[G.R. No. 148912.

September 10, 2003]

PEOPLE

OF THE PHILIPPINES, appellee, vs.

ESCARLOS, alias Tomy, appellant.

(3) Stab wound located at mid lumbar area measuring

3 inches length and 4 inches depth
TIMOTEO
(4) Stab wound located between right first and second
finger measuring 3 inches length.

DECISION
Internal Findings:
PANGANIBAN, J.:
(1) Cutting of the upper and lower lobe of the right lung.
By interposing self-defense, herein appellant admits
authorship of the killing. Thus, shifted to him is the burden of proof
showing that the killing was justified. Despite his failure to prove
self-defense, he may be convicted only of homicide, not murder,
because of the inability of the prosecution to establish any
qualifying circumstance. Here, treachery is negated by the victims
awareness of the impending attack.
The Case
For automatic review before the Court is the May 29, 2001
Decision[1] of the Regional Trial Court (RTC) of Urdaneta,
Pangasinan (Branch 46) in Criminal Case No. U-10792, finding
appellant guilty of murder beyond reasonable doubt and
sentencing him to death. The dispositive portion of the Decision
reads as follows:
WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond
reasonable doubt accused Timoteo Escarlos of the crime of Murder and
the Court sentences him to suffer the penalty of DEATH; he is likewise
ordered to indemnify the heirs of Antonio Balisacan the sum
of P28,650.00 as actual damages, the sum of P50,000.00 as moral
damages and the further sum of P50,000.00 as exemplary damages.
The Clerk of Court is hereby ordered to prepare the mittimus.
The Jail Warden, Bureau of Jail Management and Penology (BJMP)
Urdaneta District Jail, Urdaneta City, is hereby ordered to deliver the
living body of Timoteo Escarlos to the National Bilibid Prisons,
Muntinlupa City, immediately upon receipt of this Decision.[2]
The Information[3] dated August 29, 2000, charged appellant
as follows:
That on or about July 1, 2000, in the evening, at Barangay Dumanpot,
Asingan, Pangasinan and within the jurisdiction of this Honorable Court,
the above-named accused, armed with a sharp pointed bladed weapon,
with deliberate intent to kill, treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack, assault, hold
and stab from behind Brgy. Kgd. Antonio Balisacan, inflicting upon him
the following injuries:
External Findings:
(1) Stab wound located below right clavicle measuring
3 inches length and 8 inches depth.
(2) Stab wound located at left armpit measuring 4
[inches] length and 6 inches depth.

(2) Cutting of the lower lobe of the left lung.

which injuries directly caused the death of said Brgy. Kgd. Antonio
Balisacan, to the damage and prejudice of his heirs.
Contrary to Art. 248, Revised Penal Code in relation to Republic Act No.
7659.[4]
During his arraignment on November 8, 2000, appellant, with
the assistance of his counsel, [5] pleaded not guilty to the charge.
[6]
After trial in due course, he was found guilty by the lower court.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) narrates the factual
version of the prosecution as follows:
Around 9 oclock in the evening of July 1, 2000, Antonio Balisacan went
to the residence of Jaime Ulep in Domampot, Asingan, Pangasinan to
attend a benefit dance which was near the place. In the benefit dance was
his son Crisanto Balisacan, who attended the dance with his
friends. Crisanto stood beside the emcee, Ceasario Escarlos, appellants
brother. While Ceasario was calling the victim, Antonio Balisacan, to
come to the the stage as he was a kagawad, Crisanto heard the people at
his back shout Ay!. Five (5) to six (6) meters at his back, with the place
[illuminated] by a 50 to 100 watts bulb, he saw appellant stab his father,
Antonio, several times. Crisanto was momentarily shocked that he was
not able to react. When appellant fled, Crisanto came to his senses and
ran to Antonio. Antonio was still alive so he brought him to Urdaneta
Sacred Heart Hospital where he expired a few minutes after arrival.
Jesus Dismaya was also beside Ceasario when Antonio Balisacans name
was called. When he heard people shout, he turned around and saw from
a distance of four (4) meters appellant stabbing Antonio four (4) times
with a ten (10) inch-long knife. He then called Antonios brother,
[Marcelo] Balisacan.
Within the vicinity was Antonios brother, Marcelo Balisacan. He was in
the Asingan-Urdaneta road, which was about fifteen (15) meters outside
Uleps yard when he heard people shout and run from the benefit
dance. Wanting to know what was happening, he went to the benefit
dance and saw that Antonio was stabbed. He went near Antonio, hugged
him, and asked who stabbed him. He replied, Tomy Escarlos.
Meanwhile around 9:30 of the same evening of July 1, 2000. SPO1
Patricio Badua was on duty. He received a phone call about a stabbing
incident in a benefit dance in Domampot, Asingan, Pangasinan.When he

went to the scene of the crime, the victim, Antonio Balisacan was already
in the hospital and appellant had already fled. He later learn[ed] that
Antonio died.
Dr. Noemi Taganas conducted an autopsy on Antonios body and found:
External Findings:
(1) Stab wound located below the right clavicle
measuring 3 inches length (in) and 8
inches (in) depth.
(2) Stab wound located at left armpit measuring 4
inches length and 6 inches depth.
(3) Stab wound located at mid lumbar area measuring
3 inches length and 4 inches depth
(4) Stab wound located between right first and second
finger measuring 3 inches length.
Internal Findings:
(1) Cutting of the upper and lower lobe of the right lung.

The weapon that Timoteo was able to get from Antonio was a kitchen
knife about 10 to 12 inches. Antonio drew the knife from his left
side. Timoteo was able to get hold of the handle of the knife when he
grappled for the same from the victim, by taking hold of the knife with
his right hand and stabbed Antonio who was intending to stab
him. Antonio was one (1) inch taller than accused.
Timoteos testimony was corroborated by an eyewitness, CESARIO
ESCARLOS, the brother of Timoteo and president of the Mr. & Mrs.
Association which sponsored the benefit dance on July 1, 2000.
On the night of July 1, 2000, Cesario Escarlos was at the yard of Jaime
Ulep. At about 9:00 oclock in the evening of the said date, he saw his
brother Timoteo Escarlos together with Dexie Yabis standing in a corner
watching the dance. Several minutes later Kgd. Antonio Balisacan arrived
and later on, while Cesario was on his way to urinate. He heard Antonio
uttered to Timoteo ADDA CAYO MANEN NGA AGARAMED TI
NILOLOCON. While relieving himself, he heard both Timoteo and
Antonio arguing and before he could get near and pacify them, he saw
them wrestling with each other. Many people were around but nobody
pacified them. Next minute he saw Antonio bloodied and lying on the
ground. There were at least 100 people then and might have seen the
incident. He noticed that Jesus Dismaya was there but the latter did not
do anything. Cesario, after the incident only stayed there for 3 minutes
because he was looking for his three year-old daughter. In the meantime,
nobody touched the body of the victim.[8]

(2) Cutting of the lower lobe of the left lung.

She later issued a death certificate. She stated in court that out of the four
(4) stab wounds, Antonios second stab wound was fatal because the lungs
were penetrated.
Dr. Ronald Bandonil, an NBI medico-legal officer confirmed Taganas
autopsy report. He also conducted an autopsy on the exhumed body of
Antonio. In his autopsy he found that Antonios first and second wounds
were fatal as these caused his death due to hypovalmic shock or massive
blood loss.[7] (Citations omitted)
Version of the Defense
Appellant, on the other hand, relates his version of the facts
in this manner:
On the night of July 1, 2000, accused TIMOTEO ESCARLOS together
with Rexie Yabes, Fredo Ramos, Erwin Ramos, Rowena Alamigo and
others were at the yard of Jaime Ulep, in Purok Inanama, Domanpot
Asingan, Pangasinan watching a benefit dance sponsored by Mr. & Mrs.
Organization. He was invited to buy lechon during the benefit dance.
While thereat, Kgd. Antonio Balisacan who was then drunk, passed in
front of accused and told him, You are here again to create
trouble. Accused was offended so he answered back saying Why do you
say that to me when I am not doing any trouble here. Antonio Balisacan
told him, OKINNAM KETDI (vulva of your Mother) and without
warning boxed him. Timoteo was hit on the forehead, which left a scar on
his forehead about an inch above the right eyebrow. He intended to box
back but he noticed that the victim was pulling out a kitchen knife, so for
fear of his life, he grabbed the weapon from Antonio Balisacan and used
the knife in stabbing the latter who was hit at the side below the left
armpit. He stabbed him twice and when the victim was about to fall
down, he was able to hit him for the third time.

The Ruling of the Trial Court

The trial court believed that the prosecutions evidence was
sufficient to convict appellant of murder qualified by treachery. It
rejected his plea of self-defense, because there had been no
unlawful aggression on the part of the victim.
x x x. The established facts revealed that the victim was one of the
persons who filed a case of malicious mischief against [appellant]. Said
case was filed five (5) months before the instant case happened. To the
mind of the Court, the accused only found a way of avenging what he felt
towards the victim. He took advantage of that x x x particular time and
place to let out his feelings in the presence of his barangay mates. Such
hidden grudge by the accused against the victim, established the motive
of the former.
xxxxxxxxx
The second element of self-defense is also lacking. The nature, location
and the number of wounds inflicted on the victim belie and negate the
accused[s] claim of self-defense. The post mortem findings of the autopsy
report showed that the victim sustained four stab wounds.
If there is any truth to the accused[s] claim of self-defense, he would not
have stabbed him several times. [Worse,] the location of the wounds
suggested that the accused was at the back of the victim when the wounds
were inflicted. It is therefore evident from the conduct of the accused that
he was determined to kill the victim and did not just act to defend
himself. In view of the foregoing, it is no longer necessary to discuss the
third element.[9]
Hence, this automatic review.[10]

The Issues
Appellant assigns the following alleged errors for our
consideration:
1. The honorable trial court erred in appreciating treachery
as a qualifying circumstance despite failure of the
prosecution to prove its attendance.
2. The honorable trial court erred in not finding that the
testimony of the supposed eyewitnesses for the
prosecution as to the attendance of treachery is
flawed and unworthy of belief.
3. The honorable trial court erred in not giving exculpatory
weight to the theory of self-defense interpose[d] by
the accused-appellant.
4. The honorable trial court committed a grave and serious
error in not finding that the victim [was] the first to
assault accused.

ATTY. VELASCO:
While there, did you observe or did you see if there
was any unusual incident that took place?
A: Yes, your Honor.
Q: What was that unusual incident you have seen and
observed?
A: Stabbing incident, your Honor.
COURT:
Who was stabbed?
ATTY. VELASCO:
Who was the victim of that stabbing?
A: My father.

5. The honorable trial court erred in considering motive to

establish the guilt of the accused.
6. The honorable court erred in convicting the accusedappellant of murder instead of acquitting him or at
most convicting him of homicide.[11]
These issues boil down to four: (1) sufficiency of the
prosecutions evidence, (2) viability of self-defense, (3) appreciation
of treachery as a qualifying circumstance, and (4) propriety of the
penalty and the damages imposed by the trial court.
The Courts Ruling
The appeal is partly meritorious.
First Issue:
Sufficiency of the Prosecutions Evidence
Although appellant did not directly raise the sufficiency of the
prosecutions evidence as an issue, this Court nonetheless
deliberated on it motu proprio, because an automatic appeal in a
criminal action opens the whole case for review. Indeed, the
strength of the prosecutions evidence must be passed upon,
especially in cases in which the death penalty has been imposed
by the trial court.[12] We have carefully examined the evidence for
the prosecution and found that the fact of killing and the identity of
the killer were duly established beyond reasonable doubt.
Prosecution Witness Crisanto Balisacan, son of the victim,
testified on the stabbing incident, which had occurred during a
benefit dance on that fateful night of July 1, 2000. The witness
testimony is as follows:
COURT:
You go to the main point.

Q: Who stabbed him?

A: Mr. Timoteo Tomy Escarlos, the accused in this
case, your Honor.
Q: Will you please focus your eyes within this
Honorable Court and tell us whether the person
you said who stabbed your father by the name of
Timoteo Escarlos is in the premises of this
Honorable Court?
A: Yes, sir.
Q: Will you please stand up and point to him?
A: The first one, your Honor (Witness is pointing unto a
person seated on the bench inside the courtroom,
who, when his name was asked, he answered
Timoteo Escarlos).
Q: How long have you been acquainted with the
accused Timoteo Escarlos?
A: About ten years, your Honor.
Q: He is also from Domampot?
A: Yes, your Honor.
Q: Considering that it is already about 9:20-9:30 oclock
in the evening when this stabbing incident took
place, how can you be sure that it was Timoteo
Escarlos who stabbed your father?
A: There was x x x light, your Honor.

Q: What kind of light are you trying to say?

Q: When you focused your attention and sight at your

back, what happened next?

A: 50100 watts bulb.

xxxxxxxxx
ATTY. VELASCO:
Did you see the spot where your father was actually
stabbed?

A: I saw stabbing. I saw my father stabbed by Timoteo

Escarlos, your Honor.[13] (Italics supplied)
Undoubtedly, the factual premises with regard to the killing
and its commission by appellant are clear and undisputed. He did
not at all deny the allegations against him and openly admitted that
he had killed the victim. However, he interposes self-defense to
seek his exoneration from criminal liability.

A: Yes, sir.

Second Issue:

Q: How far is this place where your father was stabbed

in relation to the entrance of the dance arena.
A: About 5 to 6 meters at my back, your Honor.
Q: And at that distance, what happened next while you
were watching?
A: I heard shouting.

Plea of Self-Defense
In pleading self-defense, appellant asserts that it was the
victim who initially approached and assaulted him. Allegedly, the
former had no choice but to defend himself under the
circumstances. In his testimony before the trial court, he described
the confrontation that had led to the fatal killing as follows:

Q: These shouting that you heard, where did they

come from?

Q: And while you were there at the yard of Jaime Ulep

on that night of July 1, 2000 do you remember
having seen the person of one Kgd. Antonio
Balisacan?

A: From my back.

A: Yes, sir.
xxxxxxxxx

Q: And did he see you also?

COURT:

A: Yes, sir.

What is that shouting about?

Q: And did you happen to see him?

ATTY. VELASCO:
You heard shoutin[g], according to you, what did you
hear, if you know?

A: When he passed in front of me he uttered in a loud

voice you are here again to create trouble (ADDA
KA MANEN DITOY NGA AGARAMID TI
NILILOKO).

A: About the incident.

Q: To whom did Antonio Balisacan utter these words?

COURT:

A: I, sir.

Tell [us] exactly what you heard[.]

Q: And you said it was uttered in a loud manner, how

far were you when he uttered these words?

A: I heard shouting, Ay!

Q: How many people shouted, Ay?
A: Many, your Honor, because that was a benefit
dance.
ATTY. VELASCO:
When you heard shoutin[g], what did you do, if any?
A: I turned my head to my back.

A: More or less 3 to 4 meters, sir.

Q: What did you say?
A: I was offended, sir.
Q: And do you know the physical appearance of
Antonio Balisacan when he mentioned those
words to you?
A: As if he was drunk, sir.

Q: What made you say that as if he was drunk?

A: At his left side, sir.

A: I smell his breath, sir.

Q: What kind of weapon did he draw?

Q: How did you react later when Antonio Balisacan

uttered those words to you?

A: I sized it to be a kitchen knife, sir.

A: I said: Why do you say that to me when I am not

doing any trouble here.

Q: Could you tell the Honorable Court the length of that

knife to include the handle?
A: 10 to 12 inches, sir.

Q: By the way, when Antonio Balisacan said those

words to you, were you doing anything that time?

Q: And how did you grapple for the possession of that

knife?

A: None, sir.
A: I was able to hold the handle of the kitchen knife, sir.
Q: What happened later on when you answered Brgy.
Kgd. Antonio Balisacan?

xxxxxxxxx

A: He said: OKINNAM KETDI (vulva of your mother)

and then he boxed me, sir.

Q: What prompted you to stab him considering that you

already got hold [of] the knife from him?

Q: Were you hit?

A: Yes, sir, because he intend[ed] to stab me, so, when

I had possession of the knife I stabbed him, sir.
[14]
(Italics supplied)

A: Yes, sir.
Q: What part of your body was hit?
A: This one on my forehead, sir. (Witness is pointing on
his forehead).
Q: Were you injured?
A: Yes, sir.
Q: What injury did you suffer?
A: My forehead was injured (Witness is pointing a [to] a
scar on his forehead about an inch at the right
above the right eyecrow).
Q: And what did you do after you were boxed by
Antonio Balisacan?
A: When I intend to box him I noticed that he withdrew
a balisong and I tried to grab and used the
balisong in stabbing, sir.
xxxxxxxxx
COURT:
How many times did you stab him?
A: Two times but when he was about to fall down I was
able to hit him once for the third time, sir.
Q: You said that he drew a knife, where did he draw the
knife?

We stress that when the accused invokes self-defense, the

burden of proof is shifted from the prosecution to the
defense. Thus, the latter assumes the responsibility of establishing
this plea by clear and convincing evidence.[15] Upon its shoulders
rests the duty of proving, to the satisfaction of the trial court, the
justifying circumstance of self-defense.[16]
The implications of pleading self-defense insofar as the
burden of proof is concerned was explained by the Court
in Macalino v. People,[17] from which we quote:
In pleading self-defense, petitioner in effect admitted that he stabbed the
victim. It was then incumbent upon him to prove that justifying
circumstance to the satisfaction of the court, relying on the strength of his
evidence and not on the weakness of the prosecution. The reason is that
even if the prosecution evidence were weak, such could not be
disbelieved after petitioner admitted the fact of stabbing the victim. [18]
The accused who avers that the killing arose from an
impulse of self-defense has the onus probandi of proving the
elements thereof.[19] The essential requisites of self-defense are
the following: (1) unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to prevent or repel
such aggression; and (3) lack of sufficient provocation on the part
of the person resorting to self-defense.[20] Verily, to invoke selfdefense successfully, there must have been an unlawful and
unprovoked attack that endangered the life of the accused, who
was then forced to inflict severe wounds upon the assailant by
employing reasonable means to resist the attack.[21]
Unlawful Aggression
on the Part of the Victim

In the present case, appellant claims that there was unlawful

aggression on the part of the victim when the latter
unceremoniously boxed him on the forehead in the heat of their
argument. Appellant adds that he had initially thought of hitting
back when he noticed that the victim was pulling out a kitchen
knife. Hence, to save his life, the former grabbed the weapon and
used it to stab the latter. Appellant insists that under the
circumstances, he was legally justified in using the knife to ward off
the unlawful aggression. For him to wait for the knife to be raised
and to fall on him before acting to defend himself would be asking
too much, he argues.

and that it was nevertheless necessary for him to inflict them in

order to save his own life.

