Midterm Cases 2015

CRIMINAL LAW -MIDTERM CASES
C.A. No. 384
February 21, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas,
for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue
was found guilty of homicide and sentenced to an indeterminate penalty ranging from seven
years, four months and one day of prision mayorto thirteen years, nine months and eleven days
of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the
deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also
credited with one-half of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals
for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed
(1) That the lower court erred in not holding that said appellant had acted in the legitimate
defense of her honor and that she should be completely absolved of all criminal
responsibility;
(2) That the lower court erred in not finding in her favor the additional mitigating
circumstances that (a) she did not have the intention to commit so grave a wrong as that
actually committed, and that (b) she voluntarily surrendered to the agents of the
authorities; and
(3) That the trial court erred in holding that the commission of the alleged offense was
attended by the aggravating circumstance of having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has sufficiently established
the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in
the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to the
stabbing of the deceased by defendant and appellant, in the evening of September 20, 1942, the
former had been courting the latter in vain, and that on one occasion, about one month before
that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her nickname
"Aveling," while it was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached
her and spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced
and kissed her and touched her breasts, on account of which Avelina, resolute and quicktempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to
herself, until the following morning when she informed her mother about it. Since then, she
armed herself with a long fan knife, whenever she went out, evidently for self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and
appellant, and surreptitiously entered the room where she was sleeping. He felt her forehead,
evidently with the intention of abusing her. She immediately screamed for help, which awakened
her parents and brought them to her side. Amado came out from where he had hidden under a
bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness;
and when Avelina's mother made an attempt to beat Amado, her husband prevented her from
doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent
for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning.
Amado's parents came to the house of Nicolas Jaurigue and apologized for the misconduct of
their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he
might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had been falsely
boasting in the neighborhood of having taken liberties with her person and that she had even
asked him to elope with her and that if he should not marry her, she would take poison; and that
Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that
same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to
the chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just
across the provincial road from his house, to attend religious services, and sat on the front bench
facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro
Lozada. Inside the chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her
father, also for the purpose of attending religious services, and sat on the bench next to the last
one nearest the door. Amado Capina was seated on the other side of the chapel. Upon observing
the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting
and sat by her right side, and, without saying a word, Amado, with the greatest of impudence,
placed his hand on the upper part of her right thigh. On observing this highly improper and
offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and
honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket of
her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's right
hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the base
of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was
necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado
bleeding and staggering towards the altar, and upon seeing his daughter still holding the bloody
knife, he approached her and asked: "Why did you do that," and answering him Avelina said:
"Father, I could not endure anymore." Amado Capina died from the wound a few minutes later.
Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina and
asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa
aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your
disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised
Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their
doors and windows and not to admit anybody into the house, unless accompanied by him. That
father and daughter went home and locked themselves up, following instructions of the barrio
lieutenant, and waited for the arrival of the municipal authorities; and when three policemen
arrived in their house, at about 10 o'clock that night, and questioned them about the incident,
defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed
said policemen briefly of what had actually happened in the chapel and of the previous acts and
conduct of the deceased, as already stated above, and went with said policemen to the police
headquarters, where her written statements were taken, and which were presented as a part of
the evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be, is
universal. It has been entertained and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman
represents the only true nobility. And they are the future wives and mothers of the land. Such are
the reasons why, in the defense of their honor, when brutally attacked, women are permitted to
make use of all reasonable means available within their reach, under the circumstances.
Criminologists and courts of justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in
the days of chivalry. There is a country where women freely go out unescorted and, like the
beautiful roses in their public gardens, they always receive the protection of all. That country is
Switzerland.
In the language of Viada, aside from the right to life on which rests the legitimate defense of our
own person, we have the right to property acquired by us, and the right to honor which is not the
least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of
legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as
precious, if not more, than her very existence; and it is evident that a woman who, thus imperiled,
wounds, nay kills the offender, should be afforded exemption from criminal liability, since such
killing cannot be considered a crime from the moment it became the only means left for her to
protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs.
Luague and Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in
the defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at
about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and
without revealing his identity, and, in the struggle that followed, touched her private parts, and
that she was unable to free herself by means of her strength alone, she was considered justified
in making use of a pocket knife in repelling what she believed to be an attack upon her honor,
and which ended in his death, since she had no other means of defending herself, and
consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant
with a bolo which she happened to be carrying at the time, even though her cry for assistance
might have been heard by people nearby, when the deceased tried to assault her in a dark and
isolated place, while she was going from her house to a certain tienda, for the purpose of making
purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by someone touching
her arm, and, believing that some person was attempting to abuse her, she asked who the
intruder was and receiving no reply, attacked and killed the said person with a pocket knife, it
was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient
provocation or aggression to justify her completely in using deadly weapon. Although she
actually believed it to be the beginning of an attempt against her, she was not completely
warranted in making such a deadly assault, as the injured person, who turned out to be her own
brother-in-law returning home with his wife, did not do any other act which could be considered
as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed
up her house late at night on September 15, 1942, and surreptitiously entered her bedroom,
undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead

of merely shouting for help, she could have been perfectly justified in killing him, as shown by the
authorities cited above..
According to the facts established by the evidence and found by the learned trial court in this
case, when the deceased sat by the side of defendant and appellant on the same bench, near
the door of the barrio chapel and placed his hand on the upper portion of her right thigh, without
her consent, the said chapel was lighted with electric lights, and there were already several
people, about ten of them, inside the chapel, including her own father and the barrio lieutenant
and other dignitaries of the organization; and under the circumstances, there was and there
could be no possibility of her being raped. And when she gave Amado Capina a thrust at the
base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing
his death a few moments later, the means employed by her in the defense of her honor was
evidently excessive; and under the facts and circumstances of the case, she cannot be legally
declared completely exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily and unconditionally
surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased,
immediately after the incident, and agreed to go to her house shortly thereafter and to remain
there subject to the order of the said barrio lieutenant, an agent of the authorities (United States
vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication
of a grave offense committed against her a few moments before, and upon such provocation as
to produce passion and obfuscation, or temporary loss of reason and self-control, should be
considered as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs.
Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the deceased but merely
wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon
him only one single wound. And this is another mitigating circumstance which should be
considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil.,
123).
The claim of the prosecution, sustained by the learned trial court, that the offense was committed
by the defendant and appellant, with the aggravating circumstance that the killing was done in a
place dedicated to religious worship, cannot be legally sustained; as there is no evidence to
show that the defendant and appellant had murder in her heart when she entered the chapel that
fatal night. Avelina is not a criminal by nature. She happened to kill under the greatest
provocation. She is a God-fearing young woman, typical of our country girls, who still possess
the consolation of religious hope in a world where so many others have hopelessly lost the faith
of their elders and now drifting away they know not where.
The questions raised in the second and third assignments of error appear, therefore, to be well
taken; and so is the first assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the deceased
Amado Capina, in the manner and form and under the circumstances above indicated, the
defendant and appellant committed the crime of homicide, with no aggravating circumstance
whatsoever, but with at least three mitigating circumstances of a qualified character to be
considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal
Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her.
And considering the circumstances of the instant case, the defendant and appellant should be
accorded the most liberal consideration possible under the law (United States vs. Apego, 23
Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be
reduced by two degrees, the penalty to be imposed in the instant case is that of prision

correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine
Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should
be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree,
to prision correccional in its medium degree. Consequently, with the modification of judgment
appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an
indeterminate penalty ranging from two months and one day of arresto mayor, as minimum, to
two years, four months, and one day ofprision correccional, as maximum, with the accessory
penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in the sum of
P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the
principal penalty, in case of insolvency, and to pay the costs. Defendant and appellant should
also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B
ordered confiscated. So ordered..
Justifying circumstances
are those wherein the acts of the actor are in accordance with law and, hence, he incurs no criminal
and civil liability. The justifyingcircumstances by subject are as follows:1) Self-defenseAnyone who
acts in defense of his person or rights. (Art. 11, Par. 1) The scope included self-defense not only of
life, but also of rights like those ofchastity, property and honor. It has also been applied to the crime of
libel. Its elements are: a) Unlawful aggression, b) Reasonable necessity of the meansemployed to
prevent or repel it, c) Lack of sufficient provocation on the part of the person defending himself.2)
Defense of Relative 3) Defense of Stranger 4) State of Necessity 5) Fulfillment of duty 6) Obedience
to superior order
THE PEOPLE OF THE PHILIPPINES vs. NICOLAS JAURIGUE and AVELINA
JAURIGUEC.A. No. 384 February 21, 1946Ponencia, De Joya FACTS:
Avelina Jaurigue and Nicolas Jaurigue, her father, were prosecuted for the crime of murder for which
Nicolas wasacquitted while Avelina was found guilty of homicide. She appealed to the Court of
Appeals for Southern Luzon onJune 10, 1944 to completely absolve her of all criminal responsibility
for having acted in defense of her honor, to find inher favour additional mitigating circumstances and
omit aggravating circumstance.
At about 8:00 PM of September 20, 1942, Amado Capina, deceased victim, went to the chapel of
Seventh DayAdventists to attend religious services and sat at the front bench facing the altar. Avelina
Jaurigue entered the chapelshortly after the arrival of her father for the same purpose and sat on the
bench next to the last one nearest the door.Upon seeing Avelina, Amado went and sat by Avelinas
right side from his seat on the other side of the chapel, and without saying a word, placed his hand on
the upper part of her right thigh.
Avelina Jaurigue, therafter, pulled out with her right hand the fan knife which she had in a pocket of
her dress with theintention of punishing Amados offending hand. Amado seized her right hand but
she quickly grabbed the knife on herleft hand and stabbed Amado once at the base of the left side of
the neck inflicting upon him a wound about 4 inchesdeep, which is mortal.
Nicolas saw Capina bleeding and staggering towards the altar, and upon seeing his daughter
approached her andasked her the reason for her action to which Avelina replied, Father, I could not
endure anymore.

Amado Capina died a few minutes after. Barrio lieutenant, Casimiro Lozada was there and Avelina
surrenderedherself. Lozada advised the Jaurigues to go home immediately for fear of retaliation of
Capinas relatives.EVENTS PRIOR:
One month before that fatal night, Amado Capina snatched Avelinas handkerchief bearing her
nickname while it was washed by her cousin, Josefa Tapay.
7 days prior to incident (September 13, 1942), Amado approached her and professed his love for her
which wasrefused, and thereupon suddenly embraced and kissed her and touched her breasts. She
then slapped him, gave himfist blows and kicked him. She informed her matter about it and
since then, she armed herself with a long fan knife whenever she went out.
2 days after (September 15, 1942), Amado climbed up the house of Avelina and entered the room
where she wassleeping. She felt her forehead and she immediately screamed for help which
awakened her parents and brought themto her side. Amado came out from where he had hidden and
kissed the hand of Avelinas father, Nicolas.
Avelina received information in the morning and again at 5:00 PM on the day of the incident
(September 20, 1942) thatAmado had been falsely boasting in the neighbourhood of having taken
liberties with her person. In the evening,Amado had been courting the latter in vain.ISSUES:
Whether or not the defendant should be completely absolved of all criminal responsibility because she
is justified inhaving acted in the legitimate defense of her honor.
Whether or not the Court should find the additional mitigating circumstances of voluntary surrender,
presence ofprovocation and absence of intent in her favour
Whether or not committing said offense in a sacred place is an aggravating circumstance in this
caseHELD:
Conviction of defendant is sustained and cannot be declared completely exempt from criminal liability.
To be entitled toa complete self-defense of chastity, there must be an attempt to rape. To provide for a
justifying circumstance of self- defense, there must be a) Unlawful aggression, b) Reasonable
necessity of the means employed to prevent or repel it,c) Lack of sufficient provocation on the part of
the person defending himself. Attempt to rape is an unlawful aggression.However, under the
circumstances of the offense, there was no possibility of the defendant to be raped as they wereinside
the chapel lighted with electric lights and contained several people. Thrusting at the base of Capinos
neck asher means to repel aggression is not reasonable but is instead, excessive.
Mitigating circumstances are considered in her favour. Circumstances include her voluntary and
unconditionalsurrender to the barrio lieutenant, provocation from the deceased which produced
temporary loss of reason and self-control of the defendant and lack of intent to kill the deceased
evidenced by infliction of only one single wound.
Aggravating circumstance of having committed offense in a sacred place is not sustained as there
is no evidence thatthe defendant had intended to murder the deceased when she entered the chapel
that night. She killed under greatprovocation.
Penalty: For homicide, penalty is reclusion temporal. However, with 3 mitigating circumstances and no
aggravatingcircumstance, it is reduced by two degrees, in this case, prision correccional.
Indeterminate Sentence Law provides thepenalty ranging from arresto mayor in its medium degree to
prision correccional in its medium degree.
Avelina is sentenced to 2mos and 1 day of arresto mayor as minimum to 2 years, 4 months, and 1
day of prisioncorreccional as maximum; to indemnify heirs of Capina in the sum of 2,000; with
corresponding subsidiaryimprisonment not to exceed 1/3 of principal penalty and to pay costs. She
is given the benefit of of her preventiveimprisonment
SEPARATE OPINION: Hilado questions the validity or nullity of judicial proceedings in the Japanesesponsored courts
G.R. No. L-12883
November 26, 1917
THE UNITED STATES, plaintiff-appellee,

vs.
CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of
Occidental Negros. Roast pig was being served. The accused Clemente Ampar, a man of three
score and ten, proceeded to the kitchen and asked Modesto Patobo for some of the delicacy.
Patobo's answer was; "There is no more. Come here and I will make roast pig of you." The effect
of this on the accused as explained by him in his confession was, "Why was he doing like that, I
am not a child." With this as the provocation, a little later while the said Modesto Patobo was
squatting down, the accused came up behind him and struck him on the head with an ax,
causing death the following day.
As the case turns entirely on the credibility of witnesses, we should of course not interfere with
the findings of the trial court. In ascertaining the penalty, the court, naturally, took into
consideration the qualifying circumstance of alevosia. The court, however, gave the accused the
benefit of a mitigating circumstance which on cursory examination would not appear to be
justified. This mitigating circumstance was that the act was committed in the immediate
vindication of a grave offense to the one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to whether this circumstance
was rightly applied. That there was immediate vindication of whatever one may term the remarks
of Patobo to the accused is admitted. Whether these remarks can properly be classed as "a

grave offense" is more uncertain. The Supreme court of Spain has held the words "gato que
araaba a todo el mundo," "landrones," and "era tonto, como toda su familia" as not sufficient to
justify a finding of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877;
May 13, 1886.) But the same court has held the words "tan landron eres tu como tu padre" to be
a grave offense. (Decision of October 22, 1894.) We consider that these authorities hardly put
the facts of the present case in the proper light. The offense which the defendant was
endeavoring to vindicate would to the average person be considered as a mere trifle. But to this
defendant, an old man, it evidently was a serious matter to be made the butt of a joke in the
presence of so many guests. Hence, it is believed that the lower court very properly gave
defendant the benefit of a mitigating circumstance, and correctly sentenced him to the minimum
degree of the penalty provided for the crime of murder.
lawph!1.net
Judgment of the trial court sentencing the defendant and appellant to seventeen years four
months and one day of cadena temporal, with the accessory penalties provided by law, to
indemnify the heirs of the deceased, Modesto Patobo, in the amount of one thousand pesos, and
to pay the costs is affirmed, with the costs of this instance against the appellant. So ordered.
CASE DIGEST ON U.S. v. AMPAR [37 Phil. 201 (1917)]

November 10, 2010
Facts: During a fiesta, an old man 70 years of age asked the deceased, Patobo, for some roast pig. In the
presence of many guests, the deceased insulted the old man, saying: There is no more. Come here and I will
make roast pig of you. A little later, while the deceased was squatting down, the old man came up behind him
and struck him on the head with an ax.
Held: While it may be mere trifle to an average person, it evidently was a serious matter to an old man, to be
made the butt of a joke in the presence of so many guests. The accused was given the benefit of the mitigating
circumstance of vindication of a grave offense. In this case, the age of the accused and the place were
considered in determining the gravity of the offense.
[G.R. Nos. 140514-15. September 30, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUNE IGNAS y

SANGGINO,accused-appellant.
DECISION
QUISUMBING, J.:

In the amended decision dated June 2, 1999, in Criminal Case No. 96CR-2522, the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch
8, found appellant June Ignas y Sanggino guilty of murder aggravated
especially by the use of an unlicensed firearm. Appellant was initially
sentenced to suffer the penalty of reclusion perpetua, but on motion for
reconsideration by the prosecution, the penalty was upgraded to death by
lethal injection. Hence, the case is now before us for automatic review.
[1]
[2]
[3]
Appellant is an elementary school graduate. He resided at Cruz, La

Trinidad, Benguet, where he operated a bakery. He is married to Wilma
Grace Ignas, by whom he has a son of minor age. Wilma Grace used to
be the cashier of Windfield Enterprise, which is owned by Pauline Gumpic.
Pauline had a brother, Nemesio Lopate. It was he whom appellant fatally
shot.
[4]
[5]
[6]
In the amended Information, pursuant to Section 14, Rule 110 of the

1985 Rules of Criminal Procedure, the Provincial Prosecutor of Benguet
charged appellant as follows:
[7]
[8]
That on or about the 10th day of March 1996 at Trading Post, Km. 5, Municipality
of La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, without any authority of law or without any lawful permit did
then and there willfully, unlawfully and knowingly have in his possession, control
and custody a Cal. .38 hand gun and two (2) ammunitions, (sic) which firearm and
ammunitions were used by the accused in unlawfully killing NEMESIO LOPATE
at the above-mentioned place and date in violation of the said law.
CONTRARY TO LAW.
[9]
Appellant was arraigned and pleaded not guilty to the foregoing

amended information. The case then proceeded to be heard on the merits.
Gleaned from the records, the facts of this case are as follows:
Sometime in September 1995, appellants wife, Wilma Grace Ignas,
confided to her close friend, Romenda Foyagao, that she was having an
affair with Nemesio Lopate.
[10]
[11]
On the evening of October 16, 1995, Wilma Grace, Romenda, and

Nemesio went to Manila. Romenda and Nemesio were sending off Wilma

Grace at the Ninoy Aquino International Airport as she was leaving for
Taiwan to work as a domestic helper. Upon arrival in Manila, the trio
checked at Dangwa Inn, with Nemesio and Wilma Grace sharing a room.
All three of them stayed at the inn until October 18, 1995, when Wilma
Grace left for Taiwan.
[12]
[13]
Thereafter, Romenda received from Taiwan four letters written by Wilma

Grace on various dates.Although all the letters were addressed to
Romenda, two of them were meant by Wilma Grace to be read by her
paramour, Nemesio. In the other two letters, Wilma Grace instructed
Romenda to reveal to appellant her affair with Nemesio.
[14]
It was only sometime late in February 1996 that Romenda, following her
bosom friends written instructions, informed appellant about the
extramarital affair between Wilma Grace and Nemesio. Romenda informed
him that the two had spent a day and a night together in a room at Dangwa
Inn in Manila. Appellant became furious. He declared Addan to aldaw na
dayta nga Nemesio, patayek dayta nga Nemesio (There will be a day for
that Nemesio. I will kill that Nemesio). Appellant then got all the letters of
Wilma Grace from Romenda.
[15]
[16]
[17]
That same week Alfred Mayamnes, appellants neighbor who was

presented at the trial as a prosecution witness, had a talk with appellant.
Mayamnes was an elder of the Kankanaey tribe to which appellant
belonged. He wanted to confirm whether Nemesio Lopate, who was
likewise from the same tribe, was having an affair with appellants spouse.
Talk apparently had reached the tribal elders and they wanted the problem
resolved as soon as possible. A visibly angry appellant confirmed the
gossip. Mayamnes also testified that he advised Nemesio to stay at the
Mountain Trail Kankanaey community until things had cooled down.
[18]
[19]
[20]
[21]
Shortly after their talk, appellant closed down his bakeshop and offered
his equipment for sale. Among the potential buyers he approached was
Mayamnes, but the latter declined the offer.
[22]
Sometime during the first week of March, Mayamnes saw appellant

load his bakery equipment on board a hired truck and depart for Nueva
Vizcaya.
[23]

At around 10:00 p.m. of March 10, 1996, according to another
prosecution witness, Annie Bayanes, a trader in vegetables, she was at the
Trading Post, La Trinidad, Benguet. The Trading Post is a popular depot
where vegetable growers in the Cordilleras bring their produce late in the
evenings for sale to wholesalers and retailers. Witness Bayanes said she
was at the unloading area (bagsakan), conversing with another dealer at
the latters booth, when suddenly two gunshots shattered the quiet evening.
[24]
[25]
Bayanes turned towards the place where the sound of the gunshots
came from. She testified that she saw a person falling to the ground.
Standing behind the fallen individual, some 16 inches away, was another
person who tucked a handgun into his waistband and casually walked
away.
[26]
[27]
[28]
Initially, she only saw the gunmans profile, but when he turned, she
caught a glimpse of his face. She immediately recognized him as the
appellant June Ignas. She said she was familiar with him as he was her
townmate and had known him for several years. Witness Bayanes was five
or six meters away from the scene, and the taillight of a parked jeepney,
which was being loaded with vegetables, plus the lights from the roof of
the bagsakan, aided her recognition of appellant.
[29]
[30]
Also at the bagsakan area that night was prosecution witness Marlon
Manis. He testified that on hearing gunshots from the Trading Post
entrance, he immediately looked at the place where the gunfire came
from. He saw people converging on a spot where a bloodied figure was
lying on the ground. Witness Manis saw that the fallen victim was Nemesio
Lopate, whom he said he had known since Grade 2 in elementary school.
Manis then saw another person, some 25 meters away, hastily walking
away from the scene. He could not see the persons face very well, but from
his gait and build, he identified the latter as his close friend and neighbor,
June Ignas. Manis said that the scene was very dimly lit and the only
illumination was from the lights of passing vehicles, but he was familiar with
appellants build, hairstyle, and manner of walking.
[31]
[32]
[33]
[34]
Prosecution witness Mona Barredo, a bakery worker, testified that she

knew appellant. She said they were co-workers formerly at the Annaliza
Bakery at Km. 10, Shilan, La Trinidad, Benguet. Barredo declared that at
[35]

around 10:30 p.m. of March 10, 1996, appellant came to her residence at
Pico, La Trinidad. After being served refreshments, appellant took out a
handgun from his jacket and removed the empty shells from the chamber.
Appellant then told her to throw the empty cartridges out of the
window. Because of nervousness she complied. Barredo also said that
appellant disclosed to her that he had just shot his wifes paramour.
Appellant then stayed at her house for 8 or 9 hours; he left only in the
morning of March 11, 1996, according to her. Police investigators later
recovered the spent gun shells from witness Barredos sweet potato
garden.
[36]
[37]
[38]
[39]
[40]
According to witness on the scene, responding policemen immediately

brought the victim, Nemesio Lopate, to the Benguet General Hospital
where he was pronounced dead on arrival.
[41]
Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad,

Benguet, testified during that trial that she conducted the post-mortem
examination of the victims cadaver. Among her findings were:
1. Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8 x 1.3 cms. span), on
the right side of the mouth, above the edge of the upper lip
xxx
3. Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms., with avulsion of the
upper lip on the left side
xxx
9. Circular hole, penetrating, on the back, right side, 0.7 cm. x 0.7 cm. diam., with
blackened edges (0.9 x 0.9 cm. span), at the level of the fifth intercostal space,
subscapular area, 13 cm. from the midline, directed to the left side of the chest,
38.0 cm. from the embedded bullet slug of the left shoulder.
[42]
Dr. Jovellanos determined the cause of death to be Hypovolemia due to

gunshot wound, back, right, (Point of Entry fifth intercostal space
subscapular area). She further stated on the witness stand that she
recovered a bullet from the victims left shoulder, which she turned over to
the police investigators. According to her, given the blackened edges of
[43]
[44]

the gunshot wound at the victims back, Nemesio was shot from a distance
of less than three (3) feet.
[45]
On March 14, 1996, police investigators accompanied by one of

appellants brother as well as prosecution witness Julio Bayacsan, a friend
of appellant, went to Kayapa, Nueva Vizcaya, to invite appellant to shed
light on the slaying of Nemesio. The law enforcers found appellant selling
bread at Kayapa and brought him back to La Trinidad, Benguet.
[46]
Witness Bayacsan testified that shortly after they arrived from Kayapa,
he had an opportunity to talk with appellant at the La Trinidad Police
Station. There, appellant disclosed to this witness that he shot and killed
Nemesio. Bayacsan, however, did not inform the police about appellants
revelation as he considered appellant his good friend.
[47]
[48]
Prosecution witness Pauline Gumpic, the victims sister, testified that

she and appellant had a private talk, while the latter was in police custody,
and appellant admitted to her that he killed her brother. Gumpic declared
that appellant revealed to her that he shot Nemesio for having illicit
relations with appellants wife and failing to ask for his forgiveness.
[49]
[50]
SPO4 Arthur Bomagao of the La Trinidad police, who headed the team
that investigated the fatal shooting of Nemesio, declared on the stand that
appellant voluntarily admitted to him that he shot the victim with a .38
caliber handgun. Bomagao further testified that appellant surrendered to
him the letters of Wilma Grace, wherein the latter admitted her affair with
Nemesio.
[51]
[52]
[53]
Appellant interposed the defense of alibi. Sometime during the last

week of February 1996, he said, he entered into a partnership with a friend
and fellow baker, Ben Anoma, to operate a bakery in Kayapa, Nueva
Vizcaya. Appellant claimed that he was having a hard time operating his
bakeshop in La Trinidad as he had no helpers. When Anoma proposed a
business arrangement, he added, he immediately seized the opportunity.
On March 8, 1996, he and Anoma then transferred his equipment to
Anomas bakery in Kayapa, which is some four (4) to five (5) hours away
from La Trinidad, according to appellant. He averred that he was baking
bread with Anoma in Kayapa on the night Nemesio was killed. Under oath,
appellant said that he never left Kayapa since his arrival on March 8,
[54]
[55]
[56]
[57]

1996. He and Anoma were engrossed in baking and marketing their
produce, he testified, until the policemen from La Trinidad brought him back
to Benguet for questioning on March 14, 1996.
[58]
Defense witness Ben Anoma corroborated appellants alibi. Anoma

declared that during the last week of February 1996, he met with appellant
in La Trinidad. There, the witness said, he proposed a partnership with
appellant in the baking business to be based in Kayapa. Appellant agreed
and on March 8, 1996, they transferred appellants equipment to Kayapa.
They immediately commenced their operations and on the evening of
March 10, 1996, he and appellant baked bread at his bakery in Kayapa
until 11:00 p.m., when they rested for the night.
[59]
[60]
[61]
The trial court disbelieved appellants defense and sustained the

prosecutions version. Its initial judgment reads:
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and
penalized under Article 248 of the Revised Penal Code, and considering the
aggravating circumstances of treachery, nighttime and the special aggravating
circumstance of the use of an unlicensed firearm, without any mitigating
circumstance, he is hereby sentenced to suffer the penalty of Reclusion Perpetua.
He is further sentenced to pay the heirs of the VICTIM the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the wake;
2. P1,800,000.00 for unearned income;
3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
SO ORDERED in Chambers this 18th day of February 1999 at La Trinidad,
Benguet, Philippines.
[62]

Both the prosecution and the defense filed their respective motions for
reconsideration. The prosecution sought the imposition of the death
penalty. The defense prayed for acquittal on the ground of reasonable
doubt.
[63]
On June 2, 1999, the trial court granted the prosecutions motion. It

amended its judgment to read as follows:
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and
penalized under Article 248 of the Revised Penal Code, and considering the
aggravating circumstances of treachery, nighttime and the special aggravating
circumstance of the use of an unlicensed firearm, without any mitigating
circumstance, he is hereby sentenced to suffer the penalty of death by lethal
injection. He is further sentenced to pay the heirs of the victim the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the wake;
2. P2,040,000.00 for unearned income;
3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
SO ORDERED in Chambers.
[64]
Hence, this automatic review, with appellant imputing the following

errors to the court a quo:
I
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER DESPITE THE WEAKNESS OF THE CIRCUMSTANTIAL
EVIDENCE OF THE PROSECUTION.
II

THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT
TO THE ALLEGED EXTRA-JUDICIAL ADMISSIONS MADE BY ACCUSEDAPPELLANT DESPITE ITS BEING HEARSAY IN NATURE AND IN
VIOLATION OF HIS RIGHTS UNDER CUSTODIAL INVESTIGATION.
III
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE

VALUE TO THE DEFENSE OF ALIBI INTERPOSED BY ACCUSEDAPPELLANT.
IV
ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY,

THE TRIAL COURT GRAVELY ERRED WHEN IT RULED THAT THE
KILLING OF THE DECEASED WAS ATTENDED BY EVIDENT
PREMEDITATION, TREACHERY AND NIGHTTIME.
V
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

APPRECIATED THE ALLEGED USE OF AN UNLICENSED .38 CALIBER
FIREARM AS AN AGGRAVATING CIRCUMSTANCE IN THE COMMISSION
OF THE CRIME OF MURDER WITHOUT ANY FACTUAL AND LEGAL
BASIS.
VI
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID

NOT APPRECIATE IN FAVOR OF THE ACCUSED-APPELLANT THE
MITIGATING CIRCUMSTANCES OF IMMEDIATE VINDICATION OF A
GRAVE OFFENSE, PASSION AND OBFUSCATION AND VOLUNTARY
SURRENDER.
VII
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

AWARDED EXCESSIVE DAMAGES IN THE FORM OF FUNERAL
EXPENSES AND UNEARNED INCOME OF THE DECEASED WHICH WERE
NOT SUFFICIENTLY PROVEN.
[65]

Appellants assigned errors may be reduced to the following pertinent
issues: (1) the nature of the crime committed, if any; (2) the sufficiency of
the prosecutions evidence to prove appellants guilt; (3) the correctness of
the penalty; and (4) the propriety of the damages awarded.
1. Murder or Homicide
Assuming arguendo that the evidence on record suffices to sustain the
appellants conviction for the unlawful killing of Nemesio Lopate, the
question arises: Was the killing murder as found by the trial court or mere
homicide? Note that the amended information under which the appellant
stands charged does not, unlike the original information, charge appellant
with murder but with mere unlawful killing albeit through the use of an
unlicensed firearm. Note further that the amended information does not
definitely and categorically state that the unlawful killing was attended by
the aggravating or qualifying circumstances of treachery, evident
premeditation, and nocturnity.
The 2000 Revised Rules of Criminal Procedure requires that the
qualifying and aggravating circumstances must be specifically alleged in
the information. Although the Revised Rules of Criminal Procedure took
effect only on December 1, 2000 or long after the fatal shooting of Nemesio
Lopate, as a procedural rule favorable to the accused, it should be given
retrospective application. Hence, absent specific allegations of the
attendant circumstances of treachery, evident premeditation, and nocturnity
in the amended information, it was error for the trial court to consider the
same in adjudging appellant guilty of murder. As worded, we find that the
amended information under which appellant was charged and arraigned, at
best indicts him only for the crime of homicide. Any conviction should, thus,
fall under the scope and coverage of Article 249 of the Revised Penal
Code.
[66]
[67]
As for the separate case for illegal possession of firearm, we agree with
the trial courts order to dismiss the information for illegal possession of
firearm and ammunition in Criminal Case No. 97-CR-2753. Under R.A.
No. 8294, which took effect on July 8, 1997, where murder or homicide is
committed with the use of an unlicensed firearm, the separate penalty for
illegal possession of firearm shall no longer be imposed since it becomes
merely a special aggravating circumstance. This Court has held in a
[68]
[69]
[70]

number of cases that there can be no separate conviction of the crime of
illegal possession of firearm where another crime, as indicated by R.A. No.
8294, is committed. Although R.A. No. 8294 took effect over a year after
the alleged offense was committed, it is advantageous to the appellant
insofar as it spares him from a separate conviction for illegal possession of
firearms and thus should be given retroactive application.
[71]
[72]
2. Sufficiency of the Prosecutions Evidence

But is the prosecutions evidence sufficient to sustain a conviction for
homicide?
Appellant primarily contests the accuracy of the identification made by
the prosecution witnesses who testified that they saw him at the locus
criminis, tucking a gun in his pants and casually walking away. For one, he
contends that the prosecution witnesses who were present at the scene did
not in fact see appellant as the person who allegedly shot the victim.
Witness Marlon Manis was not certain that the person he saw walking
away from the fallen victim was appellant. As per Manis own admission, he
merely presumed that it was appellant. As to witness Annie Bayanes, her
identification of appellant as the assailant was equally doubtful. The fact is
she did not see the alleged gunmans face, considering that the only
illumination on the scene was a vehicles taillight. Appellant stresses that
both Bayanes and Manis were in a state of excitement and nervousness as
a result of the incident, hence the resultant commotion and fear distracted
their powers of observation. Appellant insists that given these
considerations, the testimonies of Bayanes and Manis failed to show that
he was at the scene of the crime, much less prove that he was the
gunman.
For the appellee, the Office of the Solicitor General (OSG) contends
that the failure of Manis to see the actual shooting is irrelevant, as such
was not the purpose for which his testimony was offered in evidence.
Rather, Manis testimony was meant to provide circumstantial evidence
tending to show the physical description of Nemesios attacker, and not as
an eyewitness testimony to positively identify said assailant. Neither was
Bayanes presented to testify as an eyewitness to the shooting, but to
declare that she got a clear look at the face of the suspected gunman.

We note that at the heart of the prosecutions case is the familiarity of
Annie Bayanes and Marlon Manis with appellant. Absent this familiarity, the
prosecutions theory that circumstantial evidence shows that appellant killed
Nemesio would collapse like a house of cards. It was precisely this
familiarity with appellant, which enabled said witnesses to recognize him as
the person tucking a gun in his waistband and walking away from the fallen
victim. Bayanes had known appellant for some ten (10) years before the
incident and even described him as a good man. She was only five or six
meters away from the scene of the crime and was able to fully look at the
face of the person tucking a gun in his pants and walking away. Familiarity
with the physical features, particularly those of the face, is actually the best
way to identify the person. That the only illumination in the area came
from the taillight of a parked vehicle and the lights on the roof of
the bagsakan does not discredit her account. We have held that moonlight,
starlight, kerosene lamps, a flashlight, and lights of passing
vehicles may be adequate to provide illumination sufficient for purposes of
recognition and identification. Under the circumstances of these cases, this
Court believes that Bayanes was in the position and had a fair opportunity
to identify appellant as the person leaving the crime scene with a gun
tucked in his waist.
[73]
[74]
[75]
[76]
[77]
[78]
[79]
Her testimony was buttressed by that of witness Marlon Manis. A former

neighbor of appellant, he had known appellant since 1993. He was a
frequent customer at appellants bakery. In the rural areas, people tend to
be more familiar with their neighbors. This familiarity may extend to body
movements, which cannot easily be effaced from memory. Hence, Manis
testimony that he could recognize appellant even just from his build and
manner of walking is not improbable. His declaration that he was some
twenty-five (25) meters away from the person walking away from the victim
does not make recognition far-fetched. Once a person has gained
familiarity with another, identification is an easy task, even from that
distance.
[80]
Evidence should only be considered for the purpose it was formally

offered. As the Solicitor General points out, the statements of Bayanes
and Manis were not offered to positively identify appellant as the assailant,
but to provide circumstantial evidence concerning Nemesios assailant,
tending to prove that appellant did shoot the victim. Thus, the court a
[81]

quo committed no reversible error in giving weight and credence to the
testimonies of Bayanes and Manis for the stated purposes therefor.
Appellant next assails the testimonies of the following prosecution
witnesses: (1) Pauline Gumpic for being inconsistent and flawed with
contradictions; (2) Annie Bayanes and Julio Bayacsan for their unexplained
delay in giving their respective sworn statements to the police; and (3)
Mona Barredo for flip-flopping with respect to the alleged admission to her
by appellant and how the police investigators knew about said admission,
after she claimed that she did not tell anyone about his revelation.
Appellant submits that the trial court erred in giving weight to the
aforementioned testimonies.
For appellee, the OSG argues that with respect to Gumpics alleged
contradictions, they refer only to unimportant and collateral matters; they do
not affect her credibility. With respect to the delay or vacillation by
Bayacsan and Bayanes in giving their statements to the authorities, the
OSG points out that a reading of their declarations in court will show that
the alleged delay was adequately explained. As to Barredos testimony, a
closer reading of her supposed flip-flopping shows that the alleged
contradictions were due to an honest misapprehension of fact on her part.
When the issue boils down to the credibility of witnesses, the appellate
court will not generally disturb the findings of the trial court because the
latter is in the vantage position of observing witnesses through the
various indicia of truthfulness or falsehood. However, this rule is not
absolute. One exception is where the judge who wrote the decision did not
personally hear the prosecutions evidence. In this case, the records show
that Judge Angel V. Colet, who authored the assailed decision, took over
from Judge Benigno M. Galacgac only on April 29, 1997 or after the
witnesses for the prosecution had testified. It does not follow, however, that
a judge who was not present at the trial cannot render a just and valid
judgment. The records and the transcripts of stenographic notes are
available to him as basis for his decision.
[82]
[83]
After going over the transcripts of the witnesses testimonies, we find no

reason to disturb the findings of the trial court. With respect to the
statements of Gumpic, we agree with the Solicitor General that alleged
inconsistencies refer only to irrelevant and collateral matters, which have

nothing to do with the elements of the crime. It is axiomatic that slight
variations in the testimony of a witness as to minor details or collateral
matters do not affect his or her credibility as these variations are in fact
indicative of truth and show that the witness was not coached to fabricate
or dissemble. An inconsistency, which has nothing to do with the elements
of a crime, is not a ground to reverse a conviction.
[84]
[85]
We likewise find no basis for appellants contention that Bayanes and

Bayacsan failed to give a satisfactory explanation for the delay or
vacillation in disclosing to the authorities what they knew.Bayanes gave a
satisfactory reason for her delay in reporting to the authorities what she
knew. She had simply gone about her normal business activities for some
months, unaware that a case had been filed concerning the killing of
Nemesio. It was only nine (9) months after the incident that she read a
notice for help posted by the victims relatives at the Trading Post,
appealing to possible witnesses to the killing to come forth and assist them
in their quest for justice. It was only then that she decided to reveal to the
authorities what she knew.
As to Bayacsan, he candidly admitted in court that he considered
appellant his friend and he wanted to protect him and hence, he only
disclosed appellants admission to him when the police started questioning
him. There is no rule that the suspect in a crime should immediately be
named by a witness. Different people react differently to a given situation
and there is no standard form of human behavior when one is confronted
with a strange, startling, or frightful experience. The Court understands
the natural reluctance or aversion of some people to get involved in a
criminal case. More so where, as in these cases, a townmate of Bayanes
and Bayacsan is involved. We have taken notice that when their townmates
are involved in a criminal case, most people turn reticent. Hence, the
failure of Bayanes and Bayacsan to immediately volunteer information to
the police investigators will not lessen the probative value of their
respective testimonies. The delay, having been satisfactorily explained, has
no effect on their credibility.
[86]
[87]
[88]
[89]
[90]
We have likewise closely scrutinized the testimony of Mona Barredo

regarding the alleged admission by appellant to her that he killed the victim.
We find nothing flip-flopping about her testimony. Instead, we find a witness
who admitted she was nervous that she might not be able to answer all the

questions. Said nervousness was engendered by her erroneous belief
that to be a credible witness, she must have personal knowledge of the
crime. Even the most candid witnesses make mistakes and may give
some contradictory or inconsistent statements, but such honest lapses
need not necessarily affect their credibility. Ample margin should be
accorded a witness who is tension-filled with the novelty of testifying before
a court.
[91]
[92]
[93]
Appellant further contends that the trial court erred in giving credence to
the verbal admissions of guilt he made to Gumpic and SPO4 Bomagao
inside the police station since said admissions are inadmissible in evidence
as uncounseled confessions.
The OSG submits that said verbal admissions of complicity, as well as
those made to appellant to Bayacsan and Barredo, are admissible as
statements forming part of the res gestae. We agree on this point with the
OSG.
The requisites of res gestae are: (1) the principal act or res gestae must
be a startling occurrence; (2) the statement is spontaneous or was made
before the declarant had time to contrive or devise a false statement, and
the statement was made during the occurrence or immediately prior or
subsequent to thereto; and (3) the statement made must concern the
occurrence in question and its immediately attending circumstances. All
these elements are present in appellants verbal admission to Barredo that
he killed the victim when he went to the latters house half an hour after the
fatal shooting of Nemesio.
[94]
The verbal admission by appellant to Barredo was made before

appellant had the time and opportunity to contrive a falsehood. Similar
statements have been held to be part of the res gestae: (1) a childs
declaration made an hour after an alleged assault; (2) the testimony of a
police officer as to what the victim revealed to him some 30 minutes after
the commission of an alleged crime; and (3) a victims declaration made
some 5 to 10 minutes after an alleged felony took place. Note that since
appellants admission was not solicited by police officers in the course of a
custodial investigation, but was made to a private person, the provisions of
the Bill of Rights on custodial investigation do not apply. The Rules of
[95]
[96]
[97]

