G.R. No. 180219. November 23, 2011.

* By petition for review on certiorari, Virgilio Talampas y Matic (Talampas)

seeks the review of the affirmance of his conviction for homicide (for the
VIRGILIO TALAMPAS y MATIC, petitioner, vs. PEOPLE OF THE PHILIPPINES,
killing of the late Ernesto Matic y Masinloc) by the Court of Appeals (CA)
respondent.
through its decision promulgated on August 16, 2007.1
Criminal Law; Homicide; Self-defense; Elements of the Plea of Self-
The Regional Trial Court, Branch 25, in Biñan, Laguna (RTC) had rejected his
defense.—The elements of the plea of self-defense are: (a) unlawful
pleas of self-defense and accident and had declared him guilty of the felony
aggression on the part of the victim; (b) reasonable necessity of the means
under the judgment rendered on June 22, 2004.2
employed to prevent or repel the unlawful aggression; and (c) lack of
sufficient provocation on the part of the accused in defending himself. Antecedents

Same; Same; Words and Phrases; Accident; Accident is an event that
happens outside the sway of our will and although it comes about through
some act of our will, it lies beyond the bounds of humanly foreseeable
consequences; Accident presupposes the lack of intention to commit the
wrong done.—Talampas could not relieve himself of criminal liability by
invoking accident as a defense. Article 12(4) of the Revised Penal Code, the
legal provision pertinent to accident, contemplates a situation where a
person is in fact in the act of doing something legal, exercising due care,
diligence and prudence, but in the process produces harm or injury to
someone or to something not in the least in the mind of the actor—an
accidental result flowing out of a legal act. Indeed, accident is an event that
happens outside the sway of our will, and although it comes about through
some act of our will, it lies beyond the bounds of humanly foreseeable
consequences. In short, accident presupposes the lack of intention to
commit the wrong done.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Public Attorney’s Office for petitioner.
The Solicitor General for respondent.
BERSAMIN, J.:
The information filed on November 17, 1995, to which Talampas pleaded
not guilty, averred as follows:3
“That on or about July 5, 1995, in the Municipality of Biñan, Province of
Laguna, Philippines and within the jurisdiction of this Honorable Court,
accused VIRGILIO TALAMPAS, with intent to kill, while conveniently armed
with a short firearm and without any justifiable cause, did then and there
willfully, unlawfully and feloniously attack, assault and shoot one Ernesto
Matic y Masinloc with the said firearm, thereby inflicting upon him gunshot
wound at the back of his body which directly caused his instantaneous
death, to the damage and prejudice of his surviving heirs.
CONTRARY TO LAW.”
The State presented as witnesses Jose Sevillo, Francisco Matic, Jerico Matic,
Dr. Valentin Bernales, and Josephine Matic. The CA summarized their
testimonies thuswise:4
“Prosecution witness Jose Sevillo (Jose) who allegedly witnessed the
incident in question, testified that on July 5, 1995 at about 7:00 o’clock in
the evening, he together with Eduardo Matic (Eduardo) and Ernesto Matic
(Ernesto) were infront of his house, along the road in Zona Siete (7), Wawa,
Malaban, Biñan, Laguna, repairing his tricycle when he noticed the appellant
who was riding on a bicycle passed by and stopped. The latter alighted at
about three (3) meters away from him, walked a few steps and brought out
a short gun, a revolver, and poked the same to Eduardo and fired it hitting
Eduardo who took refuge behind Ernesto. The appellant again fired his gun

1
three (3) times, one shot hitting Ernesto at the right portion of his back
causing him (Ernesto) to fall on the ground with his face down. Another shot
hit Eduardo on his nape and fell down on his back (patihaya). Thereafter,
the appellant ran away, while he (Jose) and his neighbors brought the
victims to the hospital. On June 6, 1995, Jose executed a Sworn Statement
at the Biñan Police Station.
Another witness, Francisco Matic, testified that prior to the death of his
brother Ernesto who was then 44 years old, he (Ernesto) was driving a
tricycle on a boundary system and earned P100.00 daily, although not on a
regular basis because sometimes Ernesto played in a band for P100.00 per
night.
Jerico Matic, eldest son of Ernesto, alleged that he loves his father and his
death was so painful to him that he could not quantify his feelings in terms
of money. The death of his father was a great loss to them as they would
not be able to pursue their studies and that nobody would support them
financially considering that the money being sent by their mother in the
amount of P2,000.00 to P2,500.00 every three (3) months, would not be
enough.
Dr. Valentin Bernales likewise, testified that he was the one who conducted
the autopsy on the body of Ernesto and found one gunshot in the body
located at the back of the costal area, right side, sixteen (16) centimeters
from the spinal column. This shot was fatal as it involved the major organs
such as the lungs, liver and the spinal column which caused Ernesto’s death.
The last witness, Josephine Matic, wife of Ernesto, testified that her
husband was laid to rest on July 18, 1995 and that his untimely death was so
painful and that she could not provide her children with sustenance. She
asked for the amount of P200,000.00 for her to be able to send her children
to school.”
On his part, Talampas interposed self-defense and accident. He insisted that
his enemy had been Eduardo Matic (Eduardo), not victim Ernesto Matic
(Ernesto); that Eduardo, who was then with Ernesto at the time of the
incident, had had hit him with a monkey wrench, but he had parried the
blow; that he and Eduardo had then grappled for the monkey wrench; that
while they had grappled, he had notice that Eduardo had held a revolver;
that he had thus struggled with Eduardo for control of the revolver, which
had accidentally fired and hit Ernesto during their struggling with each
other; that the revolver had again fired, hitting Eduardo in the thigh; that he
had then seized the revolver and shot Eduardo in the head; and that he had
then fled the scene when people had started swarming around.
Ruling of the RTC
On June 22, 2004, the RTC, giving credence to the testimony of eyewitness
Jose Sevilla, found Talampas guilty beyond reasonable doubt of homicide,5
and disposed:
“WHEREFORE, premises considered, the court finds the accused guilty
beyond reasonable doubt of the crime of Homicide, with one mitigating
circumstance of voluntary surrender, and hereby sentences him to suffer an
indeterminate penalty of IMPRISONMENT ranging from TEN (10) years and
One (1) day of prision mayor, as minimum, to FOURTEEN (14) years and
EIGHT (8) months of reclusion temporal, as maximum. He is likewise
ordered to pay the heirs of Ernesto Matic y Masinloc the following sums, to
wit:
1. P50,000.00 – as and for death indemnity;
2. P50,000.00 – as and for moral damages;
3. P25,000.00 – as and for actual damages; and
4. P30,000.00 – as and for temperate damages.
Furnish Public Prosecutor Nofuente, Atty. Navarroza, the private
complainant and accused with a copy of this decision.
SO ORDERED.”6
Ruling of the CA
Talampas appealed to the CA, contending that:

2
I to prevent or repel the unlawful aggression; and (c) lack of sufficient
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE
ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN
BEYOND REASONABLE DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE DEATH OF
ERNESTO MATIC WAS MERELY ACCIDENTAL.
III
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-
APPELLANT ACTED IN DEFENSE OF HIMSELF WHEN HE GRAPPLED WITH
EDUARDO MATIC.
Still, the CA affirmed the conviction based on the RTC’s factual and legal
conclusions, and ruled that Talampas, having invoked self-defense, had in
effect admitted killing Ernesto and had thereby assumed the burden of
proving the elements of self-defense by credible, clear and convincing
evidence, but had miserably failed to discharge his burden.7
The CA deleted the award of temperate damages in view of the awarding of
actual damages, pointing out that the two kinds of damages were mutually
exclusive.8
Issue
Hence, Talampas is now before the Court, continuing to insist that his guilt
was not proven beyond reasonable doubt, and that the lower courts both
erred in rejecting his claim of self-defense and accidental death.
Ruling
The petition for review is denied for lack of merit.
Firstly, the elements of the plea of self-defense are: (a) unlawful aggression
on the part of the victim; (b) reasonable necessity of the means employed
3
provocation on the part of the accused in defending himself.9
In the nature of self-defense, the protagonists should be the accused and
the victim. The established circumstances indicated that such did not
happen here, for it was Talampas who had initiated the attack only against
Eduardo; and that Ernesto had not been at any time a target of Talampas’
attack, he having only happened to be present at the scene of the attack. In
reality, neither Eduardo nor Ernesto had committed any unlawful aggression
against Talampas. Thus, Talampas was not repelling any unlawful aggression
from the victim (Ernesto), thereby rendering his plea of self-defense
unwarranted.
Secondly, Talampas could not relieve himself of criminal liability by invoking
accident as a defense. Article 12(4) of the Revised Penal Code,10 the legal
provision pertinent to accident, contemplates a situation where a person is
in fact in the act of doing something legal, exercising due care, diligence and
prudence, but in the process produces harm or injury to someone or to
something not in the least in the mind of the actor—an accidental result
flowing out of a legal act.11 Indeed, accident is an event that happens
outside the sway of our will, and although it comes about through some act
of our will, it lies beyond the bounds of humanly foreseeable
consequences.12 In short, accident presupposes the lack of intention to
commit the wrong done.
The records eliminate the intervention of accident. Talampas brandished
and poked his revolver at Eduardo and fired it, hitting Eduardo, who quickly
rushed to seek refuge behind Ernesto. At that point, Talampas fired his
revolver thrice. One shot hit Ernesto at the right portion of his back and
caused Ernesto to fall face down to the ground. Another shot hit Eduardo on
the nape, causing Eduardo to fall on his back. Certainly, Talampas’ acts were
by no means lawful, being a criminal assault with his revolver against both
Eduardo and Ernesto.
And, thirdly, the fact that the target of Talampas’ assault was Eduardo, not
Ernesto, did not excuse his hitting and killing of Ernesto. The fatal hitting of
Ernesto was the natural and direct consequence of Talampas’ felonious
deadly assault against Eduardo. Talampas’ poor aim amounted to aberratio
ictus, or mistake in the blow, a circumstance that neither exempted him
from criminal responsibility nor mitigated his criminal liability. Lo que es
causa de la causa, es causa del mal causado (what is the cause of the cause
is the cause of the evil caused).13 Under Article 4 of the Revised Penal
Code,14 criminal liability is incurred by any person committing a felony
although the wrongful act done be different from that which he intended.
the indeterminate sentence of Talampas may occasion a degree of
inconvenience when it will be time for the penal administrators concerned
to consider and determine whether Talampas is already qualified to enjoy
the benefits of the Indeterminate Sentence Law. Hence, in order to simplify
the computation of the minimum penalty of the indeterminate sentence,
the Court deletes the one-day increment from the minimum term of the
indeterminate sentence.

Nonetheless, the Court finds the indeterminate sentence of 10 years and WHEREFORE, the Court AFFIRMS the decision promulgated on August 16,
one day of prision mayor, as minimum, to 14 years and eight months, as 2007 finding VIRGILIO TALAMPAS y MATIC guilty beyond reasonable doubt
maximum, legally erroneous. of the crime of homicide, and IMPOSES the indeterminate sentence of 10
years of prision mayor, as minimum, to 14 years, eight months, and one day
The penalty for homicide under Article 246 of the Revised Penal Code is
of reclusion temporal, as maximum.
reclusion temporal. Under Section 1 of the Indeterminate Sentence Law,15
the court, in imposing a prison sentence for an offense punished by the The petitioner shall pay the costs of suit.
Revised Penal Code, or its amendments, is mandated to prescribe an
SO ORDERED.
indeterminate sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed under the
rules of the Revised Penal Code, and the minimum term shall be within the
range of the penalty next lower to that prescribed by the Revised Penal
Code for the offense. With the absence of aggravating or mitigating
circumstances, the imposable penalty is reclusion temporal in its medium
period, or 14 years, eight months, and one day to 17 years and four months.
This is pursuant to Article 64 of the Revised Penal Code.16 It is such period
that the maximum term of the indeterminate sentence should be reckoned
from. Hence, limiting the maximum term of the indeterminate sentence at
only 14 years and eight months contravened the express provision of the
Indeterminate Sentence Law, for such penalty was within the minimum
period of reclusion temporal. Accordingly, the Court must add one day to
the maximum term fixed by the lower courts.

The Court finds to be unnecessary the increment of one day as part of the
minimum term of the indeterminate sentence. It may be true that the
increment did not constitute an error, because the minimum term thus
fixed was entirely within the parameters of the Indeterminate Sentence
Law. Yet, the addition of one day to the 10 years as the minimum term of

4
G.R. No. 109800. March 12, 1996.*
PEOPLE OF THE PHILIPPINES, plaintiff, vs. WILFREDO BAUTISTA y NIELES,
accused-appellant.
Criminal Law; Murder; Justifying Circumstances; Self-Defense; Once the
accused has admitted that he killed the victim, the burden is on him to
establish the presence of any circumstance which may relieve him from
responsibility or mitigate the offense committed.—The arguments of
accused-appellant are not without merit. Once accused-appellant has
admitted that he killed the victim, the burden is on him to establish the
presence of any circumstance which may relieve him from responsibility or
mitigate the offense committed. To prove justification the accused must
rely on the strength of his own evidence and not on the weakness of that of
the prosecution, for even if it be weak, it could not be disbelieved after the
accused has admitted the killing. In a plea of self-defense, it must be shown
that there was a previous unlawful aggression that placed the life of the
accused in danger and forced him to inflict more or less severe wounds
upon his assailant, employing therefor reasonable means to resist the
unprovoked attack of which he was the object. Accused-appellant failed to
prove the presence of these circumstances. Instead, he presented
inconsistent allegations as to why he killed the victim.
Same; Same; Same; Same; If no unlawful aggression attributable to the
victim is established, there can be no self-defense, complete or
incomplete.—The claim of appellant that the act of the victim in reaching
for a clutch bag and slapping his fellow security guard constitute unlawful
aggression is devoid of merit. The aggression must be real or at least
imminent and not merely imaginary. A belief that a person is about to be
attacked is not sufficient. Even an intimidating or threatening attitude is by
no means enough. A mere push or shove not followed by other acts placing
in real peril the life or personal safety of the accused is not unlawful
aggression. In the instant case, the victim slapped another person and not
accused-appellant. The slapping could not therefore have given him a well
grounded or reasonable belief that he was in imminent danger of death or
great bodily harm to compel him to defend himself by killing the victim. If
5
no unlawful aggression attributed to the victim is established there can be
no self-defense, complete or incomplete.
Same; Same; Homicide; Aggravating Circumstances; Where not a single
circumstance qualifying the crime to murder is present, the accused could
be found guilty only of homicide.—Notwithstanding the failure of accused-
appellant to prove self-defense, the Court finds him guilty only of homicide
and not murder as found by the trial court. Not a single circumstance
alleged in the information qualifying the crime to murder is present.
Same; Same; Same; Same; Evident Premeditation; Where there is no proof
of the time when the intent to commit the crime was engendered in the
mind of the accused, the motive and all those facts and antecedents which
when combined would show that the crime was knowingly premeditated,
evident premeditation could not be appreciated.—We find no evident
premeditation in the killing of the victim. The records show that when
appellant went near the victim, who was then arguing with a fellow security
guard he got the latter’s shotgun, walked towards the rear of the car of the
victim, cocked his firearm and suddenly shot the latter. There was no proof
of the time when the intent to commit the crime was engendered in the
mind of accused-appellant, the motive and all those facts and antecedents
which when combined would show that the crime was knowingly
premeditated or that accused-appellant acted not only with a preexisting
design, but with that cold and deep meditation and tenacious persistence in
the accomplishment of his criminal purpose.
Same; Same; Same; Same; Abuse of Superior Strength; No abuse of
superiority is established where the fatal shot was fired by only one of two
accused and there is no proof that they cooperated to take advantage of
their superior strength.—No abuse of superiority was established. The fatal
shot was fired by only one of two (2) accused, there being no proof that
they cooperated to take advantage of their superior strength. The fact that
they did not conspire to kill the deceased implies that they did not jointly
exploit their superior strength.
Same; Same; Same; Same; Treachery; The circumstance that an attack is
sudden and unexpected to the person assaulted does not constitute the
element of alevosia necessary to raise homicide to murder where it does
not appear that the aggressor consciously adopted such mode of attack to
facilitate the perpetration of the killing without risk to himself.—Treachery
was conspicuous in its absence. The victim knew of the oncoming danger
when appellant approached him and took Usman’s shotgun. That was why
the victim asked appellant, “Bakit ka nakikialam. Itong kausap ko.” And as
he cocked his gun and walked towards the victim the latter even remarked,
“Putang ina ka. Huwag kang makikialam dito.” The circumstance that an
attack was sudden and unexpected to the person assaulted did not
constitute the element of alevosia necessary to raise homicide to murder,
where it did not appear that the aggressor consciously adopted such mode
of attack to facilitate the perpetration of the killing without risk to himself.
Same; Same; Same; Same; Same; There is no treachery when the killing
results from a verbal altercation between the victim and the assailant such
that the victim must have been forewarned of the impending danger.—
Treachery cannot be appreciated if the accused did not make any
preparation to kill the deceased in such manner as to insure the commission
of the killing or to make it impossible or difficult for the person attacked to
retaliate or defend himself. When it does not appear that the shooting was
premeditated nor that the accused had consciously chosen a method of
attack directly and especially to facilitate the perpetration of the homicide
without danger to himself, and his decision to shoot the victim seemed to
be so sudden and the position of both the victim and the accused was
entirely accidental, treachery cannot be imputed to the appellant.
Moreover, there is no treachery when the killing resulted from a verbal
altercation between the victim and the assailant such that the victim must
have been forewarned of the impending danger.
Same; Same; Same; Mitigating Circumstances; Passion and Obfuscation;
Obfuscation must originate from lawful feelings—the turmoil and unreason
which naturally result from a quarrel or fight should not be confused with
the sentiment or excitement in the mind of a person injured or offended to
such a degree as to deprive him of his sanity and self-control.—We cannot
appreciate the circumstance of passion and obfuscation invoked by
appellant to mitigate his criminal liability. The obfuscation must originate
6
from lawful feelings. The turmoil and unreason which naturally result from a
quarrel or fight should not be confused with the sentiment or excitement in
the mind of a person injured or offended to such a degree as to deprive him
of his sanity and self-control, because the cause of this condition of mind
must necessarily have preceded the commission of the offense.
Same; Same; Same; Same; Voluntary Surrender; The voluntary surrender of
the accused to a police authority four days after the commission of the
crime may be considered attenuating.—However, the voluntary surrender
of accused-appellant to a police authority four (4) days after the commission
of the crime as found by the trial court may be considered attenuating.
APPEAL from a decision of the Regional Trial Court of Pasay City, Br. 116.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Santiago, Arevalo, Tomas & Associates for accused-appellant.
BELLOSILLO, J.:
WILFREDO BAUTISTA y NIELES appeals from the decision of the court a quo
finding him guilty of murder and imposing upon him a prison term of
reclusion perpetua.1 No award for civil indemnity however was made in
view of the reservation of the heirs of the victim to file a separate civil
action.
The Information alleged that on 2 April 1992, in Pasay City, accused-
appellant Wilfredo Bautista y Nieles and the other accused, namely, Gayak
Usman y Adzed, Richard Doe, John Doe, Peter Doe, William Doe, Vincent
Doe and Edward Doe, in conspiracy with one another, with treachery,
evident premeditation and taking advantage of superior strength,
feloniously shot Alfonso Davila y Velasco with a firearm hitting him at the
back of his head which caused his death.2
The evidence shows that at ten o’clock in the evening of 2 April 1992 victim
Alfonso Davila y Velasco, a flight steward of the Philippine Airlines (PAL),
went to the Inflight Center of PAL at the MIA Road, Pasay City, to inquire
about his flight schedule. Before his car could enter Gate 1 it was stopped
by accused Gayak Usman y Adzed and other security guards of the Asian
Security and Investigation Agency assigned in that area. Usman told the
victim that he could not enter the gate because he had no PAL sticker.
Davila showed Usman his ID placed in his wallet and thrust it on his face.
The latter simply told Davila that he should have pinned his ID on his chest.
The verbal confrontation however continued. At this point, accused-
appellant Wilfredo Bautista, another security guard of the Asian Security
and Investigation Agency assigned at the entrance for pedestrians at Gate 1,
approached Usman and Davila3 and remarked, “Sir, bakit nanampal ka ng
guwardiya?” The victim retorted, “Bakit ka nakikialam. Itong kausap ko.”4
Accused-appellant then took the shotgun slung on the shoulder of Usman
and stepped back. The argument between Usman and Davila continued.
Then accused-appellant went to the back of the car of Davila and cocked the
shotgun. As he went near Davila the latter said, “Putang ina ka. Huwag kang
makikialam dito.”5 Then accused-appellant fired at the victim hitting him on
the left side of his head which caused his death.
Dr. Valentin T. Bernales, NBI Medico-Legal Officer, conducted a post
mortem examination of the victim. He gave the cause of death as gunshot
wound on the head.6
On 22 March 1993 the accused appealed. But for failure of his counsel to file
his brief despite three (3) extensions granted him this Court dismissed his
appeal. However, upon motion for reconsideration, this Court on 3 August
1994 treated the motion as appellant’s brief and directed the Solicitor
General to file appellee’s brief.
In his motion for reconsideration, appellant contends that he should have
only been charged with and convicted for homicide and not murder. He
submits that the victim slapped with his wallet containing his ID appellant’s
fellow security guard Usman, who was one of the accused before the trial
court, which incident caught appellant’s attention and because of the
victim’s gauche remarks he (appellant) lost his composure and shot the
victim. Appellant also argues that treachery, conspiracy and abuse of
superior strength were not established by the prosecution because the
7
shooting was accidental and/or committed under a mistake of fact that the
victim was about to reach for a gun inside his car. Further, appellant alleges
that if he should be made to answer for his act he should only be guilty of
homicide and entitled to the mitigating circumstances of voluntary
surrender, passion and obfuscation and/or incomplete self-defense.7
The arguments of accused-appellant are not without merit. Once accused-
appellant has admitted that he killed the victim, the burden is on him to
establish the presence of any circumstance which may relieve him from
responsibility or mitigate the offense committed.8 To prove justification the
accused must rely on the strength of his own evidence and not on the
weakness of that of the prosecution, for even if it be weak, it could not be
disbelieved after the accused has admitted the killing. In a plea of self-
defense, it must be shown that there was a previous unlawful aggression
that placed the life of the accused in danger and forced him to inflict more
or less severe wounds upon his assailant, employing therefor reasonable
means to resist the unprovoked attack of which he was the object. Accused-
appellant failed to prove the presence of these circumstances. Instead, he
presented inconsistent allegations as to why he killed the victim.
Accused-appellant claims that he acted under a mistake of fact that the
victim was about to get a gun from his clutch bag inside the car.9 At the
same time he also argues that he lost his equanimity when he saw the
victim slap his co-accused security guard and when he (appellant) tried to
intervene he was also rudely treated by the victim.
The trial court found that the allegation about the presence of a clutch bag
inside the car is not supported by the evidence. In fact, all the personal
belongings of the deceased in his car were inventoried and the alleged
clutch bag was not one of them; neither was there a gun or any other
weapon inside his car. These findings of fact bear great weight and
consideration supported as they are by the evidence on record.
The claim of appellant that the act of the victim in reaching for a clutch bag
and slapping his fellow security guard constitute unlawful aggression is
devoid of merit. The aggression must be real or at least imminent and not
merely imaginary. A belief that a person is about to be attacked is not
sufficient. Even an intimidating or threatening attitude is by no means
enough. A mere push or shove not followed by other acts placing in real
peril the life or personal safety of the accused is not unlawful aggression. In
the instant case, the victim slapped another person and not accused-
appellant. The slapping could not therefore have given him a well grounded
or reasonable belief that he was in imminent danger of death or great
bodily harm to compel him to defend himself by killing the victim. If no
unlawful aggression attributed to the victim is established there can be no
self-defense, complete or incomplete.10
Notwithstanding the failure of accused-appellant to prove self-defense, the
Court finds him guilty only of homicide and not murder as found by the trial
court. Not a single circumstance alleged in the information qualifying the
crime to murder is present.
We find no evident premeditation in the killing of the victim. The records
show that when appellant went near the victim, who was then arguing with
a fellow security guard he got the latter’s shotgun, walked towards the rear
of the car of the victim, cocked his firearm and suddenly shot the latter.
There was no proof of the time when the intent to commit the crime was
engendered in the mind of accused-appellant, the motive and all those facts
and antecedents which when combined would show that the crime was
knowingly premeditated or that accused-appellant acted not only with a
pre-existing design, but with that cold and deep meditation and tenacious
persistence in the accomplishment of his criminal purpose.11
No abuse of superiority was established. The fatal shot was fired by only
one of two (2) accused, there being no proof that they cooperated to take
advantage of their superior strength. The fact that they did not conspire to
kill the deceased implies that they did not jointly exploit their superior
strength.12
Treachery was conspicuous in its absence. The victim knew of the oncoming
danger when appellant approached him and took Usman’s shotgun. That
was why the victim asked appel-lant, “Bakit ka nakikialam. Itong kausap
ko.”13 And as he cocked his gun and walked towards the victim the latter
even remarked, “Putang ina ka. Huwag kang makikialam dito.”14 The
8
circumstance that an attack was sudden and unexpected to the person
assaulted did not constitute the element of alevosia necessary to raise
homicide to murder, where it did not appear that the aggressor consciously
adopted such mode of attack to facilitate the perpetration of the killing
without risk to himself. Treachery cannot be appreciated if the accused did
not make any preparation to kill the deceased in such manner as to insure
the commission of the killing or to make it impossible or difficult for the
person attacked to retaliate or defend himself.15 When it does not appear
that the shooting was premeditated nor that the accused had consciously
chosen a method of attack directly and especially to facilitate the
perpetration of the homicide without danger to himself, and his decision to
shoot the victim seemed to be so sudden and the position of both the victim
and the accused was entirely accidental, treachery cannot be imputed to
the appellant.16 Moreover, there is no treachery when the killing resulted
from a verbal altercation between the victim and the assailant such that the
victim must have been forewarned of the impending danger.17
We cannot appreciate the circumstance of passion and obfuscation invoked
by appellant to mitigate his criminal liability. The obfuscation must originate
from lawful feelings.18 The turmoil and unreason which naturally result
from a quarrel or fight should not be confused with the sentiment or
excitement in the mind of a person injured or offended to such a degree as
to deprive him of his sanity and self-control, because the cause of this
condition of mind must necessarily have preceded the commission of the
offense.19 However, the voluntary surrender of accused-appellant to a
police authority four (4) days after the commission of the crime as found by
the trial court may be considered attenuating.20
Under Art. 249 of the Revised Penal Code, homicide is punishable by
reclusion temporal, the range of which is twelve (12) years and one (1) day
to twenty (20) years. Applying the Indeterminate Sentence Law and
appreciating the mitigating circumstance of voluntary surrender which is
not offset by any aggravating circumstance, the maximum of the penalty
shall be taken from the minimum period of reclusion temporal, the range of
which is twelve (12) years and one (1) day to fourteen (14) years and eight
(8) months, while the minimum shall be taken from the penalty next lower
in degree which is prision mayor, in any of its periods, the range of which is
six (6) years and one (1) day to twelve (12) years.

WHEREFORE, the decision appealed from is MODIFIED and accused-

appellant WILFREDO BAUTISTA y NIELES is declared GUILTY of HOMICIDE,
not murder, and sentenced to an indeterminate prison term of six (6) years,
four (4) months and ten (10) days of prision mayor minimum as minimum,
to twelve (12) years, six (6) months and twenty (20) days of reclusion
temporal minimum as maximum. In view of the reservation to file separate
civil action, no civil indemnity is awarded.

SO ORDERED.

9
[No. L-162. April 30, 1947]
THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. DIOSCORO
ALCONGA and ADOLFO BRACAMONTE, defendants. DIOSCORO ALCONGA,
appellant.
1.CRIMINAL LAW; HOMICIDE; SELF-DEFENSE; FLIGHT OF ADVERSARY.— An
accused was no longer acting in self-defense when he pursued and killed a
fleeing adversary, though originally the unlawful aggressor, there being then
no more aggression to defend against, the same having ceased from the
moment the deceased took to his heels.
2.ID.; ID.: ID.; ID.; PROVOCATION, AS MITIGATING CIRCUMSTANCE.—
Provocation given by an adversary at the commencement and during the
first stage of a fight, cannot be considered as a mitigating circumstance,
where the appellant pursued and killed the former while fleeing and the
deceased, as in the case at bar, from the moment he fled after the first
stage of the fight to the moment he died, did not give any provocation for
appellant to pursue, much less further to attack him.
8.ID.; ID.; ID.; ID.; ID.—Provocation in order to be a mitigating circumstance
must be sufficient and immediately preceding the act. "It should be
proportionate to the act committed and adequate to stir one to its
commission."
4.ID.; ID.; ID.; ID.; ID.; NEED OF PROOF.—Sufficient provocation, being a
matter of defense, should, like any other, be affirmatively proven by the
accused.
5.ID.; ID.; ID.; ID.; ID.; ILLEGAL AGGRESSION, DEFINED.—"Illegal aggression"
is equivalent to assault or at least threatened assault of an immediate and
imminent kind.
APPEAL from a judgment of the Court of First Instance of Iloilo. Vega, J.
The facts are stated in the opinion of the court
Jose Avanceña for appellant.
10
Assistant Solicitor General Kapunan, jr. and Solicitor Barcelona for appellee.
HILADO,J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes in the
municipality of San Dionisio, Province of Iloilo several persons were playing
prohibited games (t. s. n., pp. 95, 125). The deceased Silverio Barion was the
banker in the game of black jack, and Maria de Raposo, a witness for the
prosecution, was one of those playing the game (t. s. n., p. 95). Upon
invitation of the said Maria de Raposo, the accused Dioscoro Alconga joined
her as a partner, each of them contributing the sum of P5 to a common fund
(t. s. n., pp. 95, 125). Maria de Raposo played the game while the said
accused posted himself behind the deceased, acting as a spotter of the
cards of the latter and communicating by signs to his partner (t. s. n., pp. 95-
96, 126). The deceased appears to have suffered losses in the game because
of the team work between Maria de Raposo and the accused Alconga (t. s.
n., pp. 96, 126). Upon discovering what the said accused had been doing,
the deceased became indignant and expressed his anger at the former (t. s.
n., pp. 96, 126). An exchange of words followed, and the two would have
come to blows but for the intervention of the maintainer of the games (t. s.
n., p. 96). In a fit of anger, the deceased left the house but not before telling
the accused Alconga, "tomorrow morning I will give you a breakfast" (t. s. n.,
p. 96), which expression would seem to signify an intent to inflict bodily
harm when uttered under such circumstances.
The deceased and the accused Alconga did not meet thereafter until the
morning of May 29, 1943, when the latter was in the guardhouse located in
the barrio of Santol, performing his duties as "home guard" (t. s. n., pp. 98-
100). While the said accused was seated on a bench in the guardhouse, the
deceased came along and, addressing the former, said, "Coroy, this is your
breakfast," followed forthwith by a swing of his "pingahan" (t. s. n., p. 100).
The accused avoided the blow by falling to the ground under the bench with
the intention to crawl out of the guardhouse (t. s. n., pp. 100-101). A second
blow was given but failed to hit the accused, hitting the bench instead (t. s.
n., p. 101). The accused managed to go out of the guardhouse by crawling
on his abdomen (t. s. n., p. 101). While the deceased was in the act
delivering the third blow, the accused, while still in a crawling position (t. s.
n., p. 119), fired at him with his revolver, causing him to stagger and to fall
to the ground (t. s, n., p. 101). Rising to his feet, the deceased drew forth his
dagger and directed a blow at the accused who, however. was able to parry
the same with his bolo (t. s, n., pp. 101-102). A hand-to-hand fight ensued
(t. s. n., p. 102) Having sustained several wounds, the deceased ran away
but was followed by the accused (t. s. n., p. 6). After running a distance of
about 200 meters (1 s. n., pp, 21, 108), the deceased was overtaken, and
another fight took place, during which the mortal bolo blow—the one which
slashed the cranium—was delivered, causing the deceased to fall to the
ground, face downward, besides many other blows delivered right and left
(t. s. n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte,
arrived and, being the leader of the "home guards" of San Dionisio, placed
under his custody the accused Alconga with a view to turning him over to
the proper authorities (t. s. n., pp. 102-106).
On their way to San Dionisio, the two accused were stopped by Juan
Collado, a guerrilla soldier (t. s. n., pp, 80, 104). Adolfo Bracamonte turned
over Alconga to Collado who in turn took him to the headquarters (t. s, n.,
pp. 81, 104). In the afternoon of the same day, Collado delivered Alconga to
Gregorio Barredo, a municipal policeman of San Dionisio, together with the
weapons used in the fight: a revolver, a bolo, and a dagger (t. s. n., pp, 81,
104).
The injuries sustained by the deceased were described by police sergeant
Gil G. Estaniel as follows:
"P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion?—R.
Examine sus heridas.
"P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo?—R.
En la cabeza, en sus brazos, en sus manos, en la rnandíbula inferior, en la
parte frente de su cuello, en su pecho derecho,
y también en el pecho izquierdo, y su dedo meñique había volado, se había
cortado, y otras pequeñas heridas más.
"P. ¿En la cabeza, vió usted heridas?—R. Sí, señor.
11
"P. ¿Cuántas heridas?—R. Una herida en la region parietal derecha y una
contusión en la corona de la cabeza.
"P. ¿Vió usted el craneo?—R. En el craneo llevaba una herida, en que el
craneo se ha roto.
"P. ¿En el pecho, que herida ha encontrado usted?—R. Debajo de la tetilla
derecha, una herida causada por una bala.
"B. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas?—
R. Heridas causadas por bolo.
"P. ¿Cómo de grande aquellas heridas en el pecho?—R. No recuerdo la
dimension de las heridas en el pecho.
"P. ¿Pero en la cabeza?—R. La cabeza se rajó por aquella herida causada por
el bolo." (T. s. n., p. 25.)
It will be observed that there were two stages in the fight between
appellant and the deceased. The initial stage commenced when the
deceased assaulted appellant without sufficient provocation on the part of
the latter. Resisting the aggression, appellant managed to have the upper
hand in the fight, inflicting several wounds upon the deceased, on account
of which the latter fled in retreat. From that moment there was no longer
any danger to the life of appellant who, being virtually unscathed, could
have chosen to remain where he was. Resolving all doubts in his favor, and
considering that in the first stage the deceased was the unlawful aggressor
and defendant had not given sufficient provocation, and considering further
that when the deceased was about to deliver the third blow, appellant was
still in a crawling position and, on that account, could not have effectively
wielded his bolo and therefore had to use his "paltik" revolver—his only
remaining weapon—; we hold that said appellant was then acting in self-
defense. But when he pursued the deceased, he was no longer acting in
self-defense, there being then no more aggression to defend against, the
same having ceased from the moment the deceased took to his heels.
During the second stage of the fight appellant inflicted many additional
wounds upon the deceased. That the deceased was not fatally wounded in
the first encounter is amply shown by the fact that he was still able to run a
distance of some 200 meters before being overtaken by appellant. Under
such circumstances, appellant's plea of self-defense in the second stage of
the fight cannot be sustained. There can be no defense where there is no
aggression.
"Although the defendant was not the aggressor, he is not exempt from
criminal liability for the reason that it is shown that he struck several blows,
among them the fatal one, after the necessity for defending himself had
ceased, his assailant being then in retreat. Therefore one of the essential
ingredients of self-defense specified in No. 4, article 8 of the Penal Code is
wanting" (now article 11, case No. 1, Revised Penal Code). (United States vs.
Dimitillo, 7 Phil, 475, 476; words in parenthesis supplied.)
"* * * Even if it be conceded for the moment that the defendants were
assaulted by the four (offended parties), the right to kill in self-defense
ceased when the aggression ceased; and when Toledo and his brothers
turned and ran, without having inflicted so much as a scratch upon a single
one of the defendants, the right of the defendants to inflict Injury upon
them ceased absolutely. They had no right to pursue, no right to kill or
injure. A fleeing man is not dangerous to the one from whom he flees.
When danger ceases, the right to injure ceases. When the aggressor turns
and flees, the one assaulted must stay his hand." (United States vs. Vitug, 17
Phil.. 1, 19; italics supplied.)
Upon the foregoing facts, we hold that appellant's guilt of the crime of
homicide has been established beyond reasonable doubt. The learned trial
court appreciated in his f avor two mitigating circumstances: voluntary
surrender and provocation on the part of the deceased. The first was
properly appreciated; the second was not, since it is very clear that from the
moment he fled after the first stage of the fight to the moment he died, the
deceased did not give any provocation for appellant to pursue much. less
further to attack him.
The only provocation given by him was imbibed in, and inseparable from,
the aggression with which he started the first stage of the fight. The
evidence, as weighed and appreciated by the learned trial judge, who had
heard, seen and observed the witnesses testify, clearly shows that said
12
stage ended with the flight of the deceased after receiving a bullet wound in
his right breast, which caused him to stagger and fall to the ground, and
several bolo wounds inflicted by appellant during their hand-to-hand fight
after both had gotten up. The learned trial judge said:
"The evidence adduced by the prosecution and the defense in support of
their respective theories of the case vary materially on certain points. Some
of these facts have to be admitted and some have to be rejected with the
end in view of arriving at the truth. To the mind of the Court, what really
happened in the case at bar, as can be disclosed by the records, which lead
to the killing of the deceased on that fatal morning of May 29, 1945 is as
follows:
"In the morning of May 29, 1943, while Dioscoro Alconga was alone in the
guardhouse performing his duties as guard or 'ronda' in barrio Santol, the
deceased Silverio Barion passed by with a 'pingahan.' That was the first time
the deceased and the accused Alconga had met since that eventful night of
May 27th in the gambling house of Gepes. Upon seeing the accused
Alconga, who was then seated in the guardhouse, the deceased cried:
'Coroy, this is now the breakfast!' These words of warning were
immediately followed by two formidable swings of the 'pingahan' directed
at the accused Alconga which failed to hit him. Alconga was able to avoid
the blows by falling to the ground and crawling on, his abdomen until he
was outside the guardhouse. The deceased followed him and while in the
act of delivering the third blow, Dioscoro Alconga fired at him with his
revolver thereby stopping the blow in mid-air. The deceased fell to the
ground momentarily and upon rising to his feet, he drew forth a dagger. The
accused Alconga resorted to his bolo and both persons being armed, a
hand-to-hand fight followed. The deceased having sustained several
wounds from the hands of Alconga, ran away with the latter close to his
heels."
The foregoing statement of the pertinent facts by the learned trial judge is
in substantial agreement with those found by us and narrated in the first
paragraphs of this decision. Upon those facts the question arises whether
when the deceased started to run and flee, or thereafter until he died, there
was any provocation given by him for appellant to pursue and further to
attack him. It will be recalled, to begin with, that the first stage of the fight
was provoked when the deceased said to appellant "Coroy, this is now the
breakfast," or "This is your breakfast," followed forthwith by a swing or two
of his "pingahan." These words without the immediately following attack
with the "pingahan" would not have been uttered, we can safely assume,
since such an utterance alone would have been entirely meaningless. It was
the attack, therefore, that effectively constituted the provocation, the
utterance being'. at best, merely a prelude to the attack. At any rate, the
quoted words by themselves, without the deceased's act immediately f
ollowing them, would certainly not have been considered a sufficient
provocation to mitigate appellant's liability in killing or injuring the
deceased. For provocation in order to be a mitigating circumstance must be
sufficient and immediately preceding the act. Under the doctrine in United
States vs. Vitug, supra. when the deceased ran and fled without having
inflicted so much as a scratch upon appellant, but after, upon the other
hand, having been wounded with one revolver shot and several bolo
slashes, as aforesaid, the right of appellant to inflict injury upon him ceased
absolutely—appellant "had no right to pursue, no right to kill or injure" said
deceased—for the reason that "a fleeing man is not dangerous to the one
from whom he flees." If the law, as interpreted and applied by this Court in
the Vitug case, enjoins the victorious contender from pursuing his opponent
on the score of self-defense, it is because this Court considered that the
requisites of self-defense had ceased to exist, principal and indispensable
among these being the unlawful aggression of the opponent (Rev. Penal
Code, article 11, No. 1; 1 Viada, 5th ed., 173).
Can we find under the evidence of record that after the cessation of said
aggression the provocation thus involved therein still persisted, and to a
degree sufficient to extenuate appellant's criminal responsibility for his acts
during the second stage of the fight? Appellant did not testif y nor offer
other evidence to show that when he pursued the deceased he was still
acting under the impulse of the effects of that provocation, be it anger,
obfuscation or the like. The Revised Penal Code provides:
"ART. 13. Mitigating circumstances:
13
"4. That sufficient provocation or threat on the part of the offended party
immediately preceded the act."
It is therefore apparent that the Code requires for provocation to be such a
mitigating circumstance that it not only immediately precede the act but
that it also be sufficient. In the Spanish Penal Code, the adjective modifying
said noun is "adecuada" and the Supreme Court of Spain in its judgment of
June 27, 1883, interpreted the equivalent provision of the Penal Code of
that country, which was the source of our own existing Revised Penal Code,
that "adecuada" means proportionate to the damage caused by the act.
Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that Supreme Court as
follows:
"El Tribunal Supremo ha declarado que la provocación o amenaza que de
parte del ofendido ha de preceder para. la disminución de la
responsabilidad criminal debe ser proporcionada al daño que se cause, lo
cual no concurre a favor del reo si resulta que la única cuestión que hubo
fué si en un montón de yeso había más o menos cantidad, y como perdiera
la apuesta y bromeando dijera el que la ganó que bebería vino de balde, esa
pequeña cuestión de amor propio no justificaba en modo alguno la ira que
le impelió a herir y matar a su contrario." (S. de 27 de junio de 1883, Gaceta
de 27 de septiembre.)
Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition,
page 94, says: "The provocation or threat must be sufficient, which means
that it should be proportionate to the act committed and adequate to stir
one to its commission" (italics supplied).
Sufficient provocation, being a matter of defense, should, like any other, be
affirmatively proven by the accused.
This the instant appellant has utterly failed to do. Any way, it would seem
self-evident that appellant could never have succeeded in showing that
whatever remained of the effects of the deceased's aggression, by way of
provocation after the latter was already in flight, was proportionate to his
killing his already defeated adversary.
That provocation gave rise to a fight between the two men, and may be
said, not without reason, to have spent itself after appellant had. shot the
deceased in his right breast and caused the latter to fall to the ground; or—
making a concession in appellant's favor—after the latter had inflicted
several bolo wounds upon the deceased, without the deceased so much as
having scratched his body., in their hand-to-hand fight when both were on
their feet again. But if we are to grant appellant a further concession, under
the view most favorable to him, that aggression must be deemed to have
ceased upon the flight of the deceased—upon the end of the first stage of
the fight. In so affirming, we had to strain the concept in no small degree.
But to further strain it so as to find that said aggression or provocation
persisted even when the deceased was already in flight, clearly accepting
defeat and no less clearly running for his life rather than evincing an
intention of returning to the fight, is more than we can sanction. It should
always be remembered that "illegal aggression" is equivalent to assault or at
least threatened assault of an immediate and imminent kind.
"Agresión ilegítima.—Agresion vale tanto como acometimiento, Para que
exista el derecho de defensa es preciso que se nos acometa, que se nos
ataque, o cuando menos, que se nos amenace de atacarnos de un modo
inmediato e inminente; v. gr., desenvainando el puñal para herirnos con 61
o apuntando la pistola para dispararla contra nosotros
After the flight of the deceased there was clearly neither an assault nor a
threatened assault of the remotest kind. It has been suggested that when
pursuing his fleeing opponent, appellant might have thought or believed
that said opponent was going to his house to fetch some other weapon. But
whether we consider this as a part or continuation of the self-defense
alleged by appellant, or as a separate circumstance, the burden of proof to
establish such a defense was, of course, upon appellant, and he has not so
much as attempted to introduce evidence for this purpose. If he really
thought so, or believed so, he should have positively proven it, as any other
defense. We cannot now gratuitously assume it in his behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this
Court held that one defending himself or his property from a felony
14
violently or by surprise threatened by another is not obliged to retreat but
may pursue his adversary until he has secured himself from danger. But that
is not this case. Here from the very start appellant was the holder of the
stronger and more deadly weapons—a revolver and a bolo, as against a
piece of bamboo called "'pingahan" and a dagger in the possession of the
deceased. In actual performance appellant, from the very beginning,
demonstrated his superior fighting ability; and he confirmed it when after
the deceased was first felled down by the revolver shot in his right breast,
and after both combatants had gotten up and engaged in a hand-to-hand
fight, the deceased using his dagger and appellant his bolo, the former
received several bolo wounds while the latter got through completely
unscathed. And when the deceased thereupon turned and fled, the
circumstances were such that it would be unduly stretching the imagination
to consider that appellant was still in danger from his defeated and fleeing
opponent. Appellant preserved his revolver and his bolo, and if he could
theretofore so easily overpower the deceased, when the latter had not yet
received any injury, it would need, indeed, an unusually strong positive
showing—which is completely absent from the record—to persuade us that
he had not yet "secured himself from danger" after shooting his weakly
armed adversary in the right breast and giving him several bolo slashes in
different other parts of his body. To so hold would, we believe, be
unjustifiably extending the doctrine of the Rivera case to an extreme not
therein contemplated.
Under article 249, in relation with article 64, No. 2, of the Revised Penal
Code, the crime committed by appellant is punishable by reclusión temporal
in its minimum period, which would be from 12 years and 1 day to 14 years
and 8 months. However, in imposing the penalty, we take into consideration
the provisions of section 1 of the Indeterminate Sentence Law (Act No.
4103), as amended by Act No. 4225. Accordingly, we find appellant guilty of
the aforesaid crime of homicide and sentence him to an indeterminate
penalty of from 6 years and 1 day of prisión mayor to 14 years and 8 months
of reclusión temporal, to indemnify the heirs of the deceased in the sum of
P2,000, and to pay the costs. As thus modified, the judgment appealed from
is hereby affirmed. So ordered.
G.R. No. 76235. January 21, 1991.*
PROCERFINA OLBINAR, petitioner, vs. COURT OF APPEALS and FERNANDO
JIMENEZ, respondents.
Criminal Law; Exempting Circumstances; Defense of Relative; Appellant is
acquitted of the crime charged considering that from the evidence adduced,
it appears that she was justified in believing that her husband was the victim
of an unlawful aggression by two men; she had no way of knowing if her
husband has given provocation for the attack; she herself had not given any
such provocation; and the means employed by her were not in the premises
unreasonable.—It being incontrovertible that both Romeo Cahilog and
Fernando Jimenez attacked Emiliano and beat him up so severely as to
cause his incapacity for labor and require that he undergo medical
treatment for ten days or so, it is not improbable, as Procerfina testified,
that he had fallen to the ground and his face had been bloodied, because of
the assault. Procerfina had not seen the commencement of the assault on
her husband. She had no way of knowing if her husband had given sufficient
provocation therefor. All that she saw, on responding to her husband’s cry
for help, was that he was on the ground, there was blood on his person, and
two men were boxing and kicking him. After she had tried vainly to get the
men to stop beating her husband, she had gotten a bolo from her home and
rushed back to defend her fallen spouse who, for all she knew, was already
seriously wounded. Unarmed, and her husband to all appearances already
hors de combat, she evidently could offer no reasonable defense, or
otherwise cause cessation of the assault on her husband. And whatever
might have transpired immediately on her return with the bolo—whether
she forthwith sailed into the two assailants, or whether Fernando Jimenez
had indeed tried to prevent her from helping her husband and sought to
disarm her to prevent her in consequence of which she had flailed wildly
about with her weapon, and inflicted the injuries in question on him—the
fact of the matter is that under the circumstances, she obviously felt the
compelling urgency for swift action to stop the assault on her prostrate
husband, and there was nothing else she could do towards this end except
to try to hit out at his attackers. She must have been near panic. She had no
time to think. She had to act, and act quickly. The circumstances certainly
15
afforded her no time to investigate the nature of her husband’s injuries,
determine if he was in danger of death, analyze the situation and ascertain
what would be the most reasonable mode by which with her bolo she could
stop her husband’s mauling—whether she should use the flat, not the sharp
edge of the weapon, should first announce that she had a bolo and would
use it if they did not cease in their nefarious acts, etc. The Court is therefore
satisfied that Procerfina had acted in justifiable defense of her husband. In
the situation in which she had found herself, she was justified in believing
that her husband was the victim of an unlawful aggression by two (2) men,
who had gotten the better of him and had already succeeded in bloodying
his face and dropping him to the ground; she had no way of knowing if her
husband had given provocation for the attack; she herself had not given any
such provocation; and the means employed by her were not in the premises
unreasonable considering that without any weapon, she was no match for
either of the assailants, much less both of them.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Rufino Mayor and Isidro M. Ampig for petitioner.
NARVASA, J.:
In the Municipal Circuit Court of Babak-Samal, Davao Province, Procerfina
Olbinar was indicted, arraigned and tried for the felony of serious physical
injuries committed with the use of a bolo against the person of Fernando
Jimenez on or about June 8, 1980 in Barangay Caliclic, Babak, Davao.1 The
prosecution presented its proofs in due course, tending to show that in the
evening of June 8, 1980—
1) a certain Romeo Cahilog was boxing Emiliano Olbinar, Procerfina’s
husband; 2) Fernando Jimenez was trying to break up the assault by pulling
Romeo Cahilog from behind; 3) at this point, Procerfina came and with a
bolo hacked Fernando Jimenez “in the right ear;” a second blow also aimed
at Fernando was parried by the latter with his left hand; 4) Fernando cried
out that he had been hacked after which he lost consciousness; 5) Fernando
sustained a wound in the left ear and a broken left forearm.
Procerfina sought, in her turn, to establish by her own evidence that she
had acted in legitimate defense of her husband and should therefore be
exculpated. According to her—
1) from the kitchen of her home, she heard her husband shouting for help;
2) she ran to the scene and saw Fernando Jimenez and Romeo Cahilog
mauling her husband who, bloodied, was down on the ground;
3) she tried to stop the assailants; but not succeeding, she had swiftly run
back to her home, taken a bolo and returned to the scene;
4) Fernando Jimenez intercepted her and tried to grab the bolo from her;
5) to avoid being disarmed, she wildly brandished the bolo and in the
process hit Jimenez, and thus succeeded in stopping the attack on her
husband.
The trial court concluded from the evidence that she could be credited only
with the special mitigating circumstance of incomplete defense of relative
pursuant to paragraph 2, Article 11 in relation to paragraph 1, Article 13, of
the Revised Penal Code.
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.
2. Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and those by
consanguinity within the fourth civil degree, provided that the first and
16
second requisites prescribed in the next preceding circumstance are
present, and the further requisite, in case the provocation was given by the
person attacked, that the one making defense had no part therein.”
“ART. 13. Mitigating circumstances.—The following are mitigating
circumstances:
1. Those mentioned in the preceding chapter (i.e., justifying and exempting
circumstances), when all the requisites necessary to justify the act or to
exempt from criminal liability in the respective cases are not attendant.”
In a decision rendered on June 29, 1982,2 the Court thus found Procerfina
guilty beyond reasonable doubt of the felony charged, and appreciating in
her favor said special mitigating circumstance (incomplete defense of
spouse), “and another ordinary mitigating circumstance of having acted
upon an impulse so powerful (as) to have produced passion and
obfuscation,” sentenced her “to suffer imprisonment of 21 days of arresto
menor, to pay the cost of P10.00 and in concept of recovery of civil liability,
to pay to Fernando Jimenez the amount of P3,622.50 to cover hospital bills
partly paid and payable to San Pedro Hospital; and the amount of P618.30
to cover cost of medicine purchased from different boticas or pharmacies.”
On appeal perfected by Procerfina, the Court of Appeals affirmed the
judgment of the Municipal Circuit Court,3 in a decision promulgated on
August 19, 1986.4 From this adverse decision, Procerfina has come to this
Court pleading for reversal thereof and her absolution of the crime. Her plea
will be heeded; her prayer, granted.
The Trial Court conceded that there was unlawful aggression by Fernando
Jimenez and one Romeo Cahilog against Procerfina’s husband, Emiliano. The
Court declared itself “aware of Criminal Case No. 877” also pending before
it “where Fernando Jimenez x x (and) Romeo Cahilog were charged with
Physical Injuries in the same incident, x x (and in which case) Fernando
Jimenez x x with his co-accused entered a plea of guilty and were
appropriately sentenced in accordance with the law applicable.” The
criminal complaint which initiated said Criminal Case No. 877, dated June
18, 1980,5 alleged that—
 “x x on or about 7:20 o’clock in the evening of June 8, 1980, at Barangay
Caliclic, Babak, Davao x x (both said) accused did then and there wilfully,
unlawfully and criminally, confederating and helping one another, attack,
assault, box and kick Emiliano Olbinar hitting [him] in the face and in
different parts of the body while the latter was sitting on the bench near the
store of Procerfina Olbinar, his wife, causing him physical injuries which
would require medical attendance with healing period for TEN (10) days
barring complications x x.”
Nevertheless the Court held that the means employed by Procerfina to
prevent or repel the aggression against her husband were not reasonably
necessary. It considered as “worthy with truth x x the prosecution’s side of
the story that accused hacked Fernando Jimenez twice, directed on the
head with the use of a bolo at the height of anger after seeing her husband
mauled, an act or means employed by her beyond the realm of reasonable
necessity to repel the aggression under paragraph 2, Article 11 of the
Revised Penal Code.”
The same conclusion was arrived at by the Court of Appeals. It noted that
complainant, Fernando Jimenez, did “not appear to be armed,” nor did it
appear “that the life of her husband was under serious threat. Yet, appellant
used a bolo to hack the complainant at his ear. Another blow wounded the
parrying arm of the complainant and broke his elbow.”6
The Court of Appeals also ruled that Fernando’s “version that he was hacked
at his head while breaking up the fight between appellant’s husband and
Cahilog” was more credible.7 The ruling is obviously erroneous being
contrary to the undisputed fact expressly and solemnly admitted by
Fernando Jimenez—when he and his co-accused, Romeo Cahilog, entered a
plea of guilty when arraigned in Criminal Case No. 877, supra—that at the
time they were attacking, boxing and kicking Emiliano Olbinar, hitting (him)
in the face and in different parts of the body, cooperating with and helping
each other. This belies Fernando’s protestations that the fight transpired
only between Romeo Cahilog and Procerfina’s husband, and he (Fernando)
was merely trying to break up the fight and pacify the protagonists.
17
It being incontrovertible that both Romeo Cahilog and Fernando Jimenez
attacked Emiliano and beat him up so severely as to cause his incapacity for
labor and require that he undergo medical treatment for ten days or so, it is
not improbable, as Procerfina testified, that he had fallen to the ground and
his face had been bloodied, because of the assault. Procerfina had not seen
the commencement of the assault on her husband. She had no way of
knowing if her husband had given sufficient provocation therefor. All that
she saw, on responding to her husband’s cry for help, was that he was on
the ground, there was blood on his person, and two men were boxing and
kicking him. After she had tried vainly to get the men to stop beating her
husband, she had gotten a bolo from her home and rushed back to defend
her fallen spouse who, for all she knew, was already seriously wounded.
Unarmed, and her husband to all appearances already hors de combat, she
evidently could offer no reasonable defense, or otherwise cause cessation
of the assault on her husband. And whatever might have transpired
immediately on her return with the bolo—whether she forthwith sailed into
the two assailants, or whether Fernando Jimenez had indeed tried to
prevent her from helping her husband and sought to disarm her to prevent
her in consequence of which she had flailed wildly about with her weapon,
and inflicted the injuries in question on him—the fact of the matter is that
under the circumstances, she obviously felt the compelling urgency for swift
action to stop the assault on her prostrate husband, and there was nothing
else she could do towards this end except to try to hit out at his attackers.
She must have been near panic. She had no time to think. She had to act,
and act quickly. The circumstances certainly afforded her no time to
investigate the nature of her husband’s injuries, determine if he was in
danger of death, analyze the situation and ascertain what would be the
most reasonable mode by which with her bolo she could stop her husband’s
mauling—whether she should use the flat, not the sharp edge of the
weapon, should first announce that she had a bolo and would use it if they
did not cease in their nefarious acts, etc.
The Court is therefore satisfied that Procerfina had acted in justifiable
defense of her husband. In the situation in which she believing that her
husband was the victim of an unlawful aggression by two (2) men, who had
gotten the better of him and had already succeeded in bloodying his face
and dropping him to the ground; she had no way of knowing if her husband
had given provocation for the attack; she herself had not given any such
provocation; and the means employed by her were not in the premises
unreasonable considering that without any weapon, she was no match for
either of the assailants, much less both of them.

