RAMONITO MANABAN, G.R. No.

150723
Petitioner,

advised him to just return the next morning. This

angered Bautista all the more and resumed pounding
on the machine. Manaban then urged him to calm
down and referred him to their customer service over
the phone. Still not mollified, Bautista continued
raging and striking the machine. When Manaban
could no longer pacify him, he fired a warning shot.
That diverted the attention of Bautista. Instead of
venting his ire against the machine, he confronted
Manaban. After some exchange of words, a shot rang
out fatally hitting Bautista.[4]

- versus COURT OF APPEALS and Promulgated:

THE PEOPLE OF THE PHILIPPINES,
Respondents. July 11, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -x

DECISION

On 24 October 1996, Manaban was charged with the crime of murder.

The Information states:

CARPIO, J.:
That on or about the 11th day of October 1996, in
Quezon City, Philippines, the above-named accused,
armed with a gun, and with intent to kill, qualified by
treachery, did then and there wilfully, unlawfully and
feloniously attack, assault and employ personal
violence upon the person of one JOSELITO BAUTISTA,
by then and there, shooting him at the back portion
of his body, thereby inflicting upon said JOSELITO
BAUTISTA mortal wounds which were the direct and
immediate cause of his untimely death, to the
damage and prejudice of the heirs of the said
JOSELITO BAUTISTA.[5]

The Case
This is a petition for review [1] of the Decision[2] dated 21 May 2001 and
the Resolution[3] dated 8 November 2001 of the Court of Appeals in CAG.R. CR No. 23790. In its 21 May 2001 Decision, the Court of Appeals
affirmed the Decision of the Regional Trial Court of Quezon City, Branch
219 (trial court), finding Ramonito Manaban (Manaban) guilty of the
crime of homicide. In its 8 November 2001 Resolution, the Court of
Appeals modified its Decision by reducing the award for loss of earning
capacity.

When arraigned on 4 December 1996, [6] Manaban pleaded not guilty to

the offense charged. Trial then followed.

The Facts
The facts as narrated by the trial court are as follows:

The Trial

On October 11, 1996, at around 1:25 oclock in the

morning, Joselito Bautista, a father and a member of
the UP Police Force, took his daughter, Frinzi, who
complained of difficulty in breathing, to the UP Health
Center. There, the doctors prescribed certain
medicines to be purchased. Needing money
therefore, Joselito Bautista, who had taken alcoholic
drinks earlier, proceeded to the BPI Kalayaan Branch
to withdraw some money from its Automated Teller
Machine (ATM).

The Prosecutions Version

Upon arrival at the bank, Bautista proceeded to the

ATM booth but because he could not effectively
withdraw money, he started kicking and pounding on
the machine. For said reason, the bank security
guard, Ramonito Manaban, approached and asked
him what the problem was. Bautista complained that
his ATM was retrieved by the machine and that no
money came out of it. After Manaban had checked
the receipt, he informed Bautista that the Personal
Identification Number (PIN) entered was wrong and

The prosecution presented six witnesses: (1) Faustino Delariarte

(Delariarte); (2) SPO1 Dominador Salvador (SPO1 Salvador); (3) Rodolfo
Bilgera (Bilgera); (4) Celedonia H. Tan (Tan); (5) Dr. Eduardo T. Vargas
(Dr. Vargas); and (6) Editha Bautista (Editha).
Delariarte was a security guard who was employed by the same
security agency as Manaban. Delariarte testified that in the early
morning of 11 October 1996, their duty officer, Diosdado Morga, called
him and informed him that one of the guards stationed at the BPI
Kalayaan Branch (BPI Kalayaan) was involved in a shooting incident.
When he arrived at the bank, Delariarte saw Manaban inside the bank
using the phone. He also saw Joselito Bautista (Bautista) lying on the
ground but still alive. He then told their company driver, Virgilio
Cancisio (Cancisio), to take Bautista to the hospital but to be careful
since there was a gun tucked in Bautistas waist. Bautista allegedly
reeked of alcohol. Delariarte further testified that when Manaban came
out of the bank, Manaban admitted to Delariarte that he shot Bautista.
[7]

SPO1 Salvador was a police investigator assigned at Station 10,

Philippine National Police-Central Police District Command (PNP-CPDC)
of Quezon City. SPO1 Salvador testified that on 11 October 1996, about
2:05 a.m., the duty desk officer SPO2 Redemption Negre sent him,
SPO1 Jerry Abad and SPO1 Ruben Reyes to BPI Kalayaan to investigate
an alleged shooting incident. SPO1 Salvador testified that when they
arrived at BPI Kalayaan, they were met by Delariarte and Cancisio.
Manaban then approached them and surrendered his service firearm, a
.38 caliber revolver, to SPO1 Salvador. Manaban allegedly admitted
shooting Bautista. SPO1 Salvador and his team investigated the crime
scene. According to SPO1 Salvador, he saw Bautista lying on his back
near the Automated Teller Machine (ATM). A .38 caliber revolver inside
a locked holster was tucked in Bautistas right waist. SPO1 Salvador
noticed that Bautista, who was still breathing, had been shot in the
back. They brought Bautista to the East Avenue Medical Center where
Bautista later died. Thereafter, they proceeded to the police station
and turned over Manaban to their desk officer for proper disposition
and investigation.[8]
Dr. Vargas, National Bureau of Investigation (NBI) Medico-Legal Officer,
conducted an autopsy on Bautistas cadaver. Dr. Vargas testified that
Bautista died of a gunshot wound. According to him, the point of entry
of the bullet was at the back, on the right side of the body and there
was no exit point. He stated that he was able to recover the slug from
the left anterior portion of the victims body and that he later submitted
the slug to the NBI Ballistics Division. Dr. Vargas further stated that the
bullet wound was fatal because the bullet hit the right lung and
lacerated parts of the liver, stomach and the pancreas. Based on the
location of the gunshot wound, Dr. Vargas deduced that the assailant
must have been behind the victim, on the right side, when he shot the
victim.[9] Dr. Vargas also testified that the absence of signs of near-fire
indicates that the distance between the muzzle of the gun and the
point of entry was more than 24 inches. During cross-examination, Dr.
Vargas testified that he was able to take blood samples from the victim
which, based on the NBI Chemistry Division analysis, tested positive for
alcohol.[10] Dr. Vargas issued a certificate of post-mortem
examination[11] and an autopsy report.[12]
Bilgera was a ballistician at the Firearms Investigation Division (FID) of
the NBI. Bilgera testified that upon receiving a letter-request dated 11
October 1996 from PNP Police Inspector Percival Fontanilla, he
conducted a ballistic examination on the following specimens
submitted to him:

3.
4.
5.
6.
7.

1. One (1) ARMSCOR 2015, Caliber .38 Revolver,

SN-28909 marked DBS;
2. One (1) ARMSCOR 200, Caliber .38 Revolver,
SN-P03471 marked DBS;
One (1) Caliber .38 one badly deformed copper coated lead
bullet marked RM;
Two (2) Caliber .38 empty shells marked RM-1 and RM-2;
One (1) Caliber .38 misfired ammunition marked RM-3;
Nine (9) Caliber .38 ammunition marked RM-4, RM-5, RM-6
and JB-1 to JB-6; and
One (1) Caliber .38 deformed copper coated lead bullet
marked JB. (Re-FID No. 606-14-1096 [N-962047]).[13]

Based on the examination, Bilgera concluded that the bullet which was
extracted from Bautistas body by the medico-legal officer was fired
from the ARMSCOR 2015 .38 Caliber revolver with Serial No. 28909 [14]
and that the empty shells also came from the same gun. Bilgera
submitted a written report[15] on the result of his examination.
Editha, the widow of Joselito Bautista, testified that she was married to
Bautista on 22 December 1993 in civil rites and that they have four
children, the eldest of whom was 13 years old. Editha stated that her
husband, who was a member of the University of the Philippines Police
Force (UP Police Force) since 1985, was receiving a monthly salary
ofP5,050 at the time of his death. She narrated that on 11 October
1996, about 1:25 a.m., her husband brought their daughter Frinzi who
had an asthma attack to the UP HealthCenter where she was confined
for three days. According to Editha, her husband then left to withdraw
money at BPI Kalayaan for the purchase of medicines. Later, she was
fetched by members of the UP Police Force who informed her that her
husband had been shot. Editha claimed that as a consequence of her
husbands death, she spent more thanP111,000[16] for the nine-day
wake, embalmment and funeral services.[17]
The prosecution and the defense agreed to dispense with the
testimony of Tan, the Assistant Manager of BPI Kalayaan. Instead, they
just agreed to stipulate that on 11 October 1996, about 7:45 a.m., Tan
and BPI Custodian Elma R. Piano retrieved BPI Express Teller Card No.
3085-2616-21 issued to Bautista which was captured by the ATM
because a wrong Personal Identification Number (PIN) was entered. [18]

The Defenses Version

The defense presented four witnesses: (1) Manaban; (2) Renz Javelona
(Javelona); (3) Tan; and (4) Patrick Peralta (Peralta).
Manaban, the accused, testified that he was employed by Eagle Star
Security Agency as a security guard and was assigned at BPI Kalayaan.
On 10 October 1996, he was on duty from 7:00 p.m. until 7:00 a.m. the
following day.
Manaban narrated that on 11 October 1996, about 1:40 a.m., Bautista
tried to withdraw money from the ATM. Manaban then saw Bautista
pounding and kicking the ATM. When Manaban asked Bautista what
was the problem, Bautista replied that no money came out from the
machine. According to Manaban, Bautista appeared to be intoxicated.
Manaban looked at the receipt issued to Bautista and saw that the
receipt indicated that a wrong PIN was entered. Manaban informed
Bautista that the ATM captured Bautistas ATM card because he entered
the wrong PIN. He then advised Bautista to return the following day
when the staff in charge of servicing the ATM would be around.
Bautista replied that he needed the money very badly and then
resumed pounding on the ATM. Manaban tried to stop Bautista and
called by telephone the ATM service personnel to pacify Bautista.
Bautista talked to the ATM service personnel and Manaban heard him
shouting invectives and saw him pounding and kicking the ATM again.

