People of the Phil. vs. Dario Cabanas Cual, et al., G.R. No.

131925, March 9,
2000

Self Defense – Incomplete Self Defense

FACTS: On December 25, 1996, the trial court convicted Cual and Villoceno for murder.
On February 26, 1994, Villoceno and Sabturani had a fight and they were grappling for
the possession of a steel pipe. Cual came to help Villoceno, Cual then hacked Sabturani
with a bolo. Sabturani was able to run but Cual was able to catch up with him and
thereafter killed Sabturani inside a “trisikad”. During trial, Cual raised self-defense which
the court did not appreciate, nor was the defesne of “incomplete self-defense”
appreciated.
ISSUE: Whether or not Cual is entitled to the mitigating circumstance of incomplete self-
defense.
HELD: No. The evidence does not show that there was unlawful aggression on the part
of Sabturani. It was not shown that Sabturani, in any way offended Cual. Since unlawful
aggression, a vital element of self-defense, is not present, no self-defense, or incomplete
self-defense for that matter can be appreciated in favor of Cual.

PEOPLE VS. CALLET 382 SCRA 42 APPELLEE: PEOPLE OF THE PHILIPPINES

APPELLANT: ELBERT CALLET y SABANAL PON: JUSTICE REYNATO S. PUNO

Facts: On September 15, 1996 at 3:00 p.m., the accused, Elbert Callet, played volleyball
near the flea market. After two (2) games, he stopped playing. It was past 4:00 p.m. He
stayed at the flea market and watched as others played volleyball. While watching the
game, he was hit on the left side of the body by Alfredo’s elbow. He asked Alfredo why
he hit him. Alfredo retorted, “Are you angry?” Next, Alfredo grabbed his left arm and tried
to twist it. He pleaded with Alfredo to let go of his arm, but Alfredo warned that he would
be his third victim if he would get angry with him. As Alfredo was pulling out a hunting
knife from his waist, he (the accused) managed to stab him first. Thereafter, he ran
towards the municipal hall to surrender. The accused also claims that his liability should
be mitigated by the fact that he had no intention to commit so grave a wrong.

Issue: won the accused should be given the benefit of mitigating circumstance of acting
without intention to commit so grave a wrong.

Held: no, The lack of “intent” to commit a wrong so grave is an internal state. It is
weighed based on the weapon used, the part of the body injured, the injury inflicted and
the manner it is inflicted. The fact that the accused used a 9-inch hunting knife in
attacking the victim from behind, without giving him an opportunity to defend himself,
clearly shows that he intended to do what he actually did, and he must be held
responsible therefor, without the benefit of this mitigating circumstance.
People of the Phil. vs. Floremar Retubado, G.R. No. L-58585, June 20, 1988 14.

The accused-appellant was charged with the crime of parricide in an information filed on
July 1, 1981, with the Circuit Criminal Court, 1 XIV Judicial District, which reads:

That on or about the 8th day of January, 1981, at 1:00 o'clock in the
afternoon, more or less, at Barangay Sambag, Somosa, Municipality of
Tabogon, Province of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with deliberate intent to kill,
did then and there willfully, unlawfully and feloniously attack and assault
with the use of fistic blows his five (5) month old child, named Raul R.
Retubado, inflicting upon said child several injuries in different parts of his
body which caused his instantaneous death.

CONTRARY TO LAW. (Page 1, Original Record)

Upon being arraigned on July 9, 1981, accused entered a plea of not guilty. After trial on
the merits, the court a quo rendered a decision on august 13, 1981, convicting the
accused of the offense charged, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Floremar Retubado guilty beyond
reasonable doubt of the crime of PARRICIDE defined and penalized under
Article 246 of the Revised Penal Code. The aggravating circumstances of
treachery, abuse of superior strength, relationship and disregard of tender
age having been proven, the said circumstances not having been offset by
any mitigating circumstance, the accused should be, as he is hereby
sentenced to suffer the extreme penalty of DEATH, with the accessory
penalties of the law; to indemnify the heirs of the deceased baby, Raul
Retubado, in the sum of P12,000.00, and to pay the costs.

SO ORDERED. (Page 48, 0riginal Record).

The case is now before Us on appeal.

The following facts appear from the record:

The accused-appellant, Floremar Retubado, and his wife, Arcadia Retubado, were legally
married and had two children. The younger child was Raul who was born on August 8,
1980. The couple resided in a small hut built on a farm land owned by Nicanora Codeniera
and located at Sambag, Somosa, Municipality of Tabogon, Province of Cebu. Vicentica
Robleca, mother of Arcadia, was the tenant of the farm land. Inside the hut was a
hammock made of an empty fertilizer sack with both its ends tied with ropes. The
hammock was made to hang a few feet above the floor of the hut.

On January 8, 1981, Vicentica and Nicanora harvested corn from the farm land. After the
harvest was finished at around 1:00 o'clock in the afternoon of the same day, Vicentica
called her son-in-law, the accused-appellant herein, who was then sleeping under the
hammock and asked him to help bring Nicanora's share of the corn harvest to the road
where public transportation was available. The accused refused unless he was paid P1.00
per sack he would carry. Later, Vicentica sought the aid of her daughter, Arcadia, in
placing on top of her head some bananas she wanted to bring to the road. Arcadia in
turn told Vicentica to wait for a while as she would first finish breastfeeding her son, Raul.

Thereafter, Arcadia placed Raul inside the hammock preparatory to her leaving the hut
in order to assist Vicentica. Raul began crying so that Arcadia tarried a bit to swing the
hammock. She even asked the accused who was then squatting under the hammock,
smoking and picking his teeth, to swing the hammock but the latter did not respond.
Arcadia and Vicentica had barely gone out of the door of the hut when the accused
immediately stood up and boxed Raul who was inside the hammock twice with his
clenched fists. They immediately went to the rescue of Raul who stopped crying and
became unconscious. Arcadia took Raul in her arms and asked the accused, What did you
do to the child, Bay?" to which the latter retorted, "That is the prize of a child who cries
too much, (he) must be killed." Afterwards, Arcadia handed Raul to Vicentica. Sensing
that Raul did not regain consciousness, Vicentica asked the accused why he killed the
child and the latter answered, "No one can command me, no. No one can rule me because
this is my child. No one can rule me."

In the meantime, Nicanora, who was then attending to her share of the corn harvest a
few meters away from the hut, rushed to the hut after hearing Arcadia's call for help and
found Vicentica carrying Raul. Nicanora took Raul from her and massaged him thinking
that he just fainted. After a while, Nicanora noticed that only she, the accused and the
dead Raul were inside the hut as Arcadia and Vicentica left.

Having noticed the bluish discoloration on the left side of the head and behind the left
ear of Raul, Nicanora asked the accused what he did to the child and the latter answered,
"I boxed him inside the hammock."

Afraid that the accused might leave the hut, Nicanora told him to carry the dead child
and said, "You hold him very close Mar, he might revive after feeling the heat of your
chest." Also, during the time when they were inside the hut with the dead child, Nicanora
asked the accused why he killed the child and the latter retorted, "Why is it Tiya, will we
be placed in jail if we (can) kill our own child?"
The accused was still holding the dead child Raul when Vicentica arrived with the chief
of police of Tabogon and two policemen. Shortly thereafter, Arcadia also arrived with two
PC soldiers. That same afternoon, the police officers brought the accused to the municipal
building of Tabogon where he was detained. The following day, January 9, 1981, Raul
was buried without first being medically examined. The police investigators took the
sworn statements of Arcadia and Vicentica on January 10, 1981. The accused also gave
his sworn statement to the police on January 12, 1981. The sworn statement of Nicanora
was taken on January 14, 1981.

On June 22, 1981, Raul's body was exhumed and autopsied by Dr. Tomas Refe, NBI
CERVO Senior Medico-Legal Officer, who issued a report stating his findings, as follows:

POST MORTEM FINDINGS

Body, in advanced stage of postmortem decomposition.

Skin, and underlying soft tissues of the abdomen, both sides and anterior
aspect, both thighs, mummified; all the rest of the tissues are almost gone.

Skeletal remains with bits of adherent markedly putrefied reddish soft tissue
material.

Bone articulations are already separated by decomposition.

Fracture, parietal bone, skull, left side.

Heart, lungs, liver and other visceral organs, markedly autilyzed.

Brain, liquefied, reduced to grayish-white pultaceous mass, and admixed

with clotted and liquid blood.

CAUSE OF DEATH: Skull fracture, traumatic.

The accused-appellant assigned three errors committed by the court a quo, as follows:

IN CONVICTING APPELLANT OF PARRICIDE WITHOUT TAKING DUE

REGARD OF HIS TESTIMONY THAT HE WAS SLEEPING AT THE TIME OF
THE ALLEGED COMMISSION OF THE CRIME, WITHOUT TAKING DUE
REGARD OF THE FACT THAT THE MOST "DAMAGING TESTIMONY AGAINST
HIM WAS VAGUE, INCONSISTENT, AND OF THE FACT AS WELL THAT THE
PROSECUTION WITNESSES WERE BIASED.

