body autopsied was that of the victim hardly deserves even passing consideration. All told, there is ample evidence establishing that AGUILAR, BUENSUCESO, IZON, and JOSON had fired their guns at the victim hitting him on different parts of his body. True, it has not been established as to which wound was inflicted by each accused. However, as this Court has held, where the victim died as a result of wounds received from several persons acting independently of each other, but it has not been shown which wound was inflicted by each assailant, all of the assailants are liable for the death of the victim. The crime is Murder, qualified by treachery. The victim was already retreating backwards until he reached the fence of the town plaza when AGUILAR fired his revolver at the former hitting him above the right knee. 12 Notwithstanding that he was already hit and wounded, and possibly immobilized, he was still subjected to successive shots as shown by the wounds that he had received, even at his back. Certainly, the means employed by the accused-appellants tended directly and specially to insure the execution of the crime without risk to themselves arising from any defense which the victim might have made. The killing of the victim was aggravated by abuse of superior strength as shown by the number of assailants, which circumstance, however, is absorbed by treachery. 14 No other circumstances modify the commission of the crime. WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to the victim's heirs is hereby increased to P30,000.00. 15 With proportionate costs. G.R. No. L-74324 November 17, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants. The Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellants. MEDIALDEA, J.: For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows: That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda. That the crime was committed with the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation and superior strength, and the means employed was to weaken the defense; that the wrong done in the commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani Miranda. CONTRARY TO LAW (p. 1, Records). Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows: WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion perpetua together with the accessories of the law for both of them. The accused are solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P5,000.00. Let the preventive imprisonment of Pugay be deducted from the principal penalty. Cost against both accused. SO ORDERED (p. 248, Records). Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by the court a quo: 1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION. 2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE. 3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo). The antecedent facts are as follows: The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel. Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood. Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him. The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame. The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof. The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the two accused and five other persons to the Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody. After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of the decision of the court a quo to be without merit. It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense. While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense. Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records). Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the deliberate nonpresentation of these persons raises the presumption that their testimonies would be adverse to the prosecution. There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the

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deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as prosecution witnesses in the information filed. Considering that their testimonies would be merely corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797).<re||an1w> Besides, the matter as to whom to utilize as witness is for the prosecution to decide. Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience. Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them. In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on crossexamination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he noticed a commotion. However, explaining this testimony on re-direct examination, Gabion stated: Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading comics? A. I put down the comics which I am reading and I saw what they were doing. Q. According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with Pugay, is that correct? A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so. Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not to pour gasoline. That is what I want to know from you, if that is true? A. Yes, sir. Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour gasoline unto him? A. I do not know that would be that incident. Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually? A. Because I pity Bayani, sir. Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani? A. I was not told, sir. Q. Did you come to know..... how did you come to know he was going to pour gasoline that is why you prevent him? A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline. Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that correct? A. Yes, sir. Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick up the can of gasoline. A. I saw him pouring the gasoline on the body of Joe. Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the body of Bayani? A. Yes, sir (Tsn, July 30, 1983, pp. 32-33). It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire. However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accusedappellants immediately before the commission of the crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371). The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows: A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellowbeings, would ever be exposed to all manner of danger and injury. The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree. There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the incident. On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make. There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, 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. As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).<re||an1w> The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum. The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00. Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the court a quo. Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-appellants. G.R. No. 86941 March 3, 1993 PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. TEODORO BASAY @ "DORO" and JAIME RAMIREZ @ "NEBOY", accused, JAIME RAMIREZ @ "NEBOY" accused-appellant. The Solicitor General for plaintiff-appellee. Public Attoney's Office for accusedappellant. DAVIDE, JR., J.: Teodoro Basay and Jaime Ramirez were charged with Multiple Murder with Arson in a criminal complaint 1 filed on 24 March 1986 with the Municipal Circuit Trial Court (MCTC) of Pamplona-Amlan-San Jose in the Province of Negros Oriental for having allegedly killed the spouses Zosimo and Beatrice

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Toting and their six-year old daughter, Bombie, and for having burned the said spouses' house to conceal the crime; as a consequence of such fire, the spouses' other daughter, Manolita, was burned to death. On 31 March 1986, the MCTC issued a warrant for the arrest of the accused; no bail was recommended. 2 It appears, however, that the accused had earlier been apprehended on 6 March 1986 by elements of the Philippine Constabulary (PC) and Civilian Home Defense Forces (CHDF) and were detained at the Pamplona municipal jail. On 15 April 1986, the accused filed a Waiver of Preliminary Investigation 3 which prompted the MCTC, the following day, to order the clerk of court to forward the records of the case to the Office of the Provincial Fiscal. 4 Meanwhile, on 14 August 1986, the Integrated National Police (INP) Station Commander of Pamplona amended the complaint by including therein the name of another victim, Manolo Toting, who suffered second and third degree burns because of the burning of the house. 