Court provides that an admission made to a private person is admissible
in evidence against the declarant.
[98]
[99]
Prosecutions evidence here is admittedly circumstantial. But in the

absence of an eyewitness, reliance on circumstantial evidence is inevitable.
Resort thereto is essential when the lack of direct evidence would result
in setting a felon free.
[100]
[101]
Circumstantial evidence suffices to convict if the following requisites are

met: (1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable
doubt. In our mind, the following pieces of circumstantial evidence show
with moral certainty that appellant was responsible for the death of
Nemesio:
[102]
1. Appellant had the motive to kill Nemesio Lopate for having an affair with his
wife, and appellant had openly expressed his desire and intention to do so;
2. At around 10:00 p.m. of March 10, 1996, Annie Bayanes and Marlon Manis
heard two gun shots at the Trading Post, La Trinidad, Benguet and saw Nemesio
Lopate fall to the ground;
3. Bayanes saw appellant behind the victim, tucking a gun into his waistband, and
walking away;
4. From another angle, Manis also saw a person whose gait and built resembled
that of appellant walking away from the crime scene;
5. At around 10:30 p.m. of March 10, 1996, appellant went to the house of Mona
Barredo, brought out a handgun, emptied it of two spent .38 caliber shells and
instructed Barredo to throw the shells out of the window, which she did;
6. Appellant then told Barredo that he had shot and killed his wifes paramour, after
which he stayed at Barredos house for the night;
7. On March 11, 1996, Dr. Doris C. Jovellanos, Municipal Health Officer of La
Trinidad, Benguet recovered a .38 caliber slug from Nemesios corpse and found
two (2) bullet entry wounds on the said cadaver;

8. On March 18, 1996, police investigators, assisted by Barredo, recovered two (2)
spent .38 caliber shells from Barredos sweet potato patch, immediately outside her
residence wherein appellant had slept a week before.
The foregoing circumstances clearly show that appellant had the
motive, the opportunity, and the means to commit the crime at the place
and time in question. Simply put, the circumstantial evidence adduced by
the prosecution has successfully overcome the claim of innocence by
appellant. Under the proved circumstances, appellants defense of alibi is
untenable. More so, in this situation where prosecution witness Bayanes
unflinchingly declared that she saw appellant standing behind the victim,
tucking a gun in his pants, moments after the latter was shot. As we held
in People v. Salveron, and reiterated in People v. Sesbreo, where an
eyewitness saw the accused with a gun, seconds after the gunshot and
after the victim fell to the ground, the reasonable conclusion is that said
accused killed the victim.
[103]
[104]
Appellants alibi cannot prevail over the positive testimony of Bayanes

concerning appellants identification and presence at the crime scene. Basic
is the rule that for alibi to prosper, the accused must prove that he was
somewhere else when the crime was committed and that it was physically
impossible for him to have been at the scene of the crime. Physical
impossibility refers to the distance between the place where the appellant
was when the crime transpired and the place where it was committed, as
well as the facility of access between the two places. In these cases, the
defense admitted that the distance between La Trinidad, Benguet and
Kayapa, Nueva Vizcaya is 79 kilometers, which can be negotiated in 4 or 5
hours. Clearly, it was not physically impossible for appellant to be at
the locus criminis at the time of the killing. Hence, the defense of alibi must
fail.
[105]
[106]
[107]
In sum, we find that the prosecutions evidence suffices to sustain the

appellants conviction for homicide.
3. Crime and its Punishment
As appellant can only be convicted of homicide, it follows that he
cannot, under the provisions of RA No. 7659, be sentenced to suffer the
death penalty. The penalty for homicide under Article 249 of the Revised

Penal Code is reclusion temporal. Our task now is to determine whether
there are aggravating or mitigating circumstances which could modify the
penalty.
More specifically, may the special aggravating circumstance of use of
an unlicensed firearm be taken against the appellant?
Appellant argues that the trial court erred in appreciating the special
aggravating circumstance of use of unlicensed firearm in the present case.
Like the killing, said aggravating circumstance must likewise be proved
beyond reasonable doubt, says the appellant. On this point, he adds, the
prosecution failed to adduce the necessary quantum of proof.
We find merit in the appellants contentions. It is not enough that the
special aggravating circumstance of use of unlicensed firearm be alleged in
the information, the matter must be proven with the same quantum of proof
as the killing itself. Thus, the prosecution must prove: (1) the existence of
the subject firearm; and (2) the fact that the accused who owned or
possessed it does not have the corresponding license or permit to own or
possess the same. The records do not show that the prosecution
presented any evidence to prove that appellant is not a duly licensed holder
of a caliber .38 firearm. The prosecution failed to offer in evidence a
certification from the Philippine National Police Firearms and Explosives
Division to show that appellant had no permit or license to own or possess
a .38 caliber handgun. Nor did it present the responsible police officer on
the matter of licensing as a prosecution witness. Absent the proper
evidentiary proof, this Court cannot validly declare that the special
aggravating circumstance of use of unlicensed firearm was satisfactorily
established by the prosecution. Hence such special circumstance cannot
be considered for purposes of imposing the penalty in its maximum period.
[108]
Coming now to the obverse side of the case, is the appellant entitled to
benefit from any mitigating circumstance?
Appellant, firstly contends that assuming without admitting that he is
guilty, the lower court should have considered at least the mitigating
circumstance of immediate vindication of a grave offense as well as that of
passion and obfuscation. Appellant points out that the victims act of
maintaining an adulterous relationship with appellants wife constituted a

grave offense to his honor, not to mention the shame, anguish, and anxiety
he was subjected to. Even the mere sight of the victim must have triggered
an uncontrollable emotional outburst on appellants part, so that even a
chance meeting caused in him an irresistible impulse powerful enough to
overcome all reason and restraint. Secondly, appellant points out that the
trial court failed to consider his voluntary surrender as a mitigating
circumstance.
The Solicitor General counters that there was literally no immediate
vindication to speak of in this case. Appellant had sufficient time to recover
his serenity following the discovery of his wifes infidelity. Nor could passion
and obfuscation be appreciated in appellants favor because the killing was
not proximate to the time of the offense. Appellant became aware of the
treatment offensive to his dignity as a husband and to the peace and
tranquility of his home two weeks earlier. This interval between the
revelation of his wifes adultery and the fatal shooting was ample and
sufficient for reason and self-control to reassert themselves in appellants
mind. As to the mitigating circumstance of voluntary surrender, the OSG
stresses that his supposed surrender at Kayapa, Nueva Vizcaya was
actually due to the efforts of law enforcers who came looking for him. There
he did not resist, but lack of resistance alone is not tantamount to voluntary
surrender, which denotes a positive act and not merely passive conduct.
According to the OSG, for the mitigating circumstance of vindication of
a grave offense to apply, the vindication must be immediate. This view is
not entirely accurate. The word immediate in the English text is not the
correct translation of the controlling Spanish text of the Revised Penal
Code, which uses the word proxima. The Spanish text, on this point,
allows a lapse of time between the grave offense and the actual
vindication. Thus, in an earlier case involving the infidelity of a wife, the
killing of her paramour prompted proximately though not immediately by the
desire to avenge the wrong done, was considered an extenuating
circumstance in favor of the accused. The time elapsed between the
offense and the suspected cause for vindication, however, involved only
hours and minutes, not days.Hence, we agree with the Solicitor General
that the lapse of two (2) weeks between his discovery of his wifes infidelity
and the killing of her supposed paramour could no longer be considered
proximate. The passage of a fortnight is more than sufficient time for
[109]
[110]
[111]

appellant to have recovered his composure and assuaged the unease in
his mind. The established rule is that there can be no immediate vindication
of a grave offense when the accused had sufficient time to recover his
serenity. Thus, in this case, we hold that the mitigating circumstance of
immediate vindication of a grave offense cannot be considered in
appellants favor.
[112]
We likewise find the alleged mitigating circumstance of passion and

obfuscation inexistent. The rule is that the mitigating circumstances of
vindication of a grave offense and passion and obfuscation cannot be
claimed at the same time, if they arise from the same facts or motive. In
other words, if appellant attacked his victim in proximate vindication of a
grave offense, he could no longer claim in the same breath that passion
and obfuscation also blinded him. Moreover, for passion and obfuscation to
be well founded, the following requisites must concur: (1) there should be
an act both unlawful and sufficient to produce such condition of mind; and
(2) the act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the
perpetrator might recover his moral equanimity. To repeat, the period of
two (2) weeks which spanned the discovery of his wifes extramarital
dalliance and the killing of her lover was sufficient time for appellant to
reflect and cool off.
[113]
[114]
Appellant further argues that the lower court erred in failing to consider
voluntary surrender as a mitigating circumstance. On this point, the
following requirements must be satisfied: (1) the offender has not actually
been arrested; (2) the offender surrendered himself to a person in authority;
and (3) the surrender was voluntary. Records show, however, that leaflets
and posters were circulated for information to bring the killer of Nemesio to
justice. A team of police investigators from La Trinidad, Benguet then went
to Kayapa, Nueva Vizcaya to invite appellant for questioning. Only then did
he return to Benguet. But he denied the charge of killing the victim. Clearly,
appellants claimed surrender was neither spontaneous nor voluntary.
[115]
Absent any aggravating or mitigating circumstance for the offense of

homicide the penalty imposable under Art. 64 of the Revised Penal Code
is reclusion temporal in its medium period. Applying the Indeterminate
Sentence Law, the penalty which could actually be imposed on appellant is
an indeterminate prison term consisting of eight (8) years and one (1) day

of prision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal as maximum.
4. Proper Award of Damages
Appellant and the Solicitor General are one in contending that the trial
court awarded excessive actual damages without adequate legal
basis. Thus, the amount of P150,000.00 was awarded for funeral and burial
expenses without any supporting evidence on record. This cannot be
sustained in this review. In order for actual damages to be recovered, the
amount of loss must not only be capable of proof but must actually be
proven with reasonable degree of certainty, premised upon competent
proof or best evidence obtainable of the actual amount thereof, such as
receipts or other documents to support the claim. The records clearly
show in this case that only the amount of P7,000 as funeral expenses was
duly supported by a receipt. Hence, the award of actual damages should
be limited toP7,000 only.
[116]
[117]
[118]
Appellant further contests the award of P2,040,000 for loss of earning

capacity as unconscionable. Since the victims widow could not present any
income tax return of her husband to substantiate her claim that his net
income was P60,000 annually, then according to appellant, there is no
basis for this award at all. At best, appellant says, only temperate or
nominal damages may be awarded.
The OSG responds that the award for loss of earning capacity has
adequate basis as the prosecution presented sufficient evidence on the
productivity of the landholdings being tilled by the deceased and the
investments made by the Lopate family from their income. Hence, said the
OSG, it was not a product of sheer conjecture or speculation. Nonetheless,
the OSG submits that the original amount of P1,800,000 for loss of earning
capacity should be restored as it is this amount which takes into account
only a reasonable portion of annual net income which would have been
received as support by the heirs.
In setting said award at P2,040,000, amended from P1,800,000, for lost
earnings, the trial court took note of the following factors in its
computations:

The Death Certificate of Nemesio Lopate shows that he died at the age
of 29. His widows detailed testimony shows that their average annual net
income from vegetable farming was P60,000. The victims share of the
annual net income from the couples farm is half thereof, or P30,000. Using
theAmerican Expectancy Table of Mortality, the life expectancy of the victim
at age 29 is set at 34 years.
[119]
[120]
Therefore, total loss of Earning Capacity (X) should be computed as

follows:
X = 2/3 (80-29) x P30,000
X = 2/3 (51) x P30,000
X = 34 x P30,000
X = P1,020,000
This amount should form part of the damages awarded to the heirs.
We sustain the award of P50,000 as indemnity ex delicto. But there
being no testimony or other proof thereon, the award of P50,000 as moral
damages cannot now be sustained. Instead, temperate damages in the
amount of P25,000 should be awarded.
The award of P20,000 in attorneys fees should be maintained. Records
show that the victims widow had to hire the services of a private prosecutor
to actively prosecute the civil aspect of this case, and in line with Article
2208 of the Civil Code, reasonable attorney fees may be duly recovered.
[121]
[122]
WHEREFORE, the judgment of the Regional Trial Court of La Trinidad,

Benguet, Branch 8, in Criminal Case No. 96-CR-2522 is MODIFIED as
follows:
Appellant June Ignas y Sanggino is found GUILTY beyond reasonable
doubt of the crime of HOMICIDE as defined and penalized under Article
249 of the Revised Penal Code, as amended. There being neither
aggravating nor mitigating circumstance, he is hereby sentenced to suffer
an indeterminate penalty of ten (10) years and one (1) day of prision

mayor as minimum, to fourteen (14) years, eight (8) months, and one (1)
day of reclusion temporal as maximum.
Appellant June Ignas y Sanggino is ORDERED TO PAY the heirs of the
victim, Nemesio Lopate, the following sums: a) P7,000 as actual damages;
b) P1,020,000 for loss of earning capacity; c) P50,000 as civil indemnity;
d) P25,000 as temperate damages; and e) P20,000 as attorneys
fees. Costs de oficio.
SO ORDERED.
PEOPLE vs. IGNASG.R. 140514-15SEPTEMBER 20, 2003(Mitigating &

Aggravating Circumstance
FACTS OF THE CASE:Sometime in September 1995, Wilma Grace Ignas
confided to her close friend namedRomenda Foyagao that the former is
having an affair with Nemesio Lopate. And when Romendawent back to
Taiwan, she received four letters from Wilma Ignas, two of which are
writteninstructions of Wilma for Romenda to reveal to her husband, herein
Appellant, her affair withNemesio. But it was only sometime late in
February 1996 that Romenda followed the instructionof her friend Wilma,
and informed
Appellant about
the aforementioned extramarital
affairbetween Wilma and Nemesio. Upon hearing the information confided
by Romenda, Appellantbecame furious, he then declared that he is going
to kill Nemesio. Consequently, on March 10, 1996 at around 10 P.M.,
according to Annie Bayanes, whenshe was at the unloading area at the
Trading Post of La Trinidad, Benguet, she heard twogunshots. After which,
Bayanes turned towards the place where the sound of the gunshots
camefrom, she then saw a person falling to the ground and another
person who was standing behindthe fallen individual. Bayanes said that
she recognized the man standing as the appellant JuneIgnas. And another
person present at the unloading area that night, named Marlon Manis, had
thesame testimony as that of Bayanes, and he then further testified that
the fallen victim he saw wasNemesio Lopate whom he had known since
Grade 2 in elementary school. Then, another prosecution witness named
Mona Barredo declared that appellant came toher residence 30 mins. after
the aforementioned crime has been committed. She further declaredthat
appellant took out a handgun from his jacket, removed the empty shells
from the chamber,and told the former to throw the empty cartridges out

of the window. And out of nervousness,she complied. Barredo also said
that appellant disclosed to her that he shot his wifes paramour.Later on,
Police investigators recovered the spent gun shells from Barredos sweet
potato garden.Two more witnesses, Bayacsan and Pauline Gumpic,
testified that appellant disclosed tothem that he indeed killed Nemesio.
And, SPO4 Arthur Bomagao of the La Trinidad Police whoinvestigated the
fatal shooting of Nemesio, declared that appellant voluntarily admitted to
himthat he shot the victim with .38 caliber handgun, and that appellant
surrendered to him the lettersof Wilma Grace where it was admitted by
the latter that she was having an affair with Nemesio.Appellant, on the
other hand, interposed the defense of alibi. He averred that he wasbaking
bread with Anoma in Kayapa on the night Nemesio was killed. Under oath,
appellant saidhe never left Kayapa since his arrival there. He further
testified that he and Anoma wereengrossed in baking bread, until the
Policemen brought him back to Benguet for questioning.Defense witness
Ben Anoma Corroborated Appellants alibi. ISSUES:1. Whether or not the
Trial Court committed reversible error when it appreciated the allegeduse
of
an
unlicensed
.38
calibre
firearm
as
an
aggravating
circumstance
in
thecommission of the crime of murder without any
factual and legal basis.
2. Whether or not the Trial Court committed reversible error when it did not
appreciate infavour of the Accused-Appellant the Mitigating
Circumstances of (a) immediatevindication of a grave offense, (b) passion
and obfuscation and (c) voluntary surrender.RULING OF SC:1. In the first issue
raised, the Supreme Court ruled that:We find merit in the appellants
contentions. It is not enough that the specialaggravating circumstance of
use of unlicensed firearm be alleged in the information,the matter must be
proven with the same quantum of proof as the killing itself... Therecords do not
show that the prosecution presented any evidence to prove thatappellant is
not a duly licensed holder of a calibre .38 firearm Absent the properevidentiary
proof, this Court cannot validly declare that the special
aggravatingcircumstance of use of unlicensed firearm was satisfactorily
established by theProsecution. Hence, such special circumstance cannot be
considered for purposes ofimposing the penalty in its maximum period.2. As for
the second issue, however, the Supreme Court ruled that:a. The Solicitor
General counters that there was literally no immediate vindicationto speak of in
this case. Appellant had sufficient time to recover his serenityfollowing the
discovery of his wifes infidelity.We agree with the Solicitor General that the
lapse of two (2) weeks between hisdiscovery of his wifes infidelity and the killing
of her supposed paramour couldno longer be considered proximate. The passage
of a fortnight is more thansufficient time for appellant to have recovered his
composure and assuaged theease of his mind. The established rule is
that there can be no immediatevindication of a grave offense when the
accused had sufficient time to recover hisserenity. Thus, in this case, we hold

that the mitigating circumstance of immediatevindication of a grave offense
cannot be considered in appellants favor.b. We likewise find the alleged
mitigating circumstance of passion and obfuscationinexistent. The rule is that the
mitigating circumstances of vindication of a graveoffense and passion and
obfuscation cannot be claimed at the same time, if theyarise from the same facts
or motive. In other words, if appellant attacked hisvictim in proximate vindication
of a grave offense, he could no longer claim inthe same breath that passion and
obfuscation also blinded him.c. On this point, the following requirements must
be satisfied: (1) the offender hasnot actually been arrested; (2) the offender
surrendered himself to a person inauthority; and (3) the surrender was voluntary.
Records show, however, thatleaflets and posters were circulated for information
to bring the killer of Nemesioto justice. A team of police investigators from La
Trinidad, Benguet then went toKayapa, Nueva Vizcaya to invite appellant for
questioning. Only then did hereturn to Benguet. But he denied the charge
of killing the victim. Clearly,appellants claimed surrender was neither
spontaneous nor voluntary.And so, there being no aggravating nor mitigating
circumstance, June Ignas was foundGUILTY beyond reasonable doubt of the crime
HOMICIDE.
G.R. No. L-32042 December 17, 1976

vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION
AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded
guilty to the charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on
December 12, 1969. The killing was qualified by treachery and aggravated by premeditation and
disregard of rank. It was mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975
affirmed the judgment of conviction. It appreciated in Benito's favor the mitigating circumstance
of voluntary surrender. The penalty was reduced to reclusion perpetua. (People vs. Benito, 62
SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating
circumstance of immediate vindication of a grave offense and that the aggravating circumstances
of disregard of rank should not be appreciated against him.

Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after
the shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic
incident in this manner (Exh. A):
... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye
P. Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at
ako ay nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong
November, 1965 ng ako ay nasuspende sa aking trabaho dahil kinargohan nila
ako ng "DISHONESTY" at nasuspende ako ng 60 days at nabalik ako sa trabaho
noong January 1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF
PUBLIC FUNDS, QUALIFIED THEFT, ESTAFA at FALSIFICATION OF PUBLIC
DOCUMENT at dinimanda din ako ng Civil Service ng Administrative case ng
"DISHONESTY" at dinismiss na ako sa trabaho ni Commissioner Subido noong
February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila
sa akin na sinabi ko sa inyo ay "fabricated" lang ang mga evidensiya at ang
gumawa ho noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y
RAMOS at naka pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal
Magat at iyon namang "dismissal order" ni Commissioner Subido ay inapela ko
sa Civil Service Board of Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated"
charges ay naghirap na ko sa aking buhay at nahihiya ako sa mga kaibigan ko.
Ako ay assign(ed) sa collecting department noon at nagagalit sa akin ang mga
empleyado ng Civil Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil
Service sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko
siya at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos at
baka matulungan niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN
BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis na
ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO
Jr. sa loob ng compound ng Civil Service at sa harapan ng maraming tao sinabi
niya na "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko
ay umalis na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969,
nakita ko si PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye
P. Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa
kanto ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong
beses at tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para
sumurender at kayo nga ang dumating kasama ninyo iyong mga kasama ninyo.

Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty
shells of the bullets which he had fired at Moncayo.
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service
Commission at its main office located at P. Paredes, Sampaloc. Mla., and was
assigned as Clerk 2 in the Administrative Division from Nov. 1963 continuously up
to Nov. 1965 when he was suspended for "DISHONESTY".
After two months, he was reinstated but was criminally charged for QUALIFIED
THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION OF
PUBLIC DOCUMENTS and administratively charged for "DISHONESTY"
culminating in his dismissal from the Civil Service on February 1966.
The aforecited criminal charges against the suspect was allegedly investigated by
Asst. Fiscal MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966,
Hon. Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for
the arrest of the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an
order No. OA-87409 for the arrest of the suspect for the crime of
MALVERSATION OF PUBLIC FUNDS. According to the suspect, the aforecited
criminal and administrative charges filed him were allegedly instigated and
contrived by the victim and since the time of his dismissal, he was allegedly
jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and
requested the victim to help him in his cases but the former allegedly uttered to
the suspect "UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT
BAKA IPAYARI KITA DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12,
1969, and when they met again, the victim allegedly remarked in the presence of
many people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect
who was humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed
with an unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked
"SENTINEL", SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine
(9) live Cal. 22 bullets in its cylinder, waited for the victim outside the Civil Service
compound at P. Paredes st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation,
surreptitiously followed the victim and when the latter's car was at a full stop at
the corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles,
the suspect without any warning or provocation, suddenly and treacherously shot

the victim eight (8) times on the head and different parts of the body at closer
range which consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red private car
(w/ Plate No. L-55117) by his co-employees (composed of VICTOR VILLAR,
ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital.
Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40
p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the
Personnel Transactions Division and Acting Chief, Administrative Division of the Civil Service
Commission (Exh. E to E-2). The accused was a clerk in the cash section, Administrative
Division of the Commission, receiving P1,884 per annum (Exh. D). He started working in the
Commission on November 7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of
Civil Service that Benito admitted having malversed an amount between P4,000 and P5,000
from his sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):
MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative
Division of this Commission, who, as had previously been reported, malversed
public funds in the amount of approximately P5,000.00 out of his collections from
the sale of examination fee stamps.
I wish to state that this matter came to my attention on the evening of March 1,
1965 when Mr. Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50)
money orders at P2.00 each with a total vlaue of P100.00 were missing from a
bundle of money orders received from the Provincial Treasurer of Cotabato,
which were kept by him in one of the cabinets inside the Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr. Benito stole the
missing money orders. His suspicion arose from the fact that he found several
money orders marked "Cotabato" as their place of issue among the cash receipts
turned over to him by Mr. Benito that afternoon as his collection from the sale of
examination fee stamps. Mr. Abarquez showed to me the said money orders
issued in Cotabato which were turned over to him by Mr. Benito and after
checking their serial numbers with the records of list of remittances on file, we
were able to establish definitely the fact that the said money orders were those
missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash
Section and one of his duties was to sell examination fee stamps to applicants for
examinations. It was then the practice of the cashier to issue to Mr. Benito in the
morning examination fee stamps to be sold during the day and in the afternoon
he turned over to the Cashier the proceeds from the sale of stamps including the

unsold stamps issued to him. After considering the work performed by Mr. Benito,
it became evident that he succeeded in malversing the amount of P100.00 by
substituting equivalent amount of money orders in the place of the cash extracted
by him from his daily collections from the sale of examination fee stamps when
he clears his accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and
ask him whether he had something to do with the loss of the fifty (50) money
orders at P2.00 each. At first he denied, but when I asked him where he obtained
the money orders issued in Cotabato which were included in his collections the
day preceding, he admitted having stolen the missing money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started committing
the said irregularity and how much in all did he actually malversed out of his daily
collections from the time that he started the anomaly. He stated in the presence
of Mr. Abarquez that he started in January, 1965 and that although he did not
know exactly the total amount malversed by him, he believed the amount to be
between P4,000.00 to P5,000.00. He also confessed that he used the money
orders remitted by the Provincial Treasurer of Negros Occidental in the amount of
P3,436.00 in substituting various amounts extracted by him from his daily cash
collections and used by him for personal purposes.
It appears from the records that the List of Remittances covering the money
orders received from the Provincial Treasurer of Negros Occidental was duly
receipted by Mr. Benito. He was supposed to issue an Official Receipt therefor in
favor of the said Provincial Treasurer and then turn over to the Cashier the
amount involved for deposit to the National Treasurer. The said List of
Remittances, duly signed by Mr. Benito, is enclosed for use as evidence in this
case.
I told Mr. Benito that I cannot do anything but report the matter to the
Commissioner. However, he pleaded that he be given first an opportunity to
restore the amount before I make my report in order that the penalty that may be
imposed upon him may be lessened to a certain degree. As I thought it wise in
the interest of the service to recover the amount involved, I allowed him to go and
see his parents in Naga City to raise the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an application for a
loan with the Government Service Insurance System and that the proceeds of the
said loan which he intended to use in restoring the amount malversed by him
were expected to be released during the last week of May, 1965. However, when
the month of May, 1965 elapsed without the amount involved having been
restored, I conferred with Mr. del Prado, my immediate superior and asked him
whether we should wait further for the release of the said loan in order that the
amount involved may be recovered. Mr. Prado consented to giving him a little
more time.
When Mr. Benito still failed to restore the amount in question by the end of June,
1965, I got hold of him on July 5, 1965 and together with Messrs. del Prado,

Abarquez and Gatchalian, also of this Commission, brought him before Deputy
Commissioner A. L. Buenaventura and reported the entire matter to the Deputy
Commissioner. In the presence of Messrs. del Prado, Abarquez, Gatchalian and
myself, Mr. Benito admitted readily and voluntarily before the Deputy
Commissioner the commission of the offense of malversation of public funds as
stated above.
In view of the foregoing, it is recommended that Mr. Benito be charged formally
and that he be suspended from office immediately considering the gravity of the
offense committed by him.
(Sg
d.)
PE
DR
O
R.
MO
NC
AY
O
Ad
mini
stra
tive
Offi
cer
II
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio
Buenaventura that he had misappropriated his collections and spent the amount in nightclubs
and pleasure spots and for personal purposes. The decision dismissing him from the service
reads as follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash
Section, Administrative Division of this Office, for dishonesty.
The following excerpts from the letter dated October 22, 1965 of the
Commissioner of Civil Service connect respondent with the alleged
misappropriation of public funds representing his collection from the sale of
examination fee stamps and constitute the basis of the instant case against him:
An investigation made by this Commission shows that you
malversed public funds in the amount of P3,536.00 out of your
collections from the sale of examination fee stamps while in the
performance of your official duties as Clerk II in the Cash Section,
Administrative Division of this Office. It appears that you
succeeded in malversing the above-stated amount from your cash
collections by substituting in lieu thereof money orders worth

P3,436.00 remitted to this Commission by the Provincial
Treasurer of Negros Occidental which were duly receipted for by
you. It also appears that you extracted from a bundle of money
orders remitted by the Provincial Treasurer of Cotabato the
amount of P100.00 in money orders which were kept in one of the
cabinets in the Cashier's room.
Respondent denied the charge. He explained, among others, that money orders
were always kept in the Cashier's safe and he had no access to them. Although
he admitted having received money orders amounting to P3,436.00 remitted by
the Provincial Treasurer of Negros Occidental and another remittance of the
Provincial Treasurer of Cotabato he, however, disclaimed having substituted the
same for cash collections in his sale of examination fee stamps. He reasoned out
further that he could not be charged with malversation of public funds inasmuch
as he was not then an accountable officer.
It appears that respondent, as Clerk in the Cash Section, performs, among other
duties, the selling of examination fee stamps, receiving payments therefor, and
receiving remittances in form of cash and/or money orders from provincial
treasurers in connection with examinations held in the provinces. It was also his
duty to issue official receipts for said remittances. In the course of the
performance of his duties, he received said remittances from the Provincial
Treasurers of Negros Occidental and Cotabato, but no official receipts were
issued by him, as shown by the reply telegrams pertaining thereto. While records
disclose that remittances from the province of Cotabato were submitted to the
Cashier of the Civil Service Commission, there is no evidence showing that
remittances from Negros Occidental were likewise submitted.
Investigation further reveals that 50 money orders were discovered missing from
the remittances of Cotabato Provincial Treasurer which were kept in the cabinet
of the Cashier. On or about March 2, 1965, the Cashier of the Commission
noticed that 15 money orders turned over by respondent as part of his collections
in the sale of examination fee stamps were among the missing money orders.
This triggered off the filing of this case against the respondent.
On July 5, 1965, respondent admitted before the then Deputy Commissioner
Alipio Buenaventura having misappropriated an aggregate amount ranging from
P3,000 to P7,000, which he spent in night clubs, pleasure spots and other
personal benefits. Despite the testimonies of several witnesses regarding his
confession, including that of the then Deputy Commissioner himself, respondent,
when asked to take the stand, denied his previous admission.
Instead, he argued that the cash and accounts of the Cashier of the Civil Service
Commission, when examined by representatives of the Auditor's Office, did not
indicate any shortage and therefore there was no irregularity involved. This
argument is not well taken. Inasmuch as the remittances received by respondent
from said Provincial Treasurers of Negros Occidental and Cotabato were not in
turn given corresponding official receipts, naturally, the same were not reflected
on the Cashier's cash book.

The weakness of respondent's defense lies not so much on its failure to establish
convincingly his innocence as its irreconciliability with established facts.
Obviously, none of the circumstances in this case is consistent with his claim of
innocence. On the contrary, all of them put together produce reasonable
assurance of respondent's guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as
charged. Wherefore, he is dismissed from the service effective upon his receipt of
this decision.
In the interest of the service this decision is executed also on the date of his
receipt of this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision
dismissing him. The appeal was pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim,
Moncayo, allegedly made upon seeing Benito in the compound of the Civil Service Commission
near the canteen at eleven o'clock in the morning of December 12, 1969 (about six hours before
the shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified,
Moncayo said: "Hindi ko alam na itong Civil Service pala ay istambayan ng magnanakaw." (27
tsn December 26, 1969).
Mitigating circumstance of immediate vindication of a grave offense. Benito contends that
Moncayo insulted him when he (Moncayo) remarked that a thief was loitering in the premises of
the Civil Service Commission. Benito argues that that remark "was tantamount to kicking a man
already down and to rubbing salt into a raw wound" and that, as it was made publicly and in a
loud voice, he was exposed to ridicule in the presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16,
1975, acquitting him of the charge of malversation in connection with his alleged
misappropriation of the fees collected from the examinees of the 1974 patrolman examination.
That same decision makes reference to Benito's exoneration from the administrative charge. The
court's decision reads as follows:
The accused is charged with malversation under the following information:
That on or about and during the period comprised between
October 17, 1964, to February, 1965, inclusive, in the City of
Manila Philippines, the said accused being then employed as
Clerk I of the Civil Service Commission, a branch of the
government of the Republic of the Philippines, among whose
duties were to accept payments of fees collected from the
examinees of the 1964 Patrolman examination, and by reason of
his said position received the total amount of P3,536.00, with the
duty to turn over and/or account for his collections to the cashier
of the Civil Service Commission immediately or upon demand but
the said accused once in possession of the said amount of
P3,536.00, with intent to defraud, despite repeated demands

made upon him to turn over and to account for the same, did then
and there willfully, unlawfully and feloniously misappropriate,
misapply and convert and malverse the said amount to his own
personal use and benefit, to the detriment of public interest and to
the damage and prejudice of the said Civil Service Commission in
the said amount of P3,536.00, Philippine currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the Civil
Service Commission from May 27, 1964, as clerk I, range 23 from June 1, 1965
and as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the
duty, among others, of selling Civil Service examination- fee stamps and to
receive payment therefor, as well as to receive remittances of money orders and
checks from the provincial treasurers for payments of examination fee stamps
(Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period
alleged in the information, testified in his direct examination that Benito was
working in his office; that one of the duties that he assigned to him was to sell
examination fee stamps; that it was customary for him to give stamps to Benito at
the start of office hours in the morning and that Benito turned over to him the
proceeds of the sale, as well as the unsold stamps, at the close of office hours in
the afternoon; that one afternoon he noticed that Benito turned over to him 50
money orders from Cotabato, together with some cash, as proceeds of the sale
of stamps for that day; that he remembered that he was missing money orders
from one of his cabinets where he kept them; that when he discovered that the 50
money orders were those which were missing, he reported the matter to Pedro
Moncayo, the chief administrative officer; on March 1, 1965; that the money
orders were for P2.00 each, and were payments of the examination fees from
Cotabato (Exhibit F); that he discovered the loss of the 50 money orders on
February 28, 1965 and reported it to Moncayo on March 1, 1965, together with
the list of missing orders (Exhibit M); that after receiving the report, Moncayo
called Benito to the office of Abarquez where he admitted taking the missing
money orders; that Moncayo submitted a memorandum to the Commissioner,
dated October 21, 1965, after giving Benito a chance to refund the value of the
money orders (Exhibit O). Alipio Buenaventura, acting Deputy Commissioner at
the time, and Eliseo S. Gatchalian, budget officer, testified that when Benito was
confronted with the report of Moncayo and Abarquez, he admitted that he
misappropriated about P3,000.00 because of bad company and that he asked for
a chance to refund the money.
Under cross-examination, Abarquez elucidated his testimony in his direct
examination and explained that when Benito turned over the proceeds of the sale
of stamps for that particular day, he kept the sum of P100.00 and replaced it with
the 50 money orders that he had taken from the cashier's office to cover up the
money that he had pocketed. When he was asked when he discovered that
Benito substituted the 50 money orders from Cotabato, he answered that he
checked them the following night (March 2, 1965) with the list of money orders

remitted by the Provincial treasurer (Exhibits F, F-1); but when he was confronted
with his affidavit which he executed on April 18, 1966 (Exhibit R), he reluctantly
admitted that he had only verified 15 money orders missing as of April 18, 1966
and that he did not keep any record of the money and the money orders given to
him by Benito on March 1, 1965.
He also admitted that the room where he kept the money orders in an unlocked
drawer was also occupied by two other persons, and that this was the first time
that he had not followed the usual procedure of keeping them in the safe. He
further admitted that, although regular examinations were conducted during the
period of October 1, 1964 to February 28, 1965 by the examiners of the Civil
Service Commission and the auditors of the General Auditing Office, they did not
find any shortage in the accounts of Benito.
Finally, when the Court asked him what happened to the 50 money orders, at first
he hinted that they were not deposited with the Bureau of Treasury because they
were reported missing; but when pressed further, he said that he deposited them,
but did not issue any official receipt for them. When asked if he had any evidence
to show that they were actually deposited, he admitted that he could not even
remember when he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built its
case, is too weak and shaky to sustain a finding of guilt because of his glaring
inconsistencies, contradictions and gaps in memory. The prosecution has failed
to present convincing evidence that the 50 money orders were even lost:
According to Abarquez he had only verified the loss of 15 on April 18, 1966,
although he testified earlier that he determined the loss of 50 the night after
March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the General
Auditing Office did not find any irregularity in the cash accountability of Benito,
according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the
Commission on Audit and Miguel Games, auditing examiner assigned to the Civil
Service Commission, who testified for the accused. Benito was in fact exonorated
the administrative charge filed against him for the time same transaction (Exhibit
E).
In fact, the testimony of Abarquez under cross-examination that he has not
issued any official receipt for the 50 money orders and his inability to prove that
he deposited them with the bureau of Treasury gives rise to the suspicion that
other persons, not the accused, may have stolen the 50 missing money orders.
Even without taking into account the testimony of the accused, who denied the
testimonies of the witnesses for the prosecution, the court believes that the
prosecution has failed to prove the guilt of the accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with
costs de oficio.

The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to
the mitigating circumstance of vindication of a grave offense because it was not specifically
directed at Benito. The prosecution notes that the remark was uttered by Moncayo at eleven
o'clock in the morning. According to Benito's testimony (not consistent with his confession), he
saw Moncayo three hours later or at two o'clock in the afternoon and inquired from him about his
case and Moncayo said that he had already submitted his report and he could not do anything
more about Benito's case (26 tan). As already stated, the assassination was perpetrated at
around five o'clock in the afternoon of the same day.
Assuming that Moncayo's remark was directed at Benito, we see no justification under the
circumstances recited above for changing our prior opinion that the mitigating circumstance of
"haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del
delito," cannot be appreciated in Benito's favor. As aptly stated by the ponente, Justice Esguerra,
Benito "had more than sufficient time to suppress his emotion over said remark if he ever did
resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de Espaa)
no ha apreciado la proximidad ... cuando la ofensa se realizo por la maana y el delito tuvo lugar
por la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima cuando
transcurre tiempo suficiente para la razon recobre su imperio sobreponiendose a la pasion
(Sentencias de 28 mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la
proximidad debe desestimarse (Sentencia de 3 julio 1950). Exige gravedad en la ofensa y
proximada en la reaccion." (Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante
en favor del autor de un homicidio cometido 'algunas horas despues de haberle invitado el
interfecto a renir y golpeado en el pecho con las manos', porque el tiempo transcurrido entre los
golpes y la muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24 Junio
1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica Espaola 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito
and the assassination was more than sufficient to enable Benito to recover his serenity. But
instead of using that time to regain his composure, he evolved the plan of liquidating Moncayo
after office hours. Benito literally ambushed Moncayo just a few minutes after the victim had left
the office. He acted with treachery and evident premeditation in perpetrating the cold-blooded
murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo
was not the latter's alleged defamatory remark that the Civil Service Commission compound was
a hangout for a thief or for thieves but the refusal of Moncayo to change his report so as to favor
Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but mainly to
chastise Moncayo for having exposed the alleged anomalies or defraudation committed by
Benito and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank. Benito contends that disregard of rank should
not be considered against him because there was no evidence that he "deliberately intended to
offend or insult the rank" of Moncayo. That contention has no merit.

It should be borne in mind that the victim was a ranking official of the Civil Service Commission
and that the killer was a clerk in the same office who resented the victim's condemnatory report
against him. In that situation, the existence of the aggravating circumstance of "desprecio del
respeto que por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his
superior, the chief of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting
Spanish consul by his subordinate, the chancellor of the consulate, who had misappropriated the
funds of the consulate, which misappropriation was discovered by the victim (People vs. Martinez
Godinez, 106 Phil, 597, 606). In these two cases the murder was aggravated by disregard of
rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.
G.R. No. L-32042 December 17, 1976

vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION
AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded
guilty to the charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on
December 12, 1969. The killing was qualified by treachery and aggravated by premeditation and
disregard of rank. It was mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975
affirmed the judgment of conviction. It appreciated in Benito's favor the mitigating circumstance
of voluntary surrender. The penalty was reduced to reclusion perpetua. (People vs. Benito, 62
SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating
circumstance of immediate vindication of a grave offense and that the aggravating circumstances
of disregard of rank should not be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after
the shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic
incident in this manner (Exh. A):

... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye
P. Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at
ako ay nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong
November, 1965 ng ako ay nasuspende sa aking trabaho dahil kinargohan nila
ako ng "DISHONESTY" at nasuspende ako ng 60 days at nabalik ako sa trabaho
noong January 1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF
PUBLIC FUNDS, QUALIFIED THEFT, ESTAFA at FALSIFICATION OF PUBLIC
DOCUMENT at dinimanda din ako ng Civil Service ng Administrative case ng
"DISHONESTY" at dinismiss na ako sa trabaho ni Commissioner Subido noong
February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila
sa akin na sinabi ko sa inyo ay "fabricated" lang ang mga evidensiya at ang
gumawa ho noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y
RAMOS at naka pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal
Magat at iyon namang "dismissal order" ni Commissioner Subido ay inapela ko
sa Civil Service Board of Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated"
charges ay naghirap na ko sa aking buhay at nahihiya ako sa mga kaibigan ko.
Ako ay assign(ed) sa collecting department noon at nagagalit sa akin ang mga
empleyado ng Civil Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil
Service sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko
siya at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos at
baka matulungan niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN
BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis na
ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO
Jr. sa loob ng compound ng Civil Service at sa harapan ng maraming tao sinabi
niya na "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko
ay umalis na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969,
nakita ko si PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye
P. Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa
kanto ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong
beses at tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para
sumurender at kayo nga ang dumating kasama ninyo iyong mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty
shells of the bullets which he had fired at Moncayo.
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service
Commission at its main office located at P. Paredes, Sampaloc. Mla., and was
assigned as Clerk 2 in the Administrative Division from Nov. 1963 continuously up
to Nov. 1965 when he was suspended for "DISHONESTY".