When Manaban failed to pacify Bautista, Manaban fired a warning shot

in the air. Bautista then faced him and told him not to block his way
because he needed the money very badly. Bautista allegedly raised his
shirt and showed his gun which was tucked in his waist. Manaban
stepped back and told Bautista not to draw his gun, otherwise he would
shoot.
However, Bautista allegedly kept on moving toward Manaban, who
again warned Bautista not to come near him or he would be forced to
shoot him. Bautista suddenly turned his back and was allegedly about
to draw his gun. Fearing that he would be shot first, Manaban pulled
the trigger and shot Bautista.
Manaban recounted that he then went inside the bank and called the
police and his agency to report the incident. While he was inside the
bank, a fellow security guard arrived and asked what happened.
Manaban answered, wala yan, lasing.
Later, a mobile patrol car arrived. Manaban related the incident to the
police officer and informed him that Bautista was still alive and had a
gun. Manaban then surrendered his service firearm to the police officer.
According to Manaban, he fired his gun twice once in the air as a
warning shot and the second time at Bautista who was about four
meters from him.[19]
On cross-examination, Manaban further explained that after he fired
the warning shot, Bautista kept coming toward him. Manaban pointed
his gun at Bautista and warned him not to come closer. When Bautista
turned his back, Manaban thought Bautista was about to draw his gun
when he placed his right hand on his waist. Fearing for his life, he
pulled the trigger and shot Manaban. According to Manaban, [n]oong
makita ko siya na pabalikwas siya, na sadya bubunot ng baril, sa takot
ko na baka maunahan niya ako at mapatay, doon ko na rin nakalabit
yung gatilyo ng baril. Manaban declared that it did not occur to him to
simply disable the victim for fear that Bautista would shoot him first. [20]
Javelona was an ATM Service Assistant of BPI. Javelona testified that on
11 October 1996, between 1:30 a.m. and 2:00 a.m., she received a call
from a client at BPI Kalayaan.The client, who was later identified as
Bautista, complained: Nagwi-withdraw ako dito sa ATM Kalayaan. Mali
daw yung PIN ko, alam ko tama yung PIN ko. Ilang beses ko nang
ginamit, mali pa rin. Kailangan kong mag-withdraw.
Javelona tried to placate Bautista and advised him not to insert his card
anymore because it might be captured by the machine and to try again
later in the morning. Bautista allegedly answered angrily: Na capture
na nga, eh! Tama na nga yung PIN number [sic]. Hindi ako pwedeng
hindi makakuha ng pera. Kailangan kong bumili ng gamot para sa anak
ko. Hindi ko naman kasalanan ito. Javelona replied: Sir, hindi ho natin
makukuha ang card ninyo ngayon kasi ang makaka-open lang ho ng
ATM machine ay ang officer ng Kalayaan Branch. Even if makuha natin
ang card ninyo ngayon, hindi pa ninyo magagamit ngayon. Magagamit
lang ninyo as soon as mag-pa-encode kayo ng PIN number [sic].
Bautista then reiterated angrily his dire need to withdraw money for
the medicine of his daughter. Javelona apologized to Bautista and
informed him that there was really nothing she could do at that time.

She also advised Bautista to go back to the bank at 9:00 a.m. to get his
ATM card and also to withdraw money over the counter. Bautista
refused to be pacified and started cursing so Javelona decided to hang
up the phone.[21]
Tan, the Assistant Manager of BPI Kalayaan, testified that when she
reported for work in the morning of 11 October 1996, she discovered
that the ATM was out of order. According to Tan, the ATM keyboard was
not properly mounted and the keys were damaged. Also, the telephone
beside the ATM was hung up. Tan then called Peralta, the technician, to
have the ATM repaired. When Peralta opened the ATM, they found
Bautistas ATM card which was captured by the machine.[22]
Peralta, a Customer Engineer Specialist, testified that on 11 October
1996, BPI Kalayaan sought his assistance regarding their ATM. When
Peralta arrived at BPI Kalayaan, he talked to Tan and then proceeded to
the ATM to assess the damage. According to Peralta, the ATM keyboard
was damaged and mis-aligned.[23]

The Trial Courts Ruling

On 14 April 1999, the trial court rendered judgment, the dispositive
portion of which reads:
WHEREFORE, finding the accused guilty beyond
reasonable doubt of the crime of Homicide, the Court
hereby sentences the accused to suffer the penalty
of imprisonment ranging from FOUR (4) YEARS and
TWO (2) MONTHS of Prision Correccional, as
minimum, to EIGHT (8) YEARS and ONE (1) DAY of
Pris[i]on Mayor, as maximum; to pay indemnity to the
heirs of Joselito Bautista for his death in the amount
of P75,000.00; and actual damages in the amount of
P111,324.00 for the nine-day wake, embalm[ing] and
funeral services, and P1,418,040.00 for the loss of
Bautistas earning capacity, the last to be paid by
installment at least P3,030.00 a month until fully paid
with the balance earning interest at the rate of six
percent (6%) per annum; and to pay the costs.
SO ORDERED.[24]
The trial court held that the defense failed to establish self-defense as
a justifying circumstance. According to the trial court, unlawful
aggression, which is the most essential element to support the theory
of self-defense, was lacking in this case. The trial court found that,
contrary to Manabans claim, Bautista was not about to draw his gun to
shoot Manaban. Evidence show that Bautistas gun was still tucked in
his waist inside a locked holster. Furthermore, the trial court held that
Bautista could not have surprised Manaban with a preemptive attack
because Manaban himself testified that he already had his gun pointed
at Bautista when they were facing each other. The trial court likewise
rejectedManabans claim of exemption from criminal liability because
he acted under the impulse of an uncontrollable fear of an equal or
greater injury. The trial court held that the requisites for the exempting

circumstance of uncontrollable fear under paragraph 6, Article 12 of

the Revised Penal Code are not present in this case. However, the trial
court credited Manaban with two mitigating circumstances: voluntary
surrender and obfuscation.

around.
The Courts Ruling
The petition is partly meritorious.

The Court of Appeals Ruling

On appeal, the Court of Appeals affirmed the trial courts decision. The
Court of Appeals later reconsidered and modified its decision with
respect only to the award of loss of earning capacity. Using the formula
2/3 [80 age at the time of death] x [gross annual income 80% gross
annual income], the Court of Appeals recomputed the award for loss of
earning capacity. In its Resolution dated 8 November 2001, the Court of
Appeals reduced the award for the loss of the victims earning capacity
from P1,418,040 to P436,320.

An appeal in a criminal case opens the entire case for review. The
reviewing tribunal can correct errors though unassigned in the appeal,
or reverse the lower courts decision on grounds other than those the
parties raised as errors.[26]
Unlawful Aggression is an Indispensable Requisite of SelfDefense
When the accused invokes self-defense, he in effect admits killing the
victim and the burden is shifted to him to prove that he killed the
victim to save his life.[27] The accused must establish by clear and
convincing evidence that all the requisites of self-defense are present.
[28]

The Issues
In his petition for review, Manaban submits that:
1. The Respondent Court gravely erred in affirming
the
erroneous
factual
appreciation
and
interpretation by the trial court a quo in
practically affirming the decision of the latter
court which are based on a clear misappreciation
of facts and findings grounded entirely on
speculations, surmises or conjectures in a way
probably not in accord with law or with the
applicable jurisprudence of the Supreme Court.
2. The Respondent Court gravely erred in ignoring
petitioners self-defense on the sole fact that the
entrance of the deceased victims wound was
from the back.
3. The Respondent Court gravely erred in concluding
that petitioner failed to establish unlawful
aggression just because the holster of the victim
was still in a lock position.
4. Granting arguendo that petitioner made a mistake
in his appreciation that there was an attempt on
the part of the deceased victim to draw his gun
who executed bumalikwas, such mistake of fact
is deemed justified.

5. Finally, the Respondent Court gravely erred in

awarding exorbitant and baseless
award of damages to the heirs of
deceased victim.[25]

Under paragraph 1, Article 11 of the Revised Penal Code, the three

requisites to prove self-defense as a justifying circumstance which may
exempt an accused from criminal liability are: (1) unlawful aggression
on the part of the victim; (2) reasonable necessity of the means
employed to prevent or repel the aggression; and (3) lack of sufficient
provocation on the part of the accused or the person defending
himself.[29] Unlawful aggression is an indispensable requisite of selfdefense.[30] Self-defense is founded on the necessity on the part of the
person being attacked to prevent or repel the unlawful aggression. [31]
Thus, without prior unlawful and unprovoked attack by the victim,
there can be no complete or incomplete self-defense.[32]
Unlawful aggression is an actual physical assault or at least a threat to
attack or inflict physical injury upon a person.[33] A mere threatening or
intimidating attitude is not considered unlawful aggression, [34] unless
the threat is offensive and menacing, manifestly showing the wrongful
intent to cause injury.[35] There must be an actual, sudden, unexpected
attack or imminent danger thereof, which puts the defendants life in
real peril.[36]
In this case, there was no unlawful aggression on the part of the victim.
First, Bautista was shot at the back as evidenced by the point of entry
of the bullet. Second, when Bautista was shot, his gun was still inside a
locked holster and tucked in his right waist. Third, when Bautista
turned his back at Manaban, Manaban was already pointing his service
firearm at Bautista. These circumstances clearly belie Manabans claim
of unlawful aggression on Bautista's part. Manaban testified:

Q: My question is when the victim was facing

you, the victim never drew his gun?
A: Not yet, sir.
Q: And when you told the victim not to come close,
he did not come closer anymore?
A: He walked towards me, sir.
Q: For how many steps?
A: I cannot remember how many steps.
Q: And according to you, while he was facing
you and walking towards you he suddenly
turned his back to you, is that correct?
A: Bumalikwas po at parang bubunot ng baril.
Q: Let us get the meaning of bumalikwas, tumalikod
sa iyo?
A: Bumalikwas po (witness demonstrating).
Q: Will you please demonstrate to us how the victim
bumalikwas?
A: When he was facing me and I told him, Sir, you
just be there otherwise I am going to take the gun
and at that moment, he, the victim turned his back
and simultaneously drew the gun.
Q: When he was facing you, the victim never drew his
gun, is that correct?
A: Not yet, sir.
Q: And according to you, it was at that point
when he turned his back on you that he tried to
draw his gun?
A: Yes, sir.
Q: You said that he tried to draw, but the fact is
he merely placed his hand on his waist?
A: No, sir, when I saw him, when he was hit, I
saw him, the hand was already on the gun but
still tucked on his waist (witness places his
hand on his right waist with fingers open).