5 On 11 December 1986, the Second Assistant Provincial Fiscal of Negros Oriental filed with the Regional Trial Court (RTC) of Negros Oriental an Information for Multiple Murder and Frustrated Murder with Arson 6 against the accused. The accusatory portion of the Information reads: . . . That on or about March 4, 1986, at sitio Tigbao, Barangay Banawe, Pamplona, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and acting in common accord, with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously assault, attack, stab and hack with the use of a bolo and sickle, with which the accused were then respectively armed and provided, one ZOSIMO TOTING, SR., thereby inflicting upon the victim hack wound, neck posterior area 5" long, 3" depth, hack wounds, left upper back 3" long, 4" depth, stab wound, thru and thru, lower abdomen, 4" width, exit lower back 1" width, 90% 2nd and 3rd degree burns of the body, and which wounds caused the death of said Zosimo Toting, Sr., immediately thereafter; one BEATRICE TOTING, thereby inflicting upon the victim hacking (sic) wound, neck posterior area, 5" long, 6" depth, incised wound, epigastric area 11" long, 4" depth, exposing vital organs, lower abdomen, 11" long, 4" depth exposing intestines, 90% 2nd and 3rd degree burns of the body, and which wounds caused the death of said Beatrice Toting immediately thereafter; one BOMBIE TOTING, thereby inflicting upon the victim infected hack wound from the right anterior lumber area transecting mid-abdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle, and which wounds caused the death of said Bombie Toting shortly thereafter; and in order to cover-up the heinous crime committed, the above-named accused, conspiring and confederating together and acting in common accord, did then and there willfully, unlawfully and feloniously set to fire the house of the aforesaid victim (sic) spouses Zosimo Toting, Sr. and Beatrice Toting, thereby razing it to the ground, and as a consequence thereto MANOLITA TOTING suffered Third degree burns, all burn (sic) body, head, extremities or 100% burns, and which wounds caused the death of said Manolita Toting immediately thereafter and also causing injuries to MANOLO TOTING, to wit: 20% 2nd and 3rd degree burns on the upper extremity bilateral, posterior shoulder, left and back, and which wounds would have caused the death of victim Manolo Toting, thus performing all the over acts of execution which would have produced the crime of Murder as a consequence, but nevertheless did not produce it by reason of causes independent of the will of the perpetrator, that is, the timely medical assistance extended to said Manolo Toting which prevented his death. Contrary to Article 248 in relation to Articles 6, 48 and 50 of the Revised Penal Code. The case was docketed as Criminal Case No. 7411 and was raffled off to Branch 40 of the said court. After both accused entered a not guilty plea during their arraignment on 23 February 1987, 7 trial on the merits ensued. The prosecution presented Dr. Edgardo Barredo, MCTC Judge Teopisto Calumpang, Jaime Saguban, Sgt. Reynaldo Tabanao, Dr. Edgar Gantalao and Dr. Lucio Togonon as its witnesses for the evidence in chief, and Judge Calumpang and Elpedio Catacutan in rebuttal; for its surrebuttal, Pfc. Urbano Cavallida was presented. On the other hand, the accused testified for the defense together with witnesses Joven Lopez and Maxima Basay. Accused Ramirez took the witness stand again in surrebuttal. On 15 December 1988, the trial court promulgated its Decision, dated 14 December 1988, acquitting accused Teodoro Basay but convicting accused Jaime Ramirez. 8 It s dispositive portion reads: WHEREFORE, the prosecution having failed to prove the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated Murder With Arson against the accused Teodoro Basay, this Court hereby finds said accused Teodoro Basay NOT GUILTY and orders his immediate release from detention. The prosecution has proven the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated Murder With Arson against accused Jaime Ramirez (sic), this Court finds him GUILTY to (sic) said crime and hereby sentences him to suffer the penalty of life imprisonment and to indemnify the heirs of the victims in the sum of Thirty Thousand (P30,000.00) Pesos as his civil indemnity. SO ORDERED. 9 The evidence for the prosecution upon which the decision is based is summarized in detail in the trial court's decision and is further condensed in the Appellee's Brief 10 as follows: On March 6, 1986, Zosimo Toting Jr. reported to the Nabalabag Philippine Constabulary Patrol at Pamplona, Negros Oriental, that his parents had been killed and their house at Tigbaw, [Pamplona] Negros Oriental, burned. This prompted PC Sgt. Reynaldo Tabanao, Sgt. Nestorio Rubia, Jaime Saguban and three members of the Civilian Home Defense Force to go to Tigbaw, [Pamplona] Negros Oriental, to investigate the incident (TSN, January 20, 1988, p. 5). Upon arriving at Tigbaw, they found a burned house and several dead bodies. The trial court identified the four (4) fatalities and their injuries as follows: (1) Zosimo Toting, Sr., with hack wound neck, posterior area, . . . hack wound, left upper back, . . . stab wound, through and through, lower abdomen, . . . 90% second and third degree burns of the body; (2) Beatrice Toting, hack wound, neck posterior area . . . incised wound, epigastric area . . . exposing vital organs, lower abdomen, . . . exist (sic) lower back, 90% second and third degree burns of the body; (3) Bombie Toting, inflicted hack wound from the anterior lumbar area transecting mid-abdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle; (4) Manolita Toting, third degree burns, all burned body, head, extrimities (sic) or 100% burns. Manolo Toting did not die but suffered 20% second and third degree burns on the upper extremity bilateral, posterior shoulder, left and back. (Records. p. 213). Zosimo Toting, Sr. Beatrice Toting, Manolita Toting and Manolo Toting were found near the vicinity of the burned house. About forty (40) meters away, the investigating officers found six year old Bombie Toting suffering from serious hack wounds (TSN, January 20, 1988, p. 18). The young girl said that she had been in this condition for one and a half days already. Bombie Toting related to Sgt. Tabanao that on March 4, 1986 at 7:00 o'clock in the evening, appellant and Teodoro Basay killed her parents and burned their house (TSN, January 20, 1988, p. 18, Records, p. 9). On the same day the investigating officers went to the appellant's house. They saw appellant fixing the roof of his house and when appellant saw them, he went down and tried to ran (sic) away (TSN, January 20, 1988, p. 22). Appellant was turned over to the Pamplona Police Station (TSN, January 20, 1988, p. 25). Bombie Toting was brought to the hospital but due to the gravity of her injuries she died on March 7, 1986 at 1:40 P.M. (Records, p. 12, Exhibit I). Appellant was brought into the chamber of Judge Teopisto Calumpang, the municipal circuit trial judge of Pamplona, Amlan, and San Jose, on March 14, 1986. He was accompanied by Mr. Elpedio Catacutan who acted as appellant's counsel (TSN, June 6, 1988, p. 6). They brought with them an affidavit previously typed by a police investigating officer. The Judge then made the court interpreter translate the allegations of the sworn statement into the local dialect for appellant (TSN, June 6, 1988). Thereafter, in the presence of the Judge, appellant and Mr. Catacutan signed the affidavit. (TSN, January 20, 1988, p. 14). Appellant and counsel also signed the vernacular translation of Exhibit F (Records, p. 12). Upon the other hand, the evidence for accused Jaime Ramirez is substantially summarized in the Appellant's Brief 11 in this wise: Evidence for the Defense: xxx xxx xxx Accused Jaime Ramirez testified that he was cooking food for the pig when the armed uniformed men arrested him on March 5, 1986 and was brought (sic) to the Nabalabag PC Detachment where he was maltreated. Later, he was brought to Municipal (sic) Jail where he stayed for one month and 23 days. Queried on the "Joint Waiver", this witness said he did not read it because he did not know how to read. When it was read to him, he did not understand it because it was read in English. Elpedio Catacutan was not his lawyer and he did not know him (TSN, March 5, pp. 3, 5-6, 9-10). On cross-examination, this witness said he reached Grade II and knows how to write his name. He was alone at the time he was arrested. He was arrested ahead of Teodoro Basay and those who arrested him where (sic) not the same persons who arrested Teodoro Basay. He first saw Elpedio Catacutan in the Pamplona Municipal Hall when Elpedio was going upstairs. When he signed Exhibit "F", Catacutan was in front of him. They did not converse with each others (sic). He did not engage Catacutan to assist him, nor solicit his services. He does know (sic) any one who solicited Catacutan's services for him. He did not ask the Judge (Calumpang) that a lawyer