WHEREFORE, the Decision of the Court of Appeals dated August 19, 1986 is
REVERSED and another rendered, AC-QUITTING the petitioner, with costs de
officio. The bond for her provisional liberty is cancelled.

SO ORDERED. Olbinar vs. Court of Appeals, 193 SCRA 115, G.R. No. 76235
January 21, 1991

18
G.R. No. 149152. February 02, 2007.*
RUFINO S. MAMANGUN, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
Criminal Law; Sandiganbayan; Factual findings of the Sandiganbayan are
conclusive upon the Supreme Court; Exceptions.—Wellsettled is the rule
that factual findings of the Sandiganbayan are conclusive upon the Court
except where: (1) the conclusion is a finding grounded entirely on
speculations, surmises and conjectures; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the judgment is based
on misapprehension of facts and the findings of fact are premised on the
absence of evidence and are contradicted by the evidence on record. None
of these exceptions obtains in this case.
Same; Homicide; Justifying Circumstances; Policemen; Fulfillment of Duty;
Requisites.—Having admitted the fatal shooting of Contreras on the night of
July 31, 1992, petitioner is charged with the burden of adducing convincing
evidence to show that the killing was done in the fulfillment of his duty as a
policeman. The justifying circumstance of fulfillment of duty under
paragraph 5, Article II, of the Revised Penal Code may be invoked only after
the defense successfully proves that: (1) the accused acted in the
performance of a duty; and (2) the injury inflicted or offense committed is
the necessary consequence of the due performance or lawful exercise of
such duty.
Same; Same; Same; Same; Witnesses; Few discrepancies and inconsistencies
in the testimony of a witness referring to minor details and not in actuality
touching upon the central fact of the crime, do not impair his credibility.—
The alleged contradictions cited by the petitioner, i.e., where the victim was
shot, where he died, and as to whether Ayson left his house after the
shooting incident, are but minor details which do not affect Ayson’s
credibility. We have held time and again that few discrepancies and
inconsistencies in the testimony of a witness referring to minor details and
not in actuality touching upon the central fact of the crime, do not impair
his credibility. Quite the contrary, such minor inconsistencies even tend to
strengthen credibility because they discount the possibility that the
testimony was rehearsed.
19
Same; Same; Same; Same; Same; Acts in the fulfillment of a duty, without
more, do not completely justify a policeman’s firing the fatal gunshot at the
victim.—To be sure, acts in the fulfillment of a duty, without more, do not
completely justify the petitioner’s firing the fatal gunshot at the victim.
True, petitioner, as one of the policemen responding to a reported robbery
then in progress, was performing his duty as a police officer as well as when
he was trying to effect the arrest of the suspected robber and in the
process, fatally shoot said suspect, albeit the wrong man. However, in the
absence of the equally necessary justifying circumstance that the injury or
offense committed be the necessary consequence of the due performance
of such duty, there can only be incomplete justification, a privileged
mitigating circumstance under Articles 13 and 69 of the Revised Penal
Code..
GARCIA, J.:
In this petition for review under Rule 45 of the Rules of Court, petitioner
Rufino Mamangun y Silverio seeks the reversal of the Decision1 dated
January 19, 2001 (promulgated on February 13, 2001) of the Sandiganbayan
in its Criminal Case No. 21131, convicting him of the crime of Homicide.
The factual backdrop:
On September 12, 1994, herein petitioner, then a police officer, was
charged before the Sandiganbayan with the crime of Murder, allegedly
committed, per the indicting Information,2 docketed as Criminal Case No.
21131, as follows:
“That on or about the 31st day of July 1992, in the Municipality of
Meycauyan, (sic) Province of Bulacan, Philippines, and within the jurisdiction
of this Honorable Court, the said accused Rufino S. Mamangun, a public
officer, being then a Police Officer (PO2), duly appointed as such and acting
in relation to his office, armed with a gun, with intent to kill, did then and
there willfully, unlawfully and feloniously, with treachery, evident
premeditation and abuse of superior strength, attack, assault and shoot one
Gener M. Contreras with the said gun, hitting the latter on his body, thereby
inflicting (sic) him serious physical injuries which directly cause (sic) his The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a
death. drawn handgun, searched the rooftop. There, they saw a man whom they
thought was the robbery suspect. At that instance, petitioner Mamangun,
CONTRARY TO LAW.”
who was walking ahead of the group, fired his handgun once, hitting the
On arraignment, petitioner, as accused below, duly assisted by a counsel de man. The man turned out to be Gener Contreras (Contreras) who was not
oficio, entered a plea of “Not Guilty.” the robbery suspect.

In the ensuing trial, the prosecution presented in evidence the testimonies Contreras died from the gunshot wound. The autopsy conducted by Dr.
of Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero, Benito B. Caballero yielded the following findings:
then the designated MedicoLegal Officer of Bulacan who performed an
“The cause of death was “Shock due to massive external and internal
autopsy on the cadaver of the victim.
hemorrhage due to multiple gunshot wounds in the left arm side of the
For its part, the defense adduced in evidence the testimonies of the accused thorax, penetrating the left lung and vertebral column.” There were several
himself, Rufino Mamangun, his copolicemen at the Philippine National wounds caused by one (1) bullet.
Police (PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police
As shown on the sketch of human body attached to the Certificate of Death,
Investigator SPO-1 Hernando B. Banez, all assigned at the Meycauayan
and as testified on by Dr. Caballero, the bullet entered through the “lower
Police Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and
third of the left arm, left side of the thorax and it penetrated the left lung
son-in-law, respectively, of Antonio Abacan, owner of the house on which
and vertebral column and that is where the slug was found.” From a
rooftop the shooting of the victim took place.
layman’s appreciation of the sketch, the bullet entered the outer, upper left
It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy. arm of the victim, exited through the inner side of the said upper left arm, a
Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard little lower than the left armpit and the slug lodging on the victim’s back
shouting, “Magnanakaw . . . Magnanakaw.” Several residents responded where it was recovered at the vertebral column.”3
and thereupon chased the suspect who entered the yard of Antonio Abacan
From the foregoing admitted or undisputed facts, the prosecution and the
and proceeded to the rooftop of Abacan’s house.
defense presented conflicting versions as to how the fatal shooting of
At about 9:00 o’clock that same evening, the desk officer of the Contreras by petitioner Mamangun actually happened.
Meycauayan PNP Police Station, upon receiving a telephone call that a
According to Ayson, the lone eyewitness for the prosecution, he
robbery-holdup was in progress in Brgy. Calvario, immediately contacted
accompanied the three policemen (Mamangun, Diaz and Cruz) to the
and dispatched to the scene the crew of Patrol Car No. 601 composed of
rooftop of Abacan’s house. He was following petitioner Mamangun who was
Team Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein
ahead of the group. They passed through the second-floor door of the
petitioner PO2 Rufino S. Mamangun; and Patrol Car No. 602 composed of
house to the rooftop. The roof was lighted by an incandescent bulb from an
Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito Cruz and PO2
adjacent house. He was beside Mamangun when they saw, some four to
Hobert Diaz. With the permission of Abacan, petitioner Mamangun, PO2
five arms-length away, a man whom he (witness) recognized as Gener
Diaz and PO2 Cruz went to the rooftop of the house whereat the suspect
Contreras. Mamangun pointed his .45 cal. pistol at the man, who instantly
was allegedly taking refuge.
exclaimed, “Hindi ako, hindi ako!,” to which Mamangun replied, “Anong

20
hindi ako?” Before he (Ayson) could say anything, Mamangun fired his gun,
hitting the man who turned out to be Contreras. He (witness) approached
the victim who was then lying on his left side unconscious. He brought down
the victim and they rushed him to the hospital where he died at about 10:00
o’clock that same evening.
The defense has its own account of what purportedly actually transpired.
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of
Ayson at the rooftop during the shooting incident. Corroborating one
another, the three testified that they were the only ones at the scene of the
shooting, and that it was dark. They claimed that each of them, with
Mamangun on the lead, went on separate directions around a water tank.
As they met each other at the other side of the tank, PO2 Cruz pointed to a
person crouching at the edge of the roof of the garage. Thinking that the
person was the suspect they were looking for, Mamangun chased said
person. They announced that they were police officers but the person
continued to run in a crouching position until Mamangun caught up with
him and shouted, “Pulis. Tigil,” whereupon the person suddenly stopped,
turned around, faced Mamangun, and raised a stainless steel pipe towards
the latter’s head but Mamangun was able to evade the attack. This
prompted Mamangun to shoot the person on the left arm. All three claimed
that it was only at this point that PO2 Cruz and Diaz approached Contreras
who told them, “Hindi ako. Hindi ako.” Mamangun went near Contreras and
asked, “Why did you go to the rooftop? You know there are policemen
here.” Contreras was thereafter brought to the hospital where he died.
After the shooting incident, Mamangun reported the same to the desk
officer, POI Filomeno de Luna, who advised him to remain in the police
station. De Luna directed Police Investigator Hernando Banez to investigate
the incident. That same evening, Investigator Banez went to the place
where the shooting happened. Banez allegedly found a steel pipe about
three (3) feet long on the depressed portion of the roof.
On January 19, 2001, after due proceedings, the Sandiganbayan came out
with its decision4 finding the petitioner guilty beyond reasonable doubt of
only the crime of Homicide. In so finding, the Sandiganbayan did not
21
appreciate the presence of the aggravating circumstances of treachery,
evident premeditation and abuse of superior strength to qualify the killing
to Murder. But even as the said court rejected the petitioner’s claim that
the shooting was justified by self-defense, it nonetheless ruled that the
crime of Homicide was attended by an incomplete justifying circumstance of
the petitioner having acted in the performance of his duty as a policeman,
and also appreciated in his favor the generic mitigating circumstance of
voluntary surrender. Dispositively, the decision reads:
“WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found
GUILTY beyond reasonable doubt of the crime of Homicide, defined and
penalized under Article 249, Revised Penal Code, and taking into account
the attendance of one (1) privileged mitigation (sic) circumstance, one
generic circumstance and no aggravating circumstance, he is hereby
sentenced under the Indeterminate Sentence Law, to suffer the penalty of
imprisonment of from Three (3) Years and Three (3) Months of prision
correctional as minimum, to Seven (7) years of prision mayor, as maximum,
to indemnify the heirs (parents) of Gener Contreras in the total amount of
P352,025.00, and to pay the costs.
SO ORDERED.”
Unable to accept the judgment of conviction, petitioner is now with this
Court via the present recourse alleging that the Sandiganbayan committed
reversible error in failing to apply paragraph 5, Article 11, of the Revised
Penal Code, which would have absolved him from criminal liability on the
basis of his submission that the shooting in question was done in the
performance of a duty or in the lawful exercise of a right or office.
First off, petitioner insists that the shooting, which ultimately caused the
demise of Contreras, was justified because he was repelling Contreras’
unlawful attack on his person, as Contreras was then about to strike him on
the head with a steel pipe.
We are not persuaded.
Well-settled is the rule that factual findings of the Sandiganbayan are
conclusive upon the Court except where: (1) the conclusion is a finding
grounded entirely on speculations, surmises and conjectures; (2) the
inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts and the
findings of fact are premised on the absence of evidence and are
contradicted by the evidence on record.5 None of these exceptions obtains
in this case.
Having admitted6 the fatal shooting of Contreras on the night of July 31,
1992, petitioner is charged with the burden of adducing convincing
evidence to show that the killing was done in the fulfillment of his duty as a
policeman.
The justifying circumstance of fulfillment of duty under paragraph 5, Article
II, of the Revised Penal Code may be invoked only after the defense
successfully proves that: (1) the accused acted in the performance of a duty;
and (2) the injury inflicted or offense committed is the necessary
consequence of the due performance or lawful exercise of such duty.7
Concededly, the first requisite is present in this case. Petitioner, a police
officer, was responding to a robbery-holdup incident. His presence at the
situs of the crime was in accordance with the performance of his duty.
However, proof that the shooting and ultimate death of Contreras was a
necessary consequence of the due performance of his duty as a policeman
is essential to exempt him from criminal liability.
As we see it, petitioner’s posturing that he shot Contreras because the latter
tried to strike him with a steel pipe was a mere afterthought to exempt him
from criminal liability.
We see no plausible basis to depart from the Sandiganbayan’s findings that
there was no reason for the petitioner to shoot Contreras. The latter was
unarmed and had already uttered, “Hindi po ako, Hindi po ako” before the
petitioner fatally shot him on the left arm. Prosecution witness Ayson, who
was then behind the petitioner when the latter shot Contreras, testified that
to the victim’s utterances, the petitioner even responded, “Anong hindi
ako,” and immediately shot Contreras.8 As correctly observed by the
Sandiganbayan:
22
“Besides being self-serving (with respect to the accused) and biased (with
respect to his co-policemen-witnesses), We find (1) the claim of the accused
and his co-policemen-witnesses that the victim (Contreras) attacked the
said accused and (2) their seemingly “positive” identification of the stainless
steel pipe (more of a rod) as his weapon, to be of doubtful credibility, for
the following reasons:
(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert
Diaz, the three policemen appropriately identified themselves as police
officers as they started chasing the man they saw “crouching,” and, as
claimed by accused PO2 Rufino Mamangun, that, as he was about to catch
up with said man, he shouted, “Pulis! Tigil!” With all these introductions and
forewarnings, it is utterly incredible and contrary to human experience that,
that man, later identified to be Gener Contreras and admittedly not the
person they were looking for, purportedly armed only with a stainless steel
“lead” pipe (more of a rod) would suddenly stop, turn around and attack
one of the three policemen who were chasing him, one after the other, with
drawn guns.
(2) When the victim (Gener Contreras) fell down after being shot by accused
PO2 Mamangun, and as the latter went near the fallen victim, said accused
asked, ”Why did you go to the rooftop. You know there are policemen
here.” He admits that he did not ask the victim, “Why did you try to hit me,
if you are not the one?” This admission clearly belies the claim of the police-
witnesses that Gener Contreras attacked the accused policeman with an
iron pipe when he was shot, for the accused should have asked the latter
question.
(3) The location of the entry of the bullet fired by accused Mamangun which
is at the outer left arm at about the bicep of the victim and its trajectory as
it penetrated his body hitting his vital organs along the way belies the claim
of the accused that the victim was facing him and had just missed his head
with an iron pipe, as instead the victim must have instinctively shielded his
body with his left arm.”
Moreover, petitioner’s pretense that Contreras struck him with a steel pipe
is intriguing. As it is, petitioner did not report the same to Police Investigator
Banez when he reported back to the police station after the shooting
incident. It was only when a lead pipe was recovered from the scene and
brought to the police station that petitioner conveniently remembered
Contreras trying to hit him with a pipe. Such a vital information could not
have escaped the petitioner’s mind. We are thus inclined to believe that the
alleged actuation of Contreras, which could have justified petitioner’s
shooting him, was nothing but a concocted story to evade criminal liability.
Indeed, knowing that he shot Contreras, the least that the petitioner should
have done was to bring with him to the police station the very pipe with
which Contreras tried to attack him. As borne by the evidence, however, it
was only after a police investigator referred to the scene that the lead pipe
surfaced.
Petitioner would likewise argue that the testimony of prosecution witness
Ayson was incredible and riddled with inconsistencies.
The alleged contradictions cited by the petitioner, i.e., where the victim was
shot, where he died, and as to whether Ayson left his house after the
shooting incident, are but minor details which do not affect Ayson’s
credibility. We have held time and again that few discrepancies and
inconsistencies in the testimony of a witness referring to minor details and
not in actuality touching upon the central fact of the crime, do not impair
his credibility. Quite the contrary, such minor inconsistencies even tend to
strengthen credibility because they discount the possibility that the
testimony was rehearsed.9
For sure, the record reveals that Ayson’s answers to the questions
propounded by the defense counsel are clear and categorical. As to where
the victim died, Ayson clarified that the victim was already at the rooftop
even before the arrival of the police officers. As to why he was not able to
warn Mamangun that the victim was his relative, Ayson explained that he
was not able to utter any word because when Contreras said “Hindi ako.
Hindi ako,” petitioner suddenly fired at the latter.10 As to the claim that
Ayson was also on the roof, record shows that the robbery-holdup
happened at around 8:00 in the evening. Before the policemen arrived,
Ayson and Contreras were already pursuing the robber.11 Ayson also
23
testified that when the victim was shot by the petitioner, the former fell on
his left side unconscious; that he did not leave his house after the incident
because he was afraid that the policemen would detain him.12
Self-defense, whether complete or incomplete, cannot be appreciated as a
valid justifying circumstance in this case. For, from the above admitted,
uncontroverted or established facts, the most important element of
unlawful aggression on the part of the victim to justify a claim of self
defense was absent. Lacking this essential and primary element of unlawful
aggression, petitioner’s plea of self-defense, complete or incomplete, must
have to fail.
To be sure, acts in the fulfillment of a duty, without more, do not
completely justify the petitioner’s firing the fatal gunshot at the victim.
True, petitioner, as one of the policemen responding to a reported robbery
then in progress, was performing his duty as a police officer as well as when
he was trying to effect the arrest of the suspected robber and in the
process, fatally shoot said suspect, albeit the wrong man. However, in the
absence of the equally necessary justifying circumstance that the injury or
offense committed be the necessary consequence of the due performance
of such duty, there can only be incomplete justification, a privileged
mitigating circumstance under Articles 13 and 69 of the Revised Penal Code.
There can be no quibbling that there was no rational necessity for the killing
of Contreras. Petitioner could have first fired a warning shot before pulling
the trigger against Contreras who was one of the residents chasing the
suspected robber.
All told, we find no reversible error committed by the Sandiganbayan in
convicting the petitioner of the crime of Homicide attended by the
privileged mitigating circumstance of incomplete justifying circumstance of
having acted in the performance of his duty as a policeman and the generic
mitigating circumstance of voluntary surrender.
IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision
of the Sandiganbayan is AFFIRMED in all respects.
No pronouncement as to costs.SO ORDERED.
G.R. No. 135981. January 15, 2004.* defense of a stranger or third person) shifts the burden of proof from the
prosecution to the defense.
PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.
Same; Same; Same; Same; Battered Woman Syndrome (BWS); The concept
Criminal Law; Parricide; Evidence; Witnesses; Appeals; The findings of the
has been recognized in foreign jurisdictions as a form of self-defense or, at
trial court on the credibility of witnesses and their testimonies are entitled
the least, incomplete self-defense.—In claiming self-defense, appellant
to a high degree of respect and will not be disturbed on appeal in the
raises the novel theory of the battered woman syndrome. While new in
absence of any showing that the trial judge gravely abused his discretion.—
Philippine jurisprudence, the concept has been recognized in foreign
The first six assigned errors raised by appellant are factual in nature, if not
jurisdictions as a form of self-defense or, at the least, incomplete self-
collateral to the resolution of the principal issues. As consistently held by
defense. By appreciating evidence that a victim or defendant is afflicted
this Court, the findings of the trial court on the credibility of witnesses and
with the syndrome, foreign courts convey their “understanding of the
their testimonies are entitled to a high degree of respect and will not be
justifiably fearful state of mind of a person who has been cyclically abused
disturbed on appeal in the absence of any showing that the trial judge
and controlled over a period of time.”
gravely abused his discretion or overlooked, misunderstood or misapplied
material facts or circumstances of weight and substance that could affect Same; Same; Same; Same; Same; “Battered Woman”, defined; In order to
the outcome of the case. be classified as a battered woman, the couple must go through the
battering cycle at least twice.—A battered woman has been defined as a
Same; Same; Same; Relationship; The key element in parricide is the
woman “who is repeatedly subjected to any forceful physical or
relationship of the offender with the victim.—The key element in parricide
psychological behavior by a man in order to coerce her to do something he
is the relationship of the offender with the victim. In the case of parricide of
wants her to do without concern for her rights. Battered women include
a spouse, the best proof of the relationship between the accused and the
wives or women in any form of intimate relationship with men.
deceased is the marriage certificate. In the absence of a marriage
Furthermore, in order to be classified as a battered woman, the couple must
certificate, however, oral evidence of the fact of marriage may be
go through the battering cycle at least twice. Any woman may find herself in
considered by the trial court if such proof is not objected to.
an abusive relationship with a man once. If it occurs a second time, and she
Same; Same; Same; Admission; Exceptions; Axiomatic is the rule that a remains in the situation, she is defined as a battered woman.”
judicial admission is conclusive upon the party making it, with exceptions.—
Same; Same; Same; Same; Same; Battered women exhibit common
Axiomatic is the rule that a judicial admission is conclusive upon the party
personality traits.—Battered women exhibit common personality traits,
making it, except only when there is a showing that (1) the admission was
such as low self-esteem, traditional beliefs about the home, the family and
made through a palpable mistake, or (2) no admission was in fact made.
the female sex role; emotional dependence upon the dominant male; the
Same; Same; Justifying Circumstances; Self-defense; In criminal cases, self- tendency to accept responsibility for the batterer’s actions; and false hopes
defense shifts the burden of proof from the prosecution to the defense.— that the relationship will improve.
When the accused admits killing the victim, it is incumbent upon her to
Same; Same; Same; Same; Same; “Cycle of Violence”; Phases; Tension-
prove any claimed justifying circumstance by clear and convincing evidence.
Building Phase; During the tension-building phase, minor battering occurs—
Well-settled is the rule that in criminal cases, self-defense (and similarly,
it could be verbal or slight physical abuse or another form of hostile
behavior.—During the tension-building phase,minor battering occurs—it
24
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.
Same; Same; Same; Same; Same; Acute Battering Incident; The acute
battering incident is said to be characterized by brutality, destructiveness
and, sometimes, death.—The acute battering incidentis 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.
Same; Same; Same; Same; Same; Same; Same; Tranquil Period; The final
phase of the cycle of violence begins when the acute battering incident
25
ends—during this tranquil period, the couple experience profound relief.—
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 phase of remorseful reconciliation that
she is most thoroughly tormented psychologically. The illusion of absolute
inter dependency is well-entrenched in a battered woman’s 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.
Same; Same; Same; Same; Elements; One who resorts to self-defense must
face a real threat on one’s life, not merely imaginary.—Settled in our
jurisprudence, however, is the rule that the one who resorts to self-defense
must face a real threat on one’s life; and the peril sought to be avoided
must be imminent and actual, not merely imaginary. Thus, the Revised
Penal Code provides the following requisites and effect of self-defense: “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.”
Same; Same; Same; Same; Same; Unlawful aggression; Unlawful aggression
is the most essential element of self-defense.—Unlawful aggression is the
most essential element of self-defense. It presupposes actual, sudden and
unexpected attack—or an imminent danger thereof—on the life or safety of
a person.
Same; Same; Same; Same; Same; Same; Aggression, if not continuous, does
not warrant self-defense.—Aggression, if not continuous, does not warrant
self-defense. In the absence of such aggression, there can be no self-
defense—complete or incomplete—on the part of the victim.
Same; Same; Mitigating Circumstances; Passion and Obfuscation;
Requisites; To appreciate this circumstance, the following requisites should
concur.—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. 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.
Same; Same; Qualifying Circumstances; Treachery; Because of the gravity of
the resulting offense, treachery must be proved as conclusively as the killing
itself.—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. In order to qualify an act as treacherous, the circumstances
invoked must be proven as indubitably as the killing itself; they cannot be
deduced from mere inferences, or conjectures, which have no place in the
appreciation of evidence. Because of the gravity of the resulting offense,
treachery must be proved as conclusively as the killing itself.
YNARES-SANTIAGO, J., Dissenting Opinion:
26
Criminal law; Parricide; Justifying Circumstances; Self-defense; Battered
Woman Syndrome; Phases; The Battered Woman Syndrome has three (3)
phases.—As exhaustively discussed in the ponencia, the “Battered Woman
Syndrome” has three phases, to wit: (1) the tension-building phase, where
minor batterings in the form of verbal or slight physical abuse occurs. Here,
the woman tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way; (2) the acute battering
incident phase which is characterized by brutality, destructiveness and
sometimes, death. The battered woman usually realizes that she cannot
reason with him and that resistance would only exacerbate her condition;
and (3) the tranquil period, where the couple experience a compound relief
and the batterer may show a tender and nurturing behavior towards his
partner.
Same; Same; Same; Same; Same; Once BWS and an impending danger
based on the conduct of the deceased in previous battering episodes are
established, actual occurrence of an assault is no longer a condition sine qua
non before self-defense may be upheld.—Traditionally, in order that self-
defense may be appreciated, the unlawful aggression or the attack must be
imminent and actually in existence. This interpretation must, however, be
re-evaluated vis-à-visthe recognized inherent characteristic of the psyche of
a person afflicted with the “Battered Woman Syndrome.” As previously
discussed, women afflicted by this syndrome live in constant fear for their
life and thus respond in self-defense. Once BWS and an impending danger
based on the conduct of the deceased in previous battering episodes are
established, actual occurrence of an assault is no longer a condition sine qua
non before self defense may be upheld. Threatening behavior or
communication can satisfy the required imminence of danger. As stated in
the ponencia, 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.
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal
on a novel theory—the “battered woman syndrome” (BWS), which allegedly
constitutes self-defense. Under the proven facts, however, she is not
entitled to complete exoneration because there was no unlawful
aggression—no immediate and unexpected attack on her by her batterer-
husband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or
incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant
constituted a form of cumulative provocation that broke down her
psychological resistance and self-control. This “psychological paralysis” she
suffered diminished her will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. The acute battering she
suffered that fatal night in the hands of her batterer-spouse, in spite of the
fact that she was eight months pregnant with their child, overwhelmed her
and put her in the aforesaid emotional and mental state, which overcame
her reason and impelled her to vindicate her life and her unborn child’s.
Considering the presence of these two mitigating circumstances arising
from BWS, as well as the benefits of the Indeterminate Sentence Law, she
may now apply for and be released from custody on parole, because she has
already served the minimum period of her penalty while under detention
during the pendency of this case.
The Case
For automatic review before this Court is the September 25, 1998 Decision1
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
27
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 Information3 charged appellant with parricide as follows:
“That on or about the 15th day of November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent
to kill, with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon,
which the accused had provided herself for the purpose, [causing] the
following wounds, to wit:
‘Cadaveric spasm.
‘Body on the 2nd stage of decomposition.
‘Face, black, blownup & swollen w/ evident postmortem 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 extremities, 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 prosecution’s
version of the facts in this wise:
“Appellant and Ben Genosa were united in marriage on November 19, 1983
in Ormoc City. Thereafter, they lived with the parents of Ben in their house
at Isabel, Leyte. For a time, Ben’s 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 Ben’s 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 won’t 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
28
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
son’s 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 Ben’s 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
Arano, 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 appellant’s 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)
29
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 husband’s 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 Ben’s parents,
together with Ben’s 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. Ben’s 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 Ben’s forgiveness. In another incident
in May 22, 1994, early morning, Alex and his father apparently rushed to
Ben’s aid again and saw blood from Ben’s forehead and Marivic holding an
empty bottle. Ben and Marivic reconciled after Marivic had apparently again
asked for Ben’s forgiveness.
“Mrs. lluminada Genosa, Marivic’s 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 Marivic’s
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
Benon 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 Ben’s 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’.
30
“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 ‘let’s 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 couldn’t 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
31
came. On cross-examination, she said that when she left Marivic’s house on
November 15, 1995, the couple were still quarreling.
‘7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-
employees at PHILPHOS, Isabel, Leyte. Marivic was his patient ‘many times’
and had also received treatment from other doctors. Dr. Caing testified that
from July 6, 1989 until November 9, 1995, there were six (6) episodes of
physical injuries inflicted upon Marivic. These injuries were reported in his
Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.’
xxx xxx xxx
‘Dr. Caing’s clinical history of the tension headache and hypertention of
Marivic on twenty-three (23) separate occasions was marked at Exhibits ‘2’
and ‘2-B.’ The OPD Chart of Marivic at the Philphos Clinic which reflected all
the consultations made by Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit ‘3.’
“On cross-examination, Dr. Caing said that he is not a psychiatrist, he could
not say whether the injuries were directly related to the crime committed.
He said it is only a psychiatrist who is qualified to examine the psychological
make-up of the patient, ‘whether she is capable of committing a crime or
not.’
7.6. Mr. Panfilo Tero, the barangay captain in the place where the Genosas
resided, testified that about two (2) months before Ben died, Marivic went
to his office past 8:00 in the evening. She sought his help to settle or
confront the Genosa couple who were experiencing ‘family troubles’. He
told Marivic to return in the morning, but he did not hear from her again
and assumed ‘that they might have settled with each other or they might
have forgiven with each other.’
xxx xxx xxx
“Marivic said she did not provoke her husband when she got home that
night it was her husband who began the provocation. Marivic said she was
frightened that her husband would hurt her and she wanted to make sure
she would deliver her baby safely. In fact, Marivic had to be admitted later
at the Rizal Medical Centre as she was suffering from eclampsia and
hypertension, and the baby was born prematurely on December 1, 1995.
“Marivic testified that during her marriage she had tried to leave her
husband at least five (5) times, but that Ben would always follow her and
they would reconcile. Marivic said that the reason why Ben was violent and
abusive towards her that night was because ‘he was crazy about his recent
girlfriend, Lulu x x x Rubillos.’
“On cross-examination, Marivic insisted she shot Ben with a gun; she said
that he died in the bedroom; that their quarrels could be heard by anyone
passing their house; that Basobas lied in his testimony; that she left for
Manila the next day, November 16, 1995; that she did not bother anyone in
Manila, rented herself a room, and got herself a job as a field researcher
under the alias ‘Marvelous Isidro’; she did not tell anyone that she was
leaving Leyte, she just wanted to have a safe delivery of her baby; and that
she was arrested in San Pablo, Laguna.
‘Answering questions from the Court, Marivic said that she threw the gun
away; that she did not know what happened to the pipe she used to ‘smash
him once’; that she was wounded by Ben on her wrist with the bob; and
that two (2) hours after she was ‘whirled’ by Ben, he kicked her ‘ass’ and
dragged her towards the drawer when he saw that she had packed his
things.’
“9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa
residence. This fact was testified to by all the prosecution witnesses and
some defense witnesses during the trial.
“10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of
Isabel, Leyte at the time of the incident, and among her responsibilities as
such was to take charge of all medico-legal cases, such as the examination
of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic
pathologist. She merely took the medical board exams and passed in 1986.
She was called by the police to go to the Genosa residence and when she
32
got there, she saw ‘some police officers and neighbors around.’ She saw Ben
Genosa, covered by a blanket, lying in a semi-prone position with his back to
the door. He was wearing only a brief.
xxx xxx xxx
“Dra. Cerillo said that ‘there is only one injury and that is the injury
involving the skeletal area of the head’ which she described as a ‘fracture’.
And that based on her examination, Ben had been dead 2 or 3 days. Dra.
Cerillo did not testify as to what caused his death.
“Dra. Cerillo was not cross-examined by defense counsel.
“11. The Information, dated November 14, 1996, filed against Marivic
Genosa charged her with the crime of PARRICIDE committed ‘with intent to
kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her legitimate husband, with
the use of a hard deadly weapon x x x which caused his death.’
“12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17,
22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997,
22 May 1998, and 5 and 6 August 1998.
“13. On 23 September 1998, or only fifty (50) days from the day of the last
trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35,
Ormoc City, rendered a JUDGMENT finding Marivic guilty ‘beyond
reasonable doubt’ of the crime of parricide, and further found treachery as
an aggravating circumstance, thus sentencing her to the ultimate penalty of
DEATH.
“14. The case was elevated to this Honorable Court upon automatic review
and, under date of 24 January 2000, Marivic’s trial lawyer, Atty. Gil Marvel
P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as
a precautionary measure, two (2) drafts of Appellant’s Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to
by her. “The Honorable Court allowed the withdrawal of Atty. Tabucanon
and permitted the entry of appearance of undersigned counsel.
“15. Without the knowledge of counsel, Marivic Genosa wrote a letter
dated 20 January 2000, to the Chief Justice, coursing the same through Atty.
Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office,
wherein she submitted her ‘Brief without counsels’ to the Court.
“This letter was stamp-received by the Honorable Court on 4 February 2000.
“16. In the meantime, under date of 17 February 2000, and stamp-received
by the Honorable Court on 19 February 2000, undersigned counsel filed an
URGENT OMNIBUS MOTION praying that the Honorable Court allow the
exhumation of Ben Genosa and the re-examination of the cause of his
death; allow the examination of Marivic Genosa by qualified psychologists
and psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take
the testimony of said psychologists and psychiatrists.
“Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel
Fortun, then the only qualified forensic pathologist in the country, who
opined that the description of the death wound (as culled from the post-
mortem findings, Exhibit ‘A’) is more akin to a gunshot wound than a
beating with a lead pipe.
“17. In a RESOLUTION dated 29 September 2000, the Honorable Court
partly granted Marivic’s URGENT OMNIBUS MOTION and remanded the
case ‘to the trial court for the reception of expert psychological and/or
psychiatric opinion on the ‘battered woman syndrome’ plea, within ninety
(90) days from notice, and, thereafter to forthwith report to this Court the
proceedings taken, together with the copies of the TSN and relevant
documentary evidence, if any, submitted.’
“18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified
before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
“Immediately before Dra. Dayan was sworn, the Court a quo asked if she
had interviewed Marivic Genosa. Dra. Dayan informed the Court that
interviews were done at the Penal Institution in 1999, but that the clinical
interviews and psychological assessment were done at her clinic.
33
“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. Joseph’s 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 socio-
demographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that ‘there are lots of variables that cause all
of this marital conflicts, from domestic violence to infidelity, to psychiatric
disorder.
“Dra. Dayan described domestic violence to comprise of ‘a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse
and also sexual abuse.’
xxx xxx xxx
“Dra. Dayan testified that in her studies, ‘the battered woman usually has a
very low opinion of herself. She has a self-defeating and self-sacrificing
characteristics, x x x they usually think very lowly of themselves and so
when the violence would happen, they usually think that they provoke it,
that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them.’ Dra.
Dayan said that usually a battered x x x comes from a dysfunctional family
or from ‘broken homes.’
“Dra. Dayan said that the batterer, just like the battered woman, ‘also has a
very low opinion of himself. But then emerges to have superiority complex
and it comes out as being very arrogant, very hostile, very aggressive and
very angry. They also had (sic) a very low tolerance for frustrations. A lot of
times they are involved in vices like gambling, drinking and drugs. And they
become violent.’ The batterer also usually comes from a dysfunctional
family which over-pampers them and makes them feel entitled to do
anything. Also, they see often how their parents abused each other so
‘there is a lot of modeling of aggression in the family.’
“Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked
the violence, the cycle itself which makes her hope her husband will change,
the belief in her obligations to keep the family intact at all costs for the sake
of the children.
xxx xxx xxx
“Dra. Dayan said that abused wives react differently to the violence: some
leave the house, or lock themselves in another room, or sometimes try to
fight back triggering ‘physical violence on both of them. She said that in a
‘normal marital relationship,’ abuses also happen, but these are ‘not
consistent, not chronic, are not happening day in [and] day out.’ In an
‘abnormal marital relationship,’ the abuse occurs day in and day out, is long
lasting and ‘even would cause hospitalization on the victim and even death
on the victim.’
xxx xxx xxx
“Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because ‘inspite of her feeling of self-confidence which we can see
34
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.’
xxx xxx xxx
“Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at
the time of the tragedy that Marivic then thought of herself as a victim.
xxx xxx xxx
“19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since
passed away, appeared and testified before RTC-Branch 35, Ormoc City.
“Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow
of the Philippine Board of Psychiatry and a Fellow of the Philippine
Psychiatry Association. He was in the practice of psychiatry for thirty-eight
(38) years. Prior to being in private practice, he was connected with the
Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the
Armed Forces of the Philippines, assigned to the V. Luna Medical Center for
twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree
from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the
Cagayan Medical Society; and the Philippine Association of Military
Surgeons.
“He authored ‘The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954 - 1978’ which was
presented twice in international congresses. He also authored The Mental
Health of the Armed Forces of the Philippines 2000’, which was likewise
published internationally and locally. He had a medical textbook published
on the use of Prasepam on a Parke-Davis grant; was the first to use
Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of
the drug Zopiclom in 1985-86.
“Dr. Pajarillo explained that psychiatry deals with the functional disorder of
the mind and neurology deals with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
“Even only in his 7th year as a resident in V. Luna Medical Centre, Dr.
Pajarillo had already encountered a suit involving violent family relations,
and testified in a case in 1964. In the Armed Forces of the Philippines,
violent family disputes abound, and he has seen probably ten to twenty
thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he
became a consultant of the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.
“As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal
abuse, battering and boxing a woman even to an unconscious state such
that the woman is sometimes confined. The affliction of Post-Traumatic
Stress Disorder ‘depends on the vulnerability of the victim.’ Dr. Pajarillo said
that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, ‘it will take more repetitive
trauma to precipitate the post-traumatic stress disorder and this x x x is very
dangerous.’
“In psychiatry, the post-traumatic stress disorder is incorporated under the
‘anxiety neurosis or neurologic anxcietism.’ It is produced by ‘overwhelming
brutality, trauma.’
xxx xxx xxx
“Dr. Pajarillo explained that with ‘neurotic anxiety’, the victim relives the
beating or trauma as if it were real, although she is not actually being
beaten at that time. She thinks ‘of nothing but the suffering.’
xxx xxx xxx
35
“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
individual’s 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 facade ‘but in it there are doubts in himself and prone to act without
thinking.’
xxx xxx xxx
“Dr. Pajarillo emphasized that ‘even though without the presence of the
precipator (sic) or the one who administered the battering, that re-
experiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.’
xxx xxx xxx
“Dr. Pajarillo said that a woman suffering post traumatic stress disorder try
to defend themselves, and ‘primarily with knives. Usually pointed weapons
or any weapon that is available in the immediate surrounding or in a
hospital x x x because that abound in the household.’ He said a victim
resorts to weapons when she has ‘reached the lowest rock bottom of her
life and there is no other recourse left on her but to act decisively.’
xxx xxx xxx
“Dr. Pajarillo testified that he met Marivic Genosa in his office in an
interview he conducted for two (2) hours and seventeen (17) minutes. He
used the psychological evaluation and social case studies as a help in
forming his diagnosis. He came out with a Psychiatric Report, dated 22
January 2001.
xxx xxx xxx
“On cross-examination by the private prosecutor, Dr. Pajarillo said that at
the time she killed her husband Marivic’c 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.’
xxx xxx xxx
“20. No rebuttal evidence or testimony was presented by either the private
or the public prosecutor. Thus, in accord with the Resolution of this
Honorable Court, the records of the partially re-opened trial a quo were
elevated.”9
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave
credence to the prosecution evidence that appellant had killed the
deceased while he was in bed sleeping. Further, the trial court appreciated
the generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed—lying in bed asleep when
Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this
Court for automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying
that this Court allow (1) the exhumation of Ben Genosa and the
reexamination of the cause of his death; (2) the examination of appellant by
qualified psychologists and psychiatrists to determine her state of mind at
the time she had killed her spouse; and (3) the inclusion of the said experts’
reports in the records of the case for purposes of the automatic review or,
36
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
appellant’s 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 Court’s Resolution, the trial judge authorized the examination
of Marivic by two clinical psychologists, Drs. Natividad Dayan10 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
Court’s 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 Marivic’s flight to Manila
and her subsequent apologies were indicia of guilt, instead of a clear
attempt to save the life of her unborn child.
“7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.
“8. The trial court gravely erred in refusing to re-evaluate the traditional
elements in determining the existence of self-defense and defense of foetus
in this case, thereby erroneously convicting Marivic Genosa of the crime of
parricide and condemning her to the ultimate penalty of death.”13
In the main, the following are the essential legal issues: (1) whether
appellant acted in self-defense and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.
The Court’s 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 appellant’s 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 court’s 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
37
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 judge’s 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
appellant’s 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
Ben’s 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,
“[considering 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 victim’s
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 appellant’s 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
38
indicia of her guilt or are attempts to save the life of her unborn child. Any
reversible error as to the trial court’s 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 batterer’s actions; and false hopes that the
relationship will improve.26
More graphically, the battered woman syndrome is characterized by the so-
called “cycle of violence,”27 which has three phases:
(1) the tension-building phase; (2) the acute battering incident; and (3) the
tranquil, loving (or, at least, nonviolent) phase.28
During the tension-building phase,minor battering occurs—it could be
verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence exhibited by
the batterer. This wish, however, proves to be double-edged, because her
“placatory” and passive behavior legitimizes his belief that he has the right
to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him
are not usually successful, and the verbal and/or physical abuse worsens.
Each partner senses the imminent loss of control and the growing tension
and despair. Exhausted from the persistent stress, the battered woman
soon withdraws emotionally. But the more she becomes emotionally
unavailable, the more the batterer becomes angry, oppressive and abusive.
Often, at some unpredictable point, the violence “spirals out of control” and
leads to an acute battering incident.29
The acute battering incidentis 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.
39
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 phase
of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in a battered
woman’s psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other—she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of ‘‘tension, violence and
forgiveness,” each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other.31
History of Abuse in the Present Case
To show the history of violence inflicted upon appellant, the defense A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
presented several witnesses. She herself described her heart-rending
xxx xxx xxx
experience as follows:
Q You said that you saw a doctor in relation to your injuries?
“ATTY. TABUCANON
A Yes, sir.
Q How did you describe your marriage with Ben Genosa?
Q Who inflicted these injuries?
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. A Of course my husband.
Q You said that in the subsequent year of your marriage, your husband was Q You mean Ben Genosa?
abusive to you and cruel. In what way was this abusive and cruelty
manifested to you? A Yes, sir.

A He always provoke me in everything, he always slap me and sometimes he xxx xxx xxx
pinned me down on the bed and sometimes beat me. [Court] to the witness
Q How many times did this happen? Q How frequent was the alleged cruelty that you said?
A Several times already. A Everytime he got drunk.
Q What did you do when these things happen to you? Q No, from the time that you said the cruelty or the infliction of injury
A I went away to my mother and I ran to my father and we separate each inflicted on your occurred, after your marriage, from that time on, how
other. frequent was the occurrence?

Q What was the action of Ben Genosa towards you leaving home? A Everytime he got drunk.

A He is following me, after that he sought after me. Q Is it daily, weekly, monthly or how many times in a month or in a week?

Q What will happen when he follow you? A Three times a week.

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?
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:

40
“Q So, do you have a summary of those six (6) incidents which are found in A Abrasion is a skin wound usually when it comes in contact with something
the chart of your clinic? rough substance if force is applied.

A Yes, sir. Q What is meant by furuncle axilla?

Q Who prepared the list of six (6) incidents, Doctor? A It is secondary of the light infection over the abrasion.

A I did. Q What is meant by pain mastitis secondary to trauma?

Q Will you please read the physical findings together with the dates for the A So, in this 4th episode of physical injuries there is an inflammation of left
record. breast. So, [pain] meaning there is tenderness. When your breast is
traumatized, there is tenderness pain.
A
Q So, these are objective physical injuries. Doctor?
1.May 12, 1990—physical findings are as follows: Hematoma (R) lower
eyelid and redness of eye. Attending physician: Dr. Lucero; xxx xxx xxx

2.March 10, 1992—Contusion-Hematoma (L) lower arbital area, pain and Q Were you able to talk with the patient?
contusion (R) breast. Attending physician: Dr. Canora;
A Yes, sir.
3.March 26, 1993—Abrasion, Furuncle (L) Axilla;
Q What did she tell you?
4.August 1, 1994—Pain, mastitis (L) breast, 2° to trauma. Attending
A As a doctor-patient relationship, we need to know the cause of these
physician: Dr. Caing;
injuries. And she told me that it was done to her by her husband.
5.April 17, 1995—Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Q You mean, Ben Genosa?
Canora; and
A Yes, sir.
6.June 5, 1995—Swelling Abrasion (L) leg, multiple contusion Pregnancy.
Attending physician: Dr. Canora. xxx xxx xxx
QAmong the findings, there were two (2) incidents wherein you were the ATTY. TABUCANON:
attending physician, is that correct?
Q By the way Doctor, were you able to physical examine the accused
AYes, sir. sometime in the month of November, 1995 when this incident happened?
Q Did you actually physical examine the accused? AAs per record, yes.
A Yes, sir. Q What was the date?
Q Now, going to your finding no. 3 where you were the one who attended A It was on November 6, 1995.
the patient. What do you mean by abrasion furuncle left axilla?

41
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the
patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy was
she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination
about her pregnancy or for some other findings?
A No, she was admitted for hypertension headache which complicates her
pregnancy.
Q When you said admitted, meaning she was confined?
A 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.

A Yes, sir. Q You mean problem in her household?

Q For how many days? A Probably.

A One day. Q Can family trouble cause elevation of blood pressure, Doctor?

Q Where? A Yes, if it is emotionally related and stressful it can cause increases in

hypertension which is unfortunately does not response to the medication.
A At PHILPHOS Hospital.
Q In November 6, 1995, the date of the incident, did you take the blood
xxx xxx xxx pressure of the accused?
Q Lets go back to the clinical history of Marivic Genosa. You said that you A On November 6, 1995 consultation, the blood pressure was 180/120.
were able to examine her personally on November 6,1995 and she was 8
months pregnant. What is this all about? Q Is this considered hypertension?

A Yes, sir, severe.

42
Q Considering that she was 8 months pregnant, you mean this is dangerous
level of blood pressure?
A It was dangerous to the child or to the fetus.”34
Another defense witness, Teodoro Sarabia, a former neighbor of the
Genosas in Isabel, Leyte, testified that he had seen the couple quarreling
several times; and that on some occasions Marivic would run to him with
bruises, confiding that the injuries were inflicted upon her by Ben.35
Ecel Arano also testified36 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 o’clock at night, because the couple
“were very noisy . . . and I heard something was broken like a vase.” Then
Marivic came running into Ecel’s room and locked the door. Ben showed up
by the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help—this
time to find Ben—but they were unable to. They returned to the Genosa
home, where they found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing,
she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least
three other witnesses saw or heard the couple quarreling.37 Marivic relates
in detail the following backdrop of the fateful night when life was snuffed
out of him, showing in the process a vivid picture of his cruelty towards her:
“ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in
the evening?
A Whole morning and in the afternoon, I was in the office working then
after office hours, I boarded the service bus and went to Bilwang. When I
reached Bilwang, I immediately asked my son, where was his father, then
my second child said, ‘he was not home yet’. I was worried because that
43
was payday, I was anticipating that he was gambling. So while waiting for
him, my eldest son arrived from school, I prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 o’clock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with
me at that time because I had fears that he was again drunk and I was
worried that he would again beat me so I requested my cousin to sleep with
me, but she resisted because she had fears that the same thing will happen
again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Araño, the one who testified.
Q Did Ecel sleep with you in your house on that evening? 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.
A No, because she expressed fears, she said her father would not allow her
because of Ben. Q You said that he was yelling at you, what else, did he do to you if any?

Q During this period November 15, 1995, were you pregnant? A He was nagging at me at that time and I just ignored him because I want
to avoid trouble for fear that he will beat me again. Perhaps he was
A Yes, 8 months.
disappointed because I just ignore him of his provocation and he switch off
Q How advance was your pregnancy? 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
A Eight (8) months. were doing their assignments. He was angry with me for not answering his
Q Was the baby subsequently born? challenge, so he went to the kitchen and [got] a bolo and cut the antenna
wire to stop me from watching television.
A Yes, sir.
Q What did he do with the bolo?
Q What’s the name of the baby you were carrying at that time?
A He cut the antenna wire to keep me from watching T.V.
A Marie Bianca.
Q What else happened after he cut the wire?
Q What time were you able to meet personally your husband?
A He switch off the light and the children were shouting because they were
A Yes, sir. scared and he was already holding the bolo.
Q What time? Q How do you described this bolo?
A When I arrived home, he was there already in his usual behavior. A 1 1/2 feet.
Q Will you tell this Court What was his disposition? Q What was the bolo used for usually?
A He was drunk again, he was yelling in his usual unruly behavior. A For chopping meat.
Q What was he yelling all about? Q You said the children were scared, what else happened as Ben was
A His usual attitude when he got drunk. carrying that bolo?

Q You said that when you arrived, he was drunk and yelling at you? What A He was about to attack me so I run to the room.
else did he do if any? Q What do you mean that he was about to attack you?
A He is nagging at me for following him and he dared me to quarrel him. A When I attempt to run he held my hands and he whirled me and I fell to
Q What was the cause of his nagging or quarreling at you if you know? the bedside.

Q So when he whirled you, what happened to you?

44
A I screamed for help and then he left. A Yes, sir.

Q You said earlier that he whirled you and you fell on the bedside? Q What is there in the drawer?

A Yes, sir. A I was aware that it was a gun.

Q You screamed for help and he left, do you know where he was going? COURT INTERPRETER:

A Outside perhaps to drink more. (At this juncture the witness started crying).

Q When he left what did you do in that particular time? ATTY. TABUCANON:

A I packed all his clothes. Q Were you actually brought to the drawer?

Q What was your reason in packing his clothes? A Yes, sir.

A I wanted him to leave us. Q What happened when you were brought to that drawer?

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.’
A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long and I was aware that he
was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about
that long, and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the other room, and on that very moment
everything on my mind was to pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx xxx xxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.

Q So you said that he dragged you towards the drawer? Q In what part of the house?

