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THIRD DIVISION [G.R. No. 141749. April 17, 2001] FLORENCIO DEL ROSARIO, petitioner, vs.

, PEOPLE OF THE PHILIPPINES, respondent. DECISION GONZAGA-REYES, J.: This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated September 29, 1999, which affirmed in toto the judgment[2] of the Regional Trial Court, Branch 24, Cabugao, Ilocos Sur, finding petitioner Florencio Del Rosario guilty beyond reasonable doubt of homicide and sentencing him to an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, up to twelve (12) years and one (1) day of reclusion temporal, as maximum, and ordering him to pay the heirs of Remy Sinco, the amount of P50,000.00 as death indemnity. Petitioner Florencio together with Edilberto, Alejandro, Emilio, Antonio (all surnamed Del Rosario) and Tomas Abolero were charged with murder in an information,[3] filed on November 8, 1993 by the provincial prosecutor, which alleged That on or about the 7th day of August, 1993, in the municipality of Cabugao, province of Ilocos Sur, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack and shoot with the use of illegally possessed firearms one Remy Sinco, thereby inflicting upon the latter mortal wounds on his body, which wounds necessarily produced the death of said Remy Sinco. CONTRARY TO LAW. Upon arraignment on May 18, 1994, all the above-named accused, assisted by their counsel, entered a plea of not guilty to t he crime charged.[4] Thereafter, trial ensued with the prosecution presenting Lorna Sinco, the victims spouse; Oliver, his son; Edgar, his nephew; Dr. Rudy Singson, Rural Health Physician; and Rodolfo Somera, Chief Investigator of the Cabugao Police Station, as its witnesses. Their testimonies as summarized by the trial court and adopted by the appellate court are as follows: On the night of August 7, 1993, at about 9:00 oclock, the late Remy Sinco, together with his common-law wife, Lorna Sinco, their child Oliver Sinco and their nephew Edgar Sinco, went to the seashore at Brgy. Pug-os, Cabugao, Ilocos Sur, to buy fish; that they passed by the house and yard of accused Emilio del Rosario where all the six (6) accused were drinking liquor; that Remy Sinco made the usual greeting addressed to accused Florencio del Rosario, saying: We will pass by, cousin, to which Florencio del Rosa rio replied: Yes, cousin; that Remys group proceeded on their way to buy fish at the seashore; that after buying fish, they took the same route on their way home; that upon reaching the place where the accused were drinking liquor, all of a sudden, accused Emilio del Rosario, Alejandro del Rosario, Antonio del Rosario and Tomas Albolero held Remys arms and shoulders, after which accused Florencio del Rosario and Edilberto del Rosario shot Remy Sinco at point-blank range; that Remy slumped, while his common-law wife, son and nephew ran towards the national highway to call for help; that while running away, they still heard three (3) successive shots; that eventually, policemen from Cabugao, Ilocos Sur, arrived to retrieve the body of Remy Sinco at a place about thirty (30) meters south of the place where the accused were drinking liquor and where Remy Sinco was allegedly accosted and shot to death. [5] On the other hand, the defense interposed a different version of the incident. Petitioner Florencio Del Rosario admitted killing the victim but disclaimed liability by invoking self-defense. According to him, he had been shot at first, before he shot the victim. All the other accused, namely, Edilberto, Emilio, Alejandro, Antonio (all surnamed Del Rosario) and Tomas Albolero denied any participation in the killing of Remy Sinco. The version of the defense was synthesized by the trial court as follows: Accused Florencio del Rosario claimed that he, alone, killed the deceased in an act of self-defense. He testified that the deceased and his companions, namely: Nelson Sayo, Oliver Sinco and Edgar Sinco, but without the victims common -law wife, Lorna Sinco, were on their way to the seashore when Remy Sinco stopped at the place where they were drinking liquor and hurled invectives at him; that his companions, notably Alejandro del Rosario, pacified them when they had a heated exchange of words; that thereafter, the deceased and his companions proceeded on their way towards the seashore; that when they returned, Remy Sinco dropped by the same place and let his companions go ahead; that he had conversation with the accused for about thirty (30) minutes, after which the deceased requested Florencio del Rosario to conduct him home; that Florencio del Rosario obliged and while they were on their way towards the south, Florencio observed that Remys companions were waiting at a distance of about eight (8) meters; that as a precauti onary measure, Florencio del Rosario stepped back and moved away from Remy Sinco; that it was at this juncture that Remy Sinco turned around and fired his gun at Florencio del Rosario three (3) times, but only one (1) shot found its mark; that when Florencio felt that he was hit on his right leg, he dropped to, and rolled on the ground, drew his gun and fired at Remy Sinco who, it turned out, was fatally hit.[6] On the basis of the testimonial and documentary evidence on record, the trial court rendered judgment convicting petitioner Florencio Del Rosario of homicide not murder, and acquitting all his other co-accused on the ground that conspiracy amongst them in perpetuating the killing of Remy Sinco was not proven beyond reasonable doubt. As mentioned earlier, the Court of Appeals affirmed the findings of the trial court that the evidence for the defense failed to establish the justifying circumstance of self-defense, particularly, the defense failed to prove unlawful aggression on the part of the victim and the reasonable necessity of the means employed to prevent or repel the unlawful aggression. Hence, the instant petition, on the ground that the Court of Appeals gravely abused its discretion in: a. HOLDING THAT PETITIONER FAILED TO PROVE SELF-DEFENSE; b. SUSTAINING THE FINDING OF THE TRIAL COURT WHICH OVERLOOKED, MISUNDERSTOOD AND MISAPPLIED SOME FACT OR CIRCUMSTANCE OF WEIGHT AND SUBSTANCE THAT COULD HAVE AFFECTED THE RESULT OF THE CASE.[7]

Petitioner argues that he acted justifiably and reasonably in defending himself against an assailant who had already wounded him; he insists that he was first shot in the leg by the deceased; that after being wounded, he cannot be expected to act calmly and just think of maiming the deceased. After a careful examination of the evidence and study of the records on hand, the Court finds no merit in the petition. Both the trial and appellate courts found petitioner Florencio Del Rosarios self-defense theory unbelievable. To begin with, petitioner failed to consider that where an accused invokes self-defense to prove that he killed the victim to save his life, the burden of proof is shifted to him.[8] He must rely on his own evidence and not on the weakness of the prosecution.[9] Having admitted the killing, it became his inescapable burden to prove clearly and convincingly the elements of unlawful aggression on the part of the victim, reasonable necessity of the means employed to prevent or repel the aggression, and lack of sufficient provocation on the part of the person defending himself.[10] This, petitioner failed to do. First of all, on the witness stand, petitioner narrated that there existed between him and the victim, Remy Sinco, ill-feelings way back in 1992, because the former refused to give protection to the latte rs plan to set up illegal gambling in Manila. On the day the victim met his untimely death, the two of them had a heated altercation because the victim insulted him. Despite the rancor which existed between them, petitioner testified that Remy asked to be taken home that very same day. On the way home, Remy allegedly shot at his foot and he retaliated, killing him. The said version runs counter to human experience and behavior. It was very unlikely that Remy would ask petitioner to take him home when they were not in good terms and just had a heated altercation; added to this was the fact that Remy knew that petitioner was a member of the Philippine National Police and was licensed to carry a firearm. Secondly, petitioners testimony on the alleged initial assault by the victim was not corroborated by any of the defense witnesses. The entire incident was established solely by petitioners testimony. Finding that petitioner failed to prove unlawful aggression on the part of the victim, the trial court aptly observed thus: In the present case, the accused endeavored to show that the deceased was the unlawful aggressor when he turned around, drew his gun and fired at the accused three (3) times, hitting his right leg. But, curiously enough, no gun was recovered from the deceased and there must be truth to the allegation of the three (3) prosecution witnesses that the deceased was not armed with a gun on that fateful night. Otherwise, the accused should have exerted effort to retrieve the gun allegedly wielded by the deceased and preserve it for evidentiary purposes. But in order to dispel any doubt, reference may be made to the entry in the police blotter (Exh. J -1) showing that the police investigators recovered two (2) empty shells fired from a .45 caliber handgun and one (1) misfired ammunition for the same caliber. What was issued to accused Florencio Del Rosario as his service firearm was a .45 caliber Ithaca pistol with Serial No. 1961874 (Exh. 6 -c). No other empty shell was recovered at the scene of the crime. Indeed, all the witnesses for the defense, excluding herein petitioner, numbering thirteen (13) testified as to matters which took place before or after the shooting. True, petitioner had a gunshot wound which he claimed resulted from the initial assault by the victim. However, the assertion that the victim had a gun fails in light of the testimony of the three prosecution witnesses that Remy was unarmed which was corroborated by SPO4 Rodolfo Somera, Chief Investigator of the Cabugao Police Station, who went to the scene of the crime to investigate and did not see nor recover any gun from the victim. Added to this is the fact that shells recovered from the crime scene were found to have been fired from a .45 caliber firearm matching the firearm issued to petitioner. It has been held that the plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is also extremely doubtful in itself.[11] Thirdly, the lower court did not err in rejecting petitioners theory of self -defense considering the nature and number of gunshot wounds on the victim. The victim Remy Sinco suffered eight (8) gunshot wounds on the head, neck, chest, stomach, right arm and right leg. Verily, the nature, location and number of the wounds sustained by the victim made petitioners theory of self-defense implausible.[12] Dr. Rudy M. Singson who conducted the post-mortem examination on the victim revealed that four (4) out of the eight (8) gunshot wounds sustained by the victim could have caused his instantaneous death. [13] If petitioner shot the victim just to defend himself, it defies reason why he had to pump several bullets on the head, chest and stomach of the victim which clearly manifest a deliberate and wanton intention to kill the latter. In fine, unlawful aggression and reasonable necessity of the means employed to repel the same which are elements of self-defense were not established. We agree with the trial court that the crime committed by the petitioner is homicide, not murder, because the qualifying circumstances of treachery and evident premeditation were not proven. Treachery could not be appreciated against petitioner considering that no evidence was presented to show that the accused consciously and deliberately adopted a mode of attack intended to ensure the killing without risk to the accused.[14] The evidence does not show that the accused made some preparation to kill the victim in such manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself.[15] Neither could evident premeditation be appreciated considering there is no evidence as to when and how petitioner planned and prepared for the killing of the victim.[16] In the absence of any qualifying circumstance, the crime committed was homicide, the penalty for which under Art. 249 of the Revised Penal Code is reclusion temporal. As there was one mitigating circumstance of voluntary surrender as found by the lower courts, and no aggravating circumstance, the penalty should be fixed in its minimum period.[17] Applying the Indeterminate Sentence Law, petitioner Florencio Del Rosario should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower in degree, i.e. prision mayor, and the maximum of which is that properly imposable under the Revised Penal Code, i.e. reclusion temporal in its medium period.[18] The penalty imposed by the trial court is within said range, hence, we sustain it. Finally, in accordance with current jurisprudence, we sustain the death indemnity in the amount of P50,000.00. [19] WHEREFORE, the questioned decision of the Court of Appeals sustaining that of the trial court, is AFFIRMED. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ.,concur.

EN BANC [G.R. No. 129051. July 28, 1999] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROMEO MOLINA y FLORES, Accused-Appellant. DECISION ROMERO, J.: The present case is one for murder brought before us on automatic review, the capital punishment of death having been imposed by the trial court. Accused-appellant, Romeo Molina, was indicted for the crime of murder allegedly committed as follows: That on or about the 14th day of July, 1995 at barangay D Alarcio, municipality of Laoac, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, with intent to kill and with treachery, did then and there wilfully, unlawfully and feloniously attack, hit and stab DOMINGO FLORES with the use of a stone and knife, inflicting to said victim the following injuries: EXTERNAL FINDINGS: - Contusion + lacerated wound 0.5 cm. over the left eyebrow - Contusion + lacerated wound V-shape over the right parieto temporal area - Contusion + lacerated wound over the occipital area - Deep lacerated wound 2 cm. over the ant. neck area - (+) Subcuteous emphysema base cervinal area INTERNAL FINDINGS: - Depressed Fracture over the occipital bone with minimal bleeding - Linear fracture over the right parieto tempral bone which injuries being mortal caused the death of said Domingo Flores to the damage and prejudice of his heirs. CONTRARY to Article 248, Revised Penal Code.1 On arraignment, accused-appellant with the assistance of counsel entered a plea of not guilty and after trial, Judge Joven F. Costales of Branch 45 Regional Trial Court of Urdaneta, Pangasinan rendered the decision2 now under review, the decretal portion of which reads: WHEREFORE, in view of all the foregoing, this Court finds the accused ROMEO MOLINA y Flores GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized under Republic Act No. 7659 otherwise known as the Heinous Crime Law, the offense having been committed with the attendant aggravating circumstance of dwelling and hereby sentences him with the ultimum supplicium of DEATH to be executed pursuant to Repbulic Act No. 8177 known as the Lethal Injection Law and to pay the heirs of the victim DOMINGO FLORES in the amount of P50,000.00 as indemnity; P40,000.00 as actual damages; P200,000.00 as moral damages; and to pay the costs. Finally, it is said: Dura lex, sed lex, translated as The law is harsh, but that is the law! SO ORDERED.3 The facts, as culled from the evidence of the prosecution are as follows: On July 14, 1995, at around 10:00 oclock in the evening, Domingo Flores was asleep in his house in DAlarcio, Laoac, Pangasinan. His daughter, Melanie, who was then listening to the radio, was the only one in the household still awake at that time. Hearing a sound, she saw accused-appellant, her fathers cousin, barging in through the kitchen door and going straight to her fathers room. She peeped through a curtain and saw accused-appellant hitting her sleeping father on the head with a stone the size of a fist and afterwards stabbing him in the neck and eyebrow with a knife. She was able to recognize her uncle as her fathers assailant because there was a lamp near her fathers head at the time of the attack. Afraid that she too would be harmed, Melanie did not immediately come to her fathers aid and instead watched as accused-appellant made good his escape. It was only after Molina had left that she hastened to call her grandfather, Eufrosinio Flores, who lived nearby. 4 Responding to Melanies cries, Eufrosinio found his son on the bed soaked in his own blood. As Eufrosinio lifted his son onto his lap, Domingo, fatally wounded and bleeding, told his father that it was his insan Romy who stabbed him. Hours later, Domingo died from his injuries while being transferred to another hospital. 5 Post-mortem findings revealed that the cause of his death was severe intracranial bleeding secondary to skull fracture and blood loss due to a stab wound on the neck.6crlwvirtualibrry On his part, Molina interposed the defense of alibi to exculpate himself from liability. According to him, on July 14, 1995, he left his house in Cabilaoan, Laoac, Pangasinan at around three oclock in the afternoon to borrow the plow of his uncle, Martin Molina, who lived in Manaoag, Pangasinan. When he was returning home after getting the plow, he met the victim Domingo Flores and Orlando Fernandez. Suddenly and without any provocation, the two who appeared drunk at the time, took turns mauling him. Thereafter, he hailed a tricycle and told the driver to take him to the Don Amadeo Perez, Sr. Memorial Hospital in Urdaneta, Pangasinan where his injuries were cleaned and treated. The attending physician, Dr. Noel Obedoza, recommended that Molina be confined but the latter refused, saying he had no money.

According to the accused-appellant, he stayed in the hospital waiting area up to eleven oclock in the evening of July 14, 1995 until a nursing attendant in the said hospital, Alejandro Duyag, took pity on him and brought him to the latters house where he spent the night. Molina claimed that he has since stayed with Duyag for about a month as he did not want to go home for fear that his attackers would harm him again. During his stay with Duyag, he worked for the latter as farm helper. Accused-appellant further denied having had anything to do with the death of Domingo Flores, claiming that he only learned of the killing more than a month later. He likewise said that prior to July 14, 1995, there was no bad blood between him and the victim. In fact, he said, Domingo was like a father to him and he saw no reason why the victims family would make any false accusations against him.7crlwvirtualibrry To corroborate the foregoing testimony of the accused-appellant, the defense presented Dr. Noel Obedoza8 and Alejandro Duyag, Sr.9 Moreover, the policeman who prepared the investigation report based on the police blotter entry regarding the killing of Domingo Flores and the investigating officer assigned to the case were likewise called as witnesses to establish certain inconsistencies in the initial statements of Melanie and Eufresinio.10crlwvirtualibrry Article 248 of the Revised Penal Code as amended by Republic Act No. 7659 states that: Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. xxx. In the case at bar, the identity of Domingo Flores killer is not unknown. The records show that accused-appellant was positively identified as the assailant, not only by Domingos daughter Melanie, who witnesses the stabbling, but also by the victim himself while the latter was in the throes of death. The requisites for the admissibility of dying declaration have already been established in a long line of cases. Thus, in the case at bar, the victims ante-mortem statement is entitled to much probative weight since it has been proven that: (1) at the time the declaration was made, death was imminent and the declarant was conscious of that fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration relates to facts which the victim was competent to testify to; (4) the declarant thereafter died; and (5) the declaration is offered in a criminal case wherein the declarants death is the subject of the inquiry. Indeed, a dying declaration is entitled to the highest credence because no person who knows of his impending death would make a careless and false accusation. Thus, it has been held that when a person is at the point of death, every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. 11crlwvirtualibrry Accused-appellant attempted to exculpate himself from liability by pointing out certain inconsistencies between the sworn statements and the testimonies of Melanie and Eufrosinio. In Melanies sworn statement, she said that she saw accused-appellant stab her father that fateful night of July 14, 1995. However, she testified in court that she saw Molina hit her father twice in the head with a stone before stabbing him on the left eyebrow and neck. Eufresinio, on the other hand, averred in his sworn statement that Domingo, making his dying declaration, pointed to Molina as his assailant, in the jeepney while the victim was being brought to the hospital; in his testimony, however, Eufresinio clarified that the dying declaration was made while they were still in Domingos house right after the latter was stabbed. To our mind, these inconsistencies do not affect the credibility of the said witnesses. For one, accused-appellant himself admitted in open court that prior to July 14, 1995, there was never any bad blood between him and Domingo and that he saw no reason why the latters family would make false accusations against him. Moreover, the alleged discrepancies may well be due to the fact that at the time the sworn statements of the witnesses were taken, they were still in a state of grief and shock, which explains why they were not able to relate accurately the events that transpired on the night of the killing. Likewise, it should be noted that the sworn statements of the said witnesses were prepared by police investigators and misapprehension by the latter of the facts related by the witnesses cannot be discounted. In any case, the records bear out the fact that during the trial, both Melanie and Eufresinio were able to clarify their averments in their respective sworn statements and despite the gruelling cross-examination, they managed to consistently and credibly maintain their version of what actually happened. It should be reiterated that discrepancies between the affidavit of a witness and his testimony in court do not necessarily discredit him because it is a matter of judicial experience that affidavits, being taken ex-parte, are almost always incomplete and often inaccurate.12 Besides, as the lower court cited, the testimonial discrepancies could have been caused by the natural fickleness of memory which tends to strengthen, rather than weaken credibility as they erase any suspicion of rehearse testimony.13 Furthermore, as this Court has time and again observed, it is when the testimony appears totally flawless that a court may entertain misgivings on its veracity. In fact, certain minor variances in the details of a witness account, more frequently than not, can be badges of truth rather than indicia of falsehood, and they often bolster the probative value of the testimony.14crlwvirtualibrry Moreover, well entrenched is the rule that inconsistencies and discrepancies in the testimony of witnesses, when referring only to minor details and collateral matters, do not affect either the substance of their declaration, their veracity, or the weight of their testimony. Although there may be inconsistencies on minor details, the same do not impair the credibility of the witness where there is consistency in relating the principal occurrence and positive identification of the assailant, as in the case at bar. 15crlwvirtualibrry With respect to the accused-appellants defense of alibi, suffice it to say that denials and alibis, unsubstantiated by clear and convincing evidence, are negative and self-serving and deserve no probative weight especially in light of the testimonies of credible witnesses who have positively identified the accused as the assailant. In addition, it has been held that for an alibi to prevail, the defense must establish by positive, clear and satisfactory proof that it was physically impossible for the accused to have been at the scene of the crime at the time of its commission, and not merely that the accused was somewhere else, 16 as Molina claimed in this case. Accusedappellant himself admitted on the witness stand that from the hospital where he was treated for his injuries, he could have easily taken a tricycle ride to get to the victim's house.17crlwvirtualibrry