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be designated to help him in connection with the affidavit. The Pamplona Judge did not offer to give him a lawyer to assist him in the execution of the affidavit (TSN, October 4, 1988, p. 4). 12 Jaime Ramirez is a farmer and at the time he testified on 8 March 1988, was nineteen (19) years old and single. 13 The prosecution did not rebut his claim that he had only finished Grade II and that he does know how to read. He, however, understands the Cebuano dialect. 14 The Exhibit "F" referred to above is the Sworn Statement, 15 in English, of accused Jaime Ramirez taken in the Pamplona police station on 7 March 1986 and subscribed and sworn to only on 14 March 1986 before Judge Teopisto L. Calumpang of the MCTC of Pamplona-Amlan-San Jose. The trial court described this document as the Extra-Judicial Confession 16 of Ramirez. The Joint Waiver (Exhibit "G") mentioned in the testimony of Jaime Ramirez is in the Cebuano dialect and was signed by accused Basay and Ramirez on 7 March 1986. Both accused state therein that for their safety and security, they voluntarily decided to be detained and that they killed the spouses Zosimo Toting and Betty Toting and thereafter burned the spouses' house; this fire resulted in the death of one and the hospitalization of two Toting children. 17 The trial court disregarded this Joint Waiver insofar as it tended to incriminate the accused "because when they signed said Joint Waiver, they were not represented by counsel;" thus, the same was prepared in violation of "Section 12, Article 3 of the Bill of Rights of the 1987 Constitution." 18 There being no other evidence against Basay, the trial court acquitted him. However, it admitted in evidence the so-called extra-judicial confession of Jaime Ramirez, considered as part of the res gestae the alleged statement given by Bombie Toting to PC Sgt. Reynaldo Tabanao and Jaime Saguban identifying Ramirez and Basay as the perpetrators of the crime and considered as flight which is indicative of guilt Ramirez's running away when he saw the law enforcers on 6 March 1986. It further ruled that the latter signed the extra-judicial confession voluntarily and in the presence of Elpedio Catacutan, the COMELEC registrar of Pamplona "a barister (sic) who appeared as counsel for accused Jaime Ramirez;" hence it is admissible against the latter. 19 On the other hand, the trial court did not admit the statement of Bombie Toting as a dying declaration but merely as part of the res gestae because the prosecution failed to prove two (2) of the requisites for the admissibility of a dying declaration, viz., that the statement was given under consciousness of an impending death and that Bombie Toting is a competent witness. 20 Accused Jaime Ramirez neither filed a notice of appeal nor orally manifested his intention to appeal. However, on 31 January 1989, the trial court handed down an order directing the clerk of court to transmit to this Court the entire records of the case because in view of the penalty imposed life imprisonment "such Decision is subject for automatic review by the Supreme Court." 21 This of course is erroneous as, pursuant to Section 10, Rule 122 of the Rules of Court, the automatic review of a criminal case is applicable only where the penalty of death has been imposed which, nevertheless, is now banned under Section 19 (1), Article III of the 1987 Constitution. In the interest of justice, however, We accepted the appeal in the Resolution of 8 May 1989. 22 In his Appellant's Brief, 23 Jaime Ramirez, hereinafter referred to as the Appellant, imputes upon the trial court the commission of this lone error: THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY AS CHARGED ON THE BASIS OF EXHIBIT "F" (AFFIDAVIT) WHICH WAS EXECUTED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND ON THE BASIS OF HEARSAY EVIDENCE AND ON THE PRESUMPTION OF GUILT. Appellant contends that his so-called extra-judicial confession Exhibit "F", was executed in blatant disregard of his constitutional right to counsel and to remain silent during custodial investigation. It is therefore inadmissible in evidence. 24 Without the said confession, the only piece of evidence which seems to point to his guilt is the alleged statement of Bombie Toting. Appellant asserts, however, that the said statement was "very doubtful and . . . no reasonable mind would conclude that she was candidly truthful; "hence, her statement, besides being hearsay as it came from a person who was not presented in court to testify, should not have been taken at "face value against any of the accused, much less against the appellant." 25 Besides, the appellant asserts that same statement was not used against his co-accused Basay who was, unlike him, acquitted by the trial court. As to his having run away upon seeing the armed law enforcers, appellant claims that he did so out of fear as the latter were armed. 26 On the other hand, it is maintained by the People, in the Appellee's Brief 27 submitted by the Office of the Solicitor General, that the appellant executed the extra-judicial confession voluntarily and without duress; in signing such confession, he was accompanied by a certain Mr. Catacutan, a non-lawyer, inside the chambers of Judge Calumpang "an environment . . .other than vindictive and oppressive which the courts desired to guard against in Miranda vs. Arizona, 384 US 436." 28 As to Bombie's statement, it is claimed that the same should be considered as a dying declaration. We find merit in the appeal. 1. Jamie Ramirez's sworn statement or extra-judicial confession was prepared on 7 March 1986 at about 11:00 o'clock in the morning in the Pamplona police station. Pertinent portions thereof read as follows: xxx xxx xxx PRELIMINARY MR. JAIME RAMIREZ, you are now under investigation in connection with the death of the couple and the burning of their house, ZOSIMO TOTING and BEATRICE TOTING alias BETTY TOTING on March 4, 1986 at about 7:00 o'clock in the evening at sitio Togbao, Barangay Banawe, Pamplona, Negros Oriental. You are also informed that under our new constitution you have the right to remain silent and not to answer questions which will incriminate you and to have a counsel of your own choice to assist you in this investigation, do (sic) you aware of this? ANSWER Yes. Q You are also informed that whatever statement you may offer in this investigation it (sic) might be used as evidence in your favor or against you in the future, do (sic) you aware of this this (sic)? A Yes. Q After you have informed (sic) of your rights are you willing to proceed with this investigation of yours even if you have no counsel of your own choice that will assist you in this investigation? A Yes. I don't need any counsel in this investigation because I will just tell the truth. 1. Question If so, please state your name, age, and other personal circumstances? Answer Jaime Ramirez y Tano, 19 years old, single, Filipino, farmer and a resident of sitio Palale, Barangay San Isidro, Pamplona, Negros Oriental. xxx xxx xxx 11. Q What more can you say? A No more. I proved that my statement is correct I signed this 7 March 1986 (sic), at Pamplona, Negros Oriental. (Sgd.) JAIME T. RAMIREZ (TYP) JAIME T. RAMIREZ Affiant NOTE: ASSISTED BY: (Sgd.) ELPEDIO B. CATACUTAN (TYP) ELPEDIO B. CATACUTAN Counsel of the accused SUBSCRIBED AND SWORN to before me this 14th day of March 1986, at Pamplona, Negros Oriental, Philippines. (Sgd.) TEOPISTO L. CALUMPANG (TYP) TEOPISTO L. CALUMPANG Mun Trial Circuit Judge CERTIFICATION I HEREBY CERTIFY that I have personally examined the affiant and that I am satisfied that he voluntarily executed and understood his affidavit. (Sgd.) TEOPISTO L. CALUMPANG (TYP) TEOPISTO L. CALUMPANG Mun Trial Circuit Judge 29 We do not hesitate to rule that this purported extra-judicial confession belonging to appellant Jaime Ramirez and obtained during custodial interrogation was taken in blatant disregard of his right to counsel, to remain silent and to be informed of such rights, guaranteed by Section 20, Article IV of the 1973 Constitution the governing law at that time. Said section reads: Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The source of this provision is Miranda vs. Arizona; 30 in connection therewith, this Court stated in People vs. Caguioa 31 that: . . . The landmark opinion of Miranda vs. Arizona, decided in 1966, as noted above, the source of this constitutional provision, emphasized that statements made during the period of custodial interrogation to be admissible require a clear intelligent waiver of constitutional rights, the suspect being warned prior to questioning that he has a right to remain silent, that any utterance may be used against him, and that he has the right to the presence of a counsel, either retained or appointed. In the language of Chief Justice Warren: "Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a