45
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It’s a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.”38
In addition, Dra. Natividad Dayan was called by the RTC to testify as an
expert witness to assist it in understanding the psyche of a battered person.
She had met with Marivic Genosa for five sessions totaling about seventeen
hours. Based on their talks, the former briefly related the latter’s ordeal to
the court a quo as follows:
“Q What can you say, that you found Marivic as a battered wife? Could you
in layman’s 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
46
husband had a very meager income, she was the one who was practically
the bread earner of the family. The husband was involved in a lot of vices,
going out with barkadas, drinking, even womanizing being involved in
cockfight and going home very angry and which will trigger a lot of physical
abuse. She also had the experience a lot of taunting from the husband for
the reason that the husband even accused her of infidelity, the husband was
saying that the child she was carrying was not his own. So she was very
angry, she was at the same time very depressed because she was also
aware, almost like living in purgatory or even hell when it was happening
day in and day out.”39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited,
but wittingly or unwittingly put forward, additional supporting evidence as
shown below:
“Q In your first encounter with the appellant in this case in 1999, where you
talked to her about three hours, what was the most relevant information
did you gather?
A The most relevant information was the tragedy that happened.
The most important information were escalating abuses that she had
experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already
knew of the facts of the case or at least you have substantial knowledge of
the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can
consider them as substantial.
xxx xxx xxx
QDid you gather an information from Marivic that on the side of her
husband they were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband
that were fond of battering their wives?
A What I remember that there were brothers of her husband who are also
battering their wives.
Q Did she not inform you that there was an instance that she stayed in a
hotel in Ormoc where her husband followed her and battered [her] several
times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that
room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being
battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on saying this
matter. I think that is the first time that we have this in the Philippines, what
is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened,
it was really a self-defense. I also believe that there had been provocation
and I also believe that she became a disordered person. She had to suffer
anxiety reaction because of all the battering that happened and so she
became an abnormal person who had lost she’s 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
47
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 I’m 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
Court’s 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, one’s 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 latter’s “ability to act decisively in her
48
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 latter’s 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
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 victim’s ability to muster an active response to try to escape
further trauma. Furthermore, x x x the victim ceases to believe that anything adequate detail the typical characteristics of this stage. However, that single
she can do will have a predictable positive effect.52 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
A study53 conducted by Martin Seligman, a psychologist at the University of
gone through a similar pattern.
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 How did the tension between the partners usually arise or build up prior to
situation with coping responses rather than trying to escape.” He said that it acute battering? How did Marivic normally respond to Ben’s relatively minor
was the cognitive aspect—the individual’s thoughts—that proved all- abuses? What means did she employ to try to prevent the situation from
important. He referred to this phenomenon as “learned helplessness.” developing into the next (more violent) stage?
“[T]he truth or facts of a situation turn out to be less important than the
Neither did appellant proffer sufficient evidence in regard to the third phase
individual’s set of beliefs or perceptions concerning the situation. Battered
of the cycle. She simply mentioned that she would usually run away to her
women don’t attempt to leave the battering situation, even when it may
mother’s or father’s house;58 that Ben would seek her out, ask for her
seem to outsiders that escape is possible, because they cannot predict their
forgiveness and promise to change; and that believing his words, she would
own safety; they believe that nothing they or anyone else does will alter
return to their common abode.
their terrible circumstances.”54
Did she ever feel that she provoked the violent incidents between her and
Thus, just as the battered woman believes that she is somehow responsible
her spouse? Did she believe that she was the only hope for Ben to reform?
for the violent behavior of her partner, she also believes that he is capable
And that she was the sole support of his emotional stability and well-being?
of killing her, and that there is no escape.55 Battered women feel unsafe,
Conversely, how dependent was she on him? Did she feel helpless and
suffer from pervasive anxiety, and usually fail to leave the relationship.56
trapped in their relationship? Did both of them regard death as preferable
Unless a shelter is available, she stays with her husband, not only because
to separation?
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 sum, the defense failed to elicit from appellant herself her factual
experiences and thoughts that would clearly and fully demonstrate the
In the instant case, we meticulously scoured the records for specific
essential characteristics of the syndrome.
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 Court appreciates the ratiocinations given by the expert witnesses for
the battered woman syndrome. We, however, failed to find sufficient the defense. Indeed, they were able to explain fully, albeit merely
evidence that would support such a conclusion. More specifically, we failed theoretically and scientifically, how the personality of the battered woman
to find ample evidence that would confirm the presence of the essential usually evolved or deteriorated as a result of repeated and severe beatings
characteristics of BWS. inflicted upon her by her partner or spouse. They corroborated each other’s
testimonies, which were culled from their numerous studies of hundreds of
The defense fell short of proving all three phases of the “cycle of violence”
actual cases. However, they failed to present in court the factual
supposedly characterizing the relationship of Ben and Marivic Genosa. No
experiences and thoughts that appellant had related to them—if at all—
doubt there were acute battering incidents. In relating to the court a quo
based on which they concluded that she had BWS.
how the fatal incident that led to the death of Ben started, Marivic perfectly
described the tension-building phase of the cycle. She was able to explain in
49
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 offense60—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 one’s 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.”
50
Unlawful aggression is the most essential element of self-defense.63 It
presupposes actual, sudden and unexpected attack—or an imminent
danger thereof—on the life or safety of a person.64 In the present case,
however, according to the testimony of Marivic herself, there was a
sufficient time interval between the unlawful aggression of Ben and her
fatal attack upon him. She had already been able to withdraw from his
violent behavior and escape to their children’s 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 children’s
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 defendant’s 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,
Marivic’s 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 like that. It is usually the very very severe stimulus that precipitate this
opens it wholly for review on any issue, including that which has not been post[t]raumatic stress disorder. Others are suffocating the victim like
raised by the parties.69 holding a pillow on the face, strangulating the individual, suffocating the
individual, and boxing the individual. In this situation therefore, the victim is
From several psychological tests she had administered to Marivic, Dra.
heightened to painful stimulus, like for example she is pregnant, she is very
Dayan, in her Psychological Evaluation Report dated November 29, 2000,
susceptible because the woman will not only protect herself, she is also to
opined as follows:
protect the fetus. So the anxiety is heightened to the end [sic] degree.
“This is a classic case of a Battered Woman Syndrome. The repeated
Q But in terms of the gravity of the disorder, Mr. Witness, how do you
battering Marivic experienced with her husband constitutes a form of
classify?
[cumulative] provocation which broke down her psychological resistance
and natural self-control. It is very clear that she developed heightened A We classify the disorder as [acute], or chronic or delayed or [a]typical.
sensitivity to sight of impending danger her husband posed continuously.
Q Can you please describe this pre[-]classification you called delayed or
Marivic truly experienced at the hands of her abuser husband a state of
[a]typical]?
psychological paralysis which can only be ended by an act of violence on her
part.”70 A The acute is the one that usually require only one battering and the
individual will manifest now a severe emotional instability, higher irritability
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the
remorse, restlessness, and fear and probably in most [acute] cases the first
effect of “repetitious pain taking, repetitious battering, [and] repetitious
thing will be happened to the individual will be thinking of suicide.
maltreatment” as well as the severity and the prolonged administration of
the battering is posttraumatic stress disorder.71 Expounding thereon, he Q And in chronic cases, Mr. Witness?
said:
A The chronic cases is this repetitious battering, repetitious maltreatment,
“Q What causes the trauma, Mr. Witness? 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
A What causes the trauma is probably the repetitious battering. Second, the
stated in the book specifically that after six (6) months is chronic. The
severity of the battering. Third, the prolonged administration of battering or
[a]typical one is the repetitious battering but the individual who is abnormal
the prolonged commission of the battering and the psychological and
and then become normal. This is how you get neurosis from neurotic
constitutional stamina of the victim and another one is the public and social
personality of these cases of post[t]raumatic stress disorder.”72
support available to the victim. If nobody is interceding, the more she will
go to that disorder . . . . Answering the questions propounded by the trial judge, the expert witness
clarified further:
xxx xxx xxx
“Q But just the same[,] neurosis especially on battered woman syndrome x x
Q You referred a while ago to severity. What are the qualifications in terms
x affects x x x his or her mental capacity?
of severity of the posttraumatic stress disorder, Dr. Pajarillo?
A Yes, your Honor.
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
51
QAs 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 974 and 1075 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
52
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. Pajarillo’s testimony80 that with
“neurotic anxiety”—a psychological effect on a victim of ‘‘overwhelming
brutality [or] trauma”—the victim relives the beating or trauma as if it were
real, although she is not actually being beaten at the time. She cannot
control “re-experiencing the whole thing, the most vicious trauma that she
suffered.” She thinks “of nothing but the suffering.” Such reliving which is
beyond the control of a person under similar circumstances, must have
been what Marivic experienced during the brief time interval and prevented
her from recovering her normal equanimity. Accordingly, she should further
be credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances—psychological paralysis
as well as passion and obfuscation—did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and
the severity of the battery inflicted by the batterer-spouse upon appellant.
That is, the repeated beatings over a period of time resulted in her
psychological paralysis, which was analogous to an illness diminishing the
exercise of her will power without depriving her of consciousness of her
acts.
The second circumstance, on the other hand, resulted from the violent
aggression he had inflicted on her prior to the killing. That the incident
occurred when she was eight months pregnant with their child was deemed
by her as an attempt not only on her life, but likewise on that of their
unborn, child. Such perception naturally produced passion and obfuscation
on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons by
employing means, methods or forms in the execution thereof without risk
to oneself arising from the defense that the offended party might make.81
In order to qualify an act as treacherous, the circumstances invoked must be
proven as indubitably as the killing itself; they cannot be deduced from
mere inferences, or conjectures, which have no place in the appreciation of
evidence.82 Because of the gravity of the resulting offense, treachery must
be proved as conclusively as the killing itself.83
Ruling that treachery was present in the instant case, the trial court
imposed the penalty of death upon appellant. It inferred this qualifying
circumstances merely from the fact that the lifeless body of Ben had been
found lying in bed with an “open, depressed, circular” fracture located at
the back of his head. As to exactly how and when he had been fatally
attacked, however, the prosecution failed to establish indubitably. Only the
following testimony of appellant leads us to the events surrounding his
death:
“Q You said that when Ben came back to your house, he dragged you? How
did he drag you?
COURT:
(The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept
on shouting at me that ‘you might as well be killed so there will be nobody
to nag me’
Q So you said that he dragged you towards the drawer?
A Yes, sir.
53
Q What is there in the drawer?
AI was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long and I was aware that he
was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about
that long, and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the other room, and on that very moment
everything on my mind was to pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxx xxx xxx
Q You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q It is a flexible blade?
AIt’s a cutter. A Considering all the physical sufferings that I’ve been through with him, I
took pity on myself and I felt I was about to die also because of my blood
Q How do you describe the blade, is it sharp both edges?
pressure and the baby, so I got that gun and I shot him.
A Yes, because he once used it to me.
COURT /to Atty. Tabucanon
Q How did he do it?
Q You shot him?
A He wanted to cut my throat.
A Yes, I distorted the drawer.”84
Q With the same blade?
The above testimony is insufficient to establish the presence of treachery.
A Yes, sir, that was the object used when he intimidate me. There is no showing of the victim’s position relative to appellant’s at the
time of the shooting. Besides, equally axiomatic is the rule that when a
xxx xxx xxx killing is preceded by an argument or a quarrel, treachery cannot be
ATTY. TABUCANON: appreciated as a qualifying circumstance, because the deceased may be said
to have been forewarned and to have anticipated aggression from the
Q You said that this blade fell from his grip, is it correct? assailant.85
A Yes, because I smashed him. Moreover, in order to appreciate alevosia, the method of assault adopted
Q What happened? by the aggressor must have been consciously and deliberately chosen for
the specific purpose of accomplishing the unlawful act without risk from any
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I defense that might be put up by the party attacked.86 There is no showing,
smashed him and I ran to the other room. though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any
Q What else happened?
retaliatory act that he might make. To the contrary, it appears that the
A When I was in the other room, I felt the same thing like what happened thought of using the gun occurred to her only at about the same moment
before when I was admitted in PHILPHOS Clinic, I was about to vomit. I when she decided to kill her batterer-spouse. In the absence of any
know my blood pressure was raised. I was frightened I was about to die convincing proof that she consciously and deliberately employed the
because of my blood pressure. method by which she committed the crime in order to ensure its execution,
this Court resolves the doubt in her favor.87
COURT INTERPRETER:
Proper Penalty
(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). The penalty for parricide imposed by Article 246 of the Revised Penal Code
is reclusion perpetua to death. Since two mitigating circumstances and no
ATTY. TABUCANON:
aggravating circumstance have been found to have attended the
Q You said you went to the room, what else happened? commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 588 of the same Code.89 The penalty of

54
reclusion temporal in its medium period is imposable, considering that two
mitigating circumstances are to be taken into account in reducing the
penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense.90 Under the
Indeterminate Sentence Law, the minimum of the penalty shall be within
the range of that which is next lower in degree—prision mayor—and the
maximum shall be within the range of the medium period of reclusion
temporal.
Considering all the circumstances of the instant case, we deem it just and
proper to impose the penalty of prision mayor in its minimum period, or six
(6) years and one (1) day in prison as minimum; toreclusion temporal in its
medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for
and be released from detention on parole.91
Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome
was neither easy nor simple to analyze and recognize vis-à-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 appellant’s
counsel, Atty. Katrina Legarda, have helped it in such learning process.
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 person’s 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 REDUCEDto 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. People vs. Genosa, 419 SCRA 537, G.R. No. 135981
January 15, 2004

While our hearts empathize with recurrently battered persons, we can only
work within the limits of law, jurisprudence and given facts. We cannot
make or invent them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising

from the battered woman syndrome. We now sum up our main points.

55
G.R. No. 54135. November 21, 1991.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. POLICARPIO RAFANAN,
JR., defendant-appellant
Criminal Law; Rape; Plea of insanity.—Although the Court has ruled many
times in the past on the insanity defense, it was only in People vs.
Formigones that the Court elaborated on the required standards of legal
insanity. x x x The standards set out in Formigones were commonly adopted
in subsequent cases. A linguistic or grammatical analysis of those standards
suggests that Formigones established two (2) distinguishable tests: (a) the
test of cognition—"complete deprivation of intelligence in committing the
[criminal] act,” and (b) the test of volition—"or that there be a total
deprivation of freedom of the will.” But our caselaw shows common
reliance on the test of cognition, rather than on a test relating to “freedom
of the will;” examination of our caselaw has failed to turn up any case
where this Court has exempted an accused on the sole ground that he was
totally deprived of ''freedom of the will,” i.e., without an accompanying
“com-plete deprivation of intelligence.” This is perhaps to be expected since
a person’s volition naturally reaches out only towards that which is
presented as desirable by his intelligence, whether that intelligence be
diseased or healthy. In any case, where the accused failed to show complete
impairment or loss of intelligence, the Court has recognized at most a
mitigating, not an exempting, circumstance in accord with Article 13(9) of
the Revised Penal Code: “Such illness of the offender as would diminish the
exercise of the will-power of the offender without however depriving him of
the consciousness of his acts.”
Same; Same; Same; Schizophrenia as exempting circumstance.—ln previous
cases where schizophrenia was interposed as an exempting circumstance, it
has mostly been rejected by the Court. In each of these cases, the evidence
presented tended to show that if there was impairment of the mental
faculties, such impairment was not so complete as to deprive the accused of
intelligence or the consciousness of his acts. The facts of the instant case
exhibit much the same situation.
56
Same; Same; Same.—The law presumes every man to be sane. A person
accused of a crime has the burden of proving his affirmative allegation of
insanity, Here, appellant failed to present clear and convincing evidence
regarding his state of mind immediately before and during the sexual
assault on Estelita. It has been held that inquiry into the mental state of the
accused should relate to the period immediately before or at the very
moment the act is committed.
APPEAL from the decision of the then Court of First Instance of Villasis,
Pangasinan, Br. 5.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Causapin, Millar & Tutana Law Office for defendant-appellant.
FELICIANO, J.:
Policarpio Rafanan, Jr. appeals from a decision of the then Court of First
Instance of Pangasinan convicting him of the crime of rape and sentencing
him to reclusion perpetua, to indemnify complainant Estelita Ronaya in the
amount of P10,000.00 by way of moral damages, and to pay the costs.
The facts were summarized by the trial court in the following manner:
“The prosecution’s evidence shows that on February 27, 1976, complainant
Estelita Ronaya who was then only fourteen years old was hired as a
househelper by the mother of the accused, Ines Rafanan alias ‘Baket Ines’
with a salary of P30.00 a month.
The accused Policarpio Rafanan and his family lived with his mother in the
same house at Barangay San Nicolas, Villasis, Pangasinan. Policarpio was
then married and had two children.
On March 16, 1976, in the evening, after dinner, Estelita Ronaya was sent by
the mother of the accused to help in their store which was located in front
of their house about six (6) meters away. Attending to the store at the time
was the accused. At 11 ;00 o’clock in the evening, the accused called the
complainant to help him close the door of the store and as the latter
complied and went near him, he suddenly pulled the complainant inside the
store and said, ‘Come. let us have sexual intercourse,’ to which Estelita
replied, ‘I do not like,’ and struggled to free herself and cried. The accused
held a bolo measuring 1–1/2 feet including the handle which he pointed to
the throat of the complainant threatening her with said bolo should she
resist. Then, he forced her to lie down on a bamboo bed, removed her pants
and after unfastening the zipper of his own pants, went on top of the
complainant and succeeded having carnal knowledge of her inspite of her
resistance and struggle. After the sexual intercourse, the accused cautioned
the complainant not to report the matter to her mother or to anybody in
the house, otherwise he would kill her.
Because of fear, the complainant did not immediately report the matter and
did not leave the house of the accused that same evening. ln fact, she slept
in the house of the accused that evening and the following morning she
scrubbed the floor and did her daily routine work in the house. She only left
the house in the evening of March 17, 1976.
Somehow, in the evening of March 17, 1976, the family of the accused
learned what happened the night before in the store between Policarpio
and Estelita and a quarrel ensued among them prompting Estelita Ronaya to
go back to her house. When Estelita’s mother confronted her and asked her
why she went home that evening, the complainant could not answer but
cried and cried. It was only the following morning on March 18, 1976 that
the complainant told her mother that she was raped by the accused. Upon
knowing what happened to her daughter, the mother Alejandra Ronaya,
immediately accompanied her to the house of Patrolman Bernardo Mairina
of the Villasis Police Force who lives in Barrio San Nicolas, Villasis,
Pangasinan. Patrolman Mairina is a cousin of the father of the complainant.
He advised them to proceed to the municipal building while he went to
fetch the accused. The accused was later brought to the police headquarter
with the bolo, Exhibit ‘E', which the accused allegedly used in threatening
the complainant."1
57
At arraignment, appellant entered a plea of not guilty. The case then
proceeded to trial and in due course of time, the trial court, as already
noted, convicted the appellant.
The instant appeal is anchored on the following:
“Assignment of Errors
1. The lower court erred in basing its decision of conviction of appellant
solely on the testimony of the complainant and her mother.
2. The lower court erred in considering the hearsay evidence for the
prosecution, ‘Exhibits B and C'.
3. The lower court erred in not believing the testimony of the expert
witnesses, as to the mental condition of the accused-appellant at the time
of the alleged commission of the crime of rape.
4. The lower court erred in convicting appellant who at the time of the
alleged rape was suffering from insanity."2
Appellant first assails the credibility of complainant as well as of her mother
whose testimonies he contends are contradictory. It is claimed by appellant
that the testimony of complainant on direct examination that she
immediately went home after the rape incident, is at variance with her
testimony on cross examination to the effect that she had stayed in the
house of appellant until the following day. Complainant, in saying that she
left the house of appellant by herself, is also alleged to have contradicted
her mother who stated that she (the mother) went to the store in the
evening of 17 March 1979 and brought Estelita home.
The apparently inconsistent statements made by complainant were clarified
by her on cross examination. In any case, the inconsistencies related to
minor and inconsequential details which do not touch upon the manner in
which the crime had been committed and therefore did not in any way
impair the credibility of the complainant.3
The commission of the crime was not seriously disputed by appellant. The
testimony of complainant in this respect is clear and convincing:
“Fiscal Guillermo: A I was wearing pants, sir.

Q Now, we go back to that time when according to you the accused pulled Q Aside from the pants, do you have any underwear?
you from the door and brought you inside the store after you helped him
A Yes, sir, I have a panty.
closed the store. Now, after the accused pulled you from the door and
brought you inside the store what happened then? Q Now, before the accused have sexual intercourse with you what, if any,
did he do with respect to your pants and your panty?
A ‘You come and we will have sexual intercourse/ he said.
A He removed them, sir.
Q And what did you say?
Q Now, while he was removing your pants and your panty what, if any, did
A ‘I do not like,’ I said.
you do?
Q And what did you do, if any, when you said you do not like to have sexual
A I continued to struggle so that he could not remove my pants but he was
intercourse with him?
stronger that’s why he succeeded.
A I struggled and cried.
Q Now, after he had removed your panty and your pants or pantsuit what
Q What did the accused do after that? else happened?

A He got a knife and pointed it at my throat so I was frightened and he could A He went on top of me, sir.
do what he wanted to do. He was able to do what he wanted to do.
Q At the time what was the accused wearing by way of apparel?
Q This ‘kutsilyo’ you were referring to or knife, how big is that knife? Will
A He was wearing pants.
you please demonstrate, if any?
Q When you said he went on top of you after he has removed your pantsuit
A This length, sir. (Which parties agreed to be about one and one-half [1–
and your panty, was he still wearing his pants?
1/2] feet long.)
A He unbuttoned his pants and unfastened the zipper of his pants.
xxx xxx xxx
Q And after he unbuttoned and unfastened his pants what did you see
Fiscal Guillermo:
which he opened?
Q Now, you said that the accused was able to have sexual intercourse with
A I saw his penis.
you after he placed the bolo or that knife [at] your throat. Now, will you
please tell the court what did the accused do immediately after placing that Q Now, you said that after the accused has unzipped his pants and brought
bolo at your throat and before having sexual intercourse with you? out his penis which you saw, he went on top of you. When he was already
on top of you what did you do, if any?
A He had sexual intercourse with me.
A I struggled.
Q What was your wearing apparel that evening?

58
Q Now, you said that you struggled. What happened then when you Q What else did he tell you?
struggled against the accused when he was on top of you?
A He told me that if I told anyone what happened, he will kill me.
A Since he was stronger, he succeeded doing what he wanted to get.
Q After that where did you go?
xxx xxx xxx
A I went home already, sir."4
COURT: Alright, what do you mean by he was able to succeed in getting
The principal submission of appellant is that he was suffering from a metal
what he wanted to get?
aberration characterized as schizophrenia when he inflicted his violent
Fiscal Guillermo: Considering the condition of the witness, your honor, with intentions upon Estelita. At the urging of his counsel, the trial court
tears, may we just be allowed to ask a leading question which is a follow-up suspended the trial and ordered appellant confined at the National Mental
question? Hospital in Mandaluyong for observation and treatment. In the meantime,
the case was archived. Appellant was admitted into the hospital on 29
Witness:
December 1976 and stayed there until 26 June 1978.
A He inserted his private part inside my vagina.
During his confinement, the hospital prepared four (4) clinical reports on
Fiscal Guillermo: the mental and physical condition of the appellant, all signed by Dr.
Simplicio N. Masikip and Dr, Arturo E. Nerit, physician-in-charge and chief,
Q Now, when he inserted his private part inside your vagina what did you Forensic Psychiatry Service, respectively.
feel, if any?
In the first report dated 27 January 1977, the following observations
A I felt something that came out from his inside. concerning appellant’s mental condition were set forth:
Q Now, how long, if you remember, did the accused have his penis inside “On admission he was sluggish in movements, indifferent to interview,
your vagina? would just look up whenever questioned but refused to answer.
A Around five minutes maybe, sir. On subsequent examinations and observations he was carelessly attired,
Q After that what happened then? with dishevelled hair, would stare vacuously through the window, or look at
people around him. He was indifferent and when questioned, he would just
A He removed it. smile inappropriately. He refused to verbalize, even when persuaded, and
Q After the accused has removed his penis from your vagina what else was emotionally dull and mentally inaccessible. He is generally seclusive, at
happened? times would pace the floor, seemingly in deep thought. Later on when
questioned his frequent answers are ‘Aywan ko, hindi ko alam.’ His affect is
A No more, sir, he sat down. dull, he claimed to hear strange voices ‘parang ibon, tinig ng ibon,’ but
cannot elaborate. He is disoriented to 3 spheres and has no idea why he was
Q What, if any, did he tell you?
brought here,”
A There was, sir. He told me not to report the matter to my mother and to
The report then concluded:
anybody in their house.
59
 “In view of the foregoing examinations and observations, Policarpio
Rafanan, Jr. y Gambawa is found suffering from a mental disorder called
schizophrenia, manifested by carelessness in grooming, sluggishness in
movements, staring vacuously, indifferen[ce], smiling inappropriately,
refusal to verbalize, emotional dullness, mental inaccessibility,
seclusiveness, preoccupation, disorientation, and perceptual aberrations of
hearing strange sounds. He is psychotic or insane, hence cannot stand court
trial. He needs further hospitalization and treatment."5
The second report, dated 21 June 1977, contained the following description
of appellant’s mental condition:
“At present he is still seclusive, undertalkative and retarded in his
responses. There is dullness of his affect and he appeared preoccupied. He
is observed to mumble alone by himself and would show periods of being
irritable saying—'oki naman’ with nobody in particular. He claim he does
not know whether or not he was placed in jail and does not know if he has a
case in court. Said he does not remember having committed any wrong act”
and the following conclusions:
“In view of the foregoing examinations and observations Policarpio Rafanan,
Jr. y. Gambawa is at present time still psychotic or insane, manifested by
periods of irritability—cursing nobody in particular, seclusive, underactive,
undertalkative, retarded in his responses, dullness of his affect, mumbles
alone by himself, preoccupied and lack of insight.
He is not yet in a condition to stand court trial. He needs further
hospitalization and treatment."6
In the third report, dated 5 October 1977, appellant was described as having
become “better behaved, responsive” and “neat in person,” and “adequate
in his emotional tone, in touch with his surroundings and x x x free from
hallucinatory experiences.” During the preceding period, appellant had been
allowed to leave the hospital temporarily; he stayed with a relative in
Manila while coming periodically to the hospital for
check-ups. During this period, he was said to have been helpful in the doing
of household chores, conversed and associated freely with other members
60
of the household and slept well, although, occasionally, appellant smiled
while alone. Appellant complained that at times he heard voices of small
children, talking in a language he could not understand. The report
concluded by saying that while appellant had improved in his mental
condition, he was not yet in a position to stand trial since he needed further
treatment, medication and check-ups.7 In the last report dated 26 June
1978, appellant was described as behaved, helpful in household chores and
no longer talking while alone. He was said to be “fairly groomed” and
“oriented” and as denying having hallucinations. The report concluded that
he was in a “much improved condition” and “in a mental condition to stand
court trial."8
Trial of the case thus resumed. The defense first presented Dr. Arturo Nerit
who suggested that appellant was sick one or two years before his
admission into the hospital, in effect implying that appellant was already
suffering from schizophrenia when he raped complainant.9 The defense
next presented Dr. Raquel Jovellano, a psychiatrist engaged in private
practice, who testified that he had examined and treated the appellant,
Appellant’s plea of insanity rests on Article 12 of the Revised Penal Code
which provides:
“Art. 12. Circumstances which exempt from criminal liability.—The following
are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a lucid
interval.
Where the imbecile or an insane person has committed an act which the
law defines as a felony (delito), the court shall order his confinement in one
of the hospitals or asylums established for persons thus afflicted, which he
shall not be permitted to leave without first obtaining the permission of the
same court.
Although the Court has ruled many times in the past on the insanity
defense, it was only in People vs. Formigones 10 that the Court elaborated
on the required standards of legal insanity, quoting extensively from the
Commentaries of Judge Guillermo Guevara on the Revised Penal Code, thus:
“The Supreme Court of Spain held that in order that this exempting
circumstance may be taken into account, it is necessary that there be a
complete deprivation of intelligence in committing the act, that is, that the
accused be deprived of reason; that there be no responsibility for his own
acts; that he acts without the least discernment; (Decision of the Supreme
Court of Spain of November 21,1891; 47 Jur. Crim. 413.) that there be a
complete absence of the power to discern, (Decision of the Supreme Court
of Spain of April 29,1916; 96 Jur. Crim. 239) or that there be a total
deprivation of freedom of the will. (Decision of the Supreme Court of Spain
of April 9, 1872; 6 Jur. Crim. 239) For this reason, it was held that the
imbecility or insanity at the time of the commission of the act should
absolutely deprive a person of intelligence or freedom of will, because mere
abnormality of his mental faculties does not exclude imputability. (Decision
of the Supreme Court of Spain of April 20,1911; 86 Jur. Crim. 94, 97.)
The Supreme Court of Spain likewise held that deaf-muteness cannot be
[equated with] imbecility or insanity.
The allegation of insanity or imbecility must be clearly proved. Without
positive evidence that the defendant had previously lost his reason or was
demented, a few moments prior to or during the perpetration of the crime,
it will be presumed that he was in a normal condition. Acts penalized by law
are always reputed to be voluntary, and it is improper to conclude that a
person acted unconsciously, in order to relieve him from liability, on the
basis of his mental condition, unless his insanity and absence of will are
proved.” (Italics supplied.)
The standards set out in Formigones were commonly adopted in
subsequent cases.11 A linguistic or grammatical analysis of those standards
suggests that Formigones established two (2) distinguishable tests: (a) the
test of cognition—"complete deprivation of intelligence in committing the
[criminal] act,” and (b) the test of volition—"or that there be a total
deprivation of freedom of the will.” But our caselaw shows common
reliance on the test of cognition, rather than on a test relating to “freedom
of the will;” examination of our caselaw has failed to turn up any case
where this Court has exempted an accused on the sole ground that he was
61
totally deprived of “freedom of the will,” i.e., without an accompanying
“complete deprivation of intelligence.” This is perhaps to be expected since
a person’s volition naturally reaches out only towards that which is
presented as desirable by his intelligence, whether that intelligence be
diseased or healthy. In any case, where the accused failed to show complete
impairment or loss of intelligence, the Court has recognized at most a
mitigating, not an exempting, circumstance in accord with Article 13(9) of
the Revised Penal Code: “Such illness of the offender as would diminish the
exercise of the will-power of the offender without however depriving him of
the consciousness of his acts."12
Schizophrenia pleaded by appellant has been described as a chronic mental
disorder characterized by inability to distinguish between fantasy and
reality, and often accompanied by hallucinations and delusions. Formerly
called dementia praecox, it is said to be the most common form of psychosis
and usually develops between the ages 15 and 30.13 A standard textbook in
psychiatry describes some of the symptoms of schizophrenia in the
following manner:
“Eugen Bleuler later described three general primary symptoms of
schizophrenia: a disturbance of association, a disturbance of affect, and a
disturbance of activity. Bleuler also stressed the dereistic attitude of the
schizophrenic—that is? his detachment from reality and his consequent
autism and the ambivalence that expresses itself in his uncertain affectivity
and initiative. Thus, Bleuler’s system of schizophrenia is often referred to as
the four A’s: association, affect. autism, and ambivalence.
xxx xxx xxx
Kurt Schneider described a number of first-rank symptoms of schizophrenia
that he considered in no way specific for the disease but of great pragmatic
value in making a diagnosis. Schneider’s first-rank symptoms include the
hearing of one’s thoughts spoken aloud, auditory hallucinations that
comment on the patient’s behavior, somatic hallucinations, the experience
of having one’s thoughts controlled, the spreading of one’s thoughts to
others, delusions, and the experience of having one’s actions controlled or
influenced from the outside.
Schizophrenia, Schneider pointed out, also can be diagnosed exclusively on
the basis of second-rank symptoms, along with an otherwise typical clinical
appearances. Second-rank symptoms include other forms of hallucination,
perplexity, depressive and euphoric disorders of affect, and emotional
blunting.
Perceptual Disorders
Various perceptual disorders occur in schizophrenia x x x. Hallucinations.
Sensory experiences or perceptions without corresponding external stimuli
are common symptoms of schizophrenia. Most common are auditory
hallucinations, or the hearing of voices. Most characteristically, two or more
voices talk about the patient, discussing him in the third person. Frequently,
the voices address the patient, comment on what he is doing and what is
going on around him, or are threatening or obscene and very disturbing to
the patient. Many schizophrenic patients experience the hearing of their
own thoughts, When they are reading silently, for example, they may be
quite disturbed by hearing every word they are reading clearly spoken to
them.
Visual hallucinations occur less frequently than auditory hallucinations in
schizophrenic patients, but they are not rare. Patients suffering from
organic or affective psychoses experience visual hallucinations primarily at
night or during limited periods of the day, but schizophrenic patients
hallucinate as much during the day as they do during the night, sometimes
almost continuously. They get relief only in sleep. When visual
hallucinations occur in schizophrenia, they are usually seen nearby, clearly
defined, in color, life size, in three dimensions, and moving. Visual
hallucinations almost never occur by themselves but always in combination
with hallucinations in one of the other sensory modalities.
xxx xxx xxx
Cognitive Disorders
62
Delusions. By definition, delusions are false ideas that cannot be corrected
by reasoning, and that are idiosyncratic for the patient—that is, not part of
his cultural environment. They are among the common symptoms of
schizophrenia.
Most frequent are delusions of persecution, which are the key symptom in
the paranoid type of schizophrenia. The conviction of being controlled by
some unseen mysterious power that exercises its influence from a distance
is almost pathognomonic for schizophrenia. It occurs in most, if not all,
schizophrenics at one time or another, and for many it is a daily experience.
The modern schizophrenic whose delusions have kept up with the scientific
times may be preoccupied with atomic power, X-rays, or spaceships that
take control over his mind and body. Also typical for many schizophrenics
are delusional fantasies about the destruction of the world."14
In previous cases where schizophrenia was interposed as an exempting
circumstance,15 it has mostly been rejected by the Court. In each of these
cases, the evidence presented tended to show that if there was impairment
of the mental faculties, such impairment was not so complete as to deprive
the accused of intelligence or the consciousness of his acts.
The facts of the instant case exhibit much the same situation. Dr. Jovellano
declared as follows:
"(Fiscal Guillermo:)
Q Now, this condition of the accused schizophrenic as you found him, would
you say doctor that he was completely devoid of any consciousness of
whatever he did in connection with the incident in this case?
A He is not completely devoid of consciousness.
Q Would you say doctor, therefore, that he was conscious of threatening
the victim at the time of the commission of the alleged rape?
A Yes, he was conscious.
Q And he was conscious of forcing the victim to lie down?
A Yes.
Q And he was also conscious of removing the panty of the victim at the
time?
A Yes.
Q And he was also conscious and knows that the victim has a vagina upon
which he will place his penis?
A Yeah.
Q And he was conscious enough to be competent and have an erection?
A Yes.
Q Would you say that those acts of a person no matter whether he is
schizophrenic which you said, it deals (sic) some kind of intelligence and
consciousness of some acts that is committed?
A Yes, it involves the consciousness because the consciousness there in
relation to the act is what we call primitive acts of any individual. The
difference only in the act of an insane and a normal individual, a normal
individual will use the power of reasoning and consciousness within the
standard of society while an insane causes (sic) already devoid of the fact
that he could no longer withstand himself in the ordinary environment, yet
his acts are within the bound of insanity or psychosis.
Q Now, Doctor, of course this person suffering that ailment which you said
the accused here is suffering is capable of planning the commission of a
rape?
A Yes, they are also capable.
Q He is capable of laying in wait in order to assault?
A Yes.
Q And would you say that condition that ability of a person to plan a rape
and to perform all the acts preparatory to the actual intercourse could be
done by an insane person?
63
A Yes, it could be done.
Q Now, you are talking of insanity in its broadest sense, is it not?
A Yes, sir.
Q Now, is this insane person also capable of knowing what is right and what
is wrong?
A Well, there is no weakness on that part of the individual. They may know
what is wrong but yet there is no inhibition on the individual.
Q Yes, but actually, they are mentally equipped with knowledge that an act
they are going to commit is wrong?
A Yeah, they are equipped but the difference is, there is what we call they
lost the inhibition. The reasoning is weak and yet they understand but the
volition is [not] there, the drive is [not] there."16 (Italics supplied)
The above testimony, in substance, negates complete destruction of
intelligence at the time of commission of the act charged which, in the
current state of our caselaw, is critical if the defense of insanity is to be
sustained. The fact that appellant Rafanan threatened complainant Estelita
with death should she reveal she had been sexually assaulted by him,
indicates, to the mind of the Court, that Rafanan was aware of the
reprehensible moral quality of that assault. The defense sought to suggest,
through Dr. Jovellano’s last two (2) answers above, that a person suffering
from schizophrenia sustains not only impairment of the mental faculties but
also deprivation of the power of self-control. We do not believe that Dr.
Jovellano’s testimony, by itself, sufficiently demonstrated the truth of that
proposition. In any case, as already pointed out, it is complete loss of
intelligence which must be shown if the exempting circumstance of insanity
is to be found.
The law presumes every man to be sane. A person accused of a crime has
the burden of proving his affirmative allegation of insanity.17 Here,
appellant failed to present clear and convincing evidence regarding his state
of mind immediately before and during the sexual assault on Estelita. It has
been held that inquiry into the mental state of the accused should relate to
the period immediately before or at the very moment the act is
committed.18 Appellant rested his case on the testimonies of the two (2)
physicians (Dr. Jovellano and Dr. Nerit) which, however, did not purport to
characterize his mental condition during that critical period of time. They
did not specifically relate to circumstances occurring on or immediately
before the day of the rape. Their testimonies consisted of broad statements
based on general behavioral patterns of people afflicted with schizophrenia.
Curiously, while it was Dr. Masikip who had actually observed and examined
appellant during his confinement at the National Mental Hospital, the
defense chose to present Dr. Nerit.

Accordingly, we must reject the insanity defense of appellant Rafanan.

In People vs. Puno (supra), the Court ruled that schizophrenic reaction,
although not exempting because it does not completely deprive the
offender of the consciousness of his acts, may be considered as a mitigating
circumstance under Article 13(9) of the Revised Penal Code, i.e., as an illness
which diminishes the exercise of the offender’s will-power without,
however, depriving him of the consciousness of his acts. Appellant should
have been credited with this mitigating circumstance, although it would not
have affected the penalty imposable upon him under Article 63 of the
Revised Penal Code: “in all cases in which the law prescribes a single
indivisible penalty (reclusion perpetua in this case), it shall be applied by the
courts regardless of any mitigating or aggravating circumstances that may
have attended the commission of the deed.”

WHEREFORE, the Decision appealed from is hereby AFFIRMED, except that

the amount of moral damages is increased to P30,000.00. Costs against
appellant. People vs. Rafanan, Jr., 204 SCRA 65, G.R. No. 54135 November
21, 1991

64
G.R. No. 182239. March 16, 2011.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMIE M. JACINTO,
accused-appellant.
Criminal Law; Rape; Witnesses; The credible, natural, and convincing
testimony of the victim may be sufficient to convict the accused, more so,
when the testimony is supported by the medico-legal findings of the
examining physician.—In the determination of the innocence or guilt of a
person accused of rape, we consider the three well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove
but more difficult for the accused, though innocent, to disprove; (2) in view
of the intrinsic nature of the crime of rape in which only two persons are
usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand or fall
on its own merits, and cannot be allowed to draw strength from the
weakness of the evidence for the defense. Necessarily, the credible, natural,
and convincing testimony of the victim may be sufficient to convict the
accused. More so, when the testimony is supported by the medico-legal
findings of the examining physician.
Same; Same; Same; Alibi; The defense of alibi cannot prevail over the
victim’s positive identification of the perpetrator of the crime, except when
it is established that it was physically impossible for the accused to have
been at the locus criminis at the time of the commission of the crime.—
Further, the defense of alibi cannot prevail over the victim’s positive
identification of the perpetrator of the crime, except when it is established
that it was physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.
Same; Same; Statutory Rape; Elements.—A man commits rape by having
carnal knowledge of a child under twelve (12) years of age even in the
absence of any of the following circumstances: (a) through force, threat or
intimidation; (b) when the offended party is deprived of reason or
otherwise unconscious; or (c) by means of fraudulent machination or grave
abuse of authority.
65
Same; Same; Same; A victim of rape could readily identify her assailant,
especially when he is not a stranger to her, considering that she could have
a good look at him during the commission of the crime.—The real identity of
the assailant and the whereabouts of the appellant at the time of the
commission of the crime are now in dispute. The defense would want us to
believe that it was Julito who defiled AAA, and that appellant was elsewhere
when the crime was committed. We should not, however, overlook the fact
that a victim of rape could readily identify her assailant, especially when he
is not a stranger to her, considering that she could have a good look at him
during the commission of the crime. AAA had known appellant all her life.
Moreover, appellant and AAA even walked together from the road near the
store to the situs criminus that it would be impossible for the child not to
recognize the man who held her hand and led her all the way to the rice
field.
Same; Alibi; For alibi to prosper, it is necessary that the corroboration is
credible, the same having been offered preferably by disinterested
witnesses.—For alibi to prosper, it is necessary that the corroboration is
credible, the same having been offered preferably by disinterested cannot
qualify as such, “they being related or were one way or another linked to
each other.”
Same; Same; The court must be convinced that it would be physically
impossible for the accused to have been at the locus criminis at the time of
the commission of the crime.—Time and again, that the court must be
convinced that it would be physically impossible for the accused to have
been at the locus criminis at the time of the commission of the crime.
Physical impossibility refers to distance and the facility of access between
the situs criminis and the location of the accused when the crime was
committed. He must demonstrate that he was so far away and could not
have been physically present at the scene of the crime and its immediate
vicinity when the crime was committed.
Same; Juvenile Justice and Welfare Act of 2006 (Republic Act No. 9344); Sec.
68 of Republic Act No. 9344 allows the retroactive application of the law to
those who have been convicted and are serving sentence at the time of the
effectivity of said law, and who were below the age of 18 years at the time
of the commission of the offense—with more reason, the law should apply
where the conviction by the lower court is still under review.—In the
determination of the imposable penalty, the Court of Appeals correctly
considered Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)
despite the commission of the crime three (3) years before it was enacted
on 28 April 2006. We recognize its retroactive application following the
rationale elucidated in People v. Sarcia, 599 SCRA 20 (2009): [Sec. 68 of
Republic Act No. 9344] allows the retroactive application of the Act to those
who have been convicted and are serving sentence at the time of the
effectivity of this said Act, and who were below the age of 18 years at the
time of the commission of the offense. With more reason, the Act should
apply to this case wherein the conviction by the lower court is still under
review.
Same; Same; Words and Phrases; Discernment is that mental capacity of a
minor to fully appreciate the consequences of his unlawful act, which
capacity may be known and should be determined by taking into
consideration all the facts and circumstances afforded by the records in
each case.—Sec. 6 of Republic Act No. 9344 exempts a child above fifteen
(15) years but below eighteen (18) years of age from criminal liability, unless
the child is found to have acted with discernment, in which case, “the
appropriate proceedings” in accordance with the Act shall be observed. We
determine discernment in this wise: Discernment is that mental capacity of
a minor to fully appreciate the consequences of his unlawful act. Such
capacity may be known and should be determined by taking into
consideration all the facts and circumstances afforded by the records in
each case. x x x The surrounding circumstances must demonstrate that the
minor knew what he was doing and that it was wrong. Such circumstance
includes the gruesome nature of the crime and the minor’s cunning and
shrewdness. In the present case, we agree with the Court of Appeals that:
“(1) choosing an isolated and dark place to perpetrate the crime, to prevent
detection[;] and (2) boxing the victim x x x, to weaken her defense” are
indicative of then seventeen (17) year-old appellant’s mental capacity to
fully understand the consequences of his unlawful action.
66
Same; Mitigating Circumstances; Minority; Penalties; While under Article 68
of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always
in the proper period, for purposes of determining the proper penalty
because of the privileged mitigating circumstance of minority, the penalty of
death is still the penalty to be reckoned with.—In a more recent case, the
Court En Banc, through the Honorable Justice Teresita J. Leonardo-de
Castro, clarified: Under Article 68 of the Revised Penal Code, when the
offender is a minor under 18 years, the penalty next lower than that
prescribed by law shall be imposed, but always in the proper period.
However, for purposes of determining the proper penalty because of the
privileged mitigating circumstance of minority, the penalty of death is still
the penalty to be reckoned with. Thus, the proper imposable penalty for the
accused-appellant is reclusion perpetua. (Emphasis supplied.) Accordingly,
appellant should be meted the penalty of reclusion perpetua.
Same; Same; Civil Liability; The fact that the offender was still a minor at the
time he committed the crime has no bearing on the gravity and extent of
injury suffered by the victim and her family.—We have consistently ruled
that: The litmus test x x x in the determination of the civil indemnity is the
heinous character of the crime committed, which would have warranted the
imposition of the death penalty, regardless of whether the penalty actually
imposed is reduced to reclusion perpetua. Likewise, the fact that the
offender was still a minor at the time he committed the crime has no
bearing on the gravity and extent of injury suffered by the victim and her
family. The respective awards of civil indemnity and moral damages in the
amount of P75,000.00 each are, therefore, proper. Accordingly, despite the
presence of the privileged mitigating circumstance of minority which
effectively lowered the penalty by one degree, we affirm the damages
awarded by the Court of Appeals in the amount of P75,000.00 as civil
indemnity and P75,000.00 as moral damages. And, consistent with
prevailing jurisprudence, the amount of exemplary damages should be
increased from P25,000.00 to P30,000.00.
Same; Juvenile Justice and Welfare Act of 2006; Statutory Construction;
Since R.A. No. 9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been convicted of a
lesser offense, the Court should also not distinguish and should apply the
automatic suspension of sentence to a child in conflict with the law who has
been found guilty of a heinous crime.—Applying Declarador v. Gubaton, 499
SCRA 341 (2006), which was promulgated on 18 August 2006, the Court of
Appeals held that, consistent with Article 192 of Presidential Decree No.
603, as amended, the aforestated provision does not apply to one who has
been convicted of an offense punishable by death, reclusion perpetua or life
imprisonment. Meanwhile, on 10 September 2009, this Court promulgated
the decision in Sarcia, overturning the ruling in Gubaton. Thus: The xxx
provision makes no distinction as to the nature of the offense committed by
the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-
SC. The said P.D. and Supreme Court (SC) Rule provide that the benefit of
suspended sentence would not apply to a child in conflict with the law if,
among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A.
No. 9344, the Court is guided by the basic principle of statutory construction
that when the law does not distinguish, we should not distinguish. Since
R.A. No. 9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been convicted of a
lesser offense, the Court should also not distinguish and should apply the
automatic suspension of sentence to a child in conflict with the law who has
been found guilty of a heinous crime. The legislative intent reflected in the
Senate deliberations on Senate Bill No. 1402 (Juvenile Justice and
Delinquency Prevention Act of 2005) further strengthened the new position
of this Court to cover heinous crimes in the application of the provision on
the automatic suspension of sentence of a child in conflict with the law.
Same; Same; While the suspension of sentence lasts only until the child in
conflict with the law reaches the maximum age of twenty-one (21) years, to
give meaning to the legislative intent of the Act, the promotion of the
welfare of a child in conflict with the law should extend even to one who
has exceeded the age limit of twenty-one (21) years, so long as he/she
committed the crime when he/she was still a child.—These developments
notwithstanding, we find that the benefits of a suspended sentence can no
67
longer apply to appellant. The suspension of sentence lasts only until the
child in conflict with the law reaches the maximum age of twenty-one (21)
years. Section 40 of the law and Section 48 of the Rule are clear on the
matter. Unfortunately, appellant is now twenty-five (25) years old. Be that
as it may, to give meaning to the legislative intent of the Act, the promotion
of the welfare of a child in conflict with the law should extend even to one
who has exceeded the age limit of twenty-one (21) years, so long as he/she
committed the crime when he/she was still a child. The offender shall be
entitled to the right to restoration, rehabilitation and reintegration in
accordance with the Act in order that he/she is given the chance to live a
normal life and become a productive member of the community. The age of
the child in conflict with the law at the time of the promulgation of the
judgment of conviction is not material. What matters is that the offender
committed the offense when he/she was still of tender age. Thus, appellant
may be confined in an agricultural camp or any other training facility in
accordance with Sec. 51 of Republic Act No. 9344.
APPEAL from a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi
cannot prevail over the victim’s positive identification of the accused as the
perpetrator of the crime.1 For it to prosper, the court must be convinced
that there was physical impossibility on the part of the accused to have
been at the locus criminis at the time of the commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction
has become final and executory only after his disqualification from availing
of the benefits of suspended sentence on the ground that he/she has
exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with
Republic Act No. 9344, otherwise known as “An Act Establishing a
Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile
Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes.”
Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto
seeks before this Court the reversal of the judgment of his conviction.4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court
and docketed as Criminal Case No. 1679-13-141[1],6 appellant was accused
of the crime of RAPE allegedly committed as follows:
“That on or about the 28th day of January, 2003 at about 7:00 o’clock in the
evening more or less, at barangay xxx, municipality of xxx, province of xxx
and within the jurisdiction of this Honorable Court, [Hermie M. Jacinto],
with lewd design did then and there willfully, unlawfully and feloniously had
carnal knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of
minority, the victim being only five years old.”7
On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9
the defense admitted the existence of the following documents: (1) birth
certificate of AAA, showing that she was born on 3 December 1997; (2)
police blotter entry on the rape incident; and (3) medical certificate, upon
presentation of the original or upon identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to
prove their respective versions of the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito
Apiki [Julito]12 may be summarized in the following manner:
68
FFF and appellant have been neighbors since they were born. FFF’s house is
along the road. That of appellant lies at the back approximately 80 meters
from FFF. To access the road, appellant has to pass by FFF’s house, the
frequency of which the latter describes to be “every minute [and] every
hour.” Also, appellant often visits FFF because they were close friends. He
bore no grudge against appellant prior to the incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees him
all the time—playing at the basketball court near her house, fetching water,
and passing by her house on his way to the road. She and appellant used to
be friends until the incident.14
At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-
year-old daughter CCC to the store of Rudy Hatague to buy cigarettes. AAA
followed CCC. When CCC returned without AAA, FFF was not alarmed. He
thought she was watching television at the house of her aunt Rita Lingcay
[Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle
of Tanduay Rum.16 At the store, he saw appellant place AAA on his lap.17
He was wearing sleeveless shirt and a pair of short pants.18 All of them left
the store at the same time.19 Julito proceeded to the house of Rita to watch
television, while appellant, who held the hand of AAA, went towards the
direction of the “lower area or place.”20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of
short pants21 when he held her hand while on the road near the store.22
They walked towards the rice field near the house of spouses Alejandro and
Gloria Perocho [the Perochos].23 There he made her lie down on harrowed
ground, removed her panty and boxed her on the chest.24 Already half-
naked from waist down,25 he mounted her, and, while her legs were
pushed apart, pushed his penis into her vagina and made a push and pull
movement.26 She felt pain and cried.27
Afterwards, appellant left and proceeded to the Perochos.28 She, in turn,
went straight home crying.29
FFF heard AAA crying and calling his name from downstairs.30 She was
without slippers.31 He found her face greasy.32 There was mud on her head
and blood was oozing from the back of her head.33 He checked for any
injury and found on her neck a contusion that was already turning black.34
She had no underwear on and he saw white substance and mud on her
vagina.35 AAA told him that appellant brought her from the store36 to the
grassy area at the back of the house of the Perochos;37 that he threw away
her pair of slippers, removed her panty, choked her and boxed her breast;38
and that he proceeded thereafter to the Perochos.39
True enough, FFF found appellant at the house of the Perochos.40 He asked
the appellant what he did to AAA.41 Appellant replied that he was asked to
buy rum at the store and that AAA followed him.42 FFF went home to check
on his daughter,43 afterwhich, he went back to appellant, asked again,44
and boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still
watching television at the house of Rita.46 AAA and her mother MMM
arrived.47 AAA was crying.48 Julito pitied her, embraced her, and asked
what happened to her, to which she replied that appellant raped her.49
Julito left and found appellant at the Perochos.50 Julito asked appellant,
“Bads, did you really rape the child, the daughter of [MMM]?” but the latter
ignored his question.51 Appellant’s aunt, Gloria, told appellant that the
policemen were coming to which the appellant responded, “Wait a minute
because I will wash the dirt of my elbow (sic) and my knees.”52 Julito did
found the elbows and knees of appellant with dirt.53
On that same evening, FFF and AAA proceeded to the police station to have
the incident blottered.54 FFF also had AAA undergo a physical check up at
the municipal health center.55 Dr. Bernardita M. Gaspar, M.D., Rural Health
Physician, issued a medical certificate56 dated 29 January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
69
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like
material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o’clock and 9 o’clock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to
another examination at the provincial hospital on the following day. Dr.
Christine Ruth B. Micabalo, Medical Officer III of the provincial hospital,
attended to her and issued a medico-legal certificate dated 29 January
2003,58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except
No. 6 and 7 there is no bleeding in this time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the
story. To corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt
Gloria took the witness stand to affirm that he was at the Perochos at the
time of the commission of the crime.60 Luzvilla even went further to state
that she actually saw Julito, not appellant, pick up AAA on the road.61 In
addition, Antonia Perocho [Antonia], sister-in-law of appellant’s aunt,
Gloria,62 testified on the behavior of Julito after the rape incident was
revealed.63
Appellant claimed that he lives with his aunt, not with his parents whose
house stands at the back of FFF’s house.64 He denied that there was a need
to pass by the house of FFF in order to access the road or to fetch water.65
He, however, admitted that he occasionally worked for FFF,66 and
whenever he was asked to buy something from the store, AAA always
approached him.67
At about 8 o’clock in the morning of 28 January 2003, appellant went to the
Perochos to attend a birthday party. At 6:08 in the evening, while the
visitors, including appellant and his uncle Alejandro Perocho [Alejandro],
were gathered together in a drinking session, appellant’s uncle sent him to
the store to buy Tanduay Rum. Since the store is only about 20 meters from
the house, he was able to return after three (3) minutes. He was certain of
the time because he had a watch .68
Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her
house attending the birthday party; and that appellant went out between 6
and 7 in the evening to buy a bottle of Tanduay from the store. She recalled
that appellant was back around five (5) minutes later. She also observed
that appellant’s white shorts and white sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant
at the kitchen having a drink with his uncle Alejandro and the rest of the
visitors.71 She went out to relieve herself at the side of the tree beside the
road next to the house of the Perochos.72 From where she was, she saw
Julito, who was wearing black short pants and black T-shirt, carry AAA.73
AAA’s face was covered and she was wiggling.74 This did not alarm her
because she thought it was just a game.75 Meanwhile, appellant was still in
the kitchen when she returned.76 Around three (3) minutes later, Luzvilla
saw Julito, now in a white T-shirt,77 running towards the house of Rita.78
AAA was slowly following behind.79 Luzvilla followed them.80 Just outside
the house, Julito embraced AAA and asked what the appellant did to her.81
The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching
incident and testified that appellant was twice boxed by FFF. According to
her, FFF tapped the left shoulder of the appellant, boxed him, and left. FFF
came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellant’s uncle Alejandro, a barangay
70
councilor, and another Civilian Voluntary Organization (CVO) member
admonished FFF.83
On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was
watching the television along with other people at the house of Rita.
Around 7:10, Julito, who was wearing only a pair of black short pants
without a shirt on, entered the house drunk. He paced back and forth. After
10 minutes, AAA came in crying. Julito tightly embraced AAA and asked her
what happened. AAA did not answer. Upon Antonia’s advice, Julito released
her and went out of the house.84
Appellant further testified that at past 7 o’clock in the evening, FFF arrived,
pointed a finger at him, brandished a bolo, and accused him of molesting
AAA. FFF left but returned at around 8 o’clock in the evening. This time, he
boxed appellant and asked again why he molested his daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision,86 the
dispositive portion of which reads:
“WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable
doubt of rape committed upon a 5-year old girl, the court sentences him to
death and orders him to pay [AAA] P75,000.000 as rape indemnity and
P50,000.00 as moral damages. With costs.”87
The defense moved to reopen trial for reception of newly discovered
evidence stating that appellant was apparently born on 1 March 1985 and
that he was only seventeen (17) years old when the crime was committed
on 28 January 2003.88 The trial court appreciated the evidence and reduced
the penalty from death to reclusion perpetua.89 Thus:
“WHEREFORE, the judgment of the court imposing the death penalty upon
the accused is amended in order to consider the privileged mitigating
circumstance of minority. The penalty impos[a]ble upon the accused,
therefore[,] is reduced to reclusion perpetua. x x x”
Appealed to this Court, the case was transferred to the Court of Appeals for
its disposition in view of the ruling in People v. Mateo and the Internal Rules
of the Supreme Court allowing an intermediate review by the Court of
Appeals of cases where the penalty imposed is death, reclusion perpetua, or on its own merits, and cannot be allowed to draw strength from the
life imprisonment.90 weakness of the evidence for the defense.”97

On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial Necessarily, the credible, natural, and convincing testimony of the victim
court with the following MODIFICATIONS: may be sufficient to convict the accused.98 More so, when the testimony is
supported by the medico-legal findings of the examining physician.99
“x x x that Hermie M. Jacinto should suffer the Indeterminate penalty of
from six (6) years and one (1) day to twelve (12) years of prision mayor, as Further, the defense of alibi cannot prevail over the victim’s positive
minimum, to seventeen (17) and four (4) months of reclusion temporal, as identification of the perpetrator of the crime,100 except when it is
maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim established that it was physically impossible for the accused to have been at
in the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, the locus criminis at the time of the commission of the crime.101
and P25,000.00 as exemplary damages and to pay the costs.”91
I
On 19 November 2007, the Court of Appeals gave due course to the
A man commits rape by having carnal knowledge of a child under twelve
appellant’s Notice of Appeal.92 This Court required the parties to
(12) years of age even in the absence of any of the following circumstances:
simultaneously file their respective supplemental briefs.93 Both parties
(a) through force, threat or intimidation; (b) when the offended party is
manifested that they have exhaustively discussed their positions in their
deprived of reason or otherwise unconscious; or (c) by means of fraudulent
respective briefs and would no longer file any supplement.94
machination or grave abuse of authority.102
Before the Court of Appeals, appellant argued that “THE COURT A QUO
That the crime of rape has been committed is certain. The vivid narration of
GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT GUILTY
the acts culminating in the insertion of appellant’s organ into the vagina of
BEYOND REASONABLE DOUBT OF RAPE”95 by invoking the principle that “if
five-year-old AAA and the medical findings of the physicians sufficiently
the inculpatory facts and circumstances are capable of two or more
proved such fact.
reasonable explanations, one of which is consistent with the innocence of
the accused and the other with his guilt, then the evidence does not pass AAA testified:
the test of moral certainty and will not suffice to support a conviction.”96
PROS. OMANDAM:
Our Ruling
xxxx
We sustain the judgment of conviction.
Q You said Hermie laid you on the ground, removed your panty and boxed
In the determination of the innocence or guilt of a person accused of rape, you, what else did he do to you?
we consider the three well-entrenched principles:
A He mounted me.
“(1) an accusation for rape can be made with facility; it is difficult to prove
but more difficult for the accused, though innocent, to disprove; (2) in view Q When Hermie mounted you, was he facing you?
of the intrinsic nature of the crime of rape in which only two persons are A Yes.
usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand or fall Q When he mounted you what did he do, did he move?
71
A He moved his ass, he made a push and pull movement. Further, the medical findings and the testimony of Dr. Micabalo106
revealed that the hymenal lacerations at 5 o’clock and 9 o’clock positions
Q When he made a push and pull movement, how were your legs
could have been caused by the penetration of an object; that the redness of
positioned?
the introitus could have been “the result of the repeated battering of the
A They were apart. object;” and that such object could have been an erect male organ.107

Q Who pushed them apart? The credible testimony of AAA corroborated by the physician’s finding of
penetration conclusively established the essential requisite of carnal
A Hermie. knowledge.108
Q Did Hermie push anything at you? II
A Yes. The real identity of the assailant and the whereabouts of the appellant at
Q What was that? the time of the commission of the crime are now in dispute.