II
 IN NOT TAKING DUE REGARD OF THE TEMPORARY INSANITY OR ABSENCE
OF DISCERNMENT OF APPELLANT, ASSUMING HIS CLAIM TO BEING
ASLEEP WAS WEAK

III

STILL ASSUMING THAT HIS CLAIM TO BEING ASLEEP WAS WEAK, THE
COURT STILL ERRED IN NOT APPRECIATING IN APPELLANT'S FAVOR THE
MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND LACK OF
INTENT TO COMMIT SO GRAVE AN OFFENSE, AS WELL AS IN NOT
FINDING THAT NO AGGRAVATING CIRCUMSTANCE IN FACT WAS PROVEN,
NOR DO THEY EXIST. (Page 35, Rollo)

Being closely interrelated, we shall discuss the first and second assignments of error
together.

The accused's defense that he was asleep at the time of the death of the child is
untenable.

The prosecution witnesses, namely, Arcadia Retubado, Vicentica Robleca and Nicanora
Codeniera, categorically and positively declared that they actually saw the accused deliver
the fistic blows on the child who was inside the hammock and/or the resulting injuries
inflicted on the latter. The severity of the blows delivered was confirmed by the findings
of the NBI Medico-Legal expert, Dr. Tomas Refe, that the cause of the child's death was
"skull fracture, traumatic" and who testified in open court that such injury could have
been caused by "a fistic blow applied with tremendous force."

Not to be disregarded were the admissions made by the accused immediately after the
commission of the offense which all tend to show that he was wide awake and in full
possession of his normal senses when he killed his child. First, immediately after Arcadia
went to assist the child, she asked the accused why he boxed the latter. The accused
replied angrily that death is the prize for a child who cried too much. Second, when his
mother-in-law asked him the same question, the accused told her not to intervene and
order him around because the child is his. And third, he admitted to Nicanora Codeniera
that he boxed his child while inside the hammock. He even inquired from Nicanora
whether a person may be imprisoned for killing his own child. Despite all these
incriminating statements, the accused did not bother to refute them while testifying in
his defense. The most he did was to make a bare denial of the testimony of Nicanora to
the effect that he did not admit having boxed his child while inside the hammock.

The violent nature of the accused was also satisfactorily proven. Clear evidence was
adduced to show that he also broke the arm of his other child, Floremar Rebutado, Jr.,
when the latter would not stop crying. He even made this child drink vinegar and fed him
with hot pepper.
Claiming that he was sleeping at the time his child, Raul, died, the accused surmises that
the latter may have died due to colic or by holding his breath. As aptly observed by the
court a quo, this is a mere conjecture. Besides, there is clear evidence showing that the
child was healthy and never suffered from this disease before.

The accused assails the court a quo for giving the testimony of Arcadia greater weight
than his denial. He points out that this witness could not have seen the actual delivery of
the first blow because at that precise moment she was then on her way down the stairs
with her back towards the hammock. However, this was satisfactorily explained by the
witness who said that immediately prior to the delivery of the first blow, she looked back
at the accused who told her to go ahead. Besides, it is also clear that the hut where the
incident took place was small and its stairs had only two steps so that Arcadia could not
have missed seeing what the accused actually did. The accused also assails the
prosecution witnesses for being biased and prejudiced against him. The only evidence
adduced by him in support of this claim is his testimony that his mother-in-law was always
against his marriage with her daughter and even wanted that they live separately.
Assuming that this contention is true, there is nothing in the records showing that the
mother-in-law is that wicked to impute to her son-in-law the killing of his own child for
the sole purpose of seeing him ultimately separated from her daughter. Likewise, his
allegation that his wife's testimony is biased has no factual basis. On the contrary, the
accused testified that he did not know of any ulterior motive why his wife testified against
him, as he had no quarrel or misunderstanding with his wife immediately preceding the
incident. The same holds true with Nicanora Codeniera. No proof whatsoever was
adduced to prove that this witness had some motive to falsely testify against the accused.
Consequently, in the absence of credible evidence to support the charge of bias and
prejudice, it is presumed that the prosecution Witnesses would not have imputed to the
appellant the crime of which he was charged unless he was guilty thereof (People vs. Ali,
L-18512, October 30, 1969, 29 SCRA 756).

Lastly, the accused asserts that the court a quo erred in not giving him the benefit of the
exempting circumstances of temporary insanity or total absence of discernment
assuming, arguendo, that he was awake when he killed his child since no motive at all
was shown on his part to commit the crime charged. This claim is also untenable. As
correctly pointed out by the Solicitor General, the accused did not invoke said defense
during the trial, much less present evidence in support thereof. His defense then was that
he was asleep during the incident and surmised that the baby may have died of colic or
simply held his breath.

The third assignment of error is likewise devoid of merit. The fact alone that the accused
did not escape after killing his child but remained inside the hut where the crime was
committed cannot be considered voluntary surrender to the authorities. The police
officers arrived at the scene of the crime not upon his behest but because they were
called by his wife, Arcadia, and his mother-in-law, Vicentica. Moreover, when questioned
by the police regarding the circumstances surrounding the death of his child, the accused
replied that he did not know anything about it as he was then asleep. In People vs. Canoy,
90 Phil. 633, this Court said:

The court, in our opinion, erred in applying the mitigating circumstance of

surrender. Canoy did not surrender himself within the meaning of Article
13, paragraph 7, of the Revised Penal Code. The Chief of Police placed
Canoy under arrest in his employer's home to which that officer was
summoned and brought in Broce's jeep on Juvencio Broce's initiative or
request. It does not appear that it was Canoy's idea to send for the police
for the purpose of giving himself up.

The accused cannot be credited with the mitigating circumstance of lack of intent to
commit so grave a wrong. He ought to have known that boxing a 5-month old child twice
with the full force of his clenched fists would necessarily result in great physical harm to
the child or even his death. Clearly, brute force was employed by the accused. In People
vs. Yu, L-13780, January 28,1961, 1 SCRA 199, this Court said:

... Since intention partakes of the nature of a mental process, an internal

act, it can, as a general rule, be gathered from and determined only by the
conduct and external acts of the offender, and the results of the acts
themselves. It is easy enough for the accused to say that he had no
intention to do great harm. But he knew the girl was very tender in age (6
years old), weak in body, helpless and defenseless. He did not only cover
her mouth to silence her, but choked her. He knew or ought to have known
the natural and inevitable result of the act of strangulation, committed by
men of superior strength, specially on an occasion when she was resisting
the onslaught upon her honor. The brute force employed by the appellant,
completely contradicts the claim that he had no intention to kill the victim.
(People v. Orongon, 58 Phil. 421; People v. Flores, 50 Phil. 549; People v.
Reyes, 61 Phil. 341).

The court a quo considered four aggravating circumstances as having attended the
commission of the offense, namely: 1) treachery; 2) use of superior strength; 3)
relationship; and 4) disregard of tender age.

Treachery attended the killing of the 5-month old Raul. In People vs. Valerio, Jr., L-4116,
February 25, 1982, 112 SCRA 231, this Court en banc, speaking through Mme. Justice
Ameurfina Melencio-Herrera, said:

Treachery, as alleged in the Information, must be considered qualifying and

must be appreciated against the accused. The killing of a child is murder
even if the manner of attacked was not shown. The qualifying
circumstances of treachery or "alevosia" exists in the commission of the
 crime of murder when an adult person illegally attacks a child of tender
years and causes his death.

Clearly, there was abuse of superior strength by the accused over the defenseless child,
but the same cannot be appreciated as an additional aggravating circumstance, it being
absorbed in treachery. (People vs. Layson, L-25177, October 31, 1969, 30 SCRA 92).

The circumstance of disregard of age cannot also be considered because it has neither
been proved nor admitted by the accused that in committing the crime he had intended
to offend or insult the age of the victim. (People vs. Mangsant, 65 Phil. 548). Besides,
this circumstance is included in that of treachery. (People vs. Limaro, 88 Phil. 35, 42).

Under Article 246 of the Revised Penal Code, one guilty of parricide shall be punished by
the penalty ranging from reclusion perpetua to death. In view, however, of the abolition
of the death penalty in the 1987 Constitution, the proper penalty for the offense now is
only reclusion perpetua.

In the instant case, the crime was committed with the attendance of one aggravating
circumstance and no mitigating circumstance. Conformably with the provisions of Article
63, paragraph 1, of the Revised Penal Code, the proper penalty to be imposed on the
accused is reclusion perpetua. The indemnity in the amount of Twelve Thousand Pesos
(P12,000.00) ordered by the court a quo to be paid by the accused to the heirs of the
deceased, Raul Retubado, is increased to Thirty Thousand Pesos (P30,000.00).

ACCORDINGLY, with the modifications above indicated, the judgment appealed from is
affirmed in all respects, with costs.