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continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does not make (sic) may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." (citations omitted) Then, in Morales vs. Enrile, 32 this Court, in the light of the said Section 20, prescribed the procedure to be followed by peace officers when making an arrest and when conducting a custodial investigation. Thus: 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. This was reiterated in People vs. Galit. 33 In People vs. Nicandro, 34 this Court declared that one's right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Thus, it is not enough for the interrogator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the 1973 Constitution, now Section 12, Article III of the 1987 Constitution; the former must also explain the effects of such provision in practical terms e.g., what the person under interrogation may or may not do and in a language the subject fairly understands. The right "to be informed" carries with it a correlative obligation on the part of the police investigator to explain, and contemplates effective communication which results in the subject's understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence and other relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him at his request. 35 If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel. 36 That counsel must be a lawyer. 37 The foregoing pronouncements are now synthesized in paragraphs 1 and 3, Section 12, Article III of the 1987 Constitution, to wit: 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 xxx xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. The adjectives competent and independent, which qualify the kind of counsel an accused is entitled to during investigation, were not found in the previous Constitution. Their incorporation in the 1987 Constitution was thus meant to stress the primacy of this right to counsel. A close scrutiny of the questioned extra-judicial confession in the case at bar reveals all possible violations of the appellant's right to remain silent, to counsel and to be informed of such rights, and of the safeguards prescribed by this Court for the holding of custodial interrogations. (a) The interrogation was conducted and the confession was written in English a language the appellant, a farmer in a remote barangay of Pamplona, cannot speak and does not understand; he only finished Grade II. There is no evidence to show that the interrogator, who was not even presented as a witness and remains unidentified, translated the questions and the answers into a dialect known and fairly understood by the appellant. (b) Appellant was not told that he could retain a counsel of choice and that if he cannot afford to do so, he could be provided with one. (c) He did not sign any waiver of his right to remain silent and to counsel. (d) He was not assisted by any counsel during the investigation. Instead, a certain Elpedio Catacutan, who claimed to have appeared for him as a "friend-counsel," 38 was present only at the time that appellant was brought to the office of Judge Calumpang for the preparation of the jurat. It was precisely for this reason that the following notations were inserted above the jurat of the so-called extrajudicial confession: NOTE: ASSISTED BY: (Sgd.) ELPEDIO B. CATACUTAN (TYP) ELPEDIO B. CATACUTAN In reality, Catacutan signed not as counsel, but only as a witness. Thus: Q Do you recall having signed as a witness of an affidavit of one Jaime (sic) T. Ramirez which affidavit is now marked as Exhibit "F"? A Yes. Q Can you tell the court where did you sign that Exhibit "F"? A I signed this affidavit in the office of the Municipal Judge of Pamplona. 39 Moreover, it is to be observed that the appellant does not even know the said Elpedio Catacutan. 40 (e) Assuming arguendo that Elpedio Catacutan, may have been summoned to act as appellant's counsel, he was, nevertheless, not present during the custodial interrogation which, by the way, was conducted exactly a week before he appeared or more correctly, was made to appear before Judge Calumpang. His presence before the latter did not change the situation. As this Court stated in People vs. Burgos, 41 the securing of counsel to help the accused when the latter subscribed under oath to his statement at the Fiscal's Office was too late and had no palliative effect; it did not cure the absence of counsel at the time of the custodial investigation when the extra-judicial statement was being taken. (f) Furthermore, Elpedio Catacutan is not a lawyer; according to the trial court, he is "a barister (sic)." In fact, he candidly admitted that he is not a lawyer but that he obtained a law degree from the Siliman University in 1959. Unfortunately, however, he failed in three Bar Examinations. 42 (g) There is no showing that the so-called extra-judicial confession, which is in English, was correctly explained and translated to the appellant by Judge Calumpang. Although the latter claimed in his testimony on direct examination that he translated the same in the local dialect to the appellant before the latter affixed his signature thereto, 43 Elpedio Catacutan categorically declared that it was the interpreter, one Pedro Rodriguez, who translated it to the appellant. Thus: Q Who is the interpreter who made the translation? A Pedro Rodriguez. Q Were you there when the translation was made? A Sure. Q So it was not the Judge who made the translation, is that what you mean? A The translation was course (sic) through the interpreter. 44 (h) Finally, the kind of "advice" proffered by the unidentified interrogator belongs to that stereotyped class a long question by the investigator informing the appellant of his right followed by a monosyllabic answer which this Court has condemned for being unsatisfactory. The investigator gave his advice perfunctorily or in a pro-forma manner, obviously to pay mere lip service to the prescribed norms. As this Court observed in People vs. Newman, 46 this stereotyped "advice": . . . has assumed the nature of a "legal form" or model. Its tired, punctilious, fixed and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free and unconstrained giving up of a right is missing. Consequently, Exhibit "F", which is indisputably an uncounselled confession or admission, is inadmissible in evidence. The trial court, therefore, committed a fatal error in admitting it. 2. We harbor very serious doubts about the alleged statement given by Bombie Toting to Sgt. Tabanao and Jamie Saguban identifying the appellant and Teodoro Basay as the perpetrators of the heinous crime. In the first place, the trial court itself ruled that Bombie was not a competent witness. We agree with such a conclusion, not necessarily because she was only six (6) years old, but because her condition at the time she supposedly gave her statement made it impossible for her to have communicated effectively. She suffered the following injuries: Infected hack wound from the right anterior lumbar area transecting mid abdomen, inguinal area left to the medial thigh left through and through, with necrotic transected muscle. 47 She was taken from the crime scene only on 6 March 1986, or two (2) days after the commission of the crime, and died in the hospital on 7 March 1986. The doctor who first attended to her when she arrived at the Provincial Hospital, a certain Dr. Sy, was not presented as a witness. On the other hand, the doctor who attended to her before she died, Dr. Edgar Cantalao, testified that when he last

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saw Bombie alive, she could not talk. 48 It was this inability to talk which led the trial court to express its doubts on the veracity of the latter's supposed statement: . . . Although persons of tender age are prone to tell the truth, however, the Court must be cautious in appreciating said testimony where the person had a serious wound and had not eaten for one day and one night. There is no evidence to show that Bombie Toting told the doctor as to who were the perpetrators of the crime; neither did she tell her own brother, Zosimo Toting, Jr. that it was the accused, Teodoro Basay and Jaime Ramirez who killed her parents and her brother and sisters and burned their house. . . . The Court cannot understand why P.C. Sgt. Tabano did not ask Bombie Toting questions concerning the commission of the crime by the accused. Neither did the P.C. or (sic) the police take any statement from her on her way to the hospital or at the hospital. Surprisingly, Bombie Toting did not even tell her own brother, Zosimo Toting, Jr. that it was the accused who committed the crime. Had the statement of Bombie Toting been made to the doctor or to the barangay captain or to any reputable member of the community where the incident happened, the Court will have to put weight and consider her statement as a dying declaration. Our experience has shown that persons in authority are prone to fabricate or misrepresent the facts to serve their own purpose. Innocent people had been charged in Court simply by the false statements of peace officers. The Court therefore has to be cautious when these peace officers testify in Court. 49 In the second place, as a result of the foregoing observations, the trial court completely disregard Bombie Toting's so-called statement as against Teodoro Basay. We therefore see neither rhyme nor reason for the trial court's admission of the same as against the appellant. 