Q: You said the victim showed his gun by raising his

shirt?
A: Yes, sir.

Q: And it was at that precise moment while the

victims back was turned on you that you fired
your shot?
A: When he was about to turn his back and it
seems about to take his gun, that is the time I
shot him because of my fear that he would be
ahead in pulling his gun and he might kill me.

Q: The victim never drew his gun?

A: He was about to draw the gun when he turned

Q: When you said, when you fired your shot,

the victims gun was still tucked in his right

ATTY. ANCANAN

waist, is that correct?

A: Yes, sir, his hand was on his waist.

Q: Where?
A: Camp Crame, sir.

Q: You just answer the question. Was the

victims gun still tucked on his waistline?
A: Yes, sir.

Q: For how long?

A: Three (3) days, sir.
Q: And what did you learn from those 3 days training
as security guard?
A: Our duties as security guard were lectured to us,
sir.

Q: And his hand was merely placed on his hips. The

victims right hand was merely placed on his right
hip?
ATTY. CARAANG
I object. The witness testified that he was about to
draw his gun.
COURT
He is asking the question so he has to answer.
A: No, sir, the gun was on his waist.
ATTY. ANCANAN

Q: Now, were you not taught during the

training that in any given situation, your first
duty is to disable first an aggressor?
ATTY. CARAANG
Objection, your Honor, I think that is no longer
material besides, that is not part of my direct
examination.
COURT

ATTY. CARAANG
I object, your Honor, it was already answered. He said
he was not given the opportunity to have a second
thought and at that moment he was able to pull the
trigger of his gun.

ATTY. ANCANAN
The witness already admitted that when he fired his
gun, the victims back was towards the witness, so
my last question is just a follow-up.
ATTY. CARAANG
But the witness testified that he was not given the
opportunity to have a second thought, that is why
right then and there, he pulled the trigger of his gun.

Q: At the precise time that you fired your

second shot, you could have aimed your gun at
the extremities of the victim, meaning legs or
arms, is that correct?
A: When I saw him that he was about to draw
his gun because of my fear that he would get
ahead of me and he would kill me, I did not
mind anymore, I just inunahan ko siya.

Witness may answer.

A: It was taught to us, sir, but it depends on my
situation. If the person kept on doing what I
told him not to do and it would reach a point
that it would endanger my life, of course even
if you were in my place, you would do the same
thing, so nakipagsabayan na ako, sir.
Q: But in this particular case when you fired your
second shot, the victims back was towards you, is
that not correct?

ATTY. CARAANG

ATTY. CARAANG

A: What I was thinking at that time, was just to

disarm him but when he turned, bumalikwas,
and I saw that he was going to draw a firearm
and
that
was
when
I
decided
tomakipagsabayan.

May I request that the answer of the witness

be quoted as is?

Objection, already answered, your Honor.

xxxxxxxxx

A: Noong makita ko siya na pabalikwas siya, na

sabay bubunot ng baril, sa takot ko na baka
maunahan niya ako at mapatay, doon ko na rin
nakalabit yung gatilyo ng baril ko.
ATTY. ANCANAN
Q: Mr. Witness, how long have you been a security
guard before this incident?
A: Around 7 months, sir.
Q: Now, before you were employed as security
guard by the Eagle Star Security Agency, did
you undergo any training as a security guard?
A: Yes, sir.

COURT
Objection noted, witness may answer.

COURT
Witness may answer.
A: No, sir, I shot him only once, not twice.
Q: Please answer the question. When you fired
your second shot . . .
A: Bumalikwas ho yon eh.
Q: Please answer the question.
A: Yes, sir.
Q: And because his back was towards you, you
could have easily disabled him by firing at his
leg or at his arms, is that not correct?

RE-DIRECT EXAMINATION
ATTY. CARAANG
Q: Mr. Witness, when you and the victim were
facing each other, the gun was already pointed
to him, is it not? Your gun?
A: Yes, sir, I pointed my gun at him.[37]

The allegation of Manaban that Bautista was about to draw his gun
when he turned his back at Manaban is mere speculation. Besides,
Manaban was already aiming his loaded firearm at Bautista when the
latter turned his back. In that situation, it was Bautista whose life was
in danger considering that Manaban, who had already fired a warning
shot, was pointing his firearm at Bautista. Bautista, who was a
policeman, would have realized this danger to his life and would not

have attempted to draw his gun which was still inside a locked holster
tucked in his waist. Furthermore, if Manaban really feared that Bautista
was about to draw his gun to shoot him, Manaban could have easily
disabled Bautista by shooting his arm or leg considering that Manabans
firearm was already aimed at Bautista.
Aggression presupposes that the person attacked must face a real
threat to his life and the peril sought to be avoided is imminent and
actual, not imaginary.[38] Absent such actual or imminent peril to ones
life or limb, there is nothing to repel and there is no justification for
taking the life or inflicting injuries on another.[39]

Voluntary Surrender and Obfuscation

The trial court credited Manaban with two mitigating circumstances:
voluntary surrender and obfuscation.
It is undisputed that Manaban called the police to report the shooting
incident. When the police arrived, Manaban surrendered his service
firearm and voluntarily went with the police to the police station for
investigation. Thus, Manaban is entitled to the benefit of the mitigating
circumstance of voluntary surrender.
On obfuscation, we find that the facts of the case do not entitle
Manaban to such mitigating circumstance. Under paragraph 6, Article
13 of the Revised Penal Code, the mitigating circumstance of passion
and obfuscation is appreciated where the accused acted upon an
impulse so powerful as naturally to have produced passion or
obfuscation. The requisites of the mitigating circumstance of passion or
obfuscation are: (1) that there should be an act both unlawful and
sufficient to produce such condition of mind; and (2) that the act which
produced the obfuscation was not far removed from the commission of
the crime by a considerable length of time, during which the
perpetrator might recover his normal equanimity. [40]
In his testimony, Manaban admitted shooting Bautista because
Bautista turned around and was allegedly about to draw his gun to
shoot Manaban. The act of Bautista in turning around is not unlawful
and sufficient cause for Manaban to lose his reason and shoot Bautista.
That Manaban interpreted such act of Bautista as preparatory to
drawing his gun to shoot Manaban does not make Bautistas act
unlawful. The threat was only in the mind of Manaban and is mere
speculation which is not sufficient to produce obfuscation which is
mitigating.[41] Besides, the threat or danger was not grave or serious
considering that Manaban had the advantage over Bautista because
Manaban was already pointing his firearm at Bautista when the latter
turned his back. The defense failed to establish by clear and convincing
evidence the cause that allegedly produced obfuscation.
Award of Damages
The records[42] reveal that Bautista was 36 years old at the time of his
death and not 26 years old as stated by the trial court and the Court of
Appeals.[43] Moreover, the annual salary of Bautista at the time of his
death was already P60,864 and not P60,600.[44] We likewise modify the
formula applied by the Court of Appeals in the computation of the
award for loss of earning capacity. In accordance with current

jurisprudence,[45] the formula for the indemnification for loss of earning

capacity is:
Net Earning = Life Expectancy x [Gross Annual Living
Expenses]
Capacity Income (GAI)
= 2/3(80 age of deceased) x (GAI 50% of GAI)
Using this formula, the indemnification for loss of earning capacity
should be:
Net Earning Capacity = 2/3 (80 36) x [P60,864 (50% x P60,864)]
= 29.33 x P30,432
= P892,570.56
With regard to actual damages, the records show that not all the
expenses that the Bautista family allegedly incurred were supported by
competent evidence. Editha failed to present receipts or any other
competent proof for food expenses and rental fee for jeeps for the
funeral. Editha merely submitted a typewritten Summary of Food
Expenses & Others.[46] A mere list of expenses, without any official
receipts or any other evidence obtainable, does not to prove actual
expenses incurred.[47] Competent proof of the actual expenses must be
presented to justify an award for actual damages. [48] In this case, only
the following expenses were duly supported by official receipts and
other proof :
1.
2.
3.
4.
Total P69,500

Embalming fee[49] P11,000

Bronze Casket[50] 25,000
Cadillac Hearse fee [51] 3,500
Funeral Services[52] 30,000

Thus, we reduce the actual damages granted from P111,324 to

P69,500.
We likewise reduce the indemnity for death from P75,000 to P50,000 in
accordance with prevailing jurisprudence.[53]
WHEREFORE, we AFFIRM with MODIFICATION the Decision of the
Court of Appeals dated 21 May 2001 and its Resolution dated 8
November 2001. We find petitioner Ramonito Manaban guilty beyond
reasonable doubt of the crime of Homicide. Applying the Indeterminate
Sentence Law and taking into account the mitigating circumstance of
voluntary surrender, Ramonito Manaban is hereby sentenced to suffer
an indeterminate penalty ranging from six years and one day of prision
mayor as minimum to 12 years and one day of reclusion temporal as
maximum. Ramonito Manaban is ordered to pay the heirs of Joselito
Bautista: P892,570.56 as indemnity for loss of earning capacity;
P69,500 as actual damages; and P50,000 as indemnity for death.
SO ORDERED.