Narvasa (Chairman), Cruz, Gancayco and Griño-Aquino, JJ., concur.

People of the Phil. vs. Sofronio Amoto, G.R. No. L-28273, Jan. 18, 1982

FACTS:

This is an automatic review of the decision of the Court of First Instance of Agusan,
Branch II, promulgated on September 18, 1967, in Criminal Case No. 3168, entitled
"People of the Philippines, plaintiff versus Sofronio Amoto, accused", the dispositive
portion of which reads:

FOR ALL THE FOREGOING CONSIDERATIONS, the Court hereby renders

judgment finding the accused SOFRONIO AMOTO guilty beyond
reasonable doubt of the crime of murder, provided for and punished
under Art. 248 of the Revised Penal Code, and it being the painful but
imperative duty of the Court to do so, there being no mitigating
circumstance to off-set the aggravating circumstance of abuse of superior
strength, hereby sentences said accused to the maximum penalty of
DEATH by electrocution, to indemnify the heirs of the deceased Milagros
Pagalan in the sum of P 12,000.00, and to pay the costs.

The pair of scissors, Exh. "B" used in the commission of the crime, is
hereby ordered confiscated in favor of the Government, the same to be
turned over to the Agusan PC Command at Butuan City for proper
disposal.

SO ORDERED. 1

In an information filed on November 4, 1965, the accused, Sofronio Amoto, was

charged with the crime of murder as follows:

That at or about 11:00 o'clock in the morning of October 11, 1965, at

Agusan Pequeno, City of Butuan, Philippines, and within the jurisdiction of
this Honorable Court, the said accused with malice aforethought and with
deliberate intent to take the life of Milagros Pagalan, did then and there
willfully, unlawfully, and feloniously, suddenly, unexpectedly, and
treacherously, with abuse of superior strength, attack and stab the latter
with a pair of scissors, wounding her on the vital parts of her body as a
result of which she died.

CONTRARY TO LAW: (Art. 248 of the Revised Penal Code)

City of Butuan, Philippines, November 3, 1965. 2

When arraigned on May 3, 1967, the accused pleaded not guilty. 3

The facts, as narrated in the brief for the Appellee, are:

On October 11, 1965, the girl Carmelita Dangculos was in Agusan
Pequeno City of Butuan, in an extension of the house (separated only by a
wooden partition) of the accused Sofronio Amoto where the latter lived
with his common-law wife Amalia Florendo, and the latter's two (2)
children, Arsenic Pagalan and Milagros Pagalan (pp. 26-27, 34, t.s.n.).

At about 11:00 o'clock in the morning of October 1, 1965, while Carmelita

was listening to the radio, she felt the house shaking a little; a few
moments later she heard someone shouting for help. The voice was
ascertained to that of Milagros Pagalan by Carmelita and her sister
Venturada who was then washing clothes. Upon looking out of the
window Carmelita and Venturada saw Milagros covering her breasts with
her left arm and her mouth was oozing with blood; she was going towards
the house of Ildefonso Goldemaro, only about five to six meters away (pp.
28-31, 35, 38-39, 42-44, t.s.n.). Later they saw Milagros coming down
from the house of Ildefonso Goldemaro with the latter assisting her as she
walked toward the street (pp. 30-31, 40, t.s.n., Exhs. D & E, pp. 5, 7,
rec.).

Wilfredo Aparre, a member of the City Police Department of Butuan City

was then about 25 meters from the scene of the aforementioned incident.
When he saw that Milagros was wounded, he asked her what happened
to her and Milagros replied I was raped and stabbed by Daddy' (pp. 48-
50, 53, 62, t.s.n., EXH. F, p. 10, rec.). About 12:00 o'clock noon of that
same day the accused was arrested by Wilfredo Aparre (pp. 57-61, 71-72,
t.s.n.).

Milagros Pagalan died as she reached the hospital where she had been
taken by Ildefonso Goldemaro. Dr. Angeluz R. Tupaz of the City Health
Office of the City of Butuan made an autopsy on the cadaver at the
Raniel's Funeral Parlor of that city, and set forth his post mortem findings,
in the report Exh. H which reads:

The body is that of a young adult female, fairly nourished,

fairly developed, in a state of rigor mortis with multiple stab
wounds mostly on the anterior chest walls. Decease wore a
straight cut dress with no underwear (panty).

Old scar present about the anterior portion of the left thigh
about 2 cm.

Abrasions, lateral aspect, elbow right; knuckle, right.

Scratched wound, V-shaped, zygomatic left.

 Stab wounds, 0.5 cm. left side, neck; 0.5 cm. lower
extremity sharp, vertical in position, right extremity sharp,
left extremity, dull, 1 cm. from the anterior midline, 1.5 cm.
below the medial aspect of the left clavicle, non-perforating;
2 cm., slanting, lower extremity sharp, 2 cm. from the
anterior midline, left, 112 cm. from the sole of the left foot,
perforating the left anterior chest wall thru the 2nd
intercostal space, directed posteriorly to the left, slightly
downwards, perforating the base of the right ventricle 2.2
cm., horizontal in position, lateral extremity sharp, 6 cm.
from the anterior midline, 4.2 cm. over the right nipple, 111
cm. from the sole of the right foot perforating the right
anterior chest wall thru the 2nd intercostal space, directed
posteriorly and downwards, incising the right side of the
diaphragm to the right dome of the liver.

Lacerated wound, 3 cm. long, horizontal, medial 3rd.; dorsal

aspect, forearm, left; medial portion, hand, left; superior
femor eminence hand, left.

CAUSE OF DEATH; Shock, severe internal hemorrhage

secondary to stab wounds of the chest.

Genital examination revealed an old deep hymenal laceration

at 1:00 o'clock in the face of the watch, another at 5:00
o'clock. There. is presence of whitish secretion coming out of
the vaginal canal. Uterus normal.

Stomach contains partially digested food materials.

Hemothorax, severe, left and right.

Himoperitoneum, severe.

Heart normal and empty of blood.

Other visceral organs normal.

(Exh. H, p. 66, 109-1 10, rec.; pp. 74-75, 81, t.s.n.).

At the General Investigation Section of Butuan City Police Department,

that afternoon of October 11, 1965, a statement in question-and-answer
form was given by the accused in which he admitted that he had killed
Milagros Pagalan the reason being that when he advised her to behave as
a woman, she demurred saying: "Why do you mind me", therefore he
 stabbed her with a pair of scissors about six (6) times after he had first
gone down from the house and drank intoxicating liquor. He signed the
statement under oath before Special Counsel Francisco Parcon, that same
day, October 11, 1965 (pp. 3-15, 81, t.s.n.; Exhs. A, A-6, B, pp. 65, 73,
rec.).

On October 14, 1965, another statement was signed and subscribed by

the accused before Special Counsel Ricardo S. Castillo, in which he denied
the truth of the reasons why he had killed Milagros Pagalan as given by
him in his previous affidavit of October 11, 1965. When asked what was
the truth, he gave the following story: At around 8:00 in the morning of
October 11, 1965, his common law wife left their home for the Standard
Plywood Factory where she was working; he had sexual intercourse with
Milagros in the house when they were left alone; he wanted to repeat the
act that same day, and Milagros agreed provided there was a chance to
do so; he came downstairs for a drink and when he returned to the house
he saw Milagros asleep on top of a table in the kitchen; he mounted on
top of the table and Milagros was awakened, she yielded to his desire;
while in the act of sexual intercourse, Milagros noticed that there was
somebody in the other room and she shouted for help; he told her to keep
quite but she shouted again, whereupon he forgot himself and stabbed
her repeatedly with a pair of scissors he found near the table; because
Milagros was held tight in his arms, she was not able to escape, and he
kept on stabbing her until they both fell on the floor where he continued
to stab her; afterwards she managed to escape and run towards the
house of Ildefonso Goldemaro, a neighbor (Exhs. C, C-1, pp. 11, 74, rec.
p. 81, t.s.n. ) 4

The accused assigns as errors allegedly committed by the trial court the following:

THE LOWER COURT DID NOT CONSIDER THE MITIGATING

CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY UNDER
ARTICLE 13 OF THE REVISED PENAL CODE, SECTIONS 3 and 7 WHICH
READ AS FOLLOWS:

SEC. 3. THAT THE OFFENDER HAD NO INTENTION TO

COMMIT SO GRAVE A WRONG AS THAT COMMITTED.

SEC. 7. THAT THE OFFENDER HAD VOLUNTARILY

SURRENDERED HIMSELF TO A PERSON IN AUTHORITY OR
HIS AGENTS.'
 AND SO ERRED IN IMPOSING THE MAXIMUM PENALTY FOR MURDER.

II

THE LOWER COURT DID NOT CONSIDER THAT THE CRIME COMMITTED
IS HOMICIDE AND NOT MURDER AND SO ERRED IN FINDING THE
ACCUSED GUILTY OF MURDER AND SENTENCED APPELLANT TO DEATH
BY ELECTROCUTION.