A His penis. The defense would want us to believe that it was Julito who defiled AAA,
and that appellant was elsewhere when the crime was committed.109
Q Where did he push his penis?
We should not, however, overlook the fact that a victim of rape could
A To my vagina. readily identify her assailant, especially when he is not a stranger to her,
Q Was it painful? considering that she could have a good look at him during the commission
of the crime.110 AAA had known appellant all her life. Moreover, appellant
A Yes. and AAA even walked together from the road near the store to the situs
criminus111 that it would be impossible for the child not to recognize the
Q What was painful?
man who held her hand and led her all the way to the rice field.
A My vagina.
We see no reason to disturb the findings of the trial court on the
Q Did you cry? unwavering testimony of AAA.
A Yes.103 “The certainty of the child, unusually intelligent for one so young, that it was
accused, whom she called “kuya” and who used to play basketball and fetch
The straightforward and consistent answers to the questions, which were
water near their house, and who was wearing a sleeveless shirt and shorts
phrased and re-phrased in order to test that AAA well understood the
at the time he raped her, was convincing and persuasive. The defense
information elicited from her, said it all—she had been raped. When a
attempted to impute the crime to someone else—one Julito Apiki, but the
woman, more so a minor, says so, she says in effect all that is essential to
child, on rebuttal, was steadfast and did not equivocate, asserting that it
show that rape was committed.104 Significantly, youth and immaturity are
was accused who is younger, and not Julito, who is older, who molested
normally badges of truth and honesty.105
her.”112

72
In a long line of cases, this Court has consistently ruled that the
determination by the trial court of the credibility of the witnesses deserves
full weight and respect considering that it has “the opportunity to observe
the witnesses’ manner of testifying, their furtive glances, calmness, sighs
and the scant or full realization of their oath,”113 unless it is shown that
material facts and circumstances have been “ignored, overlooked,
misconstrued, or misinterpreted.”114
Further, as correctly observed by the trial court:
“x x x His and his witness’ attempt to throw the court off the track by
imputing the crime to someone else is xxx a vain exercise in view of the
private complainant’s positive identification of accused and other
corroborative circumstances. Accused also admitted that on the same
evening, Julito Apiki, the supposed real culprit, asked him “What is this
incident, Pare?”, thus corroborating the latter’s testimony that he
confronted accused after hearing of the incident from the child.”115
On the other hand, we cannot agree with the appellant that the trial court
erred in finding his denial and alibi weak despite the presentation of
witnesses to corroborate his testimony. Glaring inconsistencies were all
over their respective testimonies that even destroyed the credibility of the
appellant’s very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to
store to buy Tanduay; that he gave the bottle to his uncle; and that they had
already been drinking long before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle
Alejandro. On cross-examination, she revealed that her husband was not
around before, during, and after the rape incident because he was then at
work.116 He arrived from work only after FFF came to their house for the
second time and boxed appellant.117 It was actually the fish vendor, not
her husband, who asked appellant to buy Tanduay.118 Further, the drinking
session started only after the appellant’s errand to the store.119
Neither was the testimony of Luzvilla credible enough to deserve
consideration.
73
Just like appellant, Luzvilla testified that Alejandro joined the drinking
session. This is contrary to Gloria’s statement that her husband was at work.
Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness
Antonia Perocho. Antonia recalled that Julito arrived without a shirt on. This
belied Luzvilla’s claim that Julito wore a white shirt on his way to the house
of Rita. In addition, while both the prosecution, as testified to by AAA and
Julito, and the defense, as testified to by Gloria, were consistent in saying
that appellant wore a sleeveless shirt, Luzvilla’s recollection differ in that
Julito wore a T-shirt (colored black and later changed to white), and, thus, a
short-sleeved shirt.
Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s
house three (3) minutes after she returned to the Perochos at 6:38 in the
evening, Antonia recalled that AAA arrived at the house of Rita at 7:30. In
this respect, we find the trial court’s appreciation in order. Thus:
“x x x. The child declared that after being raped, she went straight home,
crying, to tell her father that Hermie had raped her. She did not first drop
into the house of Lita Lingkay to cry among strangers who were watching
TV, as Luzvilla Balucan would have the court believe. When the child was
seen at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was
only later, after she had been brought there by her mother Brenda so that
Lita Lingkay could take a look at her—just as Julito Apiki said.”120
Above all, for alibi to prosper, it is necessary that the corroboration is
credible, the same having been offered preferably by disinterested
witnesses. The defense failed thuswise. Its witnesses cannot qualify as such,
“they being related or were one way or another linked to each other.”121
Even assuming for the sake of argument that we consider the
corroborations on his whereabouts, still, the defense of alibi cannot
prosper.
We reiterate, time and again, that the court must be convinced that it
would be physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.122
“Physical impossibility refers to distance and the facility of access between
the situs criminis and the location of the accused when the crime was
committed. He must demonstrate that he was so far away and could not
have been physically present at the scene of the crime and its immediate
vicinity when the crime was committed.”123
In People v. Paraiso,124 the distance of two thousand meters from the
place of the commission of the crime was considered not physically
impossible to reach in less than an hour even by foot.125 Inasmuch as it
would take the accused not more than five minutes to rape the victim, this
Court disregarded the testimony of the defense witness attesting that the
accused was fast asleep when she left to gather bamboo trees and returned
several hours after. She could have merely presumed that the accused slept
all throughout.126
In People v. Antivola,127 the testimonies of relatives and friends
corroborating that of the appellant that he was in their company at the time
of the commission of the crime were likewise disregarded by this Court in
the following manner:
“Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad,
the appellant’s sister-in-law and co-worker, in unison, vouched for the
appellant’s physical presence in the fishpond at the time Rachel was raped.
It is, however, an established fact that the appellant’s house where the rape
occurred, was a stone’s throw away from the fishpond. Their claim that the
appellant never left their sight the entire afternoon of December 4, 1997 is
unacceptable. It was impossible for Marites to have kept an eye on the
appellant for almost four hours, since she testified that she, too, was very
much occupied with her task of counting and recording the fishes being
harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from
the fishpond, could not have focused his entire attention solely on the
appellant. It is, therefore, not farfetched that the appellant easily sneaked
out unnoticed, and along the way inveigled the victim, brought her inside
his house and ravished her, then returned to the fishpond as if he never
left.”128 (Emphasis supplied.)
74
As in the cases above cited, the claim of the defense witnesses that
appellant never left their sight, save from the 5-minute errand to the store,
is contrary to ordinary human experience. Moreover, considering that the
farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the
road near the store next to the Perochos down the farmland and
consummate the crime. As correctly pointed out by the Court of Appeals,
appellant could have committed the rape after buying the bottle of Tanduay
and immediately returned to his uncle’s house.129 Unfortunately, the
testimonies of his corroborating witnesses even bolstered the fact that he
was within the immediate vicinity of the scene of the crime.130
Clearly, the defense failed to prove that it was physically impossible for
appellant to have been at the time and place of the commission of the
crime.
All considered, we find that the prosecution has sufficiently established the
guilt of the appellant beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals
correctly considered Republic Act No. 9344 (Juvenile Justice and Welfare Act
of 2006) despite the commission of the crime three (3) years before it was
enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in
People v. Sarcia:131
“[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of
the Act to those who have been convicted and are serving sentence at the
time of the effectivity of this said Act, and who were below the age of 18
years at the time of the commission of the offense. With more reason, the
Act should apply to this case wherein the conviction by the lower court is
still under review.”133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but
below eighteen (18) years of age from criminal liability, unless the child is
found to have acted with discernment, in which case, “the appropriate
proceedings” in accordance with the Act shall be observed.134
We determine discernment in this wise:
“Discernment is that mental capacity of a minor to fully appreciate the
consequences of his unlawful act.135 Such capacity may be known and
should be determined by taking into consideration all the facts and
circumstances afforded by the records in each case.136
Consequently, in its appreciation of the privileged mitigating circumstance
of minority of appellant, it lowered the penalty one degree from reclusion
perpetua and sentenced appellant to suffer the indeterminate penalty of six
(6) years and one (1) day to twelve (12) years of prision mayor, as minimum,
to seventeen (17) years and four (4) months of reclusion temporal, in its
medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice
Teresita J. Leonardo-de Castro, clarified:

x x x The surrounding circumstances must demonstrate that the minor knew Under Article 68 of the Revised Penal Code, when the offender is a minor
what he was doing and that it was wrong.137 Such circumstance includes under 18 years, the penalty next lower than that prescribed by law shall be
the gruesome nature of the crime and the minor’s cunning and imposed, but always in the proper period. However, for purposes of
shrewdness.”138 determining the proper penalty because of the privileged mitigating
circumstance of minority, the penalty of death is still the penalty to be
In the present case, we agree with the Court of Appeals that: “(1) choosing
reckoned with. Thus, the proper imposable penalty for the accused-
an isolated and dark place to perpetrate the crime, to prevent detection[;]
appellant is reclusion perpetua.148 (Emphasis supplied.)
and (2) boxing the victim x x x, to weaken her defense” are indicative of
then seventeen (17) year-old appellant’s mental capacity to fully understand Accordingly, appellant should be meted the penalty of reclusion perpetua.
the consequences of his unlawful action.139
Civil Liability
Nonetheless, the corresponding imposable penalty should be modified.
We have consistently ruled that:
The birth certificate of AAA140 shows that she was born on 3 December
“The litmus test xxx in the determination of the civil indemnity is the
1997. Considering that she was only five (5) years old when appellant
heinous character of the crime committed, which would have warranted the
defiled her on 28 January 2003, the law prescribing the death penalty when
imposition of the death penalty, regardless of whether the penalty actually
rape is committed against a child below seven (7) years old141 applies.
imposed is reduced to reclusion perpetua.”149
The following, however, calls for the reduction of the penalty: (1) the
Likewise, the fact that the offender was still a minor at the time he
prohibition against the imposition of the penalty of death in accordance
committed the crime has no bearing on the gravity and extent of injury
with Republic Act No. 9346;142 and (2) the privileged mitigating
suffered by the victim and her family.150 The respective awards of civil
circumstance of minority of the appellant, which has the effect of reducing
indemnity and moral damages in the amount of P75,000.00 each are,
the penalty one degree lower than that prescribed by law, pursuant to
therefore, proper.151
Article 68 of the Revised Penal Code.143
Accordingly, despite the presence of the privileged mitigating circumstance
Relying on People v. Bon,144 the Court of Appeals excluded death from the
of minority which effectively lowered the penalty by one degree, we affirm
graduation of penalties provided in Article 71 of the Revised Penal Code.145
75
the damages awarded by the Court of Appeals in the amount of P75,000.00
as civil indemnity and P75,000.00 as moral damages. And, consistent with
prevailing jurisprudence,152 the amount of exemplary damages should be
increased from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration;
Appropriate Disposition after the Lapse of the
Period of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in
conflict with the law notwithstanding that he/she has reached the age of
majority at the time the judgment of conviction is pronounced. Thus:
“SEC. 38. Automatic Suspension of Sentence.—Once the child who is
under eighteen (18) years of age at the time of the commission of the
offense is found guilty of the offense charged, the court shall determine and
ascertain any civil liability which may have resulted from the offense
committed. However, instead of pronouncing the judgment of conviction,
the court shall place the child in conflict with the law under suspended
sentence, without need of application: Provided, however, That suspension
of sentence shall still be applied even if the juvenile is already eighteen (18)
years of age or more at the time of the pronouncement of his/her guilt.
(Emphasis supplied.)
x x x x”
Applying Declarador v. Gubaton,153 which was promulgated on 18 August
2006, the Court of Appeals held that, consistent with Article 192 of
Presidential Decree No. 603, as amended,154 the aforestated provision
does not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision in
Sarcia,156 overturning the ruling in Gubaton. Thus:
“The x x x provision makes no distinction as to the nature of the offense
committed by the child in conflict with the law, unlike P.D. No. 603 and A.M.
76
No. 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide that the
benefit of suspended sentence would not apply to a child in conflict with
the law if, among others, he/she has been convicted of an offense
punishable by death, reclusion perpetua or life imprisonment. In construing
Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of
statutory construction that when the law does not distinguish, we should
not distinguish. Since R.A. No. 9344 does not distinguish between a minor
who has been convicted of a capital offense and another who has been
convicted of a lesser offense, the Court should also not distinguish and
should apply the automatic suspension of sentence to a child in conflict with
the law who has been found guilty of a heinous crime.”157
The legislative intent reflected in the Senate deliberations158 on Senate Bill
No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005) further
strengthened the new position of this Court to cover heinous crimes in the
application of the provision on the automatic suspension of sentence of a
child in conflict with the law. The pertinent portion of the deliberation
reads:
“If a mature minor, maybe 16 years old to below 18 years old is charged,
accused with, or may have committed a serious offense, and may have
acted with discernment, then the child could be recommended by the
Department of Social Welfare and Development (DSWD), by the Local
Council for the Protection of Children (LCPC), or by [Senator Miriam
Defensor-Santiago’s] proposed Office of Juvenile Welfare and Restoration to
go through a judicial proceeding; but the welfare, best interests, and
restoration of the child should still be a primordial or primary consideration.
Even in heinous crimes, the intention should still be the child’s restoration,
rehabilitation and reintegration. x x x” (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on
Children in Conflict with the Law, which reflected the same position without
prejudice to the child’s availing of other benefits such as probation, if
qualified, or adjustment of penalty, in the interest of justice.
The benefits of suspended sentence shall not apply to a child in conflict with
the law who has once enjoyed suspension of sentence, but shall
nonetheless apply to one who is convicted of an offense punishable by
reclusion perpetua or life imprisonment pursuant to the provisions of Rep.
Act No. 9346 prohibiting the imposition of the death penalty and in lieu
thereof, reclusion perpetua, and after application of the privileged
mitigating circumstance of minority. (Emphasis supplied.)
161 People v. Sarcia, supra note 131at p. 50.
162 Sec. 40. Return of the Child in Conflict with the Law to Court.—x x x
If said child in conflict with the law has reached eighteen (18) years of age
while under suspended sentence, the court shall determine whether to
discharge the child in accordance with this Act, to order execution of
sentence, or to extend the suspended sentence for a certain specified
period or until the child reaches the maximum age of twenty-one (21) years.
(Emphasis supplied.)
163 Section 48. Automatic Suspension of Sentence and Disposition
Orders.—
xxxx
If the child in conflict with the law reaches eighteen (18) years of age while
under suspended sentence, the court shall determine whether to discharge
the child in accordance with the provisions of Republic Act No. 9344, or to
extend the suspended sentence for a maximum period of up to the time the
child reaches twenty-one (21) years of age, or to order service of sentence.
(Emphasis supplied.)
Rule are clear on the matter. Unfortunately, appellant is now twenty-five
(25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the
promotion of the welfare of a child in conflict with the law should extend
even to one who has exceeded the age limit of twenty-one (21) years, so
long as he/she committed the crime when he/she was still a child. The
offender shall be entitled to the right to restoration, rehabilitation and
77
reintegration in accordance with the Act in order that he/she is given the
chance to live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of the
promulgation of the judgment of conviction is not material. What matters is
that the offender committed the offense when he/she was still of tender
age.
Thus, appellant may be confined in an agricultural camp or any other
training facility in accordance with Sec. 51 of Republic Act No. 9344.164
“Sec. 51. Confinement of Convicted Children in Agricultural Camps and
Other Training Facilities.—A child in conflict with the law may, after
conviction and upon order of the court, be made to serve his/her sentence,
in lieu of confinement in a regular penal institution, in an agricultural camp
and other training facilities that may be established, maintained, supervised
and controlled by the BUCOR, in coordination with the DSWD.”
Following the pronouncement in Sarcia,165 the case shall be remanded to
the court of origin to effect appellant’s confinement in an agricultrual camp
or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in
CA-G.R. CR HC No. 00213 finding appellant Hermie M. Jacinto guilty beyond
reasonable doubt of qualified rape is AFFIRMED with the following
MODIFICATIONS: (1) the death penalty imposed on the appellant is reduced
to reclusion perpetua; and (2) appellant is ordered to pay the victim
P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages. The case is hereby REMANDED to the
court of origin for its appropriate action in accordance with Section 51 of
Republic Act No. 9344.
SO ORDERED. People vs. Jacinto, 645 SCRA 590, G.R. No. 182239 March 16,
2011
G.R. No. 127818. November 11, 1998.* partially transecting the left internal iliac artery and the small intestines with
the slug lodging just underneath the uterus in front of the sacrum where it
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GUILLERMO
was recovered.” The extent of the physical injury inflicted on Grace, as
NEPOMUCENO, JR., accused-appellant.
above proved, manifests intention to extinguish life (People vs.
Criminal Law; Light Threats; Exempting Circumstances; Accident; Accident to Dawandawan, 184 SCRA 264 [1994]). Moreover, Dr. Arizala likewise
be exempting, presupposes that the act done is lawful; The act of a person declared that the bullet injured a vital organ of the victim.
of drawing a weapon in the course of a quarrel, the same not being in self-
Same; Res Gestae; The utterance of a victim made immediately after
defense, is unlawful—it at least constitutes light threats.—At all events,
sustaining serious injuries may be considered as pure emanations of the
accident to be exempting, presupposes that the act done is lawful. Here,
incident or the incident speaking through the victim.—The fact that Grace,
however, the act of accused-appellant of drawing a weapon in the course of
upon being shot, uttered, “Masakit, Papa” and did not use harsh language
a quarrel, the same not being in self-defense, is unlawful—it at least
against accused-appellant does not, in any way, negate intent to kill. The
constitutes light threats (Article 285, par. 1, Revised Penal Code). There is
utterance of a victim made immediately after sustaining serious injuries may
thus no room for the invocation of accident as a ground for exemption
be considered as pure emanations of the incident or the incident speaking
(People vs. Reyta, Jr., 13 CAR [25] 1190; 1195 [1968]).
through the victim (People vs. Morin, 241 SCRA 709; 710 [1995]). Thus, by
Same; Paraffin Test; The absence of nitrates on the victim’s hands is the word “Papa,” Grace was in effect, saying that it was accused-appellant
convincing proof that she did not grapple with accused for the possession of who shot her.
the gun.—If Grace were holding the upper forearm and lower portion of the
Same; Mitigating Circumstances; Voluntary Surrender; The law does not find
upper arm of accused-appellant when the gun fired, then at least the hand
unusual the voluntary surrender of criminal offenders—it merely considers
of Grace that held the upper forearm of appellant would have traces of
such act as a mitigating circumstance.—Accused-appellant’s voluntary
nitrate considering its nearness to the exploding gun. However, in the
surrender is not sufficient ground to exculpate him from criminal liability.
paraffin test conducted by the Forensic Chemistry Division of the National
The law does not find unusual the voluntary surrender of criminal offenders;
Bureau of Investigation on Grace Nepomuceno’s both hands, no traces of
it merely considers such act as a mitigating circumstance. Non-flight is not
nitrates were found; while accused-appellant’s right hand was positive of
proof of innocence (People vs. Quijada, 259 SCRA 191 [1996]).
nitrates. The absence of nitrates on the victim’s hands is convincing proof
that she did not grapple with accused-appellant for the possession of the Same; Reckless Imprudence; A deliberate intent to do an unlawful act is
gun. It also proves that she was shot at a distance. essentially inconsistent with the idea of reckless imprudence—in criminal
negligence, the injury caused to another should be unintentional, it being
Same; The fact that the victim was not shot in the head, or in any vital part
simply the incident of another act done without malice but with lack of
of her body does not negate intent to kill.—The fact that the victim was not
foresight, or with carelessness or negligence, and which has harmed society
shot in the head, or in any vital part of her body does not negate intent to
or an individual.—It has been held that a deliberate intent to do an unlawful
kill. The Post Mortem Findings on the cadaver of Grace Nepomuceno by Dr.
act is essentially inconsistent with the idea of reckless imprudence (People
Arizala shows that the bullet entered “the left thigh, lateral aspect, upper
vs. Oanis, et al., 74 Phil. 257 [1943]; People vs. Nanquil, 43 Phil. 232 [1922]).
third . . . directed slight forwards, slightly upwards and from left to right
What qualifies an act of reckless or simple negligence or imprudence is the
initially involving the skin and subcutaneous tissue, then taking an
lack of malice or criminal intent in the execution thereof (United States vs.
intramascular route into the pelvic cavity thru the left obturator foramen,
78
Maleza, 14 Phil. 468, 471 [1909]). Otherwise stated, in criminal negligence,
the injury caused to another should be unintentional, it being simply the
incident of another act done without malice but with lack of foresight, or
with carelessness or negligence, and which has harmed society or an
individual (People vs. Castillo, Jr., 275 SCRA 752 [1997]).
Same; Evidence; Physical evidence is mute but an eloquent manifestation of
truth and rates high in the hierarchy of trustworthy evidence.—Over and
above the testimony of accused-appellant, these physical evidence, the lack
of powder burns or nitrates on the hands of Grace and the trajectory of the
bullet that entered her left thigh being slightly upwards and from left to
right instead of downwards, repudiate accused-appellant’s claim of simple
negligence. Physical evidence is mute but an eloquent manifestation of
truth and rates high in our hierarchy of trustworthy evidence (People vs.
Uycoqua, 246 SCRA 769 [1995]).
Same; Parricide; Elements.—The prosecution has sufficiently established the
elements of parricide by its evidence. These elements are: (1) the death of
the deceased; (2) that she was killed by the accused; and (3) that the
deceased was a legitimate ascendant or descendant, or the legitimate
spouse of the accused (Article 246, Revised Penal Code; People vs.
Embalido, 58 Phil. 154 [1933]).
Same; Witnesses; It is a fundamental and settled rule that the trial court’s
assessment in regard to the credibility of witnesses is entitled to the highest
degree of respect and will not be disturbed on appeal, as the trial court was
in a better position to examine real evidence as well as to observe the
demeanor of the witnesses.—In convicting accused-appellant, the trial court
relied heavily on the testimony of the prosecution witnesses. This Court
finds no reason to do otherwise. It is a fundamental and settled rule that the
trial court’s assessment in regard to the credibility of witnesses is entitled to
the highest degree of respect and will not be disturbed on appeal, as the
trial court was in a better position to examine real evidence as well as to
observe the demeanor of the witnesses (People vs. Dominguez, 217 SCRA
170 [1993]; People vs. Camaddo, 217 SCRA 162 [1993]; People vs. Vallena,
244 SCRA 685 [1995]).
79
Same; Same; We have no test of the truth of human testimony, except in
conformity with our knowledge, observation, and experience—whatever is
repugnant to these belongs to the miraculous and is outside of judicial
cognizance.—The Court agrees with the conclusions of the trial court as
they are founded on the dictum that evidence to be believed must not only
proceed from the mouth of a credible witness, but must be credible in
itself—such as the common experience of mankind can approve as probable
under the circumstances. We have no test of the truth of human testimony,
except in conformity with our knowledge, observation, and experience.
Whatever is repugnant to these belongs to the miraculous and is outside of
judicial cognizance (People vs. Escalante, 238 SCRA 554 [1994]).
MELO, J.:
Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant
appeal in regard to the decision dated November 20, 1996 of the Regional
Trial Court of the National Capital Judicial Region (Manila, Branch 46) which
decreed:
Wherefore, the court hereby renders judgment finding the accused guilty
beyond reasonable doubt of the crime of parricide as defined and penalized
under Article 246 of the Revised Penal Code as amended by Republic Act
No. 7659 for the death of Grace Nepomuceno and hereby sentences him to
suffer imprisonment of Forty (40) years of reclusion perpetua and to pay the
heirs of the deceased the sum of P50,000.00 with costs against him.
Pursuant to Article 921, paragraph (1) of the Civil Code, the court declares
the accused ineligible to inherit from his wife. The entire estate should go to
his son, Giordan Benitez Nepomuceno.
The Information against accused-appellant charged:
That on or about May 2, 1994, in the City of Manila, Philippines, the said
accused, did then and there willfully, unlawfully and feloniously, with intent
to kill and with treachery and evident premeditation, attack, assault and use
personal violence upon the person of one GRACE NEPOMUCENO Y BENITEZ,
his wife, with whom he was married in lawful wedlock, by then and there
shooting her with a gun of unknown caliber hitting her on the left hip,
thereby inflicting upon the said GRACE NEPOMUCENO Y BENITEZ gunshot
wound, which was necessarily fatal and which was the direct and immediate
cause of her death thereafter.
Upon arraignment, accused-appellant, entered a plea of not guilty and trial
ensued in due course. Thereafter, the trial court rendered the judgment of
conviction now on appeal.
The prosecution presented seven witnesses, namely, Eden Ontog, SPO2
Rodolfo Rival, Forensic Chemist Mary Ann Ara-nas, Medico-Legal Examiner
Floresto Arizala, Monserrat De Leon, Ballistic Expert Isabelo Silvestre, Jr. and
Romeo Pa-balan.
Eden Ontog declared that on May 2, 1994, she was the housemaid of the
spouses Guillermo Nepomuceno, Jr. and Grace Nepomuceno, having started
as such since May 31, 1993. At around 11 o’clock on the evening of May 2,
1994, accused-appellant, who was drunk, arrived and went to their
bedroom where Eden and her ward Giordan, the one-year old son of the
couple, were sleeping. She was awakened by the loud voices of the spouses
who were arguing. She saw accused-appellant get a gun from a drawer, so
she went out of the room because of fear. After a few moments and while
she was outside the room, she heard Grace Nepomuceno say: “Sige patayin
mo ako, patayin mo na kami ng anak ko.” Then Eden heard a gunshot. She
was so scared that she went out of the house, reaching the door of the
house of Barangay Chairman Congen Leonardo which is 5 meters away.
After ten minutes, she saw accused-appellant coming out of the room. He
told her to get a taxi so he could bring the wounded Grace to the hospital.
She was left behind in their room to take care of baby Giordan. She tried to
call up Monserrat de Leon, the sister of Grace in Pasig to inform her of the
incident, but she could not get any connection
Mary Ann T. Aranas, a chemist of the National Bureau of Investigation
Chemistry Division, declared that she conducted paraffin examination on
both hands of the victim and those of accused-appellant. She found the
victim’s hands negative of nitrates, but found accused-appellant’s right
hand positive thereof. She gave the opinion that in view of the absence of
80
nitrates on the hands of the victim, it is probable that she did not fire a gun
and that accused-appellant, being positive of nitrates, did really fire a gun.
Dr. Floresto Arizala, Jr., the Medico-Legal Officer of the NBI who conducted
a second-post mortem examination of the victim on May 7, 1994 at the
Capitol Memorial Chapels, found that the victim died due to a gunshot
wound, with the slug hitting the left internal iliac artery and the small
intestines and thereafter resting between the uterus and the sacrum of the
victim. He testified that taking into consideration the location of the wound,
if the victim were in a sitting or lying position, the trajectory of the slug was
upward coming from right to left; and if the victim were in a standing
position, the muzzle of the gun should have pointed up. The witness
declared that the muzzle of the gun could not have been less than one foot
from the victim. He opined that grappling for possession of the gun was
impossible because the trajectory of the bullet was going upwards and
there were no smudges or signs of close firing. He believed that the victim
could have survived if the surgeons had operated immediately.
Monserrat de Leon, sister of the victim, declared that Grace would confide
to her that accused-appellant was jobless and that Grace had problems with
the low income of the store she owned at Zurbaran Mart as compared to
her expenses. Accused-appellant would force sex on Grace especially when
he was drunk. Her sister had two miscarriages after their first child and it
was during one of these miscarriages that she saw accused-appellant
carrying a gun in the Mary Chiles Hospital where her sister was confined
Upon the other hand, the defense presented accused-appellant himself as
its lone witness. His story was quoted by the trial court thus:
Two days before the incident on May 2, 1994, Grace, the deceased was very
much worried about the check (sic) she issued which was postdated May 2,
1994. She would have no funds for the checks. She had been nagging him,
displaying her tantrums (nagdadabog) pestering him to do something to be
able to fund the checks.
In the noon time of May 2, 1994, he left her spouse in their store and went
to his mother’s house in San Andres Bukid, Manila. This day was the day
after the accused-appellant and his wife, and in-laws arrived from Batangas
to attend a town fiesta.
He left the store to avoid further nagging, tantrums and pestering of his wife
about his inability to produce money to be able to fund the postdated
checks (sic).
At about 11:00 P.M., after dropping at a friend’s house, he decided to go
home, thinking his wife has already cooled off.
When his wife opened the door, she greeted the husband: ‘You left in the
store and you room (roam) around, where you able to find money.’ He
replied, ‘where would I get money, do you expect me to hold up people?’
They had some arguments and Eden Ontog went out of their bedroom, and
the arguments continued. There was a point in the argument when the wife
told the accused thus: ‘Wala akong silbi, bakit pa ako nag-asawa sa kanya.’
Because of these continued pestering and nagging of his wife he thought of
separation. Perhaps it would be better if he should end his life. He then took
a gun from their child’s drawer. He sat on the bed holding that gun,
engrossed in his thinking what to do. The gun was pointed towards the floor
of their room.
In that situation, his wife continued with his nagging and pestering. He just
remained silent.
And then Guillermo asked his wife: ‘How come you do not treat me as a
husband, why do you treat me like this.’
It was at this point that Guillermo decided to end his life. Perhaps seriously,
perhaps just to scare his wife to stop all the pestering and tantrums. Surely
not only a few husbands would thought (sic) as what that Guillermo was
thinking then, he felt desperate. He wanted to finish his life. (p. 24, TSN,
October 5, 1994)
It was during that time that their son, Giordan woke up, walked to the space
between them (husband and wife) and Nepomuceno block his son’s way
with his right knee. In the process, he wanted to totally force Grace from
81
taking possession and control of the gun. He raised his arm holding the gun
passing over the left leg of Grace.
The gun went off.
Aggrieved by the decision of the trial court, accused-appellant assigns the
following errors:
I
THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS ACCIDENTAL,
AND THAT THE DECEASED WAS EXEMPT FROM CRIMINAL LIABILITY.
II
ASSUMING THE ACCUSED IS CRIMINALLY LIABLE, THE TRIAL COURT ERRED
IN NOT FINDING THE KILLING WAS RESULT OF SIMPLE NEGLIGENCE.
III
THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED
WAS PROVEN BEYOND REASONABLE DOUBT.
In support of the first assigned error, accused-appellant contends that he
did not have the least intention of killing his wife. He urges the Court to
consider the circumstances attendant to the killing, which, according to him,
negate all inferences and deductions, that he would kill his wife. First, the
deceased was hit in the upper leg, not in any vital organ. If he had the
intention of killing the deceased, he would have shot her at the most vital
part of her body.
Secondly, the reaction of the deceased after she was hit was contrary to
ordinary and usual human behavior, if her husband really intended to kill
her. The deceased just uttered, “Masakit Papa,” she did not curse nor
mouth evil and harsh language against accused-appellant to show hatred
and anger.
Thirdly, if accused-appellant really intended to kill his wife, why did he call a
taxi and bring her to the hospital for immediate medical attention?
Fourthly, why should accused-appellant voluntarily surrender to the police,
if the incident was not accidental?
Accused-appellant claims exemption from criminal liability under Paragraph
4, Article 12 of the Revised Penal Code because, according to him, the
incident occurred when he tried to prevent his wife from killing herself, and
he and his wife grappled for possession of the gun.
After a painstaking review of the evidence and record of this case, the Court
finds itself unable to reach conclusions identical to those put forward by
accused-appellant.
First, accused-appellant cannot invoke the benevolent provisions of
Paragraph 4, Article 12 of the Revised Penal Code in order to be exempted
from criminal liability arising from the death of his wife, Grace
Nepomuceno. Said provision pertinently states:
Art. 12. Circumstances which exempt from criminal liability. The following
are exempt from criminal liability:
4. Any person who, while performing a lawful act with due care, causes an
injury by mere accident without fault or intention of causing it.
At all events, accident to be exempting, presupposes that the act done is
lawful. Here, however, the act of accused-appellant of drawing a weapon in
the course of a quarrel, the same not being in self-defense, is unlawful—it
at least constitutes light threats (Article 285, par. 1, Revised Penal Code).
There is thus no room for the invocation of accident as a ground for
exemption.
The gun which accused-appellant took from his child’s drawer was not even
licensed or registered in his name as shown by the Certification of the
Firearms and Explosives
Office of the Philippine National Police, hence, he could have been charged
with illegal possession of a firearm.
Secondly, accused-appellant’s claim that the shooting happened when he
tried to prevent his wife from killing herself and he and his wife grappled for
82
the possession of the gun is belied by the expert testimony of Dr. Floresto
Arizala, Jr. of the NBI who conducted a second post mortem examination on
the cadaver of Grace Nepomuceno. He declared:
Q. Now, is it possible Doctor, considering the location of the wound, the
entrance wound and the trajectory of the bullet upwards, would you say
Doctor, that both parties, I mean the victim and the assailant were grappling
for the possession of said gun and it went off accidentally, is that possible,
Mr. Witness?
A. Well, I have to be convinced as to the grappling between the victim and
the assailant, because if we were to be reconstruct of the scenario that the
gun have been fired, the muzzle of the gun could not have been closer than
twelve (12) inches and considering that the gun was held by a hand, it
farther places the assailant farther from the victim and farther the victim is,
from the assailant, then the more impossible for the grappling for the gun.
Thirdly, accused-appellant, testifying on the relative positions of the victim
and himself when the gun discharged, stated:
Q. Please tell the court your relative position and the victim when the gun
actually went off?
A. When I was in the act of trying to dispossess Grace with that gun and I
was trying to let my right hand pass through my right side but because
Grace was struggling, the butt of the gun hit a part of her upper leg and it
exploded.
Q. So when the gun actually fired, you were holding that gun, what part of
your arm being held by Grace?
A Witness pointing the upper forearm and the lower portion of her upper
arm.”
If Grace were holding the upper forearm and lower portion of the upper
arm of accused-appellant when the gun fired, then at least the hand of
Grace that held the upper forearm of appellant would have traces of nitrate
considering its nearness to the exploding gun. However, in the paraffin test
conducted by the Forensic Chemistry Division of the National Bureau of
Investigation on Grace Nepomuceno’s both hands, no traces of nitrates
were found; while accused-appellant’s right hand was positive of nitrates.
The absence of nitrates on the victim’s hands is convincing proof that she
did not grapple with accused-appellant for the possession of the gun. It also
proves that she was shot at a distance.
The fact that the victim was not shot in the head, or in any vital part of her
body does not negate intent to kill. The Post Mortem Findings on the
cadaver of Grace Nepomuceno by Dr. Arizala shows that the bullet entered
“the left thigh, lateral aspect, upper third . . . directed slight forwards,
slightly upwards and from left to right initially involving the skin and
subcutaneous tissue, then taking an intramascular route into the pelvic
cavity thru the left obturator foramen, partially transecting the left internal
iliac artery and the small intestines with the slug lodging just underneath
the uterus in front of the sacrum where it was recovered.” The extent of the
physical injury inflicted on Grace, as above proved, manifests intention to
extinguish life (People vs. Dawandawan, 184 SCRA 264 [1994]). Moreover,
Dr. Arizala likewise declared that the bullet injured a vital organ of the
victim (tsn, July 23, 1996, p. 9).
The fact that Grace, upon being shot, uttered, “Masakit, Papa” and did not
use harsh language against accused-appellant does not, in any way, negate
intent to kill. The utterance of a victim made immediately after sustaining
serious injuries may be considered as pure emanations of the incident or
the incident speaking through the victim (People vs. Morin, 241 SCRA 709;
710 [1995]). Thus, by the word “Papa,” Grace was in effect, saying that it
was accused-appellant who shot her.
We agree with the Solicitor General that the act of accused-appellant
ordering Eden Ontog to call a taxi in which he brought the wounded Grace
to the hospital is “merely an indication or act of repentance or contrition on
the part of appellant” (Appellee’s Brief, p. 71, Rollo).
Accused-appellant’s voluntary surrender is not sufficient ground to
exculpate him from criminal liability. The law does not find unusual the
voluntary surrender of criminal offenders; it merely considers such act as a
83
mitigating circumstance. Non-flight is not proof of innocence (People vs.
Quijada, 259 SCRA 191 [1996]).
Under the second assigned error, accused-appellant claims that even
assuming that the killing was not totally accidental, his acts would constitute
only simple negligence. He asserts that he had established that the gun
went off while he was grappling with his wife for its possession. He was
preventing his wife from taking her own life. He might not have exercised
the necessary due care in wrestling for the gun that resulted in the injury of
his wife, but he could be charged only with parricide through simple
negligence. So he says.
It has been held that a deliberate intent to do an unlawful act is essentially
inconsistent with the idea of reckless imprudence (People vs. Oanis, et al.,
74 Phil. 257 [1943]; People vs. Nanquil, 43 Phil. 232 [1922]). What qualifies
an act of reckless or simple negligence or imprudence is the lack of malice or
criminal intent in the execution thereof (United States vs. Maleza, 14 Phil.
468, 471 [1909]). Otherwise stated, in criminal negligence, the injury caused
to another should be unintentional, it being simply the incident of another
act done without malice but with lack of foresight, or with carelessness or
negligence, and which has harmed society or an individual (People vs.
Castillo, Jr., 275 SCRA 752 [1997]).
The argument of accused-appellant finds no support in the physical
evidence. As already discussed, if the version of grappling for the gun were
to be believed, there should have been nitrates on both hands of Grace.
And if it was when accused-appellant placed the barrel of the gun at the
base of his head that Grace grabbed his hand holding the gun and in the
struggle for its possession his hand holding the gun was pushed down so
that its butt hit the upper leg of Grace causing it to fire, then the trajectory
of the slug should be downwards, through the upper thigh of Grace where it
entered. Yet, the autopsy report of Dr. Arizala, Jr. showed the bullet entered
the left thigh of Grace directed slightly upwards and from left to right,
taking an intramascular route into the pelvic cavity, instead of a downward
direction if accused-appellant’s version were to be believed.
Thus, over and above the testimony of accused-appellant, these physical
evidence, the lack of powder burns or nitrates on the hands of Grace and
the trajectory of the bullet that entered her left thigh being slightly upwards
and from left to right instead of downwards, repudiate accused-appellant’s
claim of simple negligence. Physical evidence is mute but an eloquent
manifestation of truth and rates high in our hierarchy of trustworthy
evidence (People vs. Uycoqua, 246 SCRA 769 [1995]).
Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun
type of argument that his guilt has not been proved beyond reasonable
doubt. The argument is bereft of merit.
The prosecution has sufficiently established the elements of parricide by its
evidence. These elements are: (1) the death of the deceased; (2) that she
was killed by the accused; and (3) that the deceased was a legitimate
ascendant or descendant, or the legitimate spouse of the accused (Article
246, Revised Penal Code; People vs. Embalido, 58 Phil. 154 [1933]).
The first and third elements were stipulated during the pre-trial stage of the
case, thus:
1. that the victim and the accused are legally married. Said civil marriage
took place on July 5, 1990; x x x
5. that immediately after the shooting, the accused voluntarily and bodily
carried the victim into a taxicab and proceeded to UERM Hospital where she
died on the operating table.” (Pre-Trial Order of July 11, 1994, Record, p. 6)
The only issue then is whether accused-appellant intentionally killed Grace
Nepomuceno, his legally wedded wife.
In convicting accused-appellant, the trial court relied heavily on the
testimony of the prosecution witnesses. This Court finds no reason to do
otherwise. It is a fundamental and settled rule that the trial court’s
assessment in regard to the credibility of witnesses is entitled to the highest
degree of respect and will not be disturbed on appeal, as the trial court was
in a better position to examine real evidence as well as to observe the
demeanor of the witnesses (People vs. Dominguez, 217 SCRA 170 [1993];
84
People vs. Camaddo, 217 SCRA 162 [1993]; People vs. Vallena, 244 SCRA 685
[1995]).
The Court agrees with the conclusions of the trial court as they are founded
on the dictum that evidence to be believed must not only proceed from the
mouth of a credible witness, but must be credible in itself—such as the
common experience of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except in
conformity with our knowledge, observation, and experience. Whatever is
repugnant to these belongs to the miraculous and is outside of judicial
cognizance (People vs. Escalante, 238 SCRA 554 [1994]).
Further, accused-appellant having admitted that he shot his wife, he has the
burden of proof of establishing the presence of any circumstance which may
relieve him of responsibility, and to prove justification he must rely on the
strength of his own evidence and not on the weakness of that of the
prosecution, for even if this be weak, it can not be disbelieved after the
accused has admitted the killing (People vs. Bautista, 254 SCRA 621 [1996]).
Unfortunately for accused-appellant, he has miserably failed to discharge
this task.
The trial court correctly appreciated the voluntary surrender of accused-
appellant as a mitigating circumstance, this fact having been stipulated by
the parties at the pre-trial stage of this case (Pre-Trial Order, Stipulation No.
The penalty for the crime of parricide is reclusion perpetua to death;
however, there being one mitigating circumstance but no aggravating
circumstance, the lower of the two indivisible penalties should be imposed.
The penalty cannot be further reduced by one degree as the Indeterminate
Sentence Law does not find application, the penalties involved being
indivisible.
WHEREFORE, the assailed decision convicting accused-appellant
GUILLERMO NEPOMUCENO, JR. of the crime of Parricide is hereby
AFFIRMED with the slight modification that his sentence shall be simply
reclusion perpetua, not “imprisonment of Forty (40) Years of reclusion
perpetua” as stated by the trial court. SO ORDERED.
G.R. No. 56358. October 26, 1990.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUIS B. TORING,
DIOSDADO BERDON and CARMELO B. BERDIN, accused-appellants.
Evidence; Witnesses; Matters dealing with credibility of witnesses and
appreciation of evidence are primarily the lower court’s province but the
Supreme Court has the power to determine whether the lower court has
overlooked certain facts which may substantially affect the resolution of the
case.—While matters dealing with the credibility of witnesses and
appreciation of evidence are primarily the lower court’s province, this Court
has the power to determine whether in the performance of its functions,
the lower court overlooked certain matters which may have a substantial
effect in the resolution of a case. Defense witness Joel Escobia was, besides
Toring, the only witness whose sworn statement was taken by the police on
May 26, 1980, the day after the fatal assault on Samuel.
Criminal Law; Defense of Relative; Where the accused was motivated by
revenge, resentment or evil motive at the time of the assault, he cannot
claim the full benefit of the justifying circumstance of defense of relative.—
The presence of unlawful aggression on the part of the victim and the lack
of proof of provocation on the part of Toring notwithstanding, full credence
cannot be given to Toring’s claim of defense of a relative. Toring himself
admitted in court as well as in his sworn statement that in 1979, he was
shot with a .22 caliber revolver by Edgar Augusto, Samuel’s brother. It
cannot be said, therefore, that in attacking Samuel, Toring was impelled by
pure compassion or beneficence or the lawful desire to avenge the
immediate wrong inflicted on his cousin. Rather, he was motivated by
revenge, resentment or evil motive because of a “running feud” between
the Augusto and the Toring brothers. As the defense itself claims, after the
incident subject of the instant case occurred, Toring’s brother, Arsenio, was
shot on the leg by Edgar Augusto. Indeed, vendetta appears to have driven
both camps to commit unlawful acts against each other. Hence, under the
circumstances, to justify Toring’s act of assaulting Samuel Augusto would
give free rein to lawlessness.
85
Same; Aggravating Circumstances; Nighttime; Nighttime cannot be
considered as an aggravating circumstance in the absence of proof that it
was purposely sought to insure the commission of the crime.—The lower
court correctly considered the killing as murder in view of the presence of
the qualifying circumstance of treachery. The suddenness of the assault
rendered Samuel helpless even to use his shotgun. We also agree with the
lower court that conspiracy and evident premeditation were not proven
beyond reasonable doubt. Moreover, nighttime cannot be considered as an
aggravating circumstance. There is no proof that it was purposely sought to
insure the commission of the crime or prevent its discovery. However,
Toring should be credited with the privileged mitigating circumstance of
incomplete defense of relative and the generic mitigating circumstance of
voluntary surrender.
FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980 decision of
the Circuit Criminal Court in Cebu City in Criminal Case No. CCC-XIV-2170
the dispositive portion of which reads:
“WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond
reasonable doubt of the crime of MURDER by direct participation as
principal; Diosdado Berdon as accomplice thereto; and Carmelo Berdin as
accessory after the fact.
Appreciating in favor of the accused Luis B. Toring the mitigating
circumstance of voluntary surrender, the said circumstance having been
offset by the aggravating circumstance of nighttime, the accused Luis Toring
should be, as he is, hereby sentenced to the penalty of RECLUSION
PERPETUA, with the accessory penalties of law.
There being neither mitigating nor aggravating circumstances on the part of
the accused Diosdado Berdon, the said accused should be as he is hereby
sentenced to the indeterminate penalty of from SIX (6) YEARS of Prision
Correccional, as minimum, to TWELVE (12) YEARS and ONE (1) DAY of
Reclusion Temporal, as maximum, with the accessory penalties of the law.
Appreciating in favor of the accused Carmelo Berdin, the privileged
mitigating circumstance of minority, the said accused being only 17 years of
age, the accused Carmelo Berdin should be, as he is, sentenced to the
penalty of SIX (6) MONTHS and ONE (1) DAY of Prision Correccional, with
the accessory penalties of the law.
The defendants shall jointly and solidarily indemnify the heirs of the
deceased Samuel Augusto for actual and compensatory damages in the sum
of P15,000.00 and for moral damages in the sum of P50,000.00, without
subsidiary imprisonment in case of insolvency.
The instrument of the crime, the knife, Exhibit “B”, is confiscated in favor of
the government.
Proportionate costs.”
SO ORDERED.”1
According to the prosecution, the antecedent facts are as follows:
In the evening of May 25, 1980, a benefit dance was held at sitio Naga,
Babag II, Lapu-lapu City for the last canvassing of votes for the candidates
for princesses who would reign at the sitio fiesta. As one of the candidates
was the daughter of Samuel Augusto, he and the members of his family
attended the affair.
Also present were members of the kwaknit gang, a group which was noted
for their bird-like way of dancing and their propensity for drunkenness and
provoking trouble. Its president, called the “alas” king, was Luis Toring. The
group was then outside the dancing area which was ringed by benches.
At around 10:45 p.m., Samuel’s daughter was proclaimed the winner in the
contest. Beer and softdrinks having been served the parents of the
candidates by the officers of the Naga Chapel
Association which took charge of the affair, Samuel was tipsy when, after his
daughter’s proclamation, he stepped out of the dancing area to answer the
call of nature.
86
At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo
Berdin and Diosdado Berdon proceed to a dark area while whispering to
each other. Diosdado Berdon handed a knife to Luis Toring,2 who then
approached Samuel from behind, held Samuel’s left hand with his left hand,
and with his right hand, stabbed with the knife the right side of Samuel’s
abdomen.3 Upon seeing Felix running towards them, Luis Toring pulled out
the knife and, together with Carmelo Berdin and Diosdado Berdon, ran
towards the dark. Felix tried to chase the three but he was not able to catch
them. He returned to where Samuel had slumped and helped others in
taking Samuel to the hospital.
According to Maria Catalina Sorono, who was six (6) meters away from
Samuel and Luis when the assault occurred, Diosdado Berdon and Carmelo
Berdin were poised to deliver fist blows on Samuel just before Luis Toring
stabbed him. Diosdado gave the knife to Luis Toring.4
As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help.
The three assailants ran towards the direction of the fields. Jacinto Lobas
and Mario Andog responded to her shouts and brought Samuel to the Opon
Emergency Hospital where he died on arrival. According to the necropsy
report,5 Samuel, who was thirty years old, died due to massive hemorrhage
secondary to the stab wound on the abdomen. Said wound is described in
the report as follows:
“Stab wound, with herniation of omental tissues; elliptical, 3.5 cms. long,
running vertically downward, edges clean-cut, superior extremity rounded,
inferior extremity sharp, located at the abdominal region, right anterior
aspect, 7.5 cms. to the right of anterior median line and 107.0 cms. above
right heel, directed backward, upward and medially, involving skin and the
underlying soft tissues, penetrating right peritoneal cavity, incising inferior
vena cava, attaining an approximate depth of 15.0 cms.”
The death weapon, a kitchen knife made of stainless steel and with a red-
colored handle, was recovered from the house of Luis Toring. According to
Patrolman Pantaleon P. Amodia, the police found out during the
investigation that Luis Toring had left the weapon with “Camilo” Berdin.
When the police confronted Berdin, the latter led them to the house of
Toring which Berdin entered. When he emerged from the house, Berdin
handed the weapon to the police.6
An information for murder was filed against Toring. Subsequently, however,
the information was amended to include Diosdado Berdon and Carmelo
Berdin as defendants. The three were charged therein with conspiracy in
killing Samuel Augusto in a treacherous manner. Berdon, it was alleged,
“conveniently supplied the death weapon” which Toring used in stabbing
Samuel while Berdin allegedly concealed the weapon to prevent its
discovery by the police.7 The crime was purportedly committed with the
attendance of the generic aggravating circumstances of evident
premeditation and nighttime.
All three accused pleaded not guilty to the offense charged. At the trial, Luis
Toring, alias “Lowe,” testified that he was not the president of the Kwaknit
gang. He went to the benefit dance in the company of Venir Ybanez, Joel
Escobia, Ely Amion, Abel Pongase, Abe Berdon, Genio Berdin and Alex
Augusto. Toring and his group were standing outside the dancing area
when, at around eleven o’clock in the evening, Samuel, a known tough guy
(“maldito”), approached them and held Venir Ybanez by his collar. Then
Samuel thrust the butt of his shotgun on the chin of Joel Escobia,8
proceeded to another group who were also gangmates of Toring, and again,
with the barrel of his shotgun, hit Eli Amion’s chest several times.9
Reacting to what he saw, Toring got his kitchen knife which was tucked in
his waist, approached Samuel from the latter’s right side and stabbed him
once as he did not intend to kill
Samuel. Toring then ran towards the dark portion of the area and went
home. There, he left the knife and proceeded to the hut by the fishpond of
one Roman.10
Toring was sleeping in the hut with his older brother, Arsenio, when, at
around 4:00 o’clock in the morning of May 26, 1980, Edgar Augusto, the
younger brother of Samuel, shot them. Arsenio was hit on the left leg and
he stayed two months in the hospital for the treatment of his wound.11
87
At 2:00 o’clock in the afternoon of May 26, 1980, Toring surrendered to two
Philippine Constabulary soldiers.12 They brought him to the police of Lapu-
lapu City on May 28, 1980.13 When the police asked him about the knife he
used in stabbing Samuel, Toring told them to go to Carmelo Berdin because
he was the only person who knew where Toring hid it.14 Asserting that he
was the one who returned the knife to his own house, Toring testified that
Carmelo Berdin used to see him hide his weapons upstairs because Berdin
was a frequent visitor of his.15
For his part, Carmelo, a 5-feet tall, asthmatic 17-year-old whom the court
described as “lilliputian,” admitted that he witnessed the stabbing incident
but he ran away with his group immediately after because he was afraid he
might be shot by Samuel. He was with Toring when the latter hid the still
bloodied knife under a trunk in Toring’s house. He was familiar with the
hiding place of the knife because Toring showed it to him and there were
times when he would get the knife there upon Toring’s request. Carmelo
corroborated Toring’s testimony that on that fateful night, Toring carried
the knife tucked at the back of his waistline.16
In court, Toring testified that he never saw Diosdado at the dance.17
However, in his sworn statement dated May 28, 1980 and marked as Exhibit
D, Toring stated that he took the knife from Diosdado to stab Samuel.
Confronted with said statement, Diosdado said that when he asked Toring
why he implicated him, Toring allegedly replied that he “included” Diosdado
because of the case the barangay brigade had filed against Toring.18
According to Diosdado, he did not attend the May 25 dance because of the
trouble which erupted during the dance the night before. He did not have
anything to do with the stabbing of Samuel. He admitted, however, that a
week after the incident, his family went to barrio Andaliw, Ronda, Cebu, for
their yearly visit to his father-in-law. He stayed there for fifteen days and
would have stayed longer had not his mother informed him of the subpoena
addressed to him.19
On October 28, 1980, a day after the last day of hearing, the lower court20
rendered a decision discrediting Toring’s claim that the killing of Samuel was
justified because it was done in defense of a stranger pursuant to Article 11
(3) of the Revised Penal Code. The lower court found that Toring was the
“aggressor acting in retaliation or revenge by reason of a running feud or
long-standing grudge” between the Kwaknit gang and the group of Samuel,
who, being the son of the barangay captain, was a “power to be reckoned
with.” It mentioned the fact that a year before the incident in question,
Toring was shot by Edgar Augusto (Samuel’s brother) and hence, in his
desire to avenge himself, Toring, “needed but a little excuse to do away
with the object of his hatred.”21
The lower court could not believe that Samuel brought along his shotgun to
the dance because he was “not reputed to be a public official or functionary
entitled to possess a firearm.” Otherwise, the police and the barangay tanod
would have arrested him. The court surmised that if Samuel really carried a
shotgun, he certainly must have had a permit or license to possess the
same.
It noted that while Toring testified that Samuel was aiming his shotgun at
the chest of Ely Amyon (Amion), prosecution witness Joel Escobia claimed
that he was at the receiving end of
Samuel’s thrusts with the butt of his shotgun. To the court, such discrepancy
is fatal to the defense because in appreciating the justifying circumstance of
defense of a stranger, the court must know “with definiteness the identity
of the stranger defended by the accused.”22
The lower court, however, ruled out the existence of conspiracy among the
three accused on the ground that there was no proof on what they were
whispering about when Felix saw them. Accordingly, it held that the accused
have individual or separate liabilities for the killing of Samuel: Toring, as a
principal, Diosdado Berdon as an accomplice by his act of giving Toring the
knife, and Carmelo Berdin as an accessory for concealing the weapon. It
considered treachery as the qualifying circumstance to the killing, found no
proof as to allegation of evident premeditation but appreciated nighttime as
an aggravating circumstance. It meted the accused the penalties mentioned
above.
All three accused appealed.
88
Toring seeks his exoneration by contending that his assault on Samuel was
justified because he acted in defense of his first cousin, Joel Escobia. Article
11 (3) of the Revised Penal Code provides that no criminal liability is
incurred by anyone “who acts in defense of x x x his relatives x x x by
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are
present, and the further requisite, in case the provocation was given by the
person attacked, that the one making defense had no part therein.” The
first and second requisites referred to are enumerated in paragraph (b) in
the same article on self-defense as: (a) unlawful aggression, and (b) lack of
sufficient provocation on the part of the person defending himself.
Joel Escobia, whose chin was hit with the butt of Samuel’s shotgun, is the
first cousin of Toring their fathers being brothers23 although no explanation
appears on record why they have different surnames. At any rate, this
allegation on relationship was not rebutted by the prosecution.
The appreciation of the justifying circumstance of defense of a relative,
however, hinges in this case on the presence of unlawful aggression on the
part of the victim. Corollarily, the claim of Toring that Samuel was, at the
time of the assault, carrying a shotgun to intimidate Toring’s group must be
proven.
Understandably, no prosecution witness attested that they saw Samuel with
a firearm. The prosecution even recalled to the witness stand Samuel’s
widow who asserted that her husband did not own any firearm.24 Going
along with the prosecution’s evidence, the lower court arrived at the rather
gratuitous conjecture that Samuel could not have had a shotgun with him
because no one without a permit would carry a firearm without risking
arrest by the police or the barangay tanod. At the same time, however, the
lower court described Samuel as the son of the barangay captain who “had
the run of the place and had his compelling presence felt by all and
sundry.”25
While matters dealing with the credibility of witnesses and appreciation of
evidence are primarily the lower court’s province, this Court has the power
to determine whether in the performance of its functions, the lower court
overlooked certain matters which may have a substantial effect in the
resolution of a case.26 Defense witness Joel Escobia was, besides Toring,
the only witness whose sworn statement was taken by the police on May
26, 1980, the day after the fatal assault on Samuel.
In his sworn statement,27 Escobia attested that as he was about to dance
with a girl, Samuel stopped him, pointed his shotgun at him, took a bullet
from his jacket pocket, showed it to Escobia and asked him, “Do you like
this, Dong?” to which Escobia replied, “No, Noy, I do not like that.” Samuel
then placed the bullet in the shotgun and was thus pointing it at Escobia
when Toring came from behind Samuel and stabbed the latter. Even on
cross-examination at the trial, Escobia did not depart from his statement. In
fact he added that Samuel pointed the shotgun at his chin and told him to
eat the bullet.28
There is no reason to doubt Joel Escobia’s assertion of Samuel’s unlawful
aggression inasmuch as his sworn statement29 and testimony in court had
not been successfully discredited by the prosecution which also failed to
prove that Joel had reason to prevaricate to favor Toring.
The presence of unlawful aggression on the part of the victim and the lack
of proof of provocation on the part of Toring notwithstanding, full credence
cannot be given to Toring’s claim of defense of a relative. Toring himself
admitted in court30 as well as in his sworn statement31 that in 1979, he
was shot with a .22 caliber revolver by Edgar Augusto, Samuel’s brother. It
cannot be said, therefore, that in attacking Samuel, Toring was impelled by
pure compassion or beneficence or the lawful desire to avenge the
immediate wrong inflicted on his cousin. Rather, he was motivated by
revenge, resentment or evil motive32 because of a “running feud” between
the Augusto and the Toring brothers. As the defense itself claims, after the
incident subject of the instant case occurred, Toring’s brother, Arsenio, was
shot on the leg by Edgar Augusto. Indeed, vendetta appears to have driven
both camps to commit unlawful acts against each other. Hence, under the
circumstances, to justify Toring’s act of assaulting Samuel Augusto would
give free rein to lawlessness.
89
The lower court correctly considered the killing as murder in view of the
presence of the qualifying circumstance of treachery. The suddenness of the
assault rendered Samuel helpless even to use his shotgun. We also agree
with the lower court that conspiracy and evident premeditation were not
proven beyond reasonable doubt. Moreover, nighttime cannot be
considered as an aggravating circumstance. There is no proof that it was
purposely sought to insure the commission of the crime or prevent its
discovery.33 However, Toring should be credited with the privileged
mitigating circumstance of incomplete defense of relative and the generic
mitigating circumstance of voluntary surrender.
The penalty for murder under Article 248 of the Revised Penal Code being
reclusion temporal maximum to death, the imposable penalty is prision
mayor maximum to reclusion temporal medium in view of the presence of
the mitigating circumstances of incomplete defense of relative and
voluntary surrender (Art. 64 [5]). Applying the Indeterminate Sentence Law,
the proper penalty to be meted on Toring is prision correccional maximum
as minimum to prision mayor maximum as maximum penalty.
On the culpability of Diosdado Berdon, the Court holds that his defense of
alibi cannot be sustained in the absence of proof that it was physically
impossible for him to be at the scene of the crime when it was
committed.34 His house was only a kilometer away from the place where
he supplied the knife to Toring.35 That distance does not preclude the
possibility that Diosdado aided Toring in the perpetration of the crime as it
could be negotiated in just a few minutes by merely walking.36 Moreover,
his alibi was uncorroborated as it was founded only on his own testimony
and what appears as a self-exonerating affidavit.37
But what pins culpability on Diosdado were the testimonies of at least two
prosecution witnesses who positively identified him as the one who gave
Toring the knife. Motive, therefore, has become immaterial in the face of
such positive identification38 and hence, even if it were true that he was
not a member of the Kwaknit gang, his participation in the killing has been
proven beyond reasonable doubt. Added to this is the fact that Toring
himself in his sworn statement before the police pointed to him as the
source of the knife.39 Verily, Toring could not have
implicated him because of the incomprehensible reason that a case had
been filed against Toring before the barangay brigade.
Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his
previous act of supplying Toring the death weapon, Diosdado Berdon should
be meted the penalty of prision mayor maximum to reclusion temporal
medium which is the penalty next lower in degree to reclusion temporal
maximum to death, the penalty prescribed for murder by Article 248 (Article
6 [3]). There being no mitigating or aggravating circumstances, the penalty
should be in its medium period or reclusion temporal minimum (Article 64
[1]). Applying the Indeterminate Sentence Law, the minimum penalty
should be taken from prision mayor minimum while the maximum penalty
should be within the period of reclusion temporal minimum.
(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of
prision correccional maximum as minimum to twelve (12) years of prision
mayor maximum as maximum;
(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years
and one (1) day of prision mayor minimum as minimum to twelve (12) years
and one (1) day of reclusion temporal minimum as maximum;
(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel
Augusto, and
(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs
of Samuel Augusto an indemnity of thirty thousand pesos (P30,000.00).
Costs against appellants Toring and Berdon.
SO ORDERED.