G.R. No. L-162

April 30, 1947

THE
PEOPLE
OF
THE
PHILIPPINES,
plaintiff-appellee,
vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants.
DIOSCORO ALCONGA, appellant.
HILADO, J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes in the
Municipality of San Dionisio, Province of Iloilo several persons were
playing prohibited games (t.s.n., pp. 95, 125). The deceased Silverio
Barion was the banker in the game of black jack, and Maria de Raposo,
a witness for the prosecution, was one of those playing the game
(t.s.n., p. 95). Upon invitation of the said Maria de Raposo, the accused
Dioscoro Alconga joined her as a partner, each of them contributing the
sum of P5 to a common fund (t.s.n., pp. 95, 125). Maria de Raposo
played the game while the said accused posted himself behind the
deceased, acting as a spotter of the cards of the latter and
communicating by signs to his partner (t.s.n., pp. 95-96, 126). The
deceased appears to have suffered losses in the game because of the
team work between Maria de Raposo and the accused Alconga (t.s.n.,
pp. 96, 126). Upon discovering what the said accused had been doing,
the deceased became indignant and expressed his anger at the former
(t.s.n., pp. 96, 126). An exchange of words followed, and the two would
have come to blows but for the intervention of the maintainer of the
games (t.s.n., p. 96). In a fit of anger, the deceased left the house but
not before telling the accused Alconga, "tomorrow morning I will give
you a breakfast" (t.s.n., p. 96), which expression would seem to signify
an intent to inflict bodily harm when uttered under such circumstances.
The deceased and the accused Alconga did not meet thereafter until
the morning of May 29, 1943, when the latter was in the guardhouse
located in the barrio of Santol, performing his duties as "home guard"
(t.s.n., pp. 98-100). While the said accused was seated on a bench in
the guardhouse, the deceased came along and, addressing the former,
said, "Coroy, this is your breakfast," followed forthwith by a swing of his
"pingahan" (t.s.n., p. 100). The accused avoided the blow by falling to
the ground under the bench with the intention to crawl out of the
guardhouse (t.s.n., pp. 100-101). A second blow was given but failed to
hit the accused, hitting the bench instead (t.s.n., p. 101). The accused
manage to go out of the guardhouse by crawling on his abdomen
(t.s.n., p. 101). While the deceased was in the act of delivering the
third blow, the accused, while still in a crawling position (t.s.n., p. 119),
fired at him with his revolver, causing him to stagger and to fall to the
ground (t.s.n., p. 101). Rising to his feet, the deceased drew forth his
dagger and directed a blow at the accused who, however, was able to
parry the same with his bolo (t.s.n., pp. 101-102). A hand-to-hand fight
ensued (t.s.n., p. 102). Having sustained several wounds, the deceased
ran away but was followed by the accused (t.s.n., p. 6). After running a
distance of about 200 meters (t.s.n., pp. 21, 108), the deceased was
overtaken, and another fight took place, during which the mortal bolo
blow the one which slashed the cranium was delivered, causing
the deceased to fall to the ground, face downward, besides many other
blows deliver right and left (t.s.n., pp. 6, 28). At this instant, the other
accused, Adolfo Bracamonte, arrived and, being the leader of the
"home guards" of San Dionisio, placed under his custody the accused
Alconga with a view to turning him over to the proper authorities (t.s.n.,
pp. 102-105).

On their way to San Dionisio, the two accused were stopped by Juan
Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo Bracamonte
turned over Alconga to Collado who in turn took him to the
headquarters (t.s.n., pp. 81, 104). In the afternoon of the same day,
Collado delivered Alconga to Gregorio Barredo, a municipal policeman
of San Dionisio, together with the weapons used in the fight: a revolver,
a bolo, and a dagger (t.s.n., pp. 81, 104).
The injuries sustained by the deceased were described by police
sergeant Gil G. Estaniel as follows:
P. Y que hicieron ustedes cuando ustedes vieron a Silverio
Barion? R. Examine sus heridas.
P. Donde ha encontrado usted las heridas, en que parte del
cuerpo? R. En la cabeza, en sus brazos, en sus manos, en la
mandibula inferior, en la parte frente de su cuello, en su pecho
derecho, y tambien en el pecho izquierdo, y su dedo meique
habia volado, se habia cortado, y otras perqueas heridas mas.
P. En la cabeza, vio usted heridas? R. Si, seor.
P. Cuantas heridas? R. Una herida en la region parietal derecha
y una contusion en la corona de la cabeza.
P. Vio usted el craneo? R. En la craneo llevaba una herida, en
quel el craneo se ha roto.
P. En el pecho, herida ha encontrado usted? R. Debajo de la
tetilla derecha, una herida causada por una bala.
P. Y otras heridas en el pecho, puede usted decir que clase de
heridas? R. Heridas causadas por bolo.
P. Como de grande acquellas heridas en el pecho? R. No
recuerdo la dimension de las heridas en el pecho.
P. Pero en la cabeza? R. La cabeza se rajo por aquella herida
causada por el bolo. (T.s.n., p. 25.)
It will be observed that there were two stages in the fight between
appellant and the deceased. The initial stage commenced when the
deceased assaulted appellant without sufficient provocation on the part
of the latter. Resisting the aggression, appellant managed to have the
upper hand in the fight, inflicting several wounds upon the deceased,
on account of which the latter fled in retreat. From that moment there
was no longer any danger to the life of appellant who, being virtually
unscathed, could have chosen to remain where he was. Resolving all
doubts in his flavor, and considering that in the first stage the
deceased was the unlawful aggressor and defendant had not given
sufficient provocation, and considering further that when the deceased
was about to deliver the third blow, appellant was still in a crawling
position and, on that account, could not have effectively wielded his
bolo and therefore had to use his "paltik" revolver his only remaining
weapon ; we hold that said appellant was then acting in self-defense.

But when he pursued the deceased, he was no longer acting in selfdefense, there being then no more aggression to defend against, the
same having ceased from the moment the deceased took to his heels.
During the second stage of the fight appellant inflicted many additional
wounds upon the deceased. That the deceased was not fatally
wounded in the first encounter is amply shown by the fact that he was
still able to run a distance of some 200 meters before being overtaken
by appellant. Under such circumstances, appellant's plea of selfdefense in the second stage of the fight cannot be sustained. There can
be no defense where there is no aggression.
Although the defendant was not the aggressor, he is not exempt
from criminal liability for the reason that it is shown that he struck
several blows, among them the fatal one, after the necessity for
defending himself had ceased, his assailant being then in retreat.
Therefore one of the essential ingredients of self-defense specified
in No. 4, article 8 of the Penal Code is wanting (now article 11,
case No. 1, Revised Penal Code). (United States vs. Dimitillo, 7
Phil., 475, 476; words in parenthesis supplied.)
. . . Even if it be conceded for the moment that the defendants
were assaulted by the four (offended parties), the right to kill in
self-defense ceased when the aggression ceased; and when
Toledo and his brothers turned and ran, without having inflicted so
much as a scratch upon a single one of the defendants,the right
of the defendants to inflict injury upon them ceased absolutely.
They had no right to pursue, no right to kill or injure. A fleeing
man is not dangerous to the one from whom he flees. When
danger ceases, the right to injure ceases. When the aggressor
turns and flees, the one assaulted must stay his hand. (United
States vs. Vitug, 17 Phil., 1, 19; emphasis supplied.)
Upon the foregoing facts, we hold that appellant's guilt of the crime of
homicide has been established beyond reasonable doubt. The learned
trial court appreciated in his favor of two mitigating circumstances:
voluntary surrender and provocation on the part of the deceased. The
first was properly appreciated; the second was not, since it is very clear
that from the moment he fled after the first stage of the fight to the
moment he died, the deceased did not give any provocation for
appellant to pursue much less further to attack him.
The only provocation given by him was imbibed in, and inseparable
from, the aggression with which he started the first stage of the fight.
The evidence, as weighed and appreciated by the learned trial judge,
who had heard, seen and observed the witnesses testify, clearly shows
that said stage ended with the flight of the deceased after receiving a
bullet wound in his right breast, which caused him to stagger and fall to
the ground, and several bolo wounds inflicted by appellant during their
hand-to-hand fight after both had gotten up. The learned trial judge
said:
The evidence adduced by the prosecution and the defense in
support of their respective theories of the case vary materially on
certain points. Some of these facts have to be admitted and some
have to be rejected with the end in view of arriving at the truth. To
the mind of the Court, what really happened in the case at bar, as
can de disclosed by the records, which lead to the killing of the
deceased on that fatal morning of May 29, 1945 (should be 1943),