After two months, he was reinstated but was criminally charged for QUALIFIED
THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION OF
PUBLIC DOCUMENTS and administratively charged for "DISHONESTY"
culminating in his dismissal from the Civil Service on February 1966.
The aforecited criminal charges against the suspect was allegedly investigated by
Asst. Fiscal MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966,
Hon. Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for
the arrest of the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an
order No. OA-87409 for the arrest of the suspect for the crime of
MALVERSATION OF PUBLIC FUNDS. According to the suspect, the aforecited
criminal and administrative charges filed him were allegedly instigated and
contrived by the victim and since the time of his dismissal, he was allegedly
jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and
requested the victim to help him in his cases but the former allegedly uttered to
the suspect "UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT
BAKA IPAYARI KITA DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12,
1969, and when they met again, the victim allegedly remarked in the presence of
many people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect
who was humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed
with an unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked
"SENTINEL", SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine
(9) live Cal. 22 bullets in its cylinder, waited for the victim outside the Civil Service
compound at P. Paredes st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation,
surreptitiously followed the victim and when the latter's car was at a full stop at
the corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles,
the suspect without any warning or provocation, suddenly and treacherously shot
the victim eight (8) times on the head and different parts of the body at closer
range which consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red private car
(w/ Plate No. L-55117) by his co-employees (composed of VICTOR VILLAR,
ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital.
Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40
p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the
Personnel Transactions Division and Acting Chief, Administrative Division of the Civil Service
Commission (Exh. E to E-2). The accused was a clerk in the cash section, Administrative
Division of the Commission, receiving P1,884 per annum (Exh. D). He started working in the
Commission on November 7, 1963.

On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of
Civil Service that Benito admitted having malversed an amount between P4,000 and P5,000
from his sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):
MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative
Division of this Commission, who, as had previously been reported, malversed
public funds in the amount of approximately P5,000.00 out of his collections from
the sale of examination fee stamps.
I wish to state that this matter came to my attention on the evening of March 1,
1965 when Mr. Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50)
money orders at P2.00 each with a total vlaue of P100.00 were missing from a
bundle of money orders received from the Provincial Treasurer of Cotabato,
which were kept by him in one of the cabinets inside the Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr. Benito stole the
missing money orders. His suspicion arose from the fact that he found several
money orders marked "Cotabato" as their place of issue among the cash receipts
turned over to him by Mr. Benito that afternoon as his collection from the sale of
examination fee stamps. Mr. Abarquez showed to me the said money orders
issued in Cotabato which were turned over to him by Mr. Benito and after
checking their serial numbers with the records of list of remittances on file, we
were able to establish definitely the fact that the said money orders were those
missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash
Section and one of his duties was to sell examination fee stamps to applicants for
examinations. It was then the practice of the cashier to issue to Mr. Benito in the
morning examination fee stamps to be sold during the day and in the afternoon
he turned over to the Cashier the proceeds from the sale of stamps including the
unsold stamps issued to him. After considering the work performed by Mr. Benito,
it became evident that he succeeded in malversing the amount of P100.00 by
substituting equivalent amount of money orders in the place of the cash extracted
by him from his daily collections from the sale of examination fee stamps when
he clears his accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and
ask him whether he had something to do with the loss of the fifty (50) money
orders at P2.00 each. At first he denied, but when I asked him where he obtained
the money orders issued in Cotabato which were included in his collections the
day preceding, he admitted having stolen the missing money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started committing
the said irregularity and how much in all did he actually malversed out of his daily
collections from the time that he started the anomaly. He stated in the presence
of Mr. Abarquez that he started in January, 1965 and that although he did not
know exactly the total amount malversed by him, he believed the amount to be
between P4,000.00 to P5,000.00. He also confessed that he used the money
orders remitted by the Provincial Treasurer of Negros Occidental in the amount of
P3,436.00 in substituting various amounts extracted by him from his daily cash
collections and used by him for personal purposes.

It appears from the records that the List of Remittances covering the money
orders received from the Provincial Treasurer of Negros Occidental was duly
receipted by Mr. Benito. He was supposed to issue an Official Receipt therefor in
favor of the said Provincial Treasurer and then turn over to the Cashier the
amount involved for deposit to the National Treasurer. The said List of
Remittances, duly signed by Mr. Benito, is enclosed for use as evidence in this
case.
I told Mr. Benito that I cannot do anything but report the matter to the
Commissioner. However, he pleaded that he be given first an opportunity to
restore the amount before I make my report in order that the penalty that may be
imposed upon him may be lessened to a certain degree. As I thought it wise in
the interest of the service to recover the amount involved, I allowed him to go and
see his parents in Naga City to raise the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an application for a
loan with the Government Service Insurance System and that the proceeds of the
said loan which he intended to use in restoring the amount malversed by him
were expected to be released during the last week of May, 1965. However, when
the month of May, 1965 elapsed without the amount involved having been
restored, I conferred with Mr. del Prado, my immediate superior and asked him
whether we should wait further for the release of the said loan in order that the
amount involved may be recovered. Mr. Prado consented to giving him a little
more time.
When Mr. Benito still failed to restore the amount in question by the end of June,
1965, I got hold of him on July 5, 1965 and together with Messrs. del Prado,
Abarquez and Gatchalian, also of this Commission, brought him before Deputy
Commissioner A. L. Buenaventura and reported the entire matter to the Deputy
Commissioner. In the presence of Messrs. del Prado, Abarquez, Gatchalian and
myself, Mr. Benito admitted readily and voluntarily before the Deputy
Commissioner the commission of the offense of malversation of public funds as
stated above.
In view of the foregoing, it is recommended that Mr. Benito be charged formally
and that he be suspended from office immediately considering the gravity of the
offense committed by him.
(Sg
d.)
PE
DR
O
R.
MO
NC
AY
O
Ad
mini
stra
tive
Offi
cer
II

Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio
Buenaventura that he had misappropriated his collections and spent the amount in nightclubs
and pleasure spots and for personal purposes. The decision dismissing him from the service
reads as follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash
Section, Administrative Division of this Office, for dishonesty.
The following excerpts from the letter dated October 22, 1965 of the
Commissioner of Civil Service connect respondent with the alleged
misappropriation of public funds representing his collection from the sale of
examination fee stamps and constitute the basis of the instant case against him:
An investigation made by this Commission shows that you
malversed public funds in the amount of P3,536.00 out of your
collections from the sale of examination fee stamps while in the
performance of your official duties as Clerk II in the Cash Section,
Administrative Division of this Office. It appears that you
succeeded in malversing the above-stated amount from your cash
collections by substituting in lieu thereof money orders worth
P3,436.00 remitted to this Commission by the Provincial
Treasurer of Negros Occidental which were duly receipted for by
you. It also appears that you extracted from a bundle of money
orders remitted by the Provincial Treasurer of Cotabato the
amount of P100.00 in money orders which were kept in one of the
cabinets in the Cashier's room.
Respondent denied the charge. He explained, among others, that money orders
were always kept in the Cashier's safe and he had no access to them. Although
he admitted having received money orders amounting to P3,436.00 remitted by
the Provincial Treasurer of Negros Occidental and another remittance of the
Provincial Treasurer of Cotabato he, however, disclaimed having substituted the
same for cash collections in his sale of examination fee stamps. He reasoned out
further that he could not be charged with malversation of public funds inasmuch
as he was not then an accountable officer.
It appears that respondent, as Clerk in the Cash Section, performs, among other
duties, the selling of examination fee stamps, receiving payments therefor, and
receiving remittances in form of cash and/or money orders from provincial
treasurers in connection with examinations held in the provinces. It was also his
duty to issue official receipts for said remittances. In the course of the
performance of his duties, he received said remittances from the Provincial
Treasurers of Negros Occidental and Cotabato, but no official receipts were
issued by him, as shown by the reply telegrams pertaining thereto. While records
disclose that remittances from the province of Cotabato were submitted to the
Cashier of the Civil Service Commission, there is no evidence showing that
remittances from Negros Occidental were likewise submitted.
Investigation further reveals that 50 money orders were discovered missing from
the remittances of Cotabato Provincial Treasurer which were kept in the cabinet
of the Cashier. On or about March 2, 1965, the Cashier of the Commission
noticed that 15 money orders turned over by respondent as part of his collections
in the sale of examination fee stamps were among the missing money orders.
This triggered off the filing of this case against the respondent.

On July 5, 1965, respondent admitted before the then Deputy Commissioner
Alipio Buenaventura having misappropriated an aggregate amount ranging from
P3,000 to P7,000, which he spent in night clubs, pleasure spots and other
personal benefits. Despite the testimonies of several witnesses regarding his
confession, including that of the then Deputy Commissioner himself, respondent,
when asked to take the stand, denied his previous admission.
Instead, he argued that the cash and accounts of the Cashier of the Civil Service
Commission, when examined by representatives of the Auditor's Office, did not
indicate any shortage and therefore there was no irregularity involved. This
argument is not well taken. Inasmuch as the remittances received by respondent
from said Provincial Treasurers of Negros Occidental and Cotabato were not in
turn given corresponding official receipts, naturally, the same were not reflected
on the Cashier's cash book.
The weakness of respondent's defense lies not so much on its failure to establish
convincingly his innocence as its irreconciliability with established facts.
Obviously, none of the circumstances in this case is consistent with his claim of
innocence. On the contrary, all of them put together produce reasonable
assurance of respondent's guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as
charged. Wherefore, he is dismissed from the service effective upon his receipt of
this decision.
In the interest of the service this decision is executed also on the date of his
receipt of this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision
dismissing him. The appeal was pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim,
Moncayo, allegedly made upon seeing Benito in the compound of the Civil Service Commission
near the canteen at eleven o'clock in the morning of December 12, 1969 (about six hours before
the shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified,
Moncayo said: "Hindi ko alam na itong Civil Service pala ay istambayan ng magnanakaw." (27
tsn December 26, 1969).
Mitigating circumstance of immediate vindication of a grave offense. Benito contends that
Moncayo insulted him when he (Moncayo) remarked that a thief was loitering in the premises of
the Civil Service Commission. Benito argues that that remark "was tantamount to kicking a man
already down and to rubbing salt into a raw wound" and that, as it was made publicly and in a
loud voice, he was exposed to ridicule in the presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16,
1975, acquitting him of the charge of malversation in connection with his alleged
misappropriation of the fees collected from the examinees of the 1974 patrolman examination.
That same decision makes reference to Benito's exoneration from the administrative charge. The
court's decision reads as follows:
The accused is charged with malversation under the following information:
That on or about and during the period comprised between
October 17, 1964, to February, 1965, inclusive, in the City of

Manila Philippines, the said accused being then employed as
Clerk I of the Civil Service Commission, a branch of the
government of the Republic of the Philippines, among whose
duties were to accept payments of fees collected from the
examinees of the 1964 Patrolman examination, and by reason of
his said position received the total amount of P3,536.00, with the
duty to turn over and/or account for his collections to the cashier
of the Civil Service Commission immediately or upon demand but
the said accused once in possession of the said amount of
P3,536.00, with intent to defraud, despite repeated demands
made upon him to turn over and to account for the same, did then
and there willfully, unlawfully and feloniously misappropriate,
misapply and convert and malverse the said amount to his own
personal use and benefit, to the detriment of public interest and to
the damage and prejudice of the said Civil Service Commission in
the said amount of P3,536.00, Philippine currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the Civil
Service Commission from May 27, 1964, as clerk I, range 23 from June 1, 1965
and as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the
duty, among others, of selling Civil Service examination- fee stamps and to
receive payment therefor, as well as to receive remittances of money orders and
checks from the provincial treasurers for payments of examination fee stamps
(Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period
alleged in the information, testified in his direct examination that Benito was
working in his office; that one of the duties that he assigned to him was to sell
examination fee stamps; that it was customary for him to give stamps to Benito at
the start of office hours in the morning and that Benito turned over to him the
proceeds of the sale, as well as the unsold stamps, at the close of office hours in
the afternoon; that one afternoon he noticed that Benito turned over to him 50
money orders from Cotabato, together with some cash, as proceeds of the sale
of stamps for that day; that he remembered that he was missing money orders
from one of his cabinets where he kept them; that when he discovered that the 50
money orders were those which were missing, he reported the matter to Pedro
Moncayo, the chief administrative officer; on March 1, 1965; that the money
orders were for P2.00 each, and were payments of the examination fees from
Cotabato (Exhibit F); that he discovered the loss of the 50 money orders on
February 28, 1965 and reported it to Moncayo on March 1, 1965, together with
the list of missing orders (Exhibit M); that after receiving the report, Moncayo
called Benito to the office of Abarquez where he admitted taking the missing
money orders; that Moncayo submitted a memorandum to the Commissioner,
dated October 21, 1965, after giving Benito a chance to refund the value of the
money orders (Exhibit O). Alipio Buenaventura, acting Deputy Commissioner at
the time, and Eliseo S. Gatchalian, budget officer, testified that when Benito was
confronted with the report of Moncayo and Abarquez, he admitted that he
misappropriated about P3,000.00 because of bad company and that he asked for
a chance to refund the money.
Under cross-examination, Abarquez elucidated his testimony in his direct
examination and explained that when Benito turned over the proceeds of the sale
of stamps for that particular day, he kept the sum of P100.00 and replaced it with

the 50 money orders that he had taken from the cashier's office to cover up the
money that he had pocketed. When he was asked when he discovered that
Benito substituted the 50 money orders from Cotabato, he answered that he
checked them the following night (March 2, 1965) with the list of money orders
remitted by the Provincial treasurer (Exhibits F, F-1); but when he was confronted
with his affidavit which he executed on April 18, 1966 (Exhibit R), he reluctantly
admitted that he had only verified 15 money orders missing as of April 18, 1966
and that he did not keep any record of the money and the money orders given to
him by Benito on March 1, 1965.
He also admitted that the room where he kept the money orders in an unlocked
drawer was also occupied by two other persons, and that this was the first time
that he had not followed the usual procedure of keeping them in the safe. He
further admitted that, although regular examinations were conducted during the
period of October 1, 1964 to February 28, 1965 by the examiners of the Civil
Service Commission and the auditors of the General Auditing Office, they did not
find any shortage in the accounts of Benito.
Finally, when the Court asked him what happened to the 50 money orders, at first
he hinted that they were not deposited with the Bureau of Treasury because they
were reported missing; but when pressed further, he said that he deposited them,
but did not issue any official receipt for them. When asked if he had any evidence
to show that they were actually deposited, he admitted that he could not even
remember when he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built its
case, is too weak and shaky to sustain a finding of guilt because of his glaring
inconsistencies, contradictions and gaps in memory. The prosecution has failed
to present convincing evidence that the 50 money orders were even lost:
According to Abarquez he had only verified the loss of 15 on April 18, 1966,
although he testified earlier that he determined the loss of 50 the night after
March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the General
Auditing Office did not find any irregularity in the cash accountability of Benito,
according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the
Commission on Audit and Miguel Games, auditing examiner assigned to the Civil
Service Commission, who testified for the accused. Benito was in fact exonorated
the administrative charge filed against him for the time same transaction (Exhibit
E).
In fact, the testimony of Abarquez under cross-examination that he has not
issued any official receipt for the 50 money orders and his inability to prove that
he deposited them with the bureau of Treasury gives rise to the suspicion that
other persons, not the accused, may have stolen the 50 missing money orders.
Even without taking into account the testimony of the accused, who denied the
testimonies of the witnesses for the prosecution, the court believes that the
prosecution has failed to prove the guilt of the accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with
costs de oficio.
The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to
the mitigating circumstance of vindication of a grave offense because it was not specifically
directed at Benito. The prosecution notes that the remark was uttered by Moncayo at eleven

o'clock in the morning. According to Benito's testimony (not consistent with his confession), he
saw Moncayo three hours later or at two o'clock in the afternoon and inquired from him about his
case and Moncayo said that he had already submitted his report and he could not do anything
more about Benito's case (26 tan). As already stated, the assassination was perpetrated at
around five o'clock in the afternoon of the same day.
Assuming that Moncayo's remark was directed at Benito, we see no justification under the
circumstances recited above for changing our prior opinion that the mitigating circumstance of
"haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del
delito," cannot be appreciated in Benito's favor. As aptly stated by the ponente, Justice Esguerra,
Benito "had more than sufficient time to suppress his emotion over said remark if he ever did
resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de Espaa)
no ha apreciado la proximidad ... cuando la ofensa se realizo por la maana y el delito tuvo lugar
por la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima cuando
transcurre tiempo suficiente para la razon recobre su imperio sobreponiendose a la pasion
(Sentencias de 28 mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la
proximidad debe desestimarse (Sentencia de 3 julio 1950). Exige gravedad en la ofensa y
proximada en la reaccion." (Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante
en favor del autor de un homicidio cometido 'algunas horas despues de haberle invitado el
interfecto a renir y golpeado en el pecho con las manos', porque el tiempo transcurrido entre los
golpes y la muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24 Junio
1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica Espaola 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito
and the assassination was more than sufficient to enable Benito to recover his serenity. But
instead of using that time to regain his composure, he evolved the plan of liquidating Moncayo
after office hours. Benito literally ambushed Moncayo just a few minutes after the victim had left
the office. He acted with treachery and evident premeditation in perpetrating the cold-blooded
murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo
was not the latter's alleged defamatory remark that the Civil Service Commission compound was
a hangout for a thief or for thieves but the refusal of Moncayo to change his report so as to favor
Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but mainly to
chastise Moncayo for having exposed the alleged anomalies or defraudation committed by
Benito and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank. Benito contends that disregard of rank should
not be considered against him because there was no evidence that he "deliberately intended to
offend or insult the rank" of Moncayo. That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service Commission
and that the killer was a clerk in the same office who resented the victim's condemnatory report
against him. In that situation, the existence of the aggravating circumstance of "desprecio del
respeto que por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his
superior, the chief of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting
Spanish consul by his subordinate, the chancellor of the consulate, who had misappropriated the
funds of the consulate, which misappropriation was discovered by the victim (People vs. Martinez

Godinez, 106 Phil, 597, 606). In these two cases the murder was aggravated by disregard of
rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.
April 16, 1934

G.R. Nos. 39708-09
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LEOVIGILDO DAVID, defendant-appellant.
Manuel S. Banzon, Eligio Lagman, Alberto Aquino and Vicente J Francisco
for appellant.
Office of the Solicitor-General Hilado for appellee.
VILLA-REAL, J.:
This case comprises two appeals taken by the defendant Leovigildo David from the
judgment rendered by the Court of First Instance of Bataan in criminal cases Nos.
3310 (G.R. No. 39708) and 3296 (G.R. No. 39709), the dispositive part of which
reads as follows:
Wherefore, in criminal case No. 3310, for frustrated murder, the court finds the
defendant Leovigildo David guilty of frustrated murder, without any aggravating
nor mitigating circumstances and, therefore, sentences him to twelve (12) years
and one (1) day of reclusion temporal with the accessory penalties of the law, to
indemnify the offended party Jose V. Reyes in the sum of one thousand pesos, with
no subsidiary imprisonment in case of insolvency, and to pay the costs.
The penalty of reclusion has been imposed instead of cadena following the
doctrine laid down in the case of People vs. Orifon (57 Phil., 594).

In criminal case No. 3296, for discharge of firearms with less serious physical
injuries, the court finds the defendant Leovigildo David guilty of the said crime
and sentences him to two (2) years, eleven (11 months and eleven (11) days
ofprision correccional, with the accessory penalties of the law, and to pay the
costs. So ordered.
In support of his appeal, the defendant-appellant assigns the following alleged
errors as committed by the trial court in its aforesaid decision, to wit:
1. In holding the defendant-appellant guilty of the crime of frustrated murder in the
above entitled case No. 3310, and consequently in sentencing him to reclusion
temporal, to indemnify the offended party and to pay the costs.
2. In holding the defendant-appellant guilty of the crime of discharged of firearm
with less serious physical injuries with which he was charged in the above entitled
case No. 3296 and sentencing him, by virtue of the same, to prision correccional,
with costs.
3. In adopting the prosecution's theory that the defendant, with deliberate intent to
kill Jose V. Reyes, fired from behind four revolver shots at the latter.
4. In not accepting the theory of the defense that the defendant, in firing his
revolver at the offended party, did not intend to kill the latter but he did so in
defense of his father and while the offended party was facing him.
5. In not acquitting the defendant-appellant of the charges in the two above entitled
case.
The two cases at bar arose from two informations filed by the provincial fiscal of
Bataan in the justice of the peace court of Dinalupihan, the one against Leovigildo
David and Teodoro David for frustrated murder committed on the person of Jose V.
Reyes at the time, place and in the manner described in the corresponding
information and the other against said Leovigildo David for discharge of firearm
with less serious physical injuries committed on the person of German Pinili at the
time, place and in the manner described in the corresponding information. After
preliminary investigations had been duly conducted and the cases forwarded to the

Court of First Instance of Bataan, the same provincial fiscal filed the following
informations:
On or about April 18, 1931, in the municipality of Dinalupihan, Province of
Bataan, Philippine islands, and within the jurisdiction of this Court of First
Instance, the abovenamed defendant Leovigildo David willfully, illegally and
criminally shot at German Pinili with his revolver, the bullet penetrating the latter's
left side and lodging itself in the left scapula, as a result of which said German
Pinili was under medical treatment for about 25 days.
That on or about April 18, 1931, in the barrio of Luacan, municipality Dinalupihan,
Province of Bataan, Philippine Islands, and within the jurisdiction of this court, the
said defendant, without any justifiable motive whatsoever and with deliberate
intent to kill Jose V. Reyes with treachery and evident premeditation, willfully,
illegally and criminally, fired four revolver shots at Jose V. Reyes, who then had
his back toward the defendant, inflicting upon him a serious bullet wound at the
back above the left clavicle, the medical treatment of which lasted about seventyseven (77) days, having thereby performed all the acts of execution which should
have, as a consequence, produced the crime of murder on the person of the said
Jose V. Reyes, which, nevertheless, was not consummated by reason of causes
independent of the will of the said defendant. The offended party spent about one
thousand pesos for the treatment of his wound.
The defendant is a recidivist, having been formerly convicted of the offense of less
serious physical injuries in criminal case No. 2901 of this court, by virtue of a final
and executory judgment dated December 8, 1927, the penalty of which was served
by the said defendant.
Contrary to the provisions of article 403, in connection with those article 3,
paragraph 2, of the Penal Code, and with the aggravating circumstance of
recidivism.
From the documentary as well as the oral evidence presented at the joint trial of the
two case, the following pertinent facts, which are necessary for the resolution of
the questions raised in these appeals, have been proven beyond reasonable doubt,
to wit:

The herein defendant-appellant Leovigildo David is the son of Teodoro David,
ademocrata candidate for municipal president of Dinalupihan, and the offended
party Jose V. Reyes is the brother of Emilio Reyes, nacionalista candidate for
member of the provincial board of Bataan, both during the general elections of
1931.
While Emilio Reyes and Teodoro David were engaged in an argument after the
former had quarreled with the aforesaid defendant-appellant, then an election
inspector, because said Emilio Reyes wanted to see the list of registered voters,
Jose V. Reyes, the complaint in criminal case No. 3310 and brother of Emilio
Reyes, arrived at the scene and asked who was making trouble. Upon hearing him,
Teodoro David, in a contemptuous tone, said in Tagalog: "Phse, ichura mong
lalake" (Pshaw, you are but a shrimp) and, opening the door of the car where he
was, rushed upon his interlocutor and the two engaged in a hand-to-hand fight
during which both fell to the ground. Teodoro David fell on his right side, face
downwards, Jose V. Reyes on top of him. The two constabulary soldiers present,
who had arrived in the same car with Teodoro David a few moments before, tried
to prevent them from coming to blows but due to the presence of many people who
were witnessing the quarrel, were unable to make timely intervention and
succeeded in separating the combatants only after they had already fallen to the
ground, Cirilo Dullas raising Jose V. Reyes and holding him aside, while Esteban
Aninang did the same to Teodoro David and took him to his car. While Jose V.
Reyes was on top Teodoro David, there was heard a first shot, which did not hit its
mark, fired by the herein defendant Leovigildo David, later followed by another
which hit the stock of the gun carried by the constabulary soldier Cirilo Dullas in
his right hand as he held Jose V. Reyes with his left hand after separating the latter
from Teodoro David. Upon hearing the second shot and feeling the bullet hit the
stock of his gun, Dullas instinctively shoved Jose V. Reyes, whom he continued to
hold by the left arm with his left hand, causing the latter stagger and stoop to the
right side, his back toward the north whence the shots came. While Jose V. Reyes
was thus stooping, a third shot was heard, which hit the upper left hand side of
Reyes' body, whereupon he fell to the ground. Immediately thereafter, there rang a
fourth shot which hit the left axilla of the boy German Pinili, who was perched on
top of a fence witnessing the fight between Jose V. Reyes and Teodoro David. Jose
V. Reyes was immediately brought by his brother Emilio Reyes and others to Dr.

Gonzalo Nuguid's clinic in Orani, Bataan, where he was given first aid, while the
constabulary soldiers seized the revolver of the defendant Leovigildo David and
placed him under arrest. In the chamber of the revolver of the defendant Leovigildo
David were found four empty cartridges. Constabulary Captain Cirilo Legaspi,
who had been notified of the incident, immediately ordered the seizure of Jose V.
Reyes' revolver which was found in a box in the latter's house, while he,
accompanied by his brother Emilio Reyes, was being treated by the doctor.
The first question to be decided in this appeal, in connection with the criminal case
for frustrated murder, is one of fact and consists in whether or not Jose V. Reyes
had his back toward Leovigildo David when the latter shot at him.
The witnesses of the prosecution testified in the negative stating that when the
defendant fired the shot which hit Jose V. Reyes, the latter was on top of Teodoro
David, the defendant's father, and in the act of hitting Teodoro on the forehead for
the second time the butt of his revolver. The testimony of the constabulary soldier
Esteban Aninang, who stated that the violent shove given Jose V. Reyes by his
companion Cirilo Dullas caused the said Jose V. Reyes to stagger and stoop to the
right side and at the same time to turn his back toward the defendant
simultaneously with the third shot, corroborates the testimony of the witnesses for
the defense that Jose V. Reyes was facing the defendant.
The second question of fact to be decided is whether or not Jose V. Reyes had
struck Teodoro David with the butt of his revolver, while the latter was under him,
and was in the act of striking said Teodoro David for the second time when
Leovigildo David fired the shot which hit him.
On this point, the testimony of the two constabulary soldiers, who may be regarded
as impartial witnesses, is unanimous in that when Jose V. Reyes received the bullet
wound, he was already standing far from Teodoro David and beside the
constabulary soldier Cirilo Dullas who had dragged him away from said Teodoro
David.
From the foregoing, it may be stated as a conclusion of fact that when Leovigildo
David fired the shot that hit Jose V. Reyes, the latter was facing him, and if the
bullet hit Jose V. Reyes on the back, it was due to the fact that his position was

changed upon being shoved by the constabulary soldier; and that when the said
complainant was already far from Teodoro David.
Now then, do the above facts, which were proven beyond reasonable doubt at the
trial, constitute the crime of frustrated murder for which the defendant Leovigildo
David has been convicted and sentenced?
Inasmuch as the defendant fired the shot facing the victim and in the presence of
many people, he did not employ means, methods and forms in the execution of the
crime, which tend directly and specially to insure its execution without risk to
himself arising from the defense which the offended party might make (article 10,
No. 2, of the old Penal Code). The very fact that Jose V. Reyes had been shoved by
the constabulary soldier Cirilo Dullas shows that he could have evaded the shot
and thereby frustrate the defendant's intent. Therefore, the circumstance of
treachery was not present in the commission of the crime.
Did the defendant Leovigildo David have the intention of killing Jose V. Reyes?
The defendant-appellant invokes the defense of a relative to exempt himself from
criminal liability (article 8, No. 5, of the old Penal Code). It has been shown that
when the said defendant fired at Jose V. Reyes, the aggression had already ceased
and, therefore, the motive for defense; and in firing at his victim, the defendant's
intention could not have been only to repel the aggression against his father but
also to kill Jose V. Reyes. Therefore, the intention of the defendant Leovigildo
David to kill Jose V. Reyes is obvious.
The third question to be decided is whether or not the defendant Leovigildo David,
having intended to kill Jose V. Reyes, had performed all the acts of execution
which should have produced the latter's death, but did not produce it by reason of
causes independent of his will (article 3 of the old Penal Code).
The doctors, who testified as experts on whether or not the wound received by Jose
V. Reyes was necessarily mortal, are not unanimous.
Dr. Anzures testified as follows: "As to the seriousness of the wounds, I can only
make approximate statements, not accurate ones, because in order to determine the
seriousness of a wound a doctor should see the organs internally affected by it. No

doctor can with certainly state the seriousness of a wound for it is determined only
during the autopsy. . . . " (T. s. n., pp. 144, 145.) "On the basis of general
principles, the wound was not mortal. The general principles I am referring to
relate to the mortal positions of the organs and tissues." (T. s. n., pp. 151.) "Judging
from the position of the scars, I am of the opinion that the left lung was affected
but the affected part is near the border." "It would be perforated. The effect should
be internal hemorrhage but the flow of the blood would be mortal because the
blood vessels in that region are small." "All the wounds, including those caused at
the base of the lungs, are not mortal." (T. s. n., p. 152.)
It will be seen that the testimony of Dr. Anzures is purely hypothetical because he
has seen nothing but the scars, but nevertheless he is of the opinion that if the lung
had been perforated, it would result in an internal hemorrhage and the flow of the
blood would be mortal because the blood vessels of that part are small.
Dr. Afable, who may be said to have saved the offended party's life, testified as
follows: "Taking all the abovestated facts into consideration, I arrived at the
conclusion that the blood found in the lung of Mr. Reyes had its origin in the injury
or wound in the upper left part of the chest." (T. s. n., p. 6.) "I am of the opinion
that had not the fluid been drained from the patient's lung, it could have caused his
death, taking into consideration the condition in which he was then found." (T. s.
n., p. 8.) Answering a question regarding the accumulation of the fluid in the
pleural region due to the congestion of the lung, he said: "That is one of the causes
of death in this case, and a continuous internal hemorrhage might cause death as
well." (T. s. n., p. 16.)
From all the above expert testimony, it may be inferred that had it not been for the
timely and adequate medical intervention, the offended party Jose V. Reyes would
have succumbed from the wound in his lung. A wound that may, by itself alone,
produce a similar consequence, is mortal.
The defendant-appellant Leovigildo David, in firing his revolver and hitting Jose V.
Reyes on the upper left hand part of his body, piercing it from side to side and
perforating the lung, then performed all the acts of execution which should have
produced the latter's death but did not produce it by reason of timely and adequate
intervention of medical science, which was completely independent of his will.

The facts proven at the trial as committed by the defendant-appellant Leovigildo
David constitute the crime of frustrated homicide, defined and penalized in article
404 of the old Penal Code which was in force at the time of the commission of the
crime. The penalty prescribed by law for the said crime, if consummated,
is reclusion temporal in its full extent. Inasmuch as the crime with which
Leovigildo David is charged herein is merely frustrated, the said penalty should be
one degree lower, that is, prision mayor in its full extent, the duration of which is
from six years and one day to twelve years. In order to determine the penalty, the
presence of the mitigating circumstance of immediate vindication of a grave
offense committed against an ascendant (article 9, No. 5, of the Penal Code) should
be taken into consideration, without any aggravating circumstance to compensate
the same, for which reason the said penalty should be imposed in its minimum
period, that is, from six years and one day to eight years of prision mayor (article
81, rule 2, of the Penal Code).
As to the offended party German Pinili, the evidence shows beyond reasonable
doubt that one of the shots fired by the defendant Leovigildo David hit him on the
left axilla, the treatment of the wound having lasted about twenty-five days.
Although it is true that the shot, which hit the boy German Pinili, was not aimed at
him, however, it cannot be considered accidental because, it having been
voluntarily aimed at Jose V. Reyes, the defendant-appellant Leovigildo David is
liable for the consequences of his act, in accordance with the provisions of article
1, paragraph 3, of the old Penal Code, which provides that "any person voluntarily
committing a felony (delito) or misdemeanor (falta) shall incur criminal liability,
although the wrongful act done be different from that which he intended."
Although the crime, which the defendant Leovigildo David had intended to
commit against Jose V. Reyes, was homicide, the crime committed by him against
the boy German Pinili is discharge of firearms with less serious physical injuries,
and the penalty which should be imposed upon him is that which corresponds to
this complex crime, in its maximum period (article 64, paragraph 2, of the old
Penal Code). However, inasmuch as he is charged only with the said complex
crime, the only penalty that may be imposed upon him is that corresponding to this
offense of discharge of firearms with less serious physical injuries, defined and

penalized in article 408, in connection with article 418 of the old Penal Code,
with prision correccional in its minimum and medium periods, that is, from six
months and one day to four years and two months, which should be imposed in its
maximum period, that is, from two years and two months, in accordance with the
rule established in article 89, paragraph 2, of the same Code. There being no
modifying circumstance to be taken into consideration, the said penalty should be
imposed in its medium period, that is, from three years, four months and eight days
to three years, nine months and three days.
In both cases, Act No. 4103, otherwise known as the Indeterminate Sentence
law, is applicable to the defendant-appellant, and consequently the maximum of the
penalty, which he should suffer in case No. 3310, should be the maximum of that
which should be imposed upon him under the law, that is, eight years of prision
mayor; and the minimum, a penalty embraced within that next lower in degree to
that prescribed by law for the crime of frustrated homicide, which is prision
correccional in its full extent, the duration of which is from six months and one
day to six years, that is one year and one day of prision correccional. Therefore,
the total extent of the penalty to be imposed upon the defendant for the crime of
frustrated homicide should be from one year and one day to eight years.
In criminal case No. 3296, for the complex crime of discharge of firearms with less
serious physical injuries, the maximum of the penalty, which should be imposed
upon the defendant, is the maximum period of the penalty prescribed by the law,
that is, three years, nine months and three days of prision correccional, and the
minimum, four months and one day of arresto mayor, a penalty embraced within
that next lower in degree which is arresto mayor in its medium and maximum
periods, the duration of which is from four months and one day to six months, and
consequently the full extent of the penalty which should be imposed upon him is
from four months and one day to three years, nine months and three days.
The total amount of the expenses incurred by the offended party for medical
assistance is P1,030.79.
Wherefore, the judgment appealed from is hereby modified, and the defendant
Leovigildo David is declared guilty of the crime of frustrated homicide in criminal
case No. 3310 of the Court of First Instance of Bataan (G. R. No. 39709) and

sentenced to one (1) year and one (1) day of prision correccional to eight (8)
years of prision mayor and to indemnify the offended party Jose V. Reyes for
damages in the sum of P1,030.79; and in criminal case No. 3296 of the said Court
of First Instance of Bataan (G.R. No. 39708), he is declared guilty of the crime of
discharged of firearms with less serious physical injuries, and sentenced to four
months and one day to three years, nine months and three days, with the costs of
both instances in the two cases against the appellant. So ordered.
Malcolm, Abad Santos, Butte and D
G.R. No. 4971
September 23, 1909
THE UNITED STATES, plaintiff,

vs.
AUGUSTUS HICKS, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Jose Robles Lahesa for defendant.
TORRES, J.:
For about five years, from September, 1902, to November, 1907, Augustus Hicks, an AfroAmerican, and Agustina Sola, a Christian Moro woman, illicitly lived together in the municipality
of Parang, Cotabato, Moro Province, until trouble arising between them in the last-mentioned
month of 1907, Agustina quitted Hick's house, and, separation from him, went to live with her
brother-in-law, Luis Corrales. A few days later she contracted new relations with another negro
named Wallace Current, a corporal in the Army who then went to live in the said house.
On the 21st of December following, at about 7:30 p. m., Augustus Hicks together with a soldier
named Lloyd Nickens called at said house, and from the sala called out to his old mistress who
was in her room with Corporal Current, and after conversing with her in the Moro dialect for a few
minutes, asked the corporal to come out of said room; in response thereto the corporal appeared
at the door of the room, and after a short conversation, Current approached Hicks and they
shook hands, when Hicks asked him the following question: "Did I not tell you to leave this
woman alone?," to which Current replied: "That is all right, she told me that she did not want to
live with you any longer, but if she wishes, she may quit me, and you can live with her." The
accused then replied: "God damn, I have made up my mind;" and as Corporal Current saw that
Hicks, when, he said this, was drawing a revolver from his trousers' pocket, he caught him by the
hand, but the latter, snatching his hand roughly away, said: "Don't do that," whereupon Current
jumped into the room, hiding himself behind the partition, just as Hicks drew his revolver and
fired at Agustina Sola who was close by in the sala of the house. The bullet struck her in the left
side of the breast; she fell to the ground, and died in a little more than an hour later.

Upon hearing the shot Edward Robinson, who was also in the house, went to render assistance
and wrested the weapon from the hand of the accused. The latter immediately fled from the
house and gave himself up to the chief of police of the town, H. L. Martin, asking him to lock him
up in jail; and, when a few minutes later a policeman came running in and reported that Hicks
had fired a shot at Agustina, the said chief of police caused Hicks to be arrested. The latter, when
once in jail, threw eight revolver cartridges out of the window; these were picked up by a
policeman who reported the occurrence and delivered the cartridges to his chief.
In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a complaint with
the Court of First Instance of said province charging Augustus Hicks with the crime of murder.
Proceedings were instituted, the trial court, after hearing the evidence adduced, entered
judgment on the 10th of September of the same year, sentencing the accused to the penalty of
death, to be executed according to the law, to indemnify the heirs of the deceased in the sum of
P1,000, and to pay the costs. The case has been submitted to this court for review.
The above-stated facts, which have been fully proven in the present case, constitute the crime of
murder, defined and punished by article 403 of the Penal Code, in that the woman Agustina Sola
met a violent death, with the qualifying circumstance of treachery (alevosia), she being suddenly
and roughly attacked and unexpectedly fired upon with a 45-caliber revolver, at close, if not point
blank range, while the injured woman was unarmed and unprepared, and at a time when she
was listening to a conversation, in which she was concerned, between her aggressor and third
person, and after usual and customary words had passed between her and her aggressor. From
all of the foregoing it is logically inferred that means, manners, and forms were employed in
attack that directly and specially insured the consummation of the crime without such risk to the
author thereof as might have been offered by the victim who, owing to the suddenness of the
attack, was doubtless unable to flee from the place where she was standing, or even escape or
divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory allegations
which were certainly not borne out at the trial, the evidence in the case is absolutely at variance
therewith and conclusively establishes, beyond peradventure of doubt, his culpability as the sole
fully convicted author of the violent and treacherous death of his former mistress, Agustina Sola.
It is alleged by the accused that when he withdrew his hand from that of Current, who had seized
him, he fell backward but managed to support himself on his two hands, and when he got up
again the said corporal threatened him with a revolver thrust into his face; whereupon he also
drew his revolver, just as Edward Robinson caught him from behind, when his revolver went off,
the bullet striking the deceased.
This allegation appears to be at variance with the testimony of the witnesses Wallace Current,
Edward Robinson, Luis Corrales, and Lloyd Nickens in their respective declaration, especially
with that of the second and third, who witnessed the actual firing of the shot by the aggressor at
the deceased, as shown by the fact that Robinson immediately approached the accused in order
to take his weapon away from him which he succeeded in doing after a brief struggle, whereupon
the aggressor ran out of the house. Thus, the shot that struck the deceased in the breast and
caused her death was not due to an accident but to a willful and premeditated act on the part of
the aggressor with intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above referred to, the presence of
other aggravating circumstances, such as premeditation, and the fact that the crime was
committed in the dwelling of the deceased should be taken into consideration. The lastmentioned circumstances appears proven from the testimony of several witnesses who were
examined at the trial of the case.