With regards to Carmelo Berdin, his culpability as an accessory to the

murder has not been proven beyond reasonable doubt. The fact that he
knew where Toring hid the knife does not imply that he concealed it to
prevent its discovery (Article 19 [2]). There simply is no proof to that effect.
On the contrary, Luis Toring in his sworn statement and testimony during
the trial testified that after stabbing the victim, he ran away and went to his
house to hide the murder weapon. Being a close friend of Toring and a
frequent visitor to the latter’s house, it is not impossible for Carmelo Berdin
to know where Toring hid his knives. Significantly, Carmelo readily acceded
to the request of police officers to lead them to the place where Toring kept
the knife. He willingly retrieved it and surrendered it to the police, a
behavior we find inconsistent with guilt.

WHEREFORE, the decision of the lower court is hereby affirmed insofar as it

convicts Luis Toring as principal in the murder of Samuel Augusto and
Diosdado Berdon as an accom-plice thereto.

The lower court’s decision is modified as follows:

90
G.R. No. 189834. March 30, 2011.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAY MANDY MAGLIAN y
REYES, accused-appellant.
Evidence; Hearsay Evidence Rule; Dying Declarations; A dying person’s
declaration is recognized as an exception to the rule against hearsay if it is
made under the consciousness of an impending death that is the subject of
inquiry in the case.—While witnesses in general can only testify to facts
derived from their own perception, a report in open court of a dying
person’s declaration is recognized as an exception to the rule against
hearsay if it is “made under the consciousness of an impending death that is
the subject of inquiry in the case.” It is considered as “evidence of the
highest order and is entitled to utmost credence since no person aware of
his impending death would make a careless and false accusation.”
Criminal Law; Mitigating Circumstances; Lack of Intention to Commit so
Grave a Wrong; This mitigating circumstance addresses itself to the
intention of the offender at the particular moment when the offender
executes or commits the criminal act.—The Revised Penal Code provides
under Article 13(3) the mitigating circumstance that the offender had no
intention to commit so grave a wrong as that committed. We held, “This
mitigating circumstance addresses itself to the intention of the offender at
the particular moment when the offender executes or commits the criminal
act.” We also held,
“This mitigating circumstance is obtaining when there is a notable disparity
between the means employed by the accused to commit a wrong and the
resulting crime committed. The intention of the accused at the time of the
commission of the crime is manifested from the weapon used, the mode of
attack employed and the injury sustained by the victim.”
Same; Same; Voluntary Surrender; The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up and submit
himself to the authorities either because he acknowledges his guilt or he
wishes to save the authorities the trouble and expense that may be incurred
for his search and capture.—An accused may enjoy the mitigating
91
circumstance of voluntary surrender if the following requisites are present:
“1) the offender has not been actually arrested; 2) the offender surrendered
himself to a person in authority or the latter’s agent; and 3) the surrender
was voluntary.” We explained, “The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up and submit
himself to the authorities either because he acknowledges his guilt or he
wishes to save the authorities the trouble and expense that may be incurred
for his search and capture.”
Same; Same; Damages; Civil indemnity ex delicto is mandatory upon proof
of the fact of death of the victim and the culpability of the accused for the
death.—We award a civil indemnity ex delicto as this is “mandatory upon
proof of the fact of death of the victim and the culpability of the accused for
the death.” As We ruled, “When death occurs due to a crime, the following
may be recovered: (1) civil indemnity ex delicto for the death of the victim;
(2) actual or compensatory damages; (3) moral damages; (4) exemplary
damages; (5) attorney’s fees and expenses of litigation; and (6) interest, in
proper cases.” Current jurisprudence pegs the award of civil indemnity at
PhP 50,000.
APPEAL from a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Villanueva, Villanueva & Bihasa for accused-appellant.
VELASCO, JR., J.:
This is an appeal from the December 23, 2008 Decision1 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 02541, which affirmed the May 8, 2006
Decision in Criminal Case No. 8393-00 of the Regional Trial Court (RTC),
Branch 22 in Imus, Cavite. The RTC found accused Jay Mandy Maglian guilty
of parricide.
The Facts
An Information2 charged the accused as follows:
“That on or about the 4th day of January 2000, in the Municipality of
Dasmarinas, Province of Cavite, Philippines, and within the jurisdiction of
this Honorable Court[,] accused with intent to kill, did then and there,
willfully, unlawfully, and feloniously attack, assault, and set on fire Mary Jay
Rios Maglian, his lawfully wedded spouse, who as a result sustained 90%
Third Degree Burns on the face and other vital parts of the body that caused
her death, to the damage and prejudice of the heirs of the said Mary Jay
Rios Maglian.”
During his arraignment, the accused pleaded “not guilty.”
The prosecution presented witnesses Lourdes Rios, Norma Saballero, Dr.
Ludovino Lagat, Amy Velasquez, and Ramon Oredain. The defense, on the
other hand, presented accused Maglian, Atty. Ma. Angelina Barcelo, Atty.
Rosemarie Perey-Duque, Police Officer 3 (PO3) Celestino San Jose, and
Lourdes Panopio as witnesses.
The facts established during the trial below.
The accused is a businessman engaged in the lending business and the
buying and selling of cars and real estate. He and Atty. Mary Jay Rios (Mary
Jay) were married on January 29, 1999. They had a son, Mateo Jay.3
On January 4, 2000, the accused and Mary Jay were having dinner at their
home in Dasmariñas, Cavite when they got into an argument. The accused
did not want Mary Jay to attend a party, causing them to fight. Incensed,
the accused collected the clothes that Mary Jay had given him for Christmas
and told her he would burn them all and started pouring kerosene on the
clothes. Mary Jay tried to wrestle the can of kerosene from him and, at the
same time, warned him not to pour it on her. Despite his wife’s plea, the
accused still poured gas on her, thus setting both the clothes and his wife on
fire.4
The accused brought Mary Jay to the De la Salle University Medical Center
in Dasmariñas. After four days, she was transferred by her aunt to the burn
unit of the East Avenue Medical Center in Quezon City, were her condition
improved. Subsequently, however, the accused transferred her to St. Claire
Hospital, which did not have a burn unit. Since her condition deteriorated,
92
Lourdes Rios, Mary Jay’s mother, had her transferred to the Philippine
General Hospital (PGH) in Manila but she was no longer able to recover.
Before she expired, she told her mother what had happened to her,
declaring, “Si Jay Mandy ang nagsunog sa akin. (Jay Mandy burned me.)”
She passed away on February 24, 2000.5
The accused, in his defense, said the burning incident was completely
accidental. He said it was Mary Jay who was being difficult while they were
arguing. She threatened to throw away the clothes he had given her. To
spite her, he also took the clothes that she had given him and told her he
would burn them all. He then got a match and a gallon of kerosene. Mary
Jay caught up with him at the dirty kitchen and took the match and
kerosene from him. In the process, they both got wet from the spilled
kerosene. She got angry at how he was looking at her and screamed,
“Mandy, Mandy, wag yan, wag yan, ako na lang ang sunugin mo. (Mandy,
don’t burn that, burn me instead.)”
Accused, trying to avoid further provoking his wife, left his wife and went
upstairs to his son. While climbing the stairs, he heard Mary Jay shouting,
“Mandy, Mandy, nasusunog ako. (Mandy, I’m burning.)” He ran down the
steps and saw the blaze had reached the ceiling of the kitchen. He
embraced his wife and called out to his mother to help them. He poured
water on her when the fire could not be put out and brought her to the
living room. He then carried Mary Jay to the car while shouting for help
from the neighbors. In the process, he sustained burns on his legs and
arms.6
While Mary Jay was still confined at the East Avenue Medical Center, the
accused learned from a certain Judge Tanguanco that using “red medicine”
would help heal his wife’s burn wounds. The hospital, however, did not
allow him to use the “red medicine” on Mary Jay. He thus had his wife
transferred to PGH. When there was no space at the hospital, she was
transferred to St. Claire Hospital with the help of a certain Judge Español.
The doctors at St, Claire advised him to stop using the “red medicine” on his
wife when her wounds started to get worse and began emitting a foul
odor.7
The accused asserted that his mother-in-law, Lourdes Rios, and their
laundrywoman, Norma Saballero, accused him of burning his wife since his
wife’s family had been angry with him ever since they got married. His
mother-in-law and Mary Jay’s siblings used to ask money from them and
would get angry with him if they did not receive any help.8
The accused likewise claimed that his late wife made a dying declaration in
the presence of PO3 Celestino San Jose and
Atty. Rosemarie Perey-Duque. This allegation was corroborated by PO3 San
Jose, who testified that Mary Jay was a friend and he had visited her at East
Avenue Medical Center on January 13, 2000. He was there to take Mary
Jay’s statement upon instructions of Chief Major Bulalacao.9 PO3 San Jose
narrated the incident during his direct examination by Atty. Bihasa:
Q What, if any, was the reply of Atty. [Mary Joy] Rios?
A She nodded her head.
Q And after that, what happened next:
A I told her that I will get her statement and she told me that she could
give her statement.
Q And after Atty. Rios told you that she was capable of giving her
statement, what if any transpired?
A I took her statement, which was in my handwriting.
Q Her statement was in your handwriting but who uttered those
statements?
A It was Atty. Rios.10
Atty. Duque testified that the last time she spoke with Mary Jay was on
January 13, 2000, when she visited her at the hospital along with PO3 San
Jose. The statements of Mary Jay were reduced into writing and Atty. Duque
helped in lifting the arm of the patient so that she could sign the
document.11
93
The Ruling of the Trial Court
The RTC rendered its Decision on May 8, 2006, the dispositive portion of
which reads:
“WHEREFORE, premises considered, this Court finds and so it hereby holds
that the prosecution had established the guilt of the accused JAY MANDY
MAGLIAN y REYES beyond reasonable doubt and so it hereby sentences him
to suffer the penalty of RECLUSION PERPETUA.”
Inasmuch as the civil aspect of this case was prosecuted together with the
criminal aspect, the accused is also hereby ordered to indemnify the heirs of
the deceased the following amounts of:
a. Php500,000 as actual damages
b. Php500,000 as moral damages,
c. Php200,000 as exemplary damages,
d. Php200,000 as attorney’s fees; and
e. Cost of suit against the accused.
SO ORDERED.”12
The Ruling of the Appellate Court
On appeal, accused-appellant faulted the trial court for not giving credence
to the dying declaration Mary Jay made to her friends who became defense
witnesses. He averred that the trial court erred in not admitting the
deposition by oral examination of Atty. Ma. Angelina Barcelo which would
corroborate the testimonies of the defense witnesses regarding the
handwritten dying declaration of Mary Jay. The trial court was also
questioned for giving credence to the perjured and biased testimonies of
prosecution witnesses Lourdes Rios and Norma Saballero. Lastly, accused-
appellant averred that the trial court erroneously disallowed the defense
from presenting Dr. Ma. Victoria Briguela, a qualified psychiatrist, who could
testify that Mary Jay’s mental, psychological, and emotional condition on
February 24, 2000 was disoriented and she could not have made a dying
declaration on said date.
The CA upheld the ruling of the trial court. The dying declaration made by
Mary Jay to her mother Lourdes and laundrywoman Norma had all the
essential requisites and could thus be used to convict accused-appellant. It
noted that while the testimonies of Lourdes and Norma on the dying
declaration had some inconsistencies, these were immaterial and did not
affect their credibility. It observed that no ill motive was presented and
proved as to why the prosecution’s witnesses would make false accusations
against accused-appellant.
Hence, we have this appeal.
On December 14, 2009, this Court required the parties to submit
supplemental briefs if they so desired. The People, represented by the
Office of the Solicitor General, manifested that it was adopting its previous
arguments.
The Issue
In his Supplemental Brief, accused-appellant raises the following issue:
Whether the guilt of accused-appellant has been established beyond
reasonable doubt.
Accused-appellant contends that (1) he never or did not intend to commit
so grave a wrong as that committed or so grave an offense as the felony
charged against him; and (2) that he voluntarily, and of his own free will,
surrendered or yielded to the police or government authorities. He claims
that the victim’s dying declaration showed that what happened to her was
an accident. He avers that this was corroborated by three witnesses. The
victim’s attending physician, he insists, also testified that he was told by the
victim that what happened to her was an accident.
94
If not acquitted, accused-appellant argues that, in the alternative, his
sentence must be reduced due to mitigating circumstances of no intention
to commit so grave a wrong and voluntary surrender. He claims he is
entitled to the latter since he voluntarily surrendered to the authorities
before criminal proceedings were commenced against him. The reduction of
his sentence, he contends, must be by at least another degree or to prision
mayor or lower.
The Ruling of the Court
We affirm accused-appellant’s conviction.
Dying declaration
While witnesses in general can only testify to facts derived from their own
perception, a report in open court of a dying person’s declaration is
recognized as an exception to the rule against hearsay if it is “made under
the consciousness of an impending death that is the subject of inquiry in the
case.”13 It is considered as “evidence of the highest order and is entitled to
utmost credence since no person aware of his impending death would make
a careless and false accusation.”14The Rules of Court states that a dying
declaration is admissible as evidence if the following circumstances are
present: “(a) it concerns the cause and the surrounding circumstances of the
declarant’s death; (b) it is made when death appears to be imminent and
the declarant is under a consciousness of impending death; (c) the declarant
would have been competent to testify had he or she survived; and (d) the
dying declaration is offered in a case in which the subject of inquiry involves
the declarant’s death.”15 The question to be answered is which dying
declaration satisfies the aforementioned circumstances, the one made by
Mary Jay to Lourdes and Norma, or the one she made before Atty. Duque
and PO3 San Jose.
Accused-appellant contends that his late wife’s dying declaration as told to
the defense witnesses Atty. Duque and PO3 San Jose effectively absolved
him from any wrongdoing. However, it is the dying declaration presented by
the prosecution that satisfies all the requisites provided in the Rules. In
contrast, the dying declaration for the defense did not show that Mary Jay’s
death at the time of said declaration appeared to be imminent and that she
was under a consciousness of impending death.
Moreover, We defer to the factual finding that the witnesses for the
prosecution were more credible. Mary Jay’s dying declaration to her mother
Lourdes and to Norma showed that accused-appellant was the one who set
her in flames. Lourdes and the Maglians’ laundrywoman Norma both
testified that Mary Jay, moments before her actual death, told them that it
was accused-appellant who was responsible for burning her. Lourdes and
Norma both testified that at the time of Mary Jay’s declaration, she was
lucid and aware that she was soon going to expire. Furthermore, the so-
called dying declaration made by Mary Jay to defense witnesses Atty. Duque
and PO3 San Jose suffers from irregularities. The dying declaration allegedly
made to Atty. Duque and PO3 San Jose was handwritten by the latter but he
did not have it sworn under oath. We reiterate too that it was not clear that
it was executed with the knowledge of impending death since the
statements were made more than a month before Mary Jay died.
We agree with the trial and appellate courts that Lourdes and Norma were
both credible witnesses and had no motive to lie about Mary Jay’s dying
declaration. The appellate court correctly pointed out that although Lourdes
was Mary Jay’s mother, this relationship did not automatically discredit
Lourdes’ testimony. And while accused-appellant alleged that Lourdes as his
mother-in-law did not approve of him, he could not give any improper
motive for Norma to falsely accuse him. Between the two competing
statements of the two sets of witnesses, the one presented by the
prosecution should clearly be given more weight as it satisfies the requisites
of an admissible dying declaration.
The Revised Penal Code provides under Article 13(3) the mitigating
circumstance that the offender had no intention to commit so grave a
wrong as that committed. We held, “This mitigating circumstance addresses
itself to the intention of the offender at the particular moment when the
offender executes or commits the criminal act.”16 We also held, “This
mitigating circumstance is obtaining when there is a notable disparity
between the means employed by the accused to commit a wrong and the
95
resulting crime committed. The intention of the accused at the time of the
commission of the crime is manifested from the weapon used, the mode of
attack employed and the injury sustained by the victim.”17
Aiming for this mitigating circumstance, accused-appellant once again relies
on the statements of the defense witnesses that Mary Jay told them what
happened to her was an accident. However, as earlier discussed, Mary Jay’s
dying declaration contradicts the alleged exculpatory statement she earlier
made to the defense witnesses. Moreover, the prosecution took pains in
court to demonstrate that fighting over the kerosene container would not
have caused Mary Jay to be drenched in kerosene. As aptly explained by the
trial court:
“The court is convinced that the deceased did not take possession of the
gallon container with kerosene. The accused had full control and possession
of the same. He is a bulky and very muscular person while the deceased was
of light built, shorter, smaller and weaker. When a demonstration was made
in open court about the struggle for possession of the container, it was
shown that the contents of the same did not spill owing to the little amount
of liquid and its narrow opening. To be able to wet 90 percent of the body
surface the kerosene content of the gallon container must have been
poured over the head of the deceased. This explains why when she got
ignited, the flames rose up to the ceiling and burned her from head to
toe.”18
It is extremely far-fetched that accused-appellant could accidentally pour
kerosene on his wife and likewise accidentally light her up and cause third
degree burns to 90% of her body. We, thus, agree with the trial court’s
finding that accused-appellant knew the fatal injuries that he could cause
when he poured kerosene all over his wife and lit a match to ignite a fire.
There was no disparity between the means he used in injuring his wife and
the resulting third degree burns on her body. He is, thus, not entitled to the
mitigating circumstance under Art. 13(3) of the Code.
Voluntary surrender
An accused may enjoy the mitigating circumstance of voluntary surrender if
the following requisites are present: “1) the offender has not been actually
arrested; 2) the offender surrendered himself to a person in authority or the
latter’s agent; and 3) the surrender was voluntary.”19 We explained, “The
essence of voluntary surrender is spontaneity and the intent of the accused
to give himself up and submit himself to the authorities either because he
acknowledges his guilt or he wishes to save the authorities the trouble and
expense that may be incurred for his search and capture.”20
To avail himself of this mitigating circumstance, accused-appellant claims
that he voluntarily yielded to the police authorities on October 14, 2002, or
before the commencement of the criminal proceedings against him. He
avers that this claim is backed by the records of the case and a certification
made by the Dasmariñas Police Station. He contends that both the RTC and
the CA inexplicably did not appreciate this mitigating circumstance in his
favor.
A review of the records shows that accused-appellant on October 16, 2000
filed with the Department of Justice (DOJ) a Petition for Review of the
Resolution of the private prosecutor in the instant case. Subsequently, a
warrant of arrest for the parricide charge was issued against him on October
30, 2000.21 However, a Motion, to Defer Implementation of Warrant of
Arrest was filed by accused on November 13, 200022 and was granted by
the RTC on December 12, 2000 in view of the petition for review he had
filed before the DOJ.23 On September 11, 2002, the DOJ issued a
Resolution24 denying the petition of accused-appellant. The defense later
submitted a Certification25 issued by the Philippine National Police-
Dasmariñas Municipal Police Station dated October 18, 2002 stating the
following:
“THIS IS TO CERTIFY that the following are excerpts from the entries on the
Official Police Blotter of Dasmariñas Municipal Police Station, appearing on
page 0331 and 0332, blotter entry nos. 1036 and 1047 respectively, dated
15 October 2002, quoted verbatim as follows:
150740H October 2002 — “P/I Apolinar P. Reyes reported that one
Jaymandy Maglian y Reyes, 30 years old, resident of #24 Bucal, Sampalok II,
96
Dasmariñas, Cavite, with Warrant of Arrest issued by RTC Branch 21, Imus,
Cavite, in CC# 8393-00 for Parricide, voluntarily surrendered to him on
October 14, 2002. Subject is turned over to this station on this date”.
151350H October 2002 — “One Jaymandy Maglian was transferred to BJMP
and escorted by P/I Apolinar Reyes”.
(Entries written by SPO3 Ricardo V. Sayoto – duty desk officer)”
We find that in the case of accused-appellant, all the elements for a valid
voluntary surrender were present. Accused-appellant at the time of his
surrender had not actually been arrested. He surrendered to the police
authorities. His surrender was voluntary, as borne by the certification issued
by the police. There is, thus, merit to the claim of accused-appellant that he
is entitled to the mitigating circumstance of voluntary surrender.
It bears noting that parricide, however, according to Art. 246 of the Revised
Penal Code, is punishable by two indivisible penalties, reclusion perpetua to
death. The Code provides under Art. 63(3) that when a law prescribes a
penalty with two indivisible penalties and the commission of the act is
attended by some mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied. But Section 3 of Republic
Act No. (RA) 9346 (An Act Prohibiting the Imposition of Death Penalty in the
Philippines) provides that “persons convicted of offenses punished with
reclusion perpetua, or whose sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be eligible for parole under Act No.
4103, otherwise known as the Indeterminate Sentence Law, as amended.”
The proper sentence in the instant case would, thus, be reclusion perpetua
which is still the lesser penalty.
Anent an issue previously raised by accused-appellant and which was not
discussed by the CA, while accused-appellant claims that the trial court
erred in not admitting the deposition by oral examination of Atty. Ma.
Angelina Barcelo, We note that the records show that an Order26 was
issued by Judge Norberto J. Quisumbing, Jr. granting accused-appellant’s
motion to take oral deposition of Atty. Barcelo.
Pecuniary liability
The trial court ordered accused-appellant to pay PhP 500,000 as actual a. PhP 500,000 as actual damages;
damages; PhP 500,000 as moral damages; PhP 200,000 as exemplary
b. PhP 50,000 as civil indemnity;
damages; and PhP 200,000 as attorney’s fees.
c. PhP 50,000 as moral damages;
We modify the monetary awards, those being excessive. We award a civil
indemnity ex delicto as this is “mandatory upon proof of the fact of death of d. PhP 30,000 as exemplary damages;
the victim and the culpability of the accused for the death.”27 As We ruled,
“When death occurs due to a crime, the following may be recovered: (1) e. PhP 50,000 as attorney’s fees; and
civil indemnity ex delicto for the death of the victim; (2) actual or f. Cost of suit against accused-appellant.”
compensatory damages; (3) moral damages; (4) exemplary damages; (5)
attorney’s fees and expenses of litigation; and (6) interest, in proper SO ORDERED. People vs. Maglian, 646 SCRA 770, G.R. No. 189834 March 30,
cases.”28 Current jurisprudence pegs the award of civil indemnity at PhP 2011
50,000.29

Moral damages should also be awarded even absent allegation and proof of
the emotional suffering by the victim’s heirs. The amount should be
decreased to PhP 50,000 in accordance with jurisprudence.30 Exemplary
damages in the lowered amount of PhP 30,000 are likewise in order in this
case charging parricide, as the qualifying circumstance of relationship is
present.31

As to the attorney’s fees awarded, these must be reasonable in accordance

with Art. 2208 of the Civil Code.32 We, thus, reduce the attorney’s fees to a
more reasonable amount of PhP 50,000.

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No.

02541 affirming the RTC Decision that found accused-appellant guilty
beyond reasonable doubt of parricide is AFFIRMED with MODIFICATION.
The fallo of the RTC Decision should be modified to read, as follows:

“WHEREFORE, premises considered, this Court finds and so it hereby holds

that the prosecution had established the guilt of the accused JAY MANDY
MAGLIAN y REYES beyond reasonable doubt and so it hereby sentences him
to suffer the penalty of RECLUSION PERPETUA.

Inasmuch as the civil aspect of this case was prosecuted together with the
criminal aspect, the accused is also hereby ordered to indemnify the heirs of
the deceased the following amounts of:
97
G.R. No. 100204. March 28, 1994.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AURELIO CABALHIN y
DACLITAN, accused-appellant.
Evidence; Witnesses; Findings of fact of trial courts are given great weight
on appeal.—It is settled rule that the findings of fact of trial courts are given
great weight on appeal because they are in a better position to examine the
real evidence, and observe the demeanor of the witnesses, and can
therefore discern if they are telling the truth or not. We therefore find no
reversible error committed by the trial court in appreciating the testimony
of Romulo del Monte. Hence, as to the factual issue of whether Marianita
and Rolito were engaged in sexual intercourse when allegedly caught by
appellant, we will respect the factual finding made by the trial court as the
same is supported by the evidence on record.
Parricide; Under Article 247 of the Revised Penal Code, the killing of the wife
by the husband (or vice versa) is justified if the husband kills her while
engaged in sexual intercourse with another man or immediately
thereafter.—Under Article 247 of the Revised Penal Code, the killing of the
wife by the husband (or vice versa) is justified if the husband kills her while
engaged in sexual intercourse with another man or immediately thereafter.
Clearly, in the present case, appellant failed to prove that he killed
Marianita and Rolito while in the act of sexual intercourse or immediately
thereafter. Therefore, appellant can not invoke Article 247 to be exempt
from criminal liability. He is guilty of parricide under Article 246 of the Code,
which provides that any person who shall kill his or her spouse shall be
punished by the penalty of reclusion perpetua to death.
Homicide; The essential element of intent to kill the victim must be clearly
established in order to convict one of the crime of homicide.—In applying
Article 249 of the Revised Penal Code, the essential element of intent to kill
the victim must be clearly established in order to convict one of the crime of
homicide. The trial court ruled that there was intent to kill on the part of the
appellant, considering “the number and location of the stab wounds
inflicted upon the victim (Flaviana)—two stab wounds on the lower right
breast, and the weapon used by the accused which was a double bladed
98
dagger measuring about 13 inches long including the handle. “Taking into
consideration the number and location of the stab wounds sustained by
Flaviana, this Court believes, as aptly observed by the trial court, that there
was intent to kill when appellant attacked and wounded Flaviana. We,
therefore uphold the ruling of the trial court finding appellant guilty of
frustrated homicide in having attacked Flaviana.
APPEAL from a decision of the Regional Trial Court of Antipolo, Rizal, Br. 73.
Legaspi, J.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
PADILLA, J.:
Accused Aurelio D. Cabalhin y Daclitan appeals from the decision** of the
Regional Trial Court of Antipolo, Rizal, Branch 73, dated 27 March 1991,
finding him guilty of three (3) offenses, namely: frustrated homicide,
homicide, and parricide and sentencing him to suffer imprisonment of six
(6) months of arresto mayor as minimum to three (3) years of prision
correccional as maximum in Criminal Case No. 3081 (for frustrated
homicide); imprisonment of four (4) years, two (2) months and one (1) day
of prision correccional as minimum to eight (8) years and one (1) day of
prision mayor as maximum in Criminal Case No. 3082 (for homicide); and
reclusion perpetua in Criminal Case No. 3094 (for parricide).
The records show that at about 3:30 in the afternoon of 22 February 1987,
in Sitio Burol, Barangay San Juan, Taytay, Rizal, the appellant stabbed, with
the use of a 13-inch dagger, three (3) persons, namely, Marianita Atison
(appellant’s wife), Flaviana and Rolito, both surnamed Saldivia (mother and
son). Three (3) separate informations were filed against accused-appellant,
docketed as Criminal Case No. 3081, dated 25 May 1987, for: frustrated
murder; Criminal Case No. 3082, dated 26 May 1987, for: murder; and
Criminal Case No. 3094, dated 25 May 1987, for: parricide, which
informations read as follows:
“Crim. Case No. 3081
That on or about the 22nd day of February 1987, in the municipality of
Taytay, province of Rizal, a place within the jurisdiction of this Honorable
Court, the above-named accused, armed with a deadly weapon (dagger),
with intent to kill, evident premeditation and treachery, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the said
deadly weapon one Flaviana Lacambra-Saldivia on the right lower portion of
the breast, x x x x x thus performing all the acts of execution which would
have produced the crime of murder, as a consequence, but nevertheless did
not produce it by reason of cause or causes independent of his will, that is,
due to the timely and able medical assistance rendered to said Flaviana
Lacambra-Saldivia which prevented her death.
CONTRARY TO LAW.
Crim. Case No. 3082
That on or about the 22nd day of February 1987, in the Municipality of
Taytay, Province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a dagger, with
intent to kill, and by means of treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack, assault and stab
with the said dagger one Rolito Saldivia y Lacambra on the vital parts of his
body, thereby inflicting upon the latter mortal stab wounds which directly
caused his death.
CONTRARY TO LAW.
Crim. Case No. 3094
That on or about the 22nd day of February 1887, in the municipality of
Taytay, province of Rizal, a place within the jurisdiction of this Honorable
Court, the above-named accused, with evident premeditation to kill his wife
with whom he was united in lawful wedlock, entered the house at Sitio
Burol, Brgy. San Juan, Taytay, Rizal, where she was then living separately,
and said accused armed with a bladed weapon suddenly and without
99
warning and employing means which tended to ensure its commission
without danger to himself, did then and there willfully, unlawfully and
feloniously, stab his wife, Marianita Atison, repeatedly, as a result of which
the said Marianita Atison met her instantaneous death.
CONTRARY TO LAW.”1
Criminal Case No. 3081 was originally assigned to the Regional Trial Court of
Antipolo, Rizal, Branch 73, while Criminal Case Nos. 3082 and 3094 were
assigned to Branch 74 of the same court. The latter two (2) cases were
consolidated later with Criminal Case No. 3081, all three (3) cases having
arisen from the same incident.
When arraigned, appellant pleaded not guilty to the offenses charged. The
three (3) cases were set for trial. The evidence for the prosecution consisted
of the testimonies of two (2) alleged eye-witnesses to the commission of
the crimes, namely: Robin Saldivia (brother of deceased victim Rolito
Saldivia) and Igmidio Ducay. A third witness was Romulo del Monte (a
barangay tanod in Barangay San Juan).
The testimony of Robin Saldivia is as follows:
“x x x on February 22, 1987 at around 3:30 in the afternoon, he (Robin
Saldivia) was in their house in Sitio Burol, Taytay, Rizal. He was lying down
with his brother Rolito Saldivia who was sleeping on the floor. Their house
had two bedrooms separated by a sala. On the other bedroom, Marianita
Atison or ‘Ka Nita’ and his mother Flaviana Lacambra Saldivia were talking
while on the bed. All of a sudden, somebody forcibly entered their house
and so he got up and peeped behind the curtain. He saw the accused drew a
double-bladed instrument measuring about thirteen inches long from his
right side. Sensing danger, Robin Saldivia hid under their house the floor of
which was about 4 1/2 feet from the ground. While hiding under the house,
he could see the movement of the feet of the accused between the wooden
slabs of the floor. Thru these spaces, he saw the accused stabbed Marianita
Atison or ‘Ka Nita,’ his mother Flavians Lacambra Saldivia and his brother
Rolito or ‘Lito’ Saldivia and blood even dripped on him. After stabbing these
three persons, the accused ran away. As a result of this stabbing incident,
Flaviana Saldivia sustained two stab wounds on the breast while Marianita
Atison and Rolito Saldivia died on the same day.”2
Igmidio Ducay testified as follows:
“x x x on February 22, 1987 at around 3:30 P.M., he (Igmidio Ducay) was
infront of the house of Wenceslao Saldivia in Sitio Burol, Barangay San Juan,
Taytay, Rizal. He was playing ‘dama’ with his friend Alberto Espino when a
person carrying a bladed instrument passed by. The bladed weapon or
instrument has a length of 12 to 13 inches. This person suddenly entered
the house of Wenceslao Saldivia by kicking the door which was closed.
Igmidio Ducay stood up and peeped through inside the house. He saw the
man suddenly stabbed Marianita Atison Cabalhin, an acquaintance. After
that, the man went down from the bedroom and suddenly stabbed Lito who
was sleeping face down (nakataob) on top of a table just below the
bedroom where Marianita Cabalhin was stabbed. He also saw the man
kicked and stabbed ‘Manang’ or Flaviana Saldivia, wife of Wenceslao
Saldivia.
Igmidio Ducay stated that he was about 4-5 meters away from the door
where he was peeping when Marianita Cabalhin, Rolito Saldivia and Flaviana
Saldivia were stabbed by the man whom he identified as the accused
Aurelio Cabalhin. The door was open and everything that was happening
inside the house could be seen outside because there was no room or
partition. He saw the accused climbed the bed or ‘papag’ where Marianita
Cabalhin and Flaviana Saldivia were sitting side by side and the accused
stabbed them while standing on the ‘papag.’ After stabbing Marianita and
Flaviana, the accused went down and proceeded to Rolito Saldivia who was
sleeping on top of the table on the right side of the house and stabbed him
also. After Flaviana Saldivia was stabbed, Igmidio Ducay left the place and
asked for help. x x x”3
Romulo del Monte, on the other hand, testified as follows:
1. That in that afternoon of 22 February 1987 after being informed about
the stabbing incident in the house of the Saldivias, he went to said house
and saw Nita Cabalhin and Lito Saldivia sprawled on the bed in one room of
100
the house—Nita Cabalhin was fully dressed while Lito Saldivia was wearing
khaki pants but naked up (without T-shirt); he did not see Wenceslao
Saldivia (father of Lito Saldivia) in the house and did not bother to ask who
the author of the crime was.
2. Between 3:00 and 4:00 p.m. of that same day, he saw the accused Aurelio
Cabalhin coming out from an alley where the house of the Saldivias was
located. The accused had a white shoulder bag on his left shoulder, his right
hand was inside the bag and his pants were bloodied. Nobody told him that
said person was Aurelio Cabalhin but he was pointed to as the one who
stabbed the victims. When Romulo del Monte saw the accused coming out
from an alley, he even greeted him—“O brod, anong nangyari sa iyo at
ganyan ka?” but the accused did not answer and he just continued walking.
The next time that he saw the accused was in court. (Romulo del Monte
gave a sworn statement dated 23 February 1987 in connection with this
case).4
Appellant admitted having stabbed Marianita Atison, Rolito Saldivia and
Flaviana Saldivia, resulting in the death of the first two victims (Marianita
and Rolito), and in stab wounds on the breast of the third victim (Flaviana).
However, he declared that the stabbing incident occurred as he caught his
wife Marianita and Rolito naked in bed and actually engaged in sexual
intercourse. The evidence for the defense consists of the testimony of the
sole defense witness, appellant himself. His testimony is as follows:
“x x x He and Marianita Atison Cabalhin are husband and wife having been
married on November 23, 1972 in Calubian, Leyte (Exhibit ‘1’). After their
marriage, they stayed in the house of his in-laws in Guinduhaan, Wague,
Leyte for more or less one year. After that, they transferred to their own
house in Wague, Leyte and stayed there for more or less fifteen years. In
1985, they went to Manila where they worked as caretaker of the house of
Edgardo Co in Filinvest Subdivision for about seven months. They left the
employment of Edgardo Co x x x. They transferred to Sucat, Parañaque
where he worked as laborer in a construction and his wife Marianita Atison
Cabalhin worked as housemaid.
xxx xxx xxx
After working as housemaid in New Alabang Village for more or less five
months, Marianita Atison Cabalhin transferred to Meralco Village, Taytay,
Rizal where she also worked as housemaid of Lola Waway. At that time
Aurelio Cabalhin was working with Apex in San Pedro, Mandaluyong, Metro
Manila and residing in Mangga Site, Sucat, Parañaque. His wife Marianita
Cabalhin who was working in Meralco Village, Taytay, Rizal was going home
to or staying with her sister Elevita Atison Dagame in Sitio Burol, Barangay
San Juan, Taytay, Rizal after her work. They agreed that they would see each
other every Sunday at Mangga Site, Sucat, Parañaque. Aurelio Cabalhin had
gone thrice to the house of his sister-in-law where his wife was staying. On
December 14, 1986, Aurelio Cabalhin went to Sitio Burol, Barangay San
Juan, Taytay, Rizal to find out the condition of his wife in the house of Lola
Waway. He saw his wife and she told him that her work was fine and she
was in good condition. He saw also his sister-in-law Elevita Dagame on that
occasion.
On February 14, 1987, Elevita Dagame went to Sucat, Parañaque and asked
the accused Aurelio Cabalhin about his wife. Elevita told him that his wife
was no longer working in the house of Lola Waway and she was not going
home to their house anymore. On February 17, 1987, the accused went to
Meralco Village, Taytay, Rizal and verified from Lola Waway if what Elevita
Dagame told him was true. Lola Waway told the accused that his wife was
not working with her anymore since January 30. Upon learning that, Aurelio
Cabalhin asked the help of Elevita Dagame to gather information regarding
the whereabouts of his wife and went back to Sucat, Parañaque.
On February 22, 1987, Aurelio Cabalhin returned to the house of Elevita
Dagame in Sitio Burol, Barangay San Juan, Taytay, Rizal to get some
informations about his wife. When he arrived there at around 12:00 P.M.,
the only person in the house was Jun Dagame who is the brother of
Reynaldo Dagame, husband of Elevita. According to Jun Dagame, Elevita
went to Pasay. The accused talked with Jun Dagame and their conversation
lasted for about two hours.
Jun Dagame who was 14 years old, told the accused that his wife Marianita
was in the house of Wenceslao Saldivia and had a paramour. He wanted to
101
know if what he was told about his wife was true and so he went to the
house of Wenceslao Saldivia which was pointed to him by Jun Dagame who
stayed at a distance of about 20 meters away from said house. He went
near the door of the house of Wenceslao Saldivia and saw Flavians Saldivia.
He asked her where his wife was and she answered that Marianita Cabalhin
was not there. The accused noticed that Flaviana Saldivia became pale and
trembled when he asked her about his wife and so he entered the house
and Flaviana Saldivia was behind him. He saw a room with curtain and when
he parted the curtain (hinawi ko po ang kurtina) he saw his wife lying with a
man on the bed. His wife was lying on her back with her legs apart while the
man was on top of her with his buttocks between the parted legs of his
wife. The man and his wife were engaged in sexual act. He boxed the legs of
the man and when he rolled over to the wall, he saw that his wife and the
man were naked. Because of anger, he lost control of himself. He saw a
knife near the pillow and stabbed the testicles of the man. His wife tried to
stop him and he stabbed her also. After that, he stabbed the man and his
wife again and again. The accused testified that at the time he was stabbing
these two persons, he was already out of his mind because of anger. He
could not recall how many times he stabbed them but he was sure that all
the stab wounds were on the front portion of their bodies. He did not know
what happened to Flaviana Saldivia but on cross-examination, the accused
declared that when he stabbed the testicles of the man who he came to
know as Lito Saldivia, somebody behind him grabbed his shirt and he also
stabbed that person but he does not know if it was Flaviana Saldivia. After
realizing that he had taken the law into his hands, the accused left bringing
the knife with him and walked towards the highway. His pants were full of
blood and he boarded a passenger jeep going to Crossing-JRC. He alighted at
Crossing-Mandaluyong and went to the outpost where there was a
policeman. He told the police that he was a criminal and he was brought to
Capt. Sebastian Davan at the Mandaluyong police headquarters. The
accused told Capt. Davan that he killed his wife and paramour. That
evening, Capt. Davan brought him to Taytay Police Station and he was
incarcerated. x x x”5
On 27 March 1991, the trial court rendered judgment finding appellant
guilty of the crimes of frustrated homicide (as to Flaviana), homicide (as to
Rolito) and parricide (as to Marianita), the dispositive part of which reads as
follows:
“WHEREFORE, finding the accused Aurelio Cabalhin y Daclitan guilty beyond
reasonable doubt of the crimes of frustrated homicide in Crim. Case No.
3081, homicide in Crim. Case No. 3082 and parricide in
Crim. Case No. 3094, the Court hereby sentences him to suffer
imprisonment of 6 months of arresto mayor as minimum to 3 years of
prision correccional as maximum in Crim. Case No. 3081; imprisonment of 4
years 2 months and 1 day of prision correccional as minimum to 8 years and
1 day of prision mayor as maximum in Crim. Case No. 3082 and reclusion
perpetua in Crim. Case No. 3094.
The accused shall be credited with the preventive imprisonment he has
undergone pursuant to Art. 29 of the Revised Penal Code as amended by
Republic Act No. 6127.”6
In this appeal, appellant contends: (1) that he killed his wife Marianita and
Rolito Saldivia under the exceptional circumstances provided under Article
247 of the Revised Penal Code which reads:
“ART. 247. Death or physical injuries inflicted under exceptional
circumstances.—Any legally married person who, having surprised his
spouse in the act of committing sexual intercourse with another person,
shall kill any of them or both of them in the act or immediately thereafter,
or shall inflict upon them any serious physical injury, shall suffer the penalty
of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be
exempt from punishment.”
and (2) that the crime he committed against the person of the other victim,
Flaviana Lacambra-Saldivia was only serious physical injuries, not frustrated
homicide.
We find no merit in the appeal.
102
As to the issue on the applicability of Article 247 of the Revised Penal Code
to the case at bench, the principal question is whether or not appellant
killed his wife Marianita and Rolito as he caught them in the act of
committing the sexual act, or immediately thereafter. The appellant
contends that in that fateful afternoon of 22 February 1987, he entered a
room in the house of the Saldivia family and saw that his wife was “lying on
her back with her legs apart while the man was on top of her with his
buttocks between the parted legs of his wife.” Both the prosecution and
defense witnesses gave different versions as to the actual location, position
and condition of Marianita and Rolito at the time appellant saw them—in
short, whether they were engaged in the sexual act when allegedly caught
by the appellant in the afternoon of 22 February 1987.
It is noted that the trial court gave great weight to the testimony of the
prosecution witness, Romulo del Monte (the barangay tanod) whom the
trial court believed to be an unbiased witness, and who testified that when
he saw Marianita and Rolito on that fateful afternoon of 22 February 1987,
Marianita was fully dressed while Rolito was wearing Khaki pants without T-
shirt or naked up. The trial court said:
“The claim of the accused that he saw his wife lying on her back with her
legs apart while Rolito Saldivia was on top of her with his buttocks between
her parted legs is hard to believe if not unworthy of belief in view of his
testimony that the two were covered with blanket from their shoulders
down to their feet when he first saw them (pp. 26-27, t.s.n., 3/21/90).
Considering that Marianita Cabalhin and Rolito Saldivia were covered with
blanket from shoulders to feet, it is impossible for the accused to see their
exact position which he described in detail and what they were doing. The
testimony of the accused that his wife and Rolito Saldivia were both naked
while engaged in the carnal act was belied by Barangay Tanod Romulo del
Monte who went to the scene of the crime minutes after the stabbing
incident. Romulo del Monte, an unbiased witness, declared that when he
saw Nita Cabalhin and Lito Saldivia bloodied and sprawled on the bed in one
room of the house, Nita Cabalhin was fully dressed while Lito Saldivia was
wearing Khaki pants without T-shirt or naked up (pp. 20-21, t.s.n., 6/7/88). It
should be remembered that when this stabbing incident happened, the only
persons in the house of Wenceslao Saldivia were Robin Saldivia, Rolito
Saldivia, Flaviana Saldivia and Marianita Atison Cabalhin; Wenceslao Saldivia
was not at home as he was drinking and eating in the house of his friend
(pp. 3-4, t.s.n., 2/17/88); Robin Saldivia who was 13 years old, left their
house after the victims were stabbed to call and inform his father about the
incident; Marianita Atison Cabalhin died as a result of the stab wounds
inflicted upon her: Rolito Saldivia who was seriously wounded was then
fighting for life as he died also on the same day while Flaviana Saldivia was
also wounded on her breast and in serious condition. It is therefore, highly
inconceivable and improbable that the victims Rolito Saldivia and Marianita
Cabalhin could still put on their clothes if indeed they were naked.”7
It is settled rule that the findings of fact of trial courts are given great weight
on appeal because they are in a better position to examine the real
evidence, and observe the demeanor of the witnesses, and can therefore
discern if they are telling the truth or not.8 We therefore find no reversible
error committed by the trial court in appreciating the testimony of Romulo
del Monte. Hence, as to the factual issue of whether Marianita and Rolito
were engaged in sexual intercourse when allegedly caught by appellant, we
will respect the factual finding made by the trial court as the same is
supported by the evidence on record. Under Article 247 of the Revised
Penal Code, the killing of the wife by the husband (or vice-versa) is justified
if the husband kills her while engaged in sexual intercourse with another
man or immediately thereafter. As to the strict application of Article 247,
People vs. Wagas 9 teaches that:
“x x x The vindication of a Man’s honor is justified because of the scandal an
unfaithful wife creates; the law is strict on this, authorizing as it does, a man
to chastise her, even with death. But killing the errant spouse as a
purification is so severe as that it can only be justified when the unfaithful
spouse is caught in flagrante delicto; and it must be resorted to only with
great caution so much so that the law requires that it be inflicted only
during the sexual intercourse or immediately thereafter.”
Clearly, in the present case, appellant failed to prove that he killed
Marianita and Rolito while in the act of sexual intercourse or immediately
103
thereafter. Therefore, appellant can not invoke Article 247 to be exempt
from criminal liability. He is guilty of parricide under Article 246 of the Code,
which provides that any person who shall kill his or her spouse shall be
punished by the penalty of reclusion perpetua to death.
As to the second argument, appellant contends that he is guilty only of
serious physical injuries, not frustrated homicide as he had then no intent to
kill the victim, Flaviana.
In applying Article 24910 of the Revised Penal Code, the essential element
of intent to kill the victim must be clearly established in order to convict one
of the crime of homicide. The trial court ruled that there was intent to kill
on the part of the appellant, considering “the number and location of the
stab wounds inflicted upon the victim (Flaviana)—two stab wounds on the
lower right breast, and the weapon used by the accused which was a double
bladed dagger measuring about 13 inches long including the handle.”
Taking into consideration the number and location of the stab wounds
sustained by Flaviana, this court believes, as aptly observed by the trial
court, that there was intent to kill when appellant attacked and wounded
Flaviana. We, therefore uphold the ruling of the trial court finding appellant
guilty of frustrated homicide in having attacked Flaviana.
The trial court ruled that the appellant was entitled to two (2) mitigating
circumstances; the first, for having acted upon an impulse so powerful as
naturally to have produced passion or obsfuscation (as provided for in
Article 13, paragraph No. 6, of the Revised Penal Code) and, the second, for
voluntary surrender (Article 13, paragraph No. 7 of the same Code).
The records show that on 22 February 1987 appellant went to the house of
the Saldivia family after being informed that he would find there his wife
(Marianita) together with her alleged paramour, Rolito Saldivia. The
stabbing incident happened, according to the trial court, because appellant
acted upon an impulse so powerful as naturally to have produced passion or
obsfuscation. The evidence further discloses that after appellant stabbed
the three (3) victims, he voluntarily went to the Taytay Police Station on
that same night of 22 February 1987 and surrendered to Police Captain
Davan.

We uphold the ruling of the trial court in appreciating the two (2) mitigating
circumstances above-cited.

WHEREFORE, the decision of the Regional Trial Court of Antipolo, Rizal,

Branch 73, dated 27 March 1991, rendered in Criminal Cases Nos. 3081,
3082, and 3094 is hereby AFFIRMED in toto.

SO ORDERED.

104
G.R. No. 74515. June 14, 1989.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERTITO TRIGO, accused-
appellant.
Evidence; Witnesses; The testimony of one witness if credible and positive
and if it satisfies the court beyond reasonable doubt, is sufficient to
convict.—The issue in this case hinges on the credibility of prosecution
witness Marcos Fuentes. It is a well-established rule that in criminal
prosecutions on the matter of credibility of witnesses, the findings of the
trial court are given weight and the highest degree of respect by appellate
courts because the former is in a better position to decide the question,
having heard the witnesses themselves and observed their deportment and
manner of testifying during the trial (People vs. Kintuan, G.R. 84100,
December 3, 1987, 156 SCRA 195). We find no strong and cogent reason to
depart from this established rule. The testimony of Marcos Fuentes which
stated that he saw appellant stab his wife (p. 4, TSN, March 4, 1984) was
clear and positive. There was no showing of any ulterior motive on his part
to falsely charge the accused-appellant. The testimony of only one witness,
if credible and positive and if it satisfies the court beyond reasonable doubt
is sufficient to convict (see People v. Luces, L-60744, November 25,
1983,125 SCRA 813).
Criminal Law; Parricide; Motive is not essential if the identity of accused is
positively proved by the prosecution through its eye-witness.—Appellant
also submits that the prosecution did not prove the motive of appellant for
killing his wife. The law is well-settled that motive is relevant only where the
identity of the person accused of having committed the crime is in dispute,
where there are no eyewitnesses, and where suspicion is likely to fall upon a
number of persons. In the case at bar, the identity of the accused was
positively proved by the eyewitness. Hence, motive is irrelevant (People v.
Dueno, G.R. No. L-31102, May 5, 1979, 90 SCRA 23).
Evidence; Findings of fact of trial court should not be set aside unless there
is proof that it misapplied some facts of weight and substance as would
alter the result of the proceedings.—The direct and circumstantial evidence
established at the trial sufficiently prove the guilt of accused-appellant. As
105
aforestated, the trial court’s findings of fact are generally given due respect.
Appellant has the burden, therefore, to convince this Court that a departure
from this rule is justified upon satisfactory showing that the trial court
misapplied some facts of weight and substance as would alter the result of
the proceedings. He failed to do so.
Criminal Law; Mitigating Circumstances; Voluntary Surrender; The fact that
accused went to the police station to report the stabbing of his wife and to
seek police protection does not constitute voluntary surrender that will
mitigate his liability.—The court a quo appreciated in favor of the accused
the mitigating circumstance of voluntary surrender. We do not agree with
this finding. The accused himself testified that he went to the police station
to report that his wife was stabbed by Buaco and to seek protection as he
feared that Buaco would also stab him. Clearly, his action cannot in any
manner be considered as amounting to voluntary surrender. In any event,
the penalty of reclusion perpetua was correctly imposed by the said court.
APPEAL from the judgment of the Regional Trial Court of Roxas City, Br. 16.
The facts are stated in the opinion of the Court.
The Office of the Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MEDIALDEA, J.:
For the death of his wife, Alicia Dequina Trigo, the accused-appellant,
Bertito Trigo, was charged with the crime of PARRICIDE in Criminal Case No.
C-1790 of the Regional Trial Court, Branch 16, at Roxas City, and under the
information which reads:
“The undersigned accuses BERTITO TRIGO of the crime of Parricide,
committed as follows:
“That on or about 9:00 o’clock in the morning in May 30, 1983 at New Road
St., Municipality of Pontevedra, Province of Capiz, Philippines, within the
jurisdiction of this Court, the above-named accused, wilfully, unlawfully and
feloniously, with evident premeditation, that is, having conceived and
deliberated to kill his estranged wife ALICIA DEQUINA TRIGO, with whom he
was united in lawful wedlock, assault and stab his said wife with a knife
(sevillana), thereby inflicting stab wounds on the different parts of her body
which caused her death thereafter.
“CONTRARY TO LAW.” (p. 11, Rollo)
Upon being arraigned on January 9, 1984, Trigo entered the plea of not
guilty to the offense charged. Trial ensued. On September 16, 1985, the
court a quo rendered its decision convicting Trigo of the offense charged,
the dispositive portion of which reads:
“WHEREFORE, this Court finds the accused Bertito Trigo, 32 years old, guilty
beyond reasonable doubt of the crime of Parricide for killing his estranged
wife, Alicia Dequina Trigo, on May 30, 1983 in Pontevedra, Capiz, and
hereby sentences him, appreciating the mitigating circumstance of
voluntary surrender without any aggravating circumstance offsetting it, to
the penalty of RECLUSION PERPETUA (Revised Penal Code, Articles 246;
63(3), as (sic) to indemnify the heirs of his wife, his children in the care of
the children’s grandmother, Reynalda dela Fuente, or whoever has custody
over them, in the sum of P12,000.00, with the accessory penalties of the
law. Accused is given the benefit of Article 29 of the Revised Penal Code, as
amended.
“Costs against the accused.
“SO ORDERED.” (p. 30, Rollo)
Not satisfied with the decision, Trigo appealed and assigned the following
errors:
“I. THE COURT A QUO ERRED IN RELYING HEAVILY ON THE INCREDIBLE
TESTIMONY OF THE PROSECUTION WITNESS MARCOS FUENTES AND IN
ABSOLUTELY DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.
“II. THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.” (p. 1, Appellant’s
Brief; p. 44, Rollo)
106
The records show that the accused and his wife were married by the parish
priest of Panitan, Capiz on January 19, 1972 (Exhibits “D” to “D-3”, p. 256,
Records).
The prosecution’s version of the killing is based mainly on the testimony of
Marcos Fuentes. He testified, inter alia, that he knew the spouses Bertito
and Alicia Trigo because he bought from them their house located at Sitio
Umigon, Brgy. Tincupon, Panitan, Capiz, in 1982; that at about nine o’clock
in the morning of May 30, 1983, he was at the market of the town of
Pontevedra; that he met Alicia Trigo at the said market and even greeted
her; that he did not notice at the time whether Alicia was with a companion
or not; that after awhile, a commotion took place; that when he stood up he
saw Bertito Trigo stabbing Alicia; that he saw blood spurting from Alicia’s
left chest; that Bertito Trigo was at the time in front of Alicia and holding the
latter with one of his arms; that there were no other persons near Alicia
when he saw the latter bleeding; that Alicia later fell on the ground; and
that he was about 50 meters from where the incident took place.
The body of Alicia Trigo was examined by Dr. Ma. Roselle B. Gedang,
resident physician of the Provincial Hospital at Bailan, Pontevedra, Capiz.
The medical certificate dated February 4, 1984 indicated the following
pertinent physical findings, to wit:
“Multiple Stab wounds:
Right arm anterior aspect middle third about 2 cm. thru and thru;
Left arm anterior aspect—proximal third about 01 cm.;
Left forearm lateral aspect about 3 cm. thru and thru left side of the left
nipple chest;
Left chest wall—left side of the nipple and slightly below intering the 4th
intercostal space the penetrating perforating the heart;
Right hypogastric area about 1 cm. superficial;
Right lumbar area above the anterior superior iliac spine about 2.5 cm. mid
acillary line superficial;
Upon admission, patient was restless, chyne strokes respiration noted, B/P
not appreciated, pronounced dead.
Cause of Death:
Cardio respiratory arrest secondary to hemorrhage.” (p. 255, Records)
Accused, upon the other hand, denied that he killed his wife Alicia.
According to him, he and his wife were at the market to buy some goods for
their store; that while they were walking, he saw Orline Buaco draw from
his waist a weapon; that Buaco tried to stab him but he (accused) was able
to evade the blow; that it was his wife who got hit by the blow delivered by
Buaco; and after his wife was hit, Buaco successively stabbed her. He also
claimed that Orline Buaco is also a resident of Barangay Tincupon; that
Buaco had previously fired shots at the house of accused and his family on
November 19, 1982 because the accused had not paid his debt to Buaco in
the sum of P1,000.00; that such incident was recorded at the police
department and a complaint was filed by him against Buaco with the
Municipal Court of Panitan (TSN, February 13, 1985, pp. 51-62, Records).
Appellant submits that the trial court should not have relied on the
testimony of the prosecution witness Marcos Fuentes in view of the
inconsistencies and improbabilities found in his testimony. Appellant also
asserts that there is no evidence in the records to show that he had a
motive to kill his wife. After a careful review of the records, We find the
appeal to be without merit.
The issue in this case hinges on the credibility of prosecution witness
Marcos Fuentes. It is a well-established rule that in criminal prosecutions on
the matter of credibility of witnesses, the findings of the trial court are given
weight and the highest degree of respect by appellate courts because the
former is in a better position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of
testifying during the trial (People vs. Kintuan, G.R. 84100, December 3,
1987, 156 SCRA 195). We find no strong and cogent reason to depart from
this established rule. The testimony of Marcos Fuentes which stated that he
saw appellant stab his wife (p. 4, TSN, March 4, 1984) was clear and
107
positive. There was no showing of any ulterior motive on his part to falsely
charge the accused-appellant. The testimony of only one witness, if credible
and positive and if it satisfies the court beyond reasonable doubt is
sufficient to convict (see People v. Luces, L-60744, November 25, 1983, 125
SCRA 813).
We affirm the trial court’s finding when it declared that even as Marcos
Fuentes sort of wavered at the outset in his testimony, his declaration was
straight-forward even during the cross-examination; and that his court
testimony is a reiteration of his declaration in his sworn statement
supporting the complaint (p. 29, Rollo).
Appellant also submits that the prosecution did not prove the motive of
appellant for killing his wife. The law is well-settled that motive is relevant
only where the identity of the person accused of having committed the
crime is in dispute, where there are no eyewitnesses, and where suspicion is
likely to fall upon a number of persons. In the case at bar, the identity of the
accused was positively proved by the eyewitness. Hence, motive is
irrelevant (People v. Dueno, G.R. No. L-31102, May 5, 1979, 90 SCRA 23).
Further, We are not persuaded by appellant’s claim that it was not him but
a certain Orline Buaco who stabbed his wife. In rejecting this defense, the
trial court correctly observed significant factors/circumstances surrounding
the incident which be-lie appellant’s defense that it was not he who stabbed
and killed Alicia Trigo. Firstly, there is great improbability of Orline Buaco’s
alleged first attack hitting his wife if the said attack were aimed at accused.
Secondly, there is greater improbability of the deceased Alicia Trigo
sustaining multiple stab wounds if it were the appellant whom Buaco
wanted to stab as then the latter would have aimed all the five other thrusts
of the weapon at the accused and not at the deceased Alicia Trigo. Thirdly,
there was failure not only to shield her from the attack but also failure to
retaliate within the duration of the next five attacks upon the deceased.
Fourthly, knowing that his wife was already seriously wounded, the
appellant would not have left her alone in the care of a policeman especially
after Buaco had already fled, and there was no more danger that the latter
might attack him. Fifthly, after appellant had secured police protection at
the police station, appellant never returned to personally attend to his wife
and to ascertain if she received timely medical attention at the provincial
hospital at Bailan, Pontevedra. All these facts and circumstances were
considered by the trial court to bolster one thing—that accused was really
estranged from his wife and it was he who killed her.