The contentions of appellant are untenable. While the victim

may be said to have initiated the confrontation, we do not
subscribe to the view that the former was subjected to an unlawful
aggression within the legal meaning of the phrase.

The means employed by a person invoking self-defense

must be reasonably commensurate to the nature and the extent of
the attack sought to be averted, as held by the Court inPeople v.
Obordo:[28]

The alleged assault did not come as a surprise, as it was

preceded by a heated exchange of words between the two parties
who had a history of animosity. Moreover, the alleged drawing of a
knife by the victim could not have placed the life of appellant in
imminent danger. The former might have done it only to threaten or
intimidate the latter.

Even assuming arguendo that there was unlawful aggression on the part
of the victim, accused-appellant likewise failed to prove that the means
he employed to repel Homers punch was reasonable. The means
employed by the person invoking self-defense contemplates a rational
equivalence between the means of attack and the defense. Accusedappellant claimed that the victim punched him and was trying to get
something from his waist, so he (accused-appellant) stabbed the victim
with his hunting knife. His act of immediately stabbing Homer and
inflicting a wound on a vital part of the victims body was unreasonable
and unnecessary considering that, as alleged by accused-appellant
himself, the victim used his bare fist in throwing a punch at him. [29]

Unlawful
aggression
presupposes actual,
sudden,
unexpected or imminent danger -- not merely threatening and
intimidating action.[22] Uncertain, premature and speculative was
the assertion of appellant that the victim was about to stab him,
when the latter had merely drawn out his knife. There is
aggression, only when the one attacked faces real and immediate
threat to ones life. The peril sought to be avoided must be
imminent and actual, not just speculative.[23]
Even assuming arguendo that there was an altercation
before the stabbing incident and that some danger did in fact exist,
the imminence of that danger had already ceased the moment
appellant disarmed the victim by wresting the knife from the
latter. After the former had successfully seized it, there was no
longer any unlawful aggression to speak of that would have
necessitated the need to kill the latter. Hence, appellant became
the unlawful aggressor when he stabbed the victim.[24]
When an unlawful aggression that has begun no longer
exists, the one who resorts to self-defense has no right to kill or
even to wound the former aggressor.[25] To be sure, when the
present victim no longer persisted in his purpose or action to the
extent that the object of his attack was no longer in peril, there was
no more unlawful aggression that would warrant legal self-defense
on the part of appellant.[26] Undoubtedly, the latter went beyond the
call of self-preservation when he proceeded to inflict excessive,
atrocious and fatal injuries on the latter, even when the allegedly
unlawful aggression had already ceased.
Reasonable Necessity of the

As correctly held by the trial court, the nature, the number

and the location of the wounds inflicted upon the victim were
important indicia disproving self-defense.[27] The claim of appellant
that only two of the four stab wounds were fatal is of no moment,
inasmuch as the means he employed was glaringly
disproportionate to the perceived unlawful aggression. He admitted
in his testimony that he had stabbed the victim for the third time,
even when the latter was about to fall.

Indeed, the means employed by a person resorting to selfdefense must be rationally necessary to prevent or repel an
unlawful aggression.[30]
Unlawful aggression is a conditio sine qua non for upholding
the justifying circumstance of self-defense. [31] Unless the victim has
committed unlawful aggression against the other, there can be no
self-defense, complete or incomplete, on the part of the latter. If
there is nothing to prevent or repel, the other two requisites of selfdefense will have no basis.[32]
Third Issue:
Appreciation of Qualifying Circumstances
The essence of treachery is the sudden and unexpected
attack by an aggressor without the slightest provocation on the
part of the victim, thus depriving the latter of any real chance to put
up a defense, and thereby ensuring the commission of the attack
without risk to the aggressor.[33] Treachery requires the
concurrence of two conditions: (1) the employment of a means of
execution that gives the person attacked no opportunity for selfdefense or retaliation; and (2) the deliberate and conscious
adoption of the means of execution.[34]

or Repel the Attack

There is no treachery when the assault is preceded by a

heated exchange of words between the accused and the victim; or
when the victim is aware of the hostility of the assailant towards
the former.[35]

Appellant argues that in the heat of the encounter, he was

not in a position to calculate or determine the effects of his blows,

In the instant case, the verbal and physical squabble prior to

the attack proves that there was no treachery, and that the victim

Means Employed to Prevent

was aware of the imminent danger to his life. [36] Moreover, the
prosecution failed to establish that appellant had deliberately
adopted a treacherous mode of attack for the purpose of depriving
the victim of a chance to fight or retreat.[37]
Certainly, the victim knew that his scuffle with appellant could
eventually turn into a violent physical clash. The existence of a
struggle before the fatal blows were inflicted on the victim clearly
shows that he was forewarned of the impending attack, and that
he was afforded the opportunity to put up a defense. [38] Indeed, a
killing done at the spur of the moment is not
treacherous. Moreover, any doubt as to the existence of treachery
must be resolved in favor of the accused.[39]
In People v. Cario,[40] we modified the trial courts decision
and ruled that the crime committed was only homicide, because
the qualifying circumstance of treachery had not been clearly
established. Thus, the Court declared:
However, we agree with the OSGs recommendation that appellant be held
liable only for homicide, not murder. In this case, the qualifying
circumstance of treachery was not conclusively established. For treachery
to exist, the following requisites must be met: (1) that at the time of the
attack, the victim was not in a position to defend himself; and (2) that the
offender consciously adopted the particular means, method or form of
attack employed by him. The facts show that Edmundo was placed on
guard concerning a possible assault by Pedro. First, there was a heated
argument between them at the place of the wake. Second, Edmundo was
not unaware that he and Rolando were followed outside by appellant,
who did not adopt any means to conceal himself or hide his intention of
confronting Edmundo. Third, the abrasions and contusions on Edmundos
face show that Edmundo was able to put up a fight before he was fatally
stabbed. These circumstances negate the existence of treachery in the
commission of the offense.[41]
As in People v. Cario, the Office of the Solicitor General
recommended in this case that appellant be convicted of homicide
only, inasmuch as the qualifying circumstance of treachery had not
been sufficiently established.[42]
The trial court correctly ruled that the qualifying circumstance
of evident premeditation was not present in the killing. Essentially,
there is evident premeditation when the execution of a criminal act
is preceded by cool thought and reflection upon the resolution to
carry out a criminal intent within a space of time sufficient to arrive
at a calm judgment.[43] Obviously, the acts of appellant in the
present case can hardly be described as a product of reflective
thought or deliberate planning towards a decisive resolve to kill the
victim. On the contrary, the confrontation that escalated to a violent
brawl was quite spontaneous, casual and incidental. Verily, the
brutal killing was not the result of a previous plot or sinister design
to end the life of the victim.
The elements of evident premeditation are as follows: (a) the
time when the accused decided to commit the crime; (b) an overt
act manifestly indicating that the accused clung to the
determination to commit the crime; and (c) the lapse of a period of
time, between the determination and the subsequent execution of
the crime, sufficient to allow the accused an opportunity to reflect
upon the consequences of the act. [44] As found by the trial court,
the prosecution failed to present sufficient evidence to establish
any of the foregoing requisites. To be sure, when there is no

showing how and when the plan to kill was decided or how much
time had elapsed before the crime was carried out, there is no
evident premeditation.[45]
In a criminal prosecution -- especially in cases involving the
extreme penalty of death -- nothing but proof beyond reasonable
doubt of every fact necessary to constitute the crime with which
the accused is charged must be established.[46]
Fourth Issue:
Proper Penalty and Award of Damages
Under Article 249 of the Revised Penal Code, the penalty for
homicide is reclusion temporal. There being neither mitigating nor
aggravating circumstance, the appropriate penalty should
be reclusion temporal in its medium period. Appellant is likewise
entitled to the benefits of the Indeterminate Sentence Law.
The trial court awarded moral damages in the amount
of P50,000, but failed to award P50,000 as civil indemnity for the
death of the victim. Moral damages cannot be granted in the
absence of proof therefor.[47] Unlike in rape cases, this type of
award is not automatically given in murder or homicide. The
prosecution was, however, able to prove actual damages in the
sum of P28,650. The award of exemplary damages should be
omitted considering that no aggravating circumstance was duly
proven.[48]
WHEREFORE,
the
assailed
Decision
is MODIFIED. Appellant is held guilty of homicide and sentenced
to eight (8) years and one (1) day of prison mayor medium, as
minimum; to fourteen (14) years, eight (8) months and (1) day
of reclusion temporal medium, as maximum. He shall also pay the
heirs of the victim the amounts of P50,000 as civil indemnity
andP28,650 as actual damages, consistent with prevailing
jurisprudence.[49] The grant of moral and exemplary damages
is DELETED. No costs.
SO ORDERED.

[G.R. No. 135981. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC
GENOSA, appellant.
DECISION
PANGANIBAN, J.:

BEN GENOSA, her legitimate husband, with the use of a hard deadly
weapon, which the accused had provided herself for the purpose,
[causing] the following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.

Admitting she killed her husband, appellant anchors her

prayer for acquittal on a novel theory -- the battered woman
syndrome (BWS), which allegedly constitutes self-defense. Under
the proven facts, however, she is not entitled to complete
exoneration because there was no unlawful aggression -- no
immediate and unexpected attack on her by her batterer-husband
at the time she shot him.
Absent unlawful aggression, there can be no self-defense,
complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on
appellant constituted a form of cumulative provocation that broke
down her psychological resistance and self-control. This
psychological paralysis she suffered diminished her will power,
thereby entitling her to the mitigating factor under paragraphs 9
and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the
extenuating circumstance of having acted upon an impulse so
powerful as to have naturally produced passion and obfuscation.
The acute battering she suffered that fatal night in the hands of her
batterer-spouse, in spite of the fact that she was eight months
pregnant with their child, overwhelmed her and put her in the
aforesaid emotional and mental state, which overcame her reason
and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating
circumstances arising from BWS, as well as the benefits of the
Indeterminate Sentence Law, she may now apply for and be
released from custody on parole, because she has already served
the minimum period of her penalty while under detention during the
pendency of this case.

Face, black, blownup & swollen w/ evident post-mortem

lividity. Eyes protruding from its sockets and tongue
slightly protrudes out of the mouth.
Fracture, open, depressed, circular located at the occipital
bone of the head, resulting [in] laceration of the brain,
spontaneous rupture of the blood vessels on the posterior
surface of the brain, laceration of the dura and meningeal
vessels producing severe intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel, [5] appellant pleaded not
guilty during her arraignment on March 3, 1997. [6] In due course,
she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the

prosecutions version of the facts in this wise:
The Case

For automatic review before this Court is the September 25,

1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City
(Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa
guilty beyond reasonable doubt of parricide. The decretal portion
of the Decision reads:
WHEREFORE, after all the foregoing being duly considered, the Court
finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable
doubt of the crime of Parricide as provided under Article 246 of the
Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding
treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00),
Philippine currency as moral damages. [2]
The Information[3] charged appellant with parricide as follows:
That on or about the 15 th day of November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with
intent to kill, with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and wound one

Appellant and Ben Genosa were united in marriage on November 19,

1983 in Ormoc City. Thereafter, they lived with the parents of Ben in
their house at Isabel, Leyte. For a time, Bens younger brother, Alex, and
his wife lived with them too. Sometime in 1995, however, appellant and
Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel,
Leyte where they lived with their two children, namely: John Marben and
Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight
after receiving their salary. They each had two (2) bottles of beer before
heading home. Arturo would pass Bens house before reaching his. When
they arrived at the house of Ben, he found out that appellant had gone to
Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store across it, waiting until 9:00 in the evening for
the masiao runner to place a bet. Arturo did not see appellant arrive but
on his way home passing the side of the Genosas rented house, he heard
her say I wont hesitate to kill you to which Ben replied Why kill me when
I am innocent? That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas rented house appeared uninhabited
and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend
and neighbor living about fifty (50) meters from her house, to look after
her pig because she was going to Cebu for a pregnancy check-up.
Appellant likewise asked Erlinda to sell her motorcycle to their neighbor
Ronnie Dayandayan who unfortunately had no money to buy it.

That same day, about 12:15 in the afternoon, Joseph Valida was waiting
for a bus going to Ormoc when he saw appellant going out of their house
with her two kids in tow, each one carrying a bag, locking the gate and
taking her children to the waiting area where he was. Joseph lived about
fifty (50) meters behind the Genosas rented house. Joseph, appellant and
her children rode the same bus to Ormoc. They had no conversation as
Joseph noticed that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about
the foul odor emanating from his house being rented by Ben and
appellant. Steban went there to find out the cause of the stench but the
house was locked from the inside. Since he did not have a duplicate key
with him, Steban destroyed the gate padlock with a borrowed steel saw.
He was able to get inside through the kitchen door but only after
destroying a window to reach a hook that locked it. Alone, Steban went
inside the unlocked bedroom where the offensive smell was coming from.
There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back
of his head. Seeing this, Steban went out of the house and sent word to
the mother of Ben about his sons misfortune. Later that day, Iluminada
Genosa, the mother of Ben, identified the dead body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
assigned at the police station at Isabel, Leyte, received a report regarding
the foul smell at the Genosas rented house. Together with SPO1 Millares,
SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the
house and went inside the bedroom where they found the dead body of
Ben lying on his side wrapped with a bedsheet. There was blood at the
nape of Ben who only had his briefs on. SPO3 Acodesin found in one
corner at the side of an aparador a metal pipe about two (2) meters from
where Ben was, leaning against a wall. The metal pipe measured three (3)
feet and six (6) inches long with a diameter of one and half (1 1/2) inches.
It had an open end without a stop valve with a red stain at one end. The
bedroom was not in disarray.
About 10:00 that same morning, the cadaver of Ben, because of its
stench, had to be taken outside at the back of the house before the
postmortem examination was conducted by Dr. Cerillo in the presence of
the police. A municipal health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben had been dead for two to
three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information
for parricide later filed against appellant. She concluded that the cause of
Bens death was cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after
work on November 15, 1995, she got worried that her husband who was
not home yet might have gone gambling since it was a payday. With her
cousin Ecel Arao, appellant went to look for Ben at the marketplace and
taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas house. Ecel went home despite
appellants request for her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even
challenging her to a fight. She allegedly ignored him and instead attended
to their children who were doing their homework. Apparently
disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her
from watching television. According to appellant, Ben was about to
attack her so she ran to the bedroom, but he got hold of her hands and
whirled her around. She fell on the side of the bed and screamed for help.
Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben
allegedly flew into a rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and told her You might as well
be killed so nobody would nag me. Appellant testified that she was aware
that there was a gun inside the drawer but since Ben did not have the key
to it, he got a three-inch long blade cutter from his wallet. She however,
smashed the arm of Ben with a pipe, causing him to drop the blade and
his wallet. Appellant then smashed Ben at his nape with the pipe as he

was about to pick up the blade and his wallet. She thereafter ran inside
the bedroom.
Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly distorted the drawer where the gun was
and shot Ben. He did not die on the spot, though, but in the bedroom.
[7]
(Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

1. Marivic and Ben Genosa were allegedly married on November 19,
1983. Prior to her marriage, Marivic had graduated from San Carlos,
Cebu City, obtaining a degree of Bachelor of Science in Business
Administration, and was working, at the time of her husbands death, as a
Secretary to the Port Managers in Ormoc City. The couple had three (3)
children: John Marben, Earl Pierre and Marie Bianca.
2. Marivic and Ben had known each other since elementary school; they
were neighbors in Bilwang; they were classmates; and they were third
degree cousins. Both sets of parents were against their relationship, but
Ben was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.
3. After their marriage, they lived first in the home of Bens parents,
together with Bens brother, Alex, in Isabel, Leyte. In the first year of
marriage, Marivic and Ben lived happily. But apparently, soon thereafter,
the couple would quarrel often and their fights would become violent.
4. Bens brother, Alex, testified for the prosecution that he could not
remember when Ben and Marivic married. He said that when Ben and
Marivic quarreled, generally when Ben would come home drunk, Marivic
would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left
hand was covered with blood. Marivic left the house but after a week, she
returned apparently having asked for Bens forgiveness. In another
incident in May 22, 1994, early morning, Alex and his father apparently
rushed to Bens aid again and saw blood from Bens forehead and Marivic
holding an empty bottle. Ben and Marivic reconciled after Marivic had
apparently again asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that
Ben and Marivic married in 1986 or 1985 more or less here in Fatima,
Ormoc City. She said as the marriage went along, Marivic became
already very demanding. Mrs. Iluminada Genosa said that after the birth
of Marivics two sons, there were three (3) misunderstandings. The first
was when Marivic stabbed Ben with a table knife through his left arm;
the second incident was on November 15, 1994, when Marivic struck
Ben on the forehead using a sharp instrument until the eye was also
affected. It was wounded and also the ear and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already
transferred to the house in Bilwang and she saw that Bens hand was
plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for
medical intervention.
5. Arturo Basobas, a co-worker of Ben, testified that on November 15,
1995 After we collected our salary, we went to the cock-fighting place of
ISCO. They stayed there for three (3) hours, after which they went to
Uniloks and drank beer allegedly only two (2) bottles each. After
drinking they bought barbeque and went to the Genosa residence. Marivic
was not there. He stayed a while talking with Ben, after which he went
across the road to wait for the runner and the usher of the masiao game
because during that time, the hearing on masiao numbers was rampant. I
was waiting for the ushers and runners so that I can place my bet. On his

way home at about 9:00 in the evening, he heard the Genosas arguing.
They were quarreling loudly. Outside their house was one Fredo who is
used by Ben to feed his fighting cocks. Basobas testimony on the root of
the quarrel, conveniently overheard by him was Marivic saying I will
never hesitate to kill you, whilst Ben replied Why kill me when I am
innocent. Basobas thought they were joking.
He did not hear them quarreling while he was across the road from the
Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben
before when he was stricken with a bottle by Marivic Genosa that he
should leave her and that Ben would always take her back after she would
leave him so many times.
Basobas could not remember when Marivic had hit Ben, but it was a long
time that they had been quarreling. He said Ben even had a wound on the
right forehead. He had known the couple for only one (1) year.
6. Marivic testified that after the first year of marriage, Ben became cruel
to her and was a habitual drinker. She said he provoked her, he would
slap her, sometimes he would pin her down on the bed, and sometimes
beat her.
These incidents happened several times and she would often run home to
her parents, but Ben would follow her and seek her out, promising to
change and would ask for her forgiveness. She said after she would be
beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero
and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with
her every time he was drunk, at least three times a week.
7. In her defense, witnesses who were not so closely related to Marivic,
testified as to the abuse and violence she received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the
Genosas, testified that on November 15, 1995, he overheard a quarrel
between Ben and Marivic. Marivic was shouting for help and through the
open jalousies, he saw the spouses grappling with each other. Ben had
Marivic in a choke hold. He did not do anything, but had come
voluntarily to testify. (Please note this was the same night as that testified
to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the
night of November 15, 1995. He peeped through the window of his hut
which is located beside the Genosa house and saw the spouses grappling
with each other then Ben Genosa was holding with his both hands the
neck of the accused, Marivic Genosa. He said after a while, Marivic was
able to extricate he[r]self and enter the room of the children. After that, he
went back to work as he was to go fishing that evening. He returned at
8:00 the next morning. (Again, please note that this was the same night
as that testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while
they were living in Isabel, Leyte. His house was located about fifty (50)
meters from theirs. Marivic is his niece and he knew them to be living
together for 13 or 14 years. He said the couple was always quarreling.
Marivic confided in him that Ben would pawn items and then would use
the money to gamble. One time, he went to their house and they were
quarreling. Ben was so angry, but would be pacified if somebody would
come. He testified that while Ben was alive he used to gamble and when
he became drunk, he would go to our house and he will say, Teody
because that was what he used to call me, mokimas ta, which means lets
go and look for a whore. Mr. Sarabia further testified that Ben would box
his wife and I would see bruises and one time she ran to me, I noticed a
wound (the witness pointed to his right breast) as according to her a knife
was stricken to her. Mr. Sarabia also said that once he saw Ben had been
injured too. He said he voluntarily testified only that morning.