This Court has had occasion to rule that alibi is one of the weakest defenses an accused can invoke, and the courts have always received it with caution, if not suspicion, not only because it is inherently unreliable but likewise because it is rather easy to fabricate.18crlwvirtualibrry As to the manner in which Molina killed the victim, the same was undoubtedly attended by treachery since the accused attacked Domingo while the latter was asleep and unable to defend himself. There is alevosia where the attack was sudden and unexpected, rendering the victim defenseless and ensuring the accomplishment of the assailants evil purpose without risk to himself.19crlwvirtualibrry Likewise, the generic aggravating circumstance of dwelling was properly appreciated by the trial court, considering that Molina purposely entered the victims abode with the intention to kill him. Article 14 (5) of the Revised Penal Code provides that where the crime was committed in the dwelling of the offended party and the latter has not given any provocation, the same is considered an aggravating circumstance. As Viada puts it, The home is a sort of sacred place for its owner. He who goes to anothers house to slander him, hurt him or do him wrong, is more guilty than he who offends him elsewhere.20crlwvirtualibrry It should be emphasized that for dwelling to be appreciated as an aggravating circumstance, there must have been no provocation on the part of the victim. The provocation contemplated here is one that is sufficient and immediate to the commission of the crime. In other words, the invasion of the privacy of the offended partys house must have been the direct and immediate consequence of the provocation given by the latter as where, for example, the accused and the victim quarelled in front of the latters house and the accused, in a fit of rage entered the victims house and proceeded to stab him. 21 Such is not the situation in the case at bar because the killing in the victims house occurred at least six hours after the accuseds mauling. There is, however, the mitigating circumstance of vindication of a grave offense to offset the generic aggravating circumstance of dwelling. As the records show, accused-appellant was treated for injuries he sustained when he was mauled in the afternoon of July 14, 1995 and the prosecution did not offer anny rebuttal evidence to deny the allegation that Domingo was one of the men who beat up Molina. Indeed, that accused-appellant was mauled for no apparent reason by someone who looked up to as a father understandably engendered a strong feeling of vengeance on his part. Sadly, however, he chose to take the law into his own hands to sate his thirst for revenge. WHEREFORE, in view of the foregoing, the judgment of the trial court convicting the accused for murder is hereby AFFIRMED with the MODIFICATION that the penalty is reduced from death to reclusion perpetua, the generic aggravating circumstance of dwelling having been offset by the mitigating circumstance of vindication of a grave offense. No costs. SO ORDERED.

EN BANC [G.R. No. 130010. May 26, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE RABANILLO y MAGALONG, accused-appellant. DECISION DAVIDE, JR., C.J., Accused-appellant Vicente Rabanillo (hereafter RABANILLO) was charged before the Regional Trial Court of Dagupan City, Branch 43, with the crime of murder in an information[1] whose accusatory portion reads: That on or about August 9, 1996, at 5:0 0 oclock in the afternoon at barangay Amansabina, municipality of Mangaldan, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed samurai, with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously hack RAUL MORALES y Visperas, thereby causing his death thereafter due to: INTRA THORA-ABDOMINAL HEMORRHAGE, sec. to open wound of the back THORA HEPATIC HEMORRHAGE, sec. to incised wounds as per Medico-Legal Report issued by Dr. Reynaldo C. Gabriel, M.D., RHU of Mapandan [ sic], Pangasinan, to the damage and prejudice of the heirs of Raul Morales y Visperas. CONTRARY to Art 248 of the Revised Penal Code, as amended by R.A. [No.] 7659. Later, RABANILLO filed a motion denominated Plea Bargaining Offer [2] stating his willingness to enter a plea of guilty to the crime of homicide. This motion was met with vehement objection[3] from the prosecution and was eventually denied [4] by the trial court. Upon arraignment, the appellate entered a plea of not guilty[5] to the charge of murder. The undisputed facts[6] are as follows: In the afternoon of 9 August 1996, appellant RABANILLO; the victim Raul Morales (hereafter MORALES); prosecution witnesses Perfecto Suarez, Samuel Magalong, and Ramil Morales; and several other persons were having a drinking spree at the store of Narcisa Morales, mother of MORALES, at Barangay Amansabina, Mangaldan, Pangasinan. At about 5:00 p.m., a certain Willy Vito, one of the participants in the drinking session, took a bath at the artesian well nearby and jokingly doused Suarez with water. The latter tied to retaliate but failed; he thus ran after the others and splashed them with water. RABANILLO joined the game. He filled with water and tried to pour its content at someone, but drenched MORALES instead. The latter reprimanded the former because water got into his ear. A heated argument between the two ensued and culminated into a fistfight. The two were eventually pacified by cooler heads and were ushered to their respective houses, which were just about 15 meters apart. The others milled around by the road. As to what transpired next, the prosecution and the defense had different versions. The evidence for the prosecution reveals that half an hour after the fisticuff while MORALES, Suarez, and one Mauro Pascua were having a conversion in the terrace of the house of MORALES, RABANILLO went out of his house wielding a one-meter samurai. RABANILLO went straight to MORALES and hacked him. Instinctively, the latter parried the blow, but he was hit on his right hand. When he attempted to run away, he tripped and fell down to the ground. At this point, RABANILLO hacked him two times more, hitting at his back and left shoulder. That same day, MORALES drew his last breath.[7] On the other hand, the defense presented the following version: A while later appellant heard Raul Morales, then in the terrace of their house that is beside appellants house, shouting and challenging him to come out. Forthwith, appellant, irked by the challenged, emerged from his house with a bolo on hand and attacked Raul Morales and killed him in the process. Thereafter, accompanied by the barangay captain, he went to the Town hall of Mangaldan, Pangasinan, and surrendered.[8] In its decision[9] of 14 July 1997, the trial Court noted that when RABANILLO took the witness stand, he offered his testimony to prove the mitigating circumstances of passion and obfuscation, drunkenness, and voluntary surrender and that he was not, therefore, denying having killed MORALES. It then limited the issues to the presence of such mitigating circumstances, as well as of the aggravating circumstances of treachery, evident premeditation, and abuse of superior strength. The trial court ruled out treachery, reasoning that the victim had been forewarned of the evil intention of RABANILLO when the latter went out of his house armed with a samurai bolo; besides, the initial attack was frontal. It, however, appreciated evident premeditation as a qualifying circumstance because the period of 45 minutes which elapsed between the time the fight was broken up and the time RABANILLO decided to kill MORALES was sufficient period of time to ponder with cold neutrality on what to do in the premises, whether to do a righteous act or to pursue a criminal overt act despite knowledge of its evil consequences. After the lapse of that period, RABANILLO still clung to his evil intention and hacked MORALES to death. The trial court also appreciated the aggravating circumstance of abuse of superior strength because, aside from the fact that RABANILLO had a bulkier and strong[er] body physique as compared to victims slimmer/thinner body, he sti ll armed himself with a samurai bolo to insure the preparation of his evil intention. RABANILLOs claim of the attenuating circumstance of passion and obfuscation was not considered. The trial court was not convinced that MORALES had inflicted bodily injury against RABANILLO; if ever the latter sustained injuries, they were incurred when MORALES and RABANILLO were engaged in a fisticuff. It noted that the fight was ignited by RABANILLO when he poured water into the ear of MORALES. The trial court also debunked RABANILLOs claim of intoxication for lack of evidence. It likewise refused to give the benefit of the mitigating circumstance of voluntary surrender, holding that RABANILLOs own test imony that it was the barangay captain who went to RABANILLOs house and brought him to the police station belied his claim that he voluntarily surrendered. Accordingly, the trial court convicted RABANILLO for the crime of murder and decreed as follows:

WHEREFORE, the Court finds accused Vicente Rabanillo y Magalong GUILTY beyond reasonable doubt of the felony of MURDER defined and penalized under Article 248 of the Revised Penal Code as amended by R.A. 7659, attended by the qualifying aggravating circumstance of evident premeditation and generic aggravating circumstance of taking advantage of superior strength and conformably to law, the Court sentences him to suffer the capital penalty of reclusion perpetua to DEATH. Further, the COURT orders the accused to pay Narcisa Morales (mother of Raul Morales) the following, to wit: 1) P50,000.00 as indemnity; 2) P30,000.00 as moral damages; 3) P20,000.00 as exemplary damages; 4) P41,024.70 representing actual and compensatory damages; 5) P10,000.00 as attorneys fees; 6) And costs. The Provincial Warden of Pangasinan is ordered to commit the person of accused VICENTE M. RABANILLO to the National Penitentiary in Muntinlupa, Metro Manila, immediately without any unnecessary delay. SO ORDERED. Hence, RABANILLO appealed the decision to this Court contending that the trial court erred (1) in finding that the killing of MORALES was qualified by evident premeditation; and (2) in not finding that he is entitled to the mitigating circumstance of passion and obfuscation, intoxication, and voluntary surrender. Anent the first assigned error, RABANILLO maintains that it was only when MORALES and his friends started taunting him, You come out, Tanod Commander, that he, in a fit of anger, emerged from his house and attacked MORALES. The killing was not planned, and there was no sufficient time for meditation and reflection on the nature and consequence of his act. As to the second assigned error, RABANILLO asseverates that he should be given the benefit of the mitigating circumstances of passion and obfuscation, drunkenness, and voluntary surrender. The words You come out, Tanod Commander are enough to make one, especially a barangay folk who is characteristically sensitive, blinded by passion. Moreover, having imbibed liqour from 2:00 to 5:00 p.m., he must have been surely drunk to be so sensitive to accept the victims challenge. After killing the victim, he voluntarily went with the Barangay Captain to the police station to surrender and willingly obliged to be committed in jail even without a warrant of arrest or an information against him. In its Brief, the Office of the Solicitor General (OSG) recommends that RABANILLO be convicted to homicide only, not murder, in that the qualifying circumstance of evident premeditation was not present and that the aggravating circumstance of abuse of superior strength, which was correctly appreciated by the trial court, was not alleged in the information. It agrees with the trial court in all other respects. We agree with the trial court in ruling out treachery. The evidence shows that MORALES was facing towards the direction where RABANILLO came from.[10] He must then have caught sight of the latter, who was approaching him with a samurai in his hands. Considering that a fight between them had just taken place. MORALES knew or must have known that he would be the target of RABANILLOs attack. Since he was still about 10 meters[11] away from RABANILLO, he had an opportunity to escape or avoid the assault. Hence, it cannot be said that treachery attended the commission of the crime. However, we are of one mind with the OSG and RABANILLO that evident premeditation was wanting in the commission of the crime. For evident premeditation to be considered, the following elements must be established: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender has clung to his determination; and (3) sufficient lapse of time between the determination to commit the crime and the execution thereof of allow the offender time to reflect upon the consequences of his act.[12] The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a span of time sufficient to arrive a calm judgment.[13] In the present case, there is no showing as to the time RABANILLO decided to commit the crime. Even assuming that it was right after he was escorted to his house that he conceived the idea of killing the victim, evident premeditation cannot be appreciated. Only 30 minutes[14] intervened between that time and the time he went out of his house to attack MORALES. It has been held that the lapse of 30 minutes between the determination to commit a crime and the execution thereof is insufficient for full meditation on the consequences of the act.[15] Additionally, as aptly observed by the OSG, the attending circumstances of the killing and the external acts of the appellant negate the existence of evident premeditation; thus: When accused-appellant rushed out from his house, it was just 5:30 in the afternoon. (TSN, April 11, 1997, p. 10) Following Philippine norm, it would still be daylight or at least there would still be sufficient light to easily see people or happenings. The persons who were previously drinking were just milling around by the road. (TSN, November 7, 1996, p. 21) Accused-appellant did not even wait until Raul Morales was alone; he came out of his house with the samurai parallel to his head and directly went straight to the victim at the time when the latter was conversing with two of his friends. Also, accused-appellant did not even attempt to disguise his intention by camouflaging his weapon. He raised it high for all to see. Cool thought and calm judgment, there was none in this case.[16] Since the qualifying circumstances of treachery and evident premeditation are not present in this case, RABANILLO can be convicted of homicide only. We do not agree with the trial court on its finding of the aggravating circumstance of abuse of superior strength. It appreciated such circumstance because RABANILLO had a bulkier and strong[er] body physique as compared to victims slimmer/thinner body, and despite thereof he armed himself with a samurai bolo. There is abuse of superior strength if, as expressly provided by law, the assailant take advantage of his superior strength. It must then be established that not only did the assailant enjoy superior strength over the victim, but that he took advantage thereof in the commission of the crime. That MORALES was slimmer/thinner while Rabanillo was bulkier and strong[er] was not enough proof

that the letter superior strength. There should have been proof that, indeed, RABANILLOs bulkier physique provided him physical strength to that of MORALES. It may further be stressed that a man of slimmer/thinner body need not necessarily be physically weak; he could even be physically stronger than a bulkier person. Moreover, even granting for the sake of argument that RABANILLO was physically stronger than MORALES, the circumstances in this case fail to convince us that RABANILLO took advantage of his superior strength. Now on the mitigating circumstances invoked by RABANILLO. To prove passion and obfuscation, RABANILLO testified that the group of MORALES shouted at him: You come out, Tanod Commander. Thereupon, one Meljhones Soriano approached him and held his hands. At this point, MORALES boxed him on different parts of his body and threw bottles at him. Not contented, the group resumed shouting at him. He was so blinded by their shoutings that he did not know anymore what happened next. [17] In his Brief, however, RABANILLO abandoned these allegations that MORALES boxed him and threw bottles at him. He merely stated that the obfuscation on his part was generated by the victims words, You come out, Tanod Commander, which he considered a challenge against his person and honor as the chief tanod of the Barangay. We are not persuaded. Prosecution witnesses Perfecto Suarez and Samuel Magalong were one in saying that MORALES was just having a conversation with his friends when RABANILLO came out of his house ready to attack. It is significant to note that RABANILLO himself testified that Samuel Magalong is the son of RABANILLOs first cousin, [18] and he did not deny Suarez's testimony that he, RABANILLO, is Suarezs grandfather. [19] Since Magalona and Suarez are RABANILLOs nephew and grandson, respectively, they would unlikely omit anything in their testimony that would mitigate the liability of RABANILLO. But, despite their relationship with RABANILLO, they agreed to tell nothing but the truth and helped in giving justice to MORALES, who was merely a friend and a barriomate. Suarez and Magalong testified that before the hacking incident, MORALES reprimanded RABANILLO in front of their drinking mates for dousing him with water, which entered into his ear. RABANILLO resented it and felt humiliated. Hence, a fistfight ensued, but was eventually broken up. The event must have continued to dominate RABANILLOs thought that he decided to strike back at the victim by hacking him to death. Clearly, the assault was made in a fit of anger. For passion and obfuscation to be mitigating, the same must originate from lawful feelings. [20] The turmoil and unreason that 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[21]. The excitement which is inherent in all persons who quarrel and come to blows does not constitute obfuscation. [22] Moreover, the act producing obfuscation must not be far removed from the commission of the crime by a considerable length of time, during which the accused might have regained his normal equanimity. [23] Thus, it has been held that where at least half an hour elapsed between the previous fight and the killing, the accused cannot be given the benefit of the attenuating circumstance of obfuscation.[24] In this case, 30 minutes intervened between the fistfight and the killing of MORALES by RABANILLO. The attack cannot, therefore, be said to be the result of a sudden impulse of natural and uncontrollable fury. Having been actuated more by the spirit of revenge or by anger and resentment for having been publicly berated by MORALES, RABANILLO cannot be credited with the extenuating circumstance of passion and obfuscation. Neither can be appreciate in favor of RABANILLO the alternative circumstances of intoxication. To be mitigating, the accuseds state of intoxication should be proved or established by sufficient evid ence.[25] It should be such an intoxication that would diminish or impair the exercise of his willpower or the capacity to know the injustice of his act. [26] The accused must then show that (1) at the time of the commission of the criminal act, he has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of self-control; and (2) such intoxication is not habitual or subsequent to the plan to commit the felony. [27] It is worthy to note that while RABANILLO was presented to prove drunkenness among other extenuating circumstances, he merely stated in his testimony that he joined his friends Domingo de Guzman and Elde Soriano in a drinking session, but only for a short time. His friends started their drinking spree at about 11:00 a.m. of that fateful day, and he was the one serving their pulutan. It was about 12:00 noon that he joined them. At past 12:00 noon, he helped his daughter-in-law in selling cooked foods. From 3:00 to 5:00 p.m., he was cleaning his house.[28] The fact that he was able to resume his routine work belies his claim that he was heavily drunk at the time he attacked the victim. The testimony of his daughter-in-law that RABANILLO had been drinking 4 x 4 Ginebra San Miguel from 10:30 a.m. to 5:00 p.m.[29] is not sufficient to establish drunkenness. The remains no proof that RABANILLO had taken such quantity of liquor as to impair his mental faculties. His own witness testified that he would drink liquor twice a week. [30] As pointed out by the OSG, this regularity of RABANILLOs intake must have increased his tolerance for alcohol to such an extent that he could not easily get drunk. As to his claim of voluntary surrender, RABANILLO testified that a few minutes after the hacking incident, the barangay captain came to his house and told him that they would go to the Municipal Hall. He agreed. At the time, he had mental blackout, which was why he failed to tell the barangay captain that he was the one who killed MORALES. At the Municipal Hall, he reported that there was trouble in Amansabina.[31] For voluntary surrender to be considered, the following requisites must concur: (1) the offender was not actually arrested; (2) he surrendered to a person in authority or to an agent of a person in authority; and (3) his surrender was voluntary. [32] A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities either because (a) he acknowledges his guilt or (b) he wishes to save them the trouble and expense necessarily incurred in his search and capture. [33] That RABANILLO submitted himself to the custody of law even though there was yet no warrant of arrest or information against him is of no moment. The barangay captain had to go to the house of RABANILLO to take the latter to the police station. The latter did not present himself voluntarily to the former, who is a person in authority pursuant to Article 152 of the Revised