Inasmuch as in the present case the crime has already been qualified as committed with
treachery, the circumstance of premeditation should only be considered as a merely generic one.
Premeditation is, however, manifest and evident by reason of the open acts executed by the
accused. According to the testimony of Charles Gatchery and Eugenio R. Whited, Hicks asked
leave from the former to be absent from the canteen where he was working on the morning of
the day when the affray occurred, alleging that his mind was unsettled and that he feared getting
into trouble. It is also shown by the fact that Whited, who was in Hicks' house about noon upon
the latter's invitation, and while both where drinking gin, and while the revolver, the instrument of
the crime, was lying on the table on which were also several loaded cartridges, heard the
accused repeatedly say, referring to the deceased, that her time had come, adding that he would
rather see her dead than in the arms of another man, and when the accused went to bed
apparently very much worried, and refusing to answer when called, the witness left him. On the
day after the crime the police found on a table in the cuprit's house several loaded cartridges, a
bottle of oil and a piece of cloth used undoubtedly for cleaning the revolver.
All the foregoing circumstances conclusively prove that the accused, deliberately and after due
reflection had resolved to kill the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the fact that he was already
provided with a clean and well-prepared weapon and carried other loaded cartridges besides
those already in his revolver, he entered the house, greeting everyone courteously and
conversed with his victim, in what appeared to be a proper manner, disguising his intention and
claiming her by his apparent repose and tranquility, doubtless in order to successfully accomplish
his criminal design, behaving himself properly as he had planed to do beforehand.
As against the two foregoing aggravating circumstances no mitigating circumstances is present,
not even that mentioned in paragraph 7 of article 9 of the Penal Code, to wit loss of reason and
self-control produced by jealousy as alleged by the defense, inasmuch as the only causes which
mitigate the criminal responsibility for the loss of self-control are such as originate from legitimate
feelings, not those which arise from vicious, unworthy, and immoral passions.
From the foregoing considerations, and as the judgment appealed from is in accordance with the
law, it is our opinion that the same should be affirmed, as we do hereby affirm it with costs,
provided, however, that the death penalty shall be executed according to the law in force, and
that in the event of a pardon being granted, the culprit shall suffer the accessory penalties of
article 53 of the Penal Code unless the same be expressly remitted in the pardon. So ordered.
[G.R. No. 132169. October 26, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SANICO NUEVO

@ SANY, accused-appellant.
DECISION
QUISUMBING, J.:

On automatic review is the decision of the Regional Trial Court of Sindangan,
Zamboanga del Norte, Branch 11, finding accused Sanico Nuevo @ Sany guilty of rape and
sentencing him to death.
[1]
His conviction stemmed from the following information:
[2]
That, in the evening, on or about the 4th day of December, 1994, in the
municipality of Godod, Zamboanga del Norte, within the jurisdiction of this
Honorable Court, the said accused, moved by lewd and unchaste design and by
means of force, violence and intimidation, did then and there wilfully, unlawfully
and feloniously succeed in having sexual intercourse with one ROBERTA CIDO, a
20 year old married woman, against her will and without her consent.
CONTRARY TO LAW (Viol. of Art. 335, Revised Penal Code).
A plea of not guilty was entered upon arraignment.
During trial, the prosecution presented three witnesses, namely: (1) complainant Roberta
Cido; (2) Anselmo Cido, Jr., the complainants husband; and (3) Dr. Esmeralda Nadela, a
resident physician of the Sindangan District Hospital, Sindangan, Zamboanga del
Norte. They testified as follows:
ROBERTA CIDO recalled that at about 9:00 oclock in the evening of December 4,
1994, Sanico Nuevo passed by their house and invited her husband Anselmo Cido, Jr., to a
drinking spree at the house of Anselmo, Sr., her father-in-law. She was left at home with her
10-month-old daughter and her nine-year-old niece Gemma Atis. They slept in the living
room, cum bedroom, the only room in the house. At around 11:00 P.M., appellant
surreptitiously returned and entered their room. She was awakened when appellant held her
neck, pinned down her arms and took off her clothing. While Sanico was removing her
panties, she struggled to extricate herself but to no avail. She was unable to shout because
appellant was covering her mouth. While she was lying on her back, appellant laid on top of
her and proceeded to forcibly have sexual intercourse with her, at the same time pinning her
down with a bolo. As this was happening her niece Gemma, who was present, witnessed what
was being done to her.Appellant even warned Gemma not to reveal what she saw and at the
same time threatened Roberta not to tell her husband about the incident or else he would kill
her. He thereafter left the house.
[3]
[4]
[5]
[6]
Roberta further testified that her husband Anselmo, Jr., returned home only the morning
after. She immediately told her husband about the previous nights incident. The latter
hastened to the house of Sanico but did not find him. Appellant was arrested that same
afternoon.
[7]
Although Roberta testified on cross-examination, that she did not see him because it was
very dark that night, she identified him through his voice. She was certain it was he because
she was very familiar with appellants voice. Not only have they been neighbors since
childhood, she also heard the appellant when he invited her husband earlier that evening, and
when he warned her and her niece not to tell anyone what happened.
[8]
For his part, ANSELMO CIDO, JR., corroborated part of his wifes story. He narrated
that at around 9:00 P.M., December 4, 1994, Sanico with companions dropped by their house
and invited him to a drinking spree in his fathers (Anselmo, Sr.) house, about 50 meters away

from theirs. While there, they drank until dawn. Sanico left his fathers place at around 11:00
P.M., purportedly to answer the call of nature, and returned only at around 1:00 A.M. of
December 5, 1994. At the time Sanico left, Anselmo, Jr., observed that he was carrying an 18inch bolo. When Anselmo, Jr., arrived home early in the morning, his wife told him of her
ordeal.
[9]
DR. ESMERALDA NADELA testified on her medical findings contained in her MedicoLegal Certificate dated December 6, 1994, which document she brought along and read in
open court. She said Roberta told her that the latter was submitting herself for medical
examination because she was raped, and that her last sexual contact with her husband was a
week before the incident. Nadela testified further that based on her examination conducted
two days after the alleged incident, no fresh injuries were actually found on the victim; that
only old lacerations were present; that such absence was possible due to the victims previous
child birth; and that no spermatozoa was found on the victim, which was likely because the
examination was conducted only two days after the alleged rape.
[10]
[11]
For the defense, two witnesses were presented. First was the appellant himself, SANICO
NUEVO. He declared that he knew Roberta since they were schoolmates in grade school and
she was a former neighbor. He lived about 100 meters from her house. Moreover, her
husband Anselmo, Jr., was his barkada. He recounted that at about 6:30 P.M., December 4,
1994, his father and he went to the house of Anselmo, Sr., to buy Tanduay Rum and drank
with their friends Rudy and Ami Tinambakan. On the way, they had to pass by the house of
Anselmo, Jr. He denied he invited the younger Anselmo to go drinking as the latters house
was already close by. It was Anselmo, Jr., who later followed and joined them until around
10:30 P.M. Appellant said he stayed in the house of Anselmo, Sr., where he slept at around
12:00 oclock midnight. It was already 6:30 A.M. the following day when he woke up. He
denied raping Roberta. He added that the house of Anselmo, Sr., was only about 35 meters
from the house of Roberta.
[12]
The second witness for the defense was EMELIO NUEVO, brother of appellant. He
claimed that he was with his brother Sanico and two neighbors the night of the incident. He
corroborated his brothers story that they were drinking at the house of Anselmo, Sr., and he
noticed his brother asleep on the upper floor of Anselmo Sr.s house, when he left at around
5:00 A.M. early in the morning while the others were still dancing downstairs. He admitted,
however, that he told no one of seeing his brother sleep in the house of Anselmo Sr., even
when he found out that his brother was to be arrested, and even when he saw him tied up and
already in the custody of the police. He did not disclose this fact, even when he was already
alone with his other brother who was a councilor of their place. It was only in his testimony
during trial that he chose to reveal these facts in Sanicos defense. He also said he was not
aware of any misunderstanding between his brother and the spouses Roberta and Anselmo, Jr.
[13]
[14]
The trial court found the prosecutions version of events credible and disbelieved that of
the defense. It rendered judgment as follows:
IN VIEW OF THE FOREGOING, the Court finds the accused SANICO NUEVO
guilty beyond reasonable doubt of the crime charged in the above-quoted
information with aggravating circumstances of dwelling (Article 14, (3) of the
Revised Penal Code; People vs. Padilla, 242 SCRA 629) and committed in full
view of the relative within the third degree of consanguinity (Sec. 11 R.A. 7659),
but since no mitigating circumstances (sic) to offset the above aggravating

circumstances, the Court hereby sentences the accused Sanico Nuevo to suffer the
maximum penalty provided by law which is DEATH and to pay the private
offended party in the sum of P50,000.00.
COSTS de officio.
SO ORDERED.
[15]
In his brief, appellant assigns one error only:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT SANICO
NUEVO OF COMMITTING RAPE AGAINST ALLEGED VICTIM ROBERTA CIDO
DESPITE INSUFFICIENT EVIDENCE OF HIS POSITIVE IDENTIFICATION.
[16]
In resolving cases of rape, this Court is guided by the following principles: (a) an
accusation for rape can be made with facility; it is difficult to prove but even more difficult
for the appellant, although innocent, to disprove; (b) in view of the intrinsic nature of the
crime where only two persons are usually involved, the testimony of the complainant must be
scrutinized with extreme caution; (c) the evidence for the prosecution must stand or fall on its
own merit, and cannot be allowed to draw strength from the weakness of the evidence for the
defense (People vs. Quijada, 321 SCRA 426 [1999]); and (d) the evaluation of the trial court
judges regarding the credibility of witnesses deserves utmost respect on the ground that they
are in the best position to observe the demeanor, act, conduct, and attitude of the witnesses in
court while testifying (People vs. Maglente, 306 SCRA 546 [1999]).
In our view, the first issue for our resolution here is whether appellant was sufficiently
identified by the offended party based only on her recognition of the sound of his voice. The
second issue is whether the prosecutions evidence suffices for the conviction of rape and the
imposition of the death penalty on him.
Appellant denies he raped Roberta Cido. He questions the certainty of his identification
as the offender. He avers that the night of the rape, there was no moon and it was very
dark. Nor was there any showing of illumination from any source in and out of the house of
the victim. Further, she averred that she identified her rapist only because she recognized his
voice. According to appellant, such voice identification is insufficient to prove he was the
rapist.
In People vs. Reyes, we held that once a person has gained familiarity with another,
identification becomes quite an easy task even from a considerable distance. In a number of
cases, we ruled that the sound of the voice of a person is an acceptable means of
identification where it is established that the witness and the accused knew each other
personally and closely for a number of years. Appellant did not deny that he and Roberta
had known each other since childhood and that appellant and Robertas husband
were barkada. It is not impossible then that complainant could immediately recognize
appellant through his voice alone. In addition, appellants face was very near the victim such
that the victim could not have misidentified him, even only by voice recognition.
[17]
[18]
[19]
[20]
[21]
According to appellant, Roberta claims she smelled marijuana on the rapist but she
patently made a mistake since he should have smelled of Tanduay Rum instead, because that

was what he drank. In addition, he argues that since no physical injury was found on Roberta
to show that there was force or intimidation inflicted on her, therefore, no rape had happened.
As testified to by Dr. Nadela, however, lacerations or signs of injury may not be present
in this case due to the fact that the victim had already given birth to a child. Moreover,
according to the victim, appellants penis was relatively small in size, about two and a half
inches long. This is consistent with Dr. Nadelas testimony that in some cases of women who
have already given birth, it would take an extra-large male organ to cause
lacerations. According to her, healed lacerations or the absence of spermatozoa in the vaginal
canal do not negate rape. We are, thus, constrained to say that appellants bland conclusion
that no rape happened for lack of physical injuries on the person of the victim is clearly
a non-sequitur.
[22]
[23]
[24]
Appellants claim that Roberta should have smelled him reeking of liquor instead of
marijuana is beside the point and deserves scant consideration. Note that appellant and his
five other companions shared only four bottles of pocket-sized Tanduay mixed with
softdrinks. Thus, it was not unlikely that he did not smell strongly of liquor. Further, note
that the drinking spree started at 8:30 P.M., and it was barely two hours thereafter when
appellant left the group, according to prosecution witnesses. Besides, that Roberta said she
detected the smell of marijuana on her abuser does not change the fact that she identified him
positively and without any reservation as the perpetrator of the offense.
[25]
Considering the circumstances in this case, in the light of the testimony by the victim and
her witnesses as well as of those for the defense, we agree with the trial court that Roberta
had sufficiently identified appellant as the person who raped her, by means of force, violence
and intimidation, against her will and without her consent. Appellant is guilty beyond
reasonable doubt of the crime charged.
We are, however, constrained to disagree concerning the penalty imposed on him. An
appeal in a criminal case throws the entire case wide open for review and it is the duty of the
appellate court to correct errors, as may be found in the appealed judgment, even if
unassigned. This salutary principle governs our automatic review of death penalty cases as
well.
[26]
Although not assigned as an error, it is our view that the trial court erred in appreciating
the qualifying circumstance under par. 3, Section 11, R.A. 7659, concerning the presence of
a relative, to justify the imposition of the death penalty.
[27]
In People vs. Amadore, we held that the attendance of any of the circumstances under the
provisions of Section 11 of Republic Act No. 7659, mandating the death penalty are in the
nature of qualifying circumstances and the absence of proper averment thereof in the
complaint will bar the imposition of that extreme penalty. The information in this case did
not allege the qualifying circumstance, that the rape was committed in full view of a niece (a
relative within the third degree of consanguinity). Because of this deficiency, appellant was
not properly apprised of the extent of the punishment which the charges against him
entailed. Thus, it was an error to consider the foregoing circumstance in the imposition of the
proper penalty on appellant.
[28]
Further, while the decision of the trial court held that dwelling and the use of a deadly
weapon aggravated the crime committed, we find that these were not averred in the
information. The Revised Rules of Criminal Procedure, effective December 1, 2000, provides
that every complaint or information must state not only the qualifying but also the

aggravating circumstances with specificity. This requirement of procedure has retroactive
effect and is applicable to actions pending and undetermined at the time of their passage
insofar as it is favorable to the appellant. Procedural laws are retroactive in that sense and to
that extent. Here, it was error to appreciate dwelling and the use of a deadly weapon as
aggravating circumstances in the commission of the offense. In sum, we find that no
aggravating as well as qualifying circumstances have been properly pleaded and proved by
the prosecution in this case. The result is that the crime committed by appellant is only simple
rape, which under Article 335 of the Revised Penal Code as amended by R.A. 7659, the law
prevailing at the time of commission thereof, is punished only with reclusion perpetua.
[29]
[30]
Moreover, on the civil aspect, modification is also in order. Private complainant is

entitled not only to P50,000 as civil indemnity, but following current jurisprudence, also to
P50,000 as moral damages and P25,000 as exemplary damages.
WHEREFORE, the decision of the trial court is MODIFIED. The appellant is declared
GUILTY of the crime of simple rape beyond reasonable doubt, and he is hereby sentenced to
suffer the penalty ofreclusion perpetua. Conformably with prevailing jurisprudence, appellant
is also ordered to pay the offended party P50,000 as civil indemnity, P50,000 as moral
damages and P25,000 as exemplary damages.
SO ORDERED.
G.R. No. L-7094
March 29, 1912
THE UNITED STATES, plaintiff-appellee,

vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant.
Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide of which he was convicted in
the court below is conclusively established by the evidenced of record.
The trial court was of opinion that its commission was not marked by either aggravating or
extenuating circumstances, and sentenced the convict to fourteen years eight months and one
day of reclusion temporal, the medium degree of the penalty prescribed by the code. Burt we are
of opinion that the extenuating circumstance set out in subsection 7 of article 9 should have been
taken into consideration, and that the prescribed penalty should have been imposed in its
minimum degree. Subsection 7 of article 9 is as follows:
The following are extenuating circumstances:
xxx
xxx
xxx

That of having acted upon an impulse so powerful as naturally to have produced passion
and obfuscation.
The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who
had theretofore been his querida (concubine or lover) upon discovering her in flagrante in carnal
communication with a mutual acquaintance. We think that under the circumstances the convict
was entitled to have this fact taken into consideration in extenuation of his offense under the
provisions of the above-cited article.
This was the view taken by the Court of Spain upon a similar state of facts as set forth in its
sentence of July 4, 1892, which is summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as
follows:
Shall he who kills a woman with whom he is living in concubinage for having caught her
in her underclothes with another party and afterwards shoots himself, inflicting a serious
wound, be responsible for that crime with the extenuating circumstance of having acted
with violent passion and obfuscation? The Audiencia of Santiago de Cuba did not so hold
and its judgment was reversed by the supreme court for the improper disregard of article
9, number 8, of the Penal Code for Cuba and Puerto Rico: "The facts held to be true by
the trial court, and which were the immediate cause of the crime by producing in the
accused strong emotion which impelled him to the criminal act and even to attempt his
own life, were a sufficient impulse in the natural and ordinary course to produce the
violent passion and obfuscation which the law regards as a special reason for
extenuation, and as the judgment did not take into consideration the 8th circumstance of
article 9 of the code, the Audiencia rendering it seems to have violated this legal
provision."
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which
mitigate the criminal responsibility for the loss of self-control are such as originate from legitimate
feelings, not those which arise from vicious, unworthy, and immoral passions," and declined to
give the benefit of the provisions of this article to the convict in that case on the ground that the
alleged causes for his loss of self-control did not "originate from legitimate feelings." But in that
case we found as facts that:
All the foregoing circumstances conclusively prove that the accused, deliberately and
after due reflection had resolved to kill the woman who had left him for another man, and
in order to accomplish his perverse intention with safety, notwithstanding the fact that he
was already provided with a clean and well-prepared weapon and carried other loaded
cartridges besides those already in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be in a proper manner,
disguising his intention and calming her by his apparent repose and tranquility, doubtless
in order to successfully accomplish his criminal design, behaving himself properly as he
had planned to do beforehand.
In the former case the cause alleged "passion and obfuscation" of the aggressor was the
convict's vexation, disappointment and deliberate anger engendered by the refusal of the woman
to continue to live in illicit relations with him, which she had a perfect right to do; his reason for
killing her being merely that he had elected to leave him and with his full knowledge to go and
live with another man. In the present case however, the impulse upon which defendant acted and
which naturally "produced passion and obfuscation" was not that the woman declined to have
illicit relations with him, but the sudden revelation that she was untrue to him, and his discovery
of her in flagrante in the arms of another. As said by the supreme court of Spain in the abovecited decision, this was a "sufficient impulse" in the ordinary and natural course of things to
produce the passion and obfuscation which the law declares to be one of the extenuating
circumstances to be taken into consideration by the court.

Modified by a finding that the commission of the crime was marked with the extenuating
circumstance set out in subsection 7 of article 9, and by the reduction of the penalty of fourteen
years eight months and one day ofreclusion temporal to twelve years and one day of reclusion
temporal, the judgment of conviction and the sentence imposed by the trial court should be and
are hereby affirmed, with the costs of this instance against the appellant.
G.R. No. L-46530 April 10, 1939

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. CATALINO RABAO,Defendant-Appellant.
Jose F. Oreta for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney
Paredes, Jr. for appellee.
IMPERIAL, J.:
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This is an appeal from a judgment of the Court of First Instance

of Camarines Sur convicting the appellant of the crime of
parricide and sentencing him to an indeterminate penalty of from
eight years and one day of prision mayor to twenty years
of reclusion temporal, to indemnify the heirs of the deceased in
the sum of P1,000 and to pay the costs.
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The information filed by the acting provincial fiscal of said

province charged the defendant with parricide for having killed his
wife Salvacion Agawa on December 15, 1937, in the municipality
of Naga, Province of Camarines Sur, which crime was committed
with evident premeditation and abuse of superior strength.
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The defendant and the deceased Salvacion Agawa were married

before the justice of the peace of Naga on January 15, 1936 and
had since been born to the marriage. Since their marriage they
had made their home in the house of Urbano Rellora, who lived
maritally with the mother of the accused. On the morning of
December 15, 1937, when the defendant was hardly awake after
staying up late the previous night on account of the elections held
in the municipality of Naga, he noticed that his wife was
preparing water with which to give the child a bath. He told his
wife not to bathe the child because it had a cold, but the wife
insisted and a quarrel arose in the heat of which the accused
punched his wife on the abdomen. She fell seated on a sack of

rice nearby and immediately suffered an attack of which she died
in spite of the aid rendered her by the accused himself and other
persons who had arrived. The following morning Dr. Vicente
Roxas performed an autopsy and found that the spleen of the
deceased had been hypertrophied due to an acute and chronic
malaria from which she had been suffering, and that death was
caused by the hemorrhage of the spleen when it was ruptured as
a consequence of an external blow on the abdomen which might
have been that delivered by the accused.
The defense alleges that the lower court erred in declaring that
the accused hit the deceased on the abdomen, which caused her
death, instead of finding him, at most, guilty of parricide through
reckless imprudence.
After an examination of the evidence, we are of the opinion that

the lower court did not err in finding that the accused hit the
deceased on the abdomen which directly caused the rupture of
her spleen producing thereby an internal hemorrhage that caused
her almost instant death. Urbano Rellora who, as stated before,
was the owner of the house where the defendant and the
deceased lived and who maintained marital relations with the
mother of the accused, testified positively that he saw the
accused punched his wife on the abdomen, as a result of which
she fell seated on a sack of rice and that very moment she had
an attack, became unconscious and expired. This testimony is
corroborated by Dr. Roxas who performed the autopsy, when he
declared that the death was caused by the hemorrhage produced
by the rupture of the spleen which rupture was caused by an
external blow on the abdomen of the deceased. The defendant
himself, in his sworn declaration (Exhibit C) subscribed before the
justice of the peace of Naga, voluntarily admitted having hit his
wife on the abdomen with his fist when she said things that
offended and made him nervous. The aggression was likewise
corroborated by another eye-witness, Raymundo Hilano, who
declared that he was at that time passing in front of the
defendant's house when he heard and saw him quarrelling with
his wife and that the defendant was delivering blows on his wife.
The testimony of this witness however, seems incredible and
deserves no merit for he testified having seen the aggression
through a window which was three and a half meters high from
the ground where he stood. Considering the height of the window

and the location of the witness, it is clear that he could not have
seen what was happening inside the house.
The defendant's act is not mere reckless imprudence, as the

defense contends, since under article 365 of the Revised Penal
Code the acts that go to make up reckless imprudence must be
lawful in themselves, and the attack consisting in the blow the
defendant dealt his wife is certainly not lawful, since it
transgresses the Revised Penal Code itself, which expressly
prohibits it under pain of punishment.
The facts proven constitute the crime of parricide defined by

article 246 of the Revised Penal Code, and in its commission there
were present the following mitigating circumstances considered
by the lower court in favor of the defendant: lack of intention to
commit so grave a crime (article 13 [3], Revised Penal Code);
having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation (article 13 [6]); having
surrendered himself to the authorities immediately after the
commission of the crime (article 13 [7]); with no aggravating
circumstance. As to the penalty imposed, we find that it is not in
accordance with that prescribed by the law. Under article 246 of
the Revised Penal Code the crime of parricide is punished
with reclusion perpetua to death. These penalties are indivisible
and the Revised Penal Code provides, in article 63, rule 3, that
whenever there is present some mitigating circumstance with no
aggravating one, the lesser penalty shall be applied. In
conformity with this legal provision, the penalty that should be
imposed on the accused is that of reclusion perpetua.
After reviewing the facts, we are convinced that the defendant did
not really have the intention of committing so grave a crime as
parricide. The quarrel that led to the aggression had its origin
from the natural and justifiable desire of the defendant, as a
father, to prevent his child, which was then ill, from being given a
bath. If, under the circumstances, he transgressed the law by an
unjust attack on his wife, he is, nevertheless, deserving of the
mitigating circumstances allowed in his favor. We invoke, for this
reason, article 5, paragraph 2, of the Revised Penal Code, and
recommended to his Excellency, the President of the Philippines,
the commutation of the penalty imposed on the defendant in this
decision.

Modifying the appealed judgment, we declare the defendant
Catalino Rabao guilty of the crime of parricide and hereby
sentenced him to reclusion perpetua, and to the accessory
penalties provided in article 41 of the Revised Penal Code, to
indemnify the heirs of the deceased in the amount of P1,000, and
to pay the costs in both instances. So ordered.
[G.R. No. 146247. September 17, 2002]
PEOPLE
OF
THE
DAWATON, accused.
PHILIPPINES, plaintiff,
vs. EDGAR
DECISION
BELLOSILLO, J.:
EDGAR DAWATON was found by the trial court guilty of murder

qualified by treachery and sentenced to death, ordered to indemnify the
heirs of the victim P50,000.00 plus the accessory penalties provided by
law, without subsidiary imprisonment in case of insolvency, and to pay the
costs of suit.
[1]
An Information for murder qualified by treachery and evident

premeditation was filed against Edgar Dawaton on 11 March 1999. When
first arraigned he pleaded not guilty, but during the pre-trial on 7 May
1999, he offered to plead guilty to the lesser offense of homicide but was
rejected by the prosecution, hence, the case proceeded to trial.
[2]
[3]
The prosecution presented as witnesses the very persons who were

with the accused and the victim during the incident, namely, Domingo
Reyes and Esmeraldo Cortez. The prosecution also presented Generosa
Tupaz, the mother of the victim, to prove the civil liability of the accused.
The evidence for the prosecution: On 20 September 1998 Esmeraldo
Cortez was entertaining visitors in his house in Sitio Garden, Brgy. Paltic,
Dingalan,
Aurora. His
brother-in-law
Edgar
Dawaton
and kumpadre Leonides Lavares dropped by at about 12:00 o'clock noon
followed by Domingo Reyes shortly after. All three (3) guests of Esmeraldo
were residents of Sitio Garden. They started drinking soon after. At about
3:00 o'clock in the afternoon and after having consumed four (4) bottles of

gin, they went to the house of Amado Dawaton, Edgar's uncle, located
about twenty (20) meters away from Esmeraldo's house. They stayed at
the balcony of the house and continued drinking. Amado Dawaton was not
in.
Already drunk, Leonides decided to sleep on a papag or wooden
bench, lying down on his right side facing Domingo and Edgar using his
right hand for a pillow. Edgar, Domingo and Esmeraldo continued drinking
until they finished another bottle of gin.
At about 3:30 in the afternoon, twenty (20) minutes after Leonides had
gone to sleep, Edgar stood up and left for his house. When he returned he
brought with him a stainless knife with a blade 2 to 3 inches long. Without a
word, he approached Leonides who was sleeping and stabbed him near
the base of his neck. Awakened and surprised, Leonides got up and
blurted: "Bakit Pare, bakit?" Instead of answering, Edgar again stabbed
Leonides on the upper part of his neck, spilling blood on Leonides' arm.
[4]
[5]
Leonides attempted to flee but Edgar who was much bigger grabbed
the collar of his shirt and thus effectively prevented him from running
away. Edgar then repeatedly stabbed Leonides who, despite Edgar's firm
hold on him, was still able to move about twenty (20) meters away from the
house of Amado Dawaton before he fell to the ground at the back of
Esmeraldo's house. But even then, Edgar still continued to stab him. Edgar
only stopped stabbing Leonides when the latter already expired. Edgar
then ran away towards the house of his uncle Carlito Baras situated behind
the cockpit.
Domingo and Esmeraldo were positioned a few meters away from
where Leonides was sleeping when he was initially assaulted by
Edgar. They were shocked by what happened but other than pleading for
Edgar to stop they were unable to help Leonides.
Domingo left for his house soon after the stabbing started as he did not
want to get involved. Nonetheless he felt pity for Leonides so he returned a
few minutes later.
By then, Leonides was already dead and people had already gathered
at the site. The mayor who was in a nearby cement factory arrived and
instructed them not to go near the body.They pointed to the direction where
Edgar fled. Edgar was later arrested at the house of his uncle, Carlito
Baras, at Sitio Aves, Brgy. Paltic, Dingalan.
Accused-appellant Edgar Dawaton was the sole witness for the
defense. He did not deny that he stabbed Leonides Lavares but insisted
that he was provoked into stabbing him. Edgar claimed that the night prior
to the stabbing incident, or on 19 September 1998, his uncle Armando

Ramirez went to his house to welcome his return from Cavite where he
worked as a carpenter. They started drinking gin at about 7:00 o'clock in
the evening and ended at 3:00 o'clock in the morning of the following
day. He slept and woke up at 6:00 o'clock in the morning of 20 September
1998.
Apparently, he did not have enough of the prior evening's drinking
orgy. He went to his uncle's house early that morning and after his uncle
bought two (2) bottles of gin they started drinking again. Domingo Reyes
arrived at around 7:30 in the morning and joined them. Esmeraldo Cortez
joined them about 12:00 o'clock noon and bought two (2) more bottles of
gin.Later, the group with the exception of Armando Ramirez transferred to
the house of Esmeraldo upon the latter's invitation and drank two (2) more
bottles of gin.
In Edgar's version of the stabbing incident, a drunk and angry Leonides
arrived at about 2:30 in the afternoon and demanded that they - he and
Edgar - return candles (magbalikan [tayo] ng kandila). Leonides was
godfather of a son of Edgar. Leonides also cursed and threatened to hang
a grenade on Edgar (P - t - ng ina mo. Hintayin mo ako. Kukuha ako ng
granada at sasabitan kita!).
[6]
[7]
According to Edgar, he tried to calm down Leonides but the latter

insisted on going home purportedly to get a grenade. Alarmed because he
knew Leonides had a grenade, Edgar went home to look for a bladed
weapon. He already had a knife with him but he thought it was short. Not
finding another weapon, he returned to Esmeraldo's house.
When he returned, Leonides was still in Esmeraldo's house and had
joined in the drinking. He sat opposite Leonides who resumed his tirades
against him.
Again Leonides started to leave for his house purportedly to get a
grenade. Afraid that Leonides would make good his threat, Edgar held on
to him and stabbed him. He did not know where and exactly how many
times he struck Leonides but he recalled doing it three (3) times before his
mind went blank (nablangko). Edgar also claimed that he was in this
mental condition when he left Leonides and ran to the house of Carlito
Baras. He did not know that he had already killed Leonides, only that he
stabbed him thrice. He regained his senses only when he reached his
uncle Carlito's house.
[8]
Edgar further said that he sought his uncle's help so he could surrender
but he was told to wait because his uncle was then taking a bath. It was
while waiting for his uncle when the policemen arrived to arrest him. He
maintained that he voluntarily went with them.

The medico-legal certificate dated 24 September 1998 issued by Dr.
Ernesto C. del Rosario showed that the victim sustained a stab wound at
the back and ten (10) stab wounds in front. He also had slash wounds on
his left hand and his tongue was cut off. The immediate cause of death was
determined to be "Hypovolemic Shock due to hemorrhage, multiple
stabbed (sic) wounds."
[9]
[10]
On 20 October 1999 the parties entered into several stipulations which

were embodied in an Order. Specifically, they admitted the veracity of
the Sinumpaang Salaysay dated 21 September 1998 executed by SPO2
Ramil D. Gamboa and PO3 Gerry M. Fabros, the police officers who
arrested the accused; the genuineness and due execution of the medicolegal certificate issued by Dr. Ernesto C. del Rosario; and, the authenticity
of the certificate of death also issued by Dr. del Rosario. Thus, the
presentation of the arresting officers and Dr. del Rosario as witnesses was
dispensed with.
[11]
[12]
[13]
On 20 November 1999 the trial court convicted Edgar Dawaton of

murder qualified by treachery and sentenced him to death.
We affirm the conviction of accused-appellant; we however modify the
penalty imposed on him.
The conclusion that accused-appellant murdered Leonides Lavares
was sufficiently proved by the testimonies of prosecution witnesses
Domingo Reyes and Esmeraldo Cortez who both witnessed the fatal
stabbing. This was not refuted by the accused himself who admitted that he
stabbed the victim three (3) times before his mind went blank and could no
longer recall what he did after that.
Treachery clearly attended the killing. The accused attacked the victim
while the latter was in deep slumber owing to the excessive amount of
alcohol he imbibed. We are not persuaded by the version of the accused
that the victim threatened to harm him with a grenade and that it was only
to prevent this from happening that he was forced to stab Leonides. We
defer instead to the judgment of the trial court which gave more credence
to the version of the prosecution witnesses inasmuch as it was in a better
position to decide on the question of credibility, having heard the witnesses
themselves and observed their deportment during trial.
According to the prosecution witnesses, the victim had no chance to
defend himself as he was dead drunk and fast asleep. He had no inkling at
all of what was going to happen to him since there was no prior argument
or untoward incident between him and the accused. From all indications
they were on friendly terms; as in fact they were even kumpadres. No one
knew nor expected that when the accused momentarily excused himself, it

was for the purpose of looking for a knife, and without any warning,
stabbing the victim who was sleeping.
There is treachery when the attack is upon an unconscious victim who
could not have put up any defense whatsoever, or a person who was
dead drunk and sleeping on a bench and had no chance to defend himself.
Clearly, the attack was not only sudden but also deliberately adopted by
the accused to ensure its execution without risk to himself.
[14]
[15]
The accused argues that trial court erred in imposing the death penalty
despite the attendance of mitigating and alternative circumstances in his
favor. He avers that he is entitled to the mitigating circumstance of plea of
guilty. We disagree. While the accused offered to plead guilty to the lesser
offense of homicide, he was charged with murder for which he had already
entered a plea of not guilty. We have ruled that an offer to enter a plea of
guilty to a lesser offense cannot be considered as an attenuating
circumstance under the provisions of Art. 13 ofThe Revised Penal
Code because to be voluntary the plea of guilty must be to the offense
charged.
[16]
[17]
Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal

Procedure requires the consent of the offended party and the prosecutor
before an accused may be allowed to plead guilty to a lesser offense
necessarily included in the offense charged. We note that the prosecution
rejected the offer of the accused.
Nor can the accused avail of the mitigating circumstance of voluntary
surrender as he himself admitted that he was arrested at his uncle's
residence. The following elements must be present for voluntary
surrender to be appreciated: (a) the offender has not been actually
arrested; (b) the offender surrendered himself to a person in authority, and,
(c) the surrender must be voluntary.
[18]
[19]
Resorting to sophistry, the accused argues that he was not arrested

but "fetched" as he voluntarily went with the policemen when they came for
him. This attempt at semantics is futile and absurd. That he did not try to
escape or resist arrest after he was taken into custody by the authorities
did not amount to voluntary surrender. A surrender to be voluntary must be
spontaneous, showing the intent of the accused to submit himself
unconditionally to the authorities, either because he acknowledges his guilt
or because he wishes to save them the trouble and expense necessarily
included in his search and capture. It is also settled that voluntary
surrender cannot be appreciated where the evidence adduced shows that it
was the authorities who came looking for the accused.
[20]
[21]
Moreover, the evidence submitted by the prosecution belies the claim of

the accused that he intended to submit himself to the authorities. The joint

affidavit of the arresting officers, the veracity of which was admitted by the
parties and evidenced by a 20 October 1999 Order of the trial court,
revealed that they chanced upon the accused trying to escape from the
rear of the cockpit building when they came looking for him.
[22]
Similarly, there is no factual basis to credit the accused with the

mitigating circumstance of outraged feeling analogous or similar to
passion and obfuscation. Other than his self-serving allegations, there
was no evidence that the victim threatened him with a grenade. Domingo
Reyes and Esmeraldo Cortez testified that there was no prior altercation or
disagreement between Edgar and Leonides during the drinking spree, and
they did not know of any reason for Edgar's hostility and violence. On the
contrary, Esmeraldo Cortez even recalled seeing the two (2) in a playful
banter (lambingan) during the course of their drinking indicating that the
attack on the accused was completely unexpected.
[23]
[24]
[25]
The accused would want us to reconsider the penalty imposed on him

on account of his not being a recidivist. He contends that an appreciation of
this factor calls for a reduction of the penalty.
We are not persuaded. Recidivism is an aggravating circumstance the
presence of which increases the penalty. The converse however, that is,
non-recidivism, is not a mitigating circumstance which will necessarily
reduce the penalty. Nonetheless, we hold that the trial court erred in not
appreciating the alternative circumstance of intoxication in favor of the
accused. Under Art. 15 of The Revised Penal Code, intoxication of the
offender shall be considered as a mitigating circumstance when the
offender commits a felony in a state of intoxication, if the same is not
habitual or subsequent to the plan to commit said felony. Otherwise, when
habitual or intentional, it shall be considered as an aggravating
circumstance.
The allegation that the accused was drunk when he committed the
crime was corroborated by the prosecution witnesses. The accused and his
drinking companions had consumed four (4) bottles of gin at the house of
Esmeraldo Cortez, each one drinking at least a bottle. It was also attested
that while the four (4) shared another bottle of gin at the house of Amado
Dawaton, it was the accused who drank most of its contents. In addition,
Esmeraldo testified that when Edgar and Leonides arrived at his house that
noon, they were already intoxicated. There being no indication that the
accused was a habitual drunkard or that his alcoholic intake was intended
to fortify his resolve to commit the crime, the circumstance of intoxication
should be credited in his favor.
[26]
[27]
[28]
Consequently, we find that the trial court erroneously imposed the

penalty of death. The accused was charged with murder for which the law

provides a penalty of reclusion perpetua to death. Under Art. 63, par. 3,
of The Revised Penal Code, in all cases in which the law prescribes a
penalty composed of two (2) indivisible penalties, such as in this case,
when the commission of the act is attended by a mitigating circumstance
and there is no aggravating circumstance, the lesser penalty shall be
applied. Since no aggravating circumstance attended the killing but there
existed the mitigating circumstance of intoxication, the accused should be
sentenced only to the lesser penalty of reclusion perpetua.
The trial court correctly ordered the accused to pay civil indemnity in the
amount of P50,000.00 to the heirs of the victim without need of proof other
than the fact that a crime was committed resulting in the death of the victim
and that the accused was responsible therefor. The heirs are also entitled
to moral damages pursuant to Art. 2206 of the New Civil Code on account
of the mental anguish which they suffered, and the amount of P50,000.00
is considered reasonable according to existing jurisprudence.
[29]
[30]
WHEREFORE, the assailed Decision of the court a quo finding the

accused EDGAR DAWATON guilty of MURDER qualified by treachery is
AFFIRMED with the modification that the penalty is reduced from death
to reclusion perpetua. The accused is ordered to pay the heirs of Leonides
Lavares P50,000.00 in civil indemnity and P50,000.00 in moral damages.
SO ORDERED.
[G.R. Nos. 136733-35. December 13, 2001]
PEOPLE
OF
THE
PHILIPPINES, appellee,
VIERNES y ILDEFONSO, appellant.
vs. ELADIO
DECISION
PANGANIBAN, J.:
Under the Rules of Court, a judgment of conviction in a criminal prosecution may be

modified only upon motion of the accused. As a rule, the prosecution is prohibited from
seeking, and the trial court from granting, a more severe penalty than that imposed in the
original decision. This is especially true in a case in which the new and amended penalty
imposed is death.
The Case

Before us is an appeal from the April 6, 1998 Decision and the May 21, 1998 Order of
the Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal Case Nos. 0532-97,
0533-97 and 0534-97. The assailed Decision convicted appellant of two counts of rape and
one count of attempted rape. It disposed as follows:
[1]
[2]
WHEREFORE, the Court finds the accused, ELADIO VIERNES y

ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the
crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised
Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in
Crim. Case No. 0533-97 of the crime of Attempted Rape, as defined and penalized
under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as
amended by Republic Act No. 2532 and Republic Act No. 4111; and, in Crim. Case
No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par.
1 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic
Act No. 4111, and sentences him, as follows:
1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA,
to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as
moral damages pursuant to Article 2219 (3) of the Civil Code, as well as
exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the
same Code and the costs of this suit;
2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4)
YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as
Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as
Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00, and to
pay the costs of this suit; and
3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION PERPETUA,
to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00 as
moral damages pursuant to Article 2219 (3) of the Civil Code, as well as
exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the
same Code and the costs of this suit.
[3]
On the other hand, the assailed Order increased the penalties as follows:
WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO,

guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape,
as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as
amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of
Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to
Article 51 of the Revised Penal Code, as amended by Republic Act No. 7659, and
in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under
Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No.
7659, and sentences him, as follows:

1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to
indemnify CATHERINE LINATOC in the amount of P50,000.00, to
pay P10,000 as moral damages pursuant to Article 2219 (3) of the
Civil Code, as well as exemplary damages in the amount
of P5,000.00 pursuant to Article 2229 of the same Code and the costs
of this suit;
2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN
(10) YEARS and ONE (1) DAY of Prision Mayor, as Minimum, to
FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY
of Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc
in the amount of P25,000.00 and to pay the costs of this suit; and
3. CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to indemnify
Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00, as moral
damages pursuant to Article 2219 (3) of the Civil Code, the amount
of P5,000.00, as exemplary damages, pursuant to Article 2229 of the same
Code and the costs of this suit.
[4]
Three criminal Complaints, all dated August 21, 1997, were filed by Catherine Linatoc
(assisted by her mother Lina Dela Cruz-Linatoc) before Second Assistant City Prosecutor
Danilo S. Sandoval. The Complaint in Criminal Case No. 0532-97 charged appellant with
rape committed as follows:
That on or about the 29th day of September, 1996 at about 10:00 oclock in the
morning at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, being then the common law
husband of the mother of the victim, did then and there willfully, unlawfully and
feloniously, by means of force and intimidation have carnal knowledge of the
undersigned complainant who is a minor below 12 years old, against her will and
consent to her damage and prejudice in such amount as may be awarded to her
under the provision of the Civil Code.
[5]
The Complaint in Crim. Case No. 0534-97 likewise charged him with consummated
rape:
That on or about the 18th day of August 1997 at about 12:00 oclock noon, at
Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being then the common law husband
of the mother of the victim, did then and there wilfully, unlawfully and feloniously,
by means of force and intimidation have carnal knowledge of the undersigned
complainant who is a minor of 12 years old against her will and consent to her
damage and prejudice in such amount as may be awarded to her under provisions
of the Civil Code.
[6]
Finally, in Criminal Case No. 0533-97, appellant was charged with attempted rape:

That on or about the month of March 1997, around noon time, at Barangay Tibi,
Lipa City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being then the common law husband of the mother of the
victim, by means of force and intimidation and with lewd design pursuant to his
carnal desire, did then and there willfully, unlawfully and feloniously commence
the commission of the felony of rape directly by overt acts against the undersigned
complainant who is a minor below 12 years old, by then and there undressing her
and going on top of her with his exposed private organ but did not perform all the
acts of execution which should have produced the said felony because the
undersigned offended party resisted.
[7]
Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial
Court of Lipa City, Branch 12; and Criminal Case No. 0533-97, to Branch 85 of the same
court. Later, all the cases were consolidated in Branch 12.
[8]
On arraignment, appellant pleaded not guilty. After trial in due course, the lower court
rendered the assailed Decision.
[9]
In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked that the
imposed penalties be increased pursuant to Republic Act (RA) No. 7659. The RTC granted
the Motion via the assailed Order.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General presents the following narration of facts:
[10]
Catherine Linatoc stood quietly by the door of the toilet of appellants her mothers
common-law husband house. Her skirts hemlines were slowly falling to her knees
vainly covering the panty that were pulled down mid-way her lower legs. This was
the third of a series of dismaying sex that she and appellant had been through. Like
the others before this one, there was by appellant much pulling, shoving and
forcible grasping of her hands, thus rendering her immobile for three minutes or so.
The third rape happened in appellants house in Tibig, Lipa City, around noontime
of August 18, 1997. Appellant then bidded [sic] the two brothers and a step-brother
of Catherine Linatoc to clean the his tricycle, which was parked on the side of the
street across his house. They followed his order. Appellant also instructed
Catherine Linatoc to fetch water for the house toilet. She obliged, returning with
two pails of it. She deposited them by the door of the toilet. Turning about,
Catherine Linatoc was surprised to find appellant behind her. In quick succession,
appellant pushed her to the wall, pulled her skirts up, drag her panty mid-way her
lower leg, and rushed his own pants down. Grasping her hands tightly with one
hand, appellant began inserting his penis into her vagina. She resisted to no
avail. His penis established a comfortable slide into and out of her [organ], as the

pace quickened for about three minutes. The gyration was furious. After appellant
spurted out, he backed off and left saying nothing.
Frightened and crying, Catherine Linatoc went to her great-grandmothers abode in
San Guillermo, Lipa City. She reported the incident to this elder, and recounted
some more. Catherine Linatoc told her great-grandmother of two other acts of
sexual abuse by appellant. The first one, she narrated, happened on September 29,
1996, about ten in the morning[;] and the second, on March 1997 around noontime.
The first rape happened on September 29, 1996 in appellants house. Catherine
Linatoc was on the ground floor of the house when so suddenly appellant sprung
from wherever he was, grabbed and carried her to the second floor. The second
floor was just three steps from the ground floor. He then undressed her, taking off
her sando, skirt and panty. He undressed himself too, and then floored both their
bodies, [his] on top of her. He caressed her breasts and started inserting his penis
into her vagina. Appellant held her hands tightly and fought off her struggle. There
was push and pull for about three minutes, then appellant came through. Appellant
dressed up, and before walking away, apologized to her. It would be the first and
last rape, he said.
There was soon the second sexual abuse. In March 1997, about noontime, using
the same strategy as he did in the [first] rape, appellant unburdened himself on
Catherine Linatoc. From nowhere, appellant appeared. He dragged her to the
second floor where he undressed her and himself. He mightily threw her to the
floor, his sweaty body covering hers. Appellant engaged in the now familiar
gyration once again. This time, however his penis landed on the thighs of the
victim as insertion, because of her struggle and vaginas virginal qualities, became
frustratingly difficult. Between her thighs appellant thrusted his penis. He satisfied
himself just the same.
The great-grandmother was helpless to remedy the abuse done to Catherine
Linatoc. They waited for the father of Catherine Linatoc, Orlando Linatoc, who
arrived four days later. The mother of Catherine Linatoc, Lina Viernes, also
arrived. Catherine Linatoc had her medico-legal examination with these results.:
x x x lacerated hymen on the 3:00 and 9:00 oclock positions with small amounts of
whitish discharge.
The medico-legal examination was performed by Dr. Helen S. Dy. The present
criminal complaints against appellant were thereafter filed.
[11]
Version of the Defense

Appellant denies the charges against him. Claiming to have been elsewhere at the time of
the commission of the alleged crimes, he submits the following counterstatement of the facts:
1) ELADIO, at the lower court, stated that he is the common law husband of Lina
de la Cruz-Linatoc (mother of the alleged victim Catherine Linatoc). He is a
security guard and at the same time, a tricycle driver. On September 29, 1996 he
was living with Lina, together with Catherine, his two sons and other relatives. On
September 28, 1996 he scolded Catherine. As a consequence thereof, Catherine
went to the house of her great grandmother and stayed therein even beyond
September 29, 1996. Therefore, it is impossible for him (ELADIO) to have
attacked Catherine sexually on September 29, 1996. It is not true that he attempted
to rape Catherine in March of 1997 because he was on duty at that time. Their
company logbook will bear witness thereto. (Exhibit 2, Original Records) On
August 18, 1997 it is not true that he raped Catherine since he was plying his
tricyle then. (TSN, pp. 2-13, December 11, 1997; and pp. 2-22, January 8, 1998)
2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of
ELADIO that Catherine was no longer in their house on September 29, 1996 and
that ELADIO could not have abused Catherine sexually. Catherines charge for
March 1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3,
1998).
xxxxxxxxx
D. Sur-Rebuttal Evidence.
ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the case.
[12]
Ruling of the Trial Court

The court a quo held that the testimony of Catherine Linatoc -- both on direct and on
cross-examination -- was clear, positive and steadfast. Corroborated by the medicolegal
examination conducted on her, it was replete with details that jibed on material points. The
prosecution successfully proved that she was the daughter of appellants common-law wife
and that, at the time of the crime, she was 12 years old.
The declarations of complainant were accorded full faith and credence on the theory that
she would not publicly acknowledge the defilement of her virtue or subject herself to public
humiliation, if her purpose was not to obtain justice for the wrong committed. There is no
evidence that she was a woman of loose morals or that she had any ill motive to falsely
accuse appellant.
On the other hand, appellants denial and alibi were unsubstantiated and self-serving;
hence, they deserve no weight in law. They cannot stand against Catherines positive
testimony.

In the assailed Order, the trial court noted that the prosecutions Motion was
unopposed. It ruled that the increase in the penalty did not place appellant in double jeopardy.
Hence, this appeal.
[13]
The Issues
In his Brief, appellant raises this sole alleged error:
[14]
The lower court has committed an error in convicting the accused-appellant of the
crimes charged and on meting out on him the supreme penalty of death, more
particularly in Criminal Cases Nos. 0532-97 and 0534-97.
An appeal from a criminal conviction, especially one involving the death penalty, throws
the whole case open for review. Thus, it becomes the duty of the reviewing court to correct
any error in the appealed judgment, whether or not it is made the subject of an assignment of
error. In this light, the Court believes that a second issue needs to be taken up, namely:
[15]
Whether the trial court erred in increasing the penalties via the assailed Order.
This Courts Ruling
The trial court was correct in convicting appellant in accordance with the challenged
Decision, but was wrong in imposing the new penalties through the assailed Order.
First Issue: Appellants Culpability
After a thorough review of the pleadings, the transcripts of stenographic notes and other
records of the case, we are convinced that the court a quo did not err in giving credence to the
testimonies of the victim and the other prosecution witnesses. The testimony of private
complainant, detailing how she was abused by appellant on two separate occasions and how
he tried to rape her once more, was clear and convincing. We quote at length:
Q While you were in your house on that date, September 29, 1996, 10:00 oclock in the morning,
do you remember of any unusual incident that transpired if any?
A Yes, sir.
Q What was that unusual incident that transpired?
A After my mother left, I was pulled sir.
Q By whom, who pulled you?
A My step father, sir.
Q Where were you brought, towards what direction?
A Towards the second floor of our house and to the place where we sleep, sir.

Q By the way, that house where you were living in Brgy. Tibig, Lipa City on that date September
29, 1996, what kind of house is that?
A It is made of Sawali, sir.
Q How about the flooring, how many floors does it have?
A Three (3) steps sir.
Q What do you mean by three (3) steps?
A Our stairs is made of three (3) steps, sir.
Court:
From the ground floor?
A Yes, sir.
Q What is located after going this stairs composed of three (3) steps?
A That is the place where we sleep sir.
Q After you [were] pulled upstairs to where you usually sleep by Eladio Viernes, what did Eladio
Viernes do to you after reaching that upper portion of your house, if he did anything?
Atty. Dimaandal
Leading your Honor.
Court
Answer.
A He undressed me sir.
Q What were you wearing that Eladio Viernes took of[f] from your body?
A I was wearing a skirt which was my uniform sir.
Q What else I[f] any were taken of[f] from your body by Eladio Viernes?
A My blouse, sando and my skirt and my panty sir.
Q After Eladio Viernes took of[f] your clothing, after removing your clothing what did Eladio
Viernes do on your body?
A He placed himself on top of me.
Q When Eladio Viernes placed himself on top of you, what was he wearing if any?
A None sir.
Q By the way, when Eladio Viernes pulled you to where you usually sleep, what was his wearing
at that time?
A He was wearing pants, sir.
Q You said that after Eladio Viernes took of[f] all your clothing he went on top of you you said he
was already naked, what did he do with hi[s] pants before he went on top of you?
A He mashed [m]y breast sir.
Q What else did he do [to] you aside from mashing your breast?
A He inserted his penis into my vagina.

Q By the way, while he was mashing your breast, what were you doing if you did anything?
A I was fighting him back sir.
Q What did Eladio Viernes do when you fought him back while he was mashing your breast?
A He was slapping me sir.
Q When he inserted his penis into your vagina, what did you feel?
A Painful, sir.
Q Was Eladio Viernes able to actually insert his penis[?]
Atty. Dimaandal
Leading your honor.
Q After Eladio Viernes inserted his private organ into your private organ, what else did he do if
anything more?
A He did pumping motion, sir.
Q For how long did he do this pumping motion, while his penis was inside your vagina?
A About three (3) minutes sir.
Q After three (3) minutes when Eladio Viernes did this pumping motion while his penis was inside
your vagina, what else did he do if he did anything more?
A He removed his private organ sir.[16]
We also quote the testimony of the victim regarding appellants attempt to rape her:
Q When was the second time, after September 26, 1996?
A In May 1997 but I do not remember the exact date sir.
Q Are you sure about the date?
Atty. Dimaandal
That is the answer of the witness.
Prosecutor
Thats why I am asking, are you sure about the date?
A May 19, 1997 sir.
Q By the way, in [the] second incident [where] Eladio Viernes according to you raped you again,
where did this happen?
A At Barangay Tibig, Lipa City.
Q In what particular place in Bgy. Tibig were you raped for the second time by Eladio Viernes?
A In the upper portion of our house at the place where we are sleeping sir.
Q The same place where the second rape was committed?
A Yes, sir.
Q Around what time did this happen, this second rape happened?
Atty. Dimaandal

We make it of record that the witness cannot answer.
Prosecutor
The witness is thinking . . .
A Noontime sir.
Q How did this happen?
A He again pulled me sir.
Q By the way on that second occasion, where was your mother?
A She was working sir.
Q You said that you were again pulled, where were you brought by Eladio Viernes at the same
time around?
A The upper portion of our house and at the place where we were sleeping sir.
Q After you were pulled by Eladio Viernes, what did Eladio Viernes do to you?
A He undressed me sir.
Q What kind of wearing apparel that you were wearing that were taken off by Eladio Viernes on
that same occasion?
A I was wearing a skirt sir.
Q After you were undressed by Eladio Viernes what did Eladio Viernes do to you if he did
anything?
A He again placed himself on top of me sir.
Q What was he wearing he placed himself on top of you if he was wearing anything?
A He was wearing pants sir.
Q When he placed himself on top of you, where was his pants?
A He removed pants sir.
Q When Eladio Viernes went on top of you, what did you [sic] do if he anything more on the
second time around?
A He again mashed my breast sir.
Q What did you do when Eladio Viernes again mashed your breast?
A I was fighting him back sir.
Q What else did he do aside from mashing your breast, what did Eladio Viernes do to you?
A He was inserting his penis into my vagina sir.
Q When Eladio Viernes was inserting his penis into your vagina, what did you do?
A I was struggling sir.
Q When you struggled, what happened to that effort of Eladio Viernes to insert his penis into your
vagina?
A It was not inserted sir.
Q What did Eladio Viernes do when he failed to insert his penis into your vagina?

A He just placed it between my thighs sir.
Q After placing his penis between your thighs, what else did Eladio Viernes do if he did anything?
Atty. Dimaandal
May we interrupt . . That after translations the answer of this witness. He just place on my thigh,
there was no vagina [sic].
Q You said that Eladio Viernes placed his penis in your thighs, in what particular part of your
thighs?
Atty. Dimaandal
Leading
Court
Answer.
Interpreter
Witness pointing to the inner portion of her two thighs
Q What did Viernes do after he put his penis between the inner portion of your two thighs?
A [H]e placed his penis between my thighs and he again did the pumping motion sir.[17]
Pertinent portions of the testimony of complainant regarding her second defilement in

the hands of appellant read as follows:
Q Miss Witness, on August 18, 1997 around 12:00 noon where were you?
A I was at home sir.
Q What were you doing?
A I just arrived from school sir.
Q You said that you were in your house, where was this house located on that date, August 18,
1997?
A At Barangay Tibig sir.
Q You said that you had just arrived from school, when you arrived in your house in Brgy. Tibig,
Lipa City on August 18, 1997 around 12 noon, whom did you meet in your house if you met
anybody there?
A My step father sir.
Q Meaning Eladio Viernes?
A Yes sir.
Q Seeing Eladio Viernes in your house on that date August 18, 1997 around 12 noon, what did he
do if he did anything upon seeing him or meeting you?
A He instructed our companions in the house to clean the motor tricycle sir.
Q After instructing your companions in your house to clean the motor tricycle, what else did
Eladio Viernes do, if he did anything more?
A He asked me to fetch two (2) containers of water sir.

Q By the way, these your companions of your house, [sic] who where given the instruction by
Eladio Viernes to clean the motor tricycle, who are these companions [sic] of your house?
A My two brothers and one step brother, sir.
Q How old were these two brothers of yours and your one step brother who were given the
instruction by Eladio Viernes to clean the motor tricycle?
A My step brother was 12 years old; my two brothers were six and 5 years old sir.
Q How far was this tricycle from your house?
A Near the street sir.
Q Around how many meters if you can calculate was this tricycle from your house or can you
point distance from the place where you are sitting now to any place inside the court room?
Interpreter
Witness pointing to the railings inside the Court room as their house and the witness pointed to the
western wall of the court room as the place where the tricycle was to be around 7 meters sir.
Q What did your two (2) brothers and one (1) step brother do if they did anything more upon
receiving the instruction from your step father Eladio Viernes to clean the motor tricycle?
A They followed the instruction of my step father to clean the tricycle sir.
Q How about you when you were instructed by your step father to fetch two (2) containers of
water, what did you do?
A I brought the water near the comfort room sir.
Q After you brought the two (2) containers of water to the place were you said a while ago, what
did Eladio Viernes do to you if he did anything?
A He followed me sir.
Q After Eladio Viernes followed you, what did he do [to] you if he did anything?
A I was frightened sir.
Q Why?
Atty. Dimaandal
Not responsive your honor. I move to strike out the answer of the witness.
Court
Continue.
Q Why did you get frightened?
A Because I felt that he will repeat the same thing sir.
Q What do you mean repeat the same thing?
A He will again repeat raping me sir.
Q When you got frightened, what did you do?
A I tried to struggle sir.
Q Why did you struggle, what was Eladio Viernes doing [to] you?

A He pulled up my skirt and when I was trying to go out from the comfort room he was stopping
me from going out sir.
Q What happened to your struggle, to free from the hold of Eladio Viernes when you were inside
the comfort room?
A I could not go out [o]f the comfort room because I was held by my step father sir.
Q After Eladio Viernes pulled up your skirt, what did he do with you if he did anything more?
A He pulled down my panty sir.
Q Up to what portion was that panty of yours pulled down?
Interpreter
Witness pointing to her ankle
Q After Eladio Viernes pulled down your panty up to your ankle, what did he do to you?
A He was inserting his penis into my vagina, sir.
Q What was your position in relation to Eladio Viernes when he was inserting his penis into your
vagina?
A I was standing sir.
Q How about Eladio Viernes, where was he in relation to you while he was inserting his penis into
your vagina?
A He was at my back sir.
Q What happened to this effort of Eladio Viernes in trying to insert his private organ into your
private organ?
A It was inserted sir.
Q You said that you were standing, what was the form or what was the position of your body aside
from the fact that you were standing when Eladio Viernes was able to insert his penis into
your vagina while he was at your back?
A I was standing and I was struggling sir.
Q When Eladio Viernes was actually able to insert his penis into your vagina, what was the
position of your body aside from the fact that you were standing?
A I was standing with my knees bent sir.
Q After Eladio Viernes was able to insert his penis into your vagina while you are in a standing
position, how long was his penis inside your vagina?
A About three (3) minutes sir.[18]
Catherine impressed the trial court as a decent woman [who has] not been shown to be of
loose morals or one who goes out with different men any time of the day or night. A rape
victim who testifies in a categorical, straightforward, spontaneous and frank manner -- and
remains consistent -- is a credible witness. It is well-entrenched that the trial court is in the
best position to assess the credibility of witnesses and their testimonies because of its unique
opportunity to observe them firsthand and to note their demeanor, conduct and attitude on the
stand. In the absence of any showing that its assessment is flawed, an appellate tribunal is
bound by it.
[19]
[20]
[21]

Despite the tender age of complainant, her accounts on direct and cross-examination
were replete with details that jibed on material points. Considering her young age, it would
have been highly improbable for her to fabricate a charge so humiliating to her and her
family, had she not been truly subjected to the painful experience of sexual abuse.
[22]
[23]
The moral ascendancy of appellant as the common-law husband of complainants mother

takes the place of force and intimidation as an element of rape, although the presence of
such element is apparent from Catherines testimony.
[24]
Alibi and Corroboration

Appellant denies having raped Catherine on September 29, 1996, claiming she was at her
grandmothers house in San Guillermo, while he was outside his house digging a toilet
pit. Allegedly, in March 1997, he was on duty as a security guard at the Smart Tower; and on
August 18, 1997, he was busy the whole day plying his tricycle route.
The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated by clear
and convincing evidence, are negative and self-serving evidence that deserve no weight in
law. They cannot be given greater evidentiary value over a credible witness testimony on
affirmative matters. Except for Lina Linatocs corroboration, the only evidence supporting
the alibi and denial of appellant is his own say-so. And Lina happens to be his common-law
wife; thus, her testimony is necessarily suspect and cannot prevail over the testimonies of
more credible witnesses. Negative testimony cannot prevail over the offended partys
positive identification of the accused as her rapist.
[25]
[26]
[27]
Finally, for alibi to prosper, it must be shown that the accused was in another place at the
time the crime was committed, and that it would have been physically impossible for him to
be at the scene of the crime at the time it was committed. Such physical impossibility was
not proven in the present case. The Smart Tower where appellant worked as a
security guard was located also in Barangay Tibig,Lipa City, and was only a thirty-minute
walk from his house. The tricycle station, on the other hand, was only 1000 meters
away. Note that he had a motorized tricycle at his disposal. His alibi, therefore, is unworthy
of credence.
[28]
Attempt to Settle the Case

Appellant strongly denies the prosecutions assertion that he attempted to settle the case
with complainants family.
We remain unconvinced. Instead, we concur with the finding of the RTC that the letter
dated November 25, 1997 -- addressed to Orlando and Catherine Linatoc, signed by appellant
and delivered by Lina Linatoc -- was admissible evidence against appellant. Perusal of the
letter reveals that he attempted to bribe Orlando with P150,000 or a house and lot and a
promise of an additional P100,000 in exchange for dropping the charges against him. Under
Section 27, Rule 130 of the Rules of Court, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt.
[29]

Voluntary Surrender
Appellant pleads for leniency on account of his alleged voluntary surrender.
We disagree. The act of surrender must be spontaneous, accompanied by an
acknowledgment of guilt, or an intention to save the authorities the trouble and the expense
that search and capture would require. Going to the police station to clear his name does not
show any intent of appellant to surrender unconditionally to the authorities.
[30]
[31]
Medicolegal Officers Testimony

Appellant avers that the medicolegal officer who examined complainant admitted being
unsure of her findings.
We disagree with the assessment by appellant of the testimony of the medicolegal
officer. However, even if we discount the testimony of the latter, complainants testimony by
itself can sustain the formers conviction. Medical examination is not an indispensable
requirement, and its absence does not affect the verdict of conviction, if sufficient evidence is
presented to prove the crime charged. When a rape complainant, especially one of tender
age like Catherine, says that she has been raped, she in effect says all that is necessary to
show that she has indeed been raped.
[32]
Civil Indemnity and Moral Damages

The Solicitor General takes issue with the damages awarded by the RTC. In the assailed
Order, it ordered appellant to pay P50,000 in civil indemnity, P10,000 in moral damages
and P5,000 in exemplary damages for every count of consummated rape; and P25,000 in civil
indemnity for the attempted rape.
Recent jurisprudence has increased the indemnification for the victim in a case of
consummated rape to P75,000 if the crime was committed with, or effectively qualified by,
any of the circumstances under which the death penalty is authorized by the applicable
amendatory laws. Moral damages are pegged at P50,000 without further need of pleading or
proof.
[33]
Exemplary damages, on the other hand, are granted when an aggravating circumstance,
which is not offset by a mitigating circumstance, attended the commission of the crime. In
several cases, the relationship between the appellant and the rape victim justifies the award of
exemplary damages, as in this case.
[34]
Second Issue: Modification of Penalties

One day after the promulgation of the April 6, 1998 Decision, the prosecution filed a
Motion for Reconsideration seeking the imposition of the death penalty on appellant for the
two cases of consummated rape and reclusion temporal for the attempted rape, in accordance

with Section 11 of RA 7659. The prosecution argued that the Motion would not place
appellant in double jeopardy, because what is sought is just the imposition of the proper
penalty as provided by law. The trial court concurred with the prosecution and granted the
Motion in the assailed Order, saying that the Motion was unopposed and that there was no
violation of appellants right against double jeopardy.
[35]
[36]
We disagree. Conflicting decisions rendered over the years both allowing the prosecution
to seek the reconsideration of a conviction and prohibiting it therefrom necessitate a review
of the rule on the modification of judgments of conviction. Early on, in People v. Ang Cho
Kio, the Court, citing Article 2 of Rule 118 of the pre-1964 Rules of Court, held that the
prosecution cannot move to increase the penalty imposed in a promulgated
judgment. Reopening the case for the purpose of increasing the penalty as sought by the
government would place the accused in double jeopardy. This ruling was followed in People
v. Pomeroy and People v. Ruiz.
[37]
[38]
[39]
The 1964 amendment of the Rules, however, allowed the fiscal to move for the
modification or the setting aside of the judgment before it became final or an appeal was
perfected. Under this amendment, a judgment acquired finality and the trial court lost
jurisdiction only in the following cases: (1) after the 15-day period to appeal lapsed, (2)
when the defendant voluntarily submitted to the execution of judgment, (3) when the
defendant perfected the appeal, (4) when the accused withdrew the appeal, (5) when the
accused expressly waived in writing the right to appeal, and (6) when the accused filed a
petition for probation. Under this amendment, the trial court had plenary power to alter or
revise its judgment in accordance with the requirements of law and justice.
[40]
[41]
[42]
[43]
[44]
In 1985, Section 7 of Rule 120 was amended to include the phrase upon motion of the
accused effectively resurrecting the Ang Cho Kio ruling prohibiting the prosecution from
seeking a modification of a judgment of conviction. As amended, the provision was worded
as follows:
[45]
SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of

the accused, be modified or set aside by the court rendering it before the judgment
has become final or appeal has been perfected. A judgment in a criminal case
becomes final after the lapse of the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served, or the accused has
expressly waived in writing his right to appeal, or the accused has applied for
probation.
Under this Rule, a judgment of conviction, before it became final, could be modified or
set aside upon motion of the accused. It obviously aims to protect the accused from being
put anew to defend himself from more serious offenses or penalties which the prosecution or
the court may have overlooked in the original trial. It does not however bar him from seeking
or receiving more favorable modifications.
[46]
Significantly, the present Rules, as amended last year, retained the phrase upon motion of
the accused, as follows:
SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of

the accused, be modified or set aside before it becomes final or before appeal is
perfected. Except where the death penalty is imposed, a judgment becomes final

after the lapse of the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or when the accused has waived in writing
his right to appeal, or has applied for probation.
Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase
the penalties without the consent of the accused.
We close this Decision with an exhortation to the defense counsel to be more
circumspect in defending appellant and others similarly situated. Counsel should have
immediately objected to the Motion for Reconsideration in the trial court. Because of this
failure to take exception, the RTC judge meekly granted the relief prayed for and condemned
the accused, inter alia, to two death sentences.
Before this Court, counsel was again caught flat-footed by not raising the erroneous basis
of the assailed Order. We cannot disregard such serious lapse. We urge counsel, as well as all
the members of the bench and the bar, to be more vigilant in protecting the rights of the
accused -- especially those in jeopardy of the death penalty -- and to keep abreast of legal
developments. Indeed, the learning process in law never ceases. Utmost dedication to duty
and excellence is expected of every lawyer.
[47]
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order

is ANNULLED and SET
ASIDE, while
the
assailed
Decision
is AFFIRMED and REINSTATED with the MODIFICATION that the awards of moral
damages are increased to P50,000 and those for exemplary damages to P25,000 for each
consummated rape, pursuant to current jurisprudence.
[48]
SO ORDERED.
G.R. No. 147231
February 18, 2004
PEOPLE OF THE PHILIPPINES, appellee,

vs.
RONNIE ABOLIDOR, CLAUDIO BARCIMO, JR. and FRANCISCO COMODA, accused.
CLAUDIO BARCIMO, JR., appellant.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the decision1 dated January 31, 2000 of the Regional Trial Court of Iloilo
City, Branch 31, in Criminal Case No. 40948, convicting Claudio Barcimo, Jr. @ "Noc-noc",
Ronnie Abolidor and Francisco Comoda of the crime of murder, sentencing them to suffer the
penalty of reclusion perpetua and ordering them to pay P100,000.00 as civil indemnity,
P16,000.00 as actual damages and P30,000.00 as moral and exemplary damages.
Claudio Barcimo, Jr., Ronnie Abolidor and Francisco Comoda were indicted for Murder in an
Information alleging:

That on or about the 14th day of June 1993, in the Municpality of New Lucena, Iloilo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and helping one another together with another unidentified person, armed with
firearms of unknown caliber, with deliberate intent and decided purpose to kill, with treachery,
superior strength and evident premeditation, did then and there, willfully, unlawfully and
feloniously attack and shoot Thelma Subosa with said firearms hitting the latter on the head,
chest and other parts of her body which caused the death of said Thelma Subosa immediately
thereafter.
CONTRARY TO LAW.2
Upon arraignment,3 the three accused pleaded not guilty. Trial on the merits ensued.
The victim, Thelma Subosa, was the mother of 14 children with her deceased husband, Primo
Subosa. Subsequently, she cohabited with her common-law husband Warlito Huesca and lived
together with some of her children in Brgy. Janipa-an, Oeste, New Lucena, Ilo-ilo. Thereafter,
Warlito Huesca also died.
In the early morning of June 14, 1993, a day after Warlito was buried, the victim, her children
namely, Ellyn, Roselyn, Evelyn, Manilyn, Leopoldo and Lilibeth, and Milagros Huesca, the
younger sister of Warlito Huesca, were awakened by the forcible opening of the door of their
house. Four men entered the house and declared a "hold up". The victim pleaded not to be
harmed. Instead, accused Ronnie Abolidor tied her mouth with a handkerchief to silence her.
Then appellant Claudio Barcimo, Jr. shot the victim several times causing her instantaneous
death.4
Prosecution witnesses Ellyn and Roselyn identified Claudio Barcimo, Jr. and Ronnie Abolidor
since they slept on the same mat with the victim and a kerosene lamp was near the victims
head.5 Both testified that they knew Ronnie Abolidor because he was their neighbor for several
years, and Claudio Barcimo, Jr. because he was a friend of their deceased stepfather. Francisco
Comoda was later identified by the witnesses at the police station.6
Roselyn also testified that on June 12, 1993, at the burial of their stepfather, the victim told her
that it was Claudio Barcimo, Jr. @ "Noc-Noc" who killed Warlito Huesca.7
For his part, appellant denied any participation in the killing of Thelma Subosa and claimed that
he could not have done it because he was a good friend of Warlito Huesca; that on June 13,
1993, at around 4:00 p.m., he was with Brgy. Capt. Buol in a celebration at the house of Brgy.
Capt. Gerardo Paniza at Brgy. Dawis. He had dinner and watched game of mahjong; that at
around 10:00 p.m., he went to sleep on the sofa near the mahjong table; that the mahjong game
lasted until 4:00 a.m. the following day; that he and Capt. Buol went back to New Lucena at
about 6:00 a.m. of June 14, 1993; and on the next day, he left for Manila for treatment of
tuberculosis.8
After trial, the trial court convicted the three accused on January 31, 2000 in a decision, the
dispositive portion of which reads:
WHEREFORE, the prosecution having sufficiently established the guilt of all the three accused,
namely, Claudio Barcimo, Jr., alias Nocnoc, Ronilo Abolidor alias Ronnie and Francisco Comoda,

beyond reasonable doubt (Rule 133, Sec. 2, Revised Rules of Court) of the offense of Murder
under Art. 248, R.P.C. as alleged in the Information, this Court hereby renders judgment
sentencing all the said accused to suffer the penalty of imprisonment consisting of Reclusion
Perpetua, with all the attendant accessory penalties, to pay P100,000.00 as indemnity for death
to the heirs of the late Thelma Sobusa, to pay the sum of P16,000.00 as actual damages, and
P30,000.00 by way of moral and exemplary damages and to pay the costs.
SO ORDERED.9
Only Claudio Barcimo, Jr. appealed the decision raising the following assignment of errors:
A. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF
PROSECUTION WITNESSES ELLEN SOBUSA AND ROSELYN SOBUSA AND IN NOT
APPRECIATING THE TESTIMONY OF THE AUNT OF SAID WINTNESSES AS
CORROBORATED BY THE BARANGAY CAPTAIN OF THE PLACE WHERE THE
INCIDENT HAPPENED THAT THE SAID PROSECUTION WITNESSES HAVE NOT
IDENTIFIED THE KILLERS.
B. THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY IS ATTENDANT IN
THE COMMISSION OF THE CRIME.
C. THE TRIAL COURT ERRED IN HOLDING THAT NIGHTTIME IS ATTENDANT IN THE
COMMISSION OF THE CRIME.
D. THE TRIAL COURT ERRED IN NOT APPRECIATING THE VOLUNTARY
SURRENDER OF THE ACCUSED.10
Appellant Claudio Barcimo, Jr. contends that his identification by Ellyn and Roselyn as one of the
assailants is doubtful because when asked whether they know the assailants, they replied in the
negative.
The contention is without merit.
By challenging his identification by the witnesses of the prosecution, as one of the assailants of
the victim, the appellant attacks the credibility of said witnesses and the probative weight of their
testimonies. However, when the issue of credibility of witnesses is in question, the findings of
facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the
probative weight thereof, as well as its conclusions anchored on said findings are accorded by
the appellate court high respect if not conclusive effect, precisely because of the unique
advantage of the trial court in observing and monitoring at close range the demeanor,
deportment and conduct of the witnesses as they testify, unless the trial court has overlooked,
misconstrued or misinterpreted cogent facts of substance which if considered might affect the
result of the case.11
In the case at bar, there is no showing that the trial court overlooked, misunderstood, misapplied
or misconstrued any fact of substance that might materially affect the outcome of the case. The
trial court found the collective testimonies of the prosecution witnesses Ellyn and Roselyn to be:

generally impressionable but their natural naivet and inexperience make them reliable
witnesses. Their statements are generally free from any bias or prejudice as to be slanted or
malicious. It is observed that the testimonies of Ellyn and Roselyn Sobusa are direct,
straightforward and delivered without any hesitancy whatsoever.12
The two prosecution witnesses, Ellyn and Roselyn Sobusa, positively identified appellant as the
one who shot the victim. Although the incident occurred during nighttime, the house of the victim
was sufficiently illuminated by the kerosene lamp placed near the head of the victim, which
provided enough light for purposes of identifying the killers.
On direct testimony, Ellyn Sobusa narrated the incident as follows:
Q. Can you recall in the morning of June 14, 1993 if there was any unusual incident that
happened?
A. Yes, sir.
Q. What is that incident about?
A. At around that time I was awakened by the sound of the opening of the door. I saw
four (4) persons entered our house and one them said, "This is a hold up." My mother
then pleaded, "Do not kill me. Have mercy."
Q. What happened after your mother pleaded have mercy?
A. There was a shot and I ducked. Then another shot was fired which I do not know
anymore because I lied with my face down.
Q. Do you know the person who said this is a hold up?
A. Yes, sir.
Q. Who is he?
A. Nocnoc.
Q. How far is this Nocnoc when you said he shot your mother?
A. Very near.
Q. What was the position of your mother by the time she was shot by Nocnoc?
A. She was lying down.
xxx
xxx
xxx
Q. Miss witness, this incident happened at around 2:00 oclock in the morning, why are
you sure that Ronnie Abolidor was one of the four persons who entered your house?