3. While it may be true that the appellant ran away when he first saw the armed law officers, he did so merely out of fear of them. This act should not be considered as the flight which is indicative of guilt. The appellant had not left his house or barangay since 4 March 1986, the day the crime was committed. If he were indeed one of the perpetrators and had the intention to flee in order to avoid arrest, he should have vanished sooner and should not have remained in his house. Besides, if indeed his running away could be construed as flight, it could only be considered as circumstantial evidence. Such evidence would still be insufficient for a conviction. Under Section 4, Rule 133 of the Rules of Court, in order that circumstantial evidence may sustain a conviction, there must, be inter alia, be more than one (1) circumstance. No other circumstance was established in this case. Hence, the appellant's guilt was not established with moral certainty. He should be acquitted. We cannot, however, close this case without making some observations about the legal conclusion of the trial court anent the crimes committed and the penalty imposed. The facts indisputably establish that Zosimo Toting. Sr., Beatrice Toting and Bombie Toting were stabbed and hacked before their house was burned. Zosimo and Beatrice died immediately while Bombie lived for a few days. As a matter of fact, the thesis of the prosecution is that the house was burned to conceal the stabbing and hacking. As a result of this fire, Manolita Toting and Manolo Toting suffered burns which caused the death of the former; the latter, however, survived due to timely medical attention. Four (4) crimes were therefore committed, viz.: three (3) separate murders under Article 248 of the Revised Penal Code 50 for the deaths of Zosimo, Beatrice and Bombie, and arsonas punished under Section 5 of P.D. No. 1613 51 for the death of Manolita and the injuries sustained by Manolo as a consequence of the burning of the house. The aforementioned Section 5 reads: Sec. 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed. Also, the information that was filed is clearly duplicitous and thus vulnerable to a motion to quash under Section 3(e), Rule 117 of the Rules of Court. No such motion leaving been filed, appellant is deemed to have waived the defect. Finally, We have time and again said that life imprisonment is not a penalty provided for in the Revised Penal Code and is not the same as reclusion perpetua. 52 Unfortunately, the trial court still disregarded this pronouncement. It is hoped that it will not happen again. WHEREFORE, the challenged Decision in Criminal Case No. 7411 of Branch 40 of the Regional Trial Court of Negros Oriental is REVERSED and appellant JAIME RAMIREZ alias "NEBOY" is hereby ACQUITTED with costs de oficio. His immediate release from detention is hereby ordered. ARTICLE 257: UNINTENTIONAL ABORTION G.R. No. L-50884 March 30, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FILOMENO SALUFRANIA, defendant-appellant. PADILLA, J.: In an information, dated 7 May 1976, Filomeno Salufrania y Aleman was charged before the Court of First Instance of Camarines Norte, Branch I, with the complex crime of parricide with intentional abortion, committed as follows: That on or about the 3rd day of December, 1974, in Tigbinan, Labo, Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court the accused Filomeno Salufrania y Aleman did then and there, willfully, unlawfully, and feloniously attack, assault and use personal violence on MARCIANA ABUYO-SALUFRANIA, the lawfully wedded wife of the accused, by then and there boxing and stranging her, causing upon her injuries which resulted in her instantaneous death; and by the same criminal act committed on the person of the wife of the accused, who was at the time 8 months on the family way, the accused likewise did then and there willfully, unlawfully, and feloniously cause the death of the child while still in its maternal womb, thereby committing both crimes of PARRICIDE and INTENTIONAL ABORTION as defined and punished under Art. 246 and Art. 256, paragraph I, of the Revised Penal Code, to the damage and prejudice of the heirs of said woman and child in the amount as the Honorable Court shall assess. CONTRARY TO LAW Upon arraignment, the accused, assisted by counsel de officio, pleaded not guilty to the offenses charged. After trial the lower court rendered a decision ** dated 9 August 1978, the dispositive part of which states: WHEREFORE, finding the accused Filomeno Salufrania y Aleman guilty beyond reasonable doubt, of the complex crime of Parricide with Intentional Abortion, he is hereby sentenced to suffer the penalty of DEATH, to indemnify the heirs of the deceased Marciano Abuyo in the sum of P12,000.00 and to pay the costs. "For unselfish, valuable and exemplary service rendered by counsel de oficio, Atty. Marciano C. Dating, Jr., a compensation of P500.00 is hereby recommended for him subject to the availability of funds SO ORDERED. The accused having been sentenced to suffer the penalty of death, this case is on automatic review before this Court. At the trial in the court a quo, the prosecution presented the following witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania and Narciso Abuyo. Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay, Camarines Norte, testified that, after passing the Board Examination, he was employed as a Resident Physician of La Union Provincial Hospital, then as Junior Resident Physician of Bethane Hospital in San Fernando, La Union and that later, he joined the government service, starting from 1968 up to the time of the trial; that as a Doctor of Medicine, he had performed about ten (10) post mortem examinations; that he was called upon by the Municipal Judge of Talisay to examine the corpse of Marciana Abuyo-Salufrania that was exhumed from its grave in the Municipal Cemetery of Talisay at around 11:00 o'clock in the morning of 11 December 1974; that his post mortem examination lasted from 12:30 o'clock to 2:00 o'clock in the afternoon of the same day. He reduced his findings of injuries into writing. (Exhibit "A"), which, together with their probable cause, as testified to by him, are as follows: Dr. Dyquiangco testified that after conducting the post mortem examination, he issued a certification thereof (Exhibit "A"); that he issued a death certificate (Exhibit "B") for the deceased Marciano Abuyo-Salufrania, bearing the date of 5 December 1974, made on the basis of the information relayed by a certain Leonila Loma to his nurse before the burial, without mentioning the cause of death; that the cause of death, as cardiac arrest, was indicated on said death certificate only after the post mortem examination on 11 December 1974. The other witness for the prosecution was Pedro Salufrania, son of herein appellant and of the deceased. The lower court's decision states that, by reason of interest and relationship, before Pedro Salufrania was allowed to testify against his father-accused Filomeno Salufrania, he was carefully examined by the prosecuting officer and the defense counsel under the careful supervision of the court a quo, to determine whether, at his age of 13 years old, he was already capable of receiving correct impressions of facts and of relating them truly and, also, whether he was compelled and/or threatened by anybody to testify against his father-accused. 1 The lower court found Pedro Salufrania to be determined and intelligent. He convincingly declared that he was not threatened by any of his uncles on his mother's side to testify against his father, because it was true that the latter killed his mother. Then, formally testifying as the prosecution's lone eyewitness, he stated that his father Filomeno Salufrania and his mother Marciana Abuyo quarrelled at about 6:00 o'clock in the evening of 3 December 1974, in their small house at a far away sitio in barrio Tigbinan, Labo, Camarines Norte; that during said quarrel, he saw his father box his pregnant mother on the stomach and, once fallen on the floor, his father strangled her to death; that he saw blood ooze from the eyes and nose of his mother and that she died right on the spot where she fell. Pedro Salufrania further testified that after killing his mother, the accusedappellant went out of the house to get a hammock; that his brother Alex and he were the only ones who witnessed how the accused killed their mother because his sister and other brothers were already asleep when the horrible incident happened; that his brothers Celedonio, Danilo and sister Merly woke up after the death of their mother and kept watch at their mothers body while their father was