Penal Code, as amended; neither did he ask the former to fetch him at his house so he could surrender. [34] The fact alone that he did not resist but went peacefully with the barangay captain does not mean that he voluntarily surrendered. [35] Besides, voluntary surrender presupposes repentance[36]; this condition could not have existed because at the moment he was brought to the police station, he had mental blackout. Moreover, he merely reported to the police that there was trouble in Amansabina. Hence, the mitigating circumstance of voluntary surrender cannot be appreciated in favor of RABANILLO. There being neither mitigating nor aggravating circumstance established in this case, the penalty that may be meted out to RABANILLO is the medium period of that prescribed by law for the offense. [37] The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. Applying the Indeterminate Sentence Law, an indeterminate penalty whose minimum should be within the range of the penalty next lower in degree, i.e., prision mayor, and whose maximum should be that of reclusion temporal in its medium period, may be imposed on RABANILLO. Concretely, such indeterminate penalty should be TEN (10) years ofprision mayor, in its medium period as minimum to SEVENTEEN (17) years and FOUR (4) months of reclusion temporal in its medium period as maximum. Before we close this case, two matters deserve a few words. First, the trial court imposed the penalty of reclusion perpetua to DEATH. This is clearly erroneous, even if it be conceded arguendo that the crime committed was murder. While Article 248 of the Revised Penal Code punishes murder with reclusion perpetua to death, it does not follow that courts should impose these two indivisible penalties. What should be imposed is one or the other depending on the presence of modifying circumstances. Article 63 of the Revised Penal Code expressly provides that in all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof, to wit: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are nether mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. 3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. 4. When both mitigating and aggravating circumstances attended the commission of the act, the courts shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. Second, in the body of the decision there is no specific finding on the issue of damages, yet, in the dispositive portion, there are awards of damages. RABANILLO, however, did not question these awards. Nonetheless, since an appeal in a criminal case throws the whole case open for review, we shall determine whether the awards are warranted. As to actual damages, the sister of MORALES testified that as a result of the death of MORALES, her family spent P41,024.70[38] for the funeral services, food served during the wake, coffin, tomb, masses and novena. However, on cross examination, she admitted the existence of contributions in the amount of P15,000.00.[39] The award of P41,024.70 should, therefore, be reduced to P26,024.70. We sustain the award of moral damages in favor of Narcisa Morales, mother of MORALES, who testified on her suffering brought about by the untimely death of her son. In view, however, of our finding that no aggravating circumstance attended the commission of the crime, no exemplary damages may be awarded. [40] The award of attorneys fees may be allowed under circumstance (11) of Article 2208 of the Civil Code. However, the awards of civil indemnity, actual damages, and attorneys fees should be payable not only to the mother but also to the other heirs of MORALES. WHEREFORE, the appealed decision is AFFIRMED with the following modifications: Accused-appellant VICENTE RABANILLO is found guilty beyond reasonable doubt, as principal, of the crime of homicide, and not murder; and, applying the Indeterminate Sentence Law, he is hereby sentenced to suffer an indeterminate penalty ranging from TEN (10) years of prision mayor as minimum to SEVENTEEN (17) years and FOUR (4) months of reclusion temporal as maximum with all the accessories thereof, and to pay (a) the heirs of the victim Raul Morales the sums of P50,000 as indemnity for the death of said victim: P26,024.70 as actual damages; and P10,000.00 as attorneys fees, and (b) Narcisa Morales, mother of the victim, P30,000.00 as moral damages. Costs de oficio. SO ORDERED.

epublic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 130654 July 28, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO BASIN JAVIER, accused-appellant. ROMERO, J.: Before us on automatic review is the Decision 1 dated April 15, 1997 of the Regional Trial Court of Agoo, La Union, Branch 32, 2 in Criminal Case No. A-3155, convicting accused-appellant Eduardo Javier of the crime of parricide and sentencing him to suffer the penalty of death and to indemnify the heirs of the victim in the amount of P50,000.00 as moral damages and P21,730.00 as actual expenses.1wphi1.nt The Information filed before the trial court which charged accused-appellant with the crime of parricide reads as follows: That on or about the 15th day of June 1996, in the Municipality of Santo Tomas, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with the intent to and being then armed with a bolo, did then and there willfully, unlawfully and feloniously attack, assault and use of personal violence, by hacking with the said weapon one FLORENTINA JAVIER Y LACESTE, his legitimate spouse, and as a result of which his said wife suffered fatal injuries which directly caused her death immediately thereafter, to the damage and prejudice of the heirs of the victim. Contrary to law. 3 Upon arraignment, the accused-appellant pleaded not guilty and trial ensued. The prosecution evidence, consisting of the testimonies of Consolacion Javier Panit and Alma Javier, daughters of the victim and accused-appellant, and SPO1 Rotelio Pacho are detailed as follows: Accused-appellant Eduardo Javier and the victim Florentina Laceste Javier were legally married on December 18, 1954. 4 In their forty-one years of marriage, they begot ten children. Accused-appellant and Florentina lived at Tubod, Sto. Tomas, La Union with one of their daughters, Alma Javier. 5 On June 15, 1996 between two o'clock and three o'clock in the morning, Consolacion Javier Panit, who lives near her parent's house about ten to fifteen meters away, heard her mother, Florentina shouting "Arayatan dac ta papatayen nac ni Tatangyo" (Your father is going to kill me). After she heard her mother scream for help, Consolacion rushed out of her house and met her sister, Alma who, weeping, told her that their parents were quarrelling. Alma, at the time of the incident was living in her parents' house. Consolacion and Alma then proceeded to their brother Manuel's house, which is located about seventy to eighty meters away from their parents' house. The three then proceeded to their parents' house. Manuel, who entered first, found the lifeless body of his mother and his father, accused-appellant, wounded in the abdomen. Manuel then ordered Consolacion to get a tricycle to bring their father to the hospital. At this point, Manuel informed her sisters that their mother was dead and that their father confessed to him that he killed his wife and there after allegedly stabbed himself. Florentina was found dead in their bedroom, drenched in her own blood. 6 Accused-appellant was brought to the hospital by Consolacion's husband, and her son, Jefferson, while Manuel went out to get help. 7 SPO1 Rotelio Pacho, assigned as desk investigator at the Sto. Tomas Police Station in La Union, testified in the investigation he conducted with SP04 Manuel Zarate and SPO1 Agaton Laroza regarding the incident of June 15, 1996. He stated that he received a call for assistance from the barangay captain of Tugod, Sto. Tomas because accused-appellant allegedly killed his wife. The police authorities then proceeded to accused-appellant's house in Brgy. Tugod, Sto.Tomas, where they saw Florentina lying in the bedroom floor covered with blood. Upon interviewing the victim's children, Pacho testified that Manuel told him that his father confessed to killing his wife. Manuel then surrendered to him the bolo covered with blood which was found in the bedroom. The bolo was allegedly used by accused-appellant in assaulting his wife. 8 The medical findings indicated that the victim suffered from multiple injuries and her neck was almost cut off from her body. 9 Accused-appellant Eduardo Javier, in his testimony, admitted killing his wife in their bedroom with the use of a sharp bolo. He identified the bolo as the same one presented by the prosecution as Exhibit "A" and which he used in wounding himself. Accusedappellant told the court that he killed his wife because he could not sleep for almost a month. He claimed that when the killing took place, his mind went totally blank and he did not know what he was doing. 10 He claims that he was insane at the time of the incident. The trial court rejected accused-appellant's defense of insanity and on April 15, 1997 rendered a decision finding him guilty of parricide and sentenced him to suffer the penalty of death. The dispositive portion of the decision reads as follows: WHEREFORE, in view of all the foregoing consideration, the accused, Eduardo Javier y Basin is hereby sentenced to suffer the penalty of death; to pay the heirs of the victims the amount of P50,000.00 as moral damages for the death of the victim and P21,730.00 as actual expenses; and to pay the cost of the proceedings. SO ORDERED. 11 In this appeal, accused-appellant alleged that the trial court erred in imposing the death penalty, considering the presence of two mitigating circumstances of illness of the offender and passion and obfuscation. 12 While accused-appellant does not question the decision of the trial court in rejecting his defense of insanity, he argues that he should be meted a lower penalty because at the time of the incident, he was suffering from loss of sleep for a prolonged period of time, which would have caused him to commit the crime.

He further contends that his suspicion that his wife was having an illicit relationship with another man, aggravated by his illness, goaded him to commit the crime. The Office of the Solicitor General, on the other hand, argues that accused-appellant cannot claim the mitigating circumstance of illness in the absence of a medical finding to support his claim. Accused-appellant cannot likewise be entitled to the mitigating circumstance of passion and obfuscation in the absence of sufficient evidence. We find the appeal bereft of merit. Accused-appellant, during trial, admitted killing his wife, but interposed as defense the exempting circumstance of insanity. However, the trial court rejected this defense of insanity for failure of the defense to prove that accused-appellant was indeed insane at the time of the incident. The defense never presented any medical record of the accused-appellant, nor was a psychiatrist ever presented to validate the defense of insanity. Equally important, the defense, during trial, never alleged the above-claimed mitigating circumstances of illness and passion and obfuscation, thus weakening the case of accused-appellant. In this appeal, accused-appellant alleged that prior to the incident, he had been suffering from insomnia for around a month, thus leading him to commit an act beyond his control, the killing of his wife, Florentina. The defense went on to cite medical literature on the effects of total and partial sleep loss to support his contentions. 13 For the mitigating circumstance of illness of the offender to be appreciated, the law requires the presence of the following requisites: (1) illness must diminish the exercise of the will-power of the offender; and (2) such illness should not deprive the offender of consciousness of his acts. 14 Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the time of killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant was suffering an illness which diminished his exercise of will-power at the time of the killing. On the other hand, it is clear that accused-appellant was aware of the acts he committed. First, he remembered killing his wife in their bedroom with the use of a bolo, where he mangled her neck twice; he remembered trying to commit suicide, by wounding himself with the same bolo he used in killing his wife; and he remembered being brought to the hospital. Since he remembered the vital circumstances surrounding the ghastly incident, from the time of the killing up to the time he was brought to the hospital, it shows that he was in full control of his mental faculties. This negates his claim that he was suffering from an illness that diminished the exercise of his will-power. On the basis of the foregoing, we cannot appreciate the mitigating circumstance alleged by accused-appellant. Neither can we appreciate the circumstance of passion and obfuscation to mitigate his criminal liability. In order to be entitled to the mitigating circumstance of passion and to obfuscation, the following elements should concur: (1) there should be an act both unlawful and sufficient to produce such condition of mind; and (2) said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his moral equanimity. 15 The foregoing elements were not proved to be present in instant case. In fact, during accused-appellant's testimony, he even stated that he was not jealous of his wife. As correctly observed by the Office of the Solicitor General: In the case of appellant, there is lack of proof of the cause which produced alleged passion and obfuscation. Appellant, in his testimony, did not account how he killed his wife nor did he explain the cause why he was prompted to kill his wife. Verily, there exists no justifiable basis for applying to him this mitigating circumstance of passion and obfuscation as the cause which produced it has not been established. 16 All told, the allegations propounded by accused-appellant that his suspicions regarding his wife, aggravated by his illness made it possible for him to kill his own wife, is but a mere afterthought to whittle down his criminal liability. Additionally, it is a settled rule that factual findings of the trial courts will generally not be disturbed by the appellate court because it is in the best position to properly evaluate testimonial evidence considering that it observes the demeanor, conduct and attitude of witnesses during the trial. In the case at bar, the trial court was able to observe the behavior of accused-appellant and it stated that his recollection of the details surrounding the killing is so impeccable that only a person in his right mind can make it. Thus, the trial court was correct in convicting accused-appellant of the crime of parricide under Article 246 of the Revised Penal Code (as amended by Republic Act No. 7659, Section 5) which provides that: 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. The crime of parricide, not being a capital crime per se as it is not punishable by mandatory death penalty but by the flexible penalty of reclusion perpetua to death, two indivisible penalties, the application of the lesser or the greater penalty depends on the presence of mitigating and aggravating circumstances. 17 In this case, the information for parricide against accused-appellant did not allege any aggravating circumstance. Nor did the evidence show that the prosecution was able to prove any aggravating circumstance. 18 Likewise, no mitigating circumstance is appreciated by this Court in favor of the accused-appellant. Thus, in the absence of any aggravating or mitigating circumstance for the accusedappellant, the lesser penalty of reclusion perpetua should be imposed. As regards the monetary liability, the Court takes the amount of P50,000.00 imposed by the trial court as one of civil indemnity instead of as moral damages.1wphi1.nt WHEREFORE, the decision of the Regional Trial Court of Agoo, La Union, Branch 32, in Criminal Case No. A-3155 is hereby AFFIRMED with the MODIFICATION that accused-appellant Eduardo Javier y Basin should suffer the penalty of reclusion perpetua.

SO ORDERED.

EN BANC [G.R. Nos. 130665 and 137996-97. April 21, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO BALIAO EMPANTE @ PETER, accused-appellant. DECISION PER CURIAM: This is an appeal from the decision of the Regional Trial Court of Oroquieta City, Misamis Occidental (Branch 12) finding accused-appellant Pedro Baliao Empante guilty of three counts of rape against his daughter, Elvie Empante, then below 18 years of age, and sentencing him to death and to indemnify his daughter in the amount of P50,000.00 and to pay her moral damages in the amount of P50,000.00 for each count of rape. Accused-appellant admits his guilt. He contends, however, that the trial court erred in sentencing him to death because it should have appreciated two mitigating circumstances in his favor, i.e., voluntary confession of guilt and intoxication, and sentenced him to a lesser penalty. The facts are as follows: Accused-appellant Pedro B. Empante is married to Flaviana Intong Empante, by whom he has four children, namely, Elvie, Elmer, Elna, and Eric. Elvie, the eldest, was born on March 6, 1982 (Exh. A). During the time relevant to these cases, accusedappellant worked as a laborer at a quarry in Barangay Unidos, Plaridel, Misamis Occidental, while his wife worked as a domestic helper outside Plaridel and went home only on weekends. In November 1994, Elvie, then only 12 years old and a Grade VI student, was left alone with her father, accused-appellant, in their house at Sitio Napo, Barangay Unidos, Plaridel, Misamis Occidental. For some reason, her mother, brothers, and sister were all out at that time. She was cleaning the living room of their house when she was called by accused-appellant to his room. When Elvie approached him, accused-appellant, without warning, poked a hunting knife (Exh. B) on her right side and told her not to make any noise, otherwise he would kill her. Elvie described the knife as one with a sharp blade and a wooden handle covered by black tape wound around it. Accused-appellant pushed her to the bed as a result of which she fell on her back. Accused-appellant then went on top of her. He removed her shorts and panties with his right hand as he held with his left hand the hunting knife. After removing his shorts, accused-appellant succeeded in violating his daughter. Elvie resisted and tried to prevent accused-appellant from ravishing her by closing her thighs, but her efforts proved futile. Elvie felt pain in her private parts. She was warned not to tell her mother about the incident or accused-appellant would kill both of them. Elvie knew her father to be a violent man. He maltreated her mother and threatened her with a bolo. Hence, when her mother arrived later that day, Elvie did not tell her anything about the incident. [1] The family later moved from Sitio Napo to a place near the national highway, also in Barangay Unidos, Plaridel, Misamis Occidental. In the evening of December 24, 1996, Elvie was left at home with only her younger brothers Elmer and Eric, their younger sister being then in the house of their grandmother, Lourdes Intong. Elvie was going to church with her mother to hear midnight mass, but accused-appellant told her to stay home on the pretext that he would be going to work the next morning. Elvie, therefore, prepared to go to sleep. She was made to sleep near the wall, with her father at her left side. Her two young brothers, Eric and Elmer, slept beside their father. Elvie was awakened as she found accused-appellant on top of her. She noticed that her shorts and underwear had been removed and that her father was naked from the waist down. She tried to free herself from her fathers hold and prevent him from ravishing her by closing her thighs, but he was too strong for her. Elvie testified that a hunting knife (Exh. B) was pointed at her side. She knew that he had succeeded in inserting his penis into her vagina because she felt pain in her private parts. As accused-appellant did the sexual act, he kissed Elvie all over the face, neck, and breast, even sucking her lips and telling her to stick out her tongue. So revolted was she by what her father was doing to her that she tried to cover her face with her hands. After satisfying himself, accused-appellant put on his shorts and gave Elvie her panties and shorts to wear. Again Elvie did not tell her mother, who arrived late that night, about the incident because of fear of her father. [2] She, however, asked her mother to let her sleep in another room. But when accused-appellant learned that Elvie was not in his room, he got mad and forced the door open. He slapped her, hit her on the back, pinched her side, and then grabbed and dragged her outside. Elvies mother was not home at that time, but when she arrived Elvie told her about her experience. Elvies mother confronted her father and a quarrel ensued between the two.[3] Elvie went to her grandmothers house, located a few kilometers away, and stayed there, but her father forced her to come home with him.[4] On January 16, 1997, Elvies mother left their house to work in Manila after being beaten up by accused -appellant. As a result, Elvie was left with no one to protect her. In the evening of January 18, 1997, she was again molested by her father. She was asleep when accused-appellant went on top of her. When she woke up, she found that her shorts and underwear had already been removed. As before, she tried to hold her father at bay and prevent him from dishonoring her, but she was threatened with a hunting knife (Exh. B). Accused-appellant again was able to have sexual intercourse with her. In anger, she demanded from him, Why do you sexually abuse me? Why not go to others? To this, accused-appellant answered, Why [do I have to] go to others when you are here?[5] even as he covered her mouth with his hands to keep her from talking. After accused-appellant was through, he put on his shorts and slept beside her. Elvie could not sleep and kept crying. As her sobbing kept her father awake, he hit her on the back and threatened her with harm if she did not stop.[6] Elvie feared that, with her mother gone, her father would make a mistress of her. She went to the house of her grandmother the next morning and told her her story. Her grandmother, Lourdes Intong, lost no time in taking her to the barangay captain who referred them to the police and advised them to take Elvie to the hospital for examination. On the same day, Elvie was examined by Dr. Jona Handumon at the Calamba District Hospital in Calamba, Misamis Occidental. The medico-legal report (Exh. C) of Dr. Handumon contained the following findings: Date & Time of Examination: January 19, 1997 Findings:

- NORMAL EXTERNAL GENITALIA - NULLIPAROUS VAGINA - BLUNT & ROUNDED POSTERIOR FOURCHETTE - (+) HEALED LACERATION AT POSTERIOR FOURCHETTE - INTROITOUS ADMITS 2 FINGERS EASILY - HYMEN RUPTURED W/ HEALED LACERATIONS AT 2:00 & 7:00 POSITIONS - CERVIX CLOSED, FIRM - (+) MUCOID, WHITISH DISCHARGES AT OS - CORPUS SMALL - (-) ADNEXAL MASS & TENDERNESS[7] On June 20, 1997, Elvie filed with the Philippine National Police at Plaridel, Misamis Occidental three criminal complaints for rape which became the basis of informations lodged with the Regional Trial Court of Oroquieta City against accused-appellant. In Criminal Case No. 1301, it was alleged That on or about January 18, 1997 at about 8:00 oclock in the evening at barangay Unidos, Plaridel, Misamis Occidental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused PEDRO BALIAO EMPANTE alias Peter through threats, force and intimidation and with the use of a hunting knife wilfully, unlawfully and feloniously did then and there lie and succeeded in having carnal knowledge with complainant Elvie Empante, his own daughter, a minor, 15 years of age and against her will. CONTRARY TO LAW, aggravated that the victim is a minor, a 15 year old and the offender is the parent-father of the victim and use of a hunting knife. Upon being arraigned on May 7, 1997, accused-appellant, assisted by counsel, Atty. Rudy Magsayo, entered a plea of not guilty. Thereafter, the trial was set by the court on June 6, 1997. Two more cases were later filed in court against accused-appellant. The information in Criminal Case No. 1304 alleged That sometime in November 1994 at 10:00 a.m. at their house at Napo, barangay Unidos, municipality of Plaridel, Province of Misamis Occidental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused Pedro Baliao Empante, through threats, force and intimidation and with the use of a hunting knife willfully, unlawfully and feloniously did then and there have carnal knowledge with Elvie Empante his own daughter, a 12 year old girl against her will and without her consent. CONTRARY TO LAW, with the qualifying circumstances of minority, Elvie Empante was a 12 year old girl a legitimate daughter of accused and with the used [sic] of a hunting knife. In Criminal Case No. 1305, the information alleged substantially the same facts except as to the date of the incident which occurred at around 10 p.m. on December 24, 1996. Accused-appellant pleaded not guilty to the two charges. The cases were thereafter tried together beginning June 6, 1997. The prosecution presented Elvie as its first witness. On June 16, 1997, accused-appellant, through his counsel, asked the court to allow him to change his plea from not guilty to guilty. His motion was denied on the grounds that the prosecution had already started presenting its evidence and that the purpose [of t he accused-appellant in] changing his plea was to be given a lighter penalty of reclusion perpetua and not that of death x x x x[8] On the third day of trial on June 20, 1997, accused-appellant again asked the court to allow him to change his plea, assuring the court that his plea would be unconditional and that he would accept whatever penalty the court would impose on him. The trial court then asked several questions from accused-appellant to determine if he understood the consequences of a plea of guilty. Having been satisfied that the plea of guilty was freely, knowingly, and voluntarily being made, the trial court ordered accused-appellant rearraigned by having the informations read to him in the Cebuano-Visayan dialect, which he understood, after which he pleaded guilty to all counts of rape.[9] The trial court then directed the prosecution to complete the presentation of its evidence. Aside from Elvie, the prosecution presented Lourdes Intong, Elvies grandmother and accused -appellants mother-in-law. Lourdes Intong testified that at about 7 a.m. on January 19, 1997, Elvie went to her house and told her that she had been sexually abused by her father several times. Lourdes confirmed that she accompanied Elvie to the hospital where Elvie was examined and to the local authorities with whom Elvie filed her complaints against accused-appellant. Lourdes testified that, while accused-appellant was in detention pending investigation, he talked to her and asked for her forgiveness, but she told him to ask for forgiveness from Elvie. For this reason, accused-appellant sent relatives to talk to Elvie since the latter refused to see or talk to him personally. In addition, accused-appellant wrote Elvie three letters in which he asked for forgiveness so that he will be given a lighter sentence for his crimes. The letters could not be presented in court as they had been destroyed by Elvie who did not then realize they could be used in evidence. [10] After the prosecution had rested its case, accused-appellant was presented as the sole witness by the defense. Accused-appellant admitted having raped his daughter, claiming, however, that he was drunk at the time. He denied that he used a hunting knife to threaten his daughter and claimed that he only threatened her verbally. He alleged that he did not have any hunting knife and that the hunting knife (Exh. B) presented in court, which Elvie and her grandmother claim to have found in a closet ( aparador) in his house when he was detained, belonged to the brother of his mother-in-law, Pablo Calunod.[11] On June 30, 1997, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, finding him guilty beyond reasonable doubt of the c rime of rape committed upon his own daughter Elvie Empante who was then below eighteen (18) years old in all the three criminal cases, the Court hereby sentences accused PEDRO BALIAO EMPANTE: 1. In Criminal Case No. 1301, to suffer the penalty of death an d to indemnify Elvie Empante the amount of P50,000.00 and to pay her the additional sum of P50,000.00 for moral damages;

2. In Criminal Case No. 1304, to suffer the penalty of death and to indemnify Elvie Empante the amount of P50,000.00 and to pay her the additional sum of P50,000.00 for moral damages; and 3. In Criminal Case No. 1305, to suffer the penalty of death and to indemnify Elvie Empante the amount of P50,000.00 and to pay her the additional sum of P50,000.00 for moral damages. The records of the three criminal cases including the transcripts of stenographic notes are hereby ordered forwarded to the Honorable Supreme Court for automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Republic Act No. 7659. With costs against the accused. Accused-appellant does not seek a reversal of the findings of the trial court. In his lone assignment of error, he argues that THE TRIAL COURT ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH DESPITE THE PLEA OF THE ACCUSED-APPELLANT FOR HUMANITARIAN CONSIDERATION AS WELL AS THE PLEA OF GUILTY AND THE DEFENSE OF INTOXICATION WHICH MITIGATE HIS LIABILITY DESERVES A PENALTY OF RECLUSION PERPETUA ONLY. After reviewing the evidence in these cases, the Court finds no reason to alter, much less to reverse, the decision of the trial court. The evidence establishes beyond reasonable doubt the guilt of accused-appellant. The testimony of complainant is plain, straightforward, and positive. Although in rape cases it is sufficient for the offended party to state that she has been raped, in the cases at bar, complainants testimony is filled with details which can only enhance its credibility. With clarity and candor, complainant recounted the manner in which she was raped on the three occasions stated in the informations. Her testimony was in fact corroborated even by accused-appellant. The defense points out an alleged contradiction between what she said during trial (that accused-appellant was not drunk when he raped her)[12] and what she said in her sworn statement before the police (that accused-appellant smelled of liquor on January 18, 1997 when he raped her).[13] We are not persuaded. It may be that accused-appellant had taken some liquor and, for that reason, smelled of alcohol, but he was not drunk or inebriated. In any event, the inconsistency concerns a minor matter and does not affect the credibility of complainants testimony. To the contrary it serves to strengthen her credibility as it shows that her testimony is not contrived.[14] Nor is there any reason to suspect complainant of any ill motive. She complained against her father because of what he had done to her. Complainant testified: PROSECUTOR CARRIAGA-OMANDAM: Q. Now before you filed these present cases against your father, had you considered that by filing these cases you are exposing yourself to shame, dishonor and humiliation? ATTY. MAGSAYO: Objection! Witness is incompetent, Your Honor. COURT: She is already fifteen years old. She knows what is right and wrong. Proceed. WITNESS: Yes, sir. PROSECUTOR CARRIAGA-OMANDAM: Q. And yet you pursued these cases? A. Yes, sir. Q. Why? A. Because I wanted my father to be imprisoned [for] what he had done to me. COURT: Q. Now if the law provides that by the act of your father he would be penalized [with] the penalty of death, what will be your feeling? A. He did not even [take] pity on me, his own daughter.[15] There is no reason to doubt the veracity of Elvies testimony. As we recently held in People vs. Calayca: We believe that a teenage unmarried lass would not ordinarily file a rape charge against anybody, much less her own father, if it were not true. For it is unnatural for a young and innocent girl to concoct a story of defloration, allow an examination of her private parts, and thereafter subject herself to a public trial if she has not, in fact, been a victim of rape and deeply motivated by a sincere desire to have the culprit apprehended and punished.[16] Moreover, it is hardly necessary to say that the evaluations of trial courts of the testimonies of witnesses are entitled to great respect because of their opportunity to observe the demeanor of witnesses in determining whether they are telling the truth. [17] In these cases, the trial court said in its decision: Aware of its duty to exercise as it did exercise the greatest degree of care and caution in scrutinizing the testimony of the complainant in these rape cases and to render judgment of conviction only when the complainants sincerity and candor are free from suspi cion, the Court after having thoroughly observed the demeanor and conduct of complainant Elvie Empante on the witness stand, is fully convinced of the guilt of the accused Pedro Baliao Empante in the three criminal cases. The testimony of the complainant in describing the manner by which she was sexually abused by no less than her own legitimate father is so clear, positive and convincing to admit any doubt that the accused committed the crime charged in at least three occasions for having carnal knowledge of a woman (his daughter Elvie Empante) x x x by using force or intimidation (Article 335, paragraph 1, Revised Penal Code) with the use of a hunting knife.[18]

Above all, whatever doubt there might be as to accused-appellants guilt should be dispelled by his admission that he had indeed raped complainant. His only reservations are with respect to minor details which are inconsequential in determining his guilt and the penalty to be imposed upon him, to wit: 1. He did not threaten complainant using a hunting knife when he raped her but only verbally did so. [19] 2. He could not recall the exact time he raped his daughter on December 24, 1996 and January 18, 1997 because he was drunk on both occasions.[20] But he admitted that he was awakened at dawn on December 25, 1996 by the sobbing of his daughter who told him that he had raped her, although he denied hitting Elvie on the back to stop her from crying. [21] 3. He denied that he forbade Elvie from sleeping in the other room or in her grandmothe rs house. He claimed that it was his daughter herself who insisted on sleeping beside him. [22] The prosecution presented the hunting knife (Exh. B) which complai nant said her father had threatened her with. There is really no need to pass upon accused-appellants claim. For even if no knife was used by accused-appellant, his admission that he was able to rape his daughter by threatening her is sufficient considering the moral ascendancy that he has over his child.[23] Accused-appellant also claimed that he was drunk on the three occasions when he raped his daughter, but denied that he is a habitual drinker.[24] He also claimed to have been so intoxicated that he did not know what he was doing. [25] The trial judge correctly rejected the claim of intoxication as a mitigating circumstance. [26] For even if accused-appellant was intoxicated and he is not a habitual drinker, to be considered mitigating, the intoxication must be shown to have so impaired his willpower that he did not know what he was doing or could not comprehend the wrongfulness of his acts. [27] In these cases, not only did complainant deny that her father was drunk when he raped her, but the fact that accused-appellant himself could recall details of the rape incidents (i.e., time of the day as regards the November 1994 incident, the manner he raped his daughter, what his daughter was wearing, how he forced and threatened her to submit to his desires) [28] is the best proof that he knew what he was doing on those occasions. Indeed, accused-appellant himself said that his plea of guilty was unconditional. His plea was an admission of everything alleged in the informations. The trial judge took care that the safeguards for its admission, as provided in Rule 116, Section 3 of the Rules of Court and in existing jurisprudence, were observed. The transcript of stenographic notes taken at the proceedings held on June 20, 1997 shows this and leaves no room for doubt that accused-appellants plea was not improvidently given: PROS. CARRIAGA-OMANDAM: I respectfully appear for the prosecution. ATTY. MAGSAYO: Appearing as counsel for the accused, ready. Last time we move[d] to withdraw the plea of not guilty entered by the accused but [it was] denied by this honorable court. In view of the denial we reiterate our motion that the accused is willing to enter a plea of guilty and he is willing to withdraw his plea of not guilty to that of guilty. COURT: So, you are asking the court to reconsider the previous ruling denying the plea of guilty of the accused. COURT TO ACCUSED: Q In the previous hearing you ask the court that you be allowed to enter a plea of guilty and replace that of not guilty previously entered by you. However, during the discussions on that motion you had in mind the possibility that the penalty be only reclusion perpetua and not death. For that reason the plea of guilty to the crime charged becomes conditional and moreover the prosecution has already started the presentation of its evidence and so the court denied your motion to withdraw your plea of not guilty and replace that with the plea of guilty. Q Now, you are again reiterating your motion for you to enter a plea of guilty and consequently you are asking the reconsideration of the order of the court denying your motion. Now the court is asking, would that plea of guilty be [conditional]? A No more. Q Do you know the consequence of your change of plea from that of not guilty to that of guilty? A Yes. Q Do you know that because of your plea of guilty the court may impose a death penalty? A Yes. Q Despite the fact that . . . now, with your plea of guilty, the court may attend to the death penalty, you are still insisting to proceed with your move to enter a plea of guilty? A Yes, I will proceed with my plea of guilty. Q Why have you change[d] your mind and insist to enter now a plea of guilty when before you have entered the plea of not guilty? A Because at that time I still plan to talk first with my wife. Q At that time where was your wife? A She is in Manila. Q This time where is your wife? A She is still in Manila. Q And so you have not yet talk to your wife? A No, I have not yet talk[ed] to my wife but this is already my decision. xxx xxx xxx COURT:

Did you ask your mother-in-law to intercede for you and to request your wife to forgive you? Yes. Now, what was the reaction of your wife on that particular request through the telephone? That she can still forgive me being my wife as a human being but the case is now with the government already. Did your wife through the telephone conversation tell your mother-in-law that your wife submits to whatever the law provides? A Yes. Q And because you were informed by your mother-in-law the result of the telephone conversation with your wife, what have you finally decided? A I am now going to admit and enter the plea of guilty and I will entrust everything to the Lord. Q The court would like to know your version of the case considering that this is a heinous crime attached to it is the capital punishment of death, are you willing to testify on how come that this incident happened? A Yes. Q So, you are going to testify in this case? A Yes. Q You will be allowed by the court because that is your right? A Yes. COURT: Q Despite the fact that you have already entered a plea of guilty? A Yes. Q The Court would allow you to testify in your behalf for the court to determine the appropriate penalty that may imposed upon you? A Yes. Q The court however will proceed with the presentation of the evidence of the prosecution to establish your guilt even if you have manifested to enter a plea of guilty for the purpose again of the court to determine the appropriate penalty for you to be punished? A Yes, sir. PROS. OMANDAM: The prosecution would like to ask the accused if he is admitting in these three cases. I would like to ask permission that the following questions be propounded to the accused: whether said accused is admitting his guilt in these three cases [of] rape [he] committed [against his] daughter. I would like to emphasize Crim. Case Nos. 1301, 1304 & 1305. COURT: May I ask the counsel for the accused on the comment on the manifestation of the handling prosecutor. A Yes, your honor, he is willing to [admit to] these three cases. The handling prosecutor may ask now the accused concerning the matter brought out by him despite the statement given by the counsel that the accused is willing to admit the three cases. PROS. OMANDAM: Q Mr. [Empante], would you also admit that you rape[d] your daughter in these three cases 1301, 1304 and 1305? A Yes. Q You heard your daughter testifying, do you admit that all the testimonies of your daughter is true ? A Yes.[29] Thus, accused-appellant entered his plea of guilty freely, voluntarily, and with full understanding of its consequences and should be bound by it. Accused-appellant asseverates that his plea of guilty mitigates his liability. The contention has no merit. To be considered a mitigating circumstance, a plea of guilty must be made spontaneously by the accused, in open court, prior to the presentation of evidence for the prosecution.[30] In the cases at bar, accused-appellant at first pleaded not guilty and only confessed his guilt after the prosecutions first witness was nearly finished with her testimony. Such a belated act of remorse or contrition[31] cannot be considered spontaneous or timely within the contemplation of the law.[32] Be that as it may, as we recently held in People vs. Mengote[33] and People vs. Robles,[34] even if the plea of guilty entered by accused-appellant satisfied the requisites laid down by law, it would not serve to mitigate his liability for qualified rape and justify the imposition of a lighter penalty. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, states: When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shal l be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

Q A Q A Q

When by reason or on the occasion of the rape, a homicide is committed, the penalty s hall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step -parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. 2. when the victim is under the custody of the police or military authorities. 3. when the rape is committed in full view of t he husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. when the victim is a religious or child below seven (7) years old. 5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syn drome (AIDS) disease. 6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcem ent agency. 7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. As held in People vs. Garcia,[35] the seven (7) circumstances enumerated in this provision are special qualifying circumstances, the presence of any of which takes the case out of the purview of simple rape and effectively qualifies the same by increasing the penalty one degree higher. Qualified rape is thus punishable by the single indivisible penalty of death, which must be applied regardless of any mitigating or aggravating circumstance which may have attended the commission of the deed. [36] In these cases, the informations charged accused-appellant with having committed the crime of rape qualified against complainant, under 18 years old, who is his daughter. As the charges were proven beyond reasonable doubt, the imposition of the death penalty is required. Four (4) Members of the Court, although maintaining their adherence to the separate opinions expressed in People vs. Echegaray[37] that Republic Act No. 7659 insofar as it prescribes the penalty of death is unconstitutional, nevertheless submit to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed. With respect to the monetary liability of accused-appellant, the trial courts award of P50,000.00 for indemnity in each case should be increased to P75,000.00 in line with prevailing jurisprudence. The award of P50,000.00 for moral damages is correct and should be maintained, it being assumed that the victim has suffered moral injuries entitling her to such an award.[38] WHEREFORE, the decision of the Regional Trial Court of Oroquieta City (Branch 12) is AFFIRMED with the modification that accused-appellant is ORDERED to indemnify complainant Elvie Empante in each case the amount of P75,000.00 and to pay her P50,000.00 as moral damages. In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this decision, let the record of these cases be forthwith forwarded to His Excellency, the President of the Philippines, for his reference in case he decides to exercise his prerogative of mercy. SO ORDERED. SECOND DIVISION [G.R. No. 119942. July 8, 1999] FELIPE E. PEPITO, SINONOR E. PEPITO, and SONNY E. PEPITO, petitioners, vs. THE HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION MENDOZA, J.: This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated March 29, 1995, which affirmed the judgment of the Regional Trial Court, Branch 21, Laoang, Northern Samar, finding petitioners Felipe, Sinonor, and Sonny Pepito guilty beyond reasonable doubt of homicide and sentencing them to an indeterminate penalty of ten (10) years, six (6) months and one (1) day of prision mayor, as minimum, and sixteen (16) years and one (1) day of reclusion temporal, as maximum, and ordering them to pay the heirs of Noe Sapa, the victim, the amount of P50,000.00 as death indemnity and P10,000.00 by way of moral damages. Felipe Pepito and Estrella Pepito are husband and wife. Sinonor and Sonny are their children. They were charged with murder in an information, filed on October 5, 1989 by the provincial prosecutor, which alleged That on or about the 15th day of July, 1989 at about 3:30 in the morning more or less, at Barangay Burabod, Laoang, Northern Samar, and within the jurisdiction of this Honorable Court, the above-named accused persons, conspiring, confederating and helping one another with treachery and evident premeditation and with deliberate intent to kill and taking advantage of superior strength did, then and there wilfully, unlawfully and feloniously attack, assault and stab, NOE SAPA who was then asleep at their house, all of them armed with bladed weapon, an arrow and a spear, which they conveniently provided themselves for the purpose, directing blows against the vital parts of the body, thereby inflicting upon the latter multiple stab, incised and hacking wounds, which directly caused the death of said NOE SAPA. With the aggravating circumstance of dwelling and abuse of superior strength. CONTRARY TO LAW. The evidence for the prosecution shows that, at around 8:30 in the morning of July 15, 1989, while Cynthia Sapa, the wife of the victim, was in her mothers house in Barangay Burabud, Laoang, Northern Samar, where she and her husband were staying, she heard someone on the street calling her husband. The latter was still asleep, having gone to bed late as he had to make rounds in the barangay the previous night as a member of the local Bantay Bayan. Upon looking out of the window, Cynthia saw accused Felipe, Sinonor, Sonny, and Estrella Pepito armed with various weapons locally known as depang, [2] indian pana,[3] and sagangat.[4]Frightened, Cynthia rushed out of the house and ran to her neighbors house where she sought refuge.[5]