III

THE LOWER COURT DID NOT CONSIDER HOMICIDE AND SO ERRED IN

IMPOSING A PENALTY CONTRARY TO LAW. 5

In his brief, the accused contends that he should have been convicted of homicide with
two mitigating circumstances in his favor: 1) lack of intention to commit so grave a
wrong as that committed; and 2) voluntary surrender.

These claims are without merit. The trial court correctly convicted him of murder.
However, the said court's reasoning that:

... Where the evidence shows, as in this case, that the attack, although
frontal, was made with suddenness and without warning, while the
accused was embracing the deceased to insure its due execution, and the
deceased, who did not expect the attack, could not have defended
herself, there is present the qualifying circumstance of premeditation or
treachery in the commission of the crime and the crime herein committed
by the accused is murder. ... 6

is contrary to its finding that:

Seeing the pair of scissors, the accused made the preliminary stab wounds
Nos. 1 and 2 by the left neck and shoulder of Milagros which were not
fatal just to scare and silence her. But Milagros got scared indeed. She
must have thought that the accused really meant to kill her, so her
shoutings for help thereafter must have been very frantic. This was too
much for the accused. He forgot himself, as he admitted in Exh. "C" and
there and then began the merciless stabings that cause the fatal stab
wounds Nos. 3, 4 and 5 which ultimately caused the untimely death of
Milagros Pagalan. 7

This Court finds that in the commission of the crime, the accused took advantage of his
superior strength. The attack made by the accused, a man of 33 years, with a deadly
weapon such as the pair of scissors in the instant case, upon an unarmed and
defenseless young woman of 15 years, constitutes the circumstance of abuse of
superior strength. 8 His sex and the weapon used afforded him more than sufficient
means by which the young woman was overcome and rendered defenseless. This
circumstance qualifies the killing as murder.

It was likewise error for the trial court to consider abuse of superior strength as a
generic aggravating circumstance after holding that there was treachery, since the
latter, had there been one, absorbs the former. 9

The contention of the accused that he had no intention to commit so grave a wrong is
equally without merit. In a similar case, 10 this Court held that "the inflicting by the
accused of five (5) stab wounds in rapid succession ... brings forth in bold relief the
intention of the accused to snuff the life of the deceased, and definitely negated any
pretense of lack of intention to commit so serious an injury." Intention, being an
internal state must be judged by external acts, that is, by considering the weapon used,
the part of the body injured, the injury inflicted, the manner it is inflicted, and the
attitude of the mind when the accused attacked the deceased. The evidence shows that
the accused repeatedly stabbed Milagros on the chest, left side of the neck and inflicted
two lacerated wounds on her left hand, with a pair of scissors, while holding her in tight
embrace. It is clear that the accused intended to do exactly what he did and must be
held responsible for the consequences of his act. He cannot avail of the mitigating
circumstance of lack of intention to commit so grave a wrong.

The accused further claims that he is entitled to the mitigating circumstance of

voluntary surrender because he was on his way to the police station to surrender when
he was arrested by Patrolman Aparre. This claim is not substantiated, for as correctly
observed in the Brief for the Appellee:

... The allegation that the accused was on his way to the police station
was made by the accused himself and is very very doubtful. But even if it
is conceded that the accused was going to the police station when he was
arrested, it does not necessarily follow that he was going there in order to
surrender. The evidence shows that when Patrolman Aparre was asked
why the accused was then going to the police station, he replied that
'according to him he will deliver a certain note coming from the deceased'
(p. 49, t.s.n.). The accused himself never testified that he was on his way
to the police station in order to surrender. It becomes harder to believe
that the accused ever thought of voluntarily surrendering to the police
authorities in the light of the statement of Ildefonso Goldemaro to the
effect that he asked the accused to help him carry Milagros (who died
before reaching the hospital) but he declined to do so (Exh.G-3 p. 77,
rec.; pp. 68-81, t.s.n.). 11

The crime committed by the accused is murder, qualified by abuse of superior strength,
punishable under Art. 248 of the Revised Penal Code by reclusion temporal in its
maximum period to death. There being no mitigating nor aggravating circumstance, the
penalty to be imposed should be that in its medium period, reclusion perpetua.

WHEREFORE, the decision of the Court of First Instance of Agusan in Criminal Case No.
3168, entitled "People of the Philippines, plaintiff versus Sofronio Amoto, accused", is
hereby AFFIRMED with the sole modification that the accused is sentenced to reclusion
perpetua, and to indemnify the heirs of the victim in the amount of P12,000.00, and to
pay the costs.

SO ORDERED.
People of the Phil. vs. Ricardo Francisco, et al., G.R. Nos. 118573-74, May 31,
2000 15.

DECISION

GONZAGA_REYES, J.:

This is an appeal interposed by accused Ricardo, Reynaldo, and Teodoro, all surnamed
Francisco, and Antonio Sioco from the Joint Decision[1] dated November 7, 1994 of the
Regional Trial Court (RTC) of Malabon, Metro Manila, Branch 170 in Criminal Cases Nos.
12196-MN & 12197-MN finding all the accused guilty beyond reasonable doubt of the
crimes of murder and frustrated murder.

Two (2) Amended Informations[2] for Murder and Frustrated Murder were filed against
accused Ricardo Francisco y Cupcupin, Reynaldo Franciso y Cupcupin, Teodoro
Francisco y Cupcupin, Antonio Sioco, Cesar Nuestro[3], Efren Francisco, Jaime @
Daga[4] and John Doe @ Nonoy[5] as follows:

Amended Information for Murder

"That on or about the 27th day of October, 1992, in the Municipality of

Malabon, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a bladed
weapon, conspiring, confederating together with all the other accused,
who are all at large, with intent to kill, evidence (sic) premeditation and
abuse of superior strength, did, then and there, willfully, unlawfully, and
feloniously attack, assault and stab with the said weapon one SERAFIN
MANGALI, JR., hitting the victim on the chest, thereby inflicting upon the
victim stab wound which caused his immediate death."

Amended Information for Frustrated Murder

"That on or about the 27th day of October, 1992, in the Municipality of

Navotas, Metro Manila, Philippines and within the jurisdiction of his
Honorable Court, the above-named accused, armed with a bladed
weapon, conspiring, confederating and helping with one another,
together with all the accused who are all at large, with evidence
premeditation and abuse of superior strength, did, then and there,
willfully, unlawfully and feloniously attack, assault and stab with the said
weapon one ARIEL DE DIOS y FRANCISCO, hitting the latter on his
abdomen and left finger, thereby performing all the acts of execution
which would produce the crime of Murder, but did not produce the same
for reason of cause independent of the will of the accused, that is due to
the timely and able medical attendance given to said victim which
prevented his death."
Upon arraignment, accused Ricardo Francisco (RICARDO), Reynaldo Francisco
(REYNALDO), Teodoro Francisco (TEODORO), Efren Francisco (EFREN)[6] and Antonio
Sioco (ANTONIO)[7] with the assistance of counsel, individually entered a plea of not
guilty.

EFREN underwent a psychiatric examination[8] and was diagnosed as suffering "from

psychosis or insanity classified as schizophrenia rendering him incompetent to stand
court trial". The criminal cases filed against him were therefore suspended and he was
ordered confined at the National Center for Mental Health in Mandaluyong for
treatment.[9]

The RTC summarized the facts as culled from the testimonies of the witnesses
presented by the prosecution and by the defense as follows:

"On October 27, 1992 at about midnight, Ariel De Dios and Serafin
Mangali went to the house of Manny Pascual at Naval Street, Navotas.
After a short talk at the gate, the three proceeded in a nearby store on
board a jeep. They ordered San Miguel Pale Pilsen for each one of them,
sat on a bench and continued their conversation. Shortly thereafter, a
man identified as Efren Francisco, who was sitting on the right side of
Ariel spat at the latter. Ariel asked Manny why said man was acting like
that and whether he knew the man. Manny told Ariel not to mind the
man. The three continued their conversation but Ariel got irked when the
man spat at his right arm again. Ariel then told Manny that they better go
home as he does not like what the man was doing. Ariel paid the bill and
told Manny and Serafin to board the jeep. Ariel then talked with the man
and asked the latter why he spat at him. The man did not answer and just
kept on smiling. Ariel then hit the man on the nape and the latter ran
away. With Serafin on the wheel, the three proceeded to Mannys house.
After talking for about five minutes at the gate, Serafin and Ariel boarded
on the jeep while Manny went inside the house.