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away; that their father arrived early the next morning with the hammock and after placing their dead mother on the hammock, the accused carried her on his shoulder and brought the cadaver to the house of his sister Conching, located at a populated section of Tigbinan that from Tigbinan the corpse was transferred to Gabon, Talisay, Camarines Norte for burial. Continuing his testimony, Pedro Salufrania stated that he is now living with his uncle Eduardo Abuyo and had refused and still refused to live with his fatheraccused, because the latter has threatened to kill him and his other brothers and sister should he reveal the true cause of his mother's death. The third witness for the prosecution was Narciso Abuyo, a resident of Gabon, Talisay, Camarines Norte. He testified that the accused Filomeno Salufrania and his sister, the deceased Marciana Abuyo, were lawfully wedded husband and wife as evidenced by a marriage contract (Exhibit "C"). He declared that his sister was more or less seven (7) months pregnant when she died; that he first came to know about his sister's death on 4 December 1974 thru his nephews Pedro and Alex Salufrania who first informed him that their mother died of stomach ailment and headache; that he went to Tigbinan to request for the body of his sister so that it may be buried in Talisay, Camarines Norte and, as intended, Marciana Abuyo was buried in the Talisay Cemetery on 6 December 1974. Narciso Abuyo also declared that after the burial of Marciana Abuyo, the three (3) children of his deceased sister went to his house and refused to go home with their father Filomeno Salufrania; that when asked for the reason why, his nephew Alex Salufraa told him that the real cause of death of their mother was not stomach ailment and headache, rather, she was boxed on the stomach and strangled to death by their father; that immediately after learning of the true cause of death of his sister, he brought the matter to the attention of the police authorities of Talisay, Camarines Norte, who investigated Alex and Pedro Salufirania and later, to that of the Office of the Provincial Fiscal of Camarines Norte. The defense had for witnesses Geronimo Villan, Juanito Bragais, Angeles Liling Balce and the accused Filomeno Salufrania. Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania. He declared that Marciana Abuyo died at around 6:00 o'clock in the morning of 4 December 1974 in her house at Sitio Kapagisahan Tigbinan Labo, Camarines Norte; that he happened to pass by said house because his attention was attracted by the bright light in the fireplace and he saw Filomeno Salufrania boiling "ikmo" and garlic as medicine for his wife who was about to deliver a child; that he helped the accused by applying "ikmo" to the different parts of the body of Marciana Abuyo and by administering the native treatment known as "bantil", that is, by pinching and pulling the skin with two fingers of his closed fist; that when the condition of Marciana Abuyo worsened, he told Filomeno Salufrania to go and get Juanita Bragais who is known as a healer but the latter arrived at about 7:00 o'clock in the morning of 4 December 1974 and that at that time Marciana Abuyo was already dead. Witness Juanita Bragais testified that he was fetched by Felipe Salufrania, another son of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974. He further testified that when he reached the house of the Salufranias, Marciana Abuyo was already dead so he just helped Filomeno Salufrania in transferring the body of his wife to the house of the latter's brotherin-law at Tigbinan, Labo, Camarines Norte. Angeles Liling Balce, who claimed to be a former resident of Kapagisahan Tigbinan, Labo, Camarines Norte testified that she arrived in the house of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974 after being called by one of the latter's sons; that she saw Marciana still in a coma lying on the lap of her husband who informed her that Marciana was suffering from an old stomach ailment. The accused Filomeno Salufrania admitted that he was that lawful husband of the deceased Marciana Abuyo; that at around 9:00 o'clock in the morning of 3 December 1974, Marciana arrived home from Talisay where she had earlier stayed for about a week; that she was hungry upon her arrival, so he allegedly cooked their food and after eating their lunch, he proceeded to his work while his wife rested in their house; that when he returned home at 3:00 o'clock in the afternoon of that same day, his wife complained to him of stomach pain and he was told to prepare the beddings because she was already sleepy; that at about 4:00 o'clock in the morning of 4 December 1974, he was awakened by his wife who was still complaining of stomach pain, and that she asked for a drink of hot water; that while he was boiling water, Geronimo Villan arrived and assisted him in administering to his wife the native treatments known as "hilot" or massaging and "banti" that Geronimo Villan and Francisco Repuya alternately applied "bantil" to his wife but when her condition worsened, he woke up his children, Pedro and Alex to fetch Rico Villanueva who might be able to ,save the life of their mother; that his children left and returned without Rico Villanueva but the latter arrived a little later. Accused-appellant then went on to say that he sent for Juanito Bragais but the latter was not able to cure his wife, since the latter was already dead when he arrived; that after the death of his wife, he ordered his children to get the hammock of Kaloy Belardo whose house was about two (2) kilometers away from their house, and upon the arrival of the hammock, he placed the body of his wife thereon and brought it to the house of his sister Consolacion Salufrania in Tigbinan; that while the corpse of Marciana Abuyo was at Tigbinan he sent Chiding and his elder son to inform the brothers and sisters of his wife at Talisay about her death and that Leonila Abuyo and Salvador Abuyo came; that he informed the Barangay Captain of Tigbinan of the cause of death of his wife; that upon the suggestion of the brothers and sisters of Marciana Abuyo, especially Salvador Abuyo, the body of their sister was brought home to Talisay and thereafter buried at the Talisay Cemetery; that there was no quarrel between him and his wife that preceded the latter's death, and that during the lifetime of the deceased, they loved each other; that after her burial, his son Pedro Salufrania was taken by his brother-in-law Narciso Abuyo and since then, he was not able to talk to his son until during the trial; and that at the time of death of his wife, aside from the members of his family, Geronimo Villan Francisco Repuya and Liling Angeles Balce were also present. The case was considered submitted for decision by the trial court on 18 July 1978. As aforestated, the trial court found the appellant guilty of the crimes charged and sentenced him to the penalty of death. The appellant assigns the following errors allegedly committed by the trial court: I: THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND ON INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE PROSECUTION, THEREBY VIOLATING THE RULE THAT THE ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS SHOWN BEYOND ANY REASONABLE DOUBT. II : ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE PROSECUTION IS CREDIBLE AND SUFFICIENT, THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE COMPLEX CRIME OF PARRICIDE WITH INTENTIONAL ABORTION. III: THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR THE ACCUSED. Appellant alleges that the trial court failed to determine the competence of Pedro Salufrania before he was allowed to testify. Since Pedro was allegedly a child of tender age, being only thirteen (13) years old when he testified, and only eleven (11) years old when the offense charged occurred, he is presumed incompetent under Rule 130 Sec. 19 (b) of the Revised Rules of Court, which includes among those who cannot be witnesses: Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving correct impressions of the facts respecting which they are examined, or of relating them truly. Therefore, according to appellant, for failure of the trial court to determine Pedro's competence, the presumption of incompetency was not rebutted and Pedro's testimony should not have been admitted. Moreover, appellant stresses that there is no basis for the trial court's finding that Pedro is intelligent. Appellant's contention is without merit. The record shows that the trial court determined Pedro Salufrania's competency before he was allowed to testify under oath. 2 The trial court's conclusion that Pedro was intelligent and competent is fully supported by Pedro's responsiveness to the questions propounded to him when he was already under oath: A. Did you go here in court to testify voluntarily? Q. Yes, Your Honor. A. Were you not forced by your uncle to testify in his case? Q. No, I was not forced by my uncle. xxx xxx xxx A. The accused is your father? Q. Yes, sir. A. Do you love him? Q. No, sir. A. Your father is accused now of crime which carries the penalty of death, are you still willing to testify against him? xxx xxx xxx Q. Why did you say that you don't love your father A. Because he killed my mother. Q. And that is the reason why you hate your father now? A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976). Pedro's strong sense of moral duty to tell the truth, even though it should lead to his father's conviction, shows that he fully appreciated the meaning of an oath, which likewise proves that he was no longer a child of tender years at the time of his testimony. Appellant also alleges that, since Pedro changed his answer from no to yes when he was asked whether he was threatened by his uncle to testify against his father, shows that Pedro was lying and proves that he did not appreciate the meaning of an oath at all. 3 Again, this contention is without merit, Pedro became confused when the trial court ordered that the original question be reformed. Pedro's confusion is