On her way she met her mother-in-law, Urdanita Sapa, to whom she said, Mother, Noe is there and somebody went up the house for him.[6] Whereupon, Urdanita, who had also seen accused Felipe, Sinonor, Sonny, and Estrella, went back to her house and told them: Noe has not done you any wrong, and you must leave him. [7] But Felipe, Sinonor, and Sonny entered the house as Estrella stood by the door, even as she urged them to kill the victim. A commotion inside the house was heard, after which accused Felipe, Sinonor, and Sonny were seen coming out with their weapons bloodied. Then addressing the people outside, Sinonor announced that the victim was already dead. [8] The victim was found dead in a pool of blood on the floor of the kitchen. [9] The autopsy showed that he sustained 19 stab, incise, and hack wounds.[10] On the other hand, the defense evidence shows that, between 6 and 7 in the morning of July 15, 1989, the victim, Noe Sapa, drunk and armed with a bolo and an indian pana, made trouble in the neighborhood, prompting Estrella to report the matter to Godofredo Espino, the barangay captain, who brought the victim home. [11] However, half an hour later, Noe Sapa came back and challenged the family of accused to a fight. He chased Felipe, who was then returning home from the seashore. Felipe ran towards their house. Sapa did not pursue any further. He stopped about 8 meters from the door of the Pepito residence and then went home. Sinonor, who was in the kitchen having breakfast, thought that his father had been hurt. He grabbed a bolo, rushed out of the house, and went after Noe Sapa, eventually catching up with him on the highway. Sapa hit Sinonor with his indian pana, and struck him with a bolo on the right arm. Somehow, however, Sinonor was able to grab the right arm of the victim, which was holding the bolo, and stab him several times. Sapa tried to flee, but Sinonor pursued him until they reached the formers house. Sapa staggered inside their house, fell on the floor of the kitchen, and died. Felipe, Sonny, and Estrella met Sinonor as he came out, his clothes, hands, and bolo all bloodied.[12] The trial court gave credence to the evidence of the prosecution. In its decision, dated November 9, 1992, it stated: It is a fact undisputed that the victim Noe Sapa was killed inside the house, particularly in the kitchen of spouses Domingo and Myrna Garnudo, a house where a husband Noe and a wife Cynthia resided in Brgy. Burabud, Laoang, N. Samar. This fact is supported by the testimonies of the prosecutions witnesses Cynthia Garnudo Sapa, victims widow, Urdanita Sapa, the victims mother, Genaro Tepace, Brgy. Kagawad of Burabod and Amada Bantilo, a public school teacher and whose house is an armslength to the house of Noe Sapa, the place of incident. This fact is further supported and substantiated by the testimonies of Police Officer Redencio Irinco of the PNP Laoang and Pablo Fulga, who declared that they saw drops of blood or bloodstains inside and not outside the house, particularly in the kitchen. The drops of blood that has been seen inside the house refuted and negated the testimonies of accused Sinonor, Sonny, Felipe and Estrella, all surnamed Pepito and other defense witnesses Venancio Laguitan, Crispulo Renate, Rodolfo Tepace and Andrea Garnudo. The drops of blood or bloodstains were the indicia of truth as to the place of the killing. .... The RESOLUTION of the Municipal Court dated 22 September 1989 which found Sinonor armed with small bolo, Sonny with a big bolo, Felipe with a bow and arrow and a bolo and Estrella with a spear rushed towards the direction of Noe Sapa and while at the house of Noe, the three accused, Sinonor, Sonny and Felipe, all surnamed Pepito, entered the house, one after the other holding with them their respective weapons. After a short while and some sounds of scuffle, like a butchered chicken, the three assailants came out with their respective weapons bloodied. That ended the tragedy and the life of the victim Noe Sapa. The finding of the Municipal Court Resolution finds support and is substantiated by the credibility of the prosecutions witnesses and the veracity of the Autopsy Report of Dr. Lucita Lacbanes Ver, marked as Exh. A prosecution, which showed nineteen (19) sta b and hacking wounds ten (10) wounds at the front and nine (9) at the back of the victims body which caused his death. According to Dr. Ver and Dr. Leandro Negado, these wounds in a split of a second or a minute attack could not be inflicted by one person, but by more than one, possible two or three persons. The defense of Felipe Pepito and Sonny Pepito that they did not participate in the killing of the victim as they already appeared at the scene after Sinonor Pepito wounded many times Noe Sapa is incredible, preposterous and not convincing. .... The plea of self-defense invoked by accused Sinonor Pepito is without merit as in the situation he became an aggressor, he became an offender and not a defender. His role was offense, not defense. Besides, the means employed are not reasonable to prevent or repel is indicated in the nineteen wounds sustained by the victim. Likewise, the plea of voluntary surrender is not appreciated in favor of the accused as it has not been proved in Court. .... WHEREFORE, in the light of the foregoing, the case against Sinonor Pepito, Sonny Pepito and Felipe Pepito having been proved beyond a reasonable doubt, this Court hereby sentences the above-named accused to suffer an imprisonment with the aggravating circumstances of abuse of superior strength appreciated against the accused of ten years, six months and one day of prision mayor as minimum, to sixteen years and one day of reclusion temporal as maximum. To pay the heirs for the death of the victim P50,000.00. To pay moral damages in the amount of P10,000.00. Accused Estrella Pepito is acquitted as she did not participate, she just stood by and watched in the fracas inside the victi ms house. The bail bond posted by Sinonor, Sonny and Felipe, all Pepito are hereby cancelled and the bondsman are discharged from their obligation. Instruments and/or effects used in the commission of the crime are confiscated in favor of the government. SO ORDERED. In affirming the judgment of the trial court, the Court of Appeals held:

We are not convinced that Sinonor alone was responsible for the death of Sapa. The number of wounds sustained by the victim support the theory of the prosecution that the three accused attacked Sapa. The witnesses for the prosecution were emphatic that they saw all the four Pepitos go to the house of Sapa, all of them armed. This fact was also proven by the testimony of Amada Bantilo, a neighbor of the Sapas, who likewise testified that she saw all the four (4) accused armed with deadly weapons going to the house of Noe Sapa and thereafter she heard a commotion, after which she saw Sinonor Pepito with his clothes bloodstained. The fact that there had been a prior incident when Sapa challenged the Pepitos to a fight and when Felipe fell on the doorway unconscious, all the more leads us to believe that the four of them conspired to kill Noe Sapa. Thus, all the four of them went to his house and as Estrella stood guards outside the house, the three other accused ganged up on Sapa and inflicted the numerous wounds sustained by him. The desire of Sinonor Pepito to exculpate his father and his younger brother is understandable. But unfortunately, the same cannot be considered in this case where the common design and concerted action is evident. However, we do believe that the mitigating circumstance of sufficient provocation on the part of the victim should be considered in favor of the accused. The evidence has established that the victim Sapa challenged the Pepitos to a fight and ran after Felipe Pepito who lost consciousness after the chase. This was what prompted the Pepitos to commit the crime. But the lower court already imposed the correct penalty. In this case, the penalty imposable should range from prision mayor of 6 years, 1 day to 16 years as minimum and 14 years, 8 months and 1 day to 18 years and 4 months as maximum. The penalty prescribed by the lower court is therefore already within the range allowable under the law. WHEREFORE, finding no reason to reverse or modify the decision rendered by the lower court, the same is hereby AFFIRMED. Costs against accused-appellants. SO ORDERED. Hence, this appeal. Petitioners contend: I. THE COURT OF APPEALS ERRED BY ADOPTING IN TOTO THE FINDINGS OF THE LOWER COURT HENCE FAILING THEREBY TO CONSIDER THE TESTIMONIES OF THE DEFENSE WITNESSES INDICATING THE INNOCENCE OF THE PETITIONERS, OR AT THE LEAST NEGATING THE FINDINGS OF CONSPIRACY. II. THE COURT OF APPEALS ERRED IN FINDING THAT PETITIONERS FELIPE PEPITO AND SONNY PEPITO CONSPIRED WITH PETITIONER SINONOR PEPITO IN KILLING NOE SAPA. III. THE COURT OF APPEALS ERRED IN NOT CONSIDERING IN FAVOR OF PETITIONER SINONOR PEPITO THE MITIGATING CIRCUMSTANCES OF UNLAWFUL AGGRESSION AND SUFFICIENT PROVOCATION ON THE PART OF THE VICTIM AS WELL AS PASSION AND OBFUSCATION OF THE PART OF PETITIONER SINONOR PEPITO. IV. IN ANY EVENT, THE COURT OF APPEALS ERRED IN NOT REVERSING THE CONVICTION OF THE PETITIONERS BASED, AT THE VERY LEAST, ON REASONABLE DOUBT AND ACCORDING PETITIONERS THE PRESUMPTION OF INNOCENCE. These contentions can be reduced to two issues: (1) whether the guilt of Felipe and Sonny was proven beyond reasonable doubt, and if so, whether the existence of a conspiracy between Felipe, Sinonor, and Sonny was sufficiently established; and (2) whether the mitigating circumstances of incomplete defense of a relative, sufficient provocation or threat on the part of the offended party immediately preceding the act, and that of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation should be appreciated in favor of Sinonor. We will discuss these issues in the same order. First. Amada Bantilo testified for the prosecution as follows: GOVT. PROSECUTOR HERMOSILLA: Q On July 15, 1989, at about 8:30 oclock in the morning, do you remember where you were? A At home. Q What were you doing at home? A Washing clothes and it was a Saturday. Q While thus washing clothes in your house, do you remember if there was an unusual incident that happened? A The incident where they went to the house of Noe. Q Who went to the house of Noe? A The first whom I saw was Sinonor with a small bolo. Q You mean the accused Sinonor Pepito? A Yes, sir. Q And when you said Noe you mean Noe Sapa, the victim in this case? A Yes, Sir. Q Now, when was that when you saw or noticed Sinonor Pepito carrying the small bolo locally known as depang? A That July 15 which is a Saturday and I was then laundering when I saw him passed by. Q Now, was he the only one who passed by your house? A No, Sir. Q Who else? A Felipe, then Sonny and then Estrella was the third. COURT: Q By the way, where did these four (4) accused pass by? A In the street, your Honor.

.... Q You said that you saw Sinonor Pepito passed by the street and followed by the three other accused, when they passed by, did they pass by at the same time or sometime has elapse before the three accused followed or an interval of time? A There was an interval of time one after the other. Q You name the interval of time between Sinonor and the other accused? A One minute after the other. COURT: Q When you saw Sinonor armed with a weapon called depang, you likewise saw the three accused passed one after the other, did you also see each of them carrying a weapon? A Yes, your Honor. GOVT. PROSECUTOR HERMOSILLA: Q Did you recognize the weapon being carried, for example, by Sonny Pepito? A It was not clear to me but I saw him bringing something long. COURT: Q Since you saw Sonny Pepito you cannot just identify what was he bringing because it was long? A It was something black and long, your Honor. Q Could it be a bolo or a stick? A Not a bolo but something long. GOVT. PROSECUTOR HERMOSILLA: Q And how about Felipe Pepito, was he also carrying a weapon or a bolo? A He was not carrying anything although I have observed him with a bolo tack to his waist. Q And how about Estrella Pepito? A In the case of Estrella I saw her bringing something with a bamboo handle. I have not observed the lower edge of the portion below from the handle. Q For record purposes may I ask the witness how far is the distance between her house and the house of Noe Sapa, the victim in this case? A More than one (1) armslength. Q And what is that thing that divides to act as boundary from your house to the house of Noe Sapa? A A bamboo fence, Sir. Q Now, after you saw Sinonor followed by the three accused passed by the street, do you remember what happened after that? A I heard a sort of commotion a semblance to me as if a chicken was being butchered, thereupon I stopped my work. Q Where was that commotion came from? A From his house. Q Whose house? A Noe Sapas. Q And after you heard the commotion, what else happened? A I ran towards the street. Q What street particularly, is it the main highway or the side street? A The main highway. Q Now, what did you notice or observe while running thus towards the highway? A I have seen Sinonor with stains of blood in front of him. Q From where did Sinonor Pepito come from? A From the house of Cynthia.[13] Bantilos testimony was corroborated by Genaro Tepace, [14] Cynthia Sapa,[15] and Urdanita Sapa.[16] On the other hand, Venancio Laguitan, testifying for the defense, declared: Q Now, while he was going to the place of Myrna Garnodo do you remember what transpired next? A The house where Noe was going today on the street from the highway, for that I lost my site on him but later I noticed the people and the children were scampering and what was happened I was informed Felipe Pepito was being pursued by Noe Sapa immediately I look on Noe window I saw Noe challenging Felipe Pepito. Q When you saw Noe Sapa challenging Felipe Pepito what was he holding if any if you saw? A Because my attention now was on the people I noticed only that Sinonor Pepito was holding a small bolo I did not clearly see what Noe Sapa was holding but, I saw it that he was being pursued towards the house of Myrna Garnodo. .... Q Now, let us clarify. When you saw Felipe Pepito being challenged by Noe he was running across the highway towards his house, is that what you mean? A From the bridge of Burabod that is along the highway, the boundary of the road leading the school in the west it was from the point when I observed Felipe Pepito being challenged by Noe Sapa along the highway towards the house of Felipe Pepito. Right side going to Rawis, Noe remain the highway just moments later I saw Sinonor Pepito emerged and this time pursued Noe Sapa towards the house of Myrna Garnodo. .... Q Now, when Sinonor Pepito chased Noe Sapa what did you do?

When Noe Sapa was being challenged by Sinonor Pepito towards the house of Myrna Garnodo I immediately went out the house and cross the highway and went directly to the house of Andres Bantillo which is a house across the street to the house of Myrna Garnodo. I pursued myself because I want to see what was happened. .... Q Now, when you reached the place inside the fence of Andres Bantilo what transpired if any across the place in the yard of Myrna Garnodo if you have recall? A Sinonor Pepito and Noe Sapa grappled. Q While they were grappling where there other people who joined the grappling? A None. Q Now, what did you see when they grappling each other what they are holding? A What I have observed the right hand of Noe Sapa was being held by the left hand of Sinonor Pepito. The right hand of Noe and the left of Sinonor Pepito was holding a bolo. Sinonor Pepito who was armed a small bolo and continuously stabbed Noe Sapa. COURT: Q In what particular place did the fight of Sinonor Pepito and Noe Sapa took place? A Right side of the door of the house in the northern part of the house. Q Whose house? A The house of Myrna Garnodo. Q How far it is to the house of Felipe Pepito? A About 40 to 50 meters away. Q If the measurement would be determine from the two house the distance would be estimated to 40 to 50 meters from the street and then towards the house. When you saw Sinonor Pepito successively stabbed Noe Sapa what happened then? A As to this moment Noe staggered towards the house and that was the time I lost my site of them that was already on the western part of the house. I observed Sinonor Pepito pursued of Noe. Q After you lost your site from the moment what transpired next? A I saw Sinonor Pepito coming out with his hand bloodied he followed to the street towards the highway. Q When you saw Sinonor Pepito came out from that bridge where you lost your site did you see Noe Sapa came out also from that place? A No, sir. Q When you saw Sinonor Pepito came out from that place did you see Sonny Pepito came out from that place also? A No, sir. Q Did you also see Felipe Pepito came out from that place when you saw Sinonor Pepito came out? A No, sir, I did not. Q How about Estrella Pepito did you see her came out from that place? A No, sir. Q It was Sinonor Pepito who came out walking towards the highway? A Yes, sir. Q Was he also bloodied at his shirts? A Yes, sir, his shirts is still bloodied I am not very much interested of that your honor, whether his hand was bloodied. Q When Sinonor Pepito reached the highway what did you see if any? A When I saw Sinonor Pepito going to the highway I also went out from that place where I was personally going home. At the highway from where I observed Sinonor Pepito walking towards the house and I notice it was made by Sonny Pepito a younger brother, Estrella Pepito his mother and Felipe Pepito his father. [17] Laguitans testimony was substantially corroborated by Rodolfo Tepace[18] and Felipe,[19] Sinonor,[20] Sonny,[21] and Estrella Pepito.[22] After reviewing the evidence of the parties, we are convinced that the allegations of the defense rather than those of the prosecution deserve to be given credence. First, Pablo Pulga, who photographed the victims body and was presented by the prosecution as a witness, testified that there was a bolo in its right hand.[23] Indeed, the two photographs (Exhs. C-1 and C-2) taken by him on July 15, 1989 show this to be the fact. These photographs belie the claim of the prosecution that the victim was sleeping when he was killed and supports the claim of the defense that he died in a fight with Sinonor Pepito. Second, the victim was found in the kitchen and not in the living room. This negates the claim of the prosecution that the victim was killed while he was sleeping and bolsters the allegation of the defense that Sinonor finished him off as he retreated to his house. The fact that the victim sustained 19 wounds does not necessarily show that the same were inflicted by several persons using different weapons. Dr. Lucita Ver, the physician who examined the victim, could not make a categorical statement on this point when presented by the prosecution as an expert witness. When asked, Could the Court simply conclude that with these 19 wounds of different dimensions could have been caused by different kinds of weapon?, she said, I cannot entirely say yes your H onor. But I can say its possible.[24] There may indeed be suspicion that Felipe and Sonny are equally guilty as Sinonor. But we cannot render judgment on the basis of mere guesses, surmises, or suspicion. Our legal culture demands the presentation of proof beyond reasonable doubt before any person may be convicted of any crime and deprived of his life, liberty, or even property. The hypothesis of his guilt must flow naturally from the facts proved and must be consistent with all of them. [25]