7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house because she might be battered by her husband. When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said
that her husband was already there and was drunk. Miss Arano knew he
was drunk because of his staggering walking and I can also detect his
face. Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo
Basobas) Miss Arano testified that this was not the first time Marivic had
asked her to sleep in the house as Marivic would be afraid every time her
husband would come home drunk. At one time when she did sleep over,
she was awakened at 10:00 in the evening when Ben arrived because the
couple were very noisy in the sala and I had heard something was broken
like a vase. She said Marivic ran into her room and they locked the door.
When Ben couldnt get in he got a chair and a knife and showed us the
knife through the window grill and he scared us. She said that Marivic
shouted for help, but no one came. On cross-examination, she said that
when she left Marivics house on November 15, 1995, the couple were
still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees at PHILPHOS, Isabel, Leyte. Marivic was his patient many
times and had also received treatment from other doctors. Dr. Caing
testified that from July 6, 1989 until November 9, 1995, there were six
(6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing and considered him
an expert witness.
xxxxxxxxx
Dr. Caings clinical history of the tension headache and hypertention of
Marivic on twenty-three (23) separate occasions was marked at Exhibits
2 and 2-B. The OPD Chart of Marivic at the Philphos Clinic which
reflected all the consultations made by Marivic and the six (6) incidents
of physical injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he
could not say whether the injuries were directly related to the crime
committed. He said it is only a psychiatrist who is qualified to examine
the psychological make-up of the patient, whether she is capable of
committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas
resided, testified that about two (2) months before Ben died, Marivic
went to his office past 8:00 in the evening. She sought his help to settle or
confront the Genosa couple who were experiencing family troubles. He
told Marivic to return in the morning, but he did not hear from her again
and assumed that they might have settled with each other or they might
have forgiven with each other.
xxxxxxxxx
Marivic said she did not provoke her husband when she got home that
night it was her husband who began the provocation. Marivic said she
was frightened that her husband would hurt her and she wanted to make
sure she would deliver her baby safely. In fact, Marivic had to be
admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on
December 1, 1995.
Marivic testified that during her marriage she had tried to leave her
husband at least five (5) times, but that Ben would always follow her and
they would reconcile. Marivic said that the reason why Ben was violent
and abusive towards her that night was because he was crazy about his
recent girlfriend, Lulu x x x Rubillos.

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

15. Without the knowledge of counsel, Marivic Genosa wrote a letter

dated 20 January 2000, to the Chief Justice, coursing the same through
Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial
Records Office, wherein she submitted her Brief without counsels to the
Court.

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

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

9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa
residence. This fact was testified to by all the prosecution witnesses and
some defense witnesses during the trial.
10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health
Officer of Isabel, Leyte at the time of the incident, and among her
responsibilities as such was to take charge of all medico-legal cases, such
as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo
is not a forensic pathologist. She merely took the medical board exams
and passed in 1986. She was called by the police to go to the Genosa
residence and when she got there, she saw some police officer and
neighbor around. She saw Ben Genosa, covered by a blanket, lying in a
semi-prone position with his back to the door. He was wearing only a
brief.

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

2000.

Attached to the URGENT OMNIBUS MOTION was a letter of Dr.

Raquel Fortun, then the only qualified forensic pathologist in the country,
who opined that the description of the death wound (as culled from the
post-mortem findings, Exhibit A) is more akin to a gunshot wound than a
beating with a lead pipe.
17. In a RESOLUTION dated 29 September 2000, the Honorable Court
partly granted Marivics URGENT OMNIBUS MOTION and remanded
the case to the trial court for the reception of expert psychological and/or
psychiatric opinion on the battered woman syndrome plea, within ninety
(90) days from notice, and, thereafter to forthwith report to this Court the
proceedings taken, together with the copies of the TSN and relevant
documentary evidence, if any, submitted.

xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury
involving the skeletal area of the head which she described as a fracture.
And that based on her examination, Ben had been dead 2 or 3 days. Dra.
Cerillo did not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11. The Information, dated November 14, 1996, filed against Marivic
Genosa charged her with the crime of PARRICIDE committed with intent
to kill, with treachery and evidence premeditation, x x x wilfully,
unlawfully and feloniously attack, assault, hit and wound x x x her
legitimate husband, with the use of a hard deadly weapon x x x which
caused his death.
12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997,
17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December
1997, 22 May 1998, and 5 and 6 August 1998.
13. On 23 September 1998, or only fifty (50) days from the day of the
last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTCBranch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty
beyond reasonable doubt of the crime of parricide, and further found
treachery as an aggravating circumstance, thus sentencing her to the
ultimate penalty of DEATH.
14. The case was elevated to this Honorable Court upon automatic
review and, under date of 24 January 2000, Marivics trial lawyer, Atty.
Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel,
attaching thereto, as a precautionary measure, two (2) drafts of Appellants
Briefs he had prepared for Marivic which, for reasons of her own, were
not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and
permitted the entry of appearance of undersigned counsel.

18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified

before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she
had interviewed Marivic Genosa. Dra. Dayan informed the Court that
interviews were done at the Penal Institution in 1999, but that the clinical
interviews and psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty
(20) years with her own private clinic and connected presently to the De
La Salle University as a professor. Before this, she was the Head of the
Psychology Department of the Assumption College; a member of the
faculty of Psychology at the Ateneo de Manila University and St. Josephs
College; and was the counseling psychologist of the National Defense
College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from
the Ateneo, and a PhD from the U.P. She was the past president of the
Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the
International Council of Psychologists from about 68 countries; a
member of the Forensic Psychology Association; and a member of the
ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic
and psychological profile of families involved in domestic violence and
nullity cases. She was with the Davide Commission doing research about
Military Psychology. She has written a book entitled Energy Global
Psychology (together with Drs. Allan Tan and Allan Bernardo). The
Genosa case is the first time she has testified as an expert on battered
women as this is the first case of that nature.
Dra. Dayan testified that for the research she conducted, on the sociodemographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that there are lots of variables that cause all
of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.

Dra. Dayan described domestic violence to comprise of a lot of incidents

of psychological abuse, verbal abuse, and emotional abuse to physical
abuse and also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman usually has a
very low opinion of herself. She has a self-defeating and self-sacrificing
characteristics. x x x they usually think very lowly of themselves and so
when the violence would happen, they usually think that they provoke it,
that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them. Dra.
Dayan said that usually a battered x x x comes from a dysfunctional
family or from broken homes.
Dra. Dayan said that the batterer, just like the battered woman, also has a
very low opinion of himself. But then emerges to have superiority
complex and it comes out as being very arrogant, very hostile, very
aggressive and very angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like gambling,
drinking and drugs. And they become violent. The batterer also usually
comes from a dysfunctional family which over-pampers them and makes
them feel entitled to do anything. Also, they see often how their parents
abused each other so there is a lot of modeling of aggression in the
family.
Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she
provoked the violence, the cycle itself which makes her hope her husband
will change, the belief in her obligations to keep the family intact at all
costs for the sake of the children.
xxxxxxxxx
Dra. Dayan said that abused wives react differently to the violence: some
leave the house, or lock themselves in another room, or sometimes try to
fight back triggering physical violence on both of them. She said that in a
normal marital relationship, abuses also happen, but these are not
consistent, not chronic, are not happening day in [and] day out. In an
abnormal marital relationship, the abuse occurs day in and day out, is
long lasting and even would cause hospitalization on the victim and even
death on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because inspite of her feeling of self-confidence which we can
see at times there are really feeling (sic) of loss, such feelings of
humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she
had experienced in the past.
xxxxxxxxx
Dra. Dayan said Marivic thought of herself as a loving wife and did not
even consider filing for nullity or legal separation inspite of the abuses. It
was at the time of the tragedy that Marivic then thought of herself as a
victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has
since passed away, appeared and testified before RTC-Branch 35, Ormoc
City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a
Fellow of the Philippine Board of Psychiatry and a Fellow of the

Philippine Psychiatry Association. He was in the practice of psychiatry

for thirty-eight (38) years. Prior to being in private practice, he was
connected with the Veterans Memorial Medical Centre where he gained
his training on psychiatry and neurology. After that, he was called to
active duty in the Armed Forces of the Philippines, assigned to the V.
Luna Medical Center for twenty six (26) years. Prior to his retirement
from government service, he obtained the rank of Brigadier General. He
obtained his medical degree from the University of Santo Tomas. He was
also a member of the World Association of Military Surgeons; the
Quezon City Medical Society; the Cagayan Medical Society; and the
Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954 1978 which was
presented twice in international congresses. He also authored The Mental
Health of the Armed Forces of the Philippines 2000, which was likewise
published internationally and locally. He had a medical textbook
published on the use of Prasepam on a Parke-Davis grant; was the first to
use Enanthate (siquiline), on an E.R. Squibb grant; and he published the
use of the drug Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder
of the mind and neurology deals with the ailment of the brain and spinal
cord enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist
in psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr.
Pajarillo had already encountered a suit involving violent family
relations, and testified in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he has seen probably ten
to twenty thousand cases. In those days, the primordial intention of
therapy was reconciliation. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office in
Quezon City under Atty. Nenita Deproza.
As such consultant, he had seen around forty (40) cases of severe
domestic violence, where there is physical abuse: such as slapping,
pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The
affliction of Post-Traumatic Stress Disorder depends on the vulnerability
of the victim. Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the
psychological stamina and physiologic constitutional stamina of the
victim is stronger, it will take more repetitive trauma to precipitate the
post-traumatic stress disorder and this x x x is very dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the
anxiety neurosis or neurologic anxcietism. It is produced by
overwhelming brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives the
beating or trauma as if it were real, although she is not actually being
beaten at that time. She thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic, her
emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her
self-world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an
individuals illness, such as the deprivation of the continuous care and
love of the parents. As to the batterer, he normally internalizes what is
around him within the environment. And it becomes his own personality.
He is very competitive; he is aiming high all the time; he is so macho; he

shows his strong faade but in it there are doubts in himself and prone to
act without thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the
precipator (sic) or the one who administered the battering, that reexperiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering post traumatic stress disorder try
to defend themselves, and primarily with knives. Usually pointed
weapons or any weapon that is available in the immediate surrounding or
in a hospital x x x because that abound in the household. He said a victim
resorts to weapons when she has reached the lowest rock bottom of her
life and there is no other recourse left on her but to act decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an
interview he conducted for two (2) hours and seventeen (17) minutes. He
used the psychological evaluation and social case studies as a help in
forming his diagnosis. He came out with a Psychiatric Report, dated 22
January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said that at
the time she killed her husband Marivicc mental condition was that she
was re-experiencing the trauma. He said that we are trying to explain
scientifically that the re-experiencing of the trauma is not controlled by
Marivic. It will just come in flashes and probably at that point in time that
things happened when the re-experiencing of the trauma flashed in her
mind. At the time he interviewed Marivic she was more subdued, she was
not super alert anymore x x x she is mentally stress (sic) because of the
predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the private
or the public prosecutor. Thus, in accord with the Resolution of this
Honorable Court, the records of the partially re-opened trial a quowere
elevated.[9]

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the

RTC gave credence to the prosecution evidence that appellant had
killed the deceased while he was in bed sleeping. Further, the trial
court appreciated the generic aggravating circumstance of
treachery, because Ben Genosa was supposedly defenseless
when he was killed -- lying in bed asleep when Marivic smashed
him with a pipe at the back of his head.
The capital penalty having been imposed, the case was
elevated to this Court for automatic review.

Genosa and the reexamination of the cause of his death; (2) the
examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had
killed her spouse; and (3) the inclusion of the said experts reports
in the records of the case for purposes of the automatic review or,
in the alternative, a partial reopening of the case for the lower court
to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution
granting in part appellants Motion, remanding the case to the trial
court for the reception of expert psychological and/or psychiatric
opinion on the battered woman syndrome plea; and requiring the
lower court to report thereafter to this Court the proceedings taken
as well as to submit copies of the TSN and additional evidence, if
any.
Acting on the Courts Resolution, the trial judge authorized
the examination of Marivic by two clinical psychologists, Drs.
Natividad Dayan[10] and Alfredo Pajarillo,[11] supposedly experts on
domestic violence. Their testimonies, along with their documentary
evidence, were then presented to and admitted by the lower court
before finally being submitted to this Court to form part of the
records of the case.[12]

The Issues

Appellant assigns the following alleged errors of the trial

court for this Courts consideration:
1. The trial court gravely erred in promulgating an obviously hasty
decision without reflecting on the evidence adduced as to self-defense.
2. The trial court gravely erred in finding as a fact that Ben and Marivic
Genosa were legally married and that she was therefore liable for
parricide.
3. The trial court gravely erred finding the cause of death to be by
beating with a pipe.
4. The trial court gravely erred in ignoring and disregarding evidence
adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely erred
in concluding that Ben Genosa was a battered husband.
5. The trial court gravely erred in not requiring testimony from the
children of Marivic Genosa.
6. The trial court gravely erred in concluding that Marivics flight to
Manila and her subsequent apologies were indicia of guilt, instead of a
clear attempt to save the life of her unborn child.
7. The trial court gravely erred in concluding that there was an
aggravating circumstance of treachery.
8. The trial court gravely erred in refusing to re-evaluate the traditional
elements in determining the existence of self-defense and defense of
foetus in this case, thereby erroneously convicting Marivic Genosa of the
crime of parricide and condemning her to the ultimate penalty of death. [13]

Supervening Circumstances

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

On February 19, 2000, appellant filed an Urgent Omnibus

Motion praying that this Court allow (1) the exhumation of Ben

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in

nature, if not collateral to the resolution of the principal issues. As
consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high
degree of respect and will not be disturbed on appeal in the
absence of any showing that the trial judge gravely abused his
discretion or overlooked, misunderstood or misapplied material
facts or circumstances of weight and substance that could affect
the outcome of the case.[14]
In appellants first six assigned items, we find no grave abuse
of discretion, reversible error or misappreciation of material facts
that would reverse or modify the trial courts disposition of the case.
In any event, we will now briefly dispose of these alleged errors of
the trial court.
First, we do not agree that the lower court promulgated an
obviously hasty decision without reflecting on the evidence
adduced as to self-defense. We note that in his 17-page Decision,
Judge Fortunito L. Madrona summarized the testimonies of both
the prosecution and the defense witnesses and -- on the basis of
those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse
assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the
trial judges conclusions, we cannot peremptorily conclude, absent
substantial evidence, that he failed to reflect on the evidence
presented.
Neither do we find the appealed Decision to have been made
in an obviously hasty manner. The Information had been filed with
the lower court on November 14, 1996. Thereafter, trial began and
at least 13 hearings were held for over a year. It took the trial judge
about two months from the conclusion of trial to promulgate his
judgment. That he conducted the trial and resolved the case with
dispatch should not be taken against him, much less used to
condemn him for being unduly hasty. If at all, the dispatch with
which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional
obligation.[15]
Second, the lower court did not err in finding as a fact that
Ben Genosa and appellant had been legally married, despite the
non-presentation of their marriage contract. In People v.
Malabago,[16] this Court held:
The key element in parricide is the relationship of the offender with the
victim. In the case of parricide of a spouse, the best proof of the
relationship between the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if
such proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and
the brother of appellants deceased spouse -- attested in court that
Ben had been married to Marivic. [17] The defense raised no
objection to these testimonies. Moreover, during her direct
examination, appellant herself made a judicial admission of her
marriage to Ben.[18] Axiomatic is the rule that a judicial admission is
conclusive upon the party making it, except only when there is a
showing that (1) the admission was made through a palpable
mistake, or (2) no admission was in fact made. [19] Other than
merely attacking the non-presentation of the marriage contract, the
defense offered no proof that the admission made by appellant in
court as to the fact of her marriage to the deceased was made
through a palpable mistake.