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apparent from the fact that when asked the third time, he affirmed his first answer, Q. Isn't it that your uncle threatened you with bodily harm if you will not give statement before the police? A. No, sir. xxx xxx xxx Q. But later you actually went with your uncle to the police because you were threatened by him with bodily harm if you will not follow him? A. Yes, sir. Q. Is it true that your uncle threatened you with bodily harm if you will not give statement to the police? A. No, sir. (tsn., pp. 6, 7, Nov. 12, 1976) Appellant next lists the following alleged inconsistencies to discredit the testimony of Pedro. First, Pedro testified on direct examination that his mother died in the evening of December 3. while on cross-examination he said that she died in the morning of December 4. It must be noted that he affirmed twice during cross-examination that his mother died on December 3, just as he had testified during direct examination. Significantly, he did not mention December 4 as the date when she died, as appellant would make it appear. Pedro merely answered 'yes' to the question "And isn't it that your mother died in the early morning on that day (December 4) and not on the evening of December 3?" 4 Thus, Pedro's answer could have resulted only from a misapprehension of the a question, and for no other reason. Second, appellant alleges that Pedro testified on direct examination that he saw appellant leave the house to get a hammock after strangling the victim and then came back the following morning. However, upon cross-examination, Pedro testified that appellant left at noon or in the afternoon of December 4. Moreover, Pedro allegedly testified on re-direct that he saw appellant sleep beside the dead body of his mother. Again Pedro misapprehended the question propounded to him. Ajudicious reading of the transcript will bear this out: Q. When did your father leave to get the hammock? A. In the afternoon. Q. That may be when the body was brought to Talisay. When your father, rather, when you said that your father left to get a hammock so that your mother may be brought to Tigbinan what time was that? A. About 12:00 o'clock noon. (Tsn, p. 16, Nov. 12, 1976) One may discern that the court itself noticed that there was a missapprehension when it commented "that maybe when the body was brought to Talisay" after Pedro answered "In the afternoon". When Pedro answered "about 12:00 noon' he must have been referring to the time when appellant carried his dead wife to Tigbinan. It must be noted that the question was so worded that it could have misled Pedro to think that what was being asked was the time when appellant brought his dead wife to Tigbinan. In fact, there is nothing inconsistent with Pedro's testimony that he saw his father leave in the evening of December 3 and again saw him asleep and thus not noticed appellant's coming back after securing a hammock and sleeping beside the deceased. Pedro was therefore telling the truth when he said that, upon waking up, he saw his father sleeping beside his dead mother. By then, appellant had already returned with the hammock. Third, Pedro allegedly testified on direct examination that the corpse was carried to Tigbinan in the morning of December 4, while on cross-examination, he said it was in the evening. 5 It must be pointed out that Pedro merely answered "yes" to a question purportedly mentioning the time when the victim's body was transferred to Tigbinan. The question is as follows: "The corpse of your mother was brought to the Tigbinan proper when the vigil was had in the evening of December 4, is that right?" It is to be noted that the question's thrust is whether or not the victim's body was brought to Tigbinan. The time it was brought was merely incidental. Thus, Pedro may not have paid attention to the part of the question involving time. Moreover, the phrase "in the evening" may have referred either to the time of transport of the body or to the vigil, which could have definitely confused Pedro. Fourth, Pedro allegedly testified on direct examination that he, together with his brothers and sister, kept vigil beside their mother's dead body that night, while on cross-examination, he testified that they just kept lying down and pretended to sleep. 6 There is nothing inconsistent here. The children could have kept vigil while lying down with their deceased mother. Appellant further cites other alleged improbabilities to discredit Pedro's testimony. Appellant contends that it was improbable for Pedro to have seen the attack on his mother since he testified that the room was dimly lighted, and that, while the attach was going on, he closed his eyes pretending to sleep. 7 This contention is without merit. Even though the room was dimly lighted, Pedro was only two (2) meters away from his parents; thus, he could easily see, as he saw, the attack on his mother. 8 Also, although he pretended to be asleep, it was unlikely that he kept his eyes closed all the while, as he was aware that a fight was going on. Rather, it was to be expected that he had his eyes open and, thus, he saw the heinous crime unfold and ultimately consumated. Appellant alleges that he does not believe that it was fear of him that caused the delay in Pedro's divulging the real cause of his mother's death until 10 December 1974. According to appellant, such fear could no longer have influenced Pedro from December 6, the date he started to live separately from him. This contention is untenable. Even though Pedro started to live separately from his father from December 6, it cannot be said that the influence of appellant's threat suddenly ceased from that time. It must be noted that Pedro was young and was still very much under appellant's influence and control. The thought and memory of his father's viciousness were still too fresh even after three days from his mother's death. The fear that he too could be killed by appellant in like manner must have deterred him from divulging the truth earlier. Appellant also alleges that it was improbable for Pedro to have just watched the killing of his mother. This contention is untenable. At that moment, when his mother was being assaulted and strangled, Pedro must have been so shocked as to be rendered immobile and powerless to do anything. This is a normal reaction in such a situation. Besides, it is a fact of life that different people react differently to the same types of situations. 9 One cannot overlook that there is no standard form of behaviour when one is confronted by a shocking occurrence. 10 Appellant next alleges that since the prosecution has failed without satisfactory explanation to present Pedro's brother Alex who is alleged to be also an eyewitness to the killing of the victim, it is presumed that Alex's testimony would be adverse to the prosecution if presented. This contention is without merit. First, Alex, who is younger than Pedro by 3 years, may not have been competent to testify due to his tender age. Second, even assuming that he was competent to testify, his testimony could be merely corroborative. Corroboration is not necessary in this case because the details of the crime have already been testified to by Pedro with sufficient clarity. The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely corroborative. 11 Witnesses are to be weighed, not numbered, and it is a well established rule that the testimony of a single witness, even if uncorroborated, but positive and credible, is sufficient to support a conviction. 12 In any event, it is not for the appellant to say how many witnesses the prosecution should have presented. 13 The inconsistencies magnified by appellant in the testimony of Pedro Salufrania have been satisfactorily explained. In fact, some of them are not material since they neither touch upon the manner of death of the victim nor question the identity of the killer, both of which were unwaveringly testified upon by Pedro. Thus, with the alleged inconsistencies and improbabilities explained away, Pedro's testimony remains unperturbed. Even if there were discrepancies, such discrepancies were minor and may be considered as earmarks of verisimilitude. 