Ariel De Dios narrated the incidents that took place thereafter as follows:
that Serafin maneuvered the jeep along M. Naval on their way to
Malabon; that upon passing by the gate of Mannys house, Ariel saw a
man, who turned out to be accused Antonio Sioco, a few meters from the
gate pointing at them and saying "Heto na sila, heto na sila" that
immediately thereafter, the headlights of a coming jeep that was
occupying the lane they were then traversing were turned on; that Serafin
stepped on the brakes and their jeep went off at a distance of about two
feet from the coming jeep; that there were about seven persons on board
the other jeep, the driver, two were seated in front, one on the left front
fender and two or three at the back that the one on the fender, who
turned out to be Ricardo Francisco was the first to alight followed by the
rest; that Ricardo went towards Serafin, grabbed the latter by the neck
and said "Putang ina mo, bumaba ka diyan"; that Serafin held on the
steering wheel; and resisted the pull; that another person who came from
the jeep grabbed Serafin by the arm and tried to loosen Serafins grip on
the steering wheel; that another person, who turned out to be accused
Teodoro Francisco came armed with a knife-like instrument and stabbed
Serafin on the left armpit; that Ariel got stunned and was holding on the
bar looking on what was happening when somebody, who turned out to
be Reynaldo Francisco, suddenly pull his right arm and ordered him to get
down; that when Ariel was in the act of alighting from the jeep, his right
foot already out, Reynaldo stabbed him on the left part of the stomach;
that Ariel asked Reynaldo why he stabbed him but the latter got stunned
(napatanga) and did not answer; that Ariel then pushed Reynaldo, ran at
the rear portion of the jeep and told Serafin to run ("Pare, takbo na
tayo"); that at that instance, Serafin was being mauled beside the jeep;
that Ariel ran towards Mannys gate, knocked twice and called Mannys
name twice; that Teodoro and Efren chased Ariel and the latter proceeded
on the pathway going to the garage at the back but after two or three
steps in the pathway which was very dark, Ariel went back to the street
where he came from and he saw Serafin sprawled on the ground; that
Ariel also saw Teodoro, after which, he ran as fast as he can towards the
back garage and called for Mannys father; that when no one was
answering, Ariel scaled on the wall, went up the roof, knocked on the
window and asked for help; that Mannys father went out together with his
daughter and Ariel told them to help Serafin as he was being mauled; that
Mannys father went out and returned after a while informing Ariel that
Serafin was okay and was brought to the hospital by Manny and that Ariel
was thereafter brought at the Manila Doctors Hospital.

Emmanuel Pascual testified that after Serafin and Ariel left, he proceeded
towards their main door; that he was still knocking at their door when he
heard Ariel called his name twice; that he walked casually towards the
gate and opened it; that he saw people in front of the gate and somebody
pointed to the right; that upon looking to the right, he saw Ariels jeep and
he walked faster towards the jeep; that he saw a body under the jeep and
he ran; that while he was running, Teodoro who was a few feet away
from the jeep told him "Pati lokoloko pinapatulan nila"; that there were
other persons in the area but he was able to recognize only two, Boy and
Tenok who turned out to be Ricardo and Reynaldo, respectively; that he
saw Serafin full of blood; that he asked Serafin where Ariel was but
Serafin did not answer; that he carried Serafin inside the jeep and brought
him to Saint Josephs Clinic; that there were no facilities in said clinic so he
brought Serafin to Martinez Hospital; that he made a few phone calls after
which, the doctor informed him that Serafin was already dead; and the he
noticed that the two front teeth of Serafin were broken.

Dr. Ludivino J. Lagat, the NBI Medical Specialist who conducted an

autopsy on the body of Serafin Mangali testified that the deceased
sustained a linear abrasion on the right cheekbone and stab wound on the
left side of the body below the armpit; that the stab wound was 2.0 cm
big and 12 cm deep having one sharp and one blunt extremity directed
backward medially and downward, entering the thoracic cavity and
penetrating the lower lobe of the left lung and that 1600 cc of blood was
recovered inside; that the stabwound could have been caused by one
bladed sharp pointed instrument and is the cause of death of Serafin
Mangali.

Serafin Mangali, Sr. testified that his son, the deceased Serafin Mangali,
Jr. was an employee of the Department of Agrarian Reform during his
lifetime with an annual income of P22,524.00 (Exhibit "E") that he
spent P29,500.0 for the funeral services of his son (Exhibit "F") and the
additional sum of P15,000.00 for miscellaneous expenses during the
wake; and that he will pay P50,000 for his share in the legal services in
these cases.

Dr. Joaquin Tan, a dentist at the Department of Agrarian Reform testified

that on May 8, 1992, he made a thorough dental examination on the
deceased Serafin Mangali Jr. and as per dental record of the latter, his
upper and lower teeth were complete (Exhibit "G"); and that he issued a
certification to that effect on March 16, 1994 (Exhibit "G-1").

Dr. Dominador Chansiopen of the Manila Doctors Hospital identified the

Medical Record of Ariel De Dios (Exhibit "H") and testified that he
attended to Ariel De Dios at 1:30 oclock in the early morning of October
27, 1992; that the latter sustained wound at the mid clavicular line post
gastric stomach, perforating the colon through and through, caused by a
stab thrust, which required operation for gastric repair or gastrophy, and
repair of the transverse colon or transverscolontraphy; that the said
wound if left untreated would have caused the patients death; that he
further noted lacerated wound in Ariels finger, abrasion in the side of the
abdomen and in the small area of the hand.

On the other hand, the defense witnesses confirmed the presence of the
accused Antonio Sioco and the Francisco brothers at the scene of the
crime.
Raul Sosa, a compadre of accused Teodoro and Ricardo Francisco claims
to have witnessed the incident while he and Rogelio Pineda were waiting
for a ride. He testified that Teodoro Francisco, upon alighting from the
jeep heading for Navotas, immediately approached the driver of the jeep
heading for Malabon, whom he came to know later to be Serafin Mangali,
and pulled out the latter while Reynaldo Francisco approached the
passenger, whom he came to know later to be Ariel De Dios, and
thereupon stabbed the latter; that Ariel alighted and ran away; that
Teodoro dropped off Serafin and chased Ariel but failed to overtake the
latter who turned to the next street; that Teodoro returned together with
Manny Pascual whom he met along the way; that there was a commotion
on the jeep but his attention was focused on Teodoro and Ariel; that he
did not see Efren Francisco during the incident; and that he saw Antonio
Sioco on the way to the jeep.

Rogelio Pineda corroborated the testimony of Raul Sosa and further

testified that while Teodoro was chasing Ariel, Serafin alighted and went
at the back of the jeep where he met Ricardo; that the two had an
argument and moments later, Ricardo stabbed Serafin; that when Serafin
sprawled on the ground, Ricardo disappeared and the latters companion
scampered away; that during the stabbing, Efren was standing nearby
while Antonio Sioco was in front of the jeep; and that Ricardo, Efren and
Antonio left together.

For his part, accused Antonio Sioco testified that he was with Teodoro,
Reynaldo, Ricardo and some other companions drinking beer in a store
when Teodoro was informed by a saleslady that their brother Efren was
kicked and hit at the nape by three persons who left on board a vehicle;
that Teodoro thereupon talked into going after the said three persons to
confront them why they did such thing; that the Franciscos and some of
their companions hurriedly boarded a jeep while he was left behind; that
upon hearing the skidding sound of the jeep coming to a halt, he followed
his companions; that upon arrival at the scene, he saw Ariel De Dios
standing beside the jeep in confrontation with Reynaldo and Ricardo while
Serafin was still in the steering wheel in confrontation with Teodoro and
two others; that when Ariel was about to hit Reynaldo, the latter stabbed
the former; that Ariel who thereafter ran was chased by Teodoro; that
Serafin alighted from the jeep and a commotion ensued and when Serafin
went near Ricardo, the latter stabbed Serafin.

Ricardo Francisco claims that upon hearing the report that their brother
Efren was ill-treated by three persons, Teodoro told him and their brother
Reynaldo to stay behind and not to follow him as he will just talk to the
persons concerned but he and Reynaldo insisted in going; that during the
 confrontation, Ariel was about to hit his brother Reynaldo with a black
hard thing when Reynaldo stabbed Ariel; that Ariel who thereafter ran was
chased by Teodoro; that Serafin alighted from the jeep and attacked him
with a bottle of Coke which landed on his left shoulder; that when Serafin
was about to draw something from his waist and uttered "I will kill you, I
will kill you", he immediately stabbed him (Serafin); that he had a knife
because he was peeling a mango during their drinking spree and he forgot
to leave it.

Teodoro Francisco further corroborated the testimony that Reynaldo

merely acted in self-defense when he stabbed Ariel. He likewise stated
that he ran after Ariel in order to help the latter."[10]

The RTC found the accused guilty beyond reasonable doubt of the crimes charged and
rendered judgment on November 7, 1994, the dispositive portion of which reads:

"WHEREFORE, in view of the foregoing, judgment is hereby rendered

finding accused Teodoro, Reynaldo and Ricardo, all surnamed Francisco,
as well as Antonio Sioco guilty beyond reasonable doubt of the crime of
Frustrated Murder in Criminal Case No. 12196-MN and of Murder in
Criminal Case No. 12197-MN, and hereby sentences each one of them as
follows:

1. In Criminal Case No. 12196-MN, to suffer an indeterminate penalty of

eight (8) years and one (1) day of prision mayor as minimum to fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal as
maximum;

2. In Criminal Case No. 12197-MN, to suffer the penalty of reclusion

perpetua;

3. To indemnify, jointly and severally, the heirs of Serafin Mangali, Jr. the
sum of P44,500.00 as actual damages plus the further sum of P50,000.00
for the death of said Serafin Mangali, Jr. and the cost of suit.