The direct and circumstantial evidence established at the trial sufficiently

prove the guilt of accused-appellant. As aforestated, the trial court’s
findings of fact are generally given due respect. Appellant has the burden,
therefore, to convince this Court that a departure from this rule is justified
upon satisfactory showing that the trial court misapplied some facts of
weight and substance as would alter the result of the proceedings. He failed
to do so.

The court a quo appreciated in favor of the accused the mitigating

circumstance of voluntary surrender. We do not agree with this finding. The
accused himself testified that he went to the police station to report that his
wife was stabbed by Buaco and to seek protection as he feared that Buaco
would also stab him. Clearly, his action cannot in any manner be considered
as amounting to voluntary surrender. In any event, the penalty of reclusion
perpetua was correctly imposed by the said court.

The indemnity in the amount of P12,000.00 ordered by the court aquo to be

paid by the accused-appellant to the heirs of the deceased Alicia Trigo is
increased to P30,000.00.

ACCORDINGLY, with the modification above indicated, the judgment

appealed from is affirmed in all other respects, with costs.

SO ORDERED.

108
No. L-68699. September 22, 1986. *
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMOGENES
MAGDUENO, accused-appellant.
Evidence; The identification of the accused by three witnesses as the
gunwielder could not be doubted, the accused being a stranger to the place
and not known to the witnesses and the crime was committed in broad
daylight.—The appellant was a stranger in the town and was not known by
the three eyewitnesses before the incident. However, he was readily and
positively identified by the three eyewitnesses upon confrontation. They
could not have mistaken the appellant’s identity because they had a clear
view of him at the time and the incident happened in broad daylight. Any
doubt of his identity is erased by the testimony of Ernesto Mari Gonzales,
one of the eyewitnesses, to the effect that the man he saw pointing a gun to
the late Fiscal Dilig had a scar on his left temple below his left eyebrow. The
appellant, as observed by the lower court, has a scar below his left eye and
above the left eye at the eyebrow in the shape of a letter “J” and at the end
of the left eye somewhat shaped like the letter “V”, perpendicular to the
eyebrow.
Same; No motive was shown why the identifying witnesses would not tell
the truth.—The defense failed to show any motive on the part of these
eyewitnesses to falsely accuse the appellant as having committed the crime.
The appellant’s accusation that Cynthia Canto, one of the eyewitnesses
testified against him “to claim a reward” is not supported by any evidence
on record.
Same; Alibi is indefensible vs. positive identification, particularly where
physical presence of accused at crime scene not impossible.—In the light of
the positive identification of the appellant as the perpetrator of the crime,
his defense of alibi necessarily falls. His assertion that on the day of the
incident, he was at the house of Leonardo Senas in Plaridel, Aborlan,
Palawan deserves no credit. The appellant has not shown that it was
impossible for him to have been at the place of the incident at the time the
crime was committed. Moreover, as the lower court observed a bus ride
from Aborlan, Palawan, would take only a little more than two hours to the
city.
Same; Where victim was just about to drive his jeep when shot, treachery is
present.—The appellant fired two successive shots at the defenseless Fiscal
Dilig while the latter was still seated in his jeep, hitting him at the neck and
lumbar region. According to Dr. Rufino P. Ynzon, who performed the
autopsy, on the victim; both wounds were fatal and that “death will
definitely occur.” Immediately after the shooting, the appellant fled still
holding his firearm. The manner of the execution was such that the
appellant deliberately and consciously adopted means and ways of
committing the crime and insured its execution without risk to himself
arising from any defense Fiscal Dilig might make. The two conditions
necessary for treachery to exist are present.
Same; Fact that appellant called out “fiscal” before shooting him does not
negate treachery as purpose was only to assure himself that he was
shooting the correct person.—The fact that the appellant called out, “Fiscal”
before shooting the victim does not negate the presence of treachery in the
commission of the crime. Since the ap-pellant was a hired killer, he wanted
to insure that he was shooting the correct person. When Dilig turned his
face to find out who was calling him, the appellant fired immediately
rendering no opportunity for Dilig to defend himself.
Same; Appellant is a hired killer from Manila, especially im-ported to
Palawan to kill Fiscal Dilig.—Magdueño himself testified that he was
formerly an inmate of Muntinglupa who was later transferred to Sta. Lucia
Sub-Colony and released in 1973. He stated that after his release, he lived
with relatives in Divisoria and worked with an aunt as sidewalk vendor. He
explained his presence in Palawan on the day of the killing by claiming that
sometime in 1979 Leonardo Senas accidentally passed by their place in
Tabora and suggested that the appellant bring assorted merchandize to
Aborlan, Palawan where Senas resides. He, therefore, left for Palawan on
board the M/V Leon on September 28, 1980 (or shortly before the killing)
and visited Mauricio de Leon at Quito, Puerto Princesa, saw head-nurse
Mrs. Fernandez at Sta. Lucia, spent a night with a Mr. Obid at the Inagawan

109
Sub-Colony and proceeded to Aborlan, Palawan. He claims that at the time
of the shooting, he was in the house of Senas in Aborlan and learned only
from the radio about the killing of Fiscal Dilig.
Same; Hired-gun killing evidence of premeditation and reward.—We have
carefully examined the records and considering the testimony of the three
eyewitnesses to the shooting, their positive and categorical identification of
the appellant as the assailant, the corroborative evidence on the
circumstances of the killing, and the more than coincidental presence of
Magdueño in Palawan when he should have been in Manila, we see no error
in the lower court’s finding that the appellant committed the crime of
murder qualified by treachery and evident premeditation and aggravated by
price and reward Magdueño, in effect, also admitted that he was a recidivist
at the time of his trial. However, recidivism was not alleged in the
information and makes no difference in the determination of the penalty in
this case.
Same; Commission of crime with insult to public authority is not aggravating
where the victim is a public authority (a Fiscal).—However, the aggravating
circumstance of commission of a crime with insult to public authority does
not seem to be borne by the records. For this aggravating circumstance to
be considered it must not only be shown that the crime was committed in
the presence of the public authority but also that the crime was not
committed against the public authority himself. (U.S. v. Rodriguez, 19 Phil.
150; People v. Rizal, 103 SCRA 282). In the instant case Fiscal Dilig, the public
authority involved in the crime, was the victim. Hence, the lower court,
erred in including commission of the crime with insult to public authority as
an aggravating circumstance.
AUTOMATIC REVIEW of the decision of the Regional Trial Court of Palawan
and Puerto Princesa City.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Donato T. Faylona for accused-appellant.
110
PER CURIAM:
Before us for automatic review is the decision of the Regional Trial Court of
Palawan and Puerto Princesa City finding accused-appellant Hermogenes
Magdueño guilty beyond reasonable doubt of the crime of Murder qualified
by treachery and evident premeditation and aggravated by price or reward
and by the crime being committed in contempt of/or with insult to public
authority. The court sentenced Magdueño to suffer the penalty of DEATH
with all the accessory penalties provided by law and to pay the costs; and to
indemnify the heirs of the victim, Fernando M. Dilig in the sum of
P130,000.00 as actual damages and P20,000.00 as moral damages.
The amended information charged Hermogenes Magdueño, Apolinario
Sison, Teodorico Ramirez, Alejandro Guevarra, Alfredo Guevarra, and
Edgardo Casabay with having committed the crime of murder as follows:
“That on or about the 15th day of October, 1980, and for sometime prior
and subsequent thereto, in the City of Puerto Princesa, Philippines and in
Aborlan, Province of Palawan and within the jurisdiction of this Honorable
Court, the said accused, conspiring and confederating together and
mutually helping one another, did then and there wilfully, unlawfully and
feloniously have in their possession, custody and control a firearm, to wit:
one (1) 9MM automatic pistol, without having secured the necessary license
and/or permit to possess the same from the proper authorities; that at the
aforementioned time and place while the said accused were in possession
of the afore-described firearm, conspiring and con-federating together and
mutually helping one another, with treachery and evident premeditation,
with intent to kill and while armed with said firearm, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot one FERNANDO
M. DILIG, City Fiscal of Puerto Princesa City, thereby inflicting upon the
latter mortal wounds which were the direct and immediate cause of his
death, to the damage and prejudice of his death, (sic) to the damage and
prejudice of his heirs in the amount of TWO HUNDRED FIFTY THOUSAND
(P250,000.00) PESOS, Philippine Currency.
“CONTRARY TO LAW and committed with the aggravating circumstance of
treachery, evident premeditation that the crime was committed in
consideration of a price, reward or promise; and that the crime was
committed in contempt of or with insult to public authorities.”
The facts established by the prosecution and accepted by the lower court as
basis for the decision are summarized as follows:
“On October 15, 1980, a few minutes past 8:00 o’clock in the morning, as
soon as the late Fiscal Fernando M. Dilig had placed himself at the driver’s
seat inside his jeep parked near his house at the corner Roxas and D.
Mendoza Streets, Puerto Princesa City, all of a sudden, two successive
gunshots burst into the air, as the gunman coming from his left side aimed
and poured said shots into his body, inflicting two fatal wounds (Exhibit N)
that instantaneously caused his death. The autopsy report of Dr. Rufino P.
Ynzon, Puerto Princesa City Health Officer, described the wounds as follows:
“ ‘1. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by
contusion collar, 0.3 cm. in width almost evenly distributed around the
gunshot wound, located at the lateral aspect, neck, left, lower portion,
directed medially, slightly anteriorly, and upwards penetrating the
subcutaneous tissues and muscles, involving the left lateral portion of the
esophagus, then the right lateral portion of the hyroid bone, the right
common Carotid Artery, the right jugular vein, and piercing the sterno-
cleido Mastoid Muscle, then making a wound (exit), 1.3 cm. located at the
lateral aspect, neck, right, about 1½ inches below the angle of the
mandible.’
“ ‘2. Wound, gunshot, (entrance), 0.7 cm. in diameter, surrounded by
Contusion Collar, 0.3 cm. in width almost evenly distributed around the
gunshot wound, located at the lumbar region, left about 2 inches posteriorly
from the Mid-axillary line directed medially, slight anteriorly and slightly
upwards penetrating the sub-cutaneous tissues and muscles, then to the
abdominal cavity and involving the upper portion of the descending colon,
and the two loops of small intestines, then piercing the right abdominal
muscles, making a wound, (exit), 1.5 cm. located at the lumbar region, right,
about 1½ inches anterior to the mid-axillary line, right.’
111
“Three witnesses positively identified the assailant as accused Hermogenes
Magdueño: (1) Elena Adion Lim, while sitted (sic) at the gate of her fence,
about 20 to 30 meters away from the house of Fiscal Dilig, saw the gunman
coming from where she heard two successive shots when he passed by her
house, bringing a short gun in his right hand and a clutch bag while hurriedly
proceeding towards Liwanag Street. On October 30, 1980, she identified
accused Magdueño as the man she saw that early morning of October 15,
1980; (2) Ernesto Mari Y Gonzales, a security guard of the Malaria
Eradication Service, this City, while on board a tricycle, passing in front of
the house of Fiscal Dilig, on his way home, likewise heard the two gunshots
coming from the direction of Fiscal Dilig’s house, prompting him to order
the driver to stop. He described the gunman as wearing a white polo shirt,
blue pants and a hat, still holding the gun pointed at Fiscal Dilig. When the
gunman turned to his left side, Mari saw a scar on his left temple below his
left eyebrow. The man was still holding the gun in his right hand while
walking in a limping manner towards Mendoza Street. On the witness
chamber, he positively identified accused Hermogenes Magdueño as the
gunman; (3) Cynthia Canto, a taxi dancer, residing at Jose Abad Santos, this
City, while in front of the store of Aling Charing near the house of Fiscal
Dilig, waiting for a tricycle, saw the gunman standing by for a quite time,
then went nearer Fiscal Dilig who was then sitted (sic) on the driver’s seat of
his jeep and fired two successive shots to the latter, exiting towards
Mendoza Street. She could not be mistaken that accused Hermogenes
Magdueño was the gunman and when she came face to face with him at the
invitation of the police in Plaridel, Aborlan, Palawan, she readily identified
Magdueño as the killer.
Magdueño also executed an extra-judicial confession wherein he admitted
that he killed Fiscal Dilig for a price or reward and implicated Leonardo
Senas and Mauricio de Leon to the commission of the crime. However, both
Senas and de Leon were later dropped from the amended information for
lack of a prima facie case against them.
All the other accused were acquitted for insufficiency of evidence.
Gloria S. Dilig, the widow of the victim was presented as witness to prove
the civil aspects of the case. She testified on the actual damages the family
incurred and the moral damages she suffered as a result of the death of
Fiscal Dilig.
The dispositive portion of the trial court’s decision states:
“WHEREFORE, judgment is hereby rendered finding:
“1) Accused Hermogenes Magdueño guilty beyond reasonable doubt of the
crime of murder qualified by treachery and evident premeditation and
aggravated by price or reward and that the crime was committed in
contempt of/or with insult of public authority, and hereby sentences him to
suffer the SUPREME PENALTY OF DEATH, with all the accessory penalties
provided for by law, and to pay the costs. He is likewise ordered to
indemnify the heirs of the late Fernando M. Dilig in the sum of P130,000.00,
as actual damages and P20,000.00, as moral damages.
“2) Accused Alejandro Guevarra, Teodorico Ramirez, Jr., Edgardo Caabay,
Apolinario Sison and Alfredo Guevarra, not guilty of the crime of murder
and hereby acquits them of the charge against them. The bailbond posted
for the provisional liberty of accused Alejandro Guevarra, Teodorico
Ramirez, Jr., Edgardo Caabay and Alfredo Guevarra is hereby ordered
cancelled and the immediate release of accused Apolinario Sison is likewise
ordered unless held for any other cause.”
The appellant assigns the following errors allegedly committed by the lower
court:
I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED FOR MURDER.
II THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE ACCUSED’S
EXTRA-JUDICIAL CONFESSION.
We are convinced from the records that the appellant was the assailant of
the late Fiscal Fernando Dilig. The lower court did not err as alleged.
The appellant was a stranger in the town and was not known by the three
eyewitnesses before the incident. However, he was readily and positively
112
identified by the three eyewitnesses upon confrontation. They could not
have mistaken the appellant’s identity because they had a clear view of him
at the time and the incident happened in broad daylight. Any doubt of his
identity is erased by the testimony of Ernesto Mari Gonzales, one of the
eyewitnesses, to the effect that the man he saw pointing a gun to the late
Fiscal Dilig had a scar on his left temple below his left eyebrow. The
appellant, as observed by the lower court, has a scar below his left eye and
above the left eye at the eyebrow in the shape of a letter “J” and at the end
of the left eye somewhat shaped like the letter “V”, perpendicular to the
eyebrow.
The defense failed to show any motive on the part of these eyewitnesses to
falsely accuse the appellant as having committed the crime. The appellant’s
accusation that Cynthia Canto, one of the eyewitnesses testified against him
“to claim a reward” is not supported by any evidence on record.
In the light of the positive identification of the appellant as the perpetrator
of the crime, his defense of alibi necessarily falls. His assertion that on the
day of the incident, he was at the house of Leonardo Senas in Plaridel,
Aborlan, Palawan deserves no credit. The appellant has not shown that it
was impossible for him to have been at the place of the incident at the time
the crime was committed. Moreover, as the lower court observed a bus ride
from Aborlan, Palawan, would take only a little more than two hours to the
city.
Treachery in the commission of the crime is clearly established by the
record.
The appellant fired two successive shots at the defenseless Fiscal Dilig while
the latter was still seated in his jeep, hitting him at the neck and lumbar
region. According to Dr. Rufino P. Ynzon, who performed the autopsy, on
the victim; both wounds were fatal and that “death will definitely occur.”
Immediately after the shooting, the appellant fled still holding his firearm.
The manner of the execution was such that the appellant deliberately and
consciously adopted means and ways of committing the crime and insured
its execution without risk to himself arising from any defense Fiscal Dilig
might make. The two conditions necessary for treachery to exist are
present. (People v. Macariola, 120 SCRA 92; People v. Rhoda, 122 SCRA 909;
People v. Mahusay, 138 SCRA 452; and People v. Radomes, 141 SCRA 548).
The fact that the appellant called out, “Fiscal” before shooting the victim
does not negate the presence of treachery in the commission of the crime.
Since the appellant was a hired killer, he wanted to insure that he was
shooting the correct person. When Dilig turned his face to find out who was
calling him, the appellant fired immediately rendering no opportunity for
Dilig to defend himself.
The attendant circumstance of treachery qualifies the crime to murder. The
first assigned error is without merit.
The second assignment of error questions the trial court’s finding that the
extra-judicial confession was admissible.
The lower court quoted Section 20, Article IV of the Bill of Rights and took
pains to explain why there was compliance with its mandate. The court
commented on the imbalance present during custodial interrogations, the
strange and unfamiliar surroundings where seasoned and well-trained
investigators do their work, and then rejected the appellant’s allegations
that it was extracted through violence and torture.
The trial court stated:
“But a cursory evaluation of the evidence shows that accused Magdueño
was properly informed of his constitutional rights to remain silent and to
counsel, and that any statement he might make could be used against him.
He was allowed to communicate with, and was even given, a lawyer in the
person of Atty. Clarito A. Demaala, Jr. of the CLAO in this City. As certified to
by Atty. Demaala, Jr., he accused was placed under custodial investigation.
Even before it started, Atty. Demaala interviewed the accused and informed
him of his constitutional rights. NBI Officer-in-Charge Celso A. Castillo,
affirmed this particular fact. He was allowed to converse with his counsel in
his cell and the statement thus obtained from him, signed and subscribed by
him as true, whether inculpatory or exculpatory, in whole and in part, shall
be, as it is hereby, considered admissible in evidence. (Morales, et al. v.
113
Ponce Enrile, et al. L-61016; Moncupa, Jr. v. Ponce Enrile, et al. L-61107,
April 26, 1983.) It is presumed voluntary and no contrary evidence was
shown. (People v. Dorado, L-23464, 36 SCRA 452), There is spontaneity and
voluntariness in his extra-judicial confession which contains details that
cannot be furnished by the investigators on how the killing was planned, the
reward to be received and the scenario of the killing. (People v. Opiniano,
22 SCRA 177). Furthermore, it was corroborated by other evidence which
recites the true sequence of events. (People v. Pontanosa, 20 SCRA 249).
“With the admission of, and conformably to what the accused Hermogenes
Magdueño alleged in, his extra-judicial confession, the court finds that
accused Magdueño was hired by a ‘mysterious mastermind’ with whose
representative he agreed to kill Fiscal Dilig for a fee of P80,000.00, of which
he will receive a clean bill of P30,000.00. Sometime during the last week of
September, 1980, at his residence in Divisoria, Metro Manila, he agreed to
the proposition. The representative of the mastermind,’ Leonardo Senas,
gave him the advance payment of P5,000.00, with the balance of
P25,000.00 to be paid after he accomplished the mission. As to the gun he
used, it was a 9mm. automatic revolver. This confirms the finding of the NBI.
x x x.”
The records show that the CLAO lawyer, Atty. Clarito Demaala, entered his
appearance as counsel for the accused during the interrogation and was
present from the start of the investigation until it was finished
The evidence showing that the appellant was a contract or hired killer
especially contacted in Manila to do a job in Puerto Princesa is strengthened
by testimony.
Magdueño himself testified that he was formerly an inmate of Muntinglupa
who was later transferred to Sta. Lucia SubColony and released in 1973. He
stated that after his release, he lived with relatives in Divisoria and worked
with an aunt as sidewalk vendor. He explained his presence in Palawan on
the day of the killing by claiming that sometime in 1979 Leonardo Senas
accidentally passed by their place in Tabora and suggested that the
appellant bring assorted merchandize to Aborlan, Palawan where Senas
resides. He, therefore, left for Palawan on board the M/V Leon on
September 28, 1980 (or shortly before the killing) and visited Mauricio de
Leon at Quito, Puerto Princesa, saw head-nurse Mrs. Fernandez at Sta.
Lucia, spent a night with a Mr. Obid at the Inagawan SubColony and
proceeded to Aborlan, Palawan, He claims that at the time of the shooting,
he was in the house of Senas in Aborlan and learned only from the radio
about the killing of Fiscal Dilig.
One of the prosecution witnesses, Andres Factora, testified that he was
formerly an inmate in Muntinglupa since October 26, 1955 and that while
serving a sentence for triple death penalty, he met Magdueño, a leader of
the Sputnik Gang, also on death row. Magdueño was nicknamed “Mande”
and served as an attendant in the prison hospital. Factora stated that
Magdueño was known as a TIRADOR or killer while in prison. He further
testified that while he was in Sta. Lucia Sub-Colony in 1980, he saw
Magdueño on October 12 or 13 at the gate of Palawan Apitong. The reason
given by the appellant for his being there was that he was in the business of
bangus fry.
There is plenty of other testimony about the participation of the appellant
and the other accused and the defenses they presented. The trial court
summarized in its decision the testimonies of sixteen (16) prosecution
witnesses and twentyone (21) witnesses for the defense.
aggravating circumstance to be considered it must not only be shown that
the crime was committed in the presence of the public authority but also
that the crime was not committed against the public authority himself. (U.S.
v. Rodriguez, 19 Phil. 150; People v. Rizal, 103 SCRA 282). In the instant case
Fiscal Dilig, the public authority involved in the crime, was the victim.
Hence, the lower court, erred in including commission of the crime with
insult to public authority as an aggravating circumstance.
Considering the presence of an aggravating circumstance and the absence
of any mitigating circumstance attending the offense, the lower court
imposed the proper penalty on the appellant. The crime in this case is a
particularly heinous one. The appellant is shown by the records as a
heartless contract killer. Upon being paid for a job, he had no compunctions
about traveling all the way to Palawan from Manila, stalking and liquidating
an unwary victim whose only fault was to perform his duties faithfully.
WHEREFORE, the lower court’s judgment is hereby AFFIRMED.
SO ORDERED.

We have carefully examined the records and considering the testimony of

the three eyewitnesses to the shooting, their positive and categorical
identification of the appellant as the assailant, the corroborative evidence
on the circumstances of the killing, and the more than coincidental presence
of Magdueño in Palawan when he should have been in Manila, we see no
error in the lower court’s finding that the appellant committed the crime of
murder qualified by treachery and evident premeditation and aggravated by
price and reward. Magdueño, in effect, also admitted that he was a
recidivist at the time of his trial. However, recidivism was not alleged in the
information and makes no difference in the determination of the penalty in
this case.

However, the aggravating circumstance of commission of a crime with insult

to public authority does not seem to be borne by the records. For this
114
G.R. No. 95320. September 4, 1991.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BALTAZAR LACAO, SR.,
PATRIA LACAO and TRINIDAD LACAO MANSILLA, accused-appellants.
Criminal Procedure; Evidence; Self-Defense; By pleading self-defense,
Baltazar Lacao, Sr. necessarily admits that he killed the victim and he is thus
duty-bound to prove the essential requisites for this justifying
circumstance.—Appellant Baltazar Lacao, Sr., by pleading self-defense
necessarily admits that he killed the victim and he is thus duty-bound to
prove the essential requisites for this justifying circumstance. This
circumstance he has to prove by clear and convincing evidence, the onus
probandi having shifted to him.
Same; Same; Same; There can be no self-defense unless it is proven that
there has been unlawful aggression on the part of the person injured or
killed by the accused.—Said appellant also sought to buttress his defense by
claiming that Cpl. Inocencio, prior to the stabbing, fired his gun at the
former but the gun did not fire. This subterfuge is refuted by the
unequivocal statements of the prosecution witnesses that the victim never
removed his gun from his waistband, and that the revolver only fell when
appellants pushed the deceased. Significantly, this story of appellant
Baltazar Lacao, Sr. was never corroborated by any evidence of unlawful
aggression on the part of the victim. The first requisite of self-defense is
indispensable. There can be no self-defense unless it is proven that there
has been unlawful aggression on the part of the person injured or killed by
the accused. If there is no unlawful aggression, there is nothing to prevent
or to repel. The second requisite of self-defense will have no basis.
Same; Same; Alibi; In order to prosper, alibi must be convincing as to
preclude any doubt that the accused could not have been physically present
at the place of the crime or its vicinity at the time of the commission.—
Appellants Patria Lacao and Trinidad Mansilla were positively identified by
all the prosecution witnesses as the ones who hit the victim with stools
several times while the other three (3) male accused were stabbing the
victim with their knives. In their defense, Patria and Trinidad sought refuge
in the impuissant sanctuary of alibi. Trite as it is, we have to impress on
115
appellants once again the doctrine that alibi is the weakest defense an
accused can concoct. In order to prosper, it must be so convincing as to
preclude any doubt that the accused could not have been physically present
at the place of the crime or its vicinity at the time of the commission. In the
face of positive identification of the accused by eyewitnesses, an alibi
crumbles like a sand fortress.
Same; Same; Appellants Patria Lacao and Trinidad Mansilla were positively
identified by all the eyewitnesses for the prosecution who were without any
motive to falsely testify and implicate or point an unerring finger at the
three accused inside the courtroom as the perpetrators of the crime.—The
trial court definitely held that appellants “Patria Lacao and Trinidad Mansilla
were positively identified by all the eyewitnesses for the prosecution who
were without any motive to falsely testify and implicate or point an unerring
finger at the three accused inside the courtroom as the perpetrators of the
crime. Their disavowal of participation in the gory killing of Cpl. Inocencio
are selfserving and feeble attempts to disprove complicity and to which the
court gives scant consideration.” Indeed, the participatory acts of said
appellants having been testified to so clearly in detail by three (3)
eyewitnesses, to refute the same by the discreditable defense of alibi would
be an evidential travesty.
Same; Same; Where considerations of visibility are favorable and the
witnesses do not appear to be biased against the accused their assertions as
to the identity of the malefactor should be normally accepted.—
Identification of the culprits in this case was not difficult because the place
where the crime occurred was sufficiently lighted. Where considerations of
visibility are favorable and the witnesses do not appear to be biased against
the accused, their assertions as to the identity of the malefactor should be
normally accepted. This is more so when the witness is the victim or his near
relative because these witnesses usually strive to remember the faces of the
assailants.
Same; Same; Trial court gave credence to the prosecution’s identification of
the appellants as the culprits.—Moreover, the trial court gave credence to
the prosecution’s identification of the appellants as the culprits. Subject to
exceptions which do not obtain in this case, the trial court is in a better
position to decide this question, having seen and heard the witnesses
themselves and observed their deportment and manner of testifying during
the trial.
Same; Same; Conspiracy; The same degree of proof required to establish
the crime is required to support a finding of conspiracy that is proof beyond
reasonable doubt.—True, conspiracy is always predominantly mental in
composition because it consists primarily of the meeting of minds and,
generally, complicity may be inferred from circumstantial evidence, i.e., the
community of purpose and the unity of design in the contemporaneous or
simultaneous peformance of the act of assaulting the deceased. However,
conspiracy must be proved with as much certainty as the crime itself; The
same degree of proof required to establish the crime is required to support
a finding of conspiracy, that is, proof beyond reasonable doubt.
Same; Same; Same; Same; The spontaneity of their respective reactions
albeit resulting in an attack where they all participated rules out the
existence of a conspiracy.—The rapidity in the succession of such
consecutive acts of the assailants, with the last four coming instinctively, as
it were, to the aid of the original assailant, cannot but produce the
conclusion that their actuations were activated without prior or apparent
deliberation. lt does not even appear that there was a call or a signal from
one to the other to join the attack on Cpl. Inocencio, much less is there even
an intimation that they had such a murderous intent or cabal at any time
prior thereto. The spontaneity of their respective reactions, albeit resulting
in an attack where they all participated, rules out the existence of a
conspiracy.
Same: Same: Qualifying Circumstance; Treachery: There is treachery when
the offender commits any of the crimes against persons employing means,
methods, or forms in the execution thereof which tend directly and specially
to insure its execution without risk to himself arising from the defense
which the offended party might make.—Anent the issue on whether or not
treachery was properly appreciated as a qualifying circumstance, we agree
with the holding of the court below since this was sufficiently proven by the
116
evidence. It is elementary hornbook knowledge that there is treachery
when the offender commits any of the crimes against persons employing
means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the
defense which the offended party might make.
Same; Same; Same; Same; Treachery was thus correctly appreciated against
all appellants, the use of superior strength being absorbed as an integral
part of the treacherous mode of commission.—In the present case, the
deceased was stabbed without warning the moment he unsuspectingly
released the hand of Baltazar Lacao II. So sudden and unanticipated was the
attack that the victim was given no chance to defend himself. Then herein
appellants, although apparently acting without prior agreement, also
instantly and all together attacked him. Even if their aforesaid acts were
independently performed on their individual initiatives, such concerted
action ensured the commission of the crime without risk to them arising
from any defense or retaliation that the victim might have resorted to.
Treachery was thus Correctly appreciated against all appellants, the use of
superior strength being absorbed as an integral part of the treacherous
mode of commission.
Same; Same; Aggravating Circumstance; Recidivism; Lower court properly
considered recidivism since a pardon for a preceding offense does not
obliterate the fact that the accused is a recidivist upon his conviction of a
second offense embraced in the same title of the Code.—Appellant Baltazar
Lacao, Sr. admitted during the trial that he was once convicted of the crime
of homicide but he was granted an absolute pardon therefor. The lower
court properly considered recidivism since a pardon for a preceding offense
does not obliterate the fact that the accused is a recidivist upon his
conviction of a second offense embraced in the same title of the Code. This
aggravating circumstance of recidivism accordingly offsets the mitigating
circumstance of voluntary surrender by Baltazar Lacao, Sr.
Same; Same; Accomplices; Court holds appellants Patria Lacao and Trinidad
Lacao Mansilla guilty of the milder form of responsibility as accomplices.—
With respect to appellants Patria Lacao and Trinidad Lacao Mansilla, they
did cooperate in the execution of the offense by simultaneous acts which,
although not indispensable to the commission of the offense, bore a
relation to the acts done by the principal and supplied material or moral aid
in the execution of the crime in an efficacious way. Since they were aware
of the criminal intent of the principals and having participated in such
murderous criminal design sans a conspiracy, we hold them guilty of the
milder form of responsibility as accomplices.
APPEAL from the judgment of the Regional Trial Court of Mambusao, Capiz,
Br. 21.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Geomer C. Delfin for accused-appellants.
REGALADO, J.:
In an information filed on February 3, 1986 and docketed as
Criminal Case No. 1416 in the Regional Trial Court of Capiz, Branch XXI,
Baltazar Lacao, Sr., alias “Bantan”, Patria Lacao, Trinidad Mansilla, Baltazar
Lacao II, alias “Boticol,” and Baltazar Lacao III, alias “Toto,” were charged
with the complex crime of murder with direct assault upon an agent of a
person in authority allegedly committed as follows:
“That on or about the 28th day of September, 1985, at around 10:00 o’clock
in the evening, in Brgy. Manibad, Municipality of Mambusao, Province of
Capiz, and within the jurisdiction of this Court, the above-named accused
armed with knives and wooden stools, conspiring, confederating and
mutually helping one another, did then and there wilfully, unlawfully and
feloniously, with evident premeditation, treachery and taking advantage of
nighttime and superior strength to better facilitate the commission of the
offense, assault, attack and hit one POLICE CORPORAL JOSE G. INOCENCIO,
JR., an agent of person in authority while in the actual performance of his
official duties, thereby inflicting upon the latter several injuries on the
117
different parts of his body which caused his instanteneous death; that due
to the death of said Police Corporal Jose G. Inocencio, Jr. and the
consequent loss of his earning capacity, his heirs have suffered and are
entitled to an indemnity in the sum of P30,000.00 plus moral and exemplary
damages.
“That accused Baltazar Lacao, Sr., alias ‘Bantan’, has been previously
convicted by final judgment of the crime of homicide.
“CONTRARY TO LAW."1
Upon arraignment, herein accused-appellant Baltazar Lacao, Sr. admitted
killing the victim but interposed self-defense, hence a plea of not guilty was
entered in his behalf, while Patria Lacao and Trinidad Mansilla pleaded not
guilty. The other two accused, Baltazar Lacao II and Baltazar Lacao III, were
not apprehended and have remained at large.
The facts found by the trial court, as established by unassailable evidence
adduced at the trial, are as follows: At about 10:00 o’clock in the evening of
September 28, 1985, prosecution witness Mila Parto was at her house in
Barangay Manibad attending to persons who came to the wake of her aunt,
Nemesia Lacao. Mila Parto is the sister-in-law of the deceased Police Cpl.
Jose G. Inocencio, Jr. While she was so engaged, she heard and witnessed a
commotion at the first floor of the two-storey house and the events that
took place thereafter; The commotion arose from a card game where one
Mansueto Rivera was losing and accused Baltazar Lacao II, who was playing
with him, was furiously arguing with the former. Baltazar Lacao II then
unsheathed his knife and threatened Mansueto Rivera by pointing the knife
at the latter’s neck. Wilma Rivera, the sister-inlaw of Mansueto, intervened
and Baltazar Lacao II released the latter. Baltazar Lacao II then went inside
the house wielding his knife and causing the other guests to panic.
It was then that Cpl. Jose G. lnocencio, Jr. went down to inquire into the
matter and to pacify the people. When he saw Baltazar Lacao Il with a knife,
he held the latter’s hand holding that knife. Baltazar Lacao II then said:
“Nyor, release me.” As Cpl. Inocencio did not release him, the latter’s
mother, Patria Lacao, then said: “Nyor, release my son.” When Cpl.
Inocencio released Baltazar Lacao II, the latter suddenly stabbed Inocencio
on his right side. Baltazar Lacao, Sr. and his other son. Baltazar Lacao III,
together with his wife, Patria Lacao, and his sister, Trinidad Lacao Mansilla,
rushed inside the house and surrounded the victim.
The men then stabbed Cpl. Inocencio several times while the women hit him
with stools. As the attack continued, the victim was pushed toward the door
of the kitchen and he later slumped on the floor facing downward. Baltazar
Lacao, Sr. then sat astride him and continued stabbing the latter as he was
thus lying prostrate. Thereafter, this appellant asked: “Nyor, Nyor, are you
still alive?” Appellant Patria Lacao interjected: “What are you waiting for, it
is already finished, we have to go.” Baltazar Lacao III then got the gun of Cpl.
Inocencio and all the accused went away.2
All the foregoing facts were clearly and categorically established by said
prosecution witness. unshaken and unaffected by the gruelling cross-
examination to which she was subjected. In the process she categorically
identified the three appellants
then present in the courtroom, as well as the knives and the stools used
against the victim in the commission of the crime, Ample and credible
corroboration was afforded by the straightforward testimonies of two other
eyewitnesses, Isabel Llorente3 and the victim’s widow, Nelfa Inocencio,4
who were admittedly present at the scene and the time of the bloody
incident.
After an examination of the body of the deceased by Dr. Abel P. Martinez, a
medico-legal officer and rural health physician, the following autopsy report
was submitted and thereafter admitted in evidence:
“PERTINENT POST-MORTEM FINDINGS ON THE BODY OF P/ CPL. JOSE G.
INOCENCIO, JR. DONE AT MAMBUSAO, CAPIZ, ON SEPTEMBER 29, 1985 at
4:30 AM:
1. Rigor mortis—present.
2. Livor mortis—present.
118
3. Lacerated wound about 1" dia. located at the left frontopa reital region of
the head, superficial.
4. Stab wound, about 3/4" dia. located at the level of 31CS MCL, left, going
postero-inferiorly reaching the anterior pericardium.
5. Stab wound, about 3/4" dia. located at the level of 31CS 1" lateral to MCL
right, going postero-inferiorly reaching the right lung tissue.
6. Stab wound, about 2–1/2" horizontally located at the subcostal area, MCL
right, going postero-superiorly hitting the liver.
7. Stab wound 1" dia. located at the level of 51CS AAL, right, going medio-
superiorly reaching the right Iung.
8. Stab wound, about 2" dia. located at the level of the 10ICS AAL right,
going media-superiorly reaching the right lung.
9. Incised wound, about 1/2" dia. superficially located at the superior
portion of the posterior elbow.
10. Stab wound, about 1/2" dia. located at the base of the neck, left going
medio-inferiorly reaching the body of the cervical vertebra.
11. Stab wound, about 1" dia. diag. located at the supra-scapular region, left
going antero-inferiorly reaching the left lung.
12. Two stab wounds superimposed to one another located at the scapular
region, left, superficial, reaching the scapula.
13. Stab wound about 1–1/2" dia. perpendicularly located at the
midscapular region,superficial, reaching the body of the scapula.
14. Stab wound, about 1" dia. located at the left paravertebral line 10T, left
hitting the rib.
15. Stab wound, about 1" dia. located at the left paravert, line 1L,
superficial, hitting the underlying muscles.
16. Stab wound, 1" dia. located 2" lateral to Wd 15 going anteromedially
hitting the underlying muscles.
CAUSE OF DEATH: CARDIAC TAMPONADE SEVERE INTERNAL AND EXTERNAL
HEMORRHAGES SECONDARY TO THE HEREIN INFLICTED WOUNDS."5
After trial, the court a quo rendered judgment convicting the three
appellants of the crime charged, imposing on them the penalty of reclusion
perpetua, and ordering them to indemnify the heirs of the victim in the sum
of P30,000.00 for his death, P9,250.00 as actual damages, plus P100,000.00
as moral damages, without subsidiary imprisonment in case of insolvency,
and to pay the costs.6
In their present recourse, appellants assign the following errors:
I V
THAT THE TRIAL COURT ERRED IN FINDING THE ACCUSEDAPPELLANTS
BALTAZAR LACAO, SR., PATRIA LACAO AND TRINIDAD LACAO MANSILLA
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER WITH
DIRECT ASSAULT UPON AN AGENT OF PERSON IN AUTHORITY PURSUANT TO
THE PROVISION OF ARTICLES 248 AND 148 IN RELATION TO ARTICLE 48 OF
THE REVISED PENAL CODE, AS AMENDED, WHERE THE TRIAL COURT
SENTENCES EACH OF THEM TO SUFFER THE PENALTY OF RECLUSION
PERPETUA AND TO INDEMNIFY THE HEIRS OF THE VICTIM P/CPL JOSE
INOCENCIO, JR. IN THE SUM OF THIRTY THOUSAND PESOS (P30,000.00) FOR
HIS DEATH: PLUS P9,250.00 AS ACTUAL DAMAGES; PLUS P1 00,000.00
MORAL DAMAGES AND TO PAY THE COST OF THE SUIT.
II
THAT THE TRIAL COURT ERRED IN NOT FINDING THAT THE ACCUSED-
APPELLANT BALTAZAR LACAO, SR. ACTED IN COMPLETE SELF-DEFENSE
WHEN HE STABBED THE DECEASED JOSE INOCENCIO, JR.
III
THAT THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY AS A
QUALIFYING CIRCUMSTANCE ATTENDED IN THE KILLING OF JOSE
INOCENCIO BY ALL ACCUSED-APPELLANTS.
IV
119
THAT THE TRIAL COURT ERRED IN HOLDING APPELLANTS PATRIA LACAO
AND TRINIDAD MANSILLA GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF MURDER WITH DIRECT ASSAULT NOTWITHSTANDING THE FACT
THAT THEY HAVE NOT PERFORMED OVERT ACT SHOWING CONSPIRACY FOR
MERE KNOWLEDGE, ACQUIESCENCE OR APPROVAL OF THE ACT, WITHOUT
COOPERATION IS NOT ENOUGH TO CONSTITUTE ONE A PARTY TO A
CONSPIRACY, AND THAT THE TRIAL COURT ERRED IN NOT HOLDING THAT
APPELLANTS TRINIDAD MANSILLA AND PATRIA LACAO NOT HAVING
CONSPIRED WITH BALTAZAR LACAO, SR. IN KILLING THE VICTIM JOSE
INOCENCIO, JR. TREACHERY CANNOT BE CONSIDERED AGAINST THEM.
THAT THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT
BALTAZAR LACAO, SR. ON SELF-DEFENSE AND IN NOT ACQUITTING THE
ACCUSED-APPELLANTS PATRIA LACAO AND TRINIDAD MANSILLA FOR
FAILURE OF THE PROSECUTION TO ESTABLISH THE GUILT OF SAID ACCUSED
BEYOND REASONABLE DOUBT."7
The main thrust of the defense is that appellant Baltazar Lacao, Sr. acted in
self-defense since Cpl. Jose Inocencio, Jr. attempted to shoot him but the
gun did not fire. Said appellant allegedly grabbed the gun and stabbed the
deceased more than five (5) times.8
The other appellants, Trinidad Mansilla and Patria Lacao, interposed the
defense of alibi. Their version is that at 7:30 in the evening of September 28,
1985, they and one Consolacion Lago went to the wake at Barangay
Manibad. They prayed and, at about 9:30 A.M., they went home but
Baltazar, Sr. was left behind.9 Baltazar Lacao II was alleged to be sleeping in
their house and Baltazar Lacao III was said to be then in Roxas City studying
at the La Purisima College.10
The Court finds the appeal to be devoid of merit.
Appellant Baltazar Lacao, Sr., by pleading self-defense necessarily admits
that he killed the victim and he is thus dutybound to prove the essential
requisites for this justifying circumstance.11 This circumstance he has to
prove by clear and convincing evidence,12 the onus probandi having shifted
to him.
Now, this appellant admitted stabbing the victim more than five (5) times.
As seen from the medico-legal report, the victim actually suffered fifteen
(15) stab wounds, that the cause of death was hemorrhage and multiple
stab wounds,13 and that most of the injuries inflicted were indeed fatal. It
cannot now be denied that, even indulging said appellant in his theory, he
definitely exceeded the limits of what is necessary to suppress an alleged
unlawful aggression directed to him by the victim. In fact, from the
eyewitness accounts, he even continued stabbing the victim who was
already slumped prone and helpless.
Said appellant also sought to buttress his defense by claiming that Cpl.
Inocencio, prior to the stabbing, fired his gun at the former but the gun did
not fire. This subterfuge is refuted by the unequivocal statements of the
prosecution witnesses that the victim never removed his gun from his
waistband,14 and that the revolver only fell when appellants pushed the
deceased.15 Significantly, this story of appellant Baltazar Lacao, Sr. was
never corroborated by any evidence of unlawful aggression on the part of
the victim. The first requisite of self-defense is indispensable. There can be
no self-defense unless it is proven that there has been unlawful aggression
on the part of the person injured or killed by the accused. If there is no
unlawful aggression, there is nothing to prevent or to repel. The second
requisite of self-defense will have no basis.16
We also take note of the finding of the court below that none of the six (6)
bullets recovered from the gun showed any sign or mark that the gun was
ever fired. Had the gun been fired, the base of at least one bullet would
have been impressed in the center by the corresponding indentation caused
by the impact thereon by the firing pin of the revolver when the trigger is
pulled. The absence of such physical evidence further sustains the holding
of the trial court that even the first element of selfdefense has not been
proved despite said appellant’s protestations.
Appellants Patria Lacao and Trinidad Mansilla were positively identified by
all the prosecution witnesses as the ones who hit the victim with stools
120
several times while the other three (3) male accused were stabbing the
victim with their knives. In their defense, Patria and Trinidad sought refuge
in the impuissant sanctuary of alibi. Trite as it is, we have to impress on
appellants once again the doctrine that alibi is the weakest defense an
accused can concoct. In order to prosper, it must be so convincing as to
preclude any doubt that the accused could not have been physically present
at the place of the crime or its vicinity at the time of the commission. In the
face of positive identification of the accused by eyewitnesses, an alibi
crumbles like a sand fortress.17
The trial court definitely held that appellants “Patria Lacao
and Trinidad Mansilla were positively identified by all the eyewitnesses for
the prosecution who were without any motive to falsely testify and
implicate or point an unerring finger at the three accused inside the
courtroom as the perpetrators of the crime, Their disavowal of participation
in the gory killing of Cpl. Inocencio are self-serving and feeble attempts to
disprove complicity and to which the court gives scant consideration."18
Indeed, the participatory acts of said appellants having been testified to so
clearly in detail by three (3) eyewitnesses, to refute the same by the
discreditable defense of alibi would be an evidential travesty.
Identification of the culprits in this case was not difficult because the place
where the crime occurred was sufficiently lighted. Where considerations of
visibility are favorable and the witnesses do not appear to be biased against
the accused, their assertions as to the identity of the malefactor should be
normally accepted. This is more so when the witness is the victim or his near
relative because these witnesses usually strive to remember the faces of the
assailants. Moreover, the trial court gave credence to the prosecution’s
identification of the appellants as the culprits. Subject to exceptions which
do not obtain in this case, the trial court is in a better position to decide this
question, having seen and heard the witnesses themselves and observed
their deportment and manner of testifying during the trial.19
The Court, however, is not favorably impressed with the prosecution’s
theory that the assailants acted pursuant to a conspiracy just because they
apparently acted in unison in attacking the victim. True, conspiracy is always
predominantly mental in composition because it consists primarily of the
meeting of minds and, generally, complicity may be inferred from
circumstantial evidence, i.e., the community of purpose and the unity of
design in the contemporaneous or simultaneous performance of the act of
assaulting the deceased.20 However, conspiracy must be proved with as
much certainty as the crime itself.21 The same degree of proof required to
establish the crime is required to support a finding of conspiracy,22 that is,
proof beyond reasonable doubt.23
At the very least, conspiracy presupposes a prior agreement or
contemporaneous understanding on the part of the conspirators to commit
a felony, in this case, to kill Cpl. Inocencio. A dispassionate appraisal of the
facts readily reveals, however, that the attack on the victim originated
spontaneously from and was initiated unexpectedly by Baltazar Lacao II.
Appellant Baltazar Lacao, Sr. and his other son, Baltazar Lacao III,
immediately joined in the fray by attacking the victim with their knives,
whereupon the two female appellants, also assisted their menfolk by hitting
the victim with stools.
The rapidity in the succession of such consecutive acts of the assailants,
with the last four coming instinctively, as it were, to the aid of the original
assailant, cannot but produce the conclusion that their actuations were
activated without prior or apparent deliberation. It does not even appear
that there was a call or a signal from one to the other to join the attack on
Cpl. Inocencio, much less is there even an intimation that they had such a
murderous intent or cabal at any time prior thereto. The spontaneity of
their respective reactions, albeit resulting in an attack where they all
participated, rules out the existence of a conspiracy.
As a consequence, therefore, the respective liabilities of appellants shall be
determined by the nature of their individual participations in the felonious
act.24 It is understood, however, that whatever liabilities may attach to
Baltazar Lacao II and Baltazar Lacao III are not concluded by the dispositions
herein nor shall they be bound by the discussions in this opinion on their
putative participations in the crime charged.
121
Anent the issue on whether or not treachery was properly appreciated as a
qualifying circumstance, we agree with the holding of the court below since
this was sufficiently proven by the evidence. It is elementary hornbook
knowledge that there is treachery when the offender commits any of the
crimes against persons employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party
might make.25
In the present case, the deceased was stabbed without warning the
moment he unsuspectingly released the hand of Baltezar Lacao II. So
sudden and unanticipated was the attack that the victim was given no
chance to defend himself. Then herein appellants, although apparently
acting without prior agreement, also instantly and all together attacked him.
Even if their aforesaid acts were independently performed on their
individual initiatives, such concerted action ensured the commission of the
crime without risk to them arising from any defense or retaliation that the
victim might have resorted to. Treachery was thus correctly appreciated
against all appellants, the use of superior strength being absorbed as an
integral part of the treacherous mode of commission.
Appellant Baltazar Lacao, Sr. admitted during the trial that he was once
convicted of the crime of homicide but he was granted an absolute pardon
therefor.26 The lower court properly considered recidivism since a pardon
for a preceding offense does not obliterate the fact that the accused is a
recidivist upon his conviction of a second offense embraced in the same title
of the Code.27 This aggravating circumstance of recidivism accordingly
offsets the mitigating circumstance of voluntary surrender by Baltazar
Lacao, Sr.
With respect to appellants Patria Lacao and Trinidad Lacao Mansilla, they
did cooperate in the execution of the offense by simultaneous acts which,
although not indispensable to the commission of the offense, bore a
relation to the acts done by the
principal and supplied material or moral aid in the execution of the crime in
an efficacious way.28 Since they were aware of the criminal intent of the
principals and having participated in such murderous criminal design sans a
conspiracy, we hold them guilty of the milder form of responsibility as
accomplices.29

The penalty for the complex crime at bar is that for the graver offense, the
same to be applied in its maximum period. No modifying circumstance can
be considered for or against herein appellants. With the proscription against
the imposition of the death sentence, the trial court correctly sentenced
appellant Baltazar Lacao, Sr. to suffer reclusion perpetua. Appellants Patria
Lacao and Trinidad Lacao Mansilla are hereby sentenced to serve an
indeterminate penalty 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. The death indemnity is hereby increased to P50,000.00 in
accordance with the present policy on the matter, with appellant Baltazar
Lacao, Sr. primarily liable for P40,000.00 and appellants Patria Lacao and
Trinidad Lacao Mansilla for P10,000.00, subject to the provisions of Article
110 of the Revised Penal Code.

WHEREFORE, with the foregoing modifications, the judgment of the trial

court is hereby AFFIRMED.

SO ORDERED.