Third, under the circumstances of this case, the specific or

direct cause of Bens death -- whether by a gunshot or by beating
with a pipe -- has no legal consequence. As the Court elucidated in
its September 29, 2000 Resolution, [c]onsidering that the appellant
has admitted the fact of killing her husband and the acts of hitting
his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the
victims death. Determining which of these admitted acts caused
the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating
evidence that Ben was a drunk, gambler, womanizer and wife-beater.
Until this case came to us for automatic review, appellant had not
raised the novel defense of battered woman syndrome, for which such
evidence may have been relevant. Her theory of self-defense was
then the crucial issue before the trial court. As will be discussed
shortly, the legal requisites of self-defense under prevailing
jurisprudence ostensibly appear inconsistent with the surrounding
facts that led to the death of the victim. Hence, his personal character,
especially his past behavior, did not constitute vital evidence at the
time.
Fifth, the trial court surely committed no error in not requiring
testimony from appellants children. As correctly elucidated by the
solicitor general, all criminal actions are prosecuted under the
direction and control of the public prosecutor, in whom lies the
discretion to determine which witnesses and evidence are
necessary to present.[20] As the former further points out, neither
the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault
the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of
whether the flight of Marivic to Manila and her subsequent
apologies to her brother-in-law are indicia of her guilt or are
attempts to save the life of her unborn child. Any reversible error
as to the trial courts appreciation of these circumstances has little
bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal
liability, invokes self-defense and/or defense of her unborn child.
When the accused admits killing the victim, it is incumbent upon
her to prove any claimed justifying circumstance by clear and
convincing evidence.[21] Well-settled is the rule that in criminal
cases, self-defense (and similarly, defense of a stranger or third
person) shifts the burden of proof from the prosecution to the
defense.[22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of

the battered woman syndrome. While new in Philippine
jurisprudence, the concept has been recognized in foreign
jurisdictions as a form of self-defense or, at the least, incomplete
self-defense.[23] By appreciating evidence that a victim or defendant
is afflicted with the syndrome, foreign courts convey their
understanding of the justifiably fearful state of mind of a person
who has been cyclically abused and controlled over a period of
time.[24]
A battered woman has been defined as a woman who is
repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he
wants her to do without concern for her rights. Battered women
include wives or women in any form of intimate relationship with
men. Furthermore, in order to be classified as a battered woman,

the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation,
she is defined as a battered woman.[25]
Battered women exhibit common personality traits, such as
low self-esteem, traditional beliefs about the home, the family and
the female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterers
actions; and false hopes that the relationship will improve.[26]
More graphically, the battered woman syndrome is
characterized by the so-called cycle of violence, [27] which has three
phases: (1) the tension-building phase; (2) the acute battering
incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.

phase of remorseful reconciliation that she is most thoroughly

tormented psychologically.
The illusion of absolute interdependency is well-entrenched
in a battered womans psyche. In this phase, she and her batterer
are indeed emotionally dependent on each other -- she for his
nurturant behavior, he for her forgiveness. Underneath this
miserable cycle of tension, violence and forgiveness, each partner
may believe that it is better to die than to be separated. Neither
one may really feel independent, capable of functioning without the
other.[31]
History of Abuse
in the Present Case

[28]

During the tension-building phase, minor battering occurs

-- it could be verbal or slight physical abuse or another form of
hostile behavior. The woman usually tries to pacify the batterer
through a show of kind, nurturing behavior; or by simply staying
out of his way. What actually happens is that she allows herself to
be abused in ways that, to her, are comparatively minor. All she
wants is to prevent the escalation of the violence exhibited by the
batterer. This wish, however, proves to be double-edged, because
her placatory and passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort
to placate him are not usually successful, and the verbal and/or
physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the
persistent stress, the battered woman soon withdraws emotionally.
But the more she becomes emotionally unavailable, the more the
batterer becomes angry, oppressive and abusive. Often, at some
unpredictable point, the violence spirals out of control and leads to
an acute battering incident.[29]
The acute battering incident is said to be characterized by
brutality, destructiveness and, sometimes, death. The battered
woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an
end to the violence. Its nature can be as unpredictable as the time
of its explosion, and so are his reasons for ending it. The battered
woman usually realizes that she cannot reason with him, and that
resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack
and the terrible pain, although she may later clearly remember
every detail. Her apparent passivity in the face of acute violence
may be rationalized thus: the batterer is almost always much
stronger physically, and she knows from her past painful
experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the
acute battering incident ends. During this tranquil period, the
couple experience profound relief. On the one hand, the batterer
may show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for it,
begging for her forgiveness and promising never to beat her again.
On the other hand, the battered woman also tries to convince
herself that the battery will never happen again; that her partner
will change for the better; and that this good, gentle and caring
man is the real person whom she loves.
A battered woman usually believes that she is the sole
anchor of the emotional stability of the batterer. Sensing his
isolation and despair, she feels responsible for his well-being. The
truth, though, is that the chances of his reforming, or seeking or
receiving professional help, are very slim, especially if she remains
with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this

To show the history of violence inflicted upon appellant, the

defense presented several witnesses. She herself described her
heart-rending experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben
Genosa?
A In the first year, I lived with him happily but in the
subsequent year he was cruel to me and a
behavior of habitual drinker.
Q You said that in the subsequent year of your
marriage, your husband was abusive to you and
cruel. In what way was this abusive and cruelty
manifested to you?
A He always provoke me in everything, he always slap
me and sometimes he pinned me down on the
bed and sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and
we separate each other.
Q What was the action of Ben Genosa towards you
leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I
was convinced and after that I go to him and he
said sorry.
Q During those times that you were the recipient of
such cruelty and abusive behavior by your
husband, were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero
and Dra. Cerillo.
xxxxxxxxx
Q You said that you saw a doctor in relation to your
injuries?
A Yes, sir.
Q Who inflicted these injuries?

A Of course my husband.

Q Now, going to your finding no. 3 where you were the

one who attended the patient. What do you mean
by abrasion furuncle left axilla?

Q You mean Ben Genosa?

A Yes, sir.
xxxxxxxxx
[Court] /to the witness
Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the
infliction of injury inflicted on your occurred, after
your marriage, from that time on, how frequent
was the occurrence?
A Everytime he got drunk.

A Abrasion is a skin wound usually when it comes in

contact with something rough substance if force
is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an
inflammation of left breast. So, [pain] meaning
there is tenderness. When your breast is
traumatized, there is tenderness pain.
Q So, these are objective physical injuries. Doctor?
xxxxxxxxx

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

month or in a week?
A Three times a week.
Q Do you mean three times a week he would beat
you?
A Not necessarily that he would beat me but
sometimes he will just quarrel me. [32]
Referring to his Out-Patient Chart [33] on Marivic Genosa at
the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing
testimony on chronic battery in this manner:
Q So, do you have a summary of those six (6) incidents
which are found in the chart of your clinic?

Q Were you able to talk with the patient?

A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the
cause of these injuries. And she told me that it
was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxxxxxxxx

A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?

ATTY. TABUCANON:

A I did.

Q By the way Doctor, were you able to physical

examine the accused sometime in the month of
November, 1995 when this incident happened?

Q Will you please read the physical findings together

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

A As per record, yes.

Q What was the date?
A It was on November 6, 1995.

2. March 10, 1992 - Contusion-Hematoma (L)

lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;

Q So, did you actually see the accused physically?

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

Q On November 6, 1995, will you please tell this

Honorable Court, was the patient pregnant?

4. August 1, 1994 - Pain, mastitis (L) breast, 2 to

trauma. Attending physician: Dr. Caing;

A Yes, sir.

A Yes, sir.

5. April 17, 1995 - Trauma, tenderness (R)

Shoulder. Attending physician: Dr. Canora; and

Q Being a doctor, can you more engage at what stage

of pregnancy was she?

6. June 5, 1995 - Swelling Abrasion (L) leg,

multiple contusion Pregnancy. Attending
physician: Dr. Canora.

A Eight (8) months pregnant.

Q Among the findings, there were two (2) incidents

wherein you were the attending physician, is that
correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.

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

pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was
it an examination about her pregnancy or for
some other findings?
A No, she was admitted for hypertension headache
which complicates her pregnancy.

Q When you said admitted, meaning she was

confined?
A Yes, sir.

seen the couple quarreling several times; and that on some

occasions Marivic would run to him with bruises, confiding that the
injuries were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times she
had been asked by Marivic to sleep at the Genosa house, because
the latter feared that Ben would come home drunk and hurt her.
On one occasion that Ecel did sleep over, she was awakened
about ten oclock at night, because the couple were very noisy and
I heard something was broken like a vase. Then Marivic came
running into Ecels room and locked the door. Ben showed up by
the window grill atop a chair, scaring them with a knife.

Q For how many days?

A One day.
Q Where?
A At PHILPHOS Hospital.
xxxxxxxxx
Q Lets go back to the clinical history of Marivic
Genosa. You said that you were able to examine
her personally on November 6, 1995 and she
was 8 months pregnant.
What is this all about?
A Because she has this problem of tension headache
secondary to hypertension and I think I have a
record here, also the same period from 1989 to
1995, she had a consultation for twenty-three
(23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter
consultation, that the patient had hypertension?
A The patient definitely had hypertension. It was
refractory to our treatment. She does not
response when the medication was given to her,
because tension headache is more or less stress
related and emotional in nature.
Q What did you deduce of tension headache when you
said is emotional in nature?
A From what I deduced as part of our physical
examination of the patient is the family history in
line of giving the root cause of what is causing
this disease. So, from the moment you ask to the
patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood
pressure, Doctor?
A Yes, if it is emotionally related and stressful it can
cause increases in hypertension which is
unfortunately does not response to the
medication.
Q In November 6, 1995, the date of the incident, did
you take the blood pressure of the accused?

On the afternoon of November 15, 1995, Marivic again asked

her help -- this time to find Ben -- but they were unable to. They
returned to the Genosa home, where they found him already
drunk. Again afraid that he might hurt her, Marivic asked her to
sleep at their house. Seeing his state of drunkenness, Ecel
hesitated; and when she heard the couple start arguing, she
decided to leave.
On that same night that culminated in the death of Ben
Genosa, at least three other witnesses saw or heard the couple
quarreling.[37] Marivic relates in detail the following backdrop of the
fateful night when life was snuffed out of him, showing in the
process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in
November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the
office working then after office hours, I boarded
the service bus and went to Bilwang. When I
reached Bilwang, I immediately asked my son,
where was his father, then my second child said,
he was not home yet. I was worried because that
was payday, I was anticipating that he was
gambling. So while waiting for him, my eldest son
arrived from school, I prepared dinner for my
children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel
looking for him.
Q So when he arrived you were in Isabel looking for
him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence
situated this time?
A Bilwang.

A On November 6, 1995 consultation, the blood

pressure was 180/120.

Q Is this your house or you are renting?

Q Is this considered hypertension?

A Renting.

A Yes, sir, severe.

Q What time were you able to come back in your

residence at Bilwang?

Q Considering that she was 8 months pregnant, you

mean this is dangerous level of blood pressure?

A I went back around almost 8:00 oclock.

A It was dangerous to the child or to the fetus. [34]

Q What happened when you arrived in your residence?

Another defense witness, Teodoro Sarabia, a former

neighbor of the Genosas in Isabel, Leyte, testified that he had

A When I arrived home with my cousin Ecel whom I

requested to sleep with me at that time because I

had fears that he was again drunk and I was

worried that he would again beat me so I
requested my cousin to sleep with me, but she
resisted because she had fears that the same
thing will happen again last year.
Q Who was this cousin of yours who you requested to
sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that
evening?
A No, because she expressed fears, she said her
father would not allow her because of Ben.
Q During this period November 15, 1995, were you
pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were carrying at
that time?
A Marie Bianca.
Q What time were you able to meet personally your
husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his
usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual
unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and
yelling at you? What else did he do if any?
A He is nagging at me for following him and he dared
me to quarrel him.
Q What was the cause of his nagging or quarreling at
you if you know?
A He was angry at me because I was following x x x
him, looking for him. I was just worried he might
be overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he
do to you if any?
A He was nagging at me at that time and I just ignore
him because I want to avoid trouble for fear that
he will beat me again. Perhaps he was
disappointed because I just ignore him of his
provocation and he switch off the light and I said
to him, why did you switch off the light when the
children were there. At that time I was also
attending to my children who were doing their
assignments. He was angry with me for not
answering his challenge, so he went to the

kitchen and [got] a bolo and cut the antenna wire

to stop me from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching
T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting
because they were scared and he was already
holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else
happened as Ben was carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he
whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on
the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know
where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what
were their reactions?
A After a couple of hours, he went back again and he
got angry with me for packing his clothes, then he
dragged me again of the bedroom holding my
neck.
Q You said that when Ben came back to your house,
he dragged you? How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her
right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get
something and then he kept on shouting at me
that you might as well be killed so there will be
nobody to nag me.

Q So you said that he dragged you towards the

drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that
drawer?
A He dragged me towards the drawer and he was
about to open the drawer but he could not open it
because he did not have the key then he pulled
his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me
and I smashed his arm and then the wallet and
the blade fell. The one he used to open the
drawer I saw, it was a pipe about that long, and
when he was about to pick-up the wallet and the
blade, I smashed him then I ran to the other
room, and on that very moment everything on my
mind was to pity on myself, then the feeling I had
on that very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to
vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxxxxxxxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?

Q With the same blade?

A Yes, sir, that was the object used when he intimidate
me. [38]
In addition, Dra. Natividad Dayan was called by the RTC to
testify as an expert witness to assist it in understanding the psyche
of a battered person. She had met with Marivic Genosa for five
sessions totaling about seventeen hours. Based on their talks, the
former briefly related the latters ordeal to the court a quo as
follows:
Q: What can you say, that you found Marivic as a
battered wife? Could you in laymans term
describe to this Court what her life was like as
said to you?
A: What I remember happened then was it was more
than ten years, that she was suffering emotional
anguish. There were a lot of instances of abuses,
to emotional abuse, to verbal abuse and to
physical abuse. The husband had a very meager
income, she was the one who was practically the
bread earner of the family. The husband was
involved in a lot of vices, going out with barkadas,
drinking, even womanizing being involved in
cockfight and going home very angry and which
will trigger a lot of physical abuse. She also had
the experience a lot of taunting from the husband
for the reason that the husband even accused
her of infidelity, the husband was saying that the
child she was carrying was not his own. So she
was very angry, she was at the same time very
depressed because she was also aware, almost
like living in purgatory or even hell when it was
happening day in and day out. [39]
In cross-examining Dra. Dayan, the public prosecutor not
merely elicited, but wittingly or unwittingly put forward, additional
supporting evidence as shown below:
Q In your first encounter with the appellant in this case
in 1999, where you talked to her about three
hours, what was the most relevant information did
you gather?
A The most relevant information was the tragedy that
happened. The most important information were
escalating abuses that she had experienced
during her marital life.
Q Before you met her in 1999 for three hours, we
presume that you already knew of the facts of the
case or at least you have substantial knowledge
of the facts of the case?
A I believe I had an idea of the case, but I do not know
whether I can consider them as substantial.

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

xxxxxxxxx

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

Q Did you gather an information from Marivic that on

the side of her husband they were fond of
battering their wives?

Q Is it a flexible blade?

A I also heard that from her?

A Its a cutter.

Q You heard that from her?

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

edges?

A Yes, sir.

A Yes, because he once used it to me.

Q Did you ask for a complete example who are the

relatives of her husband that were fond of
battering their wives?

Q How did he do it?

A He wanted to cut my throat.