14 The trial court's assessment of Pedro's testimony, as quoted hereunder, deserves more than passing consideration: ... The testimony of eye-witness Pedro Salufrania, 13-year old son of the victim Marciana Abuyo and her killer-spouse Filomeno Salufrania, appears to be very clear, convincing and truthful. It is vivid as to the details of the horrible occurence that took place at about 6:00 o'clock in the evening of December 3, 1974 in their small house at a far away sitio of Tigbinan, Labo, Camarines Norte, resulting in the untimely and cruel death of her (sic) mother. He and his brother Alex were the only eyewitnesses to the gory crime committed by their father. The credibility of this witness (Pedro Salufrania) and his testimony was invested when, despite rigid cross-examination, the veracity of his testimony in chief was not impeached. He remained firm and on the verge of crying, when he pointed an accusing finger at his father during the trial. He was unshaken notwithstanding a long and detailed cross-examination. And, there is reason to bestow complete credence to his testimony because he had the opportunity to closely observe how his father had deliberately and cruelly ended the life of his mother. Despite his tender age and apparent childish innocence, this Court believes that he can clearly perceive and perceiving, make known his perception, precluding the possibility of coaching or tutoring by someone. His declaration as to when, where and how the horrible incident complained of happened is the believable version. 15 Appellant questions the competence of Dr. Dyquiangco as an expert witness, since this is the first time that the doctor conducted an autopsy on a cadaver which had been buried for about a week. It must be noted, however, that although this was the doctor's first autopsy under circumstances present in this case, he had, however, conducted similar post-mortem examinations on ten (10) other occasions. This would constitute sufficient experience. Significantly, appellant did not object to the doctor's expression of medical opinions during the trial. Being an expert in his field, the doctor is presumed to have taken all pertinent factors into consideration with regard to the autopsy, including embalming and the state of the cadaver's decomposition. Dr. Juan Dyquiangco Jr., was a disinterested witness in the case, and a reputable public official in whose favor the presumption of regularity in the performance of official duties must be applied. Appellant further alleges that the findings of Dr. Dyquiangco and the testimony of Pedro Salufrania do not tally. Suffice it to say that the Court finds no inconsistencies between the findings of Dr. Dyquiangco and Pedro Salufrania's testimony. Both are consistent on material points. Thus, the Court sees no reason

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to disturb the conclusions reached by the trial court insofar as their credibility and the appellant's guilt are concerned. Appellant's third assignment of error alleges that the trial court erred in discrediting his evidence simply because the testimonies of the defense witnesses were consistent on material points. Moreover, there is no showing, according to the appellant, that said testimonies were rehearsed so as to dovetail with each other. This contention is without merit. The Court notes, first of all, that appellant did not even bother to discuss his defense in order to refute the massive evidence against him. This is tantamount to an admission that he could not adequately support his version of Marciana Abuyo's death. The trial court's reasons for rejecting the defense version, as hereunder quoted, are tenable and sound. Thus On the contrary, the testimonies of defense witnesses Geronimo Villan, Angeles Liling Balce and the accused Filomeno Salufrania suspiciously dove-tailed in every detail as to when, where and how .Marciana Abuyo died at 6:00 o'clock in the morning of 4 December 1974, in their house at sitio Kapagisahan Tigbinan Labo, Carnarines Norte, of stomach pain. On these points, these witnesses and the accused made statements which seemed to be very fresh and clear in their minds, despite the lapse of four long years. Their exact and uniform declarations on these points, their phenomenal recollections, without sufficient special or uncommon reason to recall, rendered their testimonies unconvincing. If at all, their testimonies appeared to this Court to be an eleventh hour concoction. And, as defense witnesses, after observing them and their declarations on the witness stand, they appeared to the Court to be untruthful and unreliable. For, despite the synchronization of time when, the place where and how the incidence happened, their testimonies on other material points revealed their tendency to exaggerate and their propensity to falsehood, thus-Aside from the accused Filomeno Salufrania, there are three other witnesses for the defense Geronimo Villan Angeles Liling Balce and Juanita Bragais. There is nothing in the testimony of Juanito Bragais because he did not witness how and when Marciana Abuyo died. Francisco Repuya, who was also alleged by Filomeno Salufrania to be present when Marciana Abuyo died, did not testify. Accused Filomeno Salufrania never claimed that he summoned for Angeles Liling Balce. According to him Angeles Liling Balce was not present during the moment of death of Marciana Abuyo, for she was fetched by him only after the death of his wife. Logically, therefore, there is no basis for the presentation of Angeles Liling Balce that she was present during the moment of death of Marciana Abuyo. She was merely play-acting. Geronimo Villan who claimed he passed-by the house of Filomeno Salufrania and saw the latter boiling water with "ikmo" and garlic, as medicine for his wife Marciana Abuyo, who was about to give birth was discredited by accused himself who declared he was merely boiling water for the hot drink of his wife, who was suferring from her old stomach ailment. In like manner, witness Geronimo Villan discredited the accused Filomeno Salufrania, about the presence of Francisco Repuya, who allegedly alternated with Geronimo Villan in applying the native treatments of 'hilot' and 'bantil' to Marciana Abuyo, when throughout his testimony he (Geronimo Villan) never mentioned the presence of Francisco Repuya. After closely observing defense witnesses Geronimo Villan and Angeles Liling Balce, this Court is convinced that their testimonies and accounts of the incident are fabricated, untruthful and not worth of credence. Certainly, they were not present immediately before and during the moment of death of Marciana Abuyo. ... Added to these, there is one scandalous circumstance, which to the mind of this Court, betrays the guilty conscience of the accused. If there was nothing revealing in the face of the deceased Marciana Abuyo, why was her face covered by a piece of cloth by the accused. ... Trial judges are in the best position to ascertain the truth and detect falsehoods in the testimony of witnesses. This Court will normally not disturb the findings of the trial court on the credibility of witnesses, in view of its advantage in observing first hand their demeanor in giving their testimony. 16 Such rule applies in the present case. Lastly, appellant alleges that, assuming he indeed killed his wife, there is no evidence to show that he had the intention to cause an abortion. In this contention, appellant is correct. He should not be held guilty of the complex crime of Parricide with Intentional Abortion but of the complex crime of Parricide with Unintentional Abortion. The elements of Unintentional Abortion are as follows: 1. That there is a pregnant woman. 2. That violence is used upon such pregnant woman without intending an abortion. 3. That the violence is intentionally exerted. 4. That as a result of the violence the foetus dies, either in the womb or after having been expelled therefrom. 17 The Solicitor General's brief makes it appear that appellant intended to cause an abortion because he boxed his pregnant wife on the stomach which caused her to fall and then strangled her. We find that appellant's intent to cause an abortion has not been sufficiently established. Mere boxing on the stomach, taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause an abortion. In fact, appellant must have merely intended to kill the victim but not necessarily to cause an abortion. The evidence on record, therefore, establishes beyond reasonable doubt that accused Filomeno Salufrania committed and should be held liable for the complex crime of parricide with unintentional abortion. The abortion, in this case, was caused by the same violence that caused the death of Marciana Abuyo, such violence being voluntarily exerted by the herein accused upon his victim. It has also been clearly established (a) that Marciana Abuyo was seven (7) to eight (8) months pregnant when she was killed; (b) that violence was voluntarily exerted upon her by her husband accused; and (c) that, as a result of said violence, Marciana Abuyo died together with the foetus in her womb. In this afternoon, Article 48 of the Revised Penal Code states that the accused should be punished with the penalty corresponding to the more serious came of parricide, to be imposed in its maximum period which is death. However, by reason of the 1987 Constitution which has abolished the death penalty, appellant should be sentenced to suffer the penalty of reclusion perpetua. WHEREFORE, as modified, the judgment appealed from is AFFIRMED. Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The indemnity of P12,000. 00 awarded to the heirs of the deceased Marciana Abuyo is increased to P30,000.00 in line with the recent decisions of the Court. With costs against the appellant,

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