is as follows:
xxx

xxx

xxx

In the morning of May 29, 1943, while Dioscoro Alconga was alone
in the guardhouse performing his duties as guard or "ronda" in
Barrio Santol, the deceased Silverio Barion passed by with a
"pingahan". That was the first time the deceased and the accused
Alconga had met since that eventful night of May 27th in the
gambling house of Gepes. Upon seeing the accused Alconga, who
was then seated in the guardhouse, the deceased cried: "Coroy,
this is now the breakfast!" These words of warning were
immediately followed by two formidable swings of the "pingahan"
directed at the accused Alconga which failed to hit him. Alconga
was able to avoid the blows by falling to the ground and crawling
on his abdomen until he was outside the guardhouse. The
deceased followed him and while in the act of delivering the third
blow, Dioscoro Alconga fired at him with his revolver thereby
stopping the blow in mid-air. The deceased fell to the ground
momentarily and upon rising to his feet, he drew forth a dagger.
The accused Alconga resorted to his bolo and both persons being
armed, a hand-to-hand fight followed. The deceased having
sustained several wounds from the hands of Alconga, ran away
with the latter close to his heels.
The foregoing statement of the pertinent facts by the learned trial
judge is in substantial agreement with those found by us and narrated
in the first paragraphs of this decision. Upon those facts the question
arises whether when the deceased started to run and flee, or thereafter
until he died, there was any provocation given by him from appellant to
pursue and further to attack him. It will be recalled, to be given with,
that the first stage of the fight was provoked when the deceased said
to appellant "Cory, this is now the breakfast," or "This is your
breakfast," followed forthwith by a swing or two of his "pingahan."
These words without the immediately following attack with the
"pingahan" would not have been uttered, we can safely assume, since
such an utterance alone would have been entirely meaningless. It was
the attack, therefore, that effectively constituted the provocation, the
utterance being, at best, merely a preclude to the attack. At any rate,
the quoted words by themselves, without the deceased's act
immediately following them, would certainly not have been considered
a sufficient provocation to mitigate appellant's liability in killing or
injuring the deceased. For provocation in order to be a mitigating
circumstance must be sufficient and immediately preceding the act.
(Revised Penal Code, article 13, No. 4.)
Under the doctrine in United States vs. Vitug, supra, when the
deceased ran and fled without having inflicted so much as a scratch
upon appellant, but after, upon the other hand, having been wounded
with one revolver shot and several bolo slashes, as aforesaid, the right
of appellant to inflict injury upon him, ceased absolutely appellant
"had no right to pursue, no right to kill or injure" said deceased for
the reason that "a fleeing man is not dangerous to the one from whom
he flees." If the law, as interpreted and applied by this Court in the
Vitug case, enjoins the victorious contender from pursuing his
opponent on the score of self-defense, it is because this Court
considered that the requisites of self-defense had ceased to exist,
principal and indispensable among these being the unlawful aggression

of the opponent (Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed.,
173).
Can we find under the evidence of record that after the cessation of
said aggression the provocation thus involved therein still persisted,
and to a degree sufficient to extenuate appellant's criminal
responsibility for his acts during the second stage of the fight?
Appellant did not testify nor offer other evidence to show that when he
pursued the deceased he was still acting under the impulse of the
effects of what provocation, be it anger, obfuscation or the like. The
Revised Penal Code provides:
ART. 13. Mitigating circumstances:
xxx

xxx

xxx

4. That sufficient provocation or threat on the part of the offended

party immediately preceded the act.
It is therefore apparent that the Code requires for provocation to be
such a mitigating circumstance that it not only immediately precede
the act but that it also be sufficient. In the Spanish Penal Code, the
adjective modifying said noun is "adecuada" and the Supreme Court of
Spain in its judgment of June 27, 2883, interpreted the equivalent
provision of the Penal Code of that country, which was the source of
our own existing Revised Penal Code, that "adecuada" means
proportionate to the damage caused by the act. Viada (Vol. 11, 5th ed.,
p. 51) gives the ruling of that Supreme Court as follows:
El Tribunal Supremo ha declarado que la provocacion o amenaza
que de parte del ofendido ha de preceder para la disminucion de
la responsabilidad criminal debe ser proporcionada al dao que se
cause, lo cual no concurre a favor del reo si resulta que la unica
cuestion que hubo fue si en un monton de yeso habia mas
omenos cantidad, y como perdiera la apuesta y bromeando dijera
el que la gano que beberia vino de balde, esa pequea cuestion
de amor propio no justificaba en modo alguno la ira que le impelio
a herir y matar a su contrario. (S. de 27 de junio de 1883, Gaceta
de 27 de septiembre.)
Justice Albert, in his commentaries on the Revised Penal Code, 1946
edition, page 94, says: "The provocation or threat must be sufficient,
which means that it should be proportionate to the act committed and
adequate to stirone to its commission" (emphasis supplied).
Sufficient provocation, being a matter of defense, should, like any
other, be affirmatively proven by the accused. This the instant
appellant has utterly failed to do. Any way, it would seem self-evident
that appellant could never have succeeded in showing that whatever
remained of the effects of the deceased's aggression, by way of
provocation after the latter was already in fight, was proportionate to
his killing his already defeated adversary.
That provocation gave rise to a fight between the two men, and may
be said, not without reason, to have spent itself after appellant had
shot the deceased in his right breast and caused the latter to fall to the

ground; or making a concession in appellant's favor after the

latter had inflicted several bolo wounds upon the deceased, without the
deceased so much as having scratched his body, in their hand-to-hand
fight when both were on their feet again. But if we are to grant
appellant a further concession, under the view most favorable to him,
that aggression must be deemed to have ceased upon the flight of the
deceased upon the end of the first stage of the fight. In so affirming,
we had to strain the concept in no small degree. But to further strain it
so as to find that said aggression or provocation persisted even when
the deceased was already in flight, clearly accepting defeat and no less
clearly running for his life rather than evincing an intention of returning
to the fight, is more than we can sanction. It should always be
remembered that "illegal aggression is equivalent to assault or at least
threatened assault of an immediate and imminent kind.
Agresion ilegitima. Agresion vale tanto como acometimiento.
Para que exista el derecho de defensa es preciso que se nos
acometa, que se nos ataque, o cuando menos, que se nos
amenace de atacarnos de un modo inmediato e inminente; v. gr.,
desenvainando el pual para herirnos con el o apuntando la
pistola para dispararla contra nosotros. (Viada, 5. a edicion, 173.)
After the flight of the deceased there was clearly neither an assault nor
a threatened assault of the remotest kind. It has been suggested that
when pursuing his fleeing opponent, appellant might have thought or
believed that said opponent was going to his house to fetch some other
weapon. But whether we consider this as a part or continuation of the
self-defense alleged by appellant, or as a separate circumstance, the
burden of proof to establish such a defense was, of course, upon
appellant, and he has not so much as attempted to introduce evidence
for this purpose. If he really thought so, or believed so, he should have
positively proven it, as any other defense. We can not now gratuitously
assume it in his behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472,
474), this Court held that one defending himself or his property from a
felony violently or by surprise threatened by another is not obliged to
retreat but may pursue his adversary until he has secured himself from
danger. But that is not this case. Here from the very start appellant was
the holder of the stronger and more deadly weapons a revolver and
a bolo, as against a piece of bamboo called "pingahan" and a dagger in
the possession of the deceased. In actual performance appellant, from
the very beginning, demonstrated his superior fighting ability; and he
confirmed it when after the deceased was first felled down by the
revolver shot in right breast, and after both combatants had gotten up
and engaged in a hand-to-hand fight, the deceased using his dagger
and appellant his bolo, the former received several bolo wounds while
the latter got through completely unscathed. And when the deceased
thereupon turned and fled, the circumstances were such that it would
be unduly stretching the imagination to consider that appellant was
still in danger from his defeated and fleeing opponent. Appellant
preserved his revolver and his bolo, and if he could theretofore so
easily overpower the deceased, when the latter had not yet received
any injury, it would need, indeed, an unusually strong positive showing
which is completely absent from the record to persuade us that he
had not yet "secured himself from danger" after shooting his weakly
armed adversary in the right breast and giving him several bolo slashes
in different other parts of his body. To so hold would, we believe, be
unjustifiably extending the doctrine of the Rivera case to an extreme

not therein contemplated.

Under article 249, in relation with article 64, No. 2, of the Revised Penal
Code, the crime committed by appellant is punishable by reclusion
temporal in its minimum period, which would be from 12 years and 1
day to 14 years and 8 months. However, in imposing the penalty, we
take into consideration the provisions of section 1 of the Indeterminate
Sentence Law (Act No. 4103), as amended by Act No. 4225.
Accordingly, we find appellant guilty of the aforesaid crime of homicide
and sentence him to an indeterminate penalty of from 6 years and 1
day ofprision mayor to 14 years and 8 months of reclusion temporal, to
indemnify the heirs of the deceased in the sum of P2,000, and to pay
the costs.
As thus modified, the judgment appealed from is hereby affirmed. So
ordered.

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

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

during her arraignment on March 3, 1997. [6] In due course, she was
tried for and convicted of parricide.