A What I remember that there were brothers of her

husband who are also battering their wives.
Q Did she not inform you that there was an instance
that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several
times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was
battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no
problem about being battered, it really happened.
Q Being an expert witness, our jurisprudence is not
complete on saying this matter. I think that is the
first time that we have this in the Philippines,
what is your opinion?
A Sir, my opinion is, she is really a battered wife and in
this kind happened, it was really a self-defense. I
also believe that there had been provocation and
I also believe that she became a disordered
person. She had to suffer anxiety reaction
because of all the battering that happened and so
she became an abnormal person who had lost
shes not during the time and that is why it
happened because of all the physical battering,
emotional battering, all the psychological abuses
that she had experienced from her husband.
Q I do believe that she is a battered wife. Was she
extremely battered?
A Sir, it is an extreme form of battering. Yes.[40]
Parenthetically, the credibility of appellant was demonstrated
as follows:
Q And you also said that you administered [the]
objective personality test, what x x x [is this] all
about?
A The objective personality test is the Millon Clinical
Multiaxial Inventory. The purpose of that test is to
find out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me
the truth, or is she someone who can exaggerate
or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this
objective personality test?
A She was a person who passed the honesty test.
Meaning she is a person that I can trust. That the
data that Im gathering from her are the truth.[41]
The other expert witness presented by the defense, Dr.
Alfredo Pajarillo, testified on his Psychiatric Report, [42] which was
based on his interview and examination of Marivic Genosa. The
Report said that during the first three years of her marriage to Ben,
everything looked good -- the atmosphere was fine, normal and
happy -- until Ben started to be attracted to other girls and was
also enticed in[to] gambling[,] especially cockfighting. x x x. At the
same time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he
showed toward his family, particularly to his wife. The Report
continued: At first, it was verbal and emotional abuses but as time

passed, he became physically abusive. Marivic claimed that the

viciousness of her husband was progressive every time he got
drunk. It was a painful ordeal Marivic had to anticipate whenever
she suspected that her husband went for a drinking [spree]. They
had been married for twelve years[;] and practically more than
eight years, she was battered and maltreated relentlessly and
mercilessly by her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts
were in vain. Further quoting from the Report, [s]he also sought
the advice and help of close relatives and well-meaning friends in
spite of her feeling ashamed of what was happening to her. But
incessant battering became more and more frequent and more
severe. x x x.[43]
From the totality of evidence presented, there is indeed no
doubt in the Courts mind that Appellant Marivic Genosa was a
severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by

the abused woman, her state of mind metamorphoses. In
determining her state of mind, we cannot rely merely on the
judgment of an ordinary, reasonable person who is evaluating the
events immediately surrounding the incident. A Canadian court has
aptly pointed out that expert evidence on the psychological effect
of battering on wives and common law partners are both relevant
and necessary. How can the mental state of the appellant be
appreciated without it? The average member of the public may
ask: Why would a woman put up with this kind of treatment? Why
should she continue to live with such a man? How could she love a
partner who beat her to the point of requiring hospitalization? We
would expect the woman to pack her bags and go. Where is her
self-respect? Why does she not cut loose and make a new life for
herself? Such is the reaction of the average person confronted
with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones
viewpoint should not be drawn from that of an ordinary, reasonable
person. What goes on in the mind of a person who has been
subjected to repeated, severe beatings may not be consistent with
-- nay, comprehensible to -- those who have not been through a
similar experience. Expert opinion is essential to clarify and refute
common myths and misconceptions about battered women. [45]
The theory of BWS formulated by Lenore Walker, as well as
her research on domestic violence, has had a significant impact in
the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with
the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman
immobilizes the latters ability to act decisively in her own interests,
making her feel trapped in the relationship with no means of
escape.[46] In her years of research, Dr. Walker found that the
abuse often escalates at the point of separation and battered
women are in greater danger of dying then.[47]
Corroborating these research findings, Dra. Dayan said that
the battered woman usually has a very low opinion of herself. She
has x x x self-defeating and self-sacrificing characteristics. x x x
[W]hen the violence would happen, they usually think that they
provoke[d] it, that they were the one[s] who precipitated the
violence[; that] they provoke[d] their spouse to be physically,
verbally and even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a
battered woman does not readily leave an abusive partner -poverty, self-blame and guilt arising from the latters belief that she
provoked the violence, that she has an obligation to keep the
family intact at all cost for the sake of their children, and that she is
the only hope for her spouse to change. [49]

The testimony of another expert witness, Dr. Pajarillo, is also

helpful. He had previously testified in suits involving violent family
relations, having evaluated probably ten to twenty thousand violent
family disputes within the Armed Forces of the Philippines, wherein
such cases abounded. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman
Office in Quezon City. As such, he got involved in about forty (40)
cases of severe domestic violence, in which the physical abuse on
the woman would sometimes even lead to her loss of
consciousness.[50]

change; and that believing his words, she would return to their
common abode.

Dr. Pajarillo explained that overwhelming brutality, trauma

could result in posttraumatic stress disorder, a form of anxiety
neurosis or neurologic anxietism.[51] After being repeatedly and
severely abused, battered persons may believe that they are
essentially helpless, lacking power to change their situation. x x x
[A]cute battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense of
the victims ability to muster an active response to try to escape
further trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect.[52]

In sum, the defense failed to elicit from appellant herself her

factual experiences and thoughts that would clearly and fully
demonstrate the essential characteristics of the syndrome.

A study[53] conducted by Martin Seligman, a psychologist at

the University of Pennsylvania, found that even if a person has
control over a situation, but believes that she does not, she will be
more likely to respond to that situation with coping responses
rather than trying to escape. He said that it was the cognitive
aspect -- the individuals thoughts -- that proved all-important. He
referred to this phenomenon as learned helplessness. [T]he truth
or facts of a situation turn out to be less important than the
individuals set of beliefs or perceptions concerning the situation.
Battered women dont attempt to leave the battering situation, even
when it may seem to outsiders that escape is possible, because
they cannot predict their own safety; they believe that nothing they
or anyone else does will alter their terrible circumstances. [54]
Thus, just as the battered woman believes that she is
somehow responsible for the violent behavior of her partner, she
also believes that he is capable of killing her, and that there is no
escape.[55] Battered women feel unsafe, suffer from pervasive
anxiety, and usually fail to leave the relationship. [56] Unless a
shelter is available, she stays with her husband, not only because
she typically lacks a means of self-support, but also because she
fears that if she leaves she would be found and hurt even more. [57]
In the instant case, we meticulously scoured the records for
specific evidence establishing that appellant, due to the repeated
abuse she had suffered from her spouse over a long period of
time, became afflicted with the battered woman syndrome. We,
however, failed to find sufficient evidence that would support such
a conclusion. More specifically, we failed to find ample evidence
that would confirm the presence of the essential characteristics of
BWS.
The defense fell short of proving all three phases of the cycle
of violence supposedly characterizing the relationship of Ben and
Marivic Genosa. No doubt there were acute battering incidents. In
relating to the court a quo how the fatal incident that led to the
death of Ben started, Marivic perfectly described the tensionbuilding phase of the cycle. She was able to explain in adequate
detail the typical characteristics of this stage. However, that single
incident does not prove the existence of the syndrome. In other
words, she failed to prove that in at least another battering episode
in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or
build up prior to acute battering? How did Marivic normally respond
to Bens relatively minor abuses? What means did she employ to
try to prevent the situation from developing into the next (more
violent) stage?
Neither did appellant proffer sufficient evidence in regard to
the third phase of the cycle. She simply mentioned that she would
usually run away to her mothers or fathers house; [58] that Ben
would seek her out, ask for her forgiveness and promise to

Did she ever feel that she provoked the violent incidents
between her and her spouse? Did she believe that she was the
only hope for Ben to reform? And that she was the sole support of
his emotional stability and well-being? Conversely, how dependent
was she on him? Did she feel helpless and trapped in their
relationship? Did both of them regard death as preferable to
separation?

The Court appreciates the ratiocinations given by the expert

witnesses for the defense. Indeed, they were able to explain fully,
albeit merely theoretically and scientifically, how the personality of
the battered woman usually evolved or deteriorated as a result of
repeated and severe beatings inflicted upon her by her partner or
spouse. They corroborated each others testimonies, which were
culled from their numerous studies of hundreds of actual
cases. However, they failed to present in court the factual
experiences and thoughts that appellant had related to them -- if at
all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a
modifying circumstance must be proven in order to be appreciated.
To repeat, the records lack supporting evidence that would
establish all the essentials of the battered woman syndrome as
manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship

does not in itself establish the legal right of the woman to kill her
abusive partner. Evidence must still be considered in the context of
self-defense.[59]
From the expert opinions discussed earlier, the Court
reckons further that crucial to the BWS defense is the state of mind
of the battered woman at the time of the offense[60] -- she must
have actually feared imminent harm from her batterer and honestly
believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one
who resorts to self-defense must face a real threat on ones life;
and the peril sought to be avoided must be imminent and actual,
not merely imaginary.[61] Thus, the Revised Penal Code provides
the following requisites and effect of self-defense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
Unlawful aggression is the most essential element of selfdefense.[63] It presupposes actual, sudden and unexpected attack
-- or an imminent danger thereof -- on the life or safety of a person.
[64]
In the present case, however, according to the testimony of
Marivic herself, there was a sufficient time interval between the
unlawful aggression of Ben and her fatal attack upon him. She had
already been able to withdraw from his violent behavior and

escape to their childrens bedroom. During that time, he apparently

ceased his attack and went to bed. The reality or even the
imminence of the danger he posed had ended altogether. He was
no longer in a position that presented an actual threat on her life or
safety.
Had Ben still been awaiting Marivic when she came out of
their childrens bedroom -- and based on past violent incidents,
there was a great probability that he would still have pursued her
and inflicted graver harm -- then, the imminence of the real threat
upon her life would not have ceased yet. Where the brutalized
person is already suffering from BWS, further evidence of actual
physical assault at the time of the killing is not required. Incidents
of domestic battery usually have a predictable pattern. To require
the battered person to await an obvious, deadly attack before she
can defend her life would amount to sentencing her to murder by
installment.[65] Still, impending danger (based on the conduct of the
victim in previous battering episodes) prior to the defendants use
of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of danger.
[66]
Considering such circumstances and the existence of BWS,
self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous,
does not warrant self-defense.[67] In the absence of such
aggression, there can be no self-defense -- complete or
incomplete -- on the part of the victim.[68] Thus, Marivics killing of
Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not
raise any other modifying circumstances that would alter her
penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook
doctrine that an appeal in a criminal case opens it wholly for review
on any issue, including that which has not been raised by the
parties.[69]
From several psychological tests she had administered to
Marivic, Dra. Dayan, in her Psychological Evaluation Report dated
November 29, 2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated
battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological resistance
and natural self-control. It is very clear that she developed heightened
sensitivity to sight of impending danger her husband posed continuously.
Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on
her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He
explained that the effect of repetitious pain taking, repetitious
battering, [and] repetitious maltreatment as well as the severity
and the prolonged administration of the battering is posttraumatic
stress disorder.[71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious
battering. Second, the severity of the battering.
Third, the prolonged administration of battering or
the prolonged commission of the battering and
the psychological and constitutional stamina of
the victim and another one is the public and
social support available to the victim. If nobody is
interceding, the more she will go to that
disorder....

xxxxxxxxx
Q You referred a while ago to severity. What are the
qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to
trig[g]er this post[t]raumatic stress disorder is
injury to the head, banging of the head like that. It
is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder.
Others are suffocating the victim like holding a
pillow on the face, strangulating the individual,
suffocating the individual, and boxing the
individual. In this situation therefore, the victim is
heightened to painful stimulus, like for example
she is pregnant, she is very susceptible because
the woman will not only protect herself, she is
also to protect the fetus. So the anxiety is
heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr.
Witness, how do you classify?
A We classify the disorder as [acute], or chronic or
delayed or [a]typical.
Q Can you please describe this pre[-]classification you
called delayed or [atypical]?
A The acute is the one that usually require only one
battering and the individual will manifest now a
severe emotional instability, higher irritability
remorse, restlessness, and fear and probably in
most [acute] cases the first thing will be
happened to the individual will be thinking of
suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering,
repetitious maltreatment, any prolonged, it is
longer than six (6) months. The [acute] is only the
first day to six (6) months. After this six (6)
months you become chronic. It is stated in the
book specifically that after six (6) months is
chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal and
then become normal. This is how you get
neurosis from neurotic personality of these cases
of post[t]raumatic stress disorder. [72]
Answering the questions propounded by the trial judge, the
expert witness clarified further:
Q But just the same[,] neurosis especially on battered
woman syndrome x x x affects x x x his or her
mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her
rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence
inflicted upon appellant resulted in cumulative provocation which
broke down her psychological resistance and natural self-control,
psychological paralysis, and difficulty in concentrating or
impairment of memory.
Based on the explanations of the expert witnesses, such
manifestations were analogous to an illness that diminished the
exercise by appellant of her will power without, however, depriving
her of consciousness of her acts. There was, thus, a resulting
diminution of her freedom of action, intelligence or intent. Pursuant

to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal

Code, this circumstance should be taken in her favor and
considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to
have naturally produced passion and obfuscation. It has been held
that this state of mind is present when a crime is committed as a
result of an uncontrollable burst of passion provoked by prior
unjust or improper acts or by a legitimate stimulus so powerful as
to overcome reason.[77] To appreciate this circumstance, the
following requisites should concur: (1) there is an act, both
unlawful and sufficient to produce such a condition of mind; and (2)
this act is not far removed from the commission of the crime by a
considerable length of time, during which the accused might
recover her normal equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was
the unlawful aggressor, preceded his being killed by Marivic. He
had further threatened to kill her while dragging her by the neck
towards a cabinet in which he had kept a gun. It should also be
recalled that she was eight months pregnant at the time. The
attempt on her life was likewise on that of her fetus. [79]His abusive
and violent acts, an aggression which was directed at the lives of
both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to
retreat to a separate room, her emotional and mental state
continued. According to her, she felt her blood pressure rise; she
was filled with feelings of self-pity and of fear that she and her
baby were about to die. In a fit of indignation, she pried open the
cabinet drawer where Ben kept a gun, then she took the weapon
and used it to shoot him.
The confluence of these events brings us to the conclusion
that there was no considerable period of time within which Marivic
could have recovered her normal equanimity. Helpful is Dr.
Pajarillos testimony[80] that with neurotic anxiety -- a psychological
effect on a victim of overwhelming brutality [or] trauma -- the victim
relives the beating or trauma as if it were real, although she is not
actually being beaten at the time. She cannot control reexperiencing the whole thing, the most vicious and the trauma that
she suffered. She thinks of nothing but the suffering. Such reliving
which is beyond the control of a person under similar
circumstances, must have been what Marivic experienced during
the brief time interval and prevented her from recovering her
normal equanimity. Accordingly, she should further be credited with
the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -psychological paralysis as well as passion and obfuscation -- did
not arise from the same set of facts.
On the one hand, the first circumstance arose from the
cyclical nature and the severity of the battery inflicted by the
batterer-spouse upon appellant. That is, the repeated beatings
over a period of time resulted in her psychological paralysis, which
was analogous to an illness diminishing the exercise of her will
power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from
the violent aggression he had inflicted on her prior to the killing.
That the incident occurred when she was eight months pregnant
with their child was deemed by her as an attempt not only on her
life, but likewise on that of their unborn child. Such perception
naturally produced passion and obfuscation on her part.
Second Legal Issue:
Treachery

indubitably as the killing itself; they cannot be deduced from mere

inferences, or conjectures, which have no place in the appreciation
of evidence.[82] Because of the gravity of the resulting offense,
treachery must be proved as conclusively as the killing itself. [83]
Ruling that treachery was present in the instant case, the trial
court imposed the penalty of death upon appellant. It inferred this
qualifying circumstances merely from the fact that the lifeless body
of Ben had been found lying in bed with an open, depressed,
circular fracture located at the back of his head. As to exactly how
and when he had been fatally attacked, however, the prosecution
failed to establish indubitably. Only the following testimony of
appellant leads us to the events surrounding his death:
Q You said that when Ben came back to your house,
he dragged you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her
right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get
something and then he kept on shouting at me
that you might as well be killed so there will be
nobody to nag me
Q So you said that he dragged you towards the
drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that
drawer?
A He dragged me towards the drawer and he was
about to open the drawer but he could not open it
because he did not have the key then he pulled
his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me
and I smashed his arm and then the wallet and
the blade fell. The one he used to open the
drawer I saw, it was a pipe about that long, and
when he was about to pick-up the wallet and the
blade, I smashed him then I ran to the other
room, and on that very moment everything on my
mind was to pity on myself, then the feeling I had
on that very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to
vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).

There is treachery when one commits any of the crimes

against persons by employing means, methods or forms in the
execution thereof without risk to oneself arising from the defense
that the offended party might make.[81] In order to qualify an act as
treacherous, the circumstances invoked must be proven as

xxxxxxxxx

Q You said that he dropped the blade, for the record

will you please describe this blade about 3 inches
long, how does it look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both
edges?
A Yes, because he once used it to me.
Q How did he do it?

Moreover, in order to appreciate alevosia, the method of

assault adopted by the aggressor must have been consciously and
deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by
the party attacked.[86] There is no showing, though, that the present
appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that
the thought of using the gun occurred to her only at about the
same moment when she decided to kill her batterer-spouse. In the
absence of any convincing proof that she consciously and
deliberately employed the method by which she committed the
crime in order to ensure its execution, this Court resolves the
doubt in her favor.[87]

A He wanted to cut my throat.

Q With the same blade?
A Yes, sir, that was the object used when he intimidate
me.
xxxxxxxxx
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it
correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pickup the pipe and I smashed him and I ran to the
other room.
Q What else happened?
A When I was in the other room, I felt the same thing
like what happened before when I was admitted
in PHILPHOS Clinic, I was about to vomit. I know
my blood pressure was raised. I was frightened I
was about to die because of my blood pressure.

Proper Penalty

The penalty for parricide imposed by Article 246 of the

Revised Penal Code is reclusion perpetua to death. Since two
mitigating circumstances and no aggravating circumstance have
been found to have attended the commission of the offense, the
penalty shall be lowered by one (1) degree, pursuant to Article 64
of paragraph 5[88] of the same Code.[89] The penalty ofreclusion
temporal in its medium period is imposable, considering that two
mitigating circumstances are to be taken into account in reducing
the penalty by one degree, and no other modifying circumstances
were shown to have attended the commission of the offense.
[90]
Under the Indeterminate Sentence Law, the minimum of the
penalty shall be within the range of that which is next lower in
degree -- prision mayor -- and the maximum shall be within the
range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we
deem it just and proper to impose the penalty of prision mayor in
its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8
months and 1 day as maximum. Noting that appellant has already
served the minimum period, she may now apply for and be
released from detention on parole.[91]

COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and
smashed him, the witness at the same time
pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been
through with him, I took pity on myself and I felt I
was about to die also because of my blood
pressure and the baby, so I got that gun and I
shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
The above testimony is insufficient to establish the presence
of treachery. There is no showing of the victims position relative to
appellants at the time of the shooting. Besides, equally axiomatic
is the rule that when a killing is preceded by an argument or a
quarrel, treachery cannot be appreciated as a qualifying
circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant.
[85]

Epilogue

Being a novel concept in our jurisprudence, the battered

woman syndrome was neither easy nor simple to analyze and
recognize vis--vis the given set of facts in the present case. The
Court agonized on how to apply the theory as a modern-day
reality. It took great effort beyond the normal manner in which
decisions are made -- on the basis of existing law and
jurisprudence applicable to the proven facts. To give a just and
proper resolution of the case, it endeavored to take a good look at
studies conducted here and abroad in order to understand the
intricacies of the syndrome and the distinct personality of the
chronically abused person. Certainly, the Court has learned much.
And definitely, the solicitor general and appellants counsel, Atty.
Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered
persons, we can only work within the limits of law, jurisprudence
and given facts. We cannot make or invent them. Neither can we
amend the Revised Penal Code. Only Congress, in its wisdom,
may do so.
The Court, however, is not discounting the possibility of selfdefense arising from the battered woman syndrome. We now sum
up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two
battering episodes between the appellant and her intimate
partner. Second, the final acute battering episode preceding the

killing of the batterer must have produced in the battered persons

mind an actual fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have posed
probable -- not necessarily immediate and actual -- grave harm to
the accused, based on the history of violence perpetrated by the
former against the latter. Taken altogether, these circumstances
could satisfy the requisites of self-defense. Under the existing facts
of the present case, however, not all of these elements were duly
established.
WHEREFORE, the conviction of Appellant Marivic Genosa
for parricide is hereby AFFIRMED. However, there being two (2)
mitigating circumstances and no aggravating circumstance
attending her commission of the offense, her penalty
is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion
temporal as maximum.
Inasmuch as appellant has been detained for more than the
minimum penalty hereby imposed upon her, the director of the Bureau
of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is
being held for some other lawful cause. Costs de oficio.
SO ORDERED.