As shown above, some of the facts proved in the instant case tend to negate the findings of guilt against Felipe and Sonny as well as the existence of conspiracy among petitioners and the use of superior force against the victim. Second. The mitigating circumstance of incomplete defense of a relative cannot be appreciated in favor of Sinonor. Although this mitigating circumstance can be appreciated even if based on the mistaken belief of the person making the defense that there was unlawful aggression against his relative,[26] it is required that the act done would have been lawful had the facts been as the accused believed them to be.[27] It is settled that a person making a defense has no more right to attack an aggressor when the unlawful aggression has ceased.[28] In this case, even if Noe Sapa had indeed killed Felipe as Sinonor claims he thought, Sinonor would not have been justified in attacking the victim, as the latter had stopped about 8 meters from the door of the Pepito residence and then turned towards his mother-in-laws house before Sinonor went after him. However, the Court of Appeals correctly appreciated in favor of Sinonor the mitigating circumstance of sufficient provocation or threat on the part of the offended party immediately preceding the act. Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone. [29] In order to be mitigating, provocation must be sufficient and should immediately precede the act.[30] Provocation is sufficient if it is adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity.[31] That the provocation must immediately precede the act means that there should not be any interval of time between the provocation by the offended party and the commission of the crime by the person provoked.[32] In the present case, the acts of the victim of challenging the family of petitioners while armed with a bolo and an indian pana and of chasing Felipe clearly constitute sufficient provocation on his part. Several witnesses for the defense testified that Sinonor attacked the victim shortly after the latters provocation. Hence, this mitigating circumstance should be appreciated in favor of petitioner Sinonor Pepito. The aggravating circumstance of dwelling cannot be appreciated against an accused if the victim gave provocation. [33] The trial court is therefore right in not taking this into account in determining the penalty to be imposed on Sinonor. The Court of Appeals likewise correctly disregarded the mitigating circumstance of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation after it appreciated that of sufficient provocation or threat on the part of the offended party immediately preceding the act. It is settled that if these two mitigating circumstances are based on the same facts, the same should be treated as one.[34] In the absence of any qualifying circumstance, the crime committed was homicide, the penalty for which under Art. 249 of the Revised Penal Code is reclusion temporal. As there was one mitigating circumstance and no aggravating circumstance, the penalty should be fixed in its minimum period.[35] Applying the Indeterminate Sentence Law, petitioner Sinonor Pepito should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower in degree, i.e., prision mayor, and the maximum of which is that properly imposable under the Revised Penal Code, i.e., reclusion temporal in its medium period.[36]Finally, in accordance with current jurisprudence, the amount of moral damages should be raised from P10,000.00 to P50,000.00.[37] WHEREFORE, the decision of the Court of Appeals as to Felipe Pepito and Sonny Pepito is REVERSED and they are hereby ACQUITTED but AFFIRMED with respect to Sinonor Pepito who is hereby sentenced to suffer a prison term of eight (8) years of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum, and to pay the heirs of Noe Sapa the amounts ofP50,000.00 as death indemnity and P50,000.00 as moral damages and to pay the costs. SO ORDERED. Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur. SECOND DIVISION [G.R. No. 110109. November 21, 1996] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISPOLO VERANO Y MONTILLA alias Dodong", accusedappellant. DECISION ROMERO, J.: Eight-year old Jason Bagcals young life had an untimely end in the afternoon of October 14, 1991 in a cemetery in Surigao del Sur. Charged with his murder were Edgar Siman, Benjamin Martinez and accused-appellant Crispolo Verano in an information which reads: That on the 14th day of October 1991 at about 4:30 oclock in the afternoon, more or less, at Que zon St., Tandag, Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, did, then and there, willfully, unlawfully and feloniously attack, assault and strike one Jason Bagcal, an eight year old boy, thereby inflicting upon the latter multiple wounds on his body, which wounds have caused the damage and prejudice of his heirs in the following amount: P50,000.00 as life indemnity of the victim; P10,000.00 as moral damages; P10,000.00 as exemplary damages; CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal Code), with the presence of the following aggravating circumstances: 1. Abuse of Superior Strength, the victim being a minor. Tandag, Surigao del Sur, March 16, 1992. Arraigned on April 8, 1992, the three accused all entered separate pleas of Not Guilty.

The prosecutions evidence showed that in the afternoon of October 14, 1991, Roberto Cagampang and Fedelio Quezada were conversing in front of the latters house near the entrance of the Catholic Cemetery at Dagocdoc, Tandag, Surigao del Sur. Just then, two of the accused, Edgar Siman and Benjamin Martinez arrived. [1] Martinez asked Cagampang and Quezada why they were still out, while Siman asked the two men for a match to light his cigarettes.[2] Cagampang knew Martinez to be a military man and Siman, the son-in-law of one Tessie Martinez, to whom he used to sell lumber. Just as Siman was lighti ng his cigarette, a trisikad (bicycle with a sidecar used as a passenger vehicle in Tandag) arrived driven by accused-appellant Crispulo Verano with the victim Jason Bagcal in the passenger seat. Cagampang knew Verano to be a neighbor of his at Barangay Awasian, Tandag where they both resided. Cagampang also knew Jason because he was the child of Fortunato Bagcal to whom he used to sell lumber. [3] Martinez and Siman approached the trisikad and talked to Verano. Then the three men, together with Jason, entered the cemetery. Cagampang and Quezada were surprised and a little apprehensive, as both Siman and Martinez carried firearms. However, they did not do anything and went upstairs to their house and slept.[4] Early the next morning, Cagampang went back to Awasian. That evening, he heard that a child of a lumber dealer was found dead in the Catholic Cemetery at Tandag.[5] Meanwhile, in the evening of October 14, 1991, Yolanda Pineda, a waitress at the Bachelor Express Terminal Restaurant at Dagocdoc, Tandag was approached by accused-appellant, whom she knew because he was her neighbor, to pledge a gold-plated Seiko wrist watch for P65.00. The following morning, Verano came back with Renato Vistal, also a neighbor of Yolanda and likewise a trisikad driver, proposing to sell her the watch for an additional P185.00, to which she agreed. Yolandas husband, Julieto Pineda, another trisikad driver, saw the watch and asked her how she got it. She told hi m that it was originally pledged and later sold to her by accused-appellant. Yolanda gave the watch to her husband, who wore it while driving his trisikad.[6] On November 28, 1991, at about 2:30 in the afternoon, Police Officer Rogelio Lorenzana saw the wrist watch worn by Julieto. Lorenzana informed Julieto that it was the same kind taken from a child who was recently murdered. The Pineda spouses were brought to the Municipal Hall for questioning and pointed to appellant as the person from whom Yolanda bought the watch. [7] It was the victims father Fortunato who led the police officer to the Pinedas. Earlier, while searching for witnesses to his sons death, he talked to Renato Vistal who told him that his sons wrist watch was sold by accused -appellant to Yolanda Pineda.[8] Renato Vistal testified that in the early morning of October 15, 1992, while he was at his parents house in Awasian, his neighbor and longtime friend, appellant Verano, invited him to go to Tandag assuring him that he had money. The two friends boarded a truck bound for Barangay Dagocdoc where they disembarked. From Dagocdoc, Vistal and appellant proceeded to the Bachelor Terminal Restaurant to see Yolanda Pineda.[9] On their way to the restaurant, appellant suggested that they take the route going inside the cemetery which was near their destination to take a look at the cadaver of a young boy he had killed the night before. Vistal saw the lifeless body of a boy whose identity at that time was still unknown to him, with his backpack school bag still slung on his right shoulder. [10] When they reached the restaurant, appellant talked to Yolanda Pineda and received additional money for the wrist watch he had earlier pawned to her. With the additional money appellant received, he invited Vistal to the nearby Central market where they had a drinking spree.[11] Accused-appellant was subsequently arrested and brought to the Police Headquarters where he was asked by Fortunato if he was involved in the killing of the latters son Jason. Ad mitting his culpability, appellant stated that, for a monetary consideration and upon instructions of Siman, he fetched the victim from his school at St. Theresas College at 4:30 in the afternoon and took Jason for a ride to Barangay Mabatang until 7:00 in the evening. However, instead of bringing him home, appellant brought the child to the cemetery where appellants co-accused Benjamin Martinez and Edgar Siman were waiting. Siman then ordered appellant to beat the child to death. The motive given by Sima n for the killing was that Jasons father, Fortunato, was the enemy of Simans father -inlaw.[12] Appellant also executed a sworn statement reiterating the above and further adding that Siman poked a .38 caliber revolver on his head and threatened to kill him if he refused to kill Jason in turn. He likewise admitted that he pulled a wooden cross from the ground and struck Jason with it, causing him to slump on the ground. When shown a gold-plated wrist watch recovered by the police from Julieto Pineda, appellant admitted that it was the same wrist watch he took from the victim. The post mortem examination was conducted by Dr. Floripes A. Lim, Medical Officer III of the Provincial Health Office of Tandag. In his report dated October 17, 1991, Dr. Lim stated the cause of Jasons death as cerebral hemorrhage secondary to m assive brain damage. He also said that the victim had already been dead for 48 hours when the cadaver was examined on October 16, 1991.[13] The two accused, Martinez and Siman, interposed the defenses of denial and alibi. The trial court stated their version of the events as follows: . . . . According to accused Benjamin Martinez, the whole day on October 14, 1991, he stayed in the PC Barracks at Tandag. I n the early evening, he was in his house, same Poblacion of Tandag, preparing snacks because the image of the Patron Saint of Perpetual Help was scheduled to be brought by the devotees to his house that evening. And because it was raining, after the prayer he decided to stay and did not go out the whole night. He learned sometime on November 10 or 12, 1992, from Chief of Police Romalito Yuhico of Tandag that he was implicated by accused Crispolo Verano in the killing of the child Jason Bagcal. He denied any such participation or involvement. On the contrary, according to him, he helped in the investigation of the killing and even picked up some suspects, who were however released later for lack of evidence. When he asked accused Crispolo Verano why the latter implicated him, he was told that the Police coerced said accused to implicate him and Edgar Siman. He claimed that from October 14 to December 26, 1991, when he was arrested, he did not leave the town. Accused Edgar Siman also denied participation in the killing of Jason Bagcal. He claimed that the whole day on October 14, 1991, he worked on the cabinet in his house at Tandag. In the evening, he stayed home reading the lectures for the following day of the Southern Baptist Church of Tandag, of which he was a pastor for one month. He learned of the death of Jason Bagcal about a week

later when the incident became the talk of the town. According to him, from October 14 to his arrest on December 17, 1991, he never left Tandag and performed his customary work. He believed he was implicated in the killing of the child Jason Bagcal because his mother-in-law, Tersie Martinez, was the competitor in the lumber business of the deceaseds father, Fortunato Bagcal. When he talked to accused Crispolo Verano, he learned that the former was threatened with death by Nerio Bagcal, uncle of the deceased, and Police Officers Rogelio Lorenzana and Mario Balan when Crispolo refused to implicate him. Accused-appellant waived presentation of evidence. The trial court convicted him of the crime of Murder but acquitted his coaccused Martinez and Siman. The dispositive portion of the decision states: WHEREFORE, finding accused Crispolo Verano y Montilla, alias `Dodong GUILTY beyond reasonable doubt of the crime of MURDER, qualified by treachery, and aggravated by nighttime and uninhabited place which facilitated the commission of the crime, without any mitigating circumstance to offset the same, and with the imposition of death penalty having been disallowed by the present Constitution until restored by law, the Court hereby sentences him to suffer the indivisible penalty of RECLUSION PERPETUA; to pay the heirs of the deceased-victim Jason Bagcal the sum of Fifty Thousand (P50,000.00) Pesos as life indemnity, Ten Thousand (P10,000.00) Pesos as moral damages and Ten Thousand (P10,000.00) Pesos as exemplary damages, without subsidiary imprisonment in case of insolvency; and to pay the cost. Being detained, he is credited in the service of his sentence with the full term of his preventive imprisonment if he signed the agreement whereby he would abide by the same disciplinary rules imposed on convicted prisoners, otherwise four-fifths (4/5) thereof. On ground of reasonable doubt, accused Benjamin Martinez and Edgar Siman are acquitted. No finding of civil liability against either of them. The Bail Bond of accused Edgar Siman is cancelled and the documents attached thereto are ordered returned to his bondsman. Accused Benjamin Martinez shall remain under detention it appearing that he is facing another or other criminal cases. SO ORDERED. IN CHAMBERS, this 7th day of August, 1992, at Tandag, Suri gao del Sur, Philippines. Accused-appellant assigns the following errors: I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE THAT CANNOT SURVIVE THE TEST OF REASON AND JUSTIFY MORAL CERTAINTY. II THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT ON THE GROUND THAT, LIKE HIS TWO CO-ACCUSED, HIS GUILT HAD NOT BEEN PROVED BEYOND REASONABLE DOUBT. [14] On the first assigned error, accused-appellant claims that the circumstances proved in the trial case are not enough to sustain a conviction. We do not agree. Although the evidence in the instant case is largely circumstantial, it is sufficient for conviction as it meets the following requirements: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt.[15] Circumstantial evidence is evidence of circumstances which are strong enough to cast suspicion upon the defendant and which are sufficiently strong to overcome the presumption of innocence, and to exclude every hypothesis except that of the guilt of the defendant.[16] Many decisions are to the effect that circumstantial evidence may be fully as satisfying as positive testimony and will sometimes outweigh it. In cases where the facts or circumstances which are proved are not only consistent with the guilt of defendant, but also inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court.[17] We have said: When circumstantial evidence constit utes an unbroken chain of natural and rational circumstances corroborating each other, it cannot be overcome by inconcrete doubtful evidence submitted by the opposite party. [18] Below are the findings of the trial court. Close scrutiny of prosecutions evidence accused Crispolo Verano waived presentation of evidence in his defense it has been sufficiently established that (1) in the early evening of October 14, 1991, accused Crispolo Verano, then driving a trisikad with the deceased young boy Jason Bagcal as passenger, entered the Catholic Cemetery at Dagocdoc, Tandag, Surigao del Sur; (2) that same evening, he pledged for P65.00 a gold-plated seiko wrist watch to Yolanda Pineda at Bachelor Terminal Kitchenette, where she worked as waitress, and which Terminal was adjacent to the Catholic Cemetery; (3) early the following morning, Crispolo Verano, neighbor and long time friend of Renato Vistal went to the latters residence at Barangay Awasian, same municipality, and requested the latter to accompany him to downtown Tandag, and while on their way to Bachelor Terminal, led Renato to the place at the Cemetery where, according to Crispolo, he killed a young boy the night before, whom they saw lying prostrate on the ground facing `as if looking at (them); (4) proceeding afterwards to the nearby Bachelor Terminal Kitchenette, Crispolo asked for additional amount of P185.00 from Yolanda Pineda for the wrist watch he pledged the night before, which he decided to sell to her; (5) Yolanda gave the wrist watch to her husband, Julieto Pineda, who used it while driving his trisikad until the same was spotted by Policeman Lorenzana who, upon investigation, established that the wrist watch belonged to the deceased Jason Bagcal; (6) the deceased, who was discovered two days later, on October 16, 1991, was examined by Dr. Floripes A. Lim, who estimated the approximate time of death to be about 48 hours before; and (7) in the sworn statement he gave to Judge Jose M. Garcia of the Municipal Trial Court of Tandag, while the latter was conducting the preliminary investigation of the instant murder case, Crispolo Verano admitted authorship of the death of Jason Bagcal, admitted that he took the wrist watch of the deceased, which he later pledged and then sold to Yolanda Pineda, and admitted the exhibit wrist watch shown to him by Judge Garcia as the one he took from the deceased.

The above proved circumstances constitute an unbroken chain which leads to the only fair and reasonable conclusion which points to accused Crispolo Verano, to the exclusion of all others, as the guilty person. [19] The concatenation of events and circumstances has been satisfactorily proven by the prosecution and their combination establishes beyond reasonable doubt the conclusion that appellant indeed killed Jason. [20] Against this phalanx of positive evidence, appellants belated denial cannot prevail. Appellant further claims that certain portions of the testimonies of the prosecutions witnesses contained inconsistencies, c iting the following: 1) Witness Cagampang stated on direct examination that he only became aware of what happened to the child that appellant took inside the cemetery on the night of October 15, 1991, when he was informed by a barangay mate that a child had been found dead therein. However, on cross-examination, he stated that he received the said information in the afternoon of that date. 2) Witness Yolanda Pineda said that the watch was pledged to her for P65.00 and that she later gave P185.00 to pay off the item making the total price of the watch to be P250.00. However, Renato Vistal said that Yolanda Pineda gave P50.00 to appellant as a final purchase price, meaning that the pledge was for P150.00 and not P65.00. Later, Vistal said the watch was pawned for P75.00 initially and then later P175.00 was paid for it. Witness Julieto Pineda, in his sworn statement, gave another amount saying that appellant added P115.00 to the amount he originally paid Yolanda. During trial, he testified that the additional amount given was P100.00. The Court finds these alleged inconsistencies to be minor and as such, do not affect the credibility of the witnesses. [21] As for the supposedly conflicting statements in the various affidavits, we have opined in People v. Villanueva, that: [22] . . . . It has often been noted by this Court that an affidavit being taken ex-parte is almost always incomplete and often inaccurate, sometimes from partial suggestions and sometimes from want of suggestions and inquiries, . . . . Moreover, affidavits are frequently not complete reproductions of what the declarants had in mind, considering that the affidavits are frequently prepared by the administering officer and cast in the latters language as the latters understanding of what the affiant had said . . . . Time and again, we have held that minor lapses even enhance the veracity of the testimonies of witnesses as they erase any suspicion of a rehearsed declaration.[23] Appellant also impugns the credibility of witness Renato Vistals testimony that he (appellant) told the latter about killing Jason. We see no cogent reason to disturb the trial courts acceptance of said testimony. It is this Courts bounden duty to refrain from reviewing findings of fact by the lower court, considering that it has all the opportunity to directly observe the witnesses and to determine by their demeanor on the stand the probative value of their testimonies. [24] Furthermore, the fact that Vistal did not immediately reveal to the authorities what he knew of the killing does not affect his credibility. It is not uncommon for a witness to a crime to show reluctance about getting involved in a criminal case, as in fact the natural reticence of most people to get involved is of judicial notice.[25] This is especially true in this case where the parties involved are not just townmates but immediate neighbors.[26] WHEREFORE, in view of the foregoing, the decision appealed from is hereby AFFIRMED. SO ORDERED. Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur. SECOND DIVISION [G.R. No. 110109. November 21, 1996] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISPOLO VERANO Y MONTILLA alias Dodong", accusedappellant. DECISION ROMERO, J.: Eight-year old Jason Bagcals young life had an untimely end in the afternoon of October 14, 1991 in a cemetery in Surigao del Sur. Charged with his murder were Edgar Siman, Benjamin Martinez and accused-appellant Crispolo Verano in an information which reads: That on the 14th day of October 1991 at about 4:30 oclock in the afternoon, more or less, at Quezon St., Tandag, Surigao de l Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, did, then and there, willfully, unlawfully and feloniously attack, assault and strike one Jason Bagcal, an eight year old boy, thereby inflicting upon the latter multiple wounds on his body, which wounds have caused the damage and prejudice of his heirs in the following amount: P50,000.00 as life indemnity of the victim; P10,000.00 as moral damages; P10,000.00 as exemplary damages; CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal Code), with the presence of the following aggravating circumstances: 1. Abuse of Superior Strength, the victim being a minor. Tandag, Surigao del Sur, March 16, 1992. Arraigned on April 8, 1992, the three accused all entered separate pleas of Not Guilty. The prosecutions evidence showed that in the afternoon of October 14, 1991, Roberto Cagampang and Fedelio Quezada were conversing in front of the latters house near the entrance of the Catholic Cemetery at Dagocdoc, Tandag, Surigao del Sur. Just then, two of the accused, Edgar Siman and Benjamin Martinez arrived. [1] Martinez asked Cagampang and Quezada why they were still out, while Siman asked the two men for a match to light his cigarettes. [2] Cagampang knew Martinez to be a military man and Siman, the son-in-law of one Tessie Martinez, to whom he used to sell lumber. Just as Siman was lighting his cigarette, a trisikad (bicycle w ith