Let the accused be credited with whatever preventive imprisonment they

have undergone in connection with these cases.

Let the records of these cases be sent to the archives pending the trial of
accused Efren Francisco and the arrest of all the other accused."[11]

In so ruling, the court a quo found that there was a conspiracy as the accused acted
pursuant to a common criminal design as the acts performed by them individually
thereafter were concerted and were so connected as to unequivocally show the
existence of a conspiracy; and that the accused took advantage of superior strength in
executing their criminal design in that Teodoro sought the assistance of his companions
and despite the superiority in number, the conspirators even armed themselves with
knives.

Hence, the present appeal where the Francisco brothers RICARDO, REYNALDO and
TEODORO, assign the following errors allegedly committed by the trial court:

"1. THE COURT A QUO ERRED IN RELYING ON POSITIVE

IDENTIFICATION OF THE ACCUSED-APPELLANTS AS THE
PERPETRATORS OF THE CRIMES;

2. THE COURT A QUO ERRED IN GIVING FULL FAITH AND CREDIT

TO TESTIMONIES OF PROSECUTION WITNESSES ARIEL DE DIOS
AND EMMANUEL PASCUAL, DESPITE THEIR IMPROPER MOTIVES,
BIASES AND INTERESTS IN TESTIFYING AGAINST THE ACCUSED-
APPELLANTS;

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO

PROSECUTION'S VERSION RATHER THAN ON THE DEFENSE
VERSION ON HOW DECEASED SERAFIN MANGALI, JR., WAS
STABBED;

4. THE COURT A QUO ERRED IN IGNORING ACCUSED-APPELLANT

RICARDO FRANCISCO'S JUDICIAL ADMISSION OF BEING THE
ASSAILANT OF THE DECEASED SERAFIN MANGALI, JR.;

5. THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT

TEODORO FRANCISCO THE ASSAILANT OF DECEASED MANGALI,
JR.;

6. THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT

REYNALDO FRANCISCO THE ASSAILANT OF ARIEL DE DIOS;

7. THE COURT A QUO ERRED IN NOT ACQUITTING THE ACCUSED-

APPELLANTS ON THE GROUND OF REASONABLE DOUBT;

AND ASSUMING IN GRATIA ARGUMENTI, THAT ACCUSED, OR

SOME OF THEM, ARE GUILTY:

8. THE COURT A QUO ERRED IN FINDING CONSPIRACY AMONG

THE ACCUSED-APPELLANTS;

9. THE COURT A QUO ERRED IN FINDING THAT THE QUALIFYING

CIRCUMSTANCE OF ABUSE OF SUPERIOR STRENGTH ATTENDED
THE COMMISSION OF THE TWO OFFENSES;
 10. THE COURT A QUO ERRED IN NOT APPRECIATING THE
MITIGATING CIRCUMSTANCE OF;

A. PHYSICAL DISABILITY;

B. LACK OF INTENT TO COMMIT SO GRAVE A WRONG;

C. OFFENDED PARTY'S PROVOCATION IMMEDIATELY

PRECEDED THE ACT.

IN IMPOSING THE PROPER PENALTIES;

11. THE COURT A QUO ERRED IN FINDING COLLECTIVE

CRIMINAL LIABILITY OF THE ACCUSED-APPELLANTS;

12. CONVICTING THE ACCUSED-APPELLANTS FOR FRUSTRATED

MURDER IN CRIMINAL CASE NO. 12196-MN, DESPITE THE
ABSENCE OF ALLEGATION OF INTENT TO KILL IN THE
INFORMATION."[12]

Accused-appellants Francisco brothers contend that the testimony of lone prosecution

witness, Ariel De Dios (ARIEL) needs corroboration. They argue that his testimony is
"erratic and unreliable" for being contrary to the evidence. Moreover, ARIEL was a
biased, partial and ill-motivated witness for he was impelled to get even with the
accused-appellants for the injuries he suffered.

Accused-appellants further point out that ARIELS identification of the accused-

appellants cannot be characterized as positive for it was unreliable considering that it
was made immediately after the warrantless arrest of TEODORO, RICARDO and
REYNALDO who were brought to ARIEL's bedside at the Manila Doctor's Hospital for
identification, which was "pointedly suggestive" as the identities of the accused-
appellants were "fed" by the police officers who arrested them. ARIEL was unfamiliar
with the physical features of accused-appellants who being brothers, bear a striking
resemblance with one another and it would be extremely probable that ARIEL could
have mistaken one for the other in making his identification. Moreover, ARIELs view
was obstructed by SERAFIN's assailant since ARIEL was seated in the front passenger
seat of the jeep at the moment he was being attacked and assaulted by two of the
assailants. His attention was therefore focused on the latter and on his own safety and
survival. In addition, accused-appellants claim that since the headlights of both jeeps
were on, the sudden flash of glaring light from the headlights of the approaching
vehicle would have caused temporary blindness on the passengers of the other vehicle
thus making it highly improbable for ARIEL to see and identify the occupants of the
other jeep.
Accused-appellants also attack the veracity of the testimony of Emmanuel Pascual
(MANNY). They claim that MANNY lied when he testified that he did not know EFREN
when, by his own admission, accused-appellants Francisco brothers were his neighbors
since he "was a kid." The sudden decision to leave the eatery can be explained by the
fact that MANNY may have warned and alerted ARIEL of the presence and possible
retaliation from the Francisco brothers who were then drinking inside the eatery.

Accused-appellants maintain that SERAFIN was stabbed not while he was seated at the
steering wheel but while he was standing beside the jeep and engaged in a heated
argument with the accused-appellants after he alighted therefrom. According to them,
the testimony of Raul Sosa[13] reveals that RICARDO, John Doe and TEODORO
approached SERAFIN telling the latter to get off the jeep and angrily demanded an
explanation why the latter's group maltreated EFREN. After SERAFIN alighted from the
jeep, ARIEL ran away in an attempt to flee from the assault of RICARDO and John Doe.
When RICARDO and John Doe stabbed SERAFIN, TEODORO was already in pursuit of
the fleeing ARIEL. It is therefore improbable that TEODORO stabbed SERAFIN because
he was then pursuing the fleeing ARIEL.

The theory of the defense is supported by RICARDOs testimony where RICARDO

admitted having stabbed SERAFIN in open court which, under Section 4, Rule 129 of
the Rules of Court is a judicial admission that does not require proof.

The above-mentioned theory is also alleged to be supported by the medico-legal

findings as can be seen from the nature and location of the injury sustained by
SERAFIN. The direction of the wound was "horizontal," "directed backward medially and
downward" which indicates that the assailant is in a position higher than the victim. If
the sharp portion was located "medially", it means that the assailant delivered the fatal
thrust at a horizontal, swinging motion, from a slightly higher position going downward
towards the left armpit of SERAFIN. Considering the nature and location of the stab
wound of SERAFIN, the relative positions of TEODORO, RICARDO and John Doe, the
only direction TEODORO could have delivered the fatal stab wound is sideways in an
upward motion, in which case, the direction of the stab wound should have been
upward and not downward as found by the medical report. Besides, TEODORO could
not have inflicted the fatal stab wound as he was unarmed. Except for the lone
testimony of ARIEL, witnesses ANTONIO and RICARDO were unanimous in stating that
TEODORO was not holding a knife.

Accused-appellants further claim that the prosecution's theory of conspiracy does not
find support in law and evidence. The mere fact that accused-appellants were
companions in a drinking spree does not make them conspirators. There was no clear
and convincing proof that their concerted acts were prompted by a common criminal
design in the stabbing of the two victims. Accused-appellants never planned to kill the
victims. The fact that they looked for the person who allegedly ill-treated EFREN is not
indicative of the intention to kill the victims; rather, it is in full accord with the common
experience of mankind and it was a natural reaction of TEODORO, being the eldest of
the Francisco brothers, to look for those who maltreated his brother.

Anent the qualifying circumstance of taking advantage of superior strength, numerical

superiority is not the sole criterion. Even the sparse evidence established that there was
only one knife used during the two stabbing incidents; this knife was the one RICARDO
admitted he used in stabbing SERAFIN, the same knife he previously used to peel
mangoes while the group of accused-appellants were drinking inside the eatery. There
being no abuse of superior strength, the RTC should have made the conclusion that the
killing was not murder but homicide and only the culprit who actually perpetrated the
crime is liable.