[G.R. Nos. 149430-32. February 23, 2004]

PEOPLE

OF THE PHILIPPINES, appellee,

CATBAGAN, appellant.

vs. CARMELO

DECISION
PANGANIBAN, J.:
There can be no self-defense, whether complete or
incomplete, unless the victim had committed unlawful aggression
against the person who resorted to self-defense.

The Case

Carmelo Catbagan appeals the May 19, 1999 Decision[1] of

the Regional Trial Court (RTC) of Malolos, Bulacan (Branch 21), in
Criminal Case Nos. 1082-M-98, 1083-M-98 and 1099-M-98. In
these cases, he was convicted of homicide, murder and frustrated
murder, respectively.
The decretal portion of the RTC Decision reads as follows:
In sum and considering the foregoing findings, the Court hereby resolves
and so states that the defense has not been able to overcome the moral
certainty established upon the accuseds culpability. Stated otherwise, the
prosecution has successfully discharged its undertaking
herein. Accordingly, this Court finds and so holds that accused Carmelo
Catbagan is GUILTY beyond reasonable doubt of the crimes of Homicide
in Crim. Case No. 1082-M-98, Murder in Crim. Case No. 10[8]3-M-98
and Frustrated Murder in Crim. Case No. 1099-M-98.
In Criminal Case No. 1082-M-98, the Court hereby credits the accused
with the mitigating circumstance of incomplete self-defense pursuant to
Article 13, paragraph 1 of the Revised Penal Code. In which event, what
should be imposable as penalty is the minimum of Reclusion
Temporal. Considering the application of the Indeterminate Sentence
Law, accused Carmelo Catbagan is hereby sentenced to suffer the
indeterminate prison term of ten (10) years and one (1) day of Prision
Mayor maximum to fourteen (14) years of Reclusion Temporal minimum.
In Criminal Case No. 1083-M-98, absent any circumstance that would
aggravate the commission of the crime, the accused is sentenced to suffer
the penalty of Reclusion Perpetua together with the accessory penalties.
In Criminal Case No. 1099-M-98, since the crime committed is Murder in
its frustrated stage, it is the penalty next lower in degree that should be
imposed, which is Reclusion Temporal. However, with the application of
the Indeterminate Sentence Law, accused Carmelo Catbagan is hereby
sentenced to suffer the indeterminate prison term of ten (10) years
of Prision Mayor medium to fifteen (15) years ofReclusion
Temporal medium.
In addition to the foregoing, the accused is also directed to pay the heirs
of deceased Celso Suico the sum of P500,000.00 in loss of earning
capacity, P50,000.00 as indemnity for Suicos death, and the further sum
of P100,000.00 as and for moral damages. With respect to deceased
Danilo Lapidante, the accused is ordered to pay his heirs the
sum P400,000.00 in loss of earning capacity, the sum of P50,000.00 as
indemnity for Lapidantes death, the sum of P100,000.00 as moral
damages, and also the amount of P50,000.00 x x x for actual

damages. Finally, respecting complainant Ernesto Lacaden, the accused is

directed to pay him the sum of P50,000.00 as and for moral damages and
the sum of P6,400.86 as actual damages.
With costs against the accused.[2]
Except for the names of the victims, two (2) similarly worded
criminal Informations[3] in Criminal Case Nos. 1082-M-98[4] and
1083-M-98,[5] both dated July 21, 1998, charged appellant as
follows:
That on or about the 15th day of March, 1998, in the [M]unicipality of San
Jose del Monte, [P]rovince of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a gun, caliber .9MM pistol, and with intent to kill one x x x, did then
and there wilfully, unlawfully and feloniously, with evident premeditation
and treachery, attack, assault and shoot with the said caliber .9MM pistol
said x x x, hitting the latter on the different parts of his body, thereby
inflicting upon him mortal wounds which directly caused the death of the
said x x x.[6]
For the third crime, the Information, [7] also dated July 21,
1998, charged appellant with frustrated murder allegedly
committed in this manner:
That on or about the 15th day of March, 1998, in the [M]unicipality of San
Jose del Monte, [P]rovince of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a caliber .9MM pistol, did then and there wilfully, unlawfully and
feloniously, with intent to kill, evident premeditation and treachery,
attack, assault and shoot with the said caliber .9MM pistol one Ernesto
Lacaden y Tacata, thereby inflicting upon him physical injuries, which
ordinarily would have caused the death of the said Ernesto Lacaden y
Tacata, thus performing all the acts of execution which should have
produced the crime of murder as a consequence, but nevertheless did not
produce it by reason of causes independent of his will, that is, by the
timely and able medical assistance rendered to said Ernesto Lacaden y
Tacata which prevented his death.[8]
Appellant was arraigned on August 26, 1998 in Criminal
Case Nos. 1082-M-98 and 1083-M-98. With the assistance of
counsel de oficio,[9] he pleaded not guilty to both charges.
[10]
Thereafter, he was arraigned in Criminal Case No. 1099-M-98, in
which, with the assistance of his counsel de oficio,[11] he also
pleaded not guilty.[12]
Upon motion of appellant, the three cases were
consolidated. After pretrial, trial on the merits ensued, and the
lower
court
eventually
promulgated
its
assailed
Decision. Counsel[13] for appellant filed the Notice of Appeal [14] on
July 5, 1999, but upon discovering that it contained an error in the
designation of the court to which the case was being appealed, he
filed an amended Notice of Appeal on September 10, 1999.[15]

The Facts
Version of the Prosecution

In its Brief,[16] the Office of the Solicitor General (OSG)

presents the prosecutions version of the facts as follows:
Danilo Lapidante, an employee of the Manila Water Company, held his
birthday party on March 15, 1998, one day in advance of his actual
birthdate. That was intended to accommodate his many relatives and
friends who trooped to his residence that Sunday at Block 5, Lot 28,

Phase C-1 Francisco Homes, Barangay Mulawin, San Jose del Monte,
Bulacan Province. As it was already summertime, and on account of the
big attendance, the party had to be held in a vacant space within the
fenced perimeter, with vehicular and pedestrian steel gates. In front
thereof was a narrow concrete street.
Inasmuch as Lapidante saw to it that drinks like gin and beer and
appetizers were plenty, even before 10:00 A.M., inevitably, the revelers
were already displaying excitement. Some were engaged in singing over
a karaoke, while one Sgt. Celso Suico of the Philippine Air Force and of
the elite Presidential Security Group, who lived in another phase of the
subdivision, demonstrated his exuberance by firing shots into the air with
his Armalite rifle. Since the gunshots continued to ring out, and election
gun ban was then in effect, the attention of Carmelo Catbagan, an
investigator of the Criminal Investigation Service, Philippine National
Police, whose residential unit was just one block away south of the
Lapidantes, was called.

Police investigators went to the scene and there recovered some pieces of
evidence.
The .45 caliber Springfield pistol of Suico was retrieved in a place at the
back of the Lapidante residence. With a bullet vertically standing on the
chamber, it had misfired due to some vital defects. There were six (6) live
ammunitions of the .45 caliber pistol excluding the vertical one. No
empty shell of .45 caliber pistol were recovered. There were nine (9)
empty shells of the .9 mm pistol; and a deformed slug of the same
weapon, aside from many shells from the Armalite rifle.
Upon examination of Sgt. Suicos body, Dr. Dominic Aguda of the
National Bureau of Investigation found four (4) gunshot wounds, to wit:
No. 1 - left upper chest;
No. 2 - left chest above left nipple;

When, by 5:00 p.m., Catbagan went there to verify from the group who
among them had been firing the rifle, no one of those within the fenced
area gave a positive answer. The embar[r]assed Catbagan left the
place. Coincidentally, some minutes before that, Lapidante, driving his
owner-type jeep, conducted home some of his guests. Accompanying him
were Sgt. Suico and his companion Ernesto Jun Lacaden.Even as they
returned the Armalite to the PSGs residence at Phase M, Suico substituted
it with a government-issued Springfield .45 caliber pistol which he tucked
to his waistband as they went back to rejoin the party.
By about 5:30 p.m., while the celebrants were being entertained with a
song by the eldest daughter of Lapidante, Catbagan with [Zosimo] (Jess)
Fababier returned to Lapidantes place on board a motorized tricycle. This
time, after he alighted on the street in front, when Catbagan inquired
about the gunshots of the Armalite, Sgt. Suico answered that Its nothing;
its just a part of the celebration. Suddenly, a piece of stone hurled from
the direction of the celebrants house landed on a tree and thence to the
body of Catbagan. Irritated and reacting thereto, the CIS agent directed
Fababier to look for the one who threw the stone.
At that moment, Sgt. Suico got out of the pedestrian steel gate and
extended his hand towards Catbagan in the street as he introduced himself
as being a PSG. Completely ignoring the gesture of the latter, Catbagan
drew out his .9mm automatic pistol and with both hands holding the gun,
fired successively at Suico, who when hit stretched out his hand,
shouting Huwag (Dont) Pare. Despite this Catbagan fired more shots at
the victim who fell on the pavement, bloodied and dying from mortal
wounds.
As the shots were fired, Jun Lacaden who was taking a nap on the front
seat of the owner-type jeep parked on the other side of the street, in front
of the residential unit of Aida Villanueva, was abruptly awakened. Not
fully aware of what happened, he disembarked therefrom without
knowing what to do. Unexpectedly, two shots were also fired at him by
Catbagan. One bullet found its mark in the body of Jun Lacaden who then
fell down.
Almost simultaneously, Catbagan directed his attention to Lapidante who
was then inside their compound in the vicinity of their steel main
gate. Upon the prompting of his wife Rosita for him to run and evade the
assailant, the celebrant turned towards the main door of their house. But
before he could reach the safety of their abode, two rapid shots were
aimed by Catbagan at him, one of which hit him in the upper part of his
body.
After causing the mayhem, Catbagan then proceeded eastward to the
main road. Thereupon, Charles Lacaden picked up the weapon of the
PSG man and threw it to a vacant lot somewhere at the rear of the house
and lot of Lapidante. As a consequence of the injuries they sustained, Sgt.
Suico died on the spot; Lapidante later died in the hospital in Lagro,
Quezon City; whereas Jun Lacaden had to be treated and confined at the
East Avenue Medical Center, Quezon City.

No. 3 - left anterior portion of forearm;

No. 4 - right palm (inside)
Dr. Aguda concluded that the victim died from massive bleeding of the
four injuries. The most fatal was wound No. 1 as it perforated the aorta
and the right upper lung. Death therefrom was instantaneous. He opined
that this wound was inflicted in a level from a higher plane, whereas the
others may have been inflicted on some level with the victim. Suico died
of massive bleeding.
As regards the victim Lapidante, as shown by Dr. Agudas schematic
sketch and the post-mortem autopsy report, the entry wound was at the
left side of the back, exiting at the right anterior portion of the chest in a
forward and upward trajection. The bullet hit the upper left tube of the
left lung and then penetrated the upper lobe of the right lung. The victim
also died from massive bleeding.
From the shapes and measurement of the wound of entry, Dr. Aguda
stated that the (weapon) firearm used in the shooting of the two victims
were probably the same, they being approximately 1 x 1 cm.
With respect to Jun Lacaden, Dr. Cristina Atienza of the East Avenue
Medical Center found that he was hit at the right side of the back, the
scapular and the bullet exited at the uppermost part of the left arm, near
the armpit. She said that as the slug entered the thoracic cavity, they had
to insert a tube to evacuate blood. Said victim was confined for more than
one week, and it would have taken another 30 days for the victim to
resume his usual activity.[17]

Version of the Defense

Appellant argues that he was justified in shooting the victims,

as he was merely defending himself and fulfilling his sworn
duties. On the basis of these justifying circumstances, he insists on
his acquittal. In his Brief,[18] he summarizes his version of the facts
as follows:
The defense had a different version of the circumstances that led to the
shooting incident on March 15, 1998. On said date, between 9:00 and
11:00 in the morning, ERNESTO PURBOS heard successive gunshots
coming from the residence of Danilo Lapidante at San Francisco Homes,
San Jose del Monte, Bulacan. The gunshots numbered about ten (10) in
the span of two (2) hours. Alarmed and scared, as there were children
then playing in the vicinity, he went to the house of Carmelo Catbagan to
report the gun firing incident. He pleaded Catbagan, known in their place
as a policeman, to maintain the peace in the neighborhood. He was

worried that the children might be hit accidentally by the

revelry. Catbagan retorted not to mind the revelers, as they were just
drinking. He then went home.
At around 4:00 in the afternoon, he again heard successive gunshots
coming from the house of the Lapidantes. The gunshots were louder and
rapid in succession. Fearing for the safety of the children playing in the
vicinity, he again proceeded to the house of Catbagan, pleading the latter
to pacify or maintain order in the place. Catbagan replied that he would
call the attention of the Barangay Captain and advised him to go home.
ZOSIMO PAVABIER corroborated the testimony of witness Ernesto
Purbos. On March 15, 1998, between the hours of 9:00 and past 11:00 in
the morning, he heard several gunshots coming from the house of Danilo
Lapidante. The reverberating gunshots were again heard at around 4:00 in
the afternoon, prompting him to go out to the street to observe the
commotion. In the street, he saw children playing as well as a group of
his neighbors talking about the gunshots coming from the house of the
Lapidantes. The neighbors were complaining that the children might be
accidentally hit and that there was a gunban. On his way home, he met
Carmelo Catbagan, who asked if he would accompany him to the
barangay captain to report the incident. Catbagan was then limping and
there was something bulging in his waist. They proceeded to the house of
the barangay captain onboard a tricycle. Upon reaching the place, the
wife of the barangay captain informed them that her husband left for the
police precinct and instructed them to proceed to the house of the
Lapidantes as the barangay captain might be already there. Catbagan then
told him to proceed to the barangay hall to call upon the tanods, but the
place was closed. They then proceeded to the house of Danilo Lapidante.
At the residence of the Lapidantes, they found several persons engaged in
a drinking session. Catbagan then introduced himself as a CIS and
inquired who fired the firearm. The merrymakers ignored Catbagan and
continued their merrymaking. Seconds later, somebody threw a fist sized
stone at Catbagan, hitting the lat[t]er on the shoulder. The stone came
from the side of the kitchen of the Lapidantes.Catbagan directed him to
find out who threw the stone. After he had taken five steps, he saw
Danilo Lapidante emerge from the side of the kitchen, rushing towards
Catbagan. About the same moment, Jun Lacaden and Celso Suico were
likewise proceeding towards the gate. Lacaden then went on the side of
Catbagan, who was stepping backward, while Suico, uttering that he is a
PSG, drew his .45 caliber pistol and cocked it. Instinctively, Catbagan
drew his gun and fired at Suico, hitting the latter with three
shots. Lacaden, who was attacking Catbagan from the side, was shot by
the latter once. Seeing what happened to his companion, Danilo
Lapidante hurriedly retreated towards his house, shouting repeatedly
akina iyong mahaba. Catbagan made one shot upward, yelling at
Lapidante, pare, pare, huwag kang tatakbo. As Lapidante continued
proceeding towards his house, Catbagan fired at him once. Taken aback
by the sudden turn of events, he retreated towards his house and just
peeped over the window. He then saw Catbagan rushing towards his own
house, gather his children and leave. At around 6:30 in the evening, he
was picked-up by police authorities for investigation.
JONATHAN BELLOSILLO, the Barangay captain of Barangay
Mulawin, Francisco Homes San Jose del Monte, Bulacan, confirmed that
a complaint/report was made by Carmelo Catbagan at his home office,
anent a gunfiring incident, at around 4:30 in the afternoon of March 15,
1998. The Barangay Captain likewise testified on the several complaints
he received against Danilo Lapidante, for conducting gambling and Jun
Lacaden, for mauling incidents.
The accused, CARMELO CATBAGAN, testifying on his behalf,
averred that he is a regular agent of the Criminal Investigation and
Detection Group (CIDG), with a rank of Crime Investigator I. As a
regular agent of the CIDG, he was issued two (2) official firearms, a
9MM Jericho pistol and a.38 caliber revolver. His principal duties were to
protect the innocent against deception, [and] against violence, arrest
felons, and in general, to respond to all calls for public assistance.