a sidecar used as a passenger vehicle in Tandag) arrived driven by accused-appellant Crispulo Verano with the victim Jason Bagcal in the passenger seat. Cagampang knew Verano to be a neighbor of his at Barangay Awasian, Tandag where they both resided. Cagampang also knew Jason because he was the child of Fortunato Bagcal to whom he used to sell lumber. [3] Martinez and Siman approached the trisikad and talked to Verano. Then the three men, together with Jason, entered the cemetery. Cagampang and Quezada were surprised and a little apprehensive, as both Siman and Martinez carried firearms. However, they did not do anything and went upstairs to their house and slept. [4] Early the next morning, Cagampang went back to Awasian. That evening, he heard that a child of a lumber dealer was found dead in the Catholic Cemetery at Tandag.[5] Meanwhile, in the evening of October 14, 1991, Yolanda Pineda, a waitress at the Bachelor Express Terminal Restaurant at Dagocdoc, Tandag was approached by accused-appellant, whom she knew because he was her neighbor, to pledge a gold-plated Seiko wrist watch for P65.00. The following morning, Verano came back with Renato Vistal, also a neighbor of Yolanda and likewise a trisikad driver, proposing to sell her the watch for an additional P185.00, to which she agreed. Yolandas husband, Julieto Pineda, another trisikad driver, saw the watch and asked her how she got it. She told him that it was originally pledged and later sold to her by accused-appellant. Yolanda gave the watch to her husband, who wore it while driving his trisikad.[6] On November 28, 1991, at about 2:30 in the afternoon, Police Officer Rogelio Lorenzana saw the wrist watch worn by Julieto. Lorenzana informed Julieto that it was the same kind taken from a child who was recently murdered. The Pineda spouses were brought to the Municipal Hall for questioning and pointed to appellant as the person from whom Yolanda bought the watch. [7] It was the victims father Fortunato who led the police officer to the Pinedas. Earlier, while searching for witnesses to his sons death, he talked to Renato Vistal who told him that his sons wrist watch was sold by accused -appellant to Yolanda Pineda.[8] Renato Vistal testified that in the early morning of October 15, 1992, while he was at his parents house in Awasian, his neighbor and longtime friend, appellant Verano, invited him to go to Tandag assuring him that he had money. The two friends boarded a truck bound for Barangay Dagocdoc where they disembarked. From Dagocdoc, Vistal and appellant proceeded to the Bachelor Terminal Restaurant to see Yolanda Pineda.[9] On their way to the restaurant, appellant suggested that they take the route going inside the cemetery which was near their destination to take a look at the cadaver of a young boy he had killed the night before. Vistal saw the lifeless body of a boy whose identity at that time was still unknown to him, with his backpack school bag still slung on his right shoulder. [10] When they reached the restaurant, appellant talked to Yolanda Pineda and received additional money for the wrist watch he had earlier pawned to her. With the additional money appellant received, he invited Vistal to the nearby Central market where they had a drinking spree.[11] Accused-appellant was subsequently arrested and brought to the Police Headquarters where he was asked by Fortunato if he was involved in the killing of the latters son Jason. Admitting his culpability, appellant stated that, for a monetary considera tion and upon instructions of Siman, he fetched the victim from his school at St. Theresas College at 4:30 in the afternoon and took Jason for a ride to Barangay Mabatang until 7:00 in the evening. However, instead of bringing him home, appellant brought the child to the cemetery where appellants co-accused Benjamin Martinez and Edgar Siman were waiting. Siman then ordered appellant to beat the child to death. The motive given by Siman for the killing was that Jasons father, Fortunato, was the enemy of Simans father -inlaw.[12] Appellant also executed a sworn statement reiterating the above and further adding that Siman poked a .38 caliber revolver on his head and threatened to kill him if he refused to kill Jason in turn. He likewise admitted that he pulled a wooden cross from the ground and struck Jason with it, causing him to slump on the ground. When shown a gold-plated wrist watch recovered by the police from Julieto Pineda, appellant admitted that it was the same wrist watch he took from the victim. The post mortem examination was conducted by Dr. Floripes A. Lim, Medical Officer III of the Provincial Health Office of Tandag. In his report dated October 17, 1991, Dr. Lim stated the cause of Jasons death as cerebral hemorrhage secondary to massive brain damage. He also said that the victim had already been dead for 48 hours when the cadaver was examined on October 16, 1991.[13] The two accused, Martinez and Siman, interposed the defenses of denial and alibi. The trial court stated their version of the events as follows: . . . . According to accused Benjamin Martinez, the whole day on October 14, 1991, he stayed in the PC Barracks at Tand ag. In the early evening, he was in his house, same Poblacion of Tandag, preparing snacks because the image of the Patron Saint of Perpetual Help was scheduled to be brought by the devotees to his house that evening. And because it was raining, after the prayer he decided to stay and did not go out the whole night. He learned sometime on November 10 or 12, 1992, from Chief of Police Romalito Yuhico of Tandag that he was implicated by accused Crispolo Verano in the killing of the child Jason Bagcal. He denied any such participation or involvement. On the contrary, according to him, he helped in the investigation of the killing and even picked up some suspects, who were however released later for lack of evidence. When he asked accused Crispolo Verano why the latter implicated him, he was told that the Police coerced said accused to implicate him and Edgar Siman. He claimed that from October 14 to December 26, 1991, when he was arrested, he did not leave the town. Accused Edgar Siman also denied participation in the killing of Jason Bagcal. He claimed that the whole day on October 14, 1991, he worked on the cabinet in his house at Tandag. In the evening, he stayed home reading the lectures for the following day of the Southern Baptist Church of Tandag, of which he was a pastor for one month. He learned of the death of Jason Bagcal about a week later when the incident became the talk of the town. According to him, from October 14 to his arrest on December 17, 1991, he never left Tandag and performed his customary work. He believed he was implicated in the killing of the child Jason Bagcal because his mother-in-law, Tersie Martinez, was the competitor in the lumber business of the deceaseds father, Fortunato Bagcal. When he talked to accused Crispolo Verano, he learned that the former was threatened with death by Nerio Bagcal, uncle of the deceased, and Police Officers Rogelio Lorenzana and Mario Balan when Crispolo refused to implicate him.

Accused-appellant waived presentation of evidence. The trial court convicted him of the crime of Murder but acquitted his coaccused Martinez and Siman. The dispositive portion of the decision states: WHEREFORE, finding accused Crispolo Verano y Montilla, alias `Dodong GUILTY beyond reasonable doubt of the crime of MURDER, qualified by treachery, and aggravated by nighttime and uninhabited place which facilitated the commission of the crime, without any mitigating circumstance to offset the same, and with the imposition of death penalty having been disallowed by the present Constitution until restored by law, the Court hereby sentences him to suffer the indivisible penalty of RECLUSION PERPETUA; to pay the heirs of the deceased-victim Jason Bagcal the sum of Fifty Thousand (P50,000.00) Pesos as life indemnity, Ten Thousand (P10,000.00) Pesos as moral damages and Ten Thousand (P10,000.00) Pesos as exemplary damages, without subsidiary imprisonment in case of insolvency; and to pay the cost. Being detained, he is credited in the service of his sentence with the full term of his preventive imprisonment if he signed the agreement whereby he would abide by the same disciplinary rules imposed on convicted prisoners, otherwise four-fifths (4/5) thereof. On ground of reasonable doubt, accused Benjamin Martinez and Edgar Siman are acquitted. No finding of civil liability against either of them. The Bail Bond of accused Edgar Siman is cancelled and the documents attached thereto are ordered returned to his bondsman. Accused Benjamin Martinez shall remain under detention it appearing that he is facing another or other criminal cases. SO ORDERED. IN CHAMBERS, this 7th day of August, 1992, at Tandag, Surigao del Sur, Philippines. Accused-appellant assigns the following errors: I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE THAT CANNOT SURVIVE THE TEST OF REASON AND JUSTIFY MORAL CERTAINTY. II THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT ON THE GROUND THAT, LIKE HIS TWO CO-ACCUSED, HIS GUILT HAD NOT BEEN PROVED BEYOND REASONABLE DOUBT.[14] On the first assigned error, accused-appellant claims that the circumstances proved in the trial case are not enough to sustain a conviction. We do not agree. Although the evidence in the instant case is largely circumstantial, it is sufficient for conviction as it meets the following requirements: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. [15] Circumstantial evidence is evidence of circumstances which are strong enough to cast suspicion upon the defendant and which are sufficiently strong to overcome the presumption of innocence, and to exclude every hypothesis except that of the guilt of the defendant.[16] Many decisions are to the effect that circumstantial evidence may be fully as satisfying as positive testimony and will sometimes outweigh it. In cases where the facts or circumstances which are proved are not only consistent with the guilt of defendant, but also inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court.[17] We have said: When circumstantial evidence constitutes an unbroken chain of natural and rational circumstances corroborating each other, it cannot be overcome by inconcrete doubtful evidence submitted by the opposite party.[18] Below are the findings of the trial court. Close scrutiny of prosecutions evidence accused Crispolo Verano waived presentation of evidence in his defense it has been sufficiently established that (1) in the early evening of October 14, 1991, accused Crispolo Verano, then driving a trisikad with the deceased young boy Jason Bagcal as passenger, entered the Catholic Cemetery at Dagocdoc, Tandag, Surigao del Sur; (2) that same evening, he pledged for P65.00 a gold-plated seiko wrist watch to Yolanda Pineda at Bachelor Terminal Kitchenette, where she worked as waitress, and which Terminal was adjacent to the Catholic Cemetery; (3) early the following morning, Crispolo Verano, neighbor and long time friend of Renato Vistal went to the latters residence at Barangay Awasian, same municipality, and req uested the latter to accompany him to downtown Tandag, and while on their way to Bachelor Terminal, led Renato to the place at the Cemetery where, according to Crispolo, he killed a young boy the night before, whom they saw lying prostrate on the ground facing `as if looking at (them); (4) proceeding afterwards to the nearby Bachelor Terminal Kitchenette, Crispolo asked for additional amount of P185.00 from Yolanda Pineda for the wrist watch he pledged the night before, which he decided to sell to her; (5) Yolanda gave the wrist watch to her husband, Julieto Pineda, who used it while driving his trisikad until the same was spotted by Policeman Lorenzana who, upon investigation, established that the wrist watch belonged to the deceased Jason Bagcal; (6) the deceased, who was discovered two days later, on October 16, 1991, was examined by Dr. Floripes A. Lim, who estimated the approximate time of death to be about 48 hours before; and (7) in the sworn statement he gave to Judge Jose M. Garcia of the Municipal Trial Court of Tandag, while the latter was conducting the preliminary investigation of the instant murder case, Crispolo Verano admitted authorship of the death of Jason Bagcal, admitted that he took the wrist watch of the deceased, which he later pledged and then sold to Yolanda Pineda, and admitted the exhibit wrist watch shown to him by Judge Garcia as the one he took from the deceased. The above proved circumstances constitute an unbroken chain which leads to the only fair and reasonable conclusion which points to accused Crispolo Verano, to the exclusion of all others, as the gui lty person.[19] The concatenation of events and circumstances has been satisfactorily proven by the prosecution and their combination establishes beyond reasonable doubt the conclusion that appellant indeed killed Jason. [20] Against this phalanx of positive evidence, appellants belated denial cannot prevail.

Appellant further claims that certain portions of the testimonies of the prosecutions witnesses contained inconsistencies, citing the following: 1) Witness Cagampang stated on direct examination that he only became aware of what happened to the child that appellant took inside the cemetery on the night of October 15, 1991, when he was informed by a barangay mate that a child had been found dead therein. However, on cross-examination, he stated that he received the said information in the afternoon of that date. 2) Witness Yolanda Pineda said that the watch was pledged to her for P65.00 and that she later gave P185.00 to pay off the item making the total price of the watch to be P250.00. However, Renato Vistal said that Yolanda Pineda gave P50.00 to appellant as a final purchase price, meaning that the pledge was for P150.00 and not P65.00. Later, Vistal said the watch was pawned for P75.00 initially and then later P175.00 was paid for it. Witness Julieto Pineda, in his sworn statement, gave another amount saying that appellant added P115.00 to the amount he originally paid Yolanda. During trial, he testified that the additional amount given was P100.00. The Court finds these alleged inconsistencies to be minor and as such, do not affect the credibility of the witnesses.[21] As for the supposedly conflicting statements in the various affidavits, we have opined in People v. Villanueva, that: [22] . . . . It has often been noted by this Court that an affidavit being taken ex -parte is almost always incomplete and often inaccurate, sometimes from partial suggestions and sometimes from want of suggestions and inquiries, . . . . Moreover, affidavits are frequently not complete reproductions of what the declarants had in mind, considering that the affidavits are frequently prepared by the administering officer and cast in the latters language as the latters understanding of what the affiant had said . . . . Time and again, we have held that minor lapses even enhance the veracity of the testimonies of witnesses as they erase any suspicion of a rehearsed declaration.[23] Appellant also impugns the credibility of witness Renato Vistals testimony that he (appellant) told the latter about killing Jason. We see no cogent reason to disturb the trial courts acceptance of said testimony. It is this Courts bounden duty to refrain from reviewing findings of fact by the lower court, considering that it has all the opportunity to directly observe the witnesses and to determine by their demeanor on the stand the probative value of their testimonies.[24] Furthermore, the fact that Vistal did not immediately reveal to the authorities what he knew of the killing does not affect his credibility. It is not uncommon for a witness to a crime to show reluctance about getting involved in a criminal case, as in fact the natural reticence of most people to get involved is of judicial notice.[25] This is especially true in this case where the parties involved are not just townmates but immediate neighbors. [26] WHEREFORE, in view of the foregoing, the decision appealed from is hereby AFFIRMED. SO ORDERED. Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-45589 July 28, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO VERANO, JR., Alias Juan and Silvestre Verano, defendant-appellant. SARMIENTO, J.: In Criminal Case No. SM-755 of the then Court of First Instance of Bulacan, Branch V (now the Regional Trial Court), Pedro Verano, Jr. y Marasarti, alias Juan and Silvestre Verano, was accused of Robbery with Homicide said to have been committed as follows: 1 That on or about the 22nd day of August, 1975, in the municipality of San Jose del Monte, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Pedro Verano, Jr. y Marasarti @ Juan and Silvestre Verano, with intent of gain, did then and there wilfully, unlawfully and feloniously, by means of force, violence and intimidation, take, rob and carry away with him the following, to wit: One (1) transistor radio P90.00 One (1) umbrella 50.00 One (1) pair waiting with pearls 1,000.00 One (1) gold necklace 50.00 One (1) white towel 5.00 Cash money 23.00 One (1) pair of earring 100.00 One (1) gold ring 100.00 One (1) umbrella 50.00 Cash money 30.00 TOTAL P1,498.00 belonging to Manuela J. Ponce Vda. de Trinidad and Remedios Trinidad y Ponce, respectively, to the damage and prejudice of the said owners in the said sum of P1,498.00, and that during the commission of this crime and on the occasion thereof, the said accused with intent to kill one Remedies Trinidad y Ponce, and with evident premeditation and treachery, did then and there wilfully, unlawfully and feloniously attack, assault and hit with a piece of bamboo and stab with a knife he was then provided the said Remedios Trinidad y Ponce, thereby inflicting serious physical injuries at her back, which immediately and directly caused the death of the said Remedios Trinidad y Ponce.