The Case

For automatic review before this Court is the September 25, 1998
Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond
reasonable doubt of parricide. The decretal portion of the Decision
reads:
WHEREFORE, after all the foregoing being duly considered, the Court
finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable
doubt of the crime of Parricide as provided under Article 246 of the
Revised Penal Code as restored by Sec. 5, RA No. 7659, and after
finding treachery as a generic aggravating circumstance and none of
mitigating circumstance, hereby sentences the accused with the
penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the
deceased the sum of fifty thousand pesos (P50,000.00), Philippine
currency as indemnity and another sum of fifty thousand pesos
(P50,000.00), Philippine currency as moral damages. [2]
The Information[3] charged appellant with parricide as follows:
th

That on or about the 15 day of November 1995, at Barangay Bilwang,

Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with
intent to kill, with treachery and evident premeditation, did then and
there wilfully, unlawfully and feloniously attack, assault, hit and wound
one BEN GENOSA, her legitimate husband, with the use of a hard
deadly weapon, which the accused had provided herself for the
purpose, [causing] the following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem
lividity. Eyes protruding from its sockets and tongue slightly
protrudes out of the mouth.
Fracture, open, depressed, circular located at the occipital
bone of the head, resulting [in] laceration of the brain,
spontaneous rupture of the blood vessels on the posterior
surface of the brain, laceration of the dura and meningeal
vessels producing severe intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel,[5] appellant pleaded not guilty

The Facts

saw. He was able to get inside through the kitchen door but only after
destroying a window to reach a hook that locked it. Alone, Steban went
inside the unlocked bedroom where the offensive smell was coming
from. There, he saw the lifeless body of Ben lying on his side on the
bed covered with a blanket. He was only in his briefs with injuries at
the back of his head. Seeing this, Steban went out of the house and
sent word to the mother of Ben about his sons misfortune. Later that
day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the

prosecutions version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19,
1983 in Ormoc City. Thereafter, they lived with the parents of Ben in
their house at Isabel, Leyte. For a time, Bens younger brother, Alex,
and his wife lived with them too. Sometime in 1995, however, appellant
and Ben rented from Steban Matiga a house at Barangay Bilwang,
Isabel, Leyte where they lived with their two children, namely: John
Marben and Earl Pierre.

Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
assigned at the police station at Isabel, Leyte, received a report
regarding the foul smell at the Genosas rented house. Together with
SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin
proceeded to the house and went inside the bedroom where they found
the dead body of Ben lying on his side wrapped with a bedsheet. There
was blood at the nape of Ben who only had his briefs on. SPO3
Acodesin found in one corner at the side of an aparador a metal pipe
about two (2) meters from where Ben was, leaning against a wall. The
metal pipe measured three (3) feet and six (6) inches long with a
diameter of one and half (1 1/2) inches. It had an open end without a
stop valve with a red stain at one end. The bedroom was not in
disarray.

On November 15, 1995, Ben and Arturo Basobas went to a cockfight

after receiving their salary. They each had two (2) bottles of beer
before heading home. Arturo would pass Bens house before reaching
his. When they arrived at the house of Ben, he found out that appellant
had gone to Isabel, Leyte to look for him. Ben went inside his house,
while Arturo went to a store across it, waiting until 9:00 in the evening
for the masiao runner to place a bet. Arturo did not see appellant arrive
but on his way home passing the side of the Genosas rented house, he
heard her say I wont hesitate to kill you to which Ben replied Why kill
me when I am innocent? That was the last time Arturo saw Ben alive.
Arturo also noticed that since then, the Genosas rented house
appeared uninhabited and was always closed.

About 10:00 that same morning, the cadaver of Ben, because of its
stench, had to be taken outside at the back of the house before the
postmortem examination was conducted by Dr. Cerillo in the presence
of the police. A municipal health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben had been dead for two to
three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information
for parricide later filed against appellant. She concluded that the cause
of Bens death was cardiopulmonary arrest secondary to severe
intracranial hemorrhage due to a depressed fracture of the occipital
[bone].

On November 16, 1995, appellant asked Erlinda Paderog, her close

friend and neighbor living about fifty (50) meters from her house, to
look after her pig because she was going to Cebu for a pregnancy
check-up. Appellant likewise asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who unfortunately had no money to
buy it.

Appellant admitted killing Ben. She testified that going home after
work on November 15, 1995, she got worried that her husband who
was not home yet might have gone gambling since it was a payday.
With her cousin Ecel Arao, appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte but did not find him there.
They found Ben drunk upon their return at the Genosas house. Ecel
went home despite appellants request for her to sleep in their house.

That same day, about 12:15 in the afternoon, Joseph Valida was waiting
for a bus going to Ormoc when he saw appellant going out of their
house with her two kids in tow, each one carrying a bag, locking the
gate and taking her children to the waiting area where he was. Joseph
lived about fifty (50) meters behind the Genosas rented house. Joseph,
appellant and her children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not want to talk to
him.
On November 18, 1995, the neighbors of Steban Matiga told him about
the foul odor emanating from his house being rented by Ben and
appellant. Steban went there to find out the cause of the stench but
the house was locked from the inside. Since he did not have a duplicate
key with him, Steban destroyed the gate padlock with a borrowed steel

Then, Ben purportedly nagged appellant for following him, even

challenging her to a fight. She allegedly ignored him and instead
attended to their children who were doing their homework. Apparently
disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her
from watching television. According to appellant, Ben was about to
attack her so she ran to the bedroom, but he got hold of her hands and
whirled her around. She fell on the side of the bed and screamed for
help. Ben left. At this point, appellant packed his clothes because she
wanted him to leave. Seeing his packed clothes upon his return home,
Ben allegedly flew into a rage, dragged appellant outside of the
bedroom towards a drawer holding her by the neck, and told her You
might as well be killed so nobody would nag me. Appellant testified
that she was aware that there was a gun inside the drawer but since

Ben did not have the key to it, he got a three-inch long blade cutter
from his wallet. She however, smashed the arm of Ben with a pipe,
causing him to drop the blade and his wallet. Appellant then smashed
Ben at his nape with the pipe as he was about to pick up the blade and
his wallet. She thereafter ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly distorted the drawer where the gun was
and shot Ben. He did not die on the spot, though, but in the bedroom. [7]
(Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

1. Marivic and Ben Genosa were allegedly married on November 19,
1983. Prior to her marriage, Marivic had graduated from San Carlos,
Cebu City, obtaining a degree of Bachelor of Science in Business
Administration, and was working, at the time of her husbands death, as
a Secretary to the Port Managers in Ormoc City. The couple had three
(3) children: John Marben, Earl Pierre and Marie Bianca.
2. Marivic and Ben had known each other since elementary school;
they were neighbors in Bilwang; they were classmates; and they were
third degree cousins. Both sets of parents were against their
relationship, but Ben was persistent and tried to stop other suitors from
courting her. Their closeness developed as he was her constant partner
at fiestas.
3. After their marriage, they lived first in the home of Bens parents,
together with Bens brother, Alex, in Isabel, Leyte. In the first year of
marriage, Marivic and Ben lived happily. But apparently, soon
thereafter, the couple would quarrel often and their fights would
become violent.
4. Bens brother, Alex, testified for the prosecution that he could not
remember when Ben and Marivic married. He said that when Ben and
Marivic quarreled, generally when Ben would come home drunk,
Marivic would inflict injuries on him. He said that in one incident in
1993 he saw Marivic holding a kitchen knife after Ben had shouted for
help as his left hand was covered with blood. Marivic left the house but
after a week, she returned apparently having asked for Bens
forgiveness. In another incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Bens aid again and saw blood from
Bens forehead and Marivic holding an empty bottle. Ben and Marivic
reconciled after Marivic had apparently again asked for Bens
forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying
that Ben and Marivic married in 1986 or 1985 more or less here in
Fatima, Ormoc City. She said as the marriage went along, Marivic
became already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivics two sons, there were three (3) misunderstandings.
The first was when Marivic stabbed Ben with a table knife through his

left arm; the second incident was on November 15, 1994, when Marivic
struck Ben on the forehead using a sharp instrument until the eye was
also affected. It was wounded and also the ear and her husband went
to Ben to help; and the third incident was in 1995 when the couple had
already transferred to the house in Bilwang and she saw that Bens
hand was plastered as the bone cracked.

Genosas, testified that on November 15, 1995, he overheard a quarrel

between Ben and Marivic. Marivic was shouting for help and through
the open jalousies, he saw the spouses grappling with each other. Ben
had Marivic in a choke hold. He did not do anything, but had come
voluntarily to testify. (Please note this was the same night as that
testified to by Arturo Busabos.[8])

Both mother and son claimed they brought Ben to a Pasar clinic for
medical intervention.

7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the
night of November 15, 1995. He peeped through the window of his hut
which is located beside the Genosa house and saw the spouses
grappling with each other then Ben Genosa was holding with his both
hands the neck of the accused, Marivic Genosa. He said after a while,
Marivic was able to extricate he[r]self and enter the room of the
children. After that, he went back to work as he was to go fishing that
evening. He returned at 8:00 the next morning. (Again, please note
that this was the same night as that testified to by Arturo Basobas).

5. Arturo Basobas, a co-worker of Ben, testified that on November 15,

1995 After we collected our salary, we went to the cock-fighting place
of ISCO. They stayed there for three (3) hours, after which they went to
Uniloks and drank beer allegedly only two (2) bottles each. After
drinking they bought barbeque and went to the Genosa residence.
Marivic was not there. He stayed a while talking with Ben, after which
he went across the road to wait for the runner and the usher of the
masiao game because during that time, the hearing on masiao
numbers was rampant. I was waiting for the ushers and runners so that
I can place my bet. On his way home at about 9:00 in the evening, he
heard the Genosas arguing. They were quarreling loudly. Outside their
house was one Fredo who is used by Ben to feed his fighting cocks.
Basobas testimony on the root of the quarrel, conveniently overheard
by him was Marivic saying I will never hesitate to kill you, whilst Ben
replied Why kill me when I am innocent. Basobas thought they were
joking.
He did not hear them quarreling while he was across the road from the
Genosa residence. Basobas admitted that he and Ben were always at
the cockpits every Saturday and Sunday. He claims that he once told
Ben before when he was stricken with a bottle by Marivic Genosa that
he should leave her and that Ben would always take her back after she
would leave him so many times.
Basobas could not remember when Marivic had hit Ben, but it was a
long time that they had been quarreling. He said Ben even had a
wound on the right forehead. He had known the couple for only one (1)
year.
6. Marivic testified that after the first year of marriage, Ben became
cruel to her and was a habitual drinker. She said he provoked her, he
would slap her, sometimes he would pin her down on the bed, and
sometimes beat her.
These incidents happened several times and she would often run home
to her parents, but Ben would follow her and seek her out, promising to
change and would ask for her forgiveness. She said after she would be
beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero
and Dra. Cerillo. These doctors would enter the injuries inflicted upon
her by Ben into their reports. Marivic said Ben would beat her or
quarrel with her every time he was drunk, at least three times a week.
7. In her defense, witnesses who were not so closely related to Marivic,
testified as to the abuse and violence she received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the