On March 15, 1998, he was at his residence at Block 5, Lot 11, Phase 6-1,
Francisco Homes, San Jose del Monte, Bulacan, tending to his five (5)
children. His wife was then in the province. At around 9:00 to 11:00 in
the morning, he heard several burst[s] of gunfire coming from the
direction of the rear portion of his house. A neighbor, Ernesto Purbos,
then came to his house complaining about the gunshots.Manong Erning
wailed that the gunshots might accidentally hit the children playing in the
street. Having told from where the gunshots came from, he pacified the
complainant telling him that the revelers were just engaged in
merrymaking and that they will just stop later on. Ernesto Purbos then
went home.
The peace in the vicinity was again disturbed at around 4:00 in the
afternoon of the same day. Loud burst of rapid gunshots, to the tune of
the song Lets Go, were again heard coming from the same direction as
that in the morning. From his experience, he knew that the firearm used
was an armalite (M-16). Two of their neighbors came to him complaining
about the gunshots. He advised them to go to the barangay captain and he
will just follow after finishing his chores. He then heard a woman scream,
complaining that the shots were being directed towards the firewall of the
house neighboring that of the Lapidantes.Ernesto Purbos likewise
returned, echoing his previous complaint about the gunshots. He assured
Purbos that he would act on his complaint, but first he would go to the
barangay captain to report the incident.He then got his service firearm
and went out. On his way to the house of the barangay captain, he met
Zosimo Pavabier, who likewise complained of the gunshots. He asked
Pavabier to accompany him and the two of them proceeded to the house
of the said official. When they reached their destination, however, the
wife of the barangay official told them that her husband has gone to the
Police on the Block Headquarter. Learning the purpose of their visit, the
wife told them to just proceed to the vicinity in question as her husband
might already be there. On their way, they went by the barangay hall to
fetch some tanods, but the place was closed. They then proceeded to the
house of the Lapidantes.
Upon reaching the house of the Lapidantes, Catbagan and Pavabier
noticed that the Barangay Captain was not yet there. They likewise
noticed that there were several persons having a drinking spree inside the
compound. Catbagan introduced himself as a CIS and inquired upon the
group who fired the gunshots. The merrymakers, however, ignored him
and laughed. As he was telling the group that: Dont you know there are
many residents here and you might hit somebody, a fist sized stone was
thrown which hit his left shoulder. The stone came from the rear of the
house of the Lapidantes. Alerted by the hostility of the crowd, he
instructed Pavabier to look for the one who threw the stone at him. As
Pavabier was about to comply with his instructions, Danilo Lapidante
emerged from the side of his house and rushed to where he was standing,
uttering: ano ba ang problema pare? About the same time, two more
persons suddenly came out of the compound of the Lapidantes, rushing
and encircling him. One of the aggressors, Ernesto Lacaden, was toting
an ice-pick on one hand and positioned himself at his side. The other,
whose identity he did not kn[o]w at that moment, went straight to him,
drew a gun from his waist and cocked it, after which, aimed the pistol at
him, uttering Pare PSG ito, in an arrogant voice. Threatened of his safety,
he drew his own gun while stepping backward and fired at the aggressors.
Simultaneously, Danilo Lapidante retreated towards his house, shouting:
Akina yung mahaba, yung mahaba, while Jun Lacaden attacked him
coming from the side, with the ice-pick. Catbagan side stepped and fired
a shot at Lacaden before turning his attention at Lapidante. He fired a
warning shot, uttering: Tumigil ka, huwag kang kikilos. Lapidante,
however, did not heed Catbagans warning and continued rushing towards
his house, as if to get something. Fearing that Lapidante might be able to
get hold of the long gun, Catbagan fired a shot at him once.
Concerned for his safety and that of his family, Catbagan brought his five
children to the house of his sister in Malabon, Metro Manila. He then
surrendered himself and his firearms to his superior officer at the CIDG
Office.

ATTY. VIRGILIO PABLICO Y TABALBA, Chief of the CIDG Legal

Office and immediate superior of the accused, testified on the latters
official duties and functions as well as his voluntary surrender on March
16, 1998[.] Accordingly, accused Carmelo Catbagan was appointed as a
regular and non-organic member of the CIDG, with a rank of Criminal
Investigator I. His official functions include the authority to conduct
investigation of cases involving violations of the Revised Penal Code and
other special laws, to effect arrest and to conduct search in accordance
with existing rules, to take sworn statements and to appear as a witness in
appropriate forum. As a regular agent, Catbagan was issued and
authorized to carry a firearm. The issued firearm to Catbagan was a 9MM
Jericho pistol, with Serial No. 000748.Catbagan, as a CIDG agent, was
likewise deputized by the COMELEC and granted an exemption to carry
firearm during election period.
On March 15, 1998, at around 8:00 to 10:00 in the evening, he received a
telephone call from Agent Catbagan, informing him that he was involved
in a shooting incident, wherein he was able to shoot three (3)
persons. Two (2) of the protagonists allegedly died and the other was
wounded and taken to a hospital. Catbagan intimated that he wanted to be
put under his custody as soon as a he made arrangements for his childrens
security. On March 16, 1998, at around 1:00 in the afternoon, Catbagan
presented himself to Police Superintendent Edgardo Acua together with
his service firearm.[19]

Ruling of the Trial Court

The RTC held that appellant did not know who had fired the
gunshots at Lapidantes party; thus, he could not claim that he had
gone there to perform his duty to make an arrest. Consequently, it
brushed aside his defense of fulfillment of duty, or lawful exercise
of a right or office. It did not give credence, either, to his invocation
of self-defense.
With respect to Celso Suico in Criminal Case No. 1082-M98, the trial court ruled that there was unlawful aggression on the
part of the victim, but that the means employed to repel such
aggression was unreasonable. It entertain[ed] serious doubts on
the right of the [appellant] to continue firing at Suico after the latter
was dispossessed of his gun due to the injuries received from the
gunfire of the assailant.[20] It credited appellant with incomplete selfdefense, because he supposedly lost the right to kill or even
wound the victim after the unlawful aggression had ceased.
The RTC refused to qualify the crime against Suico. Ruling
that there had been no evident premeditation and treachery in the
killing, it found appellant guilty only of the crime of homicide.
As regards the victim Danilo Lapidante in Criminal Case No.
1083-M-98, he was undisputedly unarmed, as he was inside his
own premises -- within his fenced front yard -- at the time of the
incident. Thus, the lower court found no act of aggression on his
part. It held that the belief on the part of [appellant] that the victim
was about to retrieve a rifle from the doorside of the house, existed
only in his imagination.[21] Consequently, there was no moment for
[appellant] to validly state that his own life [was] in imminent
danger from Lapidante.[22]
Aside from rejecting self-defense, the trial court also held
that treachery had attended the killing, because the unarmed
victim had unexpectedly been shot while his back was towards
appellant.
Finally, in Criminal Case No. 1099-M-98, the court a
quo found that Ernesto Lacaden had been shot in the back,
apparently while in the act of fleeing from the fury of gunfire from
[appellant].[23] It did not accept the allegation that the victim had
been carrying an ice pick at the time of the shooting. Nonetheless,
it explained that even if he indeed had one at the time, he could
not have done any real harm to appellant who was just too far from
him. Absent any clear and convincing proof that Lacaden

committed unlawful aggression, self-defense -- whether complete

or incomplete -- could not be appreciated.
The RTC found the crime against Lacaden to be qualified by
treachery, as he had not posed any imminent danger to
appellant. It ruled that treachery was proven by the following
circumstances: (1) the fact that the victim was running away from
the scene of the crime; and (2) appellants use of his .9 mm
automatic pistol, a lethal weapon used to wound the formers vital
organs. Since death did not ensue by reason of causes
independent of the will of appellant, the court a quo found him
guilty of frustrated murder.
Hence, this appeal.[24]

The Issues

Before us, appellant assigns to the trial court the following

alleged errors for our consideration:
I
The court a quo gravely erred in finding accused-appellant Carmelo
Catbagan guilty beyond reasonable doubt of the offenses charged in
Criminal Case Nos. 1082-M-98, 1083-M-98 and 1099-M-98,
respectively.
II
The court a quo gravely erred in failing to rule that accused-appellant
Carmelo Catbagan acted in the fulfillment of his sworn duties and/or
acted in self-defense in the commission of the offenses charged.
III
Granting arguendo that the accused-appellants guilt was proven beyond
reasonable doubt, the court a quo still committed a reversible error in not
considering the attendance of the mitigating circumstance of voluntary
surrender in the imposition of the appropriate penalties for the offenses
proved during the trial.[25]
In sum, the issues to be resolved are as follows: 1) whether
appellant was justified in shooting the victims as a direct result of
his fulfillment of a lawful duty and self-defense; 2) whether he
could be credited with the mitigating circumstance of voluntary
surrender; and 3) whether the characterization of the crimes and
penalties imposed by the trial court was correct.

The Courts Ruling

The appeal is partly meritorious.

First Issue:
Fulfillment of a Lawful Duty

In criminal cases, the prosecution has the burden of

establishing the guilt of the accused beyond reasonable doubt. But
once the commission of the act charged is admitted, the burden of
proof shifts to the accused, who must now prove the elements of
the justifying circumstances cited.[26]

Appellant invokes his lawful performance of duty as one such

circumstance, arguing that his presence at the scene of the
incident, prompted by the complaints in their neighborhood and his
own personal knowledge relative to the wanton discharge of a
firearm, the effectivity of the election gun ban, his coordination with
the authorities of the barangay, and the inquiry he made to the
revellers, were all in consonance with the legitimate performance
of a sworn duty.[27] Citing these specific facts, he argues that he
was justified in shooting the victims. In effect, his contention is that,
being a regular agent of the Criminal Investigation and Detection
Group (CIDG) of the Philippine National Police (PNP), he was
justified in maintaining public order, as well as in protecting and
securing life and property.
Although he is correct in arguing that he had the legal
obligation to maintain peace and order, he was not justified in
shooting the victims. Article 11 of the Revised Penal Code (RPC)
provides that a person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office does not incur any criminal
liability. Two requisites must concur before this defense can
prosper: 1) the accused must have acted in the performance of a
duty or in the lawful exercise of a right or office; and 2) the injury
caused or the offense committed should have been the necessary
consequence of such lawful exercise.[28]
These requisites are absent in this case. Appellant was not
performing his duties at the time of the shooting, because the men
he shot had not been indiscriminately firing guns in his presence,
as he alleges. Further, as found by the RTC, nothing was
mentioned in [his] direct testimony that he was there to effect an
arrest.[29] Said the trial court:
While he might have heard of gunfire, since there is no proof to the effect
that Catbagan had personal knowledge that it was Suico who had been
firing the Armalite, under no circumstances may it be said that the
accused was justifiably there to perform the duty of making the arrest in
accordance with existing laws and rules.[30]
At most, appellant was in the house of the Lapidantes to
determine who had fired the gunshots that were heard by the
neighborhood. But the fatal injuries that he inflicted on the victims
were not a necessary consequence of the performance of his duty
as a police officer.
Indeed, his presence at the scene of the incident [was] all in
the legitimate performance and fulfillment of a sworn duty.[31] He
was duty-bound to find out who had fired the gun that day and to
maintain peace and order in the neighborhood. But his act of
shooting of the victims cannot be justified. His presence at the
scene of the incident should be distinguished from his act
of shooting them.

be exercised neither capriciously nor oppressively, but within

reasonable limits. In the absence of a clear and legal provision to
the contrary, they must act in conformity with the dictates of a
sound discretion, and within the spirit and purpose of the law.[33]

Second Issue:
Self-Defense

Appellant also invokes the principle of standing ones ground

when in the right. Allegedly, since he had the right to be where he
was, the law does not require him to step aside when his assailant
is rapidly advancing upon him with a deadly weapon. [34] We
clarify. Article 11 of the RPC provides:
ART. 11. Justifying circumstances. The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself."
In self-defense, proof by clear and convincing evidence is
incumbent upon the accused.[35] Appellant cannot rely on the
weakness of the evidence for the prosecution, which can hardly be
disbelieved after he himself admitted that he had shot the victims.
[36]
A judicial confession constitutes evidence of a high order, on the
presumption that no sane person would deliberately confess to the
commission of an act unless moved by the desire to reveal the
truth.[37]
As the RTC correctly did, we should look at the
circumstances of the shooting in the case of each victim.

Circumstances Surrounding
the Death of Suico

Appellant cites People v. Cabrera[32] to support his argument

that he was performing his duty and was thus justified in shooting
the victims. There is an important distinction between the present
case and Cabrera. In the latter, the disturbance had been created
by the victim in the presence of the accused, who therefore had
the duty to immediately intervene and subdue the former, who was
causing danger. In the present case, appellant had no personal
knowledge of who had fired the gunshots. Thus, his duty at the
time was simply to determine who was the subject of the
complaints of the residents of the village. It was never shown,
though, that the shooting was in furtherance of or was a necessary
consequence of his performance of such duty.

The first requisite of self-defense is unlawful aggression by

the person who is eventually injured or killed by the accused.

To be sure, the right to kill an offender is not absolute, and

may be used only as a last resort, and under circumstances
indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to
arbitrarily judge the necessity to kill. It may be true that police
officers sometimes find themselves in a dilemma when pressured
by a situation where an immediate and decisive, but legal, action is
needed. However, it must be stressed that the judgment and
discretion of police officers in the performance of their duties must

The prosecution presented, in fact, conflicting accounts of

how Suico had been shot. The shooting allegedly happened after
he had offered a handshake to appellant, [39] according to Rosita
Lapidante, the wife of another victim. On the other hand, Charlie
Lacaden, the brother of still another victim, gave testimony that
conflicted with hers. Suico was allegedly shot by appellant when
the former turned his back to the latter.

This Court is convinced that the RTCs finding of unlawful

aggression on the part of Suico is supported by the records, and
we see no reason to disturb those findings. Ruled the lower court:
Under the given situation wherein the Sergeant cocking the pistol was
one who was trained, and skilled in the handling of guns, plus the fact
that he was drunk, the Court cannot blame accused Catbagan to believe
and fear that Suico would attack him in that mock introduction.[38]

On the other hand, appellant[40] and Defense Witness Zosimo

Pavabier[41] positively and consistently testified that it was Suico
who had first drawn and aimed his gun at appellant. This assertion
was confirmed by the physical evidence that the victims gun had a
live bullet sandwiched between its breechblock and chamber.
[42]
This fact proves that the gun was cocked and fired, but that the
bullet was jammed in the process.
The prosecution tried to explain this occurrence by
inconsistent and incongruous statements. According to the
testimony of Rosita, Charlie took the gun from Suicos belly then
aimed it at appellant, but the gun did not fire because it was
defective.[43] According to the testimony of Charlie, on the other
hand, he took the gun because he was afraid that appellant would
come back, but that he later threw it towards the rear portion of the
house.[44] Thus, the RTC concluded:
As regards the proof that Suicos gun misfired due to vital defects in its
mechanism, the Court suspects that the firearm was tampered with to
create the scenario that the PSG man was without fault. In fact, Mrs.
Lapidante and Charles Lacadens testimonies regarding what was done to
the gun after the incident are in conflict with each other.[45] (Italics
supplied)
Unlawful aggression is an actual physical assault, or at least
a threat to inflict real imminent injury, upon a person. [46] In case of
threat, it must be offensive and strong, positively showing the
wrongful intent to cause injury -- as in this case. Thus, Suicos act
of aiming a cocked gun at appellant is sufficient unlawful
aggression.
The second element of self-defense -- reasonable necessity
of the means employed to prevent or repel it -- requires the
following: 1) a necessity of the course of action taken by the
person making the defense and 2) a necessity of the means
used. Both the course of action taken and the means used must
be reasonable.[47]
Appellant argues that he was justified in wounding Suico,
because the latter was armed with a deadlier weapon and was still
persistently aggressive after being shot the first time. The former
maintains that [t]he fact that [he] struck one blow more than [what]
was absolutely [necessary] to save his own life, or that he failed to
hold his hand so as to avoid inflicting a fatal wound where a less
severe stroke might have served the purpose, would not [negate]
self-defense, because [he], in the heat of an encounter at close
quarters, was not in a position to reflect coolly or to wait after each
blow to determine the effects thereof.[48]
The means employed by the person invoking self-defense is
reasonable if equivalent to the means of attack used by the original
aggressor.[49] Whether or not the means of self-defense is
reasonable depends upon the nature or quality of the weapon, the
physical condition, the character, the size and other circumstances
of the aggressor; as well as those of the person who invokes selfdefense; and also the place and the occasion of the assault.[50]
The RTC made a definitive finding on the unreasonableness
of the means employed by appellant as follows:
However, what followed, as testified by witnesses was that Catbagan
continued firing even while Suico was pleading Huwag pare! with
outstretched hand and open palm of his right hand. While the accused
asserted that he had to fire his gun and hit Suico with more shots to
totally disable him, the same cannot be believed by the Court, if we take
stock of Dr. Agudas testimony that with the injured arm and that on the
chest being inflicted with the first double tap shots; the victim would
have had much difficulty to retaliate. In fact, Catbagan himself stated on
clarification questions that the .45 caliber gun of the victim fell already so
that the threat of continued aggression was no longer present.
xxxxxxxxx

On this point, the Court entertains serious doubts on the right of the
accused to continue firing at Suico after the latter was dispossessed of his
gun due to the injuries received from the gunfire of the
assailant.Additionally, we cannot accept as credible Catbagans statement
that he had to fire again at Suico inasmuch as the latter had stooped
acting to pick up his own pistol from the pavement. If ever the victim was
positioned that way, it was more of the impact of the bullets that hit
him. The logical explanation can be derived from the presence of the
entry wound in the inside of Suicos right palm.[51]
These findings are well-supported by the evidence on
record. Clearly, the nature and the number of gunshot wounds -debilitating, fatal and multiple -- inflicted by appellant on the
deceased shows that the means employed by the former was not
reasonable and commensurate to the unlawful aggression of the
latter. The unreasonableness becomes even more apparent from
the fact, duly admitted by appellant himself, that Suico had
obviously been inebriated at the time of the aggression. It would
have thus been easier for the former to have subdued the victim
without resorting to excessive means.
Finally, as to the element of lack of sufficient provocation on
the part of the person resorting to self-defense, appellant has
sufficiently established that he went to the house of the Lapidantes
to find out who had fired the gunshots earlier that day. There was
therefore absolutely no provocation from him, either by unjust
conduct or by incitement, that would justify Suicos acts of cocking
and aiming a gun at him.
Not having proven all the elements of self-defense, appellant
cannot use it to justify sufficiently his fatal shooting of
Suico. Having proven a majority of the elements, however, the
former may still be credited with a mitigating circumstance in
accordance with Article 13[52] of the RPC.