Contrary to law. Arraigned on February 10, 1976 with the assistance of his counsel de oficio, the accused pleaded "Not Guilty." On January 27, 1977, while the prosecution was in the course of presenting its evidence, the accused through his counsel moved to withdraw his previous plea of "Not Guilty" for a plea of "Guilty," at the same time invoking the benefit of Presidential Decree (P.D. for short) No. 603. Thereafter he took the witness stand and testified among others, on "his voluntariness in entering the plea of guilty as well as the absence of any restraint on him during the commission of the offense charged" 2 the fact of its commission, and that he understood the nature and gravity of the offense for which he was charged and the consequences of his plea of guilty. Based on the oral and documentary evidence adduced, in addition to the accused's plea of guilty, the court a quofound him to be guilty beyond reasonable doubt of the offense charged in its decision 3 dated February 8, 1977, the dispositive part of which reads: WHEREFORE, finding accused guilty beyond reasonable doubt of the crime of robbery with homicide, the Court hereby sentences the accused to LIFE IMPRISONMENT or RECLUSION PERPETUA; to suffer the accessory penalties; to indemnify the heirs of Remedios Trinidad y Ponce in the amount of P12,000.00 for the latters death; to indemnity the heirs of said victim in the amount of P1,498.00 for the properties taken by way of damage; and to pay the costs. Being a detention prisoner, accused is entitled to the benefits of Article 29 of the Revised Penal Code, as amended. SO ORDERED. In this appeal before us the accused assigned two alleged errors of the trial court, to wit: 4 I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE DEFENDANT-APPELLANT PEDRO VERANO, JR. OF THE CRIME OF ROBBERY WITH HOMICIDE ON THE STRENGTH OF HIS PLEA OF GUILTY. II THE COURT A QUO GRAVELY ERRED IN NOT GIVING HIM THE BENEFIT OF P.D. 603 ART. 192. We find no merit in this appeal. The records disclose that although the accused pleaded guilty, the trial court took pains to adhere to the often repeated admonition of this Court to trial judges to eschew accepting an accused's plea of guilty unless the accused understands fully the meaning of his plea and the import of an inevitable conviction, 5 to be extra solicitous in accepting it, 6 to assure itself that the accused understands his act, and always to satisfy itself that there is full realization of the fate that awaits the person on the dock. 7 In addition, the trial judge placed the accused on the witness stand and asked him the following questions: 8 1) whether or not he was aware that he entered a plea of guilty to the charge of robbery with homicide? 2) whether or not he had conferred with his lawyer? 3) whether or not his lawyer informed him of the legal consequence of his plea of guilty? 4) whether or not his plea was voluntary. 5) whether or not he was influenced by outside factors or persons into entering his plea of guilty? Except for question No. 5 to which he answered "No", all the rest were answered in the affirmative. In People v. Castanio, 9 we held that: The norm that should be followed where a plea of guilty is entered by the defendant, especially in cases where the capital penalty may be imposed, is that the court should be sure that the defendant fully understood the nature of the charges preferred against him and the character of the punishment provided by law before it is imposed. While there is no law requiring it, yet where the penalty may be death, it is advisable for the court to call witnesses for the purpose of establishing the guilt and the degree of culpability of the defendant. The latest decision on this point is in the case of People vs. Remigio Estebia G.R. No. L-26868, July 29, 1971, where this Court speaking through Mr. Justice Enrique M. Fernando, stated: ". . . inasmuch as judgments of conviction imposing the extreme penalty of death are subject to review by the Supreme Court as law and justice shall dictate, whether the defendant appeals or not, which automatic review neither the Court nor the accused could waive or evade, it would seem that the proper and prudent course to follow where the accused enters a plea of guilty to capital offenses especially where he is an ignorant person with little or no education, is to take testimony not only to satisfy the trial judge but to aid the Supreme Court in determining whether accused really and truly understood and comprehended the meaning, full significance and consequence of his plea. In the very recent case of People vs. Camay, 10 we took the occasion to outline the procedure we enjoined to be followed strictly if the accused, with the assistance of counsel, voluntarily pleads guilty to a capital offense, as follows: 1. The court must conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea; 2. The court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and 3. The court must ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. Likewise, in Camay, we reminded: "We had several occasions to issue the caveat that even if the trial court is satisfied that the plea of guilty was entered with full knowledge of its meaning and consequences, the trial court must still require the introduction of evidence for the purpose of establishing the guilt and the degree of culpability of the defendant. This is the proper norm to be followed not only to satisfy the trial judge but also to aid the Court in determining whether or not the accused really and truly comprehended the meaning, full significance, and consequence of his plea." Earlier, in People vs. Onavia, 11 we stated that "[A]lthough it did not explain to the accused the full import of his plea of guilty, neither did it automatically accept that plea nor did it render judgment based exclusively thereon. It accepted evidence for the purpose of

determining the accused's guilt and the degree of his culpability to the end that such evidence would dispel all doubt that the accused misunderstood the nature and effects of his plea of guilty. Where the trial court received evidence on the crime, there is no improvident acceptance of a plea of guilty. The defense contention, therefore, that the plea of guilty, having been improvidently accepted, the case should be remanded to the trial court, is bereft of basis. The validity of the judgment under review is unassailable." In an earlier case, we declared that the plea of guilty is not improvidently made by the accused provided they were apprised by the trial court of the consequences of their plea and that their counsel assisted them when they pleaded and concurred with the trial court's conduct of the trial. 12 Considering, therefore, the circumstances obtaining in the case at bar, we affirm that there is no improvident acceptance of the plea of guilty by the trial court. Moreover, the defense counsel, having lent his approval to the proceedings in the trial court by failing to seasonably challenge what he now alleges to be irregular and improvident, is not allowed to raise such issue before this Court, for it is a settled rule that issues not raised in the trial court cannot be raised for the first time on appeal. 13 The issue raised in the second assignment of error has already been passed upon in People vs. Casiguran, 14We explained: Originally, the Child and Youth Welfare Code, which took effect six months after December 10, 1974 or on June 8, 1975 and which repealed article 80 of the Revised Penal Code, considered as a youthful offender a person over nine years but under twenty-one years of age at the time of the commission of the offense (Art. 189). Presidential Decree No. 1179, which took effect on August 15, 1977, lowered the age limit to eighteen years (the same age limit provided for in article 80 of the Revised Penal Code before it was amended by Republic Act No. 47). Article 192 of the Child and Youth Welfare Code (before it was amended) provided that "if after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him, the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached twenty-one years of age or, for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed. Under Presidential Decrees Nos. 1179 and 1210, the youthful offender should apply for a suspended sentence. The purpose of Articles 189 and 192 of the Child and Youth Welfare Code is the same as that of Article 80 and that is to avoid a situation where juvenile offenders would commingle with ordinary criminals in prison. So, instead of imposing a condemnatory sentence on them, they are confined in a beneficent institution for their care, correction and education (People vs. Estefa, 86 Phil. 104, 110). Article 192 should be interpreted in the same manner as article 80. Under the original provisions of article 80 (before it was amended by Republic Act No. 47 which reduced the age of eighteen years to sixteen years), it was held that if at the time the crime was committed the accused was below eighteen years but at the time of the trial or conviction he was no longer a minor, he is not entitled anymore to a suspended sentence because he is not a juvenile offender but already an adult. The reason for the suspended sentence does not apply to him (People vs. Celespara, 82 Phil. 399; People vs. Nunez, 85 Phil. 448; People vs. Estefa, supra; People vs. Lingcuan, 93 Phil. 9; People vs. Doria, L-26189 and two other cases, January 31, 1974, 55 SCRA 435, 450; People vs. Pedro, L-18997, January 31, 1966, 16 SCRA 57, 67). Accordingly, we affirm the finding of the trial court that the accused is not entitled to a suspension of his sentence because at the time of his conviction he was already over 21 years and therefore no longer a youthful offender as defined in Art. 189 of P.D. 603. He should, however, be credited with the privileged mitigating circumstance of minority under the same decree as it has been established that at the time of the commission of the offense he was still a minor. His plea of guilty would not however mitigate his culpability in view of our holding in a number of decisions that "if plea is made after arraignment and after trial has begun, the accused shall not be entitled to have such plea considered as mitigating circumstance." 15 The penalty actually imposed, not being death, he should be entitled to the benefit of the Indeterminate Sentence Law. 16 The imposable penalty for the offense as provided in Art. 248 of the Revised Penal Code is reclusion perpetua. However, with the abolition of the capital punishment in the 1987 Constitution, the penalty for the complex crime of Robbery with Homicide is now reclusion temporal in its maximum period to reclusion perpetua. The penalty is imposable in its minimum period, or from seventeen (17) years, four (4) months, and one (1) day to eighteen (18) years and eight (8) months. Applying the Indeterminate Sentence Law, the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense is prision mayor in its maximum period to reclusion temporal in its medium period, or, from ten (10) years, and one (1) day to seventeen (17) years and four (4) months. WHEREFORE, the appealed judgment is hereby MODIFIED in that appellant, Pedro Verano, shall suffer an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months, one (1) day of reclusion temporal, as maximum, and shall indemnify the heirs of the victim, Remedios Trinidad y Ponce, in the amount of THIRTY THOUSAND (P30,000.00) PESOS. The rest of the judgment is AFFIRMED: With costs. SO ORDERED. EN BANC [G.R. No. 123071. October 28, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JERONICO M. LOBINO alias HAPON", accused-appellant.

DECISION PURISIMA, J.: This is an appeal from the decision of Branch 13 of the Regional Trial Court, Oroquieta City, in Criminal Case No. 1250, finding appellant Jeronico M. Lobino alias Hapon guilty of murder for the killing of his common law wife Pacita Abajar and sentencing him to Death. Filed on June 24, 1994 by 2nd Assistant Provincial Prosecutor Franklin E. Omandam, the Information indicting appellant of Murder alleges: That on or about the 28th day of April, 1994 at about 8:00 oclock in the morning, more or less, at barangay Southern Looc, municipality of Plaridel, province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused with treachery and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab PATRICIA ABAJAR with the use of a hunting knife, in a sudden and unexpected manner while the latter was unaware and defenseless, thereby inflicting upon the body of said Patricia Abajar several stab wounds which caused her immediate death. CONTRARY TO LAW, with the presence of the qualifying circumstance of treachery and the aggravating circumstance of superior strength, the victim being a woman.[1] With the appellant entering a negative plea upon arraignment on August 23, 1994, trial ensued with the prosecution presenting Artemio Nisnisan, Julie Lobino, Alberto Abajar and Dr. Israelson Taclob as its witnesses. Appellant took the stand as lone witness for his defense. Appellant Jeronico Lobino and the victim, Patricia Abajar, lived together as husband and wife for twenty years. They have four children, one of whom was prosecution witness Julie Lobino. Alberto Abajar, another prosecution witness, is the victims son by a previous marriage. On April 28, 1994, at about 8 oclock in the morning, prosecution witness Artemio Nisnisan was at the seashore of Southern Looc, Plaridel, Misamis Occidental. He was then fishing with the use of a baling (fishnet) for an hour. There were eighteen (18) persons thereat including the appellant, Jeronico Lobino, the victim, Patricia Abajar; and their daughter, Julie Lobino. While said fishermen were dividing their catch, Artemio Nisnisan, from a distance of one fathom, saw appellant stab Patricia Abajar. The victim ran but was overtaken by appellant who stabbed her twice. Julie Lobino shouted for help but it was only after appellant had stabbed the victim thrice that Nisnisan and other people were able to apprehend the former and take him to the police station. The victim was brought to the provincial hospital where she died two days later. The hunting knife used by appellant was not recovered.[2] On cross examination, Nisnisan stated that he usually went fishing at about 7 oclock in the morning; that he had observed no altercation between the appellant and the victim prior to the stabbing incident; that he was not paying particular attention to appellant and the victim then; that at the time she was stabbed, the victim was in a stooping position with appellant in front of her; that the first thrust hit the right side of the victims stomach; that the victim ran in a staggered manner enabling appellant to catch up with her; tha t the appellant made two more thrusts to the victim who thereafter slumped to the ground unconscious. [3] Julie Lobino narrated as follows: on that fateful day, her mother, Patricia Abajar, and her father (herein appellant) and she were at the seashore, catching fish using the fishnet of Artemio Nisnisan. While her mother was getting her share of the fish, appellant, using a stainless knife, stabbed Patricia, first at the right side. She was one fathom away from the place where her mother was stabbed. She admonished her father but fearing he might also attack her, she ran for help. The second thrust hit her mothers lower right armpit while the third thrust hit her lower right arm. The people helped in bringing her mother to the hospital. Her father ran amuck and the knife he used was never recovered. Her mother had been confined at the hospital for two days, before she died on April 30, 1994. She was buried at the Lao cemetery,[4] recounted Julie Lobino, who further disclosed that she was the second of four children and she does not know whether her parents were legally married; that she was not aware of any quarrel in the family; that she did not observe any altercation between her parents on that pa rticular day; that she was surprised by the suddenness of her fathers attack; and only after appellant had stabbed her mother three times were the people able to bring her mother to the hospital. [5] Alberto Abajar was also out fishing on that day. When he reached the shore, he was informed by several people that his mother, Patricia Abajar, was stabbed by the appellant. His mother was brought to the provincial hospital where she died two days after. He spent a total of P5,000.00 for medical and funeral expenses. A medico-legal certificate was issued.[6] On cross-examination, witness testified that his mother and the appellant started living together in 1974, and he never noticed any quarrel between them.[7] Dr. Israelson Taclob, who has been connected with the Misamis Occidental Provincial Hospital in Oroquieta City since 1993, narrated that on April 28, 1994, he examined Patricia Abajar who did not survive. The cause of death was a stab wound at the right upper quadrant abdomen penetrating perforating with severe hemorrhage. He issued the medico -legal certificate[8] and certificate of death of the deceased.[9] As the lone witness for the defense, appellant testified that he and the victim were not legally married but had lived together for twenty years. They were blessed with four children. Prior to the April 28, 1994 incident, they had several misunderstandings. They often quarreled because the victim would often come home late at night and when confronted, the victim answ ered why do you ask, you cant refrain me. The victim was not in their house to take care of him when he was sick on April 5. On that fateful day, he stabbed the victim because he could no longer swallow what was happening and he lost control of himse lf. He only remembered stabbing the victim once and before the incident, he did not plan to kill her. He stayed at the beach until he was brought by a neighbor to the municipal building.[10] On cross-examination, he stated that on that morning of April 28, 1994, they were at the seashore using the fishnet of Artemio Nisnisan. He stabbed the victim while she was picking up her share of the fish; and when he lost control of himself, he again stabbed the victim two times.[11] On October 9, 1995, the trial court decided the case, disposing thus

WHEREFORE, premises considered, accused Jeronico M. Lobino is hereby found guilty beyond reasonable doubt for the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code, as amended, and he is hereby sentenced to DEATH. With costs de oficio. Now, before the Court on automatic review, appellant contends, by way of assignment of errors, that: I THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONY OF THE ACCUSED JERONICO LOBINO. II THE TRIAL COURT ERRED IN FINDING THAT THE KILLING OF PATRICIA ABAJAR IS QUALIFIED BY TREACHERY AND AGGRAVATED BY SUPERIOR STRENGTH. III THE TRIAL COURT ERRED IN NOT APPRECIATING IN FAVOR OF THE ACCUSED THE MITIGATING CIRCUMSTANCE OF PASSION AND OBFUSCATION. Appellant theorizes that the trial court erred in not giving credence to his assertion that he killed the victim because she provoked him, and that mere suddenness of the attack did not mean that treachery attended the killing. The fact that the victim was in a stooping position was purely incidental and was not deliberately sought by him; otherwise, the victim would not have been able to run after she was first stabbed. Neither could the prosecution witnesses, Artemio Nisnisan and Julie Lobino, see the victim in the alleged stooping position as they were one fathom away; appellant argued. It is appellants submission that he would not stab his common law wife without any apparent reason. He attacked her because he could no longer stand her going home late at night and her sarcastic remarks whenever her attention was called to what she was doing. The trial court should have credited him with the mitigating circumstance of passion and obfuscation, appellant maintains. Finally, appellant contends that the trial court should not have considered abuse of superior strength as a qualifying circumstance, and should have only found him guilty of homicide and not murder. Anent the issue that the trial court erred in not considering appellants testimony, oft -repeated is the rule that the evaluation by the trial judge of the credibility of the witnesses and the ascribing of the evidentiary weight to their testimony is well-nigh conclusive on an appellate court, barring patent arbitrariness in arriving at his conclusions. This court has consistently, on the basis of reason and experience, sustained the factual findings of the trial court considering that the court was in a better position to assess the evidence before it and to view the witnesses as they gave their testimony. [12] Here, the trial court evidently found the version of the prosecution witnesses more credible. According to appellant, he could not have killed his common law wife without a reason. He asserts that because of her provocation, he lost control of himself, and therefore, the charge should be reduced to homicide only. The Court disagrees. The requisites of passion and obfuscation are: 1. that there be an act, both unlawful and sufficient to produce such a condition of mind; and 2. that said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time during which the perpetrator might recover his normal equanimity. [13] It has been held that [T]here is passional obfuscation when the crime was committed due to an uncontrollable burst of passio n provoked by prior unjust or improper acts, or due to a legitimate stimulus so powerful as to ove rcome reason.[14] The 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, because the cause of this condition of mind must necessarily have preceded the commission of the offense.[15] Moreover, the act producing the obfuscation must not be far removed from the commission of the crime by a considerable length of time, during which the accused might have recovered his normal equanimity.[16] Here, there is no evidence to support appellants theory that he and the victim quarreled. Julie Lobino, who lived with her parents, testified that she knew of no quarrel or altercation between them. None of the prosecution witnesses testified that a quarrel preceded the attack. Appellant alleges that the victim did not take care of him when he was ill on April 5, 1994, but the said date was far removed from the time appellant committed the crime on April 28, 1994. Such length of time would have been sufficient to enable the appellant to recover his equanimity. As succinctly put by the Solicitor General: Appellants insinuations regarding his common-law wifes late night trysts, or her lack of concern for a sick husband are not cogent enough to drive anyone to passion or obfuscation and commit the crime at the spur of the moment. Besides being vague and generic, the alleged provocative acts do not even proximately precede the time of the commission of the crime. If at all, such allegations proved instead that appellant harbored certain ill-feelings against his common-law wife. As the unfolding of the events mirrored, disdain and contempt were all that appellant evoked. In a spirit of lawlessness, therefore, absent any passion or obfuscation to arouse his pent-up feelings, appellant unremorsefully stabbed to death his common-law wife.[17] Did treachery attend the crime so as to qualify it to murder? Enlightening is the following ruling in People of the Philippines vs. Ramy Valles, supra, to wit: Under the Revised Penal Code, there is treachery when the offender commits any of the crimes against the person, 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. Thus, for treachery to be present, two conditions must concur, namely: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (b) the means of execution was deliberately or consciously adopted. x x x In People vs. Estrellanes, we declared in no uncertain terms that `the mere fact that the victim had no weapon with which he could have defended himself is not sufficient to prove the existence of the first element of treachery, for settled is the rule that treachery cannot be presumed; it must be proved by clear and convincing evidence or

as conclusively as the killing itself. Furthermore, there must be some evidence, none of which, however, obtains in the i nstant case, showing that this mode of assault is deliberately or consciously adopted to insure the execution of the crime without risk to the offender. Accordingly, if the attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocation on the part of the victim, then no treachery attended the commission of the crime. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. x x x.[18] In the case under scrutiny, appellant stabbed the victim as she was kneeling to get her share of the fish. Obviously, in that position, the victim was not in a position to defend herself. She had no inkling of what appellant was about to do. A sudden attack against an unarmed victim constitutes treachery. The fact that the victim was still able to run after the first strike would not negate the fact that appellant adopted such approach to prevent any defense on the part of the victim. Thus, with the presence of the qualifying circumstance of treachery, murder was perpetrated by the appellant. The Court finds merit in the submission of the Solicitor General that the trial court erred in considering insult or disregard of respect due to the offended party as an aggravating circumstance to justify the imposition of the death penalty. It is necessary to prove the specific fact or circumstance, other than that the victim is a woman, (or an old man or one of high rank) showing insult or disregard of sex (age or rank) in order that it may be considered as aggravating circumstance (People vs. Valencia, C.A., 43 O.G. 3740). There must be evidence that in the commission of the crime, the accused deliberately intended to offend or insult the sex or age of the offended party. (People vs. Mangsant, 65 Phil. 548, 550-551)[19] Absent any proof that appellant attacked the victim with the intention to add insult to her, there is no basis for reckoning the said aggravating circumstance. The penalty for murder under Article 248 of the Revised Penal Code is reclusion perpetua to death. In accordance with Article 63, supra, there being no mitigating or aggravating circumstance, the lesser penalty should be imposed. Conformably, as recommended by counsel for the People, appellant should be sentenced only to reclusion perpetua and not death. In line with the current policy of the Court, appellant should be held liable to pay the heirs of the deceased the sum of P50,000.00 as civil indemnity. WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that the appellant Jeronico Lobino is sentenced to suffer only reclusion perpetua and to pay the heirs of the late Patricia Abajar the sum of Fifty Thousand (P50,000.00) Pesos as indemnity. Costs against appellant. SO ORDERED. Davide, Jr., C.J., Melo, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Buena, Gonzaga-Reyes, and De Leon, JJ., concur. Bellosillo, Puno, Quisumbing, and Ynares-Santiago, JJ., on official leave.