7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while
they were living in Isabel, Leyte. His house was located about fifty (50)
meters from theirs. Marivic is his niece and he knew them to be living
together for 13 or 14 years. He said the couple was always quarreling.
Marivic confided in him that Ben would pawn items and then would use
the money to gamble. One time, he went to their house and they were
quarreling. Ben was so angry, but would be pacified if somebody would
come. He testified that while Ben was alive he used to gamble and
when he became drunk, he would go to our house and he will say,
Teody because that was what he used to call me, mokimas ta, which
means lets go and look for a whore. Mr. Sarabia further testified that
Ben would box his wife and I would see bruises and one time she ran to
me, I noticed a wound (the witness pointed to his right breast) as
according to her a knife was stricken to her. Mr. Sarabia also said that
once he saw Ben had been injured too. He said he voluntarily testified
only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to
her house and asked her help to look for Ben. They searched in the
market place, several taverns and some other places, but could not
find him. She accompanied Marivic home. Marivic wanted her to sleep
with her in the Genosa house because she might be battered by her
husband. When they got to the Genosa house at about 7:00 in the
evening, Miss Arano said that her husband was already there and was
drunk. Miss Arano knew he was drunk because of his staggering
walking and I can also detect his face. Marivic entered the house and
she heard them quarrel noisily. (Again, please note that this is the
same night as that testified to by Arturo Basobas) Miss Arano testified
that this was not the first time Marivic had asked her to sleep in the
house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened
at 10:00 in the evening when Ben arrived because the couple were
very noisy in the sala and I had heard something was broken like a
vase. She said Marivic ran into her room and they locked the door.
When Ben couldnt get in he got a chair and a knife and showed us the
knife through the window grill and he scared us. She said that Marivic
shouted for help, but no one came. On cross-examination, she said that
when she left Marivics house on November 15, 1995, the couple were
still quarreling.

7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees at PHILPHOS, Isabel, Leyte. Marivic was his patient many
times and had also received treatment from other doctors. Dr. Caing
testified that from July 6, 1989 until November 9, 1995, there were six
(6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing and considered him
an expert witness.
xxxxxxxxx
Dr. Caings clinical history of the tension headache and hypertention of
Marivic on twenty-three (23) separate occasions was marked at
Exhibits 2 and 2-B. The OPD Chart of Marivic at the Philphos Clinic
which reflected all the consultations made by Marivic and the six (6)
incidents of physical injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he
could not say whether the injuries were directly related to the crime
committed. He said it is only a psychiatrist who is qualified to examine
the psychological make-up of the patient, whether she is capable of
committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the
Genosas resided, testified that about two (2) months before Ben died,
Marivic went to his office past 8:00 in the evening. She sought his help
to settle or confront the Genosa couple who were experiencing family
troubles. He told Marivic to return in the morning, but he did not hear
from her again and assumed that they might have settled with each
other or they might have forgiven with each other.

Answering questions from the Court, Marivic said that she threw the
gun away; that she did not know what happened to the pipe she used
to smash him once; that she was wounded by Ben on her wrist with the
bolo; and that two (2) hours after she was whirled by Ben, he kicked
her ass and dragged her towards the drawer when he saw that she had
packed his things.
9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa
residence. This fact was testified to by all the prosecution witnesses
and some defense witnesses during the trial.
10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health
Officer of Isabel, Leyte at the time of the incident, and among her
responsibilities as such was to take charge of all medico-legal cases,
such as the examination of cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely took the medical board
exams and passed in 1986. She was called by the police to go to the
Genosa residence and when she got there, she saw some police officer
and neighbor around. She saw Ben Genosa, covered by a blanket, lying
in a semi-prone position with his back to the door. He was wearing only
a brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury
involving the skeletal area of the head which she described as a
fracture. And that based on her examination, Ben had been dead 2 or 3
days. Dra. Cerillo did not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.

xxxxxxxxx
Marivic said she did not provoke her husband when she got home that
night it was her husband who began the provocation. Marivic said she
was frightened that her husband would hurt her and she wanted to
make sure she would deliver her baby safely. In fact, Marivic had to be
admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on
December 1, 1995.
Marivic testified that during her marriage she had tried to leave her
husband at least five (5) times, but that Ben would always follow her
and they would reconcile. Marivic said that the reason why Ben was
violent and abusive towards her that night was because he was crazy
about his recent girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she
said that he died in the bedroom; that their quarrels could be heard by
anyone passing their house; that Basobas lied in his testimony; that
she left for Manila the next day, November 16, 1995; that she did not
bother anyone in Manila, rented herself a room, and got herself a job as
a field researcher under the alias Marvelous Isidro; she did not tell
anyone that she was leaving Leyte, she just wanted to have a safe
delivery of her baby; and that she was arrested in San Pablo, Laguna.

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

The Honorable Court allowed the withdrawal of Atty. Tabucanon and

permitted the entry of appearance of undersigned counsel.
15. Without the knowledge of counsel, Marivic Genosa wrote a letter
dated 20 January 2000, to the Chief Justice, coursing the same through
Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial
Records Office, wherein she submitted her Brief without counsels to the
Court.
This letter was stamp-received by the Honorable Court on 4 February
2000.
16. In the meantime, under date of 17 February 2000, and stampreceived by the Honorable Court on 19 February 2000, undersigned
counsel filed an URGENT OMNIBUS MOTION praying that the Honorable
Court allow the exhumation of Ben Genosa and the re-examination of
the cause of his death; allow the examination of Marivic Genosa by
qualified psychologists and psychiatrists to determine her state of mind
at the time she killed her husband; and finally, to allow a partial reopening of the case a quo to take the testimony of said psychologists
and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel
Fortun, then the only qualified forensic pathologist in the country, who
opined that the description of the death wound (as culled from the
post-mortem findings, Exhibit A) is more akin to a gunshot wound than
a beating with a lead pipe.
17. In a RESOLUTION dated 29 September 2000, the Honorable Court
partly granted Marivics URGENT OMNIBUS MOTION and remanded the
case to the trial court for the reception of expert psychological and/or
psychiatric opinion on the battered woman syndrome plea, within
ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and
relevant documentary evidence, if any, submitted.
18. On 15 January 2001, Dra. Natividad A. Dayan appeared and
testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc
City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she
had interviewed Marivic Genosa. Dra. Dayan informed the Court that
interviews were done at the Penal Institution in 1999, but that the
clinical interviews and psychological assessment were done at her
clinic.
Dra. Dayan testified that she has been a clinical psychologist for
twenty (20) years with her own private clinic and connected presently
to the De La Salle University as a professor. Before this, she was the
Head of the Psychology Department of the Assumption College; a
member of the faculty of Psychology at the Ateneo de Manila University
and St. Josephs College; and was the counseling psychologist of the
National Defense College. She has an AB in Psychology from the
University of the Philippines, a Master of Arts in Clinical [Counseling],
Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a

member of the American Psychological Association. She is the

secretary of the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and a
member of the ASEAN [Counseling] Association. She is actively
involved with the Philippine Judicial Academy, recently lecturing on the
socio-demographic and psychological profile of families involved in
domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written
a book entitled Energy Global Psychology (together with Drs. Allan Tan
and Allan Bernardo). The Genosa case is the first time she has testified
as an expert on battered women as this is the first case of that nature.
Dra. Dayan testified that for the research she conducted, on the sociodemographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a
period of ten (10) years and discovered that there are lots of variables
that cause all of this marital conflicts, from domestic violence to
infidelity, to psychiatric disorder.
Dra. Dayan described domestic violence to comprise of a lot of
incidents of psychological abuse, verbal abuse, and emotional abuse to
physical abuse and also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman usually
has a very low opinion of herself. She has a self-defeating and selfsacrificing characteristics. x x x they usually think very lowly of
themselves and so when the violence would happen, they usually think
that they provoke it, that they were the one who precipitated the
violence, they provoke their spouse to be physically, verbally and even
sexually abusive to them. Dra. Dayan said that usually a battered x x x
comes from a dysfunctional family or from broken homes.
Dra. Dayan said that the batterer, just like the battered woman, also
has a very low opinion of himself. But then emerges to have superiority
complex and it comes out as being very arrogant, very hostile, very
aggressive and very angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like gambling,
drinking and drugs. And they become violent. The batterer also usually
comes from a dysfunctional family which over-pampers them and
makes them feel entitled to do anything. Also, they see often how their
parents abused each other so there is a lot of modeling of aggression in
the family.
Dra. Dayan testified that there are a lot of reasons why a battered
woman does not leave her husband: poverty, self-blame and guilt that
she provoked the violence, the cycle itself which makes her hope her
husband will change, the belief in her obligations to keep the family
intact at all costs for the sake of the children.
xxxxxxxxx
Dra. Dayan said that abused wives react differently to the violence:
some leave the house, or lock themselves in another room, or
sometimes try to fight back triggering physical violence on both of