Circumstances Surrounding
the Shooting of Lapidante

With respect to Lapidante, he allegedly rushed towards his

house to get hold of the mahaba, so appellant had no other
recourse but to shoot him. The purpose of the victim in rushing
towards his house was supposedly to recover the advantage he
had previously enjoyed. Hence, it is argued that unlawful
aggression was present.
We disagree with appellants averments. Unlawful aggression
presupposes an actual, sudden and unexpected attack or
imminent danger thereof. Such aggression refers to an attack that
has actually broken out or materialized or is at the very least
clearly imminent; it cannot consist merely of any oral threat or
intimidating stance or posture. [53]
In this case, the RTC was categorical in ruling that the
perceived danger was more in the mind of appellant than in
reality. The circumstances did not point to any actual or imminent
peril to his life, limb or right. On the part of Lapidante, the act of
running towards his house can hardly be characterized as unlawful
aggression. It could not have imperiled appellants life.
In a previous case,[54] this Court ruled that a threat even if
made with a weapon or the belief that a person [is] about to be
attacked, is not sufficient, but that it is necessary that the intent be
ostensibly revealed by an act of aggression or by some external
acts showing the commencement of actual and material unlawful
aggression.[55] We agree with the RTCs ratiocination, which we
quote:
With respect to the incident involving the victim Lapidante, it is not
disputed that he was unarmed as he was inside his own premises within
the fenced area in front of his house. What acts of aggression against
Catbagan which he did are not apparent to us. To this Court, the belief on

the part of Catbagan that the victim was about to retrieve a rifle from the
doorside of the house, existed only in his imagination.
Aside from its intrinsic ambiguity, the claims of the defense witnesses
about the alleged utterance of Lapidante about Ang mahaba! an[g]
mahaba! do not sit well with this Court. Indeed, we are not convinced that
he could have uttered that statement since the evidence points to the fact
that he and his friends had just arrived from another phase of the
subdivision upon having delivered thereat, the Armalite of Suico.On the
contrary, Lapidante appeared to have been gripped by fear and was
obviously trying to escape from harm. Indeed, there was no moment for
Catbagan to validly state that his own life [was] in imminent danger from
Lapidante.[56]
Neither do we accept the contention that unlawful aggression
by Lapidante was shown by his act of rushing towards his house
for the purpose of taking a more advantageous position.Referred
to here is the rule that if it is clear that the purpose of the
aggressor in retreating -- or, as in this case, Lapidantes rushing
towards his house -- is to take a more advantageous position to
ensure the success of the attack already begun, the unlawful
aggression is considered still continuing; and the one resorting to
self-defense has a right to pursue and disable the former.[57]
Obviously, this rule does not apply to Lapidante, because 1)
there was no clear purpose in his act of retreating to take a more
advantageous position; and 2) since he never attacked appellant in
the first place, the former could not have begun any unlawful
aggression and, hence, would not have had any reason to take a
more advantageous position. How could there have been a
continuation of something that had never been started? If any
aggression was begun in this case, it was by Suico, not by
Lapidante.
Hence, no unlawful aggression by Lapidante was
shown. Because the presence thereof is a statutory and
doctrinal conditio sine qua non of the justifying circumstance of
self-defense[58]-- complete or incomplete -- we need not examine
the presence of the other requisites.

Circumstances Surrounding
the Shooting of Lacaden

Appellant asserts that Lacaden attacked him with an ice pick

from the side. Allegedly, this act clearly showed unlawful
aggression on the latters part. All the pieces of evidence on record,
however, point to the absence thereof.
Most crucial is the position of the gunshot wound. As testified
to by the doctor who had treated the victim, its point of entry was
on the right side of the back, just below the scapula. [59]This
incontestable fact belies the claim of appellant that he was
attacked by Lacaden with an ice pick. Such attack would have
required the latter to face him; and, logically, a gunshot entry
wound would have been in the front -- not in the back -- portion of
Lacadens body. The wound in the back of the victim clearly shows
that he was shot while his back was turned to appellant.Hence,
there was no unlawful aggression on the part of the former.
Neither was any ice pick presented in the proceedings before
the RTC. Appellant maintains that his testimony, coupled with that
of Pavabier, is sufficient to establish the existence of the
weapon. But the prosecution witnesses, including the victim
himself, testified otherwise -- that there was no unlawful
aggression during the incident, much less with the use of an ice
pick.The RTC held thus:
In the case of Jun Lacaden, he was shot in the back which could only
corroborate the evidence to the effect that he was also in the act of fleeing
from the fury of gunfire from Catbagan. As to the allegation of the latter

that Jun Lacaden had an icepick, that claim is rather nebulous. Firstly, as
veteran criminal investigator, he should have taken, kept and presented
that said instrument to augment his legal excuse.Secondly, if really there
was one, it is rather surprising why he did not demand Jun Lacaden for its
surrender initially as he passed thru the pedestrian steel door and
subsequently while the latter had positioned himself near the owner-type
jeep.
More importantly, granting that Jun Lacaden had an icepick, and/or had
any design to launch an attack against Catbagan, the former was just too
far a distance away to do real harm to the accused. From 6-7 meters, as
clarified from the accused himself, it is ridiculous for us to believe that
Jun Lacaden could stab him. More so because the accused himself
testified that the two arms of Jun Lacaden were raised upward which is
not to mention that Catbagan had already demonstrated his proficiency
and accuracy in the use of his .9 mm automatic pistol. Thus, there was,
like that of Lapidante, no occasion to find as existing, the element of
unlawful aggression.[60]
Appellant has presented no sufficient reason to overturn
these conclusive findings of the trial court. Aside from being
completely in accord with logic and human experience, they are
too solid to be debunked by him.

Third Issue:
Voluntary Surrender

Finally, appellant argues that even on the assumption that his

guilt was proven beyond reasonable doubt, he is still entitled to a
mitigating circumstance. According to him, he voluntarily
surrendered to the authorities after the occurrence of the incident,
a fact not only uncontroverted but even admitted by the
prosecution.
For voluntary surrender to mitigate criminal liability, the
following elements must concur: 1) the offender has not been
actually arrested; 2) the offender surrendered himself to a person
in authority; and 3) the surrender was voluntary.[61] It is sufficient
that that act be spontaneous and clearly indicative of the intent of
the accused to surrender unconditionally, because there is either
an acknowledgement of guilt or a desire to save the authorities the
trouble and the expense that would necessarily be incurred in
searching for and capturing the culprit.[62]
It was established that on the night after the shooting
incident, appellant called up his immediate supervisor, Atty. Virgilio
Pablico, to tell him about the incident that had occurred that
afternoon and to convey the formers intention to surrender. [63] The
following day, appellant surrendered himself and his firearm to
Police Supt. Edgardo Acua, the chief of the Assistant Directorate
for Intelligence.[64] This surrender is evidenced by a Progress
Report[65] signed by Police Chief Superintendent Efren Quimpo
Fernandez.
At the time of his surrender, appellant had not actually been
arrested. He surrendered himself and his firearm to a person in
authority, the chief of the Assistant Directorate for Intelligence of
the Philippine National Police. Finally, the surrender was voluntary
and spontaneous; it thus showed an intent to surrender
unconditionally to the authorities. In fact, in the aforementioned
Progress Report, appellant had given the same narration of events
he later gave in court; moreover, he owned responsibility for the
shooting. Thus, we credit him with the mitigating circumstance of
voluntary surrender.

Final Issue:
Crimes and Penalties

Appellant was convicted of homicide, murder, and frustrated

murder for the shooting of Suico, Lapidante and Lacaden,
respectively. In determining the crimes committed and in imposing
the proper penalties, it is necessary to look into the qualifying
circumstances alleged in the three Informations. Treachery and
evident premeditation were both alleged; thus, there is a need to
ascertain their presence or absence in the commission of the acts,
in order to determine the crimes committed by appellant.
To establish treachery, the following must be proven: 1) the
employment of such means of execution as would give the person
attacked no opportunity for self-defense or retaliation; and 2) the
deliberate and conscious adoption of the means of execution. [66] It
is also the running case law that where treachery is alleged, the
manner of attack must be proven.[67] Such attack must be sudden
and unexpected and without the slightest provocation on the part
of the victim, who is thus deprived of any real chance for selfdefense, thereby ensuring the commission of the crime without risk
to the aggressor.[68]
With respect to the shooting of Suico, there was no
treachery. The shooting was perpetrated in a frontal encounter as
shown by the location of his wounds. Appellant did not make any
deliberate, surprise attack against him or consciously adopt a
treacherous mode thereof. As established, he shot the victim after
the latter had aimed, cocked and fired a gun at him.
As to the shooting of Lapidante, the RTC qualified the crime
to murder because of the presence of treachery. According to the
trial court, the shooting was unexpected, he was unarmed, and his
back was turned towards appellant when the incident
occurred. Treachery was also appreciated in the shooting and
wounding of Lacaden, since he had been shot at the back. Further,
even if he had posed no imminent danger to appellant, the former
was nevertheless shot with a .9 mm automatic pistol -- a lethal
weapon. For this act, the latter was convicted of frustrated murder.
The mere fact that the attack against Lapidante and Lacaden
was perpetrated when their backs were turned did not by itself
constitute treachery or alevosia.[69] Whether the mode of attack
was consciously adopted, and whether there was risk to the
offender, must be taken into account. [70] Treachery cannot be
considered when there is no evidence that the accused had
resolved to commit the crime prior to the moment of the killing; or
that the death of the victim was the result of premeditation,
calculation or reflection.[71]
In this case, it is evident that the decision to shoot Lapidante
and Lacaden was suddenly arrived at after the confrontation with
Suico had already occurred. Even if the positions of the victims
were vulnerable, there was still no treachery, as appellant did not
deliberately adopt such mode of attack. Its presence was negated
by the fact that the shootings had sprung from the unexpected turn
of events. The treacherous character of the means employed does
not depend upon its result, but upon the means itself -- upon
appellants purpose in employing it.[72]

Undeniably, the shooting of the victims was done without any

prior plan to kill or attack them. As previously stated, appellant
began shooting at them after a cocked gun had been aimed and
fired at him. This fact negates any finding that he had already
previously conceived the shooting, and that he then manifestly
clung to his determination to commit the crime after a sufficient
lapse of time.
Having rejected both treachery and evident premeditation in
the killing of Suico and Lapidante, we hold appellant guilty only of
homicide in both cases. But for the shooting of Lacaden, a careful
review must be made of the crime that was actually
committed. The RTC charged him with frustrated murder and
found him guilty thereof; but, as ruled above, no qualifying
circumstance was proven. Thus, his crime can only be frustrated
homicide, in which evidence of intent to kill is essential, however.
[75]
It bears stressing that such intent determines whether the
infliction of injuries should be punished as attempted or frustrated
murder, homicide or parricide; or as consummated physical
injuries.[76]
Homicidal intent must be evidenced by acts that, at the time
of their execution, are unmistakably calculated to produce the
death of the victim by adequate means.[77]
The principal and essential element of attempted or
frustrated homicide or murder is the assailants intent to take the
life of the person attacked. [78] Such intent must be proved clearly
and convincingly, so as to exclude reasonable doubt thereof.[79]
Although the injury sustained by Lacaden was inflicted by
appellant, the facts do not support a finding that the latter had
been impelled by an intent to injure to the point of killing the
former. The intent to kill is absent in this case. It was found that the
shooting was sudden and unexpected, having been brought about
by a confrontation between appellant and Suico and the
commotion that ensued. The absence of such intent was, in fact,
even more apparent in the testimony of appellant, who said therein
that he did not even look at the victim anymore. The formers
attention was concentrated on the latter, who was shouting, Ang
mahaba, ang mahaba![80]
The intent to kill, an essential element of the offense of
frustrated or attempted homicide, must be proved by clear and
convincing evidence and with the same degree of certainty as that
required of the other elements of the crime. [81] The inference that
such intent existed should not be drawn in the absence of
circumstances sufficient to prove it beyond reasonable doubt. If it
was absent but wounds were inflicted, the crime is not frustrated
murder, but only physical injuries. [82] In this case, the expert opinion
of the doctor who treated Lacaden was that it would take the latter
thirty days to heal and recover from the lone gunshot wound and to
resume his normal work.[83] Thus, a finding of less serious physical
injuries[84] is proper.

Treachery cannot be appreciated where, as in this case,

there is nothing in the records that shows that appellant pondered
upon the mode or method of attack to ensure the wounding and
the killing of the victims; or to remove or diminish any risk to
himself that might arise from the defense that they might make.
[73]
His decision to shoot them was clearly sudden. In the absence
of treachery, the killing of Lapidante and the wounding of Lacaden
cannot be qualified to murder and frustrated murder, respectively.

Although the charge in the instant case is frustrated murder,

a finding of guilt for the lesser offense of less serious physical
injuries may be made, considering that the essential ingredients of
this lesser offense are necessarily included in or form part of those
constituting the graver one. [85] In the same manner, a conviction
may be for slight or serious physical injuries in a prosecution for
homicide or murder, inasmuch as the infliction of the former, when
carried out to the utmost degree, could lead to the latter
offense. Such conviction may be made, without intent to kill -- an
essential element of the crime of homicide or murder.[86]

The allegation of evident premeditation was correctly

rejected by the lower court. For this aggravating circumstance to
be appreciated, the following must be proven: 1) the time when the
accused decided to commit the crime; 2) an overt act manifestly
indicating that the accused clung to such determination; and, 3)
between the decision and the execution, a sufficient lapse of time
that allowed time to reflect upon the consequences of the act
contemplated.[74] None of these elements has been established in
the case at bar.

To summarize, in Criminal Case No. 1082-M-98, appellant is

found guilty of homicide, for which the penalty prescribed
is reclusion temporal.[87] Since he proved a majority of the elements
of self-defense -- unlawful aggression and lack of sufficient
provocation -- the penalty prescribed by law may be lowered by
two degrees[88] to prision correccional. Considering further the
presence of the generic mitigating circumstance of voluntary
surrender without any aggravating circumstance, the penalty shall
be imposed in its minimum period.[89] The Indeterminate Sentence

Law is applicable in this case. Hence appellant should be

sentenced to an indeterminate sentence, the maximum term of
which shall be that which may properly be imposed under the
Revised Penal Code; and the minimum of which shall be within the
range of the penalty next lower than that prescribed by the Code -in this case, arresto mayor.
In Criminal Case No. 1083-M-98, appellant is found guilty of
homicide, for which the penalty prescribed by law is reclusion
temporal.[90] Again, considering the presence of the generic
mitigating circumstance of voluntary surrender without any
aggravating circumstance, the penalty shall be imposed in its
minimum period.[91] The Indeterminate Sentence Law is also
applicable to this case. Hence, appellant should be sentenced to
an indeterminate sentence, the maximum term of which shall be
that which may properly be imposed under the Revised Penal
Code; and the minimum of which shall be within the range of the
penalty next lower than that prescribed by the Code -- in this
case, prision mayor.
Finally, as to Criminal Case No. 1099-M-98, appellant is
found guilty of less serious physical injuries, for which the penalty
prescribed by law is arresto mayor. Again, considering the
presence of the generic mitigating circumstance of voluntary
surrender without any aggravating circumstance, the penalty shall
be imposed in its minimum period
Coming now to pecuniary liabilities, the heirs of the victims
Suico and Lapidante in Criminal Case Nos. 1082-M-98 and 1083M-98, respectively, are entitled to a fixed sum representing civil
indemnity for death. Death indemnity is currently fixed at P50,000.
[92]
This kind of civil indemnity is separate and distinct from other
forms of indemnity for damages and is automatically awarded
without need of further proof other than the fact of death and the
responsibility of the accused therefor.
Proof of moral damages was presented through the
testimony of Lapidantes wife. The RTCs award of such damages
herein is excessive, however, considering that it is not meant to
enrich an injured party. [93] Hence, in Criminal Case No. 1083-M-98,
the amount thereof should be reduced to P50,000. In the other two
cases, there being no proof of moral damages, the award therefor
is deleted. Moral damages cannot be granted in the absence of
proof.[94]
It is also proper to award compensation to the heirs of the
victims for loss of earning capacity, pursuant to Article 2206 of the
Civil Code.[95] The documents presented, coupled with the
testimonies of Elsie Suico and Rosita Lapidante, are sufficient
bases for the award.
At the time of his death, Suico, forty-four (44) years old,
was receiving a monthly take-home pay of P942.70,[97] as
proven and admitted. To compute his net earnings, we multiply this
amount by 12 to get his annual income; then deduct the
reasonable and necessary living expenses which, in the absence
of contrary evidence, is pegged at 50 percent of the
earnings.Applying the formula Net earning capacity = [2/3 x (80
age at time of death) x (gross annual income reasonable and
necessary living expenses)],[98] we arrive at a loss of earning
capacity ofP135,748.80.
[96]

Applying the same formula to Lapidante who was thirty-five

(35) years old[99] at the time of his death, with a monthly take-home
pay of P10,004.24[100] and an additional income ofP1,000.00 for
slaughtering pigs,[101] we arrive at a loss of earning capacity
of P1,980,763.20. His heirs are also entitled to actual damages in
the amount of P13,850 for hospital and funeral expenses. These
expenses are supported by receipts.[102] The receipt[103] for the
amount of P6,000 -- which also mentions a remaining payable
balance of P6,500 -- was not properly identified and characterized;
thus, we should exclude it from the award of actual damages.
Finally, with respect to the civil indemnities for Lacaden, the
award for actual damages -- for hospitalization and medicines --

should be P4,589.86, as only this amount was properly covered by

receipts.[104] The amount of P1,831, allegedly for hospital services,
was included in a list presented by the victim, but was not properly
supported by any receipt or record; thus, we cannot grant such
amount.
WHEREFORE, the appeal is partly GRANTED and the
assailed Decision MODIFIED. In Criminal Case No. 1082-M-98,
Appellant Carmelo Catbagan is found guilty beyond reasonable
doubt of homicide and is SENTENCED to a prison term of one (1)
month and one (1) day arresto mayor as minimum; to one (1) year
and six (6) months of prision correccional as maximum.In Criminal
Case No. 1083-M-98, he is found guilty beyond reasonable doubt
of homicide and SENTENCED to a prison term of six (6) years and
one (1) day of prision mayor as minimum; to twelve (12) years and
one (1) day of reclusion temporal as maximum. In Criminal Case
No. 1099-M-98, he is found guilty of less serious physical injuries
and SENTENCED to a prison term of one (1) month and one (1)
day of arresto mayor.
Appellant is also ORDERED to pay the following amounts: 1)
to the legal heirs of Suico, P50,000 as indemnity ex
delicto and P135,748.80 for loss of earning capacity; 2) to the legal
heirs of Lapidante, P13,850 for actual damages, P50,000 as
indemnity ex
delicto, P50,000
as
moral
damages,
and P1,980,763.20 for loss of earning capacity; and 3) to
Lacaden, P4,589.86 for actual damages. Costs against appellant.
SO ORDERED.