The accused-appellants likewise claim that the RTC erred in not appreciating the
mitigating circumstances of physical disability, lack of intent to commit so grave a
wrong, and the offended party's provocation immediately preceding the act. RICARDO
has a limp due to polio, which should be considered as a physical defect analogous to
Article 13 (8) or (10) of the Revised Penal Code. Moreover, the fact that the
perpetrators had no intention to kill anybody considering that the stabbing arose out of
uncontrolled impulse rather than a deliberate design to take the victims' lives should
also mitigate their liability. Finally, ARIELs admission that he hit the nape of EFREN
should be considered as constituting sufficient provocation that impelled the
perpetrators to do what they did.

As regards the conviction of Frustrated Murder, the Information is defective in the

absence of an allegation of intent to kill pursuant to Section 6, Rule 110; the
allegations, and not the caption, in the indictment determine what offense is charged.
In murder cases, the presence or absence of the allegation of "intent to kill" in the
Information becomes decisive in determining the proper offense. The Joint Decision
violates Section 14, Article III of the Constitution which is a basic right of the accused
to be informed of the nature and cause of accusation in view of the conviction of
accused-appellants for Frustrated Murder, in the absence of the allegation of intent to
kill in the Information. Moreover, the stab wound sustained by ARIEL in his abdomen
was insufficient to cause his death; in fact, he was still able to run and climb the roof of
a house.[14]

Accused-appellant Antonio Sioco (ANTONIO) filed a separate appellant's brief raising a

single assignment of error, to wit:

"THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT

ANTONIO SIOCO GUILTY AS A CONSPIRATOR IN THE CRIME OF
FRUSTRATED MURDER AND MURDER..

ANTONIO strongly disagrees with the finding of the court a quo that there was
conspiracy as all the accused acted pursuant to a common criminal design. He argues
that TEODORO's plan was only to talk to the persons who "hit and kicked" their
brother; that there was no agreement or common design because when TEODORO
asked the group to go and look for the man who harmed their brother, he was
addressing nobody in particular; and that appellant ANTONIO himself and two other
members of their drinking group were left behind. On the conspiracy angle, ANTONIO
further contends that the uncorroborated testimony of ARIEL that the former uttered
the words "Heto na sila, heto na sila" or "yan na sila, ayan na sila" borders on physical
impossibility aside from the fact that no other witness confirmed such fact. ANTONIO
allegedly opted to be left behind in the store and followed the group only when both
vehicles were already at the scene of the incident and the protagonists were already
shouting at each other.[16]

On the other hand, the appellee, through the private prosecutor and the Office of the
Solicitor General, maintain that the guilt of the accused-appellants has been proved
beyond reasonable doubt. The appellee avers that ARIEL positively identified the
accused-appellants as his and SERAFINs assailants. ARIEL was able to identify the
accused-appellants as the assailants since the street where the stabbing occurred was
well lighted. His testimony is supported not only by the physical evidence but also by
the medico-legal report. Contrary to accused-appellants claim, the records disclose that
ARIEL was not biased and not motivated to falsely testify against the accused-
appellants. On the contrary, ARIELs testimony is convincing and trustworthy and is
sufficient to convict herein accused-appellants. Likewise unworthy of any weight is
RICARDOs admission that he stabbed SERAFIN because it was made not only to back
up his claim of self-defense but also to absolve TEODORO from any responsibility for
the death of SERAFIN. It cannot therefore be considered as an admission against
interest. As regards accused ANTONIO, he is guilty as a conspirator in the commission
of the crimes charged inasmuch as the testimonies of the prosecution witnesses show
that the accused-appellants had a common design to kill SERAFIN and ARIEL.

It is further contended by the appellee that the accused-appellants were properly

convicted of murder. The RTC correctly appreciated the qualifying circumstance of
abuse of superior strength, which attended the commission of the crimes. The accused-
appellants not only relied on their numerical superiority but the two, RICARDO and
TEODORO, were also armed with deadly weapons when they attacked SERAFIN and
ARIEL.

Finally, the accused-appellants claim that the RTC should have considered physical
disability, lack of intent to commit so grave a wrong and provocation as mitigating
circumstances deserves scant consideration. First, there was no showing that
RICARDOs physical defect i.e. he had a limp caused by polio, restricted his means of
defense or action or communication with his fellow beings. Second, lack of intent to
commit so grave a wrong cannot be appreciated when the wounds inflicted are serious
enough to cause and in fact caused the crime charged. Thirdly, the murder and
frustrated murder committed by the accused-appellants is in great disparity with the
provocation made by SERAFIN and ARIEL. Moreover, ample time had lapsed from the
time of the provocation to the time of the killing. Besides, the provocation did not
originate from ARIEL and SERAFIN but from EFREN, the brother of three of the
accused-appellants.[17]

After a careful and meticulous review of the evidence on record, we find no cogent
reason to depart from the RTCs judgment convicting RICARDO, REYNALDO and
TEODORO.

In their first assigned error, the accused-appellants assail ARIELs identification of them
and claim that his identification was not positive.

We are not persuaded.

The fact that ARIEL was in the hospital when he identified the accused-appellants will
not affect his identification of them for there is no law, which requires a police line-up
as essential to a proper identification provided that the identification was not suggested
to the witness by the police.[19] As seen from the above, there is nothing in the
testimony of ARIEL that shows that the police suggested that the suspects presented to
him were his assailants. The police merely asked him whether he could recognize any of
them and whether any of them were his assailants. He answered positively by pointing
his finger at them. He could not have been mistaken in the identification of the
accused-appellants considering that the street where he and SERAFIN were assaulted
was well lit.[20] His identification of the accused-appellants was corroborated by the
testimony of MANNY who identified the accused-appellants as being present in the
vicinity where the crimes were committed.[21]Significantly, ARIEL also positively
identified each of the accused-appellants in court.[22]

In their second to sixth assigned errors, the accused-appellants attack the veracity of
the testimony of ARIEL and claim that he was not a credible witness. They also fault the
RTC for not believing the witnesses for the defense.

ARIELs testimony, as found by the RTC, was straightforward, categorical and free from
self-contradiction.[24] This Court has ruled on countless occasions that the trial court is
in the best position to determine facts and to assess the credibility of witnesses as it is
in a unique position to observe the witnesses deportment while testifying which
opportunity the appellate court is denied on appeal; this Court will respect the findings
and conclusions of the trial court provided that they are supported by substantial
evidence on record.[25] In the case at bar, we find no cogent reason to disturb the trial
courts appreciation of the evidence and find no basis therein to rule that ARIELs
testimony was not credible. Besides, the appellant has failed to prove any improper
motive on the part of ARIEL to falsely impute such a terrible crime to herein accused-
appellants. The testimony of a single witness, when credible and trustworthy, is
sufficient to convict and must be given full faith and credence when no reason to falsely
testify is shown.[26] The mere fact that the principal witness was the victim of the crime
does not make him a biased witness and does not make his testimony incredible. It
would be unnatural and illogical for him to impute the crime to an innocent person and
let the culprit escape prosecution.[27]

At any rate, ARIELs testimony is corroborated by the autopsy report the findings of
which are as follows:

"POSTMORTEM FINDINGS

Pallor, generalized.

Abrasion, linear, 2.3 cms. Right cheek.

STAB WOUND, 2.0 cms. Elliptical, clean-cut edges, almost horizontally,

sharp medial and blunt lateral extremity, located at the left mid-axilliary
line, level of the 7th intercostal space, 18.5 cms. From the anterior
median line, directed backwards, downward and medially, entering the
left thoracic cavity, then penetrating the lower lobe of the left lung,
through and through, then to the left spinuous process of the 8th thoracic
vertebrae, with an approximate depth of 12.0 cms.

Brain and visceral organs, pale.

Hemathorax, left, 1,600 c.c.

Stomach, full of rice and other food particles."[28]

ARIEL stated that SERAFIN was seated in the drivers seat with his hands on the
steering wheel when he was stabbed. The location of the stab wound sustained by
SERAFIN therefore corresponds to ARIELs testimony for in such position, most of the
left portion of his body, including the portion under his arm, was exposed to anyone
situated beside the drivers door of the jeep.

In their eighth and eleventh assigned errors, the accused-appellants argue that the
prosecution did not duly prove the existence of a conspiracy among them and should
not have found them collectively criminally liable.

We disagree.