122
G.R. No. 81404. January 28, 1991.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISRAEL CARMINA
alias “Boy” and VALERO CARMINA, accused. VALERO CARMINA, accused-
appellant.
Criminal Law; Murder; Conspiracy; Conspiracy is present when the accused
acted in concert in the conception and execution of the killing.—While it is
true that it was not he who actually shot and later dismembered Jose
Agotano, the evidence has clearly established a conspiracy between him
and his son that makes him equally guilty with the latter. The two of them
acted in concert in the conception and execution of the killing. The decision
to kill Billy was reached by the two of them although it was Israel who
personally implemented it. While Israel did his part in the killing yard, Valero
detained Victoriano in the house at gunpoint and watched the shooting and
dismemberment of Billy. As a father, Valero made no move to restrain his
son; on the contrary, he watched with approval as Israel carried out their
joint decision.
Same; Same; Treachery; There is treachery, when, although the victim was
forewarned of his impending death, he was shot in the back while he was
entirely defenseless and the killers were under no risk whatsoever from any
retaliation the victim might make.—The crime was qualified with treachery
because, although the victim was forewarned of his impending death, he
was shot in the back while he was entirely defenseless and the killers were
under no risk whatsoever from any retaliation the victim might make. In
People v. Barba, the accused pointed a rifle at the victim from a distance of
six meters and said, “Pardong, stand up, we are going to shoot you!” with
hands raised, the victim pleaded, “Do not kill me, investigate first what was
my fault!” This Court held there was treachery when the accused shot and
killed the victim.
Same; Same; Even if treachery were not present, the crime would still be
murder because the accused “outraged or scoffed” at the victim’s corpse,
when they dismembered it.—Even if treachery were not present in this
case, the crime would still be murder because of the dismemberment of the
dead body. One of the qualifying circumstances of murder under Article
123
248, par. 6, of the Revised Penal Code is “outraging or scoffing at (the)
person or corpse” of the victim. There is no question that the corpse of Billy
Agotano was outraged when it was dismembered with the cutting off of the
head and limbs and the opening up of the body to remove the intestines,
lungs and liver. The killer scoffed at the dead when the intestines were
removed and hung around Victoriano’s neck “as a necklace” and the lungs
and liver were facetiously described as “pulutan.”
Same; Same; Evident Premeditation; Evident premeditation cannot be
appreciated against the accused because sufficient time had not elapsed
between the determination to commit the crime and its execution.—We
agree with the trial court that evident premeditation should be disregarded
because sufficient time had not elapsed between the determination to
commit the crime and its execution, to enable the accused to reflect upon
the consequences of their act. It is not certain that when early in that
afternoon, Valero told the captives in Megriño’s house that they would die,
the Carminas had already definitely resolved to commit the murder. In fact,
although the threat was made to all of the captives, only Billy was killed in
the end. Moreover, there was no showing that they had coolly and
dispassionately planned the execution of the offense. The events leading to
the murder suggest that the Carminas were from the start busy with
oppressing the Agotanos or drinking tuba, leaving no time for that detached
and undisturbed premeditation of the murder. It was only when they were
in Katiad’s house that the decision to kill Billy was made, the justification
being that “we have already maltreated him, this time we will just finish him
because he might retaliate.”
Same; Same; Ignominy; Ignominy cannot be considered against the accused
because the victim was already dead when his body was dismembered.—
But it was incorrect to appreciate adding ignominy to the offense because
the victim was already dead when his body was dismembered. This
aggravating circumstance requires that the offense be committed in a
manner that tends to make its effects more humiliating to the victim, that
is, add to his moral suffering.
APPEAL from the decision of the Regional Trial Court of Mati, Davao
Oriental. Berba, J.
The facts are stated in the opinion of the Court.
CRUZ, J.:
The grisly details of the killing cannot be told without revulsion, but they
must be told. It is unbelievable that it happened in this day and age and not
in a distant and savage time when brutality was a way of life and death
when it came aroused no special reverence. This case belongs to that
barbaric past.
The victim was Jose Billy Agotano, who was only twenty years old when he
was killed in cold blood. According to the prosecution, the killers were
Valero Carmina, the herein accused-appellant, and his son Israel Carmina,
also known as Boy.
The two were charged before the Regional Trial Court of Mati, Davao
Oriental, in an information reading as follows:
That on or about November 15, 1986, in the Municipality of Tarragona,
Province of Davao Oriental, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with treachery and evident premeditation,
armed with garand rifles and sharp-pointed bolo (pinuti), and with intent to
kill, did then and there wilfully, unlawfully and feloniously attack, assault
and shoot with said garand rifle one JOSE BILLY AGOTANO, thereby inflicting
upon the latter wound which caused his death, and not contended with
that, with the use of the said bolo, accused slaughtered the dead body of
said Jose Billy Agotano.
The commission of the crime was attended by the aggravating
circumstances of abuse of superior strength and adding ignominy to the
natural effects of the crime.
Only Valero Carmina could be arraigned and tried because Israel
disappeared and remains at large to date. After trial, the accused-appellant
was found guilty and sentenced to life imprisonment.** He was also
124
required to pay civil indemnity in the amount of P30,000.00 to the victim’s
heirs plus the costs of the suit.1
The case for the prosecution was established mainly through the testimony
of two eyewitnesses, namely, Victoriano Agotano, the victim’s brother, and
Ramon Katiad, in whose yard the crime was committed.
Victoriano testified that he and Billy were on their way home from their
farm when they were intercepted at gunpoint by Valero, his wife Ernita,
their son Israel, and Aileen Masanguid at about 2:30 o’clock in the
afternoon of November 15, 1986. Valero had a carbine, Israel a Garand rifle
and a hunting knife, and Ernita a bolo at her waist. The group accused Billy
of being a “pulahan” because of the red t-shirt he had wrapped around his
head to cover it from the rain. The two of them were taken to the nearby
house of Dionisio Megriño, where Billy was struck in the forehead by Valero
and in the chest by Israel with the handle of their respective firearms.
The group stayed there for about thirty minutes, and then Victoriano and
Billy were ordered to march to their brother Alfredo’s house, with their
captors trailing them closely. He, Billy and Alfredo, together with two other
persons named Pilo and Roger, who happened to be in the house at the
time, were ordered to fall in line and sing “Bayang Magiliw.” When they
reached the line “Ang mamatay nang dahil sa iyo,” Valero and Israel told
them, “You shall die.” Twenty minutes later, they were all taken to a cousin
of the Agotanos from whom the
Carminas demanded tuba, rice and chickens. Alfredo, Roger and Pilo were
forced to drink the tuba with Valero and Israel. The drinking lasted for two
hours. Then the Carminas decided to leave, taking with them Victoriano and
Billy, who were ordered to carry a kettle, the rice and the chickens.
The group walked to the house of Ramon Katiad about one and a half
kilometers away and arrived there at 6:30 p.m. Katiad was not there at the
time but came home at about seven o’clock. The Agotanos cooked the rice
and roasted the chickens which they and the Carminas ate. Katiad and his
family had their own supper later.
At about ten o’clock, Israel told Billy, “You can no longer be home, Do.”
When asked why, he replied: “Because you are wearing a red cloth around
your head.” Katiad pleaded that Israel not do anything in his house but
Israel said, “I am going to kill him.” In desperation and fear, Victoriano told
Billy to kneel before Israel and beg for his life, which Billy did. But to no
avail. Israel took Billy with him downstairs while Valero detained Victoriano
in the house, pointing his rifle at him. In the yard, Israel pushed Billy from
behind and then shot him, hitting him in the nape. Billy died as he fell to the
ground. Israel then stripped and exposed the dead body. He went back to
the house to get his mother’s bolo and ordered Victoriano to go down and
look at his brother’s corpse. The Katiad family (including the children) was
also told to go to the yard. When everyone had gathered around the dead
body, they watched in horror at the gruesome acts that followed.
Israel chopped off Billy’s arms and legs. Then he beheaded the corpse and,
raising the severed head, shouted “Taganlang,” meaning God. He cut open
the stomach and pulled out the intestines. He hung these around
Victoriano’s neck, saying, “You use this as your necklace, the intestines of
your younger brother.” Going back to the dismembered corpse, he pulled
out the liver and the lungs. Triumphantly raising them, he shouted. “We will
use this as pulutan!”
Having done all this, Israel then turned his attention to Victoriano and said,
“I will kill you next!” He lunged at Victoriano but lost his balance and the
latter was able to parry the blow. Victoriano ran for his life! It was, as he put
it later, “a suicide run.” Israel pursued and took a shot at him but missed.
Victoriano made good his escape. Arriving at about two o’clock in his
mother’s house, he reported what had happened and warned the family
that the Carminas were after them. Under cover of darkness even as deathly
fear stalked them, they took refuge in a neighbor’s house. Later in the
morning, they reported the killing to the authorities.
Victoriano’s narration of the killing and slaughter was corroborated by
Katiad, the other eyewitness. He added the distasteful detail that after
shooting Billy to death, Israel broke into happy song: “Siga-siga sa baryohan,
hindi natatakot sa barilan!” He said that the Carminas took him with them
125
after Victoriano’s escape but finally released him after about fifteen
minutes. Later, he and several policemen gathered the parts of the
dismembered corpse that were scattered in his yard and put them in a sack.
Valero’s defense was alibi. He declared under oath that at the time of the
murder, he was hiding in the mountains of Manay from the family of Elnoro
Badadao, whom he “was forced to kill” over a land dispute. He denied
knowing the Agotanos and Megriño but admitted that Katiad was his friend
and former neighbor. He said the testimonies of the prosecution witnesses
were all lies because the last time he was in Ompao was in 1983.
Charito Garsona, the only other witness for the defense, testified that on
November 15, 1986, the accused-appellant and three other persons passed
by her house in Manay, Davao Oriental, at about 4 o’clock in the afternoon
and asked for food.
In his brief, the accused-appellant contends that he should not be blamed
for the killing of Billy Agotano, granting argu-endo that it was Israel who
killed the victim and dismembered his corpse. Israel, if at all, should be held
accountable alone for his act. The fact that the accused-appellant did not try
to escape but yielded when he was arrested should indicate his innocence,
which should be presumed in the absence of proof of his guilt beyond
reasonable doubt.
There is indeed such proof. His alibi must fall not only because of its
inherent weakness but also because of his positive identification by the two
eyewitnesses, one of whom was his near-victim and the other his
compadre.
While it is true that it was not he who actually shot and later dismembered
Jose Agotano, the evidence has clearly established a conspiracy between
him and his son that makes him equally guilty with the latter. The two of
them acted in concert in the conception and execution of the killing. The
decision to kill Billy was reached by the two of them although it was Israel
who personally implemented it. While Israel did his part in the killing yard,
Valero detained Victoriano in the house at gun-point and watched the
shooting and dismemberment of Billy. As a father, Valero made no move to
restrain his son; on the contrary, he watched with approval as Israel carried
out their joint decision.
The crime was qualified with treachery because, although the victim was
forewarned of his impending death, he was shot in the back while he was
entirely defenseless and the killers were under no risk whatsoever from any
retaliation the victim might make. In People v. Barba,2 the accused pointed
a rifle at the victim from a distance of six meters and said, “Pardong, stand
up, we are going to shoot you!” With hands raised, the victim pleaded, “Do
not kill me, investigate first what was my fault!” This Court held there was
treachery when the accused shot and killed the victim.
Even if treachery were not present in this case, the crime would still be
murder because of the dismemberment of the dead body. One of the
qualifying circumstances of murder under Article 248, par. 6, of the Revised
Penal Code is “outraging or scoffing at (the) person or corpse” of the victim.
There is no question that the corpse of Billy Agotano was outraged when it
was dismembered with the cutting off of the head and limbs and the
opening up of the body to remove the intestines, lungs and liver. The killer
scoffed at the dead when the intestines were removed and hung around
Victoriano’s neck “as a necklace” and the lungs and liver were facetiously
described as “pulutan.”
Although the information did not categorically allege this qualifying
circumstances in the exact words of the law, it was nevertheless deducible
from the statement that the “accused slaughtered the dead body of said
Jose Billy Agotano.”
Thus, in People v. Obenque,3 the information charged “that after thus
shooting Sergio Cabradilla, the accused Elpidio Obenque in the furtherance
of his criminal design, loaded the body of his victim in the Volkswagen
Brasilia Sedan with Plate No. BEE 164, Series of 1977 and with utmost
cruelty, dump the corpse in a ravine x x x .” It was held that this act of the
accused constituted an outrage of or scoffing at the corpse of the victim.
We agree with the trial court that evident premeditation should be
disregarded because sufficient time had not elapsed between the
126
determination to commit the crime and its execution, to enable the accused
to reflect upon the consequences of their act. It is not certain that when
early in that afternoon, Valero told the captives in Megriño’s house that
they would die, the Carminas had already definitely resolved to commit the
murder. In fact, although the threat was made to all of the captives, only
Billy was killed in the end. Moreover, there was no showing that they had
coolly and dispassionately planned the execution of the offense. The events
leading to the murder suggest that the Carminas were from the start busy
with oppressing the Agotanos or drinking tuba, leaving no time for that
detached and undisturbed premeditation of the murder. It was only when
they were in Katiad’s house that the decision to kill Billy was made, the
justification being that “we have already maltreated him, this time we will
just finish him because he might retaliate.”
Abuse of superior strength was also correctly not considered, being
absorbed in alevosia.
But it was incorrect to appreciate adding ignominy to the offense because
the victim was already dead when his body was dismembered. This
aggravating circumstance requires that the offense be committed in a
manner that tends to make its effects more humiliating to the victim, that
is, add to his moral suffering.4
On the other hand, the fact that Valero yielded when he was apprehended
did not operate to mitigate the penalty because mere non-resistance to
arrest is not considered voluntary surrender.
What possessed the killers in the commission of their nauseating acts can
only be left to incredulous conjecture. What is certain is that whether it was
caused by fanatic ideology, or plain intoxication, or an innate bestiality, the
bizarre desecration of the corpse was utterly disgusting and deserves the
strongest if helpless condemnation. The penalty prescribed by law, which is
only reclusion perpetua, does not seem severe enough.
WHEREFORE, the appeal is DISMISSED. The sentence imposed, except only
as to the civil indemnity, which is increased to P50,000.00, is AFFIRMED. It is
so ordered.
G.R. No. 167502. October 31, 2006.* statement made must concern the occurrence in question and its
immediately attending circumstances.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO CUDAL, accused-
appellant. Same; Same; The spontaneity of the utterance and its logical connection
with the principal event, coupled with the fact that the utterance was made
Appeals; When the issue is one of credibility of witnesses, an appellate court
while the declarant was still “strong” and subject to the stimulus of the
will normally not disturb the factual findings of the trial court.—It is
nervous excitement of the principal event, are deemed to preclude
axiomatic in criminal jurisprudence that when the issue is one of credibility
contrivance, deliberation, design or fabrication, and to give the utterance an
of witnesses, an appellate court will normally not disturb the factual
inherent guaranty of trustworthiness.— The spontaneity of the utterance
findings of the trial court unless the latter has reached conclusions that are
and its logical connection with the principal event, coupled with the fact
clearly unsupported by evidence, or unless some facts or circumstances of
that the utterance was made while the declarant was still “strong” and
weight or influence were overlooked which, if considered, would affect the
subject to the stimulus of the nervous excitement of the principal event, are
result of the case. The rationale for this is that trial courts have superior
deemed to preclude contrivance, deliberation, design or fabrication, and to
advantages in ascertaining the truth and in detecting falsehood as they have
give to the utterance an inherent guaranty of trustworthiness. The
the opportunity to observe at close range the manner and demeanor of
admissibility of such exclamation is based on experience that, under certain
witnesses while testifying. In the absence of any showing that the trial
external circumstances of physical or mental shock, a stress of nervous
court, whose findings were affirmed by the appellate court, acted arbitrarily
excitement may be produced in a spectator which stills the reflective
in the appreciation of evidence, this Court respects the same.
faculties and removes their control, so that the utterance which then occurs
Evidence; Res Gestae; For the testimonies of Camilo and Segundino, who is a spontaneous and sincere response to the actual sensations and
are not witnesses to the incident, to be considered part of the res gestae, perceptions already produced by the external shock. Since this utterance is
the following requisites must concur: (1) the principal act or res gestae must made under the immediate and uncontrolled domination of the senses,
be a startling occurrence; (2) the statement is spontaneous or was made rather than reason and reflection, and during the brief period when
before the declarant had time to contrive or devise a false statement, and consideration of self-interest could not have been fully brought to bear, the
the statement was made during the occurrence or immediately prior or utterance may be taken as expressing the real belief of the speaker as to the
subsequent thereto; and (3) the statement made must concern the facts just observed by him.
occurrence in question and its immediately attending circumstances.—That
Same; Same; It cannot be concluded that in a very short span of time, taking
Camilo and Segundino were not eyewitnesses to the incident does not
into consideration the ripe age of the victim, his relationship to appellant,
render their testimonies inadmissible, for they may be considered part of
and the cruelty and the suffering which immediately preceded the
the res gestae, an exception to the hearsay rule. For the same to be
confession, the victim had the opportunity to concoct the facts surrounding
considered part of the res gestae, the following requisites must concur: (1)
the incident and its authorship.—The victim’s information to Camilo and
the principal act or res gestae must be a startling occurrence; (2) the
Segundino as to the material facts was made immediately after the startling
statement is spontaneous or was made before the declarant had time to
incident occurred. It is as categorical as it is spontaneous and instinctive. It
contrive or devise a false statement, and the statement was made during
cannot be concluded that in a very short span of time, taking into
the occurrence or immediately prior or subsequent thereto; and (3) the
consideration the ripe age of the victim, his relationship to appellant, and
the cruelty and suffering which immediately preceded the confession, the
127
victim had the opportunity to concoct the facts surrounding the incident
and its authorship. Besides, there appears to be no reason or motive on the
part of the victim to point his son as the culprit if such were not indeed the
truth.
Criminal Law; Evidence; Mitigating Circumstances; Appellant’s intoxication
at the time of the commission of the crime, being an alternative
circumstance, may be appreciated as aggravating if the same is habitual or
intentional, otherwise it shall be considered as mitigating circumstance.—
Appellant’s intoxication at the time of the commission of the crime, being
an alternative circumstance under Article 15 of the Revised Penal Code, may
be appreciated as aggravating if the same is habitual or intentional,
otherwise it shall be considered as a mitigating circumstance. The trial court
observed: We now come to another matter, which is the fact that during
the incident, the accused was drunk. This was testified to by Camilo Cudal
and admitted by the wife of the accused. The accused himself admitted that
he had been drinking with his cousins and nephews, but he claims that he
did not drink much. Drunkenness is an alternative circumstance. It is
aggravating if the accused is a habitual drunkard. It is mitigating if it is
otherwise. The date of the incident is two (2) hours after midnight which
ushered in the new year. Before that, the accused and his relatives were
celebrating and they drank San Miguel gin. No evidence was presented to
establish that he is a habitual drunkard. It is a legal maxim that when there
is doubt, the doubt should be resolved in favor of the accused. This court[,]
therefore, believes that this should be taken as a mitigating circumstance,
which is favorable to the accused.
Same; Same; Absent any showing that the appellant’s intoxication was
habitual, or intentional it may only be considered as mitigating to correctly
call for the imposition of the penalty of reclusion perpetua.—Absent any
showing then that appellant’s intoxication was habitual or intentional, it
may only be considered as mitigating to correctly call for the imposition of
the penalty of reclusion perpetua, in accordance with Article 63, paragraph
2(3) of the Revised Penal Code.
APPEAL from a decision of the Court of Appeals.
128
The facts are stated in the opinion of the Court.
The Solicitor General for appellee.
Public Attorney’s Office for appellant.
CARPIO-MORALES, J.:
Under final review is the Court of Appeals Decision1 of February 11, 2005
affirming that of Branch 39 of the Regional Trial Court of Lingayen,
Pangasinan2 convicting Pablo Cudal (appellant) of parricide and meting out
to him the penalty of reclusion perpetua.
About 2:00 o’clock in the morning of January 1, 1998,3 as appellant arrived
home in Barangay Bonlalacao, Mangatarem, Pangasinan from a drinking
spree with his cousins and nephews, he roused his 79-year old father Crispin
Cudal (the victim) from his sleep. Appellant then asked money from the
victim so he could go back to the drinking session and pay for the liquor that
he consumed. The victim replied that he had no money, and told appellant
that he was already drunk.4 This drew the two to a fight.5
Some 50 meters away from the place of the incident, Camilo Cudal (Camilo),
appellant’s first cousin who was then in the house of his mother-in-law,
heard the commotion.6 Camilo immediately rushed to the place and there
saw the victim sitting on his bed and wiping blood oozing from his forehead.
When asked about what happened, the victim quickly replied that he
quarreled with appellant and that he was hit by him with a stone.7
When Camilo confronted appellant, the latter reasoned out that he was
asking money from his father but the latter refused.8
Camilo brought the wounded victim to the house of his (victim’s) brother
Segundino Cudal9 where first aid was applied on his wounds. Camilo then
fetched from Urbiztondo, Pangasinan the victim’s daughter Leoncia10 who
brought the victim to a nearby hospital where he expired the following day,
January 2, 1998, at about 4 o’clock p.m.11 The postmortem report prepared
by Dr. Cleofe Orence, Rural Health Physician of Mangatarem, Pangasinan
who examined the body of the victim revealed the following findings:
External Physical Injuries:
(1) Lacerated wound, old, about 4 cm. midfrontal area.
(2) Hematoma, dorsal aspect right hand.
(3) Contusion 2x3 cm., right upper quadrant area, abdomen.
Probable Cause of Death:
That on or about January 1, 1998, at about 2:00 o’clock dawn, in barangay
Bonlalacao, municipality of Mangatarem, province of Pangasinan,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, willfully, unlawfully and feloneously (sic), and with evident
premiditation (sic), that is, having conceived and deliberated to kill his own
father with whom he was living with, and with treachery, attack, assault and
hit with the use of stone his father, Crispin Cudal, on the head and other
parts of his body, inflicting upon the latter mortal wounds which directly
caused his death, to the damage and prejudice of the heirs of the said victim
Crispin Cudal.
CONTRARY to Article 246 of the Revised Penal Code.”15

x x x x”
INTERNAL HEMORRHAGE secondary to Craniocerebral Injury secondary to Denying having struck the victim, appellant claimed that it was he who was
Trauma assaulted with a bolo,16 and that while going after him, the victim
T/C Ruptured Viscus, abdomen.12 accidentally fell down and hit the bedpost in the process, wounding himself
on the forehead.17 Asked how the victim sustained injury on his abdomen,
Appellant was arrested by police authorities on January 3, 199813 and appellant explained that the victim subsequently fell on the floor, hitting his
brought for treatment at the Mangatarem District Hospital on the same day. abdomen with the handle of the bolo he was holding.18
The medical findings on him showed:
After trial, Branch 39 of the Regional Trial Court of Lingayen, Pangasinan, by
—(-) Negative alcoholic breath Decision of October 28, 1998, convicted appellant of parricide, but
considered his intoxication at the time of the commission of the offense as a
—Stab wound 2 cm., left side face
mitigating circumstance under paragraph 3, Article 15 of the Revised Penal
—Stab wound 1.5 cm. zygomatic area left Code. The dispositive portion of the decision reads:

—Periorbital hematoma left superimposed with punctured wound .5 cm. “WHEREFORE, in view of the foregoing considerations, the Court finds the
left lower eyelid accused Pablo Cudal Guilty beyond reasonable doubt of the crime of
Parricide for the killing of his father Crispin Cudal, on the early morning of
—Punctured wound left eyebrow
New Year, January 1, 1998 with the presence of one (1) mitigating
—Contusion hematoma 1x1 cm. occipital area14 circumstance, and accordingly the Court sentences the said accused to
reclusion perpetua. He is also ordered to pay the heirs of the accused the
An Information was soon filed against appellant reading: sum of P30,000.00 representing funeral expenses, plus indemnity of
“x x x x P50,000.00 without subsidiary imprisonment in case of insolvency; and to

129
pay the costs. Being a detention prisoner, the said accused is credited with
his detention to its full extent.
SO ORDERED.”19
Appellant appealed his conviction before this Court, assailing the trial court
for “accept[ing] the prosecution’s account as gospel truth despite the fact
that its witnesses were not actually direct witnesses to the crime
charged.”20 The appeal was docketed as G.R. No. 140637.
By Resolution21 of August 30, 2004, this Court ordered the transfer of the
case to the Court of Appeals for appropriate action and disposition
conformably with People v. Mateo.22
The appellate court affirmed, with modification, appellant’s conviction. The
decretal text of the decision reads:
“WHEREFORE, the assailed Decision of Branch 39 of the Regional Trial Court
of Lingayen, Pangasinan, dated October 28, 1998, in Criminal Case No. L-
5778, convicting the appellant, Pablo Cudal, of the crime of parricide and
sentencing him to suffer the penalty of reclusion perpetua is hereby
AFFIRMED. The last sentence of the first paragraph of its dispositive portion
is however hereby modified to read, as follows: “Accused-appellant Pablo
Cudal is also ordered to pay the heirs of the victim, Crispin Cudal, the sum of
P30,000.00 representing funeral expenses, plus indemnity of P50,000.00
without subsidiary imprisonment in case of insolvency; and to pay the
costs.”
No pronouncement as to costs.”23 (Emphasis in the original)
Hence, the elevation of the case to this Court for final review.
In a Manifestation dated September 7, 2005,24 appellant informed that he
was opting not to file a Supplemental Brief.
The appeal fails.
Article 246 of the Revised Penal Code provides:
130
ART. 246. Parricide.—Any person who shall kill his father, mother, or child,
whether legitimate or illegitimate, or any of his ascendants, or descendants,
or his spouse, shall be guilty of parricide and shall be punished by the
penalty of reclusion perpetua to death.
Prosecution witness Camilo Cudal narrated what he knew of the
circumstances surrounding the incident as follows:
Q Do you still recall where you were on the late evening of December 31,
1997 before midnight?
A I could remember, sir.
Q Where were you?
A I was in the house of my in[-]laws, sir.
Q Will you please tell the name of your in-laws?
A Marissa Dancel, sir.
Q Where is the place of Marissa Dancel located?
A Bulalakao, Mangatarem, sir.
Q Why were you there at the house of your mother-in-law, Marissa Dancel?
A Because we were celebrating the New Year[’s] Eve, sir.
Q Now by the way, how far is your house from the house of your mother-in-
law where you were celebrating New Year[’]s Eve?
A Around 50 meters away, sir.
Q Now, at about 2:00 o’clock in the early mornignof (sic) January 1, 1998,
can you tell us where you were?
A Yes, sir, I was in the house of my in-laws.
Q As you were stay (sic) there, can you still recall if there was unusual thing
that you observe[d] when you were at the house of your mother-in-law?
A Yes, sir, there was.
Q What was that that you observe[d]? A I saw blood oozing from the forehead of Crispin Cudal, sir.

A I heard something like quarreling on the house of Crispin Cudal, sir. Q Where did you see Crispin Cudal inside the house blooded as you have
pointed in the forehead?
Q Now, can you tell us why do you say that there is a sounds (sic) like
warning in the house of Crispin Cudal? A In the place where he sleep (sic), sir.

A Because they were uttering words, sir. Q What was his position when you saw him blooded on the forehead?

Q Can you tell us if you could recognize that voices as you said they are A He was sitting down and he was wiping the blood of his forehead, sir.
quarreling?
Q When you saw wiping his blood on the forehead, what next happened?
A Yes, sir.
A I asked him, “Uncle what happened,[”] and he answered, “we quarreled
Q Please tell the Honorable Court whose voice is that? with Pablo Cudal,[”] he said.

A Pablo Cudal and Crispin Cudal, sir. Q Do you remember having asked, what caused the injury of the forehead?

Q Now, what did you [do] if any when you heard this quarreling voices of A Yes, sir, I asked him.
accused Pablo Cudal?
Q What did the victim answer if any when you asked him what caused his
A Because I went near, sir. injury on the forehead if he answer (sic) you?

Q How did you go near? A I was hit with the stone by Pablo Cudal.25 (Emphasis supplied)

A I walked towards the house of Crispin, (sic) Cudal and I was listening to Another prosecution witness, Segundino Cudal, declared that when his
them, sir. brother—the victim was brought to his house by Camilo, the victim who was
“strong,” albeit his face was bloodied, told him that he was struck with a
Q Where did you go when you went near?
stone by appellant.
A I [e]ntered there (sic) house, sir.
FISCAL CHIONG:
Q Whose house?
Q Do you know where you were on the early morning of January 1, 1998?
A House of Crispin Cudal, sir?
A I was at home, sir.
Q How did you [e]nter the house of Crispin Cudal?
Q Do you recall if there is unusual incident that came to your knowledge
A The door was opened, sir. involving your brother Crispin Cudal?

Q As you [e]ntered the door of the house of Crispin Cudal, what did you see, A None yet when I am at home.
if any?
Q Do you know, if any one came to your house that morning of January 1,
1998?
131
A Yes, Crispin Cudal, sir.
Q How was your older brother Crispin Cudal brought to your house (sic) by
Camilo Cudal?
A He was loaded in a tricycle, sir.
Q Now, when you saw your brother when he was brought to your house,
can you tell us his physical appearance or condition?
A He was strong but his face was bloody, sir. Even his clothes were stained
or tainted with blood, sir.
Q Now, when you saw your brother’s face bloody as well as his clothes,
what did you do, if any as he was already in your house?
A I asked him what happened to him and he told me “I was struck with
stone by my son[.]”
Q Did you ask him who is this son of him who struck him with stone?
A Yes, sir his name is Pablo Cudal.26 (Emphasis and italics supplied)
At the witness stand, defense witness Dr. Orence, declared:
Q Is it also possible Doctor[a] that this contusion was due to the force of a
stone struck on the victim? Stone is a hard object?
A It could be, sir.
Q Likewise, this hematoma on the dorsal right hand of the victim was
possibly caused by the impact of the stone being thrown at the victim when
the victim tried to parry it, is that not also possible, Doctora?
A Yes sir, it is possible.27 (Italics supplied)
That the complained act of appellant was the proximate cause of the death
of the victim is evident from the above-quoted postmortem report on the
body of the deceased showing the probable cause of his death as
“INTERNAL HEMORRHAGE secondary to Craniocerebral Injury secondary to
Trauma” and “T/C Ruptured Viscus, abdomen.”
132
It is axiomatic in criminal jurisprudence that when the issue is one of
credibility of witnesses, an appellate court will normally not disturb the
factual findings of the trial court unless the latter has reached conclusions
that are clearly unsupported by evidence, or unless some facts or
circumstances of weight or influence were overlooked which, if considered,
would affect the result of the case. The rationale for this is that trial courts
have superior advantages in ascertaining the truth and in detecting
falsehood as they have the opportunity to observe at close range the
manner and demeanor of witnesses while testifying.28 In the absence of
any showing that the trial court, whose findings were affirmed by the
appellate court, acted arbitrarily in the appreciation of evidence, this Court
respects the same.
That Camilo and Segundino were not eyewitnesses to the incident does not
render their testimonies inadmissible, for they may be considered part of
the res gestae,29 an exception to the hearsay rule. For the same to be
considered part of the res gestae, the following requisites must concur:
(1) the principal act or res gestae must be a startling occurrence; (2) the
statement is spontaneous or was made before the declarant had time to
contrive or devise a false statement, and the statement was made during
the occurrence or immediately prior or subsequent thereto; and (3) the
statement made must concern the occurrence in question and its
immediately attending circumstances.30
The spontaneity of the utterance and its logical connection with the
principal event, coupled with the fact that the utterance was made while
the declarant was still “strong” and subject to the stimulus of the nervous
excitement of the principal event, are deemed to preclude contrivance,
deliberation, design or fabrication, and to give to the utterance an inherent
guaranty of trustworthiness.31 The admissibility of such exclamation is
based on experience that, under certain external circumstances of physical
or mental shock, a stress of nervous excitement may be produced in a
spectator which stills the reflective faculties and removes their control, so
that the utterance which then occurs is a spontaneous and sincere response
to the actual sensations and perceptions already produced by the external
shock. Since this utterance is made under the immediate and uncontrolled Absent any showing then that appellant’s intoxication was habitual or
domination of the senses, rather than reason and reflection, and during the intentional, it may only be considered as mitigating to correctly call for the
brief period when consideration of self-interest could not have been fully imposition of the penalty of reclusion perpetua, in accordance with Article
brought to bear, the utterance may be taken as expressing the real belief of 63, paragraph 2(3) of the Revised Penal Code.34
the speaker as to the facts just observed by him.32
WHEREFORE, the Court of Appeals Decision of February 11, 2005 which
The victim’s information to Camilo and Segundino as to the material facts affirmed the October 28, 1998 Decision of Branch 39 of the Regional Trial
was made immediately after the startling incident occurred. It is as Court of Lingayen, Pangasinan, convicting appellant Pablo Cudal of parricide
categorical as it is spontaneous and instinctive. It cannot be concluded that and meting out the penalty of reclusion perpetua is AFFIRMED.
in a very short span of time, taking into consideration the ripe age of the
SO ORDERED.
victim, his relationship to appellant, and the cruelty and suffering which
immediately preceded the confession, the victim had the opportunity to
concoct the facts surrounding the incident and its authorship. Besides, there
appears to be no reason or motive on the part of the victim to point his son
as the culprit if such were not indeed the truth.

Appellant’s intoxication at the time of the commission of the crime, being

an alternative circumstance under Article 15 of the Revised Penal Code, may
be appreciated as aggravating if the same is habitual or intentional,
otherwise it shall be considered as a mitigating circumstance. The trial court
observed:

“We now come to another matter, which is the fact that during the incident,
the accused was drunk. This was testified to by Camilo Cudal and admitted
by the wife of the accused. The accused himself admitted that he had been
drinking with his cousins and nephews, but he claims that he did not drink
much. Drunkenness is an alternative circumstance. It is aggravating if the
accused is a habitual drunkard. It is mitigating if it is otherwise.

The date of the incident is two (2) hours after midnight which ushered in the
new year. Before that, the accused and his relatives were celebrating and
they drank San Miguel gin. No evidence was presented to establish that he
is a habitual drunkard. It is a legal maxim that when there is doubt, the
doubt should be resolved in favor of the accused. This court[,] therefore,
believes that this should be taken as a mitigating circumstance, which is
favorable to the accused.”33 (Italics supplied)

133
G.R. No. 159734. November 30, 2006.*
ROSARIO V. ASTUDILLO, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
G.R. No. 159745. November 30, 2006.*
FILIPINA M. ORELLANA, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
Rights of Suspects; Miranda Warning; The rights of suspects exist only in
“custodial interrogations,” or “in-custody interrogation of accused
persons”—and, by custodial interrogation is meant “questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.”—It
bears noting, however, that when the prosecution formally offered its
evidence, petitioners failed to file any objection thereto including their
extrajudicial admissions. At any rate, this Court answers the issue in the
affirmative. People v. Ayson, 175 SCRA 216 (1989), is instructive: In
Miranda, Chief Justice Warren summarized the procedural safeguards laid
down for a person in police custody, “in-custody interrogation” being
regarded as the commencement of an adversary proceeding against the
suspect. He must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in a court of
law, that he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise those rights must be
afforded to him throughout the interrogation. After such warnings have
been given, such opportunity afforded him, the individual may knowingly
and intelligently waive these rights and agree to answer or make a
statement. But unless and until such warnings and waivers are
demonstrated by the prosecution at the trial, no evidence obtained as a
result of interrogation can be used against him. The objective is to prohibit
“incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statement without full warnings
of constitutional rights.” The rights above specified, to repeat, exist only in
“custodial interrogations,” or “in-custody interrogation of accused persons.”
134
And, as this Court has already stated, by custodial interrogation is meant
“questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way.”
Same; Same; Confessions and admissions in violation of Section 12 (1),
Article III of the Constitution are inadmissible in evidence against the
declarant and more so against third persons.—The extrajudicial confession
before the police of Flormarie (who, as earlier stated, has remained at large)
in which she incriminated petitioners bears a different complexion,
however, as it was made under custodial investigation. When she gave the
statement, the investigation was no longer a general inquiry into an
unsolved crime but had begun to focus on a particular suspect. The records
show that Camilo had priorly reported the thievery to the same police
authorities and identified Flormarie and Benitez as initial suspects. It is
always incumbent upon the prosecution to prove at the trial that prior to
incustody questioning, the confessant was informed of his constitutional
rights. The presumption of regularity of official acts does not prevail over
the constitutional presumption of innocence. Hence, in the absence of proof
that the arresting officers complied with these constitutional safeguards,
extrajudicial statements, whether inculpatory or exculpatory, made during
custodial investigation are inadmissible and cannot be considered in the
adjudication of a case. In other words, confessions and admissions in
violation of Section 12 (1), Article III of the Constitution are inadmissible in
evidence against the declarant and more so against third persons. This is so
even if such statements are gospel truth and voluntarily given.
Criminal Law; Admissions; In criminal cases, an admission is something less
than a confession—it is but a statement of facts by the accused, direct or
implied, which do not directly involve an acknowledgment of his guilt or of
his criminal intent to commit the offense with which he is bound, against his
interests, of the evidence or truths charged.—In another vein, Rosario labels
her written statement as a mere “apology for breach of procedure.” Her
resort to semantics deserves scant consideration, however. A cursory
reading of her letter reveals that she confessed to the taking of “short-
over.” There is a “short-over” when there is a discrepancy between the
actual amount collected appearing in the yellow (warehouse) copy and the
remitted amount appearing in the blue (accounting) copy. In criminal cases,
an admission is something less than a confession. It is but a statement of
facts by the accused, direct or implied, which do not directly involve an
acknowledgment of his guilt or of his criminal intent to commit the offense
with which he is bound, against his interests, of the evidence or truths
charged. It is an acknowledgment of some facts or circumstances which, in
itself, is insufficient to authorize a conviction and which tends only to
establish the ultimate facts of guilt. A confession, on the other hand, is an
acknowledgment, in express terms, of his guilt of the crime charged.
Same; Theft; Elements.—The elements of the crime of Theft as provided for
in Article 308 of the Revised Penal Code are: (1) that there be taking of
personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the
use of violence against or intimidation of persons or force upon things.
Same; Same; Qualified Theft; Elements.—Theft becomes qualified when any
of the following circumstances is present: (1) the theft is committed by a
domestic servant; (2) the theft is committed with grave abuse of
confidence; (3) the property stolen is either a motor vehicle, mail matter or
large cattle; (4) the property stolen consists of coconuts taken from the
premises of a plantation; (5) the property stolen is fish taken from a
fishpond or fishery; and (6) the property was taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance.
Same; Same; Same; Mere circumstance that the accused were employees of
the private complainant does not suffice to create the relation of confidence
and intimacy that the law requires—the element of grave abuse of
confidence requires that there be a relation of independence, guardianship
or vigilance between the accused and their employer; Where the
relationship did not involve strict confidence, whose violation did not
involve grave abuse thereof, the offense committed is only simple theft.—
Mere circumstance that petitioners were employees of Western does not
135
suffice to create the relation of confidence and intimacy that the law
requires. The element of grave abuse of confidence requires that there be a
relation of independence, guardianship or vigilance between the petitioners
and Western.Petitioners were not tasked to collect or receive payments.
They had no hand in the safekeeping, preparation and issuance of invoices.
They merely assisted customers in making a purchase and in demonstrating
the merchandise to prospective buyers. While they had access to the
merchandise, they had no access to the cashier’s booth or to the cash
payments subject of the offense. Lily conceded that petitioners were merely
tasked to “assist in the sales from day to day” while Camilo admitted that
the cashier is the custodian of the cash sales invoices and that no other
person can handle or access them. The limited and peculiar function of
petitioners as salespersons explains the lack of that fiduciary relationship
and level of confidence reposed on them by Western, which the law on
Qualified Theft requires to be proven to have been gravely abused. Mere
breach of trust is not enough. Where the relationship did not involve strict
confidence, whose violation did not involve grave abuse thereof, the
offense committed is only simple theft. Petitioners should therefore be
convicted of simple theft, instead of Qualified Theft.
Same; Same; Conspiracy; Mere companionship does not establish
conspiracy.—In Rosario’s case, the Office of the Solicitor General made a
sweeping conclusion that the extent of her participation in the act of taking
merchandise need not be specified since she attributed her other act of
taking “short-over” to “pakikisama” or companionship. The conclusion does
not persuade. Mere companionship does not establish conspiracy. As
indicated early on, there were two different sets of imputed acts, one
individual and the other collective. Rosario’s admission was material only to
her individual guilt as she referred only to the “short-over.” The wording of
her admission cannot be construed to extend to the other offense charging
conspiracy under which no overt act was established to prove that Rosario
shared with, and concurred in, the criminal design of taking away Western’s
merchandise.
Same; Same; Same; In cases alleging conspiracy, an extrajudicial confession
is admissible against a co-conspirator as a circumstantial evidence to show
the probability of participation of said co-conspirator in the crime
committed.—Filipina in fact gave a written statement acknowledging her
own act of asporting the merchandise. The rule is explicit that the act,
declaration or omission of a party as to a relevant fact may be given in
evidence against him. The declaration of an accused acknowledging his guilt
of the offense charged, or of any offense necessarily included therein, may
be given in evidence against him. Moreover, Filipina’s statement dovetailed
with Benitez’s admission, which was corroborated by Flormarie’s
confessions. In cases alleging conspiracy, an extrajudicial confession is
admissible against a co-conspirator as a circumstantial evidence to show the
probability of participation of said co-conspirator in the crime committed.
Same; Qualified Theft; Penalties; In the determination of the penalty for
Qualified Theft, note is taken of the value of the property taken, and where
the value exceeds P=22,000.00, the basic penalty is prision mayor in its
minimum and medium periods to be imposed in the minimum period, and
to determine the additional years of imprisonment, the amount is deducted
from the total amount, the difference being then divided by P=10,000.00,
disregarding any amount less than P=10,000.00.—On the imposition of the
correct penalty, People v. Mercado is instructive. In the determination of
the penalty for Qualified Theft, note is taken of the value of the property
stolen, which is P797,984.00. Since the value exceeds P22,000.00, the basic
penalty is prision mayor in its minimum and medium periods to be imposed
in the maximum period—Eight (8) Years, Eight (8) Months and One (1) Day
to Ten (10) Years of prision mayor. To determine the additional years of
imprisonment, the amount of P22,000.00 is deducted from P797,984.00,
which yields a remainder of P775,984.00. This amount is then divided by
P10,000.00, disregarding any amount less than P10,000.00. The end result is
that 77 years should be added to the basic penalty. The total imposable
penalty for simple theft should not exceed 20 years, however. As for the
penalty for Qualified Theft, it is two degrees higher than that for Simple
Theft, hence, the correct penalty is reclusion perpetua.
PETITIONS for review on certiorari of the decision and resolution of the
Court of Appeals.
136
The facts are stated in the opinion of the Court.
Justinian E. Adviento for petitioner Rosario Astudillo.
Arias Law Office for petitioner.
CARPIO-MORALES, J.:
Petitioners Rosario “Baby” Astudillo (Rosario) and Filipina “Lina” Orellana
(Filipina) via separate petitions for review on certiorari seek a review of the
Decision1 and the Resolution2 of the Court of Appeals affirming with
modification that of the Regional Trial Court of Quezon City, Branch 783 (the
trial court) finding them guilty of Qualified Theft and denying their Motions
for Reconsideration, respectively.
On complaint of Western Marketing Corporation (Western), petitioners
were collectively charged with Qualified Theft, along with Flormarie Robel
(Flormarie) and Roberto Benitez (Benitez), in Criminal Case No. Q-96-67827,
under an Information dated September 9, 1996 reading:
“The undersigned accuses FLORMARIE CALAJATE ROBEL, ROBERTO F.
BENITEZ, ROSARIO ASTUDILLO a.k.a. “Baby” and FILIPINA ORELLANA Y
MACARAEG of the crime of QUALIFIED THEFT as follows:
That during the period comprised from January 1996 to February 1996, the
above-named accused, being then employed as relieving cashier/service-in-
charge (Flormarie Calajate Robel), supervisor/floor manager (Roberto F.
Benitez[)], sales clerks (Rosario Astudillo a.k.a. “Baby” and Filipina Orellana y
Macaraeg) at the WESTERN MARKETING CORPORATION, represented by
LILY CHAN ONG, and as such had free access to the company premises,
materials, supplies and items store[d] thereat, conspiring, confederating
together and mutually helping one another, with grave abuse of confidence
and intent of gain, and without the consent of the owner thereof, did, then
and there wilfully, unlawfully and feloniously take, steal and carry away two
(2) booklets of Sales Invoices Nos. from 128351 to 128400 of the said
corporation and thereafter use the said invoices in the preparation of
fictitious sales and withdrawals of merchandise with the total value of
P797,984.00 Philippine Currency, belonging to the said WESTERN of the owner thereof, did, then and there, wilfully, unlawfully and
MARKETING CORPORATION, to its damage and prejudice. feloniously take, steal and carry away the excess sum/amount between the
tag price and discount price of each and every items sold by her to company
CONTRARY TO LAW.”4 (Emphasis supplied)
customers, in the sum of P4,755.00, belonging to the said WESTERN
Additionally, petitioners, Benitez and Norberto “Carlo” Javier (Javier) were MARKETING CORPORATION, to its damage and prejudice in the amount
individually charged also with Qualified Theft in four (4) separate aforementioned.
Informations all dated September 9, 1996.
CONTRARY TO LAW.”5
The Information indicting petitioner Rosario, docketed as Criminal Case Nos.
Petitioners, Benitez and Javier, with the assistance of their respective
Q-96-67829, and that indicting petitioner Filipina, docketed as Q-96-67830,
counsel, pleaded not guilty during arraignment.6 Flormarie has remained at
respectively read:
large.
“The undersigned accuses ROSARIO ASTUDILLO a.k.a. “Baby” of the crime of
By Order of December 10, 1997, Criminal Case No. Q-9667828, the case
QUALIFIED THEFT as follows:
against Javier, was dismissed on account of the desistance of the private
That on or about the period from May 1, 1994 to February 16, 1996, in complainant.7 The remaining cases against petitioners and Benitez were
Quezon City, Philippines, the above-named accused, being then employed consolidated for joint trial.
as sales representative/clerk at the WESTERN MARKETING CORPORATION
By Decision of May 28, 1998, the trial court found the accused-herein
(P. Tuazon Branch), represented by LILY CHAN ONG, and as such had free
petitioners and Benitez guilty beyond reasonable doubt of Qualified Theft
access to the company cash sales, with grave abuse of confidence and intent
and were accordingly sentenced as follows:
of gain, and without the consent of the owner thereof, did, then and there,
wilfully, unlawfully and feloniously take, steal and carry away the excess IN CRIMINAL CASE NO. Q-96-67827—
sum/amount between the tag price and discounts price in the sum of
Accused Roberto F. Benitez, Rosario Astudillo a.k.a. “Baby,” and Filipina
P12,665.00, belonging to the said WESTERN MARKETING CORPORATION, to
Orellana y Macaraeg shall each suffer imprisonment of TWELVE (12) YEARS
its damage and prejudice in the amount aforementioned.
and ONE (1) DAY, as minimum, to FOURT EEN (14) YEARS, as maximum, of
CONTRARY TO LAW. reclusion temporal, and to pay the amount of P797,984.00, jointly and
severally for their civil liability;
xxx
IN CRIMINAL CASE NO. Q-96-67829—
The undersigned accuses FILIPINA ORELLANA Y MACARAEG of the crime of
QUALIFIED THEFT, committed as follows: Accused Rosario Astudillo a.k.a. “Baby,” shall suffer imprisonment of
TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14)
That on or about the period from May 1, 1994 to January 27, 1996, in
YEARS, as maximum, of reclusion temporal, and to pay the amount of
Quezon City, Philippines, the above-named accused, being then employed
P12,665.00 for her civil liability;
as Sales clerk at the WESTERN MARKETING CORPORATION, represented by
LILY CHAN ONG, and as such had free access to the company cash sales, IN CRIMINAL CASE NO. Q-96-67830—
with grave abuse of confidence and intent of gain, and without the consent
137
Accused Filipina Orellana y Macaraeg, shall suffer imprisonment of TWELVE
(12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as
maximum, of reclusion temporal, and to pay the sum of P4,755.00 for her
civil liability; and
IN CRIMINAL CASE NO. Q-96-67831—
Accused Roberto F. Benitez, shall suffer imprisonment of TWELVE (12)
YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as
maximum, of reclusion temporal, and to pay the amount ofP11,079.00 for
his civil liability.
The penalties imposed on all the accused are quite harsh, but as the maxim
goes, “Dura Lex Sed Lex,” the Court could not impose otherwise.
SO ORDERED.”8 (Emphasis in the original; italics supplied)
Petitioners and Benitez elevated their cases on appeal. The Court of Appeals
affirmed the trial court’s judgment with modification as to the penalties
imposed, thus:
“WHEREFORE, the decision dated May 28, 1998 of the Regional Trial Court
of Quezon City, Branch 78 is AFFIRMED with MODIFICATION.
1. In Criminal Case No. Q-96-67827, appellants Roberto Benitez, Rosario
Astudillo and Filipina Orellana are found guilty beyond reasonable doubt of
qualified theft and are hereby sentenced to suffer the penalty ranging from
10 years and 1 day of prision mayor in its maximum period to 15 years of
reclusion temporal as maximum, and to pay to the offended party the
amount of P797,984.00, jointly and severally, as reparation for the
unrecovered stolen merchandise;
2. In Criminal Case No. Q-96-67829, appellant Rosario Astudillo is found
guilty beyond reasonable doubt of qualified theft and is sentenced to suffer
imprisonment ranging from 10 years and 1 day of prision mayor in its
maximum period as minimum to 14 years, 8 months and 1 day of reclusion
temporal in its medium period as maximum, and to pay to the offended
party amount of P12,665.00 as reparation for the stolen goods.
138
3. In Criminal Case No. Q-96-67830, appellant Filipina Orellana is found
guilty beyond reasonable doubt of qualified theft and is sentenced to suffer
imprisonment ranging from 4 years, 2 months and 1 day of prision
correccional in its maximum period as minimum to 8 years and 1 day of
prision mayor in its medium period as maximum and to pay to the offended
party the amount of P4,755.00 as reparation for the stolen property;
4. In Criminal Case No. Q-96-67831, appellant Roberto Benitez is found
guilty beyond reasonable doubt of qualified theft and is sentenced to suffer
imprisonment ranging from 6 years and 1 day of prision mayor in its
minimum period as minimum to 10 years and 1 day of prision mayor in its
maximum period as maximum and to pay to the offended party the amount
of P11,079.00 as reparation for the stolen goods.
SO ORDERED.”9 (Emphasis in the original; italics supplied)
After petitioners and Benitez’s respective Motions for Reconsideration were
denied by the Court of Appeals, petitioners filed these separate petitions for
review which were, on motion of the Office of the Solicitor General, ordered
consolidated.10
In her petition, Rosario proffers the following assignment of errors:
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONSIDERED AN APOLOGY
FOR BREACH OF PROCEDURE AS AN ADMISSION OF A CRIME.
THE COURT A QUO ERRED WHEN IT DEPARTED [FROM] THE NORMAL
COURSE OF JUDICIAL PROCEEDING AND CONVICTED PETITIONER OF THE
OFFENSE OF THEFT WITHOUT THE ESSENTIAL ELEMENT OF UNLAWFUL
TAKING.
THE COURT OF A QUO (sic) GRIEVOUSLY ERRED WHEN IT ABUSED ITS
DISCRETION TO ARRIVE AT CONCLUSIONS OF FACTS BY INDECENTLY
CONSIDERING AND DISTORTING EVIDENCE TO CONFORM TO ITS FLAWED
CONCLUSION.11 (Italics supplied)
On her part, Filipina raises the following issues:
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING
THE DECISION OF THE REGIONAL TRIAL COURT CONVICTING THE
PETITIONER FILIPINA ORELLANA Y MACARAEG OF THE CRIME CHARGED
DESPITE INSUFFICIENCY OF EVIDENCE
WHETHER OR NOT AN EXTRAJUDICIAL ADMISSION OBTAINED THROUGH
TRICKERY AND SCHEME WITHOUT THE BENEFIT AND ASSISTANCE OF
COUNSEL IS A SUFFICIENT GROUND TO CONVICT AN ACCUSED
WHETHER OR NOT CONSPIRACY MAY BE PROVED SIMPLY ON THE GROUND
THAT ALL ACCUSED ARE CO-EMPLOYEES AND WORKING IN ONE
COMPANY12 (Italics supplied)
From the evidence for the prosecution, the following version is gathered:
Petitioners were hired by Western, a chain of appliance stores, as
salespersons at its branch at P. Tuazon Boulevard in Cubao, Quezon City.
Benitez and Flormarie were hired as floor manager and service-in-
charge/cashier-reliever, respectively, at the same branch of Western.13
On February 21, 1996, in the course of preparing the January monthly sales
report of the P. Tuason branch of Western, Branch Accountant Marlon
Camilo (Camilo) noticed that the computer printout of the monthly sales
report revealed a belated entry for Cash Sales Invoice No. 128366. Upon
verification from Western’s head office, Camilo learned that the branch
received the booklet containing 50 cash sales invoices to which Invoice No.
128366 formed part.
Camilo then confirmed that the booklet of sales invoices bearing numbers
128351 up to 128400 was missing. And he noted that the daily cash
collection report did not reflect any remittance of payments from the
transactions covered by the said invoices.
Some cash sales invoices were later recovered. From recovered Invoice No.
128366, Camilo found out that Flormarie was the one who filled it up and
received the payment reflected therein.
From recovered Invoice Nos. 128358 and 128375, Camilo found out that the
goods covered thereby were missing. Concluding that the transactions
139
under the said invoices were made but no payment was remitted to
Western, Camilo reported the matter to Ma. Aurora Borja (Aurora), the
branch assistant manager.
Benitez soon approached Camilo and requested him not to report the
matter to the management, he cautioning that many would be involved.
Aurora and Camilo later met with Benitez, Filipina, cashiers Rita Lorenzo
(Rita) and Norma Ricafort (Norma) during which Benitez and Filipina
pleaded with Camilo not to report the matter to the management.
Flormarie, who called on
Camilo by telephone, made a similar plea as she admitted to stealing the
missing booklet of invoices, she explaining that her father was sick and had
to undergo medical operation, and offering to pay for the goods covered
thereby.14
In the meantime, Flormarie had gone absent without leave.
Aurora eventually reported the case of the missing invoices and the
shortage of cash sales collection to Western’s branch manager Lily Chan
Ong (Lily).15
In a subsequent meeting with Lily, Filipina admitted having brought home
some appliances while Benitez gave a handwritten statement reading:16
“Ako si Roberto F. Benitez ay humihingi po ako ng tawad kay Mrs. Lily Ong
at Western Marketing Corp. Ang mga kasalanan ako po ay:
1) Ang pagkuha ng Promo na dapat ay para sa Customer.
2) Ang paggamit ng gift check na para rin sa Customer ang kinukuha ko at
ako ang gumagamit.
3) Ang pagamit na rin sa Pera na tinatawag na Short-Over ay amin ding
ginagawa. Example nagbayad ang Customer ng 9000 and C.P. 8,900 and
9,000 ay nasulat sa original na INV.
4) Ang pagkuha na rin ng mga Product tulad ng sumusunod, na ako
nagplano at si Ate Lina.
Kay Ate Lolit
Tiffin Carrier
Cookware Set 7 pcs.
Ate Lina
Cookware Set 7 pcs.
Norma
Cookware Set 7 pcs.
Airpot Lemon
Robert
National Elec. Stove HNK-211
Rice Bowl
Ito lahat ay nilabas namin ng linggo 02-18-96 ng gabi. Ako po ay nangangako
na hindi na ito uulitin ang lahat ng mga kasalanan sa Western ay kay Mrs.
Lily Ong at Pinapangako ko po na Sumpa man kasama ang pamilya at
salamat din po dahil ako ay pinatawad nila at binigyan pa ng isang
pagkakataon. Maraming maraming salamat po.”17(Emphasis and italics
supplied)
In a still subsequent meeting with Lily, Filipina made a written statement in
the former’s presence reading:
“Ako po si Lina M. Orellana na nangangako kay Ate Lily na hinding-hindi ko
na uulitin iyong naglalabas ng mga items tulad ng cookware set at casserole
na ang mga kasama ko po rito ay sina Lolit, Norma, Robert na isinagawa
namin. Na kami po si Robert ang nagsabi kay Lolit na maglabas ng stock
pero bago po namin ginagawa iyon nagsabi po kami kay Lolit na sumagot
naman ng ng (sic) oo pero kami po ni Robert and (sic) nagkumbinsi sa
dalawa. Kung mauulit pa ho ito kung anuman po ang gusto ni Ma’m Lily na
gawin sa akin ay lubos ko pong tatanggapin.”18 (Italics supplied)
140
Also in a meeting with Lily, Rosario, who was earlier implicated by
Flormarie’s husband in his telephone conversation with Aurora,19 wrote:
Mam Lily,
Sana ho Ate Lily patawarin ninyo ako sa nagawa kong kasalanan, regarding
sa “Short-over.” Siguro ho nagawa ko lang ho ’yon sa pakikisama sa kanila,
sa mga kasamahan ko dito sa Nuestra, alam ko ho na mali ’yon kaya
pinagsisisihan ko ho ’yon. Sana ho mapatawad ninyo ako sa nagawa kong
kasalan.
’Yun pong tungkol sa kaso ni Marie, wala ho akong alam don. Kumare ko nga
ho sya pero yung pagnanakaw niyang ginawa wala akong kinalaman don.
Kahit ho siguro magkautang-utang ako hindi ko magagawa ’yon.
Inuulit ko ho, sana ho mapatawad ninyo uli ako sa nagawa kong kasalanan
at pinapangako ko ho na hinding-hindi ko na uulitin.
Maraming salamat ho,
(Sgd.) Baby Astudillo
P.S. ’yun ho palang perang na-oover naming, pinaghahatian po namin nila
Rita at ni Marie.”20 (Italics supplied)
Still in a separate meeting with Lily and her siblings on one hand, and
Flormarie and her husband on the other, Flormarie wrote what she knew of
the incident as follows:
“Ito ang nalalaman ko kung paanong nangyari ito sa loob ng tindahan ng
Western Mktg. P. Tuazon Branch.
*SHORT-OVER
Ang tag price, kung ang customer ay hindi tumawad, binabago na lang ang
presyo sa duplicate copy and then kinukuha na lang sa cashier ang pera
tapos naghahati-hati na lang si robert, baby, lina, lolit, Rita at Marie, Norma,
Fe.
xxx
*INVOICE
Ito ay itinuro sa akin ni Kuya Robert, kukunin ko ang invoice at pagkatapos
binigyan niya ako ng (3 resibo series) at hindi ko na po alam kung anong
ginawa na niya sa invoice.
Ang paraan magreresibo ako tatatakan ko ng paid kasama kung sino ang
taong maglalabas ng unit tapos ibebenta ko na yong unit yung pera
kinukuha ko na bibigyan ko lang siya ng kahit magkanong amount kung sino
yong taong inutusan ko.”21 (Italics supplied)
Flormarie, in the company of her sister Delma and Lily, subsequently
appeared before a notary public to execute a similar statement reading:
xxxx
2. Ako ngayon ay kusang loob na lumapit sa Western upang humingi ng
kapatawaran sa aking mga nagawa at upang makipagkasundo sa isang
maavos na pagbabavad sa mga halagang aking nakuha sa Western at
mahalaga sa lahat, upang isiwalat ang mga taong kasangkot sa katiwaliang
ito at mga paraan ng paggawa nito.
3.Halos lahat ng mga kawani ng tindahan ay kasangkot sa mga sumusunod
na katiwalian:
3.1. Short-Over—Ito ay ang pagtatala ng mas mababang halaga ng paninda
sa mga “duplicate copies” ng resibo kapag ang kustomer ay hindi tumawad
sa “tag price” at nagbayad ng “cash”. Ang sobrang halaga ay pinaghahatian
namin nina ROBERT BENITEZ (“Robert”); ROSARIO ALTUDILLO (“Baby”);
FILIPINA ORELLANA (“Lina”); LOLIT BORJA (“Lolit”); RITA LORENZO (“Rita”);
NORMA RICAFORT (“Norma”) at FE CABIGAN (“Fe”).
xxxx
3.3. INVOICING—Sa pamamagitan ng mga resibong na may tatak na “paid”
na ibinibigay ni Robert sa aking nailalabas ko ang mga paninda na akin
namang naibebenta.22
141
x x x x (Emphasis and italics supplied)
Flormarie and her sister, together with Lily, later executed a statement
before Cubao SPOl Jose Gil Gregorio, reading:
TANONG: Ayon kay MARLON CAMILO, Western Marketing Corp Branch
Accountant nadiskubre niya ang pagkawala ng isang booklet ng Sales Cash
Invoice (50pcs.) na may numerong 128351 to 128400 nitong mga nakaraang
araw may kinalaman ka ba sa nasabing pangyayari?
SAGOT: Opo.
T :Kung mayroon kang kinalaman sa nasabing pangyayari ito ba ay kusang
loob mong ginawa?
S :Itinuro lang po ito sa akin.
T :Ano ang iyong ginawa?
Astudillo vs. People
S :Ako po ang kumuha noong nawawalang isang booklet ng Cash Sales
Invoice sa turo ni ROBERT BENITEZ na Sales Supervisor sa Western
Marketing Corp.
xxxx
T :Sa tatlong series ng Cash Sales Invoice na napunta sa iyo ano ang iyong
ginawa?
S :Ginamit ko po ito sa paglalabas ng mga items/unit sa Western Marketing
Corp.
xxxx
T :Sa maikling Salaysay, ikuwento mo nga sa akin kung papaano mo
isinagawa ang iyong pagnanakaw sa paggamit ng mga Cash Sales Invoice?
S :Ganito po ang ginawa ko, iniuwi ko sa aming bahay yung tatlong series ng
resibo na ibinigay sa akin ni ROBERT BENITEZ at tinuruan po niya ako na
sulatan ko yung mga resibo ng mga items na gusto kong ilabas, at pagk
atapos po ay ibinalik ko ito sa Western Marketing Corp at binigay ko ito kay
ROBERT BENITEZ, at ang sabi niya sa akin ay siya na raw ang bahala na
magpalabas noong mga items na aking isinulat sa resibo.
xxxx
T :Bukod kay ROBERT BENITEZ may mga tao bang karamav sa naganap na
transaksiyon?
S :Mayroon po.
T :Sino-sino ito?
S :Sina LINA ORELLANA po, Sales Lady po, ROSARIO ASTUDILLO, sales lady.
T :Sa iyong pagkakaalam, ano ang kanilang mga partisipasyon na naganap na
transaksiyon?
S :Si LINA ORELLANA po ang sales lady, at siya rin ang may pirma doon sa
resibo, at ganoon din po itong si ROSARIO ASTUDILLO.
xxxx
T :Magkano naman ang ibinibigay sa iyo ni ROBERT BENITEZ kapag nailabas
ng yung mga items doon sa res ibo na iyong ginawa?
S :Hindi ko na po matandaan basta pinapartihan niya ako at yung dalawang
sales lady.23 (Emphasis and italics supplied)
In an inventory of stocks conducted at the branch office of Western, several
other appliances were found missing as were unauthorized deductions from
the cash collections.24 The total missing merchandise was valued at
P797,984.00 as reflected in the inventory report.25 And discrepancies
between the actual sales per cash sales invoice and the cash remittance to
the company in the sum of P34,376.00 for the period from January 1994 to
February 199626 were also discovered, prompting Western to initiate the
criminal complaints for Qualified Theft.
142
Both petitioners raise as issue whether the employees’ extrajudicial
admissions taken before an employer in the course of an administrative
inquiry are admissible in a criminal case filed against them.
Petitioners posit in the negative. They argue that as their extrajudicial
statements were taken without the assistance of counsel, they are
inadmissible in evidence, following Section 12, Article III of the 1987
Constitution.27
It bears noting, however, that when the prosecution formally offered its
evidence, petitioners failed to file any objection thereto including their
extrajudicial admissions.28 At any rate, this Court answers the issue in the
affirmative. People v. Ayson29 is instructive:
“In Miranda, Chief Justice Warren summarized the procedural safeguards
laid down for a person in police custody, “in-custody interrogation” being
regarded as the commencement of an adversary proceeding against the
suspect.
He must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be afforded to him
throughout the interrogation. After such warnings have been given, such
opportunity afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer or make a statement. But unless and
until such warnings and waivers are demonstrated by the prosecution at the
trial, no evidence obtained as a result of interrogation can be used against
him.
The objective is to prohibit “incommunicado interrogation of individuals in a
police-dominated atmosphere, resulting in selfincriminating statement
without full warnings of constitutional rights.”
The rights above specified, to repeat, exist only in “custodial
interrogations,” or “in-custody interrogation of accused persons.” And, as
this Court has already stated, by custodial interrogation is meant
“questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way.”30 (Emphasis and italics supplied)
Ayson adds:
The employee may, of course, refuse to submit any statement at the
investigation, that is his privilege. But if he should opt to do so, in his
defense to the accusation against him, it would be absurd to reject his
statements, whether at the administrative investigation, or at a subsequent
criminal action brought against him, because he had not been accorded,
prior to his making and presenting them, his “Miranda rights” (to silence
and to counsel and to be informed thereof, etc.) which, to repeat, are
relevant in custodial investigations.”31
People v. Ting Lan Uy, Jr.32 is similarly instructive:
“Clearly, therefore, the rights enumerated by the constitutional provision
invoked by accused-appellant are not available before government
investigators enter the picture. Thus we held in one case (People v. Ayson,
[supra]) that admissions made during the course of an administrative
investigation by Philippine Airlines do not come within the purview of
Section 12. The protective mantle of the constitutional provision also does
not extend to admissions or confessions made to a private individual, or to a
verbal admission made to a radio announcer who was not part of the
investigation, or even to a mayor approached as a personal confidante and
not in his official capacity.” (Emphasis and italics supplied)
The Court of Appeals did not thus err in pronouncing that petitioners were
not under custodial investigation to call for the presence of counsel of their
own choice, hence, their written incriminatory statements are admissible in
evidence.
The extrajudicial confession33 before the police of Flormarie (who, as
earlier stated, has remained at large) in which she incriminated petitioners
bears a different complexion, however, as it was made under custodial
investigation. When she gave the statement, the investigation was no
longer a general inquiry into an unsolved crime but had begun to focus on a
143
particular suspect. The records show that Camilo had priorly reported the
thievery to the same police authorities and identified Flormarie and Benitez
as initial suspects.
“It is always incumbent upon the prosecution to prove at the trial that prior
to in-custody questioning, the confessant was informed of his constitutional
rights. The presumption of regularity of official acts does not prevail over
the constitutional presumption of innocence. Hence, in the absence of proof
that the arresting officers complied with these constitutional safeguards,
extrajudicial statements, whether inculpatory or exculpatory, made during
custodial investigation are inadmissible and cannot be considered in the
adjudication of a case. In other words, confessions and admissions in
violation of Section 12 (1), Article III of the Constitution are inadmissible in
evidence against the declarant and more so against third persons. This is so
even if such statements are gospel truth and voluntarily given.”34
(Emphasis and italics supplied)
Petitioners at all events argue that their written statements were obtained
through deceit, promise, trickery and scheme, they claiming that Lily
dictated to them their contents. There is nothing on record, however,
buttressing petitioners’ claim other than their self-serving assertion. The
presumption that no person of normal mind would deliberately and
knowingly confess to a crime unless prompted by truth and conscience35
such that it is presumed to be voluntary until the contrary is proved thus
stands.36
The circumstances surrounding the execution of the written admissions
likewise militate against petitioners’ bare claim. Petitioners admittedly
wrote their respective letters during office hours in Lily’s office which was
located in the same open booth or counter occupied by the cashier and
credit card in-charge.37 And this Court takes note of the observation of the
trial court that petitioners’ written notes were “neatly written in Tagalog,
and not in broken Tagalog as spoken by Lily Ong.”38
In another vein, Rosario labels her written statement as a mere “apology for
breach of procedure.”39 Her resort to semantics deserves scant
consideration, however. A cursory reading of her letter reveals that she
confessed to the taking of “shortover.”
There is a “short-over” when there is a discrepancy between the actual
amount collected appearing in the yellow (warehouse) copy and the
remitted amount appearing in the blue (accounting) copy.40
“In criminal cases, an admission is something less than a confession. It is but
a statement of facts by the accused, direct or implied, which do not directly
involve an acknowledgment of his guilt or of his criminal intent to commit
the offense with which he is bound, against his interests, of the evidence or
truths charged. It is an acknowledgment of some facts or circumstances
which, in itself, is insufficient to authorize a conviction and which tends only
to establish the ultimate facts of guilt. A confession, on the other hand, is an
acknowledgment, in express terms, of his guilt of the crime charged.”41
The issue on the admissibility of petitioners’ respective extra-judicial
statements aside, an examination of the rest of the evidence of the
prosecution does not set petitioners free.
The elements of the crime of Theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2)
that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner;
and (5) that the taking be accomplished without the use of violence against
or intimidation of persons or force upon things.42
Theft becomes qualified when any of the following circumstances is present:
(1) the theft is committed by a domestic servant; (2) the theft is committed
with grave abuse of confidence; (3) the property stolen is either a motor
vehicle, mail matter or large cattle; (4) the property stolen consists of
coconuts taken from the premises of a plantation; (5) the property stolen is
fish taken from a fishpond or fishery; and (6) the property was taken on the
occasion of fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance.43
Cashier Rita testified in a detailed and categorical manner how the
petitioners took the alleged amounts of “short-over” deducted from the
144
sum of cash collections. The tampered invoices presented by the
prosecution which glaringly show the variance in the amounts corroborate
Rita’s claim.
Rosario contends, however, that there was no “unlawful taking” since the
amounts of “short-over” did not belong to Western. The argument does not
lie. The “excess” sums formed part of the selling price and were paid to, and
received by, Western. The discrepancy in the amounts came about on
account of the alteration in the copies of the invoices which should have
faithfully reflected the same amount paid by the customer.
As for petitioners’ claim of entitlement to the “excess” amounts as
salespersons’ commission, it was not established in evidence.
Even assuming that the “short-over” was intended to defray sundry
expenses, it was not incumbent upon the salespersons to claim them and
automatically apply them to the miscellaneous charges. It was beyond the
nature of their functions. The utilization of the “short-over” was not left to
the discretion of the salespersons. The element of unlawful taking was thus
established. A further review of the nature of petitioners’ functions shows,
however, that the element of grave abuse of confidence is wanting in the
case.
Q :As an accountant employee since June 1995, Mr. Witness, you are
familiar that in the procedure in any particular branch of Western Marketing
Corporation, are you aware if somebody buys an item from one store, do
you know the flow of this sale?
A :Yes, sir.
Q :In fact, in the store there are employees which are assigned with specific
duties or functions, is it not?
A :Yes, sir.
Q :Like for instance, let’s take the case of Filipina Orellana. Her function is
merely to entertain customers who go to the store and intend to buy one of
the items that are disp layed, is it not?
A :Yes, sir.
Q :So, if this customer is resolved to buy one item, Filipina Orellana as a
sales clerk, all she has to do is to refer the particular customer to another
employee of the company, is that correct?
A :Yes, sir.
Q :Now, you have also employees who are preparing inv oices, they are
called invoicers, is it not?
A :Yes, sir.
Q :So when Filipina Orellana refers this customer to the invoicer, the
invoicer now will take over from that function of Filipina Orellana after
referring this customer?
A:Yes, sir.
Q :And this invoicer now will refer the invoice for this particular item for
payment to the cashier of the company, is it not?
A :Yes, sir.
Q :And it is the cashier who will receive the payment from this customer?
A :Yes, sir.
Q :And in fact, the customer or the cashier will receive the exact amount of
payment as reflected in the invoice that was prepared by the invoicer, is it
not?
A :Yes, sir.
Q :From that point up to the payment, Filipina Orellana has no more hand in
that particular transaction, her function is only to entertain and refer the
customer for sales purposes, that is correct?
A : Yes, sir.44 (Emphasis, underscoring and italics supplied)
Mere circumstance that petitioners were employees of Western does not
suffice to create the relation of confidence and intimacy that the law
145
requires.45 The element of grave abuse of confidence requires that there be
a relation of independence, guardianship or vigilance between the
petitioners and Western.46 Petitioners were not tasked to collect or receive
payments. They had no hand in the safekeeping, preparation and issuance
of invoices. They merely assisted customers in making a purchase and in
demonstrating the merchandise to prospective buyers.47 While they had
access to the merchandise, they had no access to the cashier’s booth or to
the cash payments subject of the offense.
Lily conceded that petitioners were merely tasked to “assist in the sales
from day to day”48 while Camilo admitted that the cashier is the custodian
of the cash sales invoices and that no other person can handle or access
them.49 The limited and peculiar function of petitioners as salespersons
explains the lack of that fiduciary relationship and level of confidence
reposed on them by Western, which the law on Qualified Theft requires to
be proven to have been gravely abused. Mere breach of trust is not enough.
Where the relationship did not involve strict confidence, whose violation did
not involve grave abuse thereof, the offense committed is only simple
theft.50 Petitioners should therefore be convicted of simple theft, instead
of Qualified Theft.
On Criminal Case No. Q-96-67827 respecting petitioners’ collective guilt in
taking away merchandise by making it appear that certain items were
purchased with the use of stolen cash sales invoices:
It is settled that conspiracy exists when two or more persons come to an
agreement concerning the commission of a crime and decide to commit it.
To effectively serve as a basis for conviction, conspiracy must be proved as
convincingly as the criminal act. Direct proof is not absolutely required for
the purpose.
A review of the inference drawn from petitioners’ acts before, during, and
after the commission of the crime to indubitably indicate a joint purpose,
concert of action and community of interest is thus in order.51
In Rosario’s case, the Office of the Solicitor General made a sweeping
conclusion that the extent of her participation in the act of taking
merchandise need not be specified since she attributed her other act of
taking “short-over” to “pakikisama” or companionship.52 The conclusion
does not persuade.
Mere companionship does not establish conspiracy.53 As indicated early on,
there were two different sets of imputed acts, one individual and the other
collective. Rosario’s admission was material only to her individual guilt as
she referred only to the “short-over.” The wording of her admission cannot
be construed to extend to the other offense charging conspiracy under
which no overt act was established to prove that Rosario shared with, and
concurred in, the criminal design of taking away Western’s merchandise.
The prosecution relied on Aurora’s statement that Flormarie’s husband
mentioned Rosario as among those involved in the anomaly.54 Under the
hearsay evidence rule, however, a witness can testify only to those facts
which he knows of his personal knowledge, that is, those which are derived
from his own perception, except as otherwise provided in the Rules.55
Aurora testified that she witnessed Filipina, along with Benitez, in inter alia
hiring third persons to pose as customers who received the items upon
presenting the tampered invoice.56
Filipina in fact gave a written statement acknowledging her own act of
asporting the merchandise. The rule is explicit that the act, declaration or
omission of a party as to a relevant fact may be given in evidence against
him.57 The declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included therein, may be given in
evidence against him.58
Moreover, Filipina’s statement dovetailed with Benitez’s admission, which
was corroborated by Flormarie’s confessions.59 In cases alleging conspiracy,
an extrajudicial confession is admissible against a co-conspirator as a
circumstantial evidence to show the probability of participation of said
coconspirator in the crime committed.60
Except with respect to Rosario, then, this Court finds welltaken the trial
court’s observation that the admissions were full of substantial details as to
how the accused conspired to commit the criminal acts and as to how they
146
manipulated the sales transactions at Western to effect and consummate
the theft of the goods.
In fine, insofar as Filipina is concerned, a thorough evaluation of the
evidence warrants the affirmance of her guilt beyond reasonable doubt of
having conspired with Benitez, et al.
On the imposition of the correct penalty, People v. Mercado61 is instructive.
In the determination of the penalty for Qualified Theft, note is taken of the
value of the property stolen, which is P797,984.00. Since the value exceeds
P22,000.00, the basic penalty is prision mayor in its minimum and medium
periods to be imposed in the maximum period—Eight (8) Years, Eight (8)
Months and One (1) Day to Ten (10) Years of prision mayor.
To determine the additional years of imprisonment, the amount of
P22,000.00 is deducted from P797,984.00, which yields a remainder of
P775,984.00. This amount is then divided by P10,000.00, disregarding any
amount less than P10,000.00. The end result is that 77 years should be
added to the basic penalty.
The total imposable penalty for simple theft should not exceed 20 years,
however.
As for the penalty for Qualified Theft, it is two degrees higher than that for
Simple Theft, hence, the correct penalty is reclusion perpetua.
WHEREFORE, the Decision of the Court of Appeals dated December 18,
2002 is MODIFIED.
In Criminal Case No. Q-96-67829, petitioner ROSARIO V. ASTUDILLO is found
guilty beyond reasonable doubt of Simple Theft, and is sentenced to suffer
an indeterminate penalty ranging from Two (2) Years, Four (4) Months and
One (1) Day of prision correccional in its medium and maximum periods as
minimum, to Seven (7) Years, Four (4) Months and One (1) Day of prision
mayor in its minimum and medium periods as maximum, and to pay to the
offended party the amount of P12,665.00 as civil liability.
In Criminal Case No. Q-96-67830, petitioner FILIPINA M. ORELLANA is found
guilty beyond reasonable doubt of Simple Theft, and is sentenced to suffer
an indeterminate penalty ranging from Two (2) Months, and One (1) Day of
arresto mayor in its medium and maximum periods as minimum, to One (1)
Year, Eight (8) Months and Twenty-One (21) Days of prision correccional in
its minimum and medium periods as maximum, and to pay to the offended
party the amount of P4,755.00 as civil liability.