A. Because we have a kerosene lamp placed very near the head of my mother.
Q. How far is that kerosene lamp from your mother?
A. Witness demonstrates about 5 to 6 inches more or less.
Q. At that time that she was shot by Nocnoc, how far is Nocnoc from the kerosene lamp?
A. Nocnoc was situated on the feet of my mother.
Q. What was the position of Nocnoc when he shot your mother?
A. He was standing.13
Considering the illumination from the kerosene lamp, and Ellyns proximity to her mother and to
the appellant, she could have clearly seen and recognized the appellant when he shot the victim.
In People v. Prieto,14 we ruled that the illumination provided by kerosene lamp or wicklamps, and
flashlights, moonlight or starlight may, in proper situations, be considered as sufficient
illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious.
Moreover, Roselyn testified that she was familiar with the voice of the appellant as he was a
friend of his stepfather and she visited appellants house several times. 15 The voice of a person is
an acceptable means of identification where it is established that the witness and the accused
knew each other personally and closely for a number of years. Once a person has gained
familiarity with another, identification becomes quite an easy task even from a considerable
distance.16 We also note that appellant did not deny that Warlito Huesca was his good friend and
that he visited their house many times.17
The credibility of the prosecution witnesses Ellyn and Roselyn is not adversely affected by their
failure to immediately report the identities of the perpetrators to the responding authorities
immediately after the incident. Indubitably, fear stifled the witnesses from voicing their knowledge
of the identities of the perpetrators. There is no rule that a witness should immediately name the
suspect in a crime.18 Nevertheless, the delay was not that long as when the police authorities
investigated the witnesses in the afternoon of June 14, 1993 at Brgy. Agutayan, Sta. Barbara,
Iloilo, they named appellant and accused Ronnie Abolidor as two of the perpetrators. 19
To escape criminal liability, appellant invokes the defense of alibi and denial. He asserts that he
could not have done it considering that Warlito Huesca, the common-law husband of the victim,
was his good friend and at the time of the incident he was at Brgy. Dawis together with Brgy.
Capt. Buol in the house of Brgy. Capt. Gerardo Pineza watching the game of majhong.
We are not convinced.
It is well settled that positive identification, where categorical and consistent and not attended by
any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over
alibi and denial which, if not substantiated by clear and convincing evidence, are negative and
self-serving evidence undeserving weight in law.20 Hence, the defense of denial and alibi cannot

prosper in the light of the positive identification by eyewitnesses Ellyn Sobusa and Roselyn
Sobusa that appellant was the one who shot their mother.
We agree with the trial courts appreciation of the presence of qualifying circumstance of
treachery. There is treachery when the offender commits any of the crimes against persons,
employing means, methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the offended party
might make. It is settled that there is treachery if the victim, when killed, was sleeping or had just
awakened, because in such cases the victim was in no position to put up any form of defense. 21
In the case at bar, the victim had just awakened from sleep because of the forcible opening of
their door. When she was shot by appellant, she was lying down on the mat with a handkerchief
tied around her mouth. Obviously, in this position she can not defend herself from the aggression
of the perpetrators.
The trial court did not err in disregarding the mitigating circumstance of voluntary surrender. To
benefit an accused, the following requisites must be proven, namely: (1) the offender has not
actually been arrested; (2) the offender surrendered himself to a person in authority; and (3) the
surrender was voluntary. A surrender to be voluntary must be spontaneous, showing the intent of
the accused to submit himself unconditionally to the authorities, either because he acknowledges
his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search
and capture. Voluntary surrender presupposes repentance. 22 In People v. Viernes,23 we held that
going to the police station to clear ones name does not show any intent to surrender
unconditionally to the authorities.
In the case at bar, appellant surrendered to the authorities after more than one year had lapsed
since the incident and in order to disclaim responsibility for the killing of the victim. This neither
shows repentance or acknowledgment of the crime nor intention to save the government the
trouble and expense necessarily incurred in his search and capture. Besides, at the time of his
surrender, there was a pending warrant of arrest against him. 24 Hence, he should not be credited
with the mitigating circumstance of voluntary surrender.
Appellant is guilty of Murder, qualified by treachery, for the killing of Thelma Sobusa. Article 248
of the Revised Penal Code, as amended, imposes the penalty of reclusion perpetua to death for
Murder. The trial court was correct in imposing the penalty of reclusion perpetua, there being no
aggravating or mitigating circumstance, pursuant to Article 63, paragraph 2 of the Revised Penal
Code.
The trial court awarded the amount of P100,000.00 as civil indemnity to the heirs of the victim.
Said amount must be reduced to P50,000.00, in line with prevailing jurisprudence. 25
The award of actual damages must also be modified. While appellant admitted the amount of
P19,000.00 as actual damages,26 the trial court only awarded the amount of
P16,000.00.27 Ordinarily, receipts should support claims of actual damages, but where the
amount claimed was admitted, it should be granted. 28 Consequently, the heirs of the victim is
entitled to be awarded the amount of P19,0000.00 as actual damages.
The trial court likewise erred when it awarded the amount of P30,000.00 as moral and exemplary
damages without indicating what amount constitutes moral damages and exemplary damages. In

murder and homicide cases, the award of moral damages should be substantiated by
evidence.29 In the case at bar, the prosecution failed to present proof of moral damages.
Therefore, the same should be deleted.
On the other hand, exemplary damages must be awarded in view of the attendance of treachery
which qualified the killing to Murder. Under Article 2230 of the Civil Code, exemplary damages as
part of the civil liability may be imposed when the crime was committed with one or more
aggravating circumstances. The term aggravating circumstances as used therein is to be
understood in its broad or generic sense since the law did not specify otherwise. The ordinary
qualifying nature of an aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil liability of the offender. Thus, the heirs of the
victim are entitled to exemplary damages in the amount of P25,000.00. 30
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Iloilo City,
Branch 31, in Criminal Case No. 40948, insofar as it finds Claudio Barcimo, Jr. @ "Noc-noc"
guilty beyond reasonable doubt of the crime of murder and sentences him to suffer the penalty of
reclusion perpetua is AFFIRMED with the MODIFICATION that appellant is ORDERED to pay
the heirs of Thelma Sobusa the amounts of P50,000.00 as civil indemnity, P19,000.00 as actual
damages and P25,000.00 as exemplary damages. The award of moral damages is DELETED.
Costs de oficio.
SO ORDERED.
G.R. No. L-37271
July 1, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
MAGDALENA CALISO, defendant-appellant.
Juan Sumulong for appellant.
Attorney-General Jaranilla for appellee.
ABAD SANTOS, J.:
The appellant in this case was convicted of the crime of murder by the Court of First Instance of
Occidental Negros, and sentenced to suffer the penalty of reclusion perpetua, to indemnify the
parents of the deceased in the sum of P1,000, with the accessory penalties prescribed by law,
and to pay the costs. On this appeal, her counsel de oficio attacks the findings of fact of the trial
court, but does not raise any question of law.
The questions of fact involved in this case are fully discussed in well considered decision of the
trial court, presided over by then Judge Quirico Abeto, which decision reads as follows:
Se halla acusada Magdalena Caliso del delito de asesinato de un nio de 9 meses de
edad, ocurrido en La Carlota, Negros Occidental, el dia 8 de febrero del presente ao,
1932. La querella alega que la acusada, siendo una criada de los Sres. Esmeralda
(Emilio), voluntaria, ilegal y criminalmente y con el proposito de satisfacer una venganza,
administro cierta cantidad de acido acetico concentrado, que es una sustancia

venenosa, a Emilio Esmeralda, Jr., un nio de 9 meses de edad, causandole
quemaduras en la boca, en la garganta, en los intestinos y otras partes vitales de los
organos internos que le produjeron necesariamente la muerte de la victima, quien
sucumbio pocas horas despues; que en la comision de este delito, han concurrido las
circunstancias agravantes de alevosia, abuso de confianza y que el acto se ha cometido
en la propia morada de los padres de la victima.
Despues de presentadas las pruebas, tanto de la acusacion, como de la defensa, y
despues de oidos los brillantes informes aducidos tanto por el Fiscal Provincial, como
por el abogado de oficio de la acusada, el Juzgado se ha reservado la decision para este
dia, no sin antes felicitar tanto a la acusacion como a la defenda, la primera por lo
concienzudo en la reunion y presentacion de sus pruebas, y la segunda por el interes
grande con que ha demostrado a favor de la acusada. El Juzgado ha querido tomar
tiempo para decidir esta causa, porque se da cuenta de lo grave que es el delito
cometido y de las circunstancias tanto de la acusada como de los ofendidos en esta
causa. Por un lado, esta la acusada, que es una mujer que pertenece al sexo debil, en la
primavera de su vida, a quien una sentencia podria privar de todos los beneficios que la
vida le ofrece. Por otro lado, una madre loca de dolor que ha perdido al unico hijo varon
de la familia y que considera a la causada como la persona que le ha arrebatado su
unico cario. Por eso el Juzgado ha querido, hasta donde le ha sido posible, poner toda
su atencion en todos los detalles de las pruebas, observando hasta los menores actos
de los testigos y de la acusada.
Y de las pruebas presentadas, el Juzgado encuentra que en la tarde del dia 8 de febrero
de 1932, mientras los esposos. Sres. Emilio Esmeralda y Flora Gonzalez estaban
durmiendo tomando la siesta, repentinamente la Sra. de Esmeralda se desperto porque
oyo un grito agudo de su hijo Emilio Esmeralda, de 9 meses de edad, que estaba
durmiendo en una cama al lado opuesto del sitio donde estaba ella durmiendo con su
marido. Cuando la Sra. de Esmeralda llego, seguida de su marido, a la cama donde
habia dejado dormido a su hijo, al levantar el mosquitero de la cama, percibio
inmediatamente un olor fuerte de acido acetico y encontro a su hijo, que seguia llorando
fuertemente, con los ojos en blanco, los labios hinchados y blanquecinos y la cara
amoratada, y al levantarle percibio olor de acido acetico en la respiracion del nio.
Entonces grito preguntando quien habia puesto acido acetico en la boca de su hijo, y
como ella es farmaceutica de profesion, se acordo inmediatamente de un antidoto que
podia neutralizar los efectos del acido acetico y ella misma saco agua de cal y mojando
un algodon hidrofilo, limpio la boca del nio, al mismo tiempo que mandaba a su marido
que llamara por telefono al doctor. Pocos momentos despues llego el Dr. Augusto Locsin,
quien segun su declaracion, noto inmediatamente el olor de acido acetico en la
respiracion del nio, y quiso hacer la primera cura, lavando el estomago del nio, pero la
madre no quiso que el lavado llegara hasta el estomago, por el temor de lastimar la
garganta del chiquillo con el 'catheter', y por este motivo el lavado solamente se pudo
hacer hasta la garganta del nio. Despues de algun tiempo, llegaron, procedentes de
Bacolod, los Dres. Orosa y Ochoa, quienes por telefono habian sido llamados tambien
por el padre de la victima. El Dr. Orosa es el jefe medico del Hospital Provincial de esta
provincia, y el Dr. Ochoa es uno de los medicos residentes en dicho hospital,
especialista en las enfermedades de los cinco sentidos. Ambos doctores declararon
positivamente que habian percibido el olor de acido acetico en la respiracion del nio, y
habiendo ellos concluido que el chiquillo habia tomado acido acetico, aplicaron la cura
para eliminar dicha sustancia del organismo del nio, y despues de hacer las primeras
curas, llevaron al nio al Hospital Provincial y alli murio pocos minutos despues de haber
llegado.
Ambos doctores, asi como el Dr. Locsin, son unanimes en la afirmacion de que la muerte
del chiquillo se debio al envenenamiento por medio de acido acetico, y todos,
especialmente el Dr. Ochoa, coinciden en la opinion de que la muerte ha sido por asfixia,

pues el acido acetico ha hecho estragos en la laringe del nio y este no pudo respirar. El
Dr. Ochoa que, como se ha dicho, es un especialista en los cinco sentidos, examino la
boca y la garganta del nio y encontro alli quemaduras ocasionadas, segun el, por el
acido acetico. Y tan seguros estan los doctores de que el nio habia tomado acido
acetico y que la muerte del mismo se debio a esta sustancia, que el mismo Dr. Orosa,
que es un medico de muy larga experiencia y un experto cirujano, le aseguro al Fiscal
que no habia necesidad de autopsia para llegar a una conclusion rayana a la seguridad
sobre la causa de la muerte del chiquillio, y que aun cuando la autopsia demostrara que
no existia acido acetico en los intestinos de, nio, ya porque este habia sido absorbido
por el organismo, o ya porque el estomago habia sido lavado, el estaba segurismo de
que la muerte se debio al envenenamiento por acido acetico, porque el habia olido esa
sustancia, cuyo olor es inconfundible, en la respiracion del nio y ha visto los estragos
de la sustancia en la garganta y en la boca del occiso. Ambos medicos, de un modo
positivo, sin dudar ni un momento, aseguraron al Juzgado de que la causa de la muerte,
como se ha repetido varias veces, es por envenenamiento por acido acetico. Y el
Juzgado esta conforme en que en tales circunstancias, no habia necesidad de autopsia
para que el Juzgado pueda concluir, en vista de las afirmaciones de los medicos
basadas en los hechos por ellos encontrados, que la muerte ha sido por
envenenamiento por acido acetico.
El Juzgado no tiene duda alguna de la competencia de estos dos doctores, sobre todo
tratandose de la opinion del Dr. Ochoa, que es un especialista en los cinco sentidos y
que ha reconocido la garganta y la boca del nio, en las cuales encontro quemaduras
pruducidas por aciso acetico.
Aparte de esto, la madre del occiso, que es una farmaceutica, acostumbrada a oler y
distinguir sustancias, percibio el olor del acido acetico en los primeros momentos en que
alzo a su hijo de la cama. El marido de esta seora, Sr. Emilio Esmeralda, tambien es un
quimico y aseguro tambien haber olido el olor fuerte del acido acetico desde los primeros
momentos. Aparte de estas dos personas que pueden equivocarse, ya por su pasion o
por las preocupaciones de momento por estar interesados por su hijo, esta el Sr. Julian
Gomeri, otro quimico que vivia en la misma casa, quien aseguro al Juzgado que al entrar
en el cuarto donde estaba el chiquillo en brazos de su madre, olio inmediatamente el olor
sofocante del acido acetico, tanto es asi que pregunto inmediatamente quien habia
puesto acido acetico en la cama del nio y en seuida se puso a buscar por si habia dicha
sustancia en la cama del nio, pero no encontro ninguna botella de acido acetico, ni
rastro de esta sustancia en la cama, sino en la respiracion del nio.
Por eso el Juzgado repite que esta probado fuera de toda duda racional que el nio
Emilio Esmeralda, Jr., murio a consecuencia de envenenamiento de acido acetico, y es
insostenible la teoria de que pubo haber tenido una indigestion por haber ingerido jugo
de naranja de California despues de haber tomado leche, y de que el olor del acido
acetico podia derivarse del vomito dle chiquillo por la mezcala del jugo de naranja con la
leche. Tres medicos y tres quimicos es imposible que confundan el olor del jugo de
naranja que se ha vuelto acido al mezclarse con la leche, con el olor fuerte del acido
acetico concentrado.
Habiendo llegado a esta conclusion de que la muerte del nio Emilio Esmeralda, Jr., se
debio a envenenamiento por acido acetico, la otra cuestion que el Juzgago tiene que
resolver es: quien le administro esta sustancia.
Desde este punto las pruebas son todas circunstanciales unicamente.
Es un hecho probado que dias antes de este suceso, al volver el Sr. Emilio Esmeralda a
su casa, procedente de la fabrica de la Central La Carlota, a eso de la madrugada, not

cierto bulto que se movia en los bajos de su cama en el cuarto-habitacion de el y de su
seora cuando esta pasaba algunos dias en La Carlota. Temiendo que algun ladron se
habia introducido debajo de la cama, cogio su revolver y amenazo con dispararle un tiro
al que estaba alli metido si no salia. Efectivamente de alli salio un hombre y, todo
temblando, le dijo al Sr. Esmeralda que el no era un ladron, sino que estaba alli porque
habia sido llamado por la acusada con quien estaba en relaciones amorosas. El Sr.
Esmeralda entonces le recrimino por su acto y le dejo marchar, conminandole que no
volviera a repetir el acto. Cuando la Sra. Flora Gonzalez llego a La Carlota algunos dias
despues, o sea en el dia de autos, el Sr. Esmeralda, despues del desayuno y estando
entonces ausente la acusada por haber ido al mercado, le conto a su seora lo que
habia sucedido en uno de los dias pasados, o sea, el haber sorprendido a un hombre en
su propio cuarto y debajo de su misma cama, acudiendo a una cita que tuvo con la
acusada. La Sra. de Esmeralda, dada su educacion y por ser mujer al fin, se sintio muy
ofendida e indignada por el acto de su criada y, muy nerviosa, espero la vuelta de la
acusada, y cuando esta llego, la Sra. Esmeralda la busco en la cocina, la empezo a
insultar de pies a cabeza, recriminandola por su acto inmoral y por haberse permitido
ocultar a su amante en el propio cuartro de sus amos, y despues de regaar a la
acusada, se volvio a su cuarto, y pareciendole poco la recriminacion que acababa de
hacer a la acusada, otra vez la Sra. de Esmeralda volvio a la cocina a reprenderla de
nuevo, y como no se calmaban los nervios de la Sra. de Esmeralda en estas dos
ocasiones, a medida que volvia a la cocina, emprendia nuevos insultos a la acusada, en
terminos que cuando la Sra. de Esmeralda puso a dormir a su hijo en la cama, cuando
encontro algo sucias las fundas de la almohada, otra vez se fue a la cocina y volvio a
amonestar a la acusada recriminandola y diciendola que solamente sabia tener amantes
y no sabia cumplir sus deberes como criada. Apenas dos horas escasas de ocurrir estos
insultos, ocurrio el suceso que dio lugar a la muerte del nio Emilio Esmeralda, Jr.
Procediendo por eliminacin, el Ministerio Fiscal ha tratado de probar al Juzgado, y asi
alega en su informe, que en el momento de ocurrir el incidente del envenenamiento del
nio, solamente estaban en aquel dia viviendo en la casa donde ocurrio el suceso, diez
personas, a saber: los esposos Esmeralda, sus dos hijas, Lilia y Elsa, el nio Emilio
Esmeralda, Jr., Julai Gomeri, Jose Colmenares, Catalino Ramos, una criada de unos 12
aos de edad, llamada Magdalena Soriano, y la aqui acusada. El Ministerio Fiscal dice
que no pueden ser autores dle envenenamiento, ni el Sr. Esmeralda, ni su esposa. El
Juzgado, desde luego, esta conforme con esta eliminacion. No es posible que estos
sean los autores de tal envenenamiento; ademas de ser padres, la actitud de la madre,
enloquecida de dolor por la muerte de su hijo, aleja toda duda. Seria absurda la mas
remota suposicion de que estas personas fuesen los autores de tal envenenamiento. No
podia ser Elsa Esmeralda porque esta, aparte de sus pocos aos, estaba durmiendo con
su hermanito en la misma cama donde ocurrio el incidente. No podia ser Lilia, ni la
criada Magdalena Soriano, porque ambas estaban entonces en el retrete, segun las
pruebas; ademas que no podia caber la suposicion de que, o Magdalena Soriano, o Lilia
hayan administrado equivocadamente acido acetico al nio dormido, por cuanto que la
botella que lo contenia estaba en la cocina, segun la acusada misma, cerca del cantaro
de agua donde ella habia puesto, y la acusada, segun ella misma, estaba toda la tarde
en la cocina fregando platos, de tal manera que si Magdalena Soriano o Lilia hubiesen
querido alcanzar la botella de acido acetico, la acusada los hubiera visto. Julian Gomeri
estaba dormido en su cuarto; era un compaero del Sr. Esmeralda en el trabajo, amigo
intomo de la familia y no ha tenido ningun disgusto con ningun miembro de ella y no hay
motivo alguno para atribuir que el haya puesto en la boca del nio acido acetico. Jose
Colmenares estaba en la fabrica de la Central, que dista medio kilometro de la casa
ocupada por los Sres. de Esmeralda, ocupado en sus trabajos como empleado de dicha
Central. Catalino Ramos estaba ausente entonces en la localidad, pues se encontraba
en el pueblo de Talisay. Eliminadas estas personas, solamente queda la acusada como
posible autora del acto de administrar acido acetico al nio Emilio Esmeralda, Jr.

Desde luego, la prueba de que la acusada, pocas horas antes del suceso, era la unica
de la casa que habia recibido insultos de la madre del nio, es una prueba circunstancial
contra ella. Ninguno tenia motivos de resentimiento hacia ningun miembro de la familia
del occiso mas que la acusada. Ella misma ha admitido durante su testimonio que en
aquel dia ella habia sido reprendida por su ama. Cuando el nio Emilio Esmeralda, Jr.,
dio un grito agudo que hizo despertar a su madre, Julian Gomeri, que estaba dormido en
el otro cuarto, pudo abrir los ojos y vio a la acusada saliendo de la puerta de la sala y
dirigiendose hacia la cocina. Por esta sala habia que pasar al salir del cuarto donde
estaba dormido el nio, para ir a la cocina; y la distancia de la puerta de esta sala al sitio
donde estaba durmiendo el nio habia apenas 4 o 5 metros. La acusada no ha podido
desmentir esta declaracion de Julian Gomeri, ni ha podido dar explicacion alguna por
que en aquel preciso momento ella salia de la sala para ir a la cocina. Es posible que
despues de haberse puesto el acido acetico en la boca del nio, este no haya podido
gritar inmediatamente, sino algunos segundos despues al sentir los efectos del acido, de
tal manera que la acusada tuvo tiempo para abandonar el sitio y volver a la cocina y
estando en la sala, el nio dio el primer grito que le hizo abrir los ojos a Julian Gomeri.
Este hecho es otra prueba circunstancial bastante fuerte, a juicio del Juzgado, contra la
acusada. Cuando la madre del nio estaba curando a este, ordeno a la acusada y a
Magdalena Soriano a que hirvieran agua en la cocina, y mientras estas dos criadas
cumplian la orden, la acusada, sin motivo alguno plausible, le puso las manos debajo de
las narices de Magdalena Soriano y le dijo: "Mis manos estan oliendo acido acetico
porque se ha derramado algo alli cuando hice vinagre esta maana con acido acetico."
Esta explicacion no pedida hecha por la acusada no parece indicar otra cosa mas que
algun temor que abrigaba por si alguien pudiese oler acido acetico en sus manos. Otra
prueba circunstancial contra la acusada es el hecho de que en la casa ella era la unica
que tenia bajo su custodia esta botella Exhibit A que contenia acido acetico. Magdalena
Soriano no sabia siquiera donde estaba puesta esta botella. Cuando la Sra. de
Esmeralda busco esta botella, cuyo recuerdo le trajo a la memoria al oler el acido acetico
en la boca de su hijo, la acusada fue quien saco la botella de la cocina y le entrego a la
Sra. de Esmeralda, diciendola, poco mas o menos, estas palabras: "Seora, aqui esta
botella; no ha salido de la cocina."
La acusada, al declarar en la silla testifical como testigo a su favor, al ser preguntada por
el Juzgado si ha olido acido acetico al entrar en el cuarto, se inmuto algun tanto; pero
inmediatamente se repuso y nego rotundamente haber olido acido acetico. El Juzgado le
dirigio varias veces esta pregunta, y la acusada insistio en su negativa. El Juzgado le
pregunto si conocia el acido acetico y el olor del mismo, y afirmo que si y volvio a afirmar
que no habia percibido tal olor en el cuarto al entrar y durante todo el tiempo que habia
permanecido alli. Ahora bien, tres medicos imparciales, does quimicos y una
farmaceutica, aparte de Magdalena Soriano, han olido el inconfundible olor de acido
acetico en el cuarto. La unica que no ha podido oler dicha sustancia es la acusada. En la
comisionde un crimen, el unico que tiene interes en negar la existencia de un cuerpo del
delito es casi siempre, o sin casi, el autor del mismo. Y esta actitud de la acusada de
negar una cosa tan evidente y sobre la cual el Juzgado no tiene duda alguna, corrobora,
a juicio del Juzgado, todas las pruebas circunstanciales que se han presentado por la
acusacion.
La defensa hace enfasis en el hecho de que la acusada, lejos de escaparse, entro en el
cuarto para ayudar a la madre del nio para salvar a este, y tanto es asi que la misma
acusada, segun Julian Gomeri, tan pronto como la Sra. de Esmeralda pidio algodon, fue
la que saco de las manos de Julian Gomeri el algodon y lo entrego a la Sra. de
Esmeralda. Este hecho no es, a juicio del Juzgado, suficiente para demostrar la
inocencia de la acusada. Cuantas veces ha sucedido que el que ha realizado un acto
criminal, se arrepiente de su crimen y trata de remediarlo! El que acaba de herir a un
hombre, despues de pasado el primer momento de obcecacion, si el pudiera curarlo,
indudablemente no se encontraria mejor medico para el herido. Tambien puede suceder

que la acusada, habiendo querido causar daos unicamente a la criatura, haya querido
usar de toda su habilidad para que los efectos del dao no fuesen tan grandes. La
actitud de la acusada, por tanto, es perfectamente explicable y no incompatible con su
culpabilidad. Otra actitud de la acusada que parece tener bastante peso es su actitud
cuando ella volvio por la tarde del dia siguiente del suceso a la estacion de policia
cuando el Jefe de Policia le dijo que volviera en aquella tarde. Y el abogado de la
acusada tiene razon para hacer enfasis sobre esta circunstancia. La acusada ha sido
arrestada casi a media noche del mismo dia del suceso. Fue puesta en libertad a las 11
de la maana del dia siguiente, en vista de que no llegaba orden de arresto contra ella;
pero el Jefe de Policia le dijo que volviera a las 3 en punto de la tarde, y a las 3 de
aquella tarde la acusada volvio al edificio municipal. El abogado de la acusada arguye
que una conciencia criminal no procederia como ha procedido la acusada; ella se
hubiera escapado. El Juzgado ha considerado detenidamente este aspecto de la
cuestion; ha meditado largamente sobre este acto de la acusada; pero la conclusion del
Juzgado es que si la acusada volvio en la tarde de aquel dia al edificio municipal, era
porque la acusada no sabia que el nio Emilio Esmeralda, Jr., habia muerto. Ademas,
ella debia saber que, mujer que era, no podia ir a ninguna parte sin que le alcanzaran las
autoridades correspondientes y, por tanto, era mejor para ella presentarse ante las
autoridades aparentando tener una conciencia tranquila y preparando en esa forma su
futura defensa. El Juzgado cree que desde el momento en que la acusada mostro
solicitud suma para salvar la vida del nio que ella habia segado en momentos de
colera, la acusada ya habia concebido su plan de defensa.
Se dira tal vez quo no es usual que, habiendo la madre del nio ofendido a la acusada,
esta, en lugar de tomar venganza de la madre, que muchas oportunidades hubiera ella
tenido porque, segun ha tratado de resaltar el abogado de la defensa, la acusada dormia
en el mismo cuarto de los esposos Esmeralda y preparaba la comida de estos, haya
dirigido su accion vengadora a una inocente criatura, maxime teniendo en consideracion
que la acusada es una mujer y las mujeras, por regla general, son mas caritativas que
los hombres. En primer lugar, ya sea un hombre, ya sea una mujer, cuando estan
obcecados por el odio y la venganza, ya no consideran las circunstancias y procuran
dirigir su venganza al que les ha ofendido alli mismo donde es mas facil ejecutar. En este
caso, el nio Emilio Esmeralda, Jr., era el que dormia mas cerca a la puerta entrando
inmediatamente, procedente de la cocina, y era el que, por su tierna edad, podia sentir
inmediatamente los efectos del acido acetico, pudiendo asi ejecutar su venganza con
mayor seguridad de su parte. Causando dao al nio, que, por ser el unico varon de la
familia, era el mas querido por los Sres. de Esmeralda, se causaba mayor dao a la Sra.
de Esmeralda. El Juzgado, desde luego, acepta la teoria de que la mujer es mucha mas
caritativa que el hombre y mucho mas debil del consenso comun; pero precisamente por
ser mas caritativa, por ser mas debil, cuando la mujer se vuelve mala y quiere vengarse,
su venganza busca al mas debil tambien y sobre este hace recaer esa venganza, y la
experiencia diaria nos ensea que los seres mas debiles, sean hombres o mujeres,
cuando se vuelven malos, son peores enemigos; y no es nada extrao, por tanto, que la
acusada, temiendo atacar al Sr. Esmeralda y a la Sra. de Esmeralda, porque contra ellos
no tenia asegurada la ejecucion de su venganza, ha escogido como victima a una
criatura indefensa de 9 meses de edad.
Por las consideraciones expuestas, el Juzgado encuentra probado fuera de toda duda
racional que Emilio Esmeralda, Jr., de 9 meses de edad, fallecio el dia 8 de febrero de
1932, a consecuencia de envenenamiento por acido acetico concentrado, y que la
acusada, aprovechando la ocasion en que sus amos estaban durmiendo, administro una
pequea cantidad de esta sustancia a dicho nio, quemandole de este modo la boca y la
garganta, a consecuencia de lo cual dicho nio fallecio.
Se declara, por tanto, a la acusada Magdalena Caliso culpable del delito de asesinato, y
estimando en la comision del delito la concurrencia de la circunstancia agravante de

alevosia, porque se trata de un ser indefenso, y de la circunstancia de haberse realizado
el acto en la propia morada de los padres de la victima, cuyas circunstancias estan
compensadas con las circunstancias atenuantes de falta de instruccion y de haber
obrado la acusada a impulsos de un sentimiento que la hayan producido arrebato y
obcecacion, le condena a la pena de reclusion perpetua, a indemnizar a los padres del
occiso en la suma de P1,000, con las accesorias de ley, y a pagar las costas del juicio.
Asi se ordena.
We agree to the conclusions of fact reached by the trial court. As to the application of the law to
the facts of the case, we are inclined to the proposition advanced by the Attorney-General that in
the commission of the crime the aggravating circumstance of grave abuse of confidence was
present since the appellant was the domestic servant of the family and was sometimes the
deceased child's amah. The circumstance of the crime having been committed in the dwelling of
the offended party, considered by the lower court as another aggravating circumstance, should
be disregarded as both the victim and the appellant were living in the same house. (U.S. vs.
Rodriguez, 9 Phil., 136; U.S. vs. Destrito and De Ocampo, 23 Phil., 28.) Likewise, threachery
cannot be considered to aggravate the penalty as it is inherent in the offense of murder by
means of poisoning (3 Viada, p. 29). Similarly the finding of the trial court that the appellant acted
under an impulse so powerful as naturally to have produced passion and obfuscation should be
discarded because the accused, in poisoning the child, was actuated more by a spirit of
lawlessness and revenge than by any sudden impulse of natural and uncontrollable fury
(People vs. Hernandez, 43 Phil., 104, 111) and because such sudden burst of passion was not
provoked by prior unjust or improper acts of the victim or of his parents (U.S. vs. Taylor, 6 Phil.,
162), since Flora Gonzalez had the perfect right to reprimand the defendant for indecently
converting the family's bedroom into a rendezvous of herself and her lover.
The aggravating circumstance of abuse of confidence being offset by the extenuating
circumstance of defendant's lack of instruction considered by the lower court, the medium degree
of the prescribed penalty should, therefore, be imposed, which, in this case, is reclusion
perpetua.
The penalty imposed by the lower court upon the appellant being thus within the limits fixed by
law, the judgment appealed from is affirmed with costs. So ordered.
March 30, 1982

G.R. No. L-49430
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BELINDA LORA Y VEQUIZO alias LORENA SUMILEW, accusedappellant.
PER CURIAM:The defendant Belinda Lora y Vequizo alias Lorena Sumilew
was accused in the Court of First Instance of Davao of serious illegal
detention with murder in an amended information which reads as follows:

, J.:
The defendant Belinda Lora y Vequizo alias Lorena Sumilew was accused in the
Court of First Instance of Davao of serious illegal detention with murder in an
amended information which reads as follows:
The undersigned accuses the above-named accused of the crime of Serious Illegal
Detention with Murder under Art. 267 in relation to Articles 248 and 48 of
the Revised Penal Code, committed as follows:
That on or about May 28, 1976, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the abovementioned accused being then a
private person, wilfully, unlawfully and feloniously and for the purpose of
extorting ransom from spouses Ricardo Yap and Myrna Yap, illegally detained
their three (3) year old child Oliver Yap, a minor, from May 28 to 29, 1975 and
with treachery, evident premeditation and with intent to kill wilfully, unlawfully
and feloniously attacked, assaulted Oliver Yap by tying his mouth with stocking,
placing him inside a Pallmall cigarette box, covering the said box with a mat and
piece of sack and filing the same with other boxes in the third floor ( bodega) of
the house owned by said spouses Ricardo Yap and Myrna Yap, thereby inflicting
upon said Oliver Yap the following to wit: Asphyxia due to suffocation" which
caused the death of said Oliver Yap.
That the commission of the foregoing offense was attended by the following
aggravating circumstances: (1) taking advantage of superior strength; (2) disregard
of the respect due the offended party on account of his age; (3) that the crime was
committed in the dwelling of the offended party; (4) that the crime was committed
with abuse of confidence, she being a domestic helper (maid) or obvious
ungratefulness; (5) that craft, fraud and disguise was employed; and (6) that the
crime was committed with cruelty, by deliberately and inhumanly augmenting the
suffering of the victim.
Contrary to law.

According to the trial judge, "he has appointed as counsel de oficio Atty.
Hildegardo Inigo a bar topnotcher with considerable practice," in view of the
gravity of the offense.
Upon motion of the counsel for the accused, the arraignment was postponed to
enable him to study the charge against the accused. Thereafter, after being
arraigned, the accused Belinda Lora in the presence and with the assistance of her
counsel, entered a plea of guilty in Visayan dialect, which is her native dialect.
The Court thereafter directed the prosecution to present its evidence and the
counsel for the "accused manifested that the evidence of the defense would be
presented only for proving mitigating circumstances.
Eight witnesses for the prosecution, namely: Myrna Yap, David Cortez, Fidencio
Bisnar, Ricardo Yap, Agaton Bonahos, Emmanuel Mesias, Rolando Estillori and
Juan Abear, Jr. were presented.
The facts are undisputed.
On May 26, 1975, accused Belinda Lora using the name "Lorena Sumilew",
applied as a housemaid in the household of the spouses Ricardo Yap and Myrna
Yap at 373 Ramon Magsaysay Avenue, Davao City. The spouses had a store on the
ground floor; a mezzanine floor was used as their residence; while the third floor
was used as a bodegafor their stocks. They had two children, Emily and Oliver
Yap. Oliver was 3 years and five months old. 1
Belinda Lora was accepted as a housemaid in the residence of the Yaps and
reported for work the following day, May 27, 1975. Her duties were to wash
clothes and to look after Oliver Yap. 2
On May 28, 1975, Mrs. Myrna Yap returned home from the market to find her
mother-in-law and her husband panicky because their son, Oliver, and the maid,
accused Belinda Lora were missing. The mother-in-law had found a ransom note at
the stairway to the mezzanine floor. The note said that Oliver was to be sold to a
couple and that the writer (defendant herein) needed money for her mother's
hospitalization. 3 Four pieces of residence certificates were also found inside the

paper bag of the maid. One residence certificate bore the No. 1941785 with the
name Sumiliw, Lorena Pamintil. 4
The incident was reported immediately to the police. Mrs. Yap, accompanied by
one Mrs. Erlinda Velez, went to look for Oliver and the housemaid. Not finding
them in Davao City, they went to Digos and Bansalan (Davao) and looked in the
hospitals there. The residence certificate in the name of Lorena Sumiliw was issued
in Digos and the ransom letter stated that the mother of the defendant was very
sick. 5
In the evening of May 28, 1975, the Yaps received two telephone calls at their
residence. The first call was received by Mrs. Yaps's mother-in-law while the
second call was received by Ricardo Yap. Lorena Sumiliw (defendant), the caller,
instructed Ricardo Yap to bring the amount of P3,000.00 to the island infront of the
(Davao) Regional Hospital and to go there alone without any policeman or
companion, after which his son (Oliver) would be left to the security guard of the
hospital at the emergency exit. 6
The Yaps borrowed the amount of P3,000.00. Upon instructions of the NBI, the
money was marked with Mrs. Yap's initials "MY". 7
Ricardo Yap wrapped the P3,000.00 in a piece of paper and went to the Regional
Hospital at 9:30 in the evening of May 28, 1975. He placed the money near the
Imelda Playground. He proceeded to the hospital and looked for his child from the
security guard. However, the security guard said nobody left a boy with him. 8
Ricardo Yap stayed at a corner looking and calling for his child but could not
locate him. After ten minutes, he went back to where he had placed the money but
the money was not there anymore. He waited until 11:00 o'clock, after which he
went home. 9
The following morning, May 29, 1975, Mrs. Yap received a phone call from the
accused informing her that her son was at the Minrapco Terminal and that she was
asking for another P 3,000.00. Mrs. Yap proceeded to the terminal whereupon she
learned that the terminal had moved to a place near a theatre. When Myrna Yap
arrived at the place, she saw the accused board a Minica bus. She followed and
grabbed the accused. 10 As the accused said that Mrs. Yap's son was brought to the

Regional Hospital they proceeded there. Upon arriving there, a couple, Mr. and
Mrs. Bonahos said that the Yap son was in Panacan. Mrs. Yap and the accused
went to Panacan. After arriving at Panacan the accused told Mrs. Yap that her son
was in the custody of a woman whom she paid P 100.00 and that the woman would
return her son at 6:00 o'clock P.M. that day. Mrs. Yap therefore, made the accused
sign a promissory note that she would return Oliver on the same day. 11 After the
accused boarded a bus for Surigao, Mrs. Yap listed down the bus number and the
seat number and reported to Lt. Mesias of the Davao City Police Force that the
"kidnapper" was on board the Surigao bus. 12
Lt. Mesias stopped the bus and placed the accused under arrest. From the body of
the accused was taken an improvised pouch containing 36 pieces of P 50.00 bills
and 24 pieces of P 20.00 bills. The money had initials reading "MY" below the
serial numbers. 13
The following morning, May 30, 1975, upon waking up at around 6 o'clock in his
house, Ricardo Yap noticed that blood was dripping from the ceiling. He went
upstairs, which was being utilized as a bodega, to verify, and found his son placed
inside the carton of Marlboro cigarettes. The head of the child was inside the
carton while his feet protruded outside. 14 His mouth was tied with stockings. 15
The child was already dead. 16 He had died of "asphyxhia due to suffocation. 17
The defendant presented evidence only for the purpose of proving alleged
mitigating circumstances. She claims that she did not intend to kill the child. 18
To support her plea for mercy, she stated that she had three children aged from one
to five years whom she left in Pagadian. 19 On objection to the materiality of the
evidence, the appellant's counsel pleaded that she be allowed to prove those facts
for "humanitarian consideration" which might enable the Supreme Court to review
the penalty with compassion. 20
The defendant capped her testimony with the following plea:
A I would request the Honorable Court that LIFE IMPRISONMENT will be the
penalty imposed upon me because I really committed the crime. I did not really
intend to kill the child.

Q Would you like to make any further appeal?
A I really repent to what I have done, sir. 21
On cross-examination, the defendant admitted that she gagged the child's mouth
with stockings; placed the child inside the box with head down and legs up; that
she covered the box with some sacks and boxes and left the child in that condition
inside the storeroom of the house of Ricardo Yap. 22
When the defendant left the store room, the voice of the child, who was previously
shouting, "was already slow and to make sure that his voice would not be heard I
closed the door. 23
On the basis of the plea of guilt of the defendant and the evidence of the
prosecution, the court convicted the defendant with complex crime of serious
illegal detention with murder and imposed, among others, the extreme penalty of
death.
Hence, this automatic review.
The guilt of the defendant is so patent that there is no further need to discuss the
evidence. The only task remaining after the plea of guilty and the presentation of
the undisputed evidence for the prosecution is to determine the crime committed,
the penalty to be imposed and the aggravating and mitigating circumstances to be
appreciated. The crime actually committed is not the complex crime of kidnapping
with murder, as found by the trial court, but the simple crime of murder qualified
by treachery.
Kidnapping is a crime against liberty defined in Article 267, Title IX, Book 11 of
theRevised Penal Code. The essence of kidnapping or serious illegal detention
is the actual confinement or restraint of the victim or the deprivation of his liberty.
24
Where there is no showing that the accused intended to deprive their victims of
their liberty for some time and for some purpose, and there being no appreciable
interval between their being taken and their being shot from which kidnapping may
be inferred, the crimes committed were murder and frustrated murder and not the

complex crimes of kidnapping with murder and kidnapping with frustrated murder.
25
In the instant case. the gagging of the child with stockings, placing him in a box
with head down and legs upward and covering the box with some sacks and other
boxes were only the methods of the defendant to commit murder. The child
instantly died of suffocation. This is evident from the testimony of Dr. Juan Abear,
Jr. who performed the autopsy on May 30, 1975 at 8 o' clock in the morning. When
Dr. Abear conducted the autopsy, the body of the child was already in a state of
decomposition. Dr. Abear opined that the child must have died three days before
the autopsy. 26 In other words, the child died practically on the very day that the
child was stuffed into the box on May 28,1975.
The demand for ransom did not convert the offense into kidnapping with murder.
The defendant was well aware that the child would be suffocated to death in a few
moments after she left. The demand for ransom is only a part of the diabolic
scheme of the defendant to murder the child, to conceal his body and then demand
money before the discovery of the cadaver.
There is treachery because the victim is only a 3-year old child. 27 The
commission of the offense was attended with the aggravating circumstances of lack
of respect due to the age of the victim, cruelty and abuse of confidence.
The circumstance of lack of respect due to age applies in cases where the victim is
of tender age as well as of old age. This circumstance was applied in a case where
one of the victims in a murder case was a 12-year-old boy. 28 In the instant case,
the victim was only 3 years old. The gagging of the mouth of a three-year-old child
with stockings, dumping him with head downwards into a box, and covering the
box with sacks and other boxes, thereby causing slow suffocation, is cruelty. There
was also abuse of confidence because the victim was entrusted to the care of the
appellant. The appellant's main duty in the household is to take care of the minor
child. There existed a relation of trust and confidence between the appellant and
the one against whom the crime was committed and the appellant made use of such
relation to commit the crime.