A conspiracy exists when two or more persons come to an agreement concerning the
commission of a crime and decide to commit it.[29] Proof of the agreement need not rest
on direct evidence as the same may be inferred from the conduct of the parties
indicating a common understanding among them with respect to the commission of the
offense. It is not necessary to show that two or more persons met together and entered
into an explicit agreement setting out the details of an unlawful scheme or the details
by which an illegal objective is to be carried out.[30] It may be deduced from the mode
and manner in which the offense was perpetrated or inferred from the acts of the
accused evincing a joint or common purpose and design, concerted action and
community of interest.[31]

The circumstances leading to the stabbing of SERAFIN and ARIEL clearly and
convincingly establishes that a conspiracy existed between the accused-appellants.
When SERAFIN refused to get down from the jeep after RICARDO grabbed his neck and
attempted to pull him out, John Doe[32] attempted to loosen SERAFINs grip on the
steering wheel. TEODORO who was armed with a knife-like instrument then stabbed
SERAFIN. At the same time, REYNALDO pulled the arm of ARIEL and ordered ARIEL to
get down from the jeep. While he was getting down, REYNALDO suddenly stabbed him.
ARIEL pushed REYNALDO then ran towards MANNYs gate. TEODORO ran after him but
was not able to catch him. Clearly, each of the accused-appellants performed distinct
but simultaneous acts which when pieced together show unity of purpose and design. It
therefore becomes irrelevant as to whom amongst them actually stabbed SERAFIN
since in a conspiracy, the act of one is the act of all.[33]

Accused-appellants claim that it was RICARDO who stabbed SERAFIN and not
TEODORO in an attempt to discredit the testimony of ARIEL is unconvincing and is
merely a futile attempt to get TEODORO "off the hook". But even assuming that ARIEL
was mistaken and it was in fact RICARDO who stabbed SERAFIN, TEODORO is still
criminally liable for a conspiracy existed among them.

We however disagree with the finding of the RTC that the accused-appellant ANTONIO
was also part of the conspiracy. "In order to hold an accused liable as co-principal by
reason of conspiracy, he must be shown to have performed an overt act in pursuance
or furtherance of the conspiracy. The overt act may consist of active participation in the
actual commission of the crime itself, or it may consist of moral assistance to his co-
conspirators by being present at the time of the commission of the crime, or by exerting
moral ascendancy over the other co-conspirators by moving them to execute or
implement the conspiracy."[34] In the case at bench, ANTONIOs participation in the
stabbing incident was limited to his shouting from a distance the words "Heto na sila,
heto na sila". In a case involving the phrase "andiyan na" which has a similar import to
the phrase involved herein, this Court ruled that said phrase does not have conclusive
conspiratorial meaning for the supposedly damning utterances are susceptible of varied
interpretations.[35] We similarly find that the facts as established by the evidence do not
prove beyond reasonable doubt that he uttered those words in order to give moral
assistance to the Francisco brothers in the absence of any other concrete evidence to
prove his complicity.
In their ninth assigned error, the accused-appellants claim that the qualifying
circumstance of abuse of superior strength was not attendant in the commission of the
crime.

We rule that the RTC properly appreciated the qualifying circumstance of abuse of
superior strength and correctly convicted the accused-appellants of murder. Clearly, the
accused-appellants took advantage of their numerical superiority and the fact that two
of them were armed with bladed weapons when they attacked SERAFIN and
ARIEL.[36] SERAFIN and ARIEL, who were unarmed and were seated inside the jeep
without any means of defending themselves, were no match to their four assailants
who overpowered them.

In their tenth assigned error, the accused-appellants fault the RTC for not appreciating
as mitigating circumstances accused RICARDOs physical disability, the accused-
appellants lack of intent to commit so grave a wrong and the victims provocation, which
preceded the act. After a careful assessment of the established facts, we find that these
circumstances cannot be appreciated in their favor. The limp allegedly suffered by
RICARDO has not been shown to restrict his means of action, defense or
communication with his fellow beings as required by Article 13(8) of the Revised Penal
Code as no evidence was presented in relation thereto other than the bare allegation
that he suffered from such a physical defect. Neither can the circumstance of lack of
intent to commit so grave a wrong be appreciated considering that SERAFIN was
stabbed on his torso while ARIEL was stabbed in his stomach with the use of a bladed
weapon. The location of the stab wounds manifest accused-appellants intention to kill
and belies their claim that they did not intend to commit so grave a wrong as that
committed.[37] Finally, the mitigating circumstance of sufficient provocation on the part
of the offended party cannot be considered absent proof that the same immediately
preceded the act and that it was adequate to excite a person to commit a wrong, which
must accordingly be proportionate in gravity.[38] While ARIELs act of hitting or kicking
EFREN may have provoked the accused-appellants, we find that the retaliation of the
accused-appellants was grossly disproportionate to the provocation made by ARIEL. At
any rate, evidence reveals that if there was in fact any provocation, it was EFREN who
started it when he spat at ARIEL several times.

Finally, in their twelfth assigned error, the accused-appellants aver that they cannot be
convicted of frustrated murder in the absence of the allegation of intent to kill in the
information for said charge. We hold that the fact that the information for frustrated
murder failed to allege "intent to kill" did not make the information insufficient. An
information is sufficient if it states "xxx the designation of the offense by
statute."[39] The information should, whenever possible, state the designation of the
offense by statute besides the statement of the acts or omissions constituting the same
and if there is no such designation, reference should be made to the section or
subsection of the statute punishing it[40] In the case at bench, the information for
frustrated murder clearly states that the accused-appellants "armed with a bladed
weapon, conspiring, confederating and helping with one another, together with all the
accused who are all at large, with evident premeditation and abuse of superior
strength, did, then and there, willfully, unlawfully and feloniously attack, assault and
stab with the said weapon one ARIEL DE DIOS y FRANCISCO, hitting the latter on his
abdomen and left finger, thereby performing all the acts of execution which would
produce the crime of Murder, but did not produce the same for reason of cause
independent of the will of the accused, that is due to the timely and able medical
attendance given to said victim which prevented his death." The information more than
substantially satisfies the requirement of designating the offense of frustrated murder
considering that it contains the acts constituting the felony, the name of the crime by
statute and the stage (frustrated) of the commission of the crime by definition. Besides
the absence of the averment of intent to kill may be inferred from the allegation that
the stab wound would have caused the death (in this case murder) of the victim.[41]

A felony is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.[42] Since Dr. Dominador
Chansiopens testimony[43] that the wound sustained by ARIEL as a result of the
stabbing was sufficient to cause his death had the wound been left untreated was not
rebutted by the defense, we sustain the ruling of the RTC that the accused-appellants
are also guilty of frustrated murder.[44]

For the death of SERAFIN, RICARDO, REYNALDO and TEODORO are liable for
P50,000.00 as moral damages[45] and P50,000.00 as death indemnity[46] to the heirs of
SERAFIN as this is in accord with current jurisprudence. RICARDO, REYNALDO and
TEODORO are also liable to the heirs of SERAFIN for funeral expenses amounting to
P29,000.00 as actual damages which were supported by a receipt.[47] Finally, RICARDO,
REYNALDO and TEODORO are also liable to the heirs of SERAFIN for loss of earning
capacity. It was established during trial that SERAFIN was twenty-nine (29) years
old[48] at the time he was killed and that he was earning P22, 534.00 per
annum[49]. Loss of earning capacity is computed based on the following formula:[50]

Net Earning life expectancy Gross living

Capacity (x) [2/3 (80-age at Annual expenses (
= death)] x Income - 50% of GAI )
(GAI)
x = 2 (80-29) x 22,534.00 - 11,267.00

3
x = 34 x 11,267.00
Net Earning Capacity = P 383,078.00

Prior to the effectivity of R.A. No. 7659, murder under Article 248 of the Revised Penal
Code was punishable by reclusion temporal maximum to death. Pursuant to paragraph
1 of Article 64 of the Revised Penal Code, RICARDO, REYNALDO and TEODORO should
suffer the penalty of reclusion perpetua, the medium period of the imposable
penalty.[51]

The penalty for frustrated murder is the penalty next lower in degree than that
prescribed by law for the consummated felony which in this case is prision
mayor maximum to reclusion temporal medium.[52] Applying the Indeterminate
Sentence Law and in the absence of any modifying circumstance, the penalty for
frustrated murder should be eight (8) years of prision mayor minimum as minimum to
fourteen (14) years and eight months of reclusion temporal minimum as maximum.[53]

ACCORDINGLY, the Decision of the Regional Trial Court of Malabon, Metro Manila
finding the accused-appellants Ricardo Francisco y Cupcupin, Reynaldo Franciso y
Cupcupin and Teodoro Francisco y Cupcupin guilty beyond reasonable doubt of the
crime of MURDER and FRUSTRATED MURDER is hereby MODIFIED. For the crime of
murder, they are sentenced to suffer the penalty of reclusion perpetua. For the crime of
frustrated murder, they are sentenced to suffer the indeterminate penalty ranging from
eight (8) years of prision mayor minimum as minimum to fourteen (14) years and eight
months of reclusion temporal minimum as maximum. They are also ordered to pay the
heirs of Serafin Mangali, Jr. P50,000.00 as moral damages, P50,000.00 as death
indemnity, P29,000.00 as actual damages and P383,078.00 for loss of earning capacity.

Accused-appellant Antonio Sioco is ACQUITTED of the crimes charged based on

reasonable doubt and is ordered released immediately from confinement unless he is
held for some other lawful cause.

SO ORDERED.

Melo, (Chairman), Vitug, and Purisima, JJ., concur.

Panganiban, J., on leave.