In Criminal Case No. Q-96-67827, petitioner ROSARIO V. ASTUDILLO is

acquitted.

In all other respects, the assailed Decision is affirmed except that petitioner
FILIPINA M. ORELLANA is sentenced to suffer the penalty of reclusion
perpetua with the accessory penalties under Article 40 of the Revised Penal
Code.

SO ORDERED.

147
G.R. No. 77776. June 27, 1990.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO AGAPINAY, ALEX
AGAPINAY, FORTUNATO AGAPINAY, DANTE AGAPINAY, DELFIN AGAPINAY,
and CIRILO AGAPINAY, accused-appellants.
Criminal Law; Criminal Procedure; Evidence; Words of a bystander who said,
as the victim was being stabbed by others: “Kill him and we will bury him.”
does not make former liable as principal by inducement as her words were
not the efficient cause of the commission of crime.—With respect to Amor
Flores, we agree with the trial judge that he should be brought to the bar of
justice. As regards, however, Julia Rapada, it is the opinion of this Court, and
based on the records, that she can not be held liable (as a principal by
inducement). Her words, “Kill him and we will bury him” amount but to
imprudent utterances said in the excitement of the hour or in the heat of
anger (it does not appear whether or not Rapada held a grudge against the
deceased), and not, rather, in the nature of a command that had to be
obeyed. It has been held: x x x A chance word spoken without reflection, a
wrong appreciation of a situation, an ironical phrase, a thoughtless act, may
give birth to a thought of, or even a resolution to, crime in the mind of one
for some independent reason predisposed thereto without the one who
spoke the word or performed the act having any expectation that his
suggestion would be followed or any real intention that it produce a result.
In such case, while the expression was imprudent and the results of it grave
in the extreme, he would not be guilty of the crime committed. Therefore,
in applying the principles laid down to concrete cases it is necessary to
remember only that the inducement must be made directly with the
intention of procuring the commission of the crime and that such
inducement must be the determining cause of the crime.
Same; Same; No conspiracy in cases of stabbing made at spur of the
moment.—We also believe that conspiracy has not been shown beyond
reasonable doubt to hold all six accused as co-principals in the crime of
murder. As the lower court observed, the stabbing happened in the “spur of
the moment.” Conspiracy means, however, an agreement concerning the
148
commission of a felony and decision to commit it. If the tragedy was a
chance stabbing, there can be no conspiracy to speak of.
Same; Those who stabbed and held arms of victim are guilty as principals;
but those who merely pelted him with rocks as he ran are only
accomplices.—It is our considered opinion that only Romeo, Delfin, and
Fortunato should be held as principals in the crime of murder. Romeo is
guilty, as he admitted in open court, by direct participation, while Delfin and
Fortunato are liable as principals by cooperation. In holding the victim by his
arms, both allowed Romeo to inflict upon him a stab wound. Alex, Dante,
and Cirilo, on the other hand, should be held as simple accomplices for their
acts of pelting the victim with rocks. Since the deceased had already
sustained two stab wounds, the act of hurling rocks at him was not
indispensable to justify holding them legally liable as principals.
Same; Abuse of superiority, not treachery, exists where victim’s arms held
while being stabbed.—The fact that Delfin and Fortunato Agapinay held
Virgilio Paino while Romeo stabbed him, does not demonstrate treachery.
Rather, what it proves is abuse of superiority. It is indeed plain from the
records that the trio of Romeo, Delfin, and Fortunato had taken advantage
of their strength to overcome the victim who, at that time, was already
injured.
Same; Unlawful aggression by victim must be established for plea of
defense of relative or incomplete self-defense to be appreciated.—As we
noted, the trial court repudiated the accused’s posturing of defense of
relatives, so also do we. “Defense of relatives” requires the concurrence of
three elements: (1) unlawful aggression; (2) reasonable necessity of the
means employed to prevent or repel it; and (3) the person defending the
relative had no part in provoking the assailant, should any provocation have
been given by the person attacked. Of these three requisites, “unlawful
aggression” is said to be the most essential and primary, without which any
“defense” is not possible or justified. Thus: “If there is no unlawful
aggression there would be nothing to prevent or repel.” In that event, not
even incomplete self-defense can be validly invoked.
Same; Threats or injurious words do not amount to unlawful aggression.—
The Court is not persuaded that Virgilio Paino had acted with unlawful
aggression that might have provoked the Agapinays’ deadly wrath. The
records show that all that Virgilio did was to address offensive language to
Delfin Agapinay. In one case, this Court held that “injurious words or
threats” do not amount to unlawful aggression. Assuming that Virgilio did
strike Delfin and Romeo Agapinay with a paddle, the expediente reveals
that thereafter and upon having been stabbed in the right arm by Romeo,
he, Virgilio, ran away. It has also been ruled that: “Self-defense does not
justify the unnecessary killing of an aggressor who is retreating from the
fray.”
Same; Where victim uttered bad words, accused entitled to mitigating
circumstance of provocation or passion.—The Court finds, however, that
the accused should be entitled to the mitigating circumstance of
provocation (or vindication of a grave offense or passion or obfuscation.)
since clearly, the deceased uttered offending words (“vulva of your mother,
if you are talking as if you have no debts, not like me, I have no debts”) that
made the Agapinays, especially Romeo, react violently. While the trial court
disregarded this particular piece of evidence, the entire picture seems to
indicate that Virgilio Agapinay did say bad words that made the Agapinays
act in retaliation.
APPEAL from the decision of the Regional Trial Court of Aparri, Cagayan, Br.
8.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Juan T. Antonio for accused-appellants.
SARMIENTO, J.:
On April 11, 1983, the then Acting Provincial Fiscal of Cagayan, Alejandro
Pulido, filed an information accusing Romeo, Alex, Fortunato, Dante, Delfin,
and Cirilo, all surnamed Agapinay, of murder, as a consequence of the fatal
stabbing of Virgilio Paino on April 13, 1981. The same reads as follows:
149
That on or about April 13, 1981, in the municipality of Gonzaga, province of
Cagayan, and within the jurisdiction of this Honorable Court, the said
accused, Romeo Agapinay, Alex Agapinay, Fortunato Agapinay, Dante
Agapinay, Delfin Agapinay and Cirilo Agapinay, armed with bolos (lilit) and
stones, conspiring together and helping one another, with intent to kill, with
evident premeditation, with treachery and with abuse of superior strength,
did then and there wilfully, unlawfully and feloniously assault, attack, chase,
stone and stab, one, Virgilio Paino, inflicting upon him wounds on his body
which caused his death.
Contrary to law.1
On arraignment, all six accused pleaded “not guilty.”2
The evidence of the prosecution shows that the Agapinays are brothers,
except Romeo, who is Delfin’s son,3 and that along with Virgilio Paino, Amor
Flores, and Eufemio Paino, they were hirelings of Julia Rapada, an operator
of fishing boats. On April 12, 1981, they set out, along with other
complement, on a fishing venture in the sea of Batangan, in Gonzaga,
Cagayan. They returned to shore the following day, April 13, 1981,
whereupon, they unloaded their catch and spread out their fishnet on the
sand to dry. Thereafter, except for Romeo Agapinay, they mended the net,
with thread and small knives, under portable shed.4 Meanwhile, Virgilio
Paino took the shed and placed it where he and Alex and Cirilo Agapinay
were. Moments later, Romeo Agapinay appeared and confronted Virgilio,
and berated him for taking the shed without permission. Virgilio said that
they were going to use it. Shortly, the two exchanged words and tempers
apparently flared. Romeo lunged at Virgilio with a hunting knife, six inches
long, that hit his right arm. Virgilio ran away but Delfin and Fortunato
Agapinay met him and held on to his arms. Romeo approached him and
dealt him a second stab at the right side of his back. Virgilio, however,
managed to extricate himself again and ran away. While he was running,
Delfin, Alex, Fortunato, Dante, and Cirilo took turns in stoning him. All of a
sudden Amor Flores appeared and plunged a knife at the back of Virgilio. It
was then that Virgilio collapsed. Meanwhile Julia cried, “Kill him and we will
bury him.”5
The prosecution also established that Cirilo and Delfin had attacked Eufemio
Paino, a brother of Virgilio, with their own knives but the latter defended
himself with a paddle. The former ran away. The rest of the Agapinays
likewise fled.6
Antonio and Eufemio Paino, brothers of Virgilio, and Artemio Siababa
brought the wounded Virgilio to his (Virgilio’s) house.7 The latter
supposedly executed an ante-mortem statement there wherein he
implicated the Agapinays as well as Amor Flores, as responsible for the
incident. Thereafter, he was brought to the Don Alfonso Enrile Hospital at
Gonzaga. He was dead, however, on arrival.8
Police Corporal Rugino Sunico, when informed of the stabbing, went to the
scene to investigate but Virgilio had already been brought to his home.
Later, Patrolman Sunico took a supposed confession of Romeo Agapinay
who surrendered to him at 9:00 o’clock in the morning of April 13, 1981.
Meanwhile, Cirilo and Delfin Agapinay proceeded to the police
headquarters to complain that Eufemio Paino also assaulted them. They
refused to make any further statement.9
The cadaver of Virgilio was later autopsied. Dr. Silverio Salvanera’s post-
mortem examination showed that the late Virgilio Agapinay suffered the
following injuries:
x x x (a) 2 cm. long, penetrating to the liver, directed upwards and medially,
located at the level of the 7th intercostal space along the mid-clavicular line;
(b) 2.5 cm. long penetrating to the lungs, directed upwards and medially,
located at the level of the 7th intercostal space along posterior axillary line;
and (c) Thru and thru wound at the medial aspect between the distal and
medial 3rd of the right arm, 2.5 cm. point of entrance, 1.5 cm. point of exit,
6.2 cm. apart.10
After the prosecution rested, the accused presented their evidence.
Cirilo Agapinay stated that the incident started when Virgilio Paino grabbed
the atal (a piece of wood used to roll boats ashore) without his, Cirilo’s,
permission. Cirilo resented this but Virgilio allegedly clubbed him and that
150
he lost consciousness. Delfin and Fortunato Agapinay brought him to the
hospital.11
Delfin Agapinay, on the other hand, testified that he was with Cirilo and a
certain Jesus Alveza on that fateful morning at the seashore of Batangan
mending fishnet. There, Virgilio confronted them and asked why Cirilo took
the atal without his permission. Cirilo declared that he had Virgilio’s
companions’ permission. It was then that Virgilio clubbed Cirilo until the
latter passed out. He claimed that Romeo, Dante, Alex, and Fortunato
Agapinay were not around when the incident happened.12 He testified,
finally, that Virgilio attacked them with a knife and that he, together with
Cirilo, sustained injuries.
Fortunato Agapinay contended that he was asleep aboard the boat at the
time and was roused by his nephew, Alfredo Maximo, and whereupon, he
saw men fighting. Cirilo and Delfin Agapinay, together with Amor Flores,
were allegedly on their way home, whom he followed. Upon reaching their
house, Romeo Agapinay appeared and confessed that he had stabbed
Virgilio Paino.13
Alex Agapinay testified that he was with Salvador and Mariano Agapinay at
that time repairing a lamp. They then saw
Fely Rose Paino running, who informed them that Virgilio Paino had been
stabbed, and that Romeo Agapinay was the culprit. Dante Agapinay
corroborated his testimony.14
Romeo Agapinay, who had been tagged as the knife-wielder, alleged that on
April 13, 1981, he was at the shore of Batangan, in Buguey, mending net. He
claimed that he was with his father, Delfin Agapinay, and uncle, Cirilo
Agapinay, a certain Martin Maximo, Jesus Alveza, and unidentified
complement. It was then that Virgilio Paino suddenly appeared “uttering
bad words to his father Delfin.”15 Virgilio then allegedly struck Cirilo
Agapinay and his father with a paddle. He stated that he was forced to stab
Virgilio three times. Virgilio allegedly later went home alone.16
The defense pictured Virgilio as having been drunk at that time, and that he
came on strong without provocation, haranguing the Agapinays for two
hours.17
The trial judge rejected the accused’s claim of defense of relatives18 and
convicted all six accused of the crime of murder, attended by treachery.19
He also noted that it was not Virgilio who assaulted Cirilo and Delfin
Agapinay with a knife, but rather, Eufemio Paino. He held that the
Agapinays can not thus say that they had been defending themselves
(against Virgilio).
The lower court also found that the Agapinays had conspired to kill Virgilio
Paino and thus held them, in the dispositive portion of its decision, “all
principals by participation.”
In giving credence to the prosecution’s evidence, the trial court observed
that Virgilio could not have given a valid cause for the Agapinays to assault
him. (“[I]t is hard to believe that the late Virgilio just clubbed accused Cirilo
and Delfin without cause.”20)
Virgilio could not have blamed the Agapinays, as the latter claim, for taking
the atal (the act that, as alleged by the Agapinays, precipitated the fight),
because it was Fortunato Agapinay who was the head of the complement,
and if any person should begrudge the Agapinays’ act, the logical one was
he, Fortunato. (“Thus, there is no plausible reason for the late Virgilio to
have clubbed Cirilo and Delfin as the deceased was not the owner of the
atal . . .”21)
The trial court likewise found that Cirilo and Delfin were not defending
themselves against Virgilio when they suffered stab wounds of their own,
but rather, against Eufemio Paino. It lent faith and credence to Corporal
Sunico’s testimony who heard both Cirilo and Delfin pin the blame on
“Temyong” (Eufemio) Paino.22
The court commanded the Provincial Fiscal to indict Julia Rapada as alleged
principal by inducement for having ordered the Agapinays to “[k]ill Virgilio
Paino,”23 as well as Amor Flores, to account for their crimes. (Neither of
them is accused in the Information.)
151
It found that no evident premeditation attended the killing but appreciated
treachery and conspiracy. The dispositive portion of its Decision reads:
WHEREFORE, PREMISES CONSIDERED, this Court finds accused Romeo
Agapinay, Delfin Agapinay, Cirilo Agapinay, Fortunato Agapinay, Alex
Agapinay and Dante Agapinay, all principals by participation, guilty beyond
reasonable doubt of the crime of murder prescribed and penalized under
Article 248 of the Revised Penal Code and hereby sentences each of herein
accused to suffer the penalty of reclusion perpetua and to indemnify the
heirs of deceased Virgilio Paino the sum of THIRTY THOUSAND (P30,000.00)
PESOS and to pay the costs of this suit.
SO ORDERED.24
The six accused now submit that the Decision under appeal should be
reversed, and that the trial court erred in the following terms:
FIRST.—THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT ROMEO
AGAPINAY STABBED THE DECEASED TWICE.
SECOND.—THE TRIAL COURT ERRED IN FINDING THAT DELFIN
AGAPINAY, ALEX AGAPINAY, FORTUNATO AGAPINAY TOOK TURNS IN
STONING THE VICTIM.
THIRD.—THE TRIAL COURT ERRED IN ADOPTING AS PART OF THE EVIDENCE
THE PROCEEDINGS AT THE PRELIMINARY INVESTIGATION (1ST STAGE)
CONDUCTED BY THE MUNICIPAL CIRCUIT TRIAL JUDGE.
FOURTH.—THE TRIAL COURT ERRED IN FINDING THAT THERE WAS
CONSPIRACY ON THE PART OF THE APPELLANTS WHEN THEY COMMITTED
THE CRIME CHARGED.
FIFTH.—THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANTS ARE
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER
QUALIFIED BY TREACHERY.
SIXTH.—THE TRIAL COURT ERRED IN SENTENCING THE APPELLANTS TO THE
PENALTY OF RECLUSION PERPETUA.
SEVENTH.—THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLANTS
TO PRESENT EVIDENCE TO FIND OUT IF THE EVIDENCE TO BE PRESENTED
CONSTITUTES NEWLY DISCOVERED EVIDENCE AS A BASIS FOR A NEW
TRIAL.25
We affirm, with modifications, the Decision appealed from.
To begin with, the errors, except the last, assigned by the accused refer to
credibility of witnesses, and in a long line of cases, we have held that
“credibility” is the domain of the trial court.
There indeed seems to be no controversy that the Agapinays (that is, the six
accused) are guilty of participating in the slay of Virgilio Paino: (1) Romeo
admitted having stabbed him; (2) thereafter, Delfin and Fortunato held him,
whereupon, Romeo thrust another stab; (3) as Virgilio ran away, Delfin,
Alex, Fortunato, Dante, and Cirilo threw rocks at him.
Although it appears that it was Amor Flores who dealt Virgilio the death
blow, the Agapinays can not deny that they had the intent to kill him, and
performed acts to carry that out, for which they should be held accountable
under the law.26
With respect to Amor Flores, we agree with the trial judge that he should be
brought to the bar of justice. As regards, however, Julia Rapada, it is the
opinion of this Court, and based on the records, that she can not be held
liable (as a principal by inducement). Her words, “Kill him and we will bury
him”27 amount but to imprudent utterances said in the excitement of the
hour or in the heat of anger (it does not appear whether or not Rapada held
a grudge against the deceased), and not, rather, in the nature of a command
that had to be obeyed. It has been held:
xxx xxx xxx
x x x A chance word spoken without reflection, a wrong appreciation of a
situation, an ironical phrase, a thoughtless act, may give birth to a thought
of, or even a resolution to, crime in the mind of one for some independent
reason predisposed thereto without the one who spoke the word or
performed the act having any expectation that his suggestion would be
152
followed or any real intention that it produce a result. In such case, while
the expression was imprudent and the results of it grave in the extreme, he
would not be guilty of the crime committed. Therefore, in applying the
principles laid down to concrete cases it is necessary to remember only that
the inducement must be made directly with the intention of procuring the
commission of the crime and that such inducement must be the
determining cause of the crime.28
xxx xxx xxx
We also believe that conspiracy has not been shown beyond reasonable
doubt to hold all six accused as co-principals in the crime of murder. As the
lower court observed, the stabbing happened in the “spur of the
moment.”29 Conspiracy means, however, an agreement concerning the
commission of a felony and a decision to commit it.30 If the tragedy was a
chance stabbing, there can be no conspiracy to speak of.
Hence, the parties’ liability should be considered individually.31
It is our considered opinion that only Romeo, Delfin, and Fortunato should
be held as principals in the crime of murder. Romeo is guilty, as he admitted
in open court, by direct participation,32 while Delfin and Fortunato are
liable as principals by cooperation.33 In holding the victim by his arms, both
allowed Romeo to inflict upon him a stab wound.34
Alex, Dante, and Cirilo, on the other hand, should be held as simple
accomplices35 for their acts of pelting the victim with rocks. Since the
deceased had already sustained two stab wounds, the act of hurling rocks at
him was not indispensable to justify holding them legally liable as
principals.36
There is further no doubt that murder has been committed, but not because
of treachery, as ruled by the trial court. Treachery depends on the
suddenness of the attack, by which the victim is rendered hors d’combat, as
in an ambuscade, or any manner in which the victim is deprived of all
defenses, and in which the malefactor faces no risk to himself.37 The
manner of attack must be shown.38 There is no such showing here.
The fact that Delfin and Fortunato Agapinay held Virgilio Paino while Romeo The Court is not persuaded that Virgilio Paino had acted with unlawful
stabbed him, does not demonstrate treachery. Rather, what it proves is aggression that might have provoked the Agapinays’ deadly wrath. The
abuse of superiority. It is indeed plain from the records that the trio of records show that all that Virgilio did was to address offensive language to
Romeo, Delfin, and Fortunato had taken advantage of their strength to Delfin Agapinay.48 In one case, this Court held that “injurious words or
overcome the victim who, at that time, was already injured.39 threats”49 do not amount to unlawful aggression. Assuming that Virgilio did
strike Delfin and Romeo Agapinay with a paddle, the expediente reveals
Abuse of superiority qualifies the taking of the life of another into
that thereafter and upon having been stabbed in the right arm by Romeo,
murder.40 Accordingly, we affirm the trial court’s Decision insofar as it
he, Virgilio, ran away. It has also been ruled that: “Self-defense does not
found Romeo, Delfin, and Fortunato, all surnamed Agapinay, guilty as co-
justify the unnecessary killing of an aggressor who is retreating from the
principals of murder. We however, find Alex, Dante, and Cirilo, also all
fray.”50
surnamed Agapinay, guilty as accomplices in the commission of the same
offense. The Court finds, however, that the accused should be entitled to the
mitigating circumstance of provocation51 (or vindication of a grave
Anent the last error assigned, that the lower court erred in not allowing a
offense52 or passion or obfuscation.53) since clearly, the deceased uttered
new trial, we sustain the action of His Honor, Judge Felipe Tumacder. As he
offending words (“vulva of your mother, if you are talking as if you have no
held, the appeal having been perfected, “[t]he Court . . . has no more
debts, not like me, I have no debts”54) that made the Agapinays, especially
jurisdiction to entertain”41 any incident.
Romeo, react violently. While the trial court disregarded this particular
The counsel for the accused alleges that “the only reason why the Notice of piece of evidence, the entire picture seems to indicate that Virgilio Paino did
Appeal was filed was because on January 30, 1987, the Motion for New Trial say bad words that made the Agapinays act in retaliation.
had not been formally resolved or denied, hence, the motion was filed as a
WHEREFORE, Romeo, Delfin, and Fortunato, all surnamed Agapinay, are
precautionary measure not to lose the right to appeal which was set to
ORDERED to undergo an indeterminate sentence of ten (10) years and one
expire on February 3, 1987.”42 The accused’s counsel has apparently
(1) day of prision mayor maximum, as minimum, to seventeen (17) years, 4
ignored the fact that “[t]he time during which a motion . . . for a new trial
months, and one (1) day of reclusion temporal maximum, as maximum.
has been pending shall be deducted . . .”43 and hence, he faced no risk of
Alex, Dante, and Cirilo, also surnamed Agapinay, are ORDERED to undergo
losing the right to appeal in the event his motion was denied.44
an indeterminate sentence of four (4) years and one (1) day of prision
As we noted, the trial court repudiated the accused’s posturing of defense correccional, as minimum, to ten (10) years and one (1) day of prision mayor
of relatives, so also do we. “Defense of relatives” requires the concurrence maximum, as maximum. All six accused are also ORDERED to pay, jointly
of three elements: (1) unlawful aggression; (2) reasonable necessity of the and severally, to the heirs of Virgilio Paino, the sum of THIRTY THOUSAND
means employed to prevent or repel it; and (3) the person defending the
(P30,000.00) PESOS. Costs against the accused.SO ORDERED.
relative had no part in provoking the assailant, should any provocation have
been given by the person attacked.45 Of these three requisites, “unlawful
aggression” is said to be the most essential and primary, without which any
“defense” is not possible or justified. Thus: “If there is no unlawful
aggression there would be nothing to prevent or repel.”46 In that event, not
even incomplete self-defense can be validly invoked.47
153
G.R. No. 84163. October 19, 1989. *
LITO VINO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE COURT
OF APPEALS, respondents.
Criminal Law; Criminal Procedure; Evidence is clear that petitioner actively
assisted Salazar in his escape hence his liability is that of an accessory.—
Petitioner was charged as a principal in the commission of the crime of
murder. Under Article 16 of the Revised Penal Code, the two other
categories of the persons responsible for the commission of the same
offense are the accomplice and the accessory. There is no doubt that the
crime of murder had been committed and that the evidence tended to show
that Jessie Salazar was the assailant. That the petitioner was present during
its commission or must have known its commission is the only logical
conclusion considering that immediately thereafter, he was seen driving a
bicycle with Salazar holding an armalite, and they were together when they
left shortly thereafter. At least two witnesses, Ernesto and Julius Tejada,
attested to these facts. It is thus clear that petitioner actively assisted
Salazar in his escape. Petitioner’s liability is that of an accessory.
Same; Same; There is no variance between the offense charged and the
offense proved; Case at bar.—This is not a case of a variance between the
offense charged and the offense proved or established by the evidence, and
the offense as charged is included in or necessarily includes the offense
proved, in which case the defendant shall be convicted of the offense
proved included in that which is charged, or of the offense charged included
in that which is proved.
Same; Same; Same; Neither an instance where after trial has begun, it
appears that there was a mistake in charging the proper offense.—In the
same light, this is not an instance where after trial has begun, it appears
that there was a mistake in charging the proper offense, and the defendant
cannot be convicted of the offense charged, or of any other offense
necessarily included therein, in which case the defendant must not be
discharged if there appears to be a good cause to detain him in custody, so
that he can be charged and made to answer for the proper offense.
154
Same; Same; Accomplice; An accused can be validly convicted as an
accomplice or accessory under an information charging him as a principal.—
In this case, the correct offense of murder was charged in the information.
The commission of the said crime was established by the evidence. There is
no variance as to the offense committed. The variance is in the participation
or complicity of the petitioner. While the petitioner was being held
responsible as a principal in the information, the evidence adduced,
however, showed that his participation is merely that of an accessory. The
greater responsibility necessarily includes the lesser. An accused can be
validly convicted as an accomplice or accessory under an information
charging him as a principal.
Same; Same; Same; As long as the commission of the offense can be duly
established in evidence, the determination of the liability of the accomplice
or accessory can proceed independently of that of the principal.—The next
issue that must be resolved is whether or not the trial of an accessory can
proceed without awaiting the result of the separate charge against the
principal. The answer is also in the affirmative. The corresponding
responsibilities of the principal, accomplice and accessory are distinct from
each other. As long as the commission of the offense can be duly
established in evidence the determination of the liability of the accomplice
or accessory can proceed independently of that of the principal.
Same; Same; Same; Same; The commission of the crime of murder and the
responsibility of the petitioner as an accessory was established; Case at
bar.—In the present case, the commission of the crime of murder and the
responsibility of the petitioner as an accessory was established. By the same
token there is no doubt that the commission of the same offense had been
proven in the separate case against Salazar who was charged as principal.
However, he was acquitted on the ground of reasonable doubt by the same
judge who convicted Vino as an accessory. The trial court held that the
identity of the assailant was not clearly established. It observed that only
Julius Tejada identified Salazar carrying a rifle while riding on the bicycle
driven by Vino, which testimony is uncorroborated, and that two other
witnesses, Ernesto Tejada and Renato Parvian, who were listed in the
information, who can corroborate the testimony of Julius Tejada, were not
presented by the prosecution.
Same; Same; Same; Same; The identity of the assailant is of no material
significance for the purpose of the prosecution of the accessory.—Although
in this case involving Vino the evidence tended to show that the assailant
was Salazar, as two witnesses saw him with a rifle aboard the bicycle driven
by Vino, in the separate trial of the case of Salazar, as above discussed, he
was acquitted as the trial court was not persuaded that he was positively
identified to be the man with the gun riding on the bicycle driven by Vino. In
the trial of the case against Vino, wherein he did not even adduce evidence
in his defense, his liability as such an accessory was established beyond
reasonable doubt in that he assisted in the escape of the assailant from the
scene of the crime. The identity of the assailant is of no material significance
for the purpose of the prosecution of the accessory. Even if the assailant can
not be identified the responsibility of Vino as an accessory is indubitable.
PETITION for review of the decision of the Court of Appeals.
The facts are stated in the resolution of the Court.
Frisco T. Lilagan for petitioner.
RESOLUTION
GANCAYCO, J.:
The issue posed in the motion for reconsideration filed by petitioner of the
resolution of this Court dated January 18, 1989 denying the herein petition
is whether or not a finding of guilt as an accessory to murder can stand in
the light of the acquittal of the alleged principal in a separate proceeding.
At about 7:00 o’clock in the evening of March 21, 1985, Roberto Tejada left
their house at Burgos Street, Poblacion, Balungao, Pangasinan to go to the
house of Isidro Salazar to watch television. At around 11:00 P.M., while
Ernesto, the father of Roberto, was resting, he heard two gunshots.
Thereafter, he heard Roberto cry out in a loud voice saying that he had been
shot. He saw Roberto ten (10) meters away so he switched on the lights of
their house. Aside from Ernesto and his wife, his children Ermalyn and Julius
155
were also in the house. They went down to meet Roberto who was crying
and they called for help from the neighbors. The neighbors responded by
turning on their lights and the street lights and coming down from their
houses. After meeting Roberto, Ernesto and Julius saw Lito Vino and Jessie
Salazar riding a bicycle coming from the south. Vino was the one driving the
bicycle while Salazar was carrying an armalite. Upon reaching Ernesto’s
house, they stopped to watch Roberto. Salazar pointed his armalite at
Ernesto and his companions. Thereafter, the two left.
Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col.
Bernardo Cacananta took his ante-mortem statement. In the said statement
which the victim signed with his own blood, Jessie Salazar was identified as
his assailant.
The autopsy report of his body shows the following—
“Gunshot wound
POE Sub Scapular-5-6- ICA. Pal
1 & 2 cm. diameter left.
Slug found sub cutaneously,
2nd ICS Mid Clavicular line left.
CAUSE OF DEATH
Tension Hemathorax”1
Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint
filed by PC Sgt. Ernesto N. Ordoño in the Municipal Trial Court of Balungao,
Pangasinan. However, on March 22, 1985, the municipal court indorsed the
case of Salazar to the Judge Advocate General’s Office (JAG0) inasmuch as
he was a member of the military, while the case against Vino was given due
course by the issuance of a warrant for his arrest. Ultimately, the case was
indorsed to the fiscal’s office who then filed an information charging Vino of
the crime of murder in the Regional Trial Court of Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea of not guilty. Trial then Court that Jessie Salazar was acquitted by the trial court in a decision that
commenced with the presentation of evidence for the prosecution. Instead was rendered on August 29, 1988.
of presenting evidence in his own behalf, the accused filed a motion to
The respondents were required to comment on the petition. The comment
dismiss for insufficiency of evidence to which the prosecutor filed an
was submitted by the Solicitor General in behalf of respondents. On January
answer. On January 21, 1986,2 a decision was rendered by the trial court
18, 1989, the Court resolved to deny the petition for failure of petitioner to
finding Vino guilty as an accessory to the crime of murder and imposing on
sufficiently show that respondent court had committed any reversible error
him the indeterminate penalty of imprisonment of 4 years and 2 months of
in its questioned judgment. Hence, the present motion for reconsideration
prision correccional as minimum to 8 years of prision mayor as maximum.
to which the respondents were again required to comment. The required
He was also ordered to indemnify the heirs of the victim in the sum of
comment having been submitted, the motion is now due for resolution.
P10,000.00 being a mere accessory to the crime and to pay the costs.
The first issue that arises is that inasmuch as the petitioner was charged in
The motion for reconsideration filed by the accused having been denied, he
the information as a principal for the crime of murder, can he thereafter be
interposed an appeal to the Court of Appeals. In due course, a Decision was
convicted as an accessory? The answer is in the affirmative.
rendered affirming the judgment of the lower court.3
Petitioner was charged as a principal in the commission of the crime of
Hence, the herein petition for review wherein the following grounds are
murder. Under Article 16 of the Revised Penal Code, the two other
invoked:
categories of the persons responsible for the commission of the same
1. “THAT AN ACCUSED CAN NOT BE CONVICTED AS AN ACCESSORY OF THE offense are the accomplice and the accessory. There is no doubt that the
CRIME OF MURDER FOR HAVING AIDED IN THE ESCAPE OF THE PRINCIPAL IF crime of murder had been committed and that the evidence tended to show
SAID ACCUSED IS BEING CHARGED SOLELY IN THE INFORMATION AS that Jessie Salazar was the assailant. That the petitioner was present during
PRINCIPAL FOR THE SIMPLE REASON THAT THE CRIME PROVED IS NOT its commission or must have known its commission is the only logical
INCLUDED IN THE CRIME CHARGED. conclusion considering that immediately thereafter, he was seen driving a
bicycle with Salazar holding an armalite, and they were together when they
2. THAT “AIDING THE ESCAPE OF THE PRINCIPAL” TO BE CONSIDERED
left shortly thereafter. At least two witnesses, Ernesto and Julius Tejada,
SUFFICIENT IN LAW TO CONVICT AN ACCUSED UNDER ARTICLE 19,
attested to these facts. It is thus clear that petitioner actively assisted
PARAGRAPH 3 OF THE REVISED PENAL CODE MUST BE DONE IN SUCH A
Salazar in his escape. Petitioner’s liability is that of an accessory.
WAY AS TO DECEIVE THE VIGILANCE OF THE LAW ENFORCEMENT AGENCIES
OF THE STATE AND THAT THE “ESCAPE” MUST BE ACTUAL; This is not a case of a variance between the offense charged and the offense
proved or established by the evidence, and the offense as charged is
3. THE CONVICTION OF AN ACCESSORY PENDING THE TRIAL OF THE
included in or necessarily includes the offense proved, in which case the
PRINCIPAL VIOLATES PROCEDURAL ORDERLINESS.”4
defendant shall be convicted of the offense proved included in that which is
During the pendency of the appeal in the Court of Appeals, the case against charged, or of the offense charged included in that which is proved.5
Salazar in the JAGO was remanded to the civil court as he was discharged
In the same light, this is not an instance where after trial has begun, it
from the military service. He was later charged with murder in the same
appears that there was a mistake in charging the proper offense, and the
Regional Trial Court of Rosales, Pangasinan in Criminal Case No. 2027-A. In a
defendant cannot be convicted of the offense charged, or of any other
supplemental pleading dated November 14, 1988, petitioner informed this
156
offense necessarily included therein, in which case the defendant must not
be discharged if there appears to be a good cause to detain him in custody,
so that he can be charged and made to answer for the proper offense.6
In this case, the correct offense of murder was charged in the information.
The commission of the said crime was established by the evidence. There is
no variance as to the offense committed. The variance is in the participation
or complicity of the petitioner. While the petitioner was being held
responsible as a principal in the information, the evidence adduced,
however, showed that his participation is merely that of an accessory. The
greater responsibility necessarily includes the lesser. An accused can be
validly convicted as an accomplice or accessory under an information
charging him as a principal.
At the onset, the prosecution should have charged the petitioner as an
accessory right then and there. The degree of responsibility of petitioner
was apparent from the evidence. At any rate, this lapse did not violate the
substantial rights of petitioner.
The next issue that must be resolved is whether or not the trial of an
accessory can proceed without awaiting the result of the separate charge
against the principal. The answer is also in the affirmative. The
corresponding responsibilities of the principal, accomplice and accessory are
distinct from each other. As long as the commission of the offense can be
duly established in evidence the determination of the liability of the
accomplice or accessory can proceed independently of that of the principal.
The third question is this—considering that the alleged principal in this case
was acquitted can the conviction of the petitioner as an accessory be
maintained?
In United States vs. Villaluz and Palermo,7 a case involving the crime of
theft, this Court ruled that notwithstanding the acquittal of the principal
due to the exempting circumstance of minority or insanity (Article 12,
Revised Penal Code), the accessory may nevertheless be convicted if the
crime was in fact established.
157
Corollary to this is United States vs. Mendoza,8 where this Court held in an
arson case that the acquittal of the principal must likewise result in the
acquittal of the accessory where it was shown that no crime was committed
inasmuch as the fire was the result of an accident. Hence, there was no
basis for the conviction of the accessory.
In the present case, the commission of the crime of murder and the
responsibility of the petitioner as an accessory was established. By the same
token there is no doubt that the commission of the same offense had been
proven in the separate case against Salazar who was charged as principal.
However, he was acquitted on the ground of reasonable doubt by the same
judge who convicted Vino as an accessory. The trial court held that the
identity of the assailant was not clearly established. It observed that only
Julius Tejada identified Salazar carrying a rifle while riding on the bicycle
driven by Vino, which testimony is uncorroborated, and that two other
witnesses, Ernesto Tejada and Renato Parvian, who were listed in the
information, who can corroborate the testimony of Julius Tejada, were not
presented by the prosecution.
The trial court also did not give due credit to the dying declaration of the
victim pinpointing Salazar as his assailant on the ground that it was not
shown the victim revealed the identity of Salazar to his father and brother
who came to his aid immediately after the shooting. The court a quo also
deplored the failure of the prosecution and law enforcement agencies to
subject to ballistic examinations the bullet slug recovered from the body of
the victim and the two empty armalite bullet empty shells recovered at the
crime scene and to compare it with samples taken from the service rifle of
Salazar. Thus, the trial court made the following observation:
“There appears to be a miscarriage of justice in this case due to the
ineptitude of the law enforcement agencies to gather material and
important evidence and the seeming lack of concern of the public
prosecutor to direct the production of such evidence for the successful
prosecution of the case.”9
Hence, in said case, the acquittal of the accused Salazar is predicated on the
failure of the prosecution to adduce the quantum of evidence required to
generate a conviction as he was not positively identified as the person who
was seen holding a rifle escaping aboard the bicycle of Vino.

A similar situation may be cited. The accessory was seen driving a bicycle
with an unidentified person as passenger holding a carbine fleeing from the
scene of the crime immediately after the commission of the crime of
murder. The commission of the crime and the participation of the principal
or assailant, although not identified, was established. In such case, the Court
holds that the accessory can be prosecuted and held liable independently of
the assailant.

We may visualize another situation as when the principal died or escaped

before he could be tried and sentenced. Should the accessory be acquitted
thereby even if the commission of the offense and the responsibility of the
accused as an accessory was duly proven? The answer is no, he should be
held criminally liable as an accessory.

Although in this case involving Vino the evidence tended to show that the
assailant was Salazar, as two witnesses saw him with a rifle aboard the
bicycle driven by Vino, in the separate trial of the case of Salazar, as above
discussed, he was acquitted as the trial court was not persuaded that he
was positively identified to be the man with the gun riding on the bicycle
driven by Vino. In the trial of the case against Vino, wherein he did not even
adduce evidence in his defense, his liability as such an accessory was
established beyond reasonable doubt in that he assisted in the escape of
the assailant from the scene of the crime. The identity of the assailant is of
no material significance for the purpose of the prosecution of the accessory.
Even if the assailant can not be identified the responsibility of Vino as an
accessory is indubitable.

WHEREFORE, the motion for reconsideration is denied and this denial is

FINAL.

SO ORDERED.

158