When the killer of the child is the domestic servant of the family and was
sometimes the deceased child's amah the aggravating circumstance of grave abuse
of confidence is present. 29
On the other hand, the defendant invokes the following as mitigating
circumstances, namely; (1) she pleaded guilty; (2) she did not intend to commit so
grave a wrong, (3) she was overcome by fear that her mother will die unless she is
able to raise money for her mother's hospitalization, thus; she committed kidnaping
for ransom (4) the appellant should live so that her children who are of tender years
would not be deprived of a mother; and (5) we have a compassionate society. 30
The only mitigating circumstance that may be appreciated in favor of the defendant
is her voluntary plea of guilt. Her contention that she had no intention to kill the
child lacks merit. The defendant was well aware that her act of gagging the mouth
of the child with stockings, placing him with head down and feet up in a box and
covering the box with sacks and other boxes would result to the instant suffocation
of the child.
There being three aggravating circumstances, namely, lack of respect due to the
tender age of the victim, cruelty and abuse of confidence and only one mitigating
circumstance in favor of the defendant, she deserves the death penalty imposed
upon her by the lower court.
WHEREFORE, the defendant is guilty beyond reasonable doubt of the crime of
murder qualified with treachery and appreciating the aggravating circumstances
already indicated above, We hereby impose the penalty of death with costs de
oficio.
With this modification, the rest of the decision is hereby affirmed.
G.R. No. L-63243 February 27, 1987

vs.
ROSALIO LAGUARDIA, DANTE BARTULAY, BALTAZAR BERAN, and RAYMUNDO
BARTULAY, accused-appellant.
CRUZ, J.:
In this automatic review of the death sentence imposed upon the lone accused-appellant, we are
asked to determine if, while concededly guilty of robbery, he should also be held for the killing of
the victim notwithstanding that this was actually done by another person. The Solicitor General
says the judgment should be affirmed because of the proven conspiracy between the accusedappellant and the actual killer. The defense, on the other hand, impliedly admits the conspiracy
only with respect to the robbery but not as regards the murder which it claims was not part of the
original plan.
The facts, as derived by the lower court from the evidence adduced at the trial, are briefly
narrated as follows:
On September 6, 1979, at about 10:30 o'clock in the evening, Dante Bartulay and Baltazar
Beran, the herein accused-appellant, signaled to a stop a truck owned by Fortune Tobacco
Corporation then being driven by Miguel Chua on the zigzag road in Kilometer 36 inside the
Iwahig Penal Colony at Puerto Princess in Palawan City. Beran approached one side of the truck
and pretended to borrow a screwdriver and while Chua looked for the tool Bartulay shouted from
the other side of the truck, "This is a hold-up!" With guns drawn, the two men ordered Chua and
his three companions, Benigno Caca, Frank Morante, and Eduardo Aniar, to alight. Bartulay
forced Chua to lie face down on the ground about 3 meters away from his companions. Bartulay
was pointing a gun at Chua's head. On orders of Bartulay, Beran got the wallets and watches of
the four. Bartulay asked about the money they were carrying and Chua pointed to its location.
Beran got it and gave it to Bartulay. The money amounted to about P100,000.00. Then, again on
orders of Bartulay, Beran herded the three companions inside the panel where they were locked.
It was while they were still inside the panel that Beran and the others heard two gunshots. When
Beran got off the truck, he saw Chua still lying on the ground but now bleeding in the head.
Thereafter, Beran drove the truck from the scene of the crime while Bartulay followed in a
motorcycle. Somehow, Caca and Morante managed to escape by jumping from the truck through
a secret exit of the panel. They subsequently reported the occurrence to the law-enforcement
authorities who, returning to the scene of the crane the following day, found Chua already
dead. 1 Beran was arrested on September 8, 1979, with the amount of P4,500.00 in his possession
and upon questioning pointed to the place where he had hidden the pistol he had used during the
hold-up.2 Further investigation disclosed that the motorcycle and guns by Bartulay and Beran were
owned by Rosalio Laguardia, who was Identified by Beran as the mastermind of the crime. 3 The
money stolen was supposed to have been divided in the house of Raymundo Bartulay Dante's
brother. 4
Dante Bartulay could not be tried at the time because he was at large. Baltazar Beran was found
guilty of robbery with homicide and sentenced to death. Rosalio Laguardia was convicted
(presumably as a principal by inducement) and sentenced to life imprisonment. Raymundo
Bartulay was acquitted for insufficient evidence. 5
This case involves Baltazar Beren only as Laguardia later withdraw his appeal.
In finding Beran guilty and sentencing him to death, the trial court made the following conclusion:
... It is undisputed that the crime committed by the accused was robbery with
homicide, and the killing of the victim was done with the use of a gun. The
heinous act was preceded by taking of the wallets, the watches and the money
from the victim of the robbery. Whenever a homicide has been committed as a
consequence, or on the occasion, of a robbery, all those who took part as
principals in the robbery will also be held guilty as principals of the special

complex crime of robbery with homicide (Pp. v. Darwin Veloso y Militante, alias
Carlito Villareal, accused-appellant, G.R. No. 32900, Feb. 25, 1982). In the case
at bar, evidence is strong and clear that Baltazar Beran did not endeavor to
prevent the homicide of the killing (sic) of Mike Chua by Dante Bartulay ... 6
The accused-appellant now faults the trial court for holding inter alia that Beran should be held
guilty of the homicide committed on the occasion of the robbery notwithstanding that he was not
the one who actually killed Chua; that he should have tried to prevent the killing of Chua but did
not; and that the aggravating circumstances of treachery, evident premeditation, nighttime and
use of a motor vehicle should not have been appreciated against him.
The accused-appellant suggests that the case 7 cited by the lower court in convicting him is not
applicable because the crime involved therein was robbery with homicide committed by a band
whereas the robbery in the instant case was perpetrated only by two persons. The trial judge did err in
this respect. Nevertheless, as the Solicitor General correctly points out, the offense, while not covered
by Article 296 of the Revised Penal Code, still comes under Article 294(l) which may also impose the
death penalty "when by reason or on occasion of the robbery, the crime of homicide shall have been
committed" even if cuadrilla is not present.
Under this provision, it is enough to show conspiracy among the participants in the crime of
robbery to render each and every one of them liable for any homicide that may be committed by
reason or on the occasion of such robbery. And in the instant case, evidence of such conspiracy
is not lacking. Indeed, it is not disputed that Bartulay and Beran together went to the scene of the
crime and lay in wait for Chua's truck; that they together pretended to borrow a screwdriver from
the victim; that while Bartulay pointed a gun at Chua and his companions, Beran divested them
of their cash and watches; that Beran got the bag containing P100,000.00 on orders of Bartulay;
that also on the latter's orders, Beran locked up Chua's three companions in the panel; that
Beran drove the stolen truck away from the scene of the crime while Bartulay followed in the
motorcycle; and that Beran later got P4,500.00 as his share of the stolen money.
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it, whether they act through the physical volition of
one or all proceeding severally or collectively.8 It is also a settled rule that conspiracies need not be
established by direct evidence of acts charged but may and generally must be proved by a number of
indefinite acts, conditions, and circumstances which vary according to the purpose accomplished. The
very existence of a conspiracy is generally a matter of inference deduced from certain acts of the
persons accused, done in pursuance of an apparent criminal or unlawful purpose in common between
them. The existence of the agreement, or joint assent of the minds, need not be proved directly. 9
Confronted with the established fact of conspiracy to commit the robbery, the accused-appellant
cannot plead that he should not be held responsible for the murder on the ground that he did not
conspire to commit it or that he had no opportunity to prevent its commission.
"The rule is that where the conspiracy to commit robbery was conclusively shown by the
concurrent and coordinate acts of the accused, and homicide was committed as a consequence
or on the occasion of the robbery, all the accused are guilty of robo con homicidio whether or not
they actually participated in the killing." 10
That rule was applied in People v. Puno, 11 where the accused and confederate Tenarife, in
pursuance of a preconceived plan, boarded a jeep and help up its passengers, with Tenarife killing
one of them after divesting him of his wallet and his watch. Puno himself robbed another passenger
but did not participate in the shooting of the deceased victim. Nonetheless he was held guilty of
robbery with homicide as the killing was committed by Tenarife in connection with the robbery which
Puno and Tenarife had conspired to commit.

Generally, when robo con homicidio has been proven, all those who had taken
part in the robbery are guilty of the complex crime unless it appears that they
endeavored to prevent the homicide (U.S. v. Macalalad, 9 Phil. 1; Decisions of
Supreme Court of Spain dated Feb. 23 and April 30, 1972 and June 19, 1980; 3
Viada, Codigo Penal 347, 354, 358). 12
It may be observed that, although Puno did not actually take part in the killing of
Oyong by Tenarife, his presence in the jeepney was a crucial factor that emboldened
his confederate in perpetrating that homicidal act with impunity. 13
In People v. Veloso, 14 this Court held:

... Well entrenched is the rule that whenever a homicide has been committed as a
consequence, or on the occasion, of a robbery, all those who took part as
principals in the robbery will also be held guilty as principals of the special
complex crime of robbery with homicide, although they did not actually take part
in the homicide, unless it clearly appears that they endeavored to prevent the
homicide.
That decision cited the earlier case of People v. Mangulabnan, 15 where it was categorically
declared:
... in order to determine the existence of the crime of robbery with homicide it is
enough that a homicide would result by reason or on the occasion of the robbery
(Decision of Supreme Court of Spain of Nov. 26, 1892, and Jan. 7, 1878, quoted
in 2 Hidalgo's Penal Code, p. 267, and 259-260, respectively). This High Tribunal
speaking of the accessory character of the circumstances leading to the
homicide, has also held that it is immaterial that the death would supervene by
mere accident(Decision of Sept. 9, 1886, Oct. 22, 1907, April 30, 1910 and July
14, 1917), provided that the homicide be produced by reason or on the occasion
of robbery, inasmuch as it is only the resultobtained, without reference or
distinction as to the circumstances, causes, modes or persons intervening in the
commission of the crime, that has to be taken into consideration (Decision of Jan.
12, 1889 see Cuello Calon's Codigo, Penal pp. 501-502; Emphasis supplied).
It is futile therefore for the accused-appellant to argue that he was inside the panel with the
companions of Chua when the latter was killed by Bartulay and could not have stopped the
shooting. The undisputed fact is that the killing was committed on the occasion of the robbery
which Beran and Bartulay plotted and were carrying out together. In the absence of clear
evidence that he endeavored to prevent it, Beran is as guilty of the homicide as Bartulay
although it was Bartulay who pulled the trigger.
Concerning the aggravating circumstances which the accused-appellant insists should not have
been taken against him, the Court notes that no specific finding regarding such circumstances
was made by the trial judge, who simply meted out the penalties without explanation. The trial
judge, notably, did not say why, after finding both Beran and Laguardia guilty, the former should
be sentenced to death and the latter only to life imprisonment. If any error has been committed
with respect to Laguardia's penalty and the circumstances so indicate it is too late to
correct it now as the same has long since become final. By withdrawing his appeal, Laguardia
may have benefited from the trial judge's carelessness.
The trial court also does not clearly impute to Beran any ag gravating circumstance and merely
hints at nighttime and use of motor vehicle almost in passing. This is another censurable flaw in
the decision. It is no wonder that the case itself is perplexed over the accused-appellant's

assignment of error that the trial court had taken the said several aggravating circumstances
against him.
In any event, it is clear that, as alleged in the amended information, the crime committed by
Beran was aggravated by despoblado and justified the imposition on him of the death penalty as
prescribed by Article 294 of the Revised Penal Code. The evidence shows that the accused lay
in wait for the truck being driven by Chua at an isolated portion of Highway 36, choosing that
particular spot where they could commit the crime they were planning without disturbance or
discovery and with easy opportunity for escape. 16 The use of motor vehicles is also appreciated
because the conspirators drove away from the scene of the crime to facilitate their escape and also to
prevent the other passengers of the truck, whom they took with them, from reporting the offense to the
authorities. 17
Nighttime is rejected, however, because it was not especially sought, as Chua's trip schedule
and not the discretion of the culprits determined the time of its commission. Evident
premeditation is, of course, inherent in the crime of robbery and was not proved in the
commission of the killing. As for treachery, there is no evidence of its employment as none of the
witnesses actually saw the shooting of Chua, being all inside the panel when they heard the fatal
shots.
Miguel Chua was only 32 years old at the time he was killed and left a wife and three children
aged, respectively, 11, 10 and 8, the youngest a daughter. To provide for his family, he was
willing to work even at night, not unaware perhaps, given the condition of the times, of the
dangers that lurked in the desolate routes he traveled, considering especially the sizeable
amounts of money he often carried. If he was nonetheless undeterred, it was probably because,
like the promising young man that he was, he had a dream for the future. Tragically, that dream
died with him on the lonely stretch of road where greed lay in ambush with a gun.
The indemnity for the death of Chua is increased to P30,000.00. Funeral expenses amounted to
P16,500.00. 18As the victim was earning at the time of his death a monthly compensation of
P2,500.00, 19 consisting of salary and commission, or P30,000.00 annually, and could have lived
about 24 more years, 20 his total earnings for the period would have amounted to P720,000.00. The
heirs are also entitled to this amount plus P10,000.00 moral damages and P10,000.00 exemplary
damages. 21
WHEREFORE, the appealed decision is AFFIRMED as MODIFIED but in view of the provisions
of the new Constitution, the death penalty is reduced to reclusion perpetua. The accusedappellant shall also pay the civil indemnity specified above, and costs.
SO ORDERED.
G.R. No. 178541
March 27, 2008
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ANGELO ZETA, Accused-Appellant.
DECISION
CHICO-NAZARIO, J.:

For review is the Decision dated 30 June 2006 of the Court of Appeals in CA-G.R. CR-H.C. No.
02054,1 affirmingin toto the Decision2 dated 29 November 2002 of the Quezon City Regional Trial
Court (RTC), Branch 88, in Criminal Case No. Q-95-63787, finding accused-appellant Angelo
Zeta and his wife, Petronilla Zeta (Petronilla), guilty of murder.
The facts are as follows:
On 6 November 1995, an Information3 was filed before the RTC charging appellant and Petronilla
of Murder, thus:
That on or about the 28th day of October 1995, in Quezon City, Philippines, the said accused,
conspiring together, confederating with and mutually helping each other, with intent to kill, did
then and there, willfully, unlawfully and feloniously with evident premeditation, treachery, assault,
attack and employ personal violence upon the person of RAMON GARCIA y LOPEZ by then and
there shooting the latter with the use of a .45 cal. pistol hitting him on the different parts of his
body, thereby causing the instant and immediate cause of his death, to the damage and
prejudice of the heirs of said RAMON GARCIA Y LOPEZ.
When arraigned on 20 December 1995, appellant and Petronilla, assisted by their respective
counsels de parte, pleaded "Not Guilty" to the charge of murder.4 Trial on the merits thereafter
ensued.
The prosecution presented as witnesses Aleine Mercado (Aleine), Dr. Maria Cristina Freyra (Dr.
Freyra), Police Inspector Solomon Segundo (Inspector Segundo), Rey Jude Naverra (Rey),
Edwin Ronk (Edwin), Francisco Garcia (Francisco), SPO1 Carlos Villarin (SPO1 Villarin), and
SPO2 Wakab Magundacan (SPO2 Magundacan). Their testimonies, taken together, bear the
following:
On 28 October 1995, at around 12:00 midnight, Edwin, Rey and a certain Melvin Castillo (Melvin)
had a drinking spree outside the house of Rey located at No. 30-B Tacio Street, La Loma,
Quezon City. At about 2:00 in the morning of the same date, a car stopped in front of the three.
Appellant was driving the car while Petronilla was seated beside him. Petronilla opened the cars
window and asked Edwin if he knows Ramon and the latters address at No. 25-C General Tinio
Street, La Loma, Quezon City. Edwin replied that he did not know Ramon or his address.
Thereafter, appellant and Petronilla left on board the car and proceeded to General Tinio Street,
La Loma, Quezon City.5
At about 2:15 in the morning of the same date, the car boarded by appellant and Petronilla
stopped in front of Ramons house at No. 25-C General Tinio Street, La Loma, Quezon City. After
parking nearby, appellant and Petronilla alighted from the car and proceeded to Ramons house.
Petronilla repeatedly called Ramon. Aleine (niece of Cristina Mercado, Ramons common-law
wife) was awakened by the repeated calls and opened the door. Petronilla requested Aleine to
call Ramon. Aleine told Petronilla that she would wake up Ramon who was then sleeping with
Cristina at the second floor of the house. Aleine invited appellant and Petronilla inside the house
but the two replied that they would just wait for Ramon outside. Aleine proceeded to the second
floor of the house and knocked at the door of Ramons room. Ramon woke up. Subsequently,
Aleine went downstairs and proceeded to the dining table. While Ramon was walking down the
stairs, appellant suddenly entered the house and shot Ramon several times on different parts of
the body with a caliber .45 Llama pistol. Upon seeing appellant shooting Ramon, Aleine hid

inside the restroom. When the gunshots ceased, Aleine went out of the restroom and saw
Ramon sprawled and bloodied on the ground floor.6
Edwin, Rey and Melvin were still drinking when they heard the gunshots. They rushed to the
direction of Ramons house. When they were nearing Ramons house, Petronilla suddenly
stepped out of the main door of Ramons house followed by appellant. Melvin
uttered, "Mamamatay tao." Petronilla merely looked at them and entered the car. Appellant also
proceeded inside the car and thereafter the car sped away.7
Subsequently, Aleine went out of the house and called for help. Edwin, Rey and Melvin
approached her. They carried Ramon and placed him inside a vehicle owned by a neighbor.
While they were on their way to the Chinese General Hospital, Ramon told Aleine that the one
who shot him was "asawa ni Nellie na kapitbahay namin sa Las Pias." Ramon died due to
gunshot wounds while being operated on at the Chinese General Hospital. Thereafter, the police
arrived at the crime scene and recovered several empty bullet shells and slugs. 8
At about 10:55 the following morning, SPO2 Magundacan received a report that a carnapped
vehicle was parked along Lakandula Street, P. Tuazon Blvd., Quezon City. SPO2 Magundacan
proceeded thereat and saw appellant about to board a car armed with a gun visibly tucked in his
waist. SPO2 Magundacan approached appellant and asked him for a license and/or registration
papers of the gun but appellant did not show any. SP02 Magundacan also inquired from
Petronilla, who was inside the car also armed with a gun tucked in her waist, if she had a license
but Petronilla likewise failed to show any. Thus, SPO2 Magundacan brought appellant and
Petronilla to Police Precinct 8, Project 4, Quezon City, for investigation. Subsequently, appellant
and Petronilla, upon the request of the La Loma police, were turned over to the police station for
investigation as regards the killing of Ramon. Appellant and Petronilla were thereafter charged
with murder.9
The prosecution also adduced documentary and object evidence to buttress the testimonies of
its witnesses, to wit: (1) death certificate of Ramon;10 (2) sworn statement of Aleine;11 (3) request
for autopsy examination of Ramons body;12 (4) medico-legal report issued and signed by Dr.
Freyra stating that Ramon died due to gunshot wounds;13 (5) anatomical sketch of a human body
signed by Dr. Freyra indicating the location of the gunshot wounds on Ramons body; 14 (6)
physical science report stating that a paraffin test was conducted on both hands of Ramon and
they were found negative for gunpowder nitrates;15 (7) handwritten sketch made by Edwin
depicting the streets of Tacio and General Tinio;16 (8) request for ballistic examination of the
object evidence recovered from the crime scene; 17 (9) ballistic report issued and signed by
Inspector Segundo stating that the bullet extracted from Ramons body and other bullets
recovered from the crime scene were similar to the bullets of the caliber .45 Llama pistol seized
from appellant;18 (10) certification from the Personnel Division of the Philippine Long Distance
Telephone Company (PLDT) affirming that Ramon was its regular employee from 14 February
1981 up to 27 October 1995 and that he was receiving a monthly salary of P13,687.00 plus other
benefits;19 (11) summary of expenses and receipts for the wake of Ramon;20 (12) joint affidavit of
SPO2 Magundacan and a certain PO2 Ronald Zamora; 21 (13) photographs showing the spot
where appellant and Petronilla stood while waiting for Ramon, the stairs where Ramon walked
down shortly before he was shot several times by appellant, the area inside Ramons house
where appellant positioned himself while shooting at Ramon, and the location where Ramon fell
down after he was shot several times by appellant;22 (14) nine empty shells and seven deformed
slugs fired from a caliber .45 pistol which were recovered by SPO1 Villarin from the crime

scene;23 (15) a deformed slug fired from a caliber .45 pistol which was extracted from Ramons
body; (16) test bullets fired from the caliber .45 Llama pistol seized from appellant; 24 (17) the
caliber .45 Llama pistol with Serial Number C-27854 seized from appellant; 25 and (18) a calling
card recovered from Ramon with the print label "Cristine Rent A Car," "Angelo D. Zeta" and with
telephone numbers and addresses.26
For its part, the defense presented the testimonies of appellant, Petronilla, and Annabelle
Vergara (Annabelle) to refute the foregoing allegations. Their version of the incident is as follows:
On 27 October 1995, at about 10:00 in the evening, appellant, Petronilla and Annabelle
(housemaid of the couple) were in the couples house at Cainta, Rizal. 27 Later, appellant took
Petronillas caliber .38 pistol and went to his brothers (Jose Zeta, Jr.) house in Marikina arriving
therein at around 12:00 midnight. Jose was out of the house so appellant waited for him. At
about 2:30 in the morning of 28 October 1995, Jose arrived. Thereafter, appellant demanded
from Jose the return of his three firearms, one of which is a caliber .45 pistol. Jose, however,
handed only the caliber .45 pistol to appellant. Appellant berated Jose for refusing to return the
two other firearms. Irked, Jose drew a gun. Appellant also drew the caliber .45 pistol and shot
Jose four times. Jose fell down on the ground. Afterwards, appellant left the house, took Joses
car which was parked near the house, and proceeded to Police Precinct 8, Project 4, Quezon
City, where he waited for a certain Tony Tolentino whom he claims to be a policeman assigned at
the Southern Police District. At about 9:00 in the morning of 28 October 1995, the policeman on
duty at Precinct 8 informed appellant that the latters car parked inside the precinct was a
carnapped vehicle. The policemen searched the car and found several guns including the caliber
.45 and the caliber .38. Appellant was thereupon detained and charged with illegal possession of
firearms and carnapping.28
At about 10:00 in the morning of 28 October 1995, Petronilla received a telephone call informing
her that appellant was at Police Precinct 8, Project 4, Quezon City. She immediately proceeded
thereat and presented documents relative to her ownership and license of the caliber .38 seized
from appellant. Thereafter, she went home at about 11:00 in the evening.29
On 2 November 1995, Petronilla visited appellant at Precinct 8. During the visit, Aleine arrived at
Precinct 8 and pointed to appellant and Petronilla. Subsequently, appellant and Petronilla were
informed by the police that they were suspects in the killing of Ramon. Thereafter, they were
charged with murder.30
After trial, the RTC rendered a Decision on 29 November 2002 convicting appellant and
Petronilla of murder. It held that appellant and Petronilla conspired in killing Ramon. It also ruled
that Ramons killing was attended by the aggravating circumstances of evident premeditation and
nocturnity. In conclusion, it imposed the death penalty on appellant while Petronilla was merely
sentenced to reclusion perpetua "owing to her being a mother and her lesser degree of
participation in the killing of Ramon." The fallo of the decision reads:
Accordingly, based on the evidence presented by the prosecution and the defense and finding
both accused guilty beyond reasonable doubt of the crime of MURDER attended by the
aggravating circumstances of evident premeditation and nocturnity without being offset by any
mitigating circumstances, the accused Angelo Zeta is hereby sentenced to death by lethal
injection. The wife and co-accused Petronilla Zeta, although a co-conspirator in the commission

of the offense charged, is hereby sentenced to RECLUSION PERPETUA owing to her being a
mother and her lesser degree of participation in the act of murder.
The accused Angelo Zeta and Petronilla Zeta are also sentenced to indemnify in SOLIDUM the
heirs of the victim in the amount of P50,000.00 for the death of Ramon Garcia; P146,000.00 for
the hospital and burial expenses; and P1,642,440.00 for the lost income of the deceased
reckoned at 10 years of productive life, plus costs.
The .45 caliber Llama pistol with Serial Number C-27854 is confiscated in favor of the
Government to be kept by the Philippine National Police as mandated by law.31
On 9 December 2002, the RTC issued an Order forwarding the records of the instant case to Us
for automatic review because of the death penalty imposed on appellant. 32
On 24 December 2002, Petronilla filed a Notice of Appeal with the RTC stating that she would
appeal her conviction to this Court.33
On 28 April 2004, Petronilla, through counsel, filed a Motion to Withdraw Appeal before
us34 stating that:
After a thorough review of the available stenographic notes obtained by the close relatives of the
accused-appellant from the Regional Trial Court, the undersigned counsel found out that there
are no testimonial and/or documentary evidence presented before the lower Trial Court that
could sufficiently serve as justifiable basis to warrant the reversal of the appealed decision
rendered insofar as PETRONILLA ZETA is concerned.
Moreover, the undersigned counsel sustained serious physical injuries that render difficult to
further handle the appeal that will require lengthy preparation of appellants brief and other legal
pleadings as may be required under the Rules of Court.
Consequently, after discussion with accused-appellant PETRONILLA ZETA, the undersigned
counsel informed her that he is now constrained to withdraw his appearance in the aboveentitled appealed case.
Upon being informed of the health predicament of the undersigned counsel and after being
enlightened about the weakness of the appeal, accused-appellant PETRONILLA ZETA willfully
and voluntarily decided to WITHDRAW the appeal and do hereby signify to the Honorable Court
that she is no longer interested in the further prosecution of her appeal. She, likewise, has no
objection to the withdrawal of the appearance of Atty. Alfredo E. Anasco, as her counsel in the
above-entitled case.
WHEREFORE, it is respectfully prayed that the above-entitled appeal be ordered withdrawn and
the MOTION TO WITHDRAW APPEAL be GRANTED, and the withdrawal of appearance of
counsel be given due course.
On 28 September 2004, we issued a Resolution granting Petronillas motion to withdraw
appeal.35

On 22 November 2005, we issued a Resolution remanding the instant case to the Court of
Appeals for proper disposition pursuant to our ruling in People v. Mateo.36 On 30 June 2006, the
Court of Appeals promulgated its Decision affirming in toto the Decision of the RTC. Thus:
Thus, after finding that the trial courts conclusions are supported by the evidence presented and
in full accord with existing law and jurisprudence, We find no reason to set it aside.
WHEREFORE, based on the foregoing premises, the appeal is hereby DISMISSED. The
November 29, 2002 Decision of the Regional Trial Court of Quezon City, Branch 88 in Criminal
Case No. Q-95-63787 is AFFIRMED.37
Appellant elevated the present case before us on the following grounds:
I.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT
DESPITE THE FACT THAT THE PROSECUTION WITNESSES DID NOT POSITIVELY
IDENTIFY HIM;
II.
THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF DENIAL AND
ALIBI INTERPOSED BY THE ACCUSED-APPELLANT;
III.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE
THE FACT THAT HIS GUILT WAS UNDER A SHADOW OF DOUBT.38
Apropos the first issue, appellant claims that although Edwin and Rey positively identified
Petronilla as the one who asked them about Ramon and his address shortly before the incident
occurred, the two, nevertheless, failed to identify appellant as Petronillas companion during the
said questioning. He also argues that Aleines testimony identifying him as the one who shot
Ramon during the incident is not morally certain because Aleine narrated that she saw only the
side portion of his face and the color of the shirt he wore during the incident. 39
It appears that Edwin and Rey did not actually see appellant shoot Ramon during the incident.
Nonetheless, Aleine saw appellant shoot Ramon on that fateful night. Her positive identification
of appellant and direct account of the shooting incident is clear, thus:
ATTY. A. OLIVETTI (DIRECT EXAMINATION)
Q. Aleine Mercado, are you the same Aleine Mercado who is listed as one of the
witnesses in this case?
WITNESS
A. Yes, sir.

Q. Do you know the accused in this case?
A. Yes, sir.
Q. If they are inside the courtroom, will you identify them?
A. Yes, sir.
Q. Will you please look around and point before the Honorable Court the person of the
accused in this case?
A. Yes, sir. That man wearing yellow T-shirt and that lady who is also wearing yellow shirt.
(witness pointing to a man who when asked of his name identified himself as Angelo Zeta
and to a lady beside Angelo Zeta who when asked of her name identified herself as
Petronilla Zeta.)
xxx
Q. On October 28, 1995, at about 2:15 in the morning, do you remember if there was an
unusual incident that happened?
A. Yes, sir.
Q. Will you please tell the Court briefly what that unusual incident was?
A. Tito Ramon Garcia was shot, Sir.
Q. And who is this Tito Ramon Garcia that you are talking about?
A. He is the live-in partner of my aunt Cristy.
Q. A while ago you mentioned that you have been living with your auntie and Tito Ramon
Garcia in Gen. Tinio, La Loma, Quezon City. Will you please describe before the
Honorable Court the residence or your house at that time where you were living with your
auntie and Tito Ramon Garcia?
A. It is a small house we were living in. It has a mezzanine and it measures 4 x 3 meters,
sir.
xxxx
Q. Do you know the person who shot your Tito Ramon Garcia?
A. Yes, sir.
Q. Will you please tell the Honorable Court the name of the person who shot Ramon
Garcia?
A. Angelo Zeta.

Q. Where in particular did Mr. Angelo Zeta shot Mr. Ramon Garcia?
A. Inside our house, sir.
Q. And how was he able to enter your house?
A. Our door then was opened, sir.
Q. Why was your door opened at that time?
A. I heard a woman calling for my Tito Ramon and so I opened the door, sir.
Q. What time was this Madam Witness?
A. 2:15.
Q. 2:15 in the afternoon?
A. 2:15 in the morning, your honor.
xxxx
ATTY. A. OLIVETTI
Q. And who was that woman that you saw was outside calling Mr. Ramon Garcia?
A. Petronilla Zeta, sir.
Q. When you opened the door and you saw this woman, what happened between you
and her?
A. She asked me if a certain Ramon Garcia was there.
Q. What was your reply?
A. I told her he was sleeping. He was upstairs.
Q. And what did the woman do after that if she did anything?
A. She told me to call for my Tito Ramon.
Q. What did you do after she asked you to call Mr. Ramon Garcia?
A. I told her to enter before I call my Tito Ramon but they answered that they will remain
outside.
Q. And so after they refused to enter the house, what did you do as they were asking you
to call Mr. Ramon Garcia?

A. I told them to wait and then I went upstairs.
Q. What did you do upstairs?
A. I knocked at the door to wake up my Tito Ramon.
xxxx
Q. And was your Tito Ramon able to wake up?
A. When I felt that they were awakened, I went downstairs.
Q. Where in particular downstairs did you go?
A. Near our dining table, sir.
Q. How long was it from the door? How far was it from the door?
A. Two-arms-length, sir, or "dalawang dipa," sir.
Q. And what happened as you stood by downstairs?
A. While Tito Ramon was going down, sir, Angelo Zeta suddenly entered our house and
immediately shot him several times.
Q. How far were you from Mr. Angelo Zeta when you saw him?
I withdraw that.
How far were you from Mr. Angelo Zeta when you saw him suddenly entered the house
and shot Mr. Ramon Garcia?
A. Less than one meter, sir.
x x x x.
Q. Where was Petronilla Zeta at that time that the shooting occurred?
A. She was outside the door, sir.
xxxx
Q. What did you do as you were standing and while Mr. Angelo Zeta was shooting Mr.
Ramon Garcia inside the house?
A. When I heard two shots, I run to the C.R. or comfort room.
Q. As you were in the C.R., what happened?

A. I heard successive shots, sir.
Q. How long did you stay in the C.R.?
A. Until the shots had stopped . . . Until the firing had stopped, sir.
Q. And you sensed that the firing had stopped, what did you do?
A. I slowly opened the door to take a look if Angelo Zeta and companion were still there.
Q. And what did you see?
A. They were no longer there, sir.
Q. And you saw that they have guns, what did you do?
A. I went out of the C.R. and I returned to the place where I was before where I was
previously standing.
Q. And what did you see when you reached that portion that you are talking about?
A. I saw Tito Ramon lying frustrate and blooded.
Q And what did you do when you see (sic) him on that particular condition?
A. I peeped at the door to find out if Angelo Zeta and companion were still there.
Q. And what did you see?
A. They were no longer there.
Q. And what did you do after that?
A. I knocked at the door of the owner of the house to ask for help. 40
It should be emphasized that the testimony of a single witness, if positive and credible, as in the
case of Aleine, is sufficient to support a conviction even in the charge of murder.41
Appellants argument that Aleines testimony identifying him as the one who shot Ramon is not
morally certain because she saw only the side portion of his face and the color of the shirt he
wore during the incident, deserves scant consideration. A person can still be properly identified
and recognized even by merely looking at the side portion of his face. To be sure, Aleine
recognized and identified appellant in the police line-up and during trial as the one who shot
Ramon. Experience dictates that precisely because of the unusual acts of violence committed
right before their eyes, witnesses can remember with a high degree of reliability the identity of
criminals at any given time.42 A startling or frightful experience creates an indelible impression in
the mind that can be recalled vividly.43 It bears stressing that Aleine was less than one meter
away from appellant when the latter shot Ramon. The crime scene was also well-lighted during
the incident because there was a fluorescent bulb inside the house. 44

The testimonies of Aleine and of the other prosecution witnesses are in harmony with the
documentary and object evidence submitted by the prosecution. The RTC and the Court of
Appeals found their testimonies to be credible and trustworthy. The rule is that the findings of the
trial court, its calibration of the testimonies of the witnesses and its assessment of the probative
weight thereof, as well as its conclusions anchored on said findings are accorded respect if not
conclusive effect. This is more true if such findings were affirmed by the appellate court. When
the trial courts findings have been affirmed by the appellate court, said findings are generally
binding upon this Court.45
Anent the second and third issues, appellant contends that his conviction is unwarranted based
on the following reasons: (1) the prosecution failed to establish any possible motive for the
appellant to kill Ramon; (2) there is an inconsistency in the testimony of the prosecution
witnesses regarding the type and color of the car boarded by appellant and Petronilla before and
after the incident. Edwin testified that appellant and Petronilla left the scene on board a goldcolored Mitsubishi Lancer; while SPO2 Magundacan narrated that he apprehended appellant
while the latter was about to board a blue Toyota Corona Macho; (3) Jose could have been the
one who fatally shot Ramon and appellant could have been mistakenly identified as Jose
because they have the same physical appearance and facial features; (4) if appellant was indeed
the one who shot Ramon, he could have immediately confessed such crime to the police just like
what he did after killing Jose; and (5) there is no proof that appellant is the husband of a certain
"Mely." Ramons dying declaration to Aleine was that it was the husband of "Mely," his former
neighbor in Las Pinas, who shot him. Further, Petronillas nickname could either be "Nellie" or
"Nelia" and not "Mely" as referred to by Ramon.46
Lack of motive does not preclude conviction when the crime and the participation of the accused
in the crime are definitely shown, particularly when we consider that it is a matter of judicial
knowledge that persons have killed or committed serious offenses for no reason at all. Motive
gains importance only when the identity of the culprit is doubtful. 47 Where a reliable eyewitness
has fully and satisfactorily identified the accused as the perpetrator of the felony, motive
becomes immaterial to the successful prosecution of a criminal case.48 It is obvious from the
records that Aleine positively and categorically identified appellant as the person who shot
Ramon during the incident. Her testimony was corroborated on relevant points by Edwin and
Rey.
There is no inconsistency in the testimonies of the prosecution witnesses regarding the car
boarded by appellant and Petronilla in leaving the crime scene and, subsequently, at the time
they were apprehended. Edwin testified that appellant and Petronilla left the scene after the
incident which was between 2:15 and 2:30 in the morning on board a gold-colored Mitsubishi
Lancer.49 SPO2 Magundacan told the court that he apprehended appellant at around 10:55 in
the morning of the same day while the latter was about to board a blue Toyota Corona
Macho.50 In his affidavit attached to the records, Jan Ryan Zeta, son of Jose, narrated that Jose
was shot by appellant at about 4:00 in the morning of the same date.51 Appellant admitted that
after shooting Jose on the early morning of 28 October 1995, he took the latters Toyota Corona
Macho and left.52 Thus, it is probable that after leaving the crime scene at La Loma on board a
gold Mitsubishi Lancer at about 2:15 or 2:30 in the morning, appellant and Petronilla then
proceeded to Marikina and took Joses blue Toyota Corona Macho. This explains why the car of
appellant and Petronilla used in leaving the crime scene was different from that which they used
at the time of their apprehension.

Appellants theory of alibi that it was physically impossible for him to be at the crime scene in La
Loma when the incident occurred because he was in Marikina, and that Jose could have been
the one who fatally shot Ramon is flimsy and cannot prevail over the positive and credible
testimony of Aleine. Appellant was mistakenly identified as Jose because they have the same
physical appearance and facial feature. In addition, the empty bullet shells and slugs recovered
from the crime scene were found to have the same characteristics as those of the bullets of
appellants caliber .45 Llama pistol. Further, there is no testimonial or documentary proof
showing that it was Jose who shot Ramon. Appellant himself testified that he met Jose in the
latters house in Marikina at about 2:30 in the morning of 28 October 1995. On the other hand,
the shooting of Ramon at La Loma, Quezon City occurred at about 2:15 in the morning of the
same date. Hence, it was impossible for Jose to be at La Loma, Quezon City and to have shot
Ramon at such time and place.
It is insignificant whether Petronilla was referred to by Ramon in his dying declaration as "Mely"
or "Nellie." As correctly observed by the Court of Appeals, Ramon sustained twelve gunshot
wounds and was catching his breath when he uttered the name or nickname of Petronilla as the
wife of appellant. Thus, understandably, he could not have spoken clearly in such a difficult
situation. Moreover, Ramon referred to "Nellie" or "Mely" as his former neighbor in Las Pias.
Likewise, appellant and Petronilla admitted that Ramon was their former neighbor in Las Pias. 53
We now go to the propriety of the penalty imposed and the damages awarded by the RTC which
the Court of Appeals affirmed.
The RTC held that the killing of Ramon qualifies as murder because of the presence of the
aggravating circumstances of evident premeditation and nighttime or nocturnity. It is a rule of
evidence that aggravating circumstances must be proven as clearly as the crime itself. 54
Evident premeditation qualifies the killing of a person to murder if the following elements are
present: (1) the time when the offender determined to commit the crime; (2) an act manifestly
indicating that the culprit clung to his resolve; and (3) a sufficient interval of time between the
determination or conception and the execution of the crime to allow him to reflect upon the
consequence of his act and to allow his conscience to overcome the resolution of his will if he
desired to hearken to its warning.55
The first two elements of evident premeditation are present in the case at bar.
The time manifesting Petronilla and appellants determination to kill Ramon was when they, at
about 2:00 in the morning of 28 October 1995, repeatedly asked Edwin about Ramon and the
latters address, and when they subsequently proceeded to the house of Ramon.
The fact that appellant and Petronilla waited for Ramon, and appellants subsequent act of
shooting him at around 2:15-2:30 in the morning of 28 October 1995 indicate that they had clung
to their determination to kill Ramon.
The third element of evident premeditation, however, is lacking in the instant case. The span of
thirty minutes or half an hour from the time appellant and Petronilla showed their determination to
kill Ramon (2:00 in the morning of 28 October 1995) up to the time appellant shot to death
Ramon (2:15-2:30 in the morning of 28 October 1995) could not have afforded them full
opportunity for meditation and reflection on the consequences of the crime they committed. 56 We

have held that the lapse of thirty minutes between the determination to commit a crime and the
execution thereof is insufficient for a full meditation on the consequences of the act. 57
The essence of premeditation is that the execution of the criminal act must be preceded by cool
thought and reflection on the resolution to carry out the criminal intent during a space of time
sufficient to arrive at a calm judgment. To justify the inference of deliberate premeditation, there
must be a period sufficient in a judicial sense to afford full opportunity for meditation and
reflection and to allow the conscience of the actor to overcome the resolution of his will if he
desires to hearken to its warning. Where no sufficient lapse of time is appreciable from the
determination to commit the crime until its execution, evident premeditation cannot be
appreciated.58
Nonetheless, we find that treachery attended the killing of Ramon.
There is treachery when the offender commits any of the crimes against a person, employing
means, methods or forms in the execution thereof which tend directly and specially to ensure its
execution, without risk to himself arising from any defensive or retaliatory act which the victim
might make.59 The essence of treachery is a deliberate and sudden attack that renders the victim
unable and unprepared to defend himself by reason of the suddenness and severity of the
attack. Two essential elements are required in order that treachery can be appreciated: (1) the
employment of means, methods or manner of execution that would ensure the offenders safety
from any retaliatory act on the part of the offended party who has, thus, no opportunity for selfdefense or retaliation; and (2) a deliberate or conscious choice of means, methods or manner of
execution. Further, this aggravating circumstance must be alleged in the information and duly
proven.60
In the case at bar, treachery was alleged in the information and all its elements were duly
established by the prosecution.
It has been established that Ramon, still groggy after having been awakened by Aleine, was
walking down the stairs when appellant suddenly shot him. The suddenness and
unexpectedness of the appellants attack rendered Ramon defenseless and without means of
escape. Appellant admitted that he was a member of a gun club and was proficient in using his
caliber .45 Llama pistol.61 In fact, he was good at shooting a moving target during his
practice.62 He also stated that he owned five firearms.63 Evidently, appellant took advantage of his
experience and skill in practice shooting and in guns to exact the death of Ramon. There is no
doubt that appellants use of a caliber .45 Llama pistol, as well as his act of positioning himself in
a shooting stance and of shooting Ramon several times on the chest area and on other parts of
body, were obviously adopted by him to prevent Ramon from retaliating or escaping. Considering
that Ramon was unarmed, groggy from sleep, and was casually walking down narrow stairs
unmindful of the danger that lurked behind, there was absolutely no way for him to defend
himself or escape.
As regards the appreciation by the RTC of the aggravating circumstance of nocturnity, it should
be underscored that nocturnity or nighttime is, by and of itself, not an aggravating circumstance.
It becomes so only when (1) it was especially sought by the offender; or (2) it was taken
advantage of by him; or (3) it facilitated the commission of the crime by ensuring the offenders
immunity from capture.64

Although the crime in the instant case was committed between 2:15 and 2:30 in the morning, no
evidence was presented showing that nighttime was especially and purposely sought by
appellant to facilitate the commission of the crime, or that it was availed of for the purpose of
impunity. Moreover, the crime scene was well-lighted by a fluorescent bulb. We have held that
nocturnity is not aggravating where the place of the commission of the crime was wellilluminated.65
Even if we were to assume that nocturnity was present in the case at bar, this cannot still be
appreciated in view of the presence of treachery that attended the killing of Ramon. Nighttime
cannot be considered an aggravating circumstance separate from treachery, since nighttime is
absorbed in treachery.66
Accordingly, the death penalty imposed by the RTC on appellant should be modified. Article 248
of the Revised Penal Code states that murder is punishable by reclusion perpetua to death.
Article 63 of the same Code provides that if the penalty is composed of two indivisible penalties,
as in the instant case, and there are no aggravating or mitigating circumstances, the lesser
penalty shall be applied. Since there is no mitigating or aggravating circumstance in the instant
case, and treachery cannot be considered as an aggravating circumstance as it was already
considered as a qualifying circumstance, the lesser penalty of reclusion perpetua should be
imposed.67
The award of damages and its corresponding amount rendered by the RTC should also be
modified in line with current jurisprudence.
In addition to the civil indemnity of P50,000.00 for Ramons death, the award of moral damages
amounting toP50,000.00 is also proper since it is mandatory in murder cases, without need of
proof and allegation other than the death of the victim.68
The heirs of Ramon are also entitled to exemplary damages in the amount of P25,000.00, since
the qualifying circumstance of treachery was firmly established. 69
The amount of actual damages should be reduced from P146,000.00 to P115,473.00 per
computation of the official receipts attached to the records.70
1avvphi1
The heirs of Ramon should also be indemnified for loss of earning capacity pursuant to Article
2206 of the New Civil Code.71 Consistent with our previous decisions,72 the formula for the
indemnification of loss of earning capacity is:
Net Earning Capacity
= Life Expectancy x Gross Annual Income (GAI) - Living Expenses

= 2/3 (80 - age of deceased) x (GAI - 50% of GAI).
Ramons death certificate states that he was 37 years old at the time of his demise. 73 A
certification from Ramons employer, Philippine Long Distance Telephone Company, shows that
Ramon was earning an annual gross income of P164,244.00.74
Applying the above-stated formula, the indemnity for the loss of earning capacity of Ramon
is P2,354,163.99, computed as follows:

Net Earning Capacity
= 2/3 (43) x (P164,244.00 - P82,122.00)

= 28.66 x P82,122.00
= P2,354,163.99
WHEREFORE, after due deliberation, the Decision of the Court of Appeals dated 30 June 2006
in CA-G.R. CR-H.C. No. 02054 is hereby AFFIRMED with the following MODIFICATIONS: (1) the
penalty of death imposed on appellant is lowered to reclusion perpetua; (2) appellant is ordered
to pay the heirs of Ramon Garcia the amounts of P50,000.00 as moral damages and P25,000.00
as exemplary damages; (3) the award of actual damages is reduced to P115,473.00; and (4) the
indemnity for Ramons loss of earning capacity is increased toP2,354,163.99. The award of civil
indemnity in the amount of P50,000.00 is maintained.
Appellants caliber .45 Llama pistol with Serial Number C-27854 is hereby confiscated in favor of
the Government.
SO ORDERED.
G.R. No. 84163 October 19, 1989

LITO VINO, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS, respondents.
Frisco T. Lilagan for petitioner.
RESOLUTION
GANCAYCO, J.:
The issue posed in the motion for reconsideration filed by petitioner of the resolution of this Court
dated January 18, 1989 denying the herein petition is whether or not a finding of guilt as an
accessory to murder can stand in the light of the acquittal of the alleged principal in a separate
proceeding.
At about 7:00 o'clock in the evening of March 21, 1985, Roberto Tejada left their house at Burgos
Street, Poblacion, Balungao, Pangasinan to go to the house of Isidro Salazar to watch television.
At around 11:00 P.M., while Ernesto, the father of Roberto, was resting, he heard two gunshots.
Thereafter, he heard Roberto cry out in a loud voice saying that he had been shot. He saw
Roberto ten (10) meters away so he switched on the lights of their house. Aside from Ernesto
and his wife, his children Ermalyn and Julius were also in the house. They went down to meet
Roberto who was crying and they called for help from the neighbors. The neighbor responded by
turning on their lights and the street lights and coming down from their houses. After meeting
Roberto, Ernesto and Julius saw Lito Vino and Jessie Salazar riding a bicycle coming from the
south. Vino was the one driving the bicycle while Salazar was carrying an armalite. Upon
reaching Ernesto's house, they stopped to watch Roberto. Salazar pointed his armalite at
Ernesto and his companions. Thereafter, the two left.

Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col. Bernardo Cacananta
took his ante-mortem statement. In the said statement which the victim signed with his own
blood, Jessie Salazar was Identified as his assailant.
The autopsy report of his body shows the followingGunshot wound
POE Sub Scapular-5-6-ICA. Pal
1 & 2 cm. diameter left
Slug found sub cutaneously,
2nd ICS Mid Clavicular line left.
CAUSE OF DEATH
Tension Hemathorax 1
Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint filed by PC Sgt.
Ernesto N. Ordono in the Municipal Trial Court of Balungao, Pangasinan. However, on March 22,
1985, the municipal court indorsed the case of Salazar to the Judge Advocate General's Office
(JAGO) inasmuch as he was a member of the military, while the case against Vino was given
due course by the issuance of a warrant for his arrest. Ultimately, the case was indorsed to the
fiscal's office who then filed an information charging Vino of the crime of murder in the Regional
Trial Court of Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea of not guilty. Trial then commenced with the
presentation of evidence for the prosecution. Instead of presenting evidence in his own behalf,
the accused filed a motion to dismiss for insufficiency of evidence to which the prosecutor filed
an answer. On January 21, 1986, 2 a decision was rendered by the trial court finding Vino guilty as
an accessory to the crime of murder and imposing on him the indeterminate penalty of imprisonment
of 4 Years and 2 months of prision correccional as minimum to 8 years of prision mayor as maximum.
He was also ordered to indemnify the heirs of the victim in the sum of P10,000.00 being a mere
accessory to the crime and to pay the costs.
The motion for reconsideration filed by the accused having been denied, he interposed an
appeal to the Court of Appeals. In due course, a Decision was rendered affirming the judgment of
the lower court. 3
Hence, the herein petition for review wherein the following grounds are invoked:
1. THAT AN ACCUSED CAN NOT BE CONVICTED AS AN ACCESSORY OF
THE CRIME OF MURDER FOR HAVING AIDED IN THE ESCAPE OF THE
PRINCIPAL IF SAID ACCUSED IS BEING CHARGED SOLELY IN THE
INFORMATION AS PRINCIPAL FOR THE SIMPLE REASON THAT THE CRIME
PROVED IS NOT INCLUDED IN THE CRIME CHARGED.
2. THAT "AIDING THE ESCAPE OF THE PRINCIPAL" TO BE CONSIDERED
SUFFICIENT IN LAW TO CONVICT AN ACCUSED UNDER ARTICLE 19,
PARAGRAPH 3 OF THE REVISED PENAL CODE MUST BE DONE IN SUCH A
WAY AS TO DECEIVE THE VIGILANCE OF THE LAW ENFORCEMENT
AGENCIES OF THE STATE AND THAT THE "ESCAPE" MUST BE ACTUAL;

3. THE CONVICTION OF AN ACCESSORY PENDING THE TRIAL OF THE
PRINCIPAL VIOLATES PROCEDURAL ORDERLINESS. 4
During the pendency of the appeal in the Court of Appeals, the case against Salazar in the JAGO
was remanded to the civil court as he was discharged from the military service. He was later
charged with murder in the same Regional Trial Court of Rosales, Pangasinan in Criminal Case
No. 2027-A. In a supplemental pleading dated November 14, 1988, petitioner informed this Court
that Jessie Salazar was acquitted by the trial court in a decision that was rendered on August 29,
1988.
The respondents were required to comment on the petition. The comment was submitted by the
Solicitor General in behalf of respondents. On January 18, 1989, the Court resolved to deny the
petition for failure of petitioner to sufficiently show that respondent court had committed any
reversible error in its questioned judgment. Hence, the present motion for reconsideration to
which the respondents were again required to comment. The required comment having been
submitted, the motion is now due for resolution.
The first issue that arises is that inasmuch as the petitioner was charged in the information as a
principal for the crime of murder, can he thereafter be convicted as an accessory? The answer is
in the affirmative.
Petitioner was charged as a principal in the commission of the crime of murder. Under Article 16
of the Revised Penal Code, the two other categories of the persons responsible for the
commission of the same offense are the accomplice and the accessory. There is no doubt that
the crime of murder had been committed and that the evidence tended to show that Jessie
Salazar was the assailant. That the petitioner was present during its commission or must have
known its commission is the only logical conclusion considering that immediately thereafter, he
was seen driving a bicycle with Salazar holding an armalite, and they were together when they
left shortly thereafter. At least two witnesses, Ernesto and Julius Tejada, attested to these facts. It
is thus clear that petitioner actively assisted Salazar in his escape. Petitioner's liability is that of
an accessory.
This is not a case of a variance between the offense charged and the offense proved or
established by the evidence, and the offense as charged is included in or necessarily includes
the offense proved, in which case the defendant shall be convicted of the offense proved
included in that which is charged, or of the offense charged included in that which is proved. 5
In the same light, this is not an instance where after trial has begun, it appears that there was a
mistake in charging the proper offense, and the defendant cannot be convicted of the offense
charged, or of any other offense necessarily included therein, in which case the defendant must
not be discharged if there appears to be a good cause to detain him in custody, so that he can be
charged and made to answer for the proper offense. 6
In this case, the correct offense of murder was charged in the information. The commission of the
said crime was established by the evidence. There is no variance as to the offense committed.
The variance is in the participation or complicity of the petitioner. While the petitioner was being
held responsible as a principal in the information, the evidence adduced, however, showed that
his participation is merely that of an accessory. The greater responsibility necessarily includes
the lesser. An accused can be validly convicted as an accomplice or accessory under an
information charging him as a principal.
At the onset, the prosecution should have charged the petitioner as an accessory right then and
there. The degree of responsibility of petitioner was apparent from the evidence. At any rate, this
lapse did not violate the substantial rights of petitioner.

The next issue that must be resolved is whether or not the trial of an accessory can proceed
without awaiting the result of the separate charge against the principal. The answer is also in the
affirmative. The corresponding responsibilities of the principal, accomplice and accessory are
distinct from each other. As long as the commission of the offense can be duly established in
evidence the determination of the liability of the accomplice or accessory can proceed
independently of that of the principal.
The third question is this-considering that the alleged principal in this case was acquitted can the
conviction of the petitioner as an accessory be maintained?
In United States vs. Villaluz and Palermo, 7 a case involving the crime of theft, this Court ruled that
notwithstanding the acquittal of the principal due to the exempting circumstance of minority or insanity
(Article 12, Revised Penal Code), the accessory may nevertheless be convicted if the crime was in
fact established.
Corollary to this is United States vs. Mendoza, 8 where this Court held in an arson case that the
acquittal of the principal must likewise result in the acquittal of the accessory where it was shown that
no crime was committed inasmuch as the fire was the result of an accident. Hence, there was no
basis for the conviction of the accessory.
In the present case, the commission of the crime of murder and the responsibility of the petitioner
as an accessory was established. By the same token there is no doubt that the commission of
the same offense had been proven in the separate case against Salazar who was charged as
principal. However, he was acquitted on the ground of reasonable doubt by the same judge who
convicted Vino as an accessory. The trial court held that the identity of the assailant was not
clearly established. It observed that only Julius Tejada identified Salazar carrying a rifle while
riding on the bicycle driven by Vino, which testimony is uncorroborated, and that two other
witnesses, Ernesto Tejada and Renato Parvian who were listed in the information, who can
corroborate the testimony of Julius Tejada, were not presented by the prosecution.
The trial court also did not give due credit to the dying declaration of the victim pinpointing
Salazar as his assailant on the ground that it was not shown the victim revealed the identity of
Salazar to his father and brother who came to his aid immediately after the shooting. The court a
quo also deplored the failure of the prosecution and law enforcement agencies to subject to
ballistic examinations the bullet slug recovered from the body of the victim and the two empty
armalite bullet empty shells recovered at the crime scene and to compare it with samples taken
from the service rifle of Salazar. Thus, the trial court made the following observation:
There appears to be a miscarriage of justice in this case due to the ineptitude of
the law enforcement agencies to gather material and important evidence and the
seeming lack of concern of the public prosecutor to direct the production of such
evidence for the successful prosecution of the case. 9
Hence, in said case, the acquittal of the accused Salazar is predicated on the failure of the
prosecution to adduce the quantum of evidence required to generate a conviction as he was not
positively identified as the person who was seen holding a rifle escaping aboard the bicycle of
Vino.
A similar situation may be cited. The accessory was seen driving a bicycle with an unidentified
person as passenger holding a carbine fleeing from the scene of the crime immediately after the
commission of the crime of murder. The commission of the crime and the participation of the
principal or assailant, although not identified, was established. In such case, the Court holds that
the accessory can be prosecuted and held liable independently of the assailant.

We may visualize another situation as when the principal died or escaped before he could be
tried and sentenced. Should the accessory be acquitted thereby even if the commission of the
offense and the responsibility of the accused as an accessory was duly proven? The answer is
no, he should be held criminally liable as an accessory.
Although in this case involving Vino the evidence tended to show that the assailant was Salazar,
as two witnesses saw him with a rifle aboard the bicycle driven by Vino, in the separate trial of
the case of Salazar, as above discussed, he was acquitted as the trial court was not persuaded
that he was positively identified to be the man with the gun riding on the bicycle driven by Vino. In
the trial of the case against Vino, wherein he did not even adduce evidence in his defense, his
liability as such an accessory was established beyond reasonable doubt in that he assisted in the
escape of the assailant from the scene of the crime. The identity of the assailant is of no material
significance for the purpose of the prosecution of the accessory. Even if the assailant can not be
identified the responsibility of Vino as an accessory is indubitable.
WHEREFORE, the motion for reconsideration is denied and this denial is FINAL.
SO ORDERED.
[G.R. No. 116736. July 24, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN

ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and
JOHN DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and
MANUEL GARCIA y RIVERA, accused-appellants.
DECISION
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and
logical consequences of his wrongful act even where the resulting crime is
more serious than that intended. Hence, an accused who originally
intended to conceal and to bury what he thought was the lifeless body of
the victim can be held liable as a principal, not simply as an accessory,
where it is proven that the said victim was actually alive but subsequently
died as a direct result of such concealment and burial. Nonetheless, in the
present case, Appellant Garcia can not be held liable as a principal
because the prosecution failed to allege such death through drowning in
the Information. Neither may said appellant be held liable as an accessory
due to his relationship with the principal killer, Appellant Ortega, who is his
brother-in-law.

Statement of the Case
This case springs from the joint appeal interposed by Appellants
Benjamin Ortega, Jr. and Manuel Garcia from the Decision, dated
February 9, 1994 written by Judge Adriano R. Osorio, finding them guilty
of murder.
[1]
[2]
Appellants were charged by State Prosecutor Bernardo S. Razon in an

Information dated October 19, 1992, as follows:
[3]
That on or about October 17, 1992 in Valenzuela, Metro Manila,

Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring together and mutually helping one another,
without any justifiable cause, with treachery and evident premeditation and
with abuse of superior strenght (sic) and with deliberate intent to kill, did
then and there willfully, unlawfully and feloniously attack, assault and stab
repeatedly with a pointed weapon on the different parts of the body one
ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the
latter serious physical injuries which directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by
counsel de oficio, pleaded not guilty to the charge. Accused John Doe
was then at large. After trial in due course, the court a quo promulgated
the questioned Decision. The dispositive portion reads:
[4]
[5]
[6]
[7]
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel

Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the
Court hereby sentenced (sic) them to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum
of P35,000.00 for funeral expenses of deceased Andre Mar Masangkay and
death indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty.
Evaristo P. Velicaria who took over from the Public Attorneys Office as
counsel for the accused.
[8]
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution witnesses
as follows:
[9]
Diosdado Quitlong substantially testified that on October 15, 1992 at about

5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto,

Romeo Ortega, Roberto San Andres were having a drinking spree in the
compound near the house of Benjamin Ortega, Jr. at Daangbakal,
Dalandanan, Valenzuela, Metro Manila. That while they were drinking,
accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk
arrived and joined them. That victim Andre Mar Masangkay answered the
call of nature and went to the back portion of the house. That accused
Benjamin Ortega, Jr. followed him and later they [referring to the
participants in the drinking session] heard the victim Andre Mar shouted,
Dont, help me! (Huwag, tulungan ninyo ako!) That he and Ariel Caranto
ran towards the back portion of the house and [they] saw accused Benjamin
Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal
with his face up and stabbing the latter with a long bladed weapon. That
Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused
Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where
they were having the drinking session [for the latter] to pacify his brother
Benjamin, Jr. That Romeo Ortega went to the place of the stabbing and
together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar
Masangkay from the canal and brought Andre Mar to the well and dropped
the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr. and
Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet
in length and 11 to 12 inches in weight to the body of Andre Mar
Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not
to tell anybody of what he saw. That he answered in the affirmative and he
was allowed to go home. That his house is about 200 meters from Romeo
Ortegas house. That upon reaching home, his conscience bothered him and
he told his mother what he witnessed. That he went to the residence of Col.
Leonardo Orig and reported the matter. That Col. Orig accompanied him to
the Valenzuela Police Station and some police officers went with them to
the crime scene. That accused Benjamin Ortega, Jr. and Manuel Garcia
were apprehended and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he
was presented as witness in this case. That he narrated the incident to his
mother on the night he witnessed the killing on October 15, 1992. That on
October 15, 1992 at 5:30 in the afternoon when he arrived, victim Andre
Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already
having [a] drinking spree and he joined them. That accused Benjamin
Ortega, Jr. and Manuel Garcia were not yet in the place. That the stabbing
happened between 12:00 midnight and 12:30 a.m. That they drank gin with
finger foods such as pork and shell fish. That he met the victim Andre Mar
Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and
Manuel Garcia joined them at about 11:00 p.m. That there was no
altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand
and Andre Mar Masangkay, during the drinking session. That at about

12:30 a.m. Andre Mar Masangkay answered the call of nature and went to
the back portion of the house. That he cannot see Andre Mar Masangkay
from the place they were having the drinking session. That he did not see
what happened to Andre Mar Masangkay. That he only heard Masangkay
asking for help. That accused Manuel Garcia was still in the drinking
session when he heard Masangkay was asking for help.That Benjamin
Ortega, Jr. and Manuel Garcia are his friends and neighbors. That when he
heard Andre Mar Masangkay was asking for help, he and Ariel Caranto ran
to the back portion of the house and saw Benjamin Ortega, Jr. on top of
Andre Mar Masangkay and stabbing the latter. That Andre Mar Masangkay
was lying down with his back in the canal and Benjamin Ortega, Jr. on top
stabbing the former. That he did not see any injuries on Benjamin Ortega,
Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr. That he
did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That
he knows that Andre Mar Masangkay was courting Raquel Ortega. That
Raquel Ortega asked permission from Andre Mar Masangkay when she left
between 8:00 and 9:00 p.m. That there was no trouble that occurred during
the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado
Quitlong is his neighbor for about 9 years. That on October 16, 1992 at
5:00 in the morning, he was summoned by Diosdado Quitlong and reported
to him the stabbing incident that occurred at Daangbakal near the
subdivision he is living. That he relayed the information to the Valenzuela
Police Station and a police team under police officer Param accompanied
them to the place. That he asked the police officers to verify if there is a
body of person inside the well. That the well was covered with stones and
he asked the police officers to seek the help of theneighbors (sic) to remove
the stones inside the well. That after the stones were removed, the body of
the victim was found inside the well. That the lifeless body was pulled out
from the well. That the body has several stab wounds. That he came to
know the victim as Andre Mar Masangkay. That two men were arrested by
the police officers.
On cross-examination, he said that he saw the body when taken out of the
well with several stab wounds. That Diosdado Quitlong told him that he
was drinking with the victim and the assailants at the time of the
incident. That Benjamin Ortega, Jr. stabbed the victim while the latter was
answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that
he conducted [an] autopsy on the cadaver of Andre Mar Masangkay on
October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur
Highway. That he prepared the autopsy report and the sketch of human
head and body indicating the location of the stab wounds. That the cause of

death is multiple stab wounds, contributory, [a]sphyxia by submersion in
water. That there were 13 stab wounds, 8 of which were on the frontal part
of the body, 2 at the back and there were contused abrasions around the
neck and on the left arm. There was stab wound at the left side of the
neck. That the contused abrasion could be produced by cord or wire or
rope. That there is (an) incised wound on the left forearm.That the stab
wounds which were backward downward of the body involved the
lungs. That the victim was in front of the assailant. That the stab wound on
the upper left shoulder was caused when the assailant was in front of the
victim. That the assailant was in front of the victim when the stab wound
near the upper left armpit was inflicted as well as the stab wound on the left
chest wall. That the stab wound on the back left side of the body and the
stab wound on the back right portion of the body may be produced when
the assailant was at the back of the victim. That the assailant was in front of
the victim when the stab wound[s] on the left elbow and left arm were
inflicted. That the large airway is filled with muddy particles indicating that
the victim was alive when the victim inhaled the muddy particles. The heart
is filled with multiple hemorrhage, loss of blood or decreased of blood. The
lungs is filled with water or muddy particles. The brain is pale due to loss
of blood.The stomach is one half filled with muddy particles which could
[have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of
the victim. That he cannot tell if the assailant or the victim were
standing. That it is possible that the stab wounds was (sic) inflicted when
both [referring to participants] were standing or the victim was lying down
and the assailant was on top. That he cannot tell the number of the
assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October
15, 1992, he and his wife, Maritess Garcia, brought their feverish daughter,
Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o
clock in the morning, went home, changed his clothes and went to work.
After office hours, he and Benjamin Ortega, Jr. passed by the canteen at
their place of work. After drinking beer, they left at eight o clock in the
evening and headed home. En route, they chanced on Diosdado Quitlong
alias Mac-mac and Andre Mar Masangkay, who invited them to join their
own drinking spree. Thereupon, Appellant Garcias wife came and asked
him to go home because their daughter was still sick. To alleviate his
daughters illness, he fetched his mother-in-law who performed a ritual
called tawas. After the ritual, he remained at home and attended to his sick
[10]

daughter. He then fell asleep but was awakened by police officers at six o
clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her
husband. She however added two other participants in the drinking session
aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay,
namely, a Mang Serafin and Boyet Santos.
[11]
Benjamin Ortega, Jr. likewise substantially corroborated the testimony

of Appellant Manuel Garcia. According to him, between eleven and twelve
o clock in the evening, Masangkay left the drinking session. Thirty (30)
minutes after Masangkay left, he also left the drinking place to urinate. He
went behind the house where he saw Masangkay peeping through the
room of his sister Raquel. He ignored Masangkay and continued urinating.
After he was through, Masangkay approached him and asked where his
sister was. He answered that he did not know. Without warning,
Masangkay allegedly boxed him in the mouth, an attack that induced
bleeding and caused him to fall on his back. When he was about to stand
up, Masangkay drew a knife and stabbed him, hitting him on the left arm,
thereby immobilizing him. Masangkay then gripped his neck with his left
arm and threatened to kill him. Unable to move, Ortega shouted for
help. Quitlong came and, to avoid being stabbed, grabbed Masangkays
right hand which was holding the knife. Quitlong was able to wrest the knife
from Masangkay and, with it, he stabbed Masangkay ten (10) times
successively, in the left chest and in the middle of the stomach. When the
stabbing started, Ortega moved to the left side of Masangkay to avoid
being hit. Quitlong chased Masangkay who ran towards the direction of
the well. Thereafter, Ortega went home and treated his injured left armpit
and lips. Then, he slept.
[12]
[13]
[14]
[15]
When he woke up at six o clock the following morning, he saw police

officers in front of his house. Taking him with them, the lawmen proceeded
to the well. From the railroad tracks where he was asked to sit, he saw the
police officers lift the body of a dead person from the well. He came to
know the identity of the dead person only after the body was taken to the
police headquarters.
[16]
The Trial Courts Discussion

The trial court explained its basis for appellants conviction as follows:
The Court is convinced that the concerted acts of accused Benjamin
Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying
and dumping the victim Andre Mar Masangkay who was still alive and
[17]

breathing inside the deep well filled with water, head first and threw big
stones/rocks inside the well to cover the victim is a clear indication of the
community of design to finish/kill victim Andre Mar Masangkay. Wounded
and unarmed victim Andre Mar Masangkay was in no position to flee
and/or defend himself against the three malefactors. Conspiracy and the
taking advantage of superior strength were in attendance. The crime
committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form
and manner in which assistance is rendered to the person inflicting the fatal
wound may determine complicity where it would not otherwise be
evidence (People vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused
(m)ust reimburse the heirs of victim Andre Mar Masangkay the amount
of P35,000.00 for the funeral expenses of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the
following:
[18]
I. The trial court erred in holding that there is conspiracy on the basis of
the prosecutions evidence that at the time both accused and one
Romeo Ortega lifted the body of Andrew Masangkay from where
he succumbed due to stab wounds and brought and drop said body
of Andrew Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay
was still alive at the time his body was dropped in the well;
III. The trial court erred in convicting Manuel Garcia and in not
acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr.
is guilty only of homicide alone.
On the basis of the records and the arguments raised by the appellants and the
People, we believe that the question to be resolved could be simplified thus: What
are the criminal liabilities, if any, of Appellants Ortega and Garcia?
The Courts Ruling

We find the appeal partly meritorious. Appellant Ortega is guilty only of
homicide. Appellant Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented conflicting
narrations. The prosecution witnesses described the commission of the
crime and positively identified appellants as the perpetrators. The
witnesses for the defense, on the other hand, attempted to prove denial
and alibi. As to which of the two contending versions speaks the truth
primarily rests on a critical evaluation of the credibility of the witnesses and
their stories. In this regard, the trial court held:
[19]
The Court has listened intently to the narration of the accused and their
witnesses and the prosecution witnesses and has keenly observed their
behavior and demeanor on the witness stand and is convinced that the story
of the prosecution is the more believable version. Prosecution eyewitness
Diosdado Quitlong appeared and sounded credible and his credibility is
reinforced by the fact that he has no reason to testify falsely against the
accused. It was Diosdado Quitlong who reported the stabbing incident to
the police authorities. If Quitlong stabbed and killed the victim Masangkay,
he will keep away from the police authorities and will go in hiding. x x x
Because the trial court had the opportunity to observe the witnesses
demeanor and deportment on the stand as they rendered their testimonies,
its evaluation of the credibility of witnesses is entitled to the highest
respect. Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the
case, his assessment of credibility must be respected.
[20]
In the instant case, we have meticulously scoured the records and

found no reason to reverse the trial courts assessment of the credibility of
the witnesses and their testimonies insofar as Appellant Ortega is
concerned. The narration of Eyewitness Diosdado Quitlong appears to be
spontaneous and consistent. It is straightforward, detailed, vivid and
logical. Thus, it clearly deserves full credence.
[21]
On the other hand, in asserting alibi and denial, the defense bordered
on the unbelievable. Appellant Ortega claimed that after he was able to free
himself from Masangkays grip, he went home, treated his injuries and slept.
This is not the ordinary reaction of a person assaulted. If Ortegas version
of the assault was true, he should have immediately reported the matter to
the police authorities, if only out of gratitude to Quitlong who came to his
rescue. Likewise, it is difficult to believe that a man would just sleep after
[22]

someone was stabbed in his own backyard. Further, we deem it incredible
that Diosdado Quitlong would stab Masangkay ten (10) times successively,
completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the
alleged successive stabbing of Quitlong. The natural tendency of a person
under attack is to defend himself and not to persist in choking a
defenseless third person.
[23]
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior
strength were alleged in the information, the trial court found the presence
only of abuse of superior strength.
We disagree with the trial courts finding. Abuse of superior strength
requires deliberate intent on the part of the accused to take advantage of
such superiority. It must be shown that the accused purposely used
excessive force that was manifestly out of proportion to the means
available to the victims defense. In this light, it is necessary to evaluate
not only the physical condition and weapon of the protagonists but also the
various incidents of the event.
[24]
[25]
In his testimony, Witness Dominador Quitlong mentioned nothing about

Appellant Ortegas availment of force excessively out of proportion to the
means of defense available to the victim to defend himself. Quitlong
described the assault made by Appellant Ortega as follows:
[26]
ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking spree with
Andrew Masangkay and where you witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in
the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega
Sr. and the house of his son Benjamin Ortega, Jr. are near each other.
xxx xxx xxx

Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr.,
Manuel Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y Ducay,
Roberto San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived
drunk and joined the group?

A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega,
Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay
answer to a call of nature and went to the back portion of the house, and
Benjamin Ortega, Jr. followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said Huwag, tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature
and after you heard huwag, tulungan nyo ako coming from the mouth of the
late Andrew Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he
was stabbing Andrew Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was done
telling us the particular position of the late Andrew Masangkay and how
Benjamin Ortega, Jr proceeded with the stabbing against the late victim,
Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin
Ortega, Jr. was nakakabayo and with his right hand with closed fist holding the
weapon, he was thrusting this weapon on the body of the victim, he was
making downward and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.
It should be noted that Victim Masangkay was a six-footer, whereas

Appellant Ortega, Jr. was only five feet and five inches tall. There was no
testimony as to how the attack was initiated. The accused and the victim
were already grappling when Quitlong arrived. Nothing in the foregoing
testimony and circumstances can be interpreted as abuse of superior
strength.Hence, Ortega is liable only for homicide, not murder.
[27]

Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by the trial court is
based on mere assumption and conjecture x x x. Allegedly, the medicolegal finding that the large airway was filled with muddy particles indicating
that the victim was alive when the victim inhaled the muddy particles did
not necessarily mean that such muddy particles entered the body of the
victim while he was still alive. The Sinumpaang Salaysay of Quitlong
stated, Nilubayan lang nang saksak nang mapatay na si Andrew ni
Benjamin Ortega, Jr. Thus, the prosecution evidence shows Masangkay
was already dead when he was lifted and dumped into the well. Hence,
Garcia could be held liable only as an accessory.
[28]
[29]
We do not agree with the above contention. Article 4, par. 1, of the

Revised Penal Code states that criminal liability shall be incurred by any
person committing a felony (delito) although the wrongful act done be
different from that which he intended. The essential requisites for the
application of this provision are that (a) the intended act is felonious; (b) the
resulting act is likewise a felony; and (c) the unintended albeit graver wrong
was primarily caused by the actors wrongful acts. In assisting Appellant
Ortega, Jr. carry the body of Masangkay to the well, Appellant Garcia was
committing a felony. The offense was that of concealing the body of the
crime to prevent its discovery, i.e. that of being an accessory in the crime of
homicide. Although Appellant Garcia may have been unaware that the
victim was still alive when he assisted Ortega in throwing the body into the
well, he is still liable for the direct and natural consequence of his felonious
act, even if the resulting offense is worse than that intended.
[30]
True, Appellant Garcia merely assisted in concealing the body of the

victim. But the autopsy conducted by the NBI medico-legal officer showed
that the victim at that time was still alive, and that he died subsequently of
drowning. That drowning was the immediate cause of death was
medically demonstrated by the muddy particles found in the victims airway,
lungs and stomach. This is evident from the expert testimony given by the
medico-legal officer, quoted below:
[31]
[32]
[33]
ATTY. ALTUNA:
Q Will you please explain this in simple language the last portion of Exhibit N,
beginning with tracheo-bronchial tree, that is sentence immediately after
paragraph 10, 2.5 cms. Will you please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this particular
material?
A No, sir.

Q What do you mean by no?
A A person should be alive so that the muddy particles could be inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling or the taking
or receiving of muddy particles at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior
surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood going to
the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the
lungs have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of blood.
Q And, of course, loss of blood could be attributed to the stab wound which is
number 13?
A Yes, sir.
Q And the last one, under the particular point hemothorax?
A It indicates at the right side. There are around 1,400 cc of blood that accumulate
at the thoraxic cavity and this was admixed with granular materials?
Q And what cause the admixing with granular materials on said particular portion of
the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?
A Its due to stab wounds those muddy particles which set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles now came
in, in that particular portion of the body and caused admixing of granular
materials?

A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you please
explain the same?
A The hemoperitoneum there are 900 cc of blood that accumulated inside the
abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
A The victim could have taken these when he was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)
A Filipino authority on forensic medicine opines that any of the following

medical findings may show that drowning is the cause of death:
[34]
1. The presence of materials or foreign bodies in the hands of the

victim. The clenching of the hands is a manifestation
of cadaveric spasm in the effort of the victim to save himself from
drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs
(edema aquosum).
3. Presence of water and fluid in the stomach contents corresponding to
the medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage found in
the medium where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay.
It was proven that his airpassage, or specifically his tracheo-bronchial tree,
was filled with muddy particles which were residues at the bottom of the
well. Even his stomach was half-filled with such muddy particles. The
unrebutted testimony of the medico-legal officer that all these muddy
particles were ingested when the victim was still alive proved that the victim
died of drowning inside the well.
The drowning was the direct, natural and logical consequence of the
felony that Appellant Garcia had intended to commit; it exemplifies praeter
intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under
this paragraph, a person may be convicted of homicide although he had no
original intent to kill.
[35]

In spite of the evidence showing that Appellant Garcia could be held
liable as principal in the crime of homicide, there are, however, two legal
obstacles barring his conviction, even as an accessory as prayed for by
appellants counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega)
of attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon
on the different parts of the body one ANDRE MAR MASANGKAY y
ABLOLA The prosecutions evidence itself shows that Garcia had nothing to
do with the stabbing which was solely perpetrated by Appellant Ortega. His
responsibility relates only to the attempted concealment of the crime and
the resulting drowning of Victim Masangkay. The hornbook doctrine in our
jurisdiction is that an accused cannot be convicted of an offense, unless it
is clearly charged in the complaint or information. Constitutionally, he has a
right to be informed of the nature and cause of the accusation against
him. To convict him of an offense other than that charged in the complaint
or information would be a violation of this constitutional right. Section 14,
par. 2, of the 1987 Constitution explicitly guarantees the following:
[36]
(2) In all criminal prosecutions, the accused shall be presumed innocent

until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable. (Underscoring supplied)
In People vs. Pailano, this Court ruled that there can be no conviction
for rape on a woman deprived of reason or otherwise unconscious where
the information charged the accused of sexual assault by using force or
intimidation, thus:
[37]
The criminal complaint in this case alleged the commission of the crime
through the first method although the prosecution sought to establish at the
trial that the complainant was a mental retardate.Its purpose in doing so is
not clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the
ground that he violated Anita while she was deprived of reason or
unconscious, such conviction could not have been possible under the
criminal complaint as worded. This described the offense as having been
committed by Antonio Pailano, being then provided with a scythe, by
means of violence and intimidation, (who) did, then and there, wilfully,
unlawfully and feloniously have carnal knowledge of the complainant,

Anita Ibaez, 15 years of age, against her will. No mention was made of the
second circumstance.
Conviction of the accused-appellant on the finding that he had raped Anita
while she was unconscious or otherwise deprived of reason -- and not
through force and intimidation, which was the method alleged -- would
have violated his right to be informed of the nature and cause of the
accusation against him.[Article IV, Sec. 19, Constitution of 1973; now
Article III, Sec. 14(2)] This right is safeguarded by the Constitution to
every accused so he can prepare an adequate defense against the charge
against him. Convicting him of a ground not alleged while he is
concentrating his defense against the ground alleged would plainly be
unfair and underhanded. This right was, of course, available to the herein
accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged
with rape could not be found guilty of qualified seduction, which had not
been alleged in the criminal complaint against him.In the case of People vs.
Montes, [fn: 122 SCRA 409] the Court did not permit the conviction for
homicide of a person held responsible for the suicide of the woman he was
supposed to have raped, as the crime he was accused of -- and acquitted -was not homicide but rape. More to the point is Tubb v. People of the
Philippines, [fn: 101 Phil. 114] where the accused was charged with the
misappropriation of funds held by him in trust with the obligation to return
the same under Article 315, paragraph 1(b) of the Revised Penal Code, but
was convicted of swindling by means of false pretenses, under paragraph
2(b) of the said Article, which was not alleged in the information. The
Court said such conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of
homicide through drowning in an information that charges murder by
means of stabbing.
Second. Although the prosecution was able to prove that Appellant
Garcia assisted in concealing x x x the body of the crime, x x x in order to
prevent its discovery, he can neither be convicted as an accessory after the
fact defined under Article 19, par. 2, of the Revised Penal Code. The
records show that Appellant Garcia is a brother-in-law of Appellant Ortega,
the latters sister, Maritess, being his wife. Such relationship exempts
Appellant Garcia from criminal liability as provided by Article 20 of the
Revised Penal Code:
[38]
[39]
ART. 20. Accessories who are exempt from criminal liability. -- The
penalties prescribed for accessories shall not be imposed upon those who
are such with respect to their spouses, ascendants, descendants, legitimate,
natural, and adopted brothers and sisters, or relatives by affinity within the

same degrees with the single exception of accessories falling within the
provisions of paragraph 1 of the next preceding article.
On the other hand, the next preceding article provides:
ART. 19. Accessories. Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of
the following manners:
1. By profiting themselves or assisting the offender to profit by the
effects of the crime.
2. By concealing or destroying the body of the crime, or the
effects or instruments thereof, in order to prevent its
discovery.
3. By harboring, concealing, or assisting in the escape of the
principal of the crime, provided the accessory acts with abuse
of his public functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an attempt to take the
life of the Chief Executive, or is known to be habitually guilty
of some other crime.
Appellant Garcia, being a covered relative by affinity of the principal
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted
exempting provision of the Revised Penal Code. This Court is thus
mandated by law to acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00
from P35,000.00. The former amount was proven both by documentary
evidence and by the testimony of Melba Lozano, a sister of the victim. Of
the expenses alleged to have been incurred, the Court can give credence
only to those that are supported by receipts and appear to have been
genuinely incurred in connection with the death of the victim. However, in
line with current jurisprudence, Appellant Ortega shall also indemnify the
heirs of the deceased in the sum ofP50,000.00. Indemnity requires no proof
other than the fact of death and appellants responsibility therefor.
[40]
[41]
[42]
[43]
The penalty for homicide is reclusion temporal under Article 249 of the
Revised Penal Code, which is imposable in its medium period, absent any
aggravating or mitigating circumstance, as in the case of Appellant
Ortega. Because he is entitled to the benefits of the Indeterminate

Sentence Law, the minimum term shall be one degree lower, that is, prision
mayor.
WHEREFORE,
premises
considered,
the
joint
appeal
is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of
homicide and sentenced to ten (10) years of prision mayor medium, as
minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is
also ORDERED to pay the heirs of the victim P50,000.00 as indemnity
and P31,790.00
as
actual
damages. Appellant
Manuel
Garcia
is ACQUITTED. His
immediate
release
from
confinement
is ORDERED unless he is detained for some other valid cause.
SO ORDERED.

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CRIMINAL LAW -MIDTERM CASES

C.A. No. 384

February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

CRIMINAL LAW -MIDTERM CASES

CRIMINAL LAW -MIDTERM CASES

CRIMINAL LAW -MIDTERM CASES

CRIMINAL LAW -MIDTERM CASES

CRIMINAL LAW -MIDTERM CASES

CRIMINAL LAW -MIDTERM CASES

G.R. No. L-12883

November 26, 1917

THE UNITED STATES, plaintiff-appellee,

CRIMINAL LAW -MIDTERM CASES

CASE DIGEST ON U.S. v. AMPAR [37 Phil. 201 (1917)]

[G.R. Nos. 140514-15. September 30, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUNE IGNAS y

CRIMINAL LAW -MIDTERM CASES

Appellant is an elementary school graduate. He resided at Cruz, La

In the amended Information, pursuant to Section 14, Rule 110 of the

Appellant was arraigned and pleaded not guilty to the foregoing

On the evening of October 16, 1995, Wilma Grace, Romenda, and

CRIMINAL LAW -MIDTERM CASES

Thereafter, Romenda received from Taiwan four letters written by Wilma

That same week Alfred Mayamnes, appellants neighbor who was

Sometime during the first week of March, Mayamnes saw appellant

CRIMINAL LAW -MIDTERM CASES

Prosecution witness Mona Barredo, a bakery worker, testified that she

CRIMINAL LAW -MIDTERM CASES

According to witness on the scene, responding policemen immediately

Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad,

Dr. Jovellanos determined the cause of death to be Hypovolemia due to

CRIMINAL LAW -MIDTERM CASES

On March 14, 1996, police investigators accompanied by one of

Prosecution witness Pauline Gumpic, the victims sister, testified that

Appellant interposed the defense of alibi. Sometime during the last

CRIMINAL LAW -MIDTERM CASES

Defense witness Ben Anoma corroborated appellants alibi. Anoma

The trial court disbelieved appellants defense and sustained the

CRIMINAL LAW -MIDTERM CASES

On June 2, 1999, the trial court granted the prosecutions motion. It

Hence, this automatic review, with appellant imputing the following

CRIMINAL LAW -MIDTERM CASES

THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE

ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY,

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

CRIMINAL LAW -MIDTERM CASES

CRIMINAL LAW -MIDTERM CASES

2. Sufficiency of the Prosecutions Evidence

CRIMINAL LAW -MIDTERM CASES

Her testimony was buttressed by that of witness Marlon Manis. A former

Evidence should only be considered for the purpose it was formally

CRIMINAL LAW -MIDTERM CASES

After going over the transcripts of the witnesses testimonies, we find no

CRIMINAL LAW -MIDTERM CASES

We likewise find no basis for appellants contention that Bayanes and

We have likewise closely scrutinized the testimony of Mona Barredo

CRIMINAL LAW -MIDTERM CASES

The verbal admission by appellant to Barredo was made before

CRIMINAL LAW -MIDTERM CASES

Prosecutions evidence here is admittedly circumstantial. But in the

Circumstantial evidence suffices to convict if the following requisites are