them. She said that in a normal marital relationship, abuses also

happen, but these are not consistent, not chronic, are not happening
day in [and] day out. In an abnormal marital relationship, the abuse
occurs day in and day out, is long lasting and even would cause
hospitalization on the victim and even death on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological tests
she administered, it was her opinion that Marivic fits the profile of a
battered woman because inspite of her feeling of self-confidence which
we can see at times there are really feeling (sic) of loss, such feelings
of humiliation which she sees herself as damaged and as a broken
person. And at the same time she still has the imprint of all the abuses
that she had experienced in the past.
xxxxxxxxx
Dra. Dayan said Marivic thought of herself as a loving wife and did not
even consider filing for nullity or legal separation inspite of the abuses.
It was at the time of the tragedy that Marivic then thought of herself as
a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has
since passed away, appeared and testified before RTC-Branch 35,
Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a
Fellow of the Philippine Board of Psychiatry and a Fellow of the
Philippine Psychiatry Association. He was in the practice of psychiatry
for thirty-eight (38) years. Prior to being in private practice, he was
connected with the Veterans Memorial Medical Centre where he gained
his training on psychiatry and neurology. After that, he was called to
active duty in the Armed Forces of the Philippines, assigned to the V.
Luna Medical Center for twenty six (26) years. Prior to his retirement
from government service, he obtained the rank of Brigadier General.
He obtained his medical degree from the University of Santo Tomas. He
was also a member of the World Association of Military Surgeons; the
Quezon City Medical Society; the Cagayan Medical Society; and the
Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954 1978 which was
presented twice in international congresses. He also authored The
Mental Health of the Armed Forces of the Philippines 2000, which was
likewise published internationally and locally. He had a medical
textbook published on the use of Prasepam on a Parke-Davis grant; was
the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he
published the use of the drug Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder
of the mind and neurology deals with the ailment of the brain and
spinal cord enlarged. Psychology, on the other hand, is a bachelor
degree and a doctorate degree; while one has to finish medicine to

become a specialist in psychiatry.

Even only in his 7th year as a resident in V. Luna Medical Centre, Dr.
Pajarillo had already encountered a suit involving violent family
relations, and testified in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he has seen probably
ten to twenty thousand cases. In those days, the primordial intention of
therapy was reconciliation. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office
in Quezon City under Atty. Nenita Deproza.
As such consultant, he had seen around forty (40) cases of severe
domestic violence, where there is physical abuse: such as slapping,
pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The
affliction of Post-Traumatic Stress Disorder depends on the vulnerability
of the victim. Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the
psychological stamina and physiologic constitutional stamina of the
victim is stronger, it will take more repetitive trauma to precipitate the
post-traumatic stress disorder and this x x x is very dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under
the anxiety neurosis or neurologic anxcietism. It is produced by
overwhelming brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives the
beating or trauma as if it were real, although she is not actually being
beaten at that time. She thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic, her
emotional tone is unstable, and she is irritable and restless. She tends
to become hard-headed and persistent. She has higher sensitivity and
her self-world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an
individuals illness, such as the deprivation of the continuous care and
love of the parents. As to the batterer, he normally internalizes what is
around him within the environment. And it becomes his own
personality. He is very competitive; he is aiming high all the time; he is
so macho; he shows his strong faade but in it there are doubts in
himself and prone to act without thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the
precipator (sic) or the one who administered the battering, that reexperiencing of the trauma occurred (sic) because the individual
cannot control it. It will just come up in her mind or in his mind.
xxxxxxxxx

Dr. Pajarillo said that a woman suffering post traumatic stress disorder
try to defend themselves, and primarily with knives. Usually pointed
weapons or any weapon that is available in the immediate surrounding
or in a hospital x x x because that abound in the household. He said a
victim resorts to weapons when she has reached the lowest rock
bottom of her life and there is no other recourse left on her but to act
decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an
interview he conducted for two (2) hours and seventeen (17) minutes.
He used the psychological evaluation and social case studies as a help
in forming his diagnosis. He came out with a Psychiatric Report, dated
22 January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said that
at the time she killed her husband Marivicc mental condition was that
she was re-experiencing the trauma. He said that we are trying to
explain scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and probably at that
point in time that things happened when the re-experiencing of the
trauma flashed in her mind. At the time he interviewed Marivic she was
more subdued, she was not super alert anymore x x x she is mentally
stress (sic) because of the predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the
private or the public prosecutor. Thus, in accord with the Resolution of
this Honorable Court, the records of the partially re-opened trial aquo
were elevated.[9]

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC

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

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion

praying that this Court allow (1) the exhumation of Ben Genosa and the
reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her
state of mind at the time she had killed her spouse; and (3) the
inclusion of the said experts reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial
reopening of the case for the lower court to admit the experts
testimonies.
On September 29, 2000, this Court issued a Resolution granting in
part appellants Motion, remanding the case to the trial court for the
reception of expert psychological and/or psychiatric opinion on the
battered woman syndrome plea; and requiring the lower court to report
thereafter to this Court the proceedings taken as well as to submit
copies of the TSN and additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs. Natividad
Dayan[10] and Alfredo Pajarillo, [11] supposedly experts on domestic
violence. Their testimonies, along with their documentary evidence,
were then presented to and admitted by the lower court before finally
being submitted to this Court to form part of the records of the case. [12]

The Issues

Appellant assigns the following alleged errors of the trial court for
this Courts consideration:
1. The trial court gravely erred in promulgating an obviously hasty
decision without reflecting on the evidence adduced as to self-defense.
2. The trial court gravely erred in finding as a fact that Ben and Marivic
Genosa were legally married and that she was therefore liable for
parricide.
3. The trial court gravely erred finding the cause of death to be by
beating with a pipe.
4. The trial court gravely erred in ignoring and disregarding evidence
adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely
erred in concluding that Ben Genosa was a battered husband.
5. The trial court gravely erred in not requiring testimony from the
children of Marivic Genosa.
6. The trial court gravely erred in concluding that Marivics flight to
Manila and her subsequent apologies were indicia of guilt, instead of a
clear attempt to save the life of her unborn child.
7. The trial court gravely erred in concluding that there was an
aggravating circumstance of treachery.

8. The trial court gravely erred in refusing to re-evaluate the traditional

elements in determining the existence of self-defense and defense of
foetus in this case, thereby erroneously convicting Marivic Genosa of
the crime of parricide and condemning her to the ultimate penalty of
death.[13]
In the main, the following are the essential legal issues: (1)
whether appellant acted in self-defense and in defense of her fetus;
and (2) whether treachery attended the killing of Ben Genosa.

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in

nature, if not collateral to the resolution of the principal issues. As
consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high
degree of respect and will not be disturbed on appeal in the absence of
any showing that the trial judge gravely abused his discretion or
overlooked, misunderstood or misapplied material facts or
circumstances of weight and substance that could affect the outcome
of the case.[14]
In appellants first six assigned items, we find no grave abuse of
discretion, reversible error or misappreciation of material facts that
would reverse or modify the trial courts disposition of the case. In any
event, we will now briefly dispose of these alleged errors of the trial
court.
First, we do not agree that the lower court promulgated an
obviously hasty decision without reflecting on the evidence adduced as
to self-defense. We note that in his 17-page Decision, Judge Fortunito L.
Madrona summarized the testimonies of both the prosecution and the
defense witnesses and -- on the basis of those and of the documentary
evidence on record -- made his evaluation, findings and conclusions. He
wrote a 3-page discourse assessing the testimony and the self-defense
theory of the accused. While she, or even this Court, may not agree
with the trial judges conclusions, we cannot peremptorily conclude,
absent substantial evidence, that he failed to reflect on the evidence
presented.
Neither do we find the appealed Decision to have been made in
an obviously hasty manner. The Information had been filed with the
lower court on November 14, 1996. Thereafter, trial began and at least
13 hearings were held for over a year. It took the trial judge about two
months from the conclusion of trial to promulgate his judgment. That
he conducted the trial and resolved the case with dispatch should not
be taken against him, much less used to condemn him for being unduly
hasty. If at all, the dispatch with which he handled the case should be
lauded. In any case, we find his actions in substantial compliance with
his constitutional obligation.[15]

Second, the lower court did not err in finding as a fact that Ben
Genosa and appellant had been legally married, despite the nonpresentation of their marriage contract. In People v. Malabago,[16] this
Court held:
The key element in parricide is the relationship of the offender with the
victim. In the case of parricide of a spouse, the best proof of the
relationship between the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if
such proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and the
brother of appellants deceased spouse -- attested in court that Ben had
been married to Marivic.[17] The defense raised no objection to these
testimonies. Moreover, during her direct examination, appellant herself
made a judicial admission of her marriage to Ben. [18] Axiomatic is the
rule that a judicial admission is conclusive upon the party making it,
except only when there is a showing that (1) the admission was made
through a palpable mistake, or (2) no admission was in fact made. [19]
Other than merely attacking the non-presentation of the marriage
contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was
made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct
cause of Bens death -- whether by a gunshot or by beating with a pipe
-- has no legal consequence. As the Court elucidated in its September
29, 2000 Resolution, [c]onsidering that the appellant has admitted the
fact of killing her husband and the acts of hitting his nape with a metal
pipe and of shooting him at the back of his head, the Court believes
that exhumation is unnecessary, if not immaterial, to determine which
of said acts actually caused the victims death. Determining which of
these admitted acts caused the death is not dispositive of the guilt or
defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating
evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until
this case came to us for automatic review, appellant had not raised the
novel defense of battered woman syndrome, for which such evidence may
have been relevant. Her theory of self-defense was then the crucial issue
before the trial court. As will be discussed shortly, the legal requisites of
self-defense under prevailing jurisprudence ostensibly appear inconsistent
with the surrounding facts that led to the death of the victim. Hence, his
personal character, especially his past behavior, did not constitute vital
evidence at the time.
Fifth, the trial court surely committed no error in not requiring
testimony from appellants children. As correctly elucidated by the
solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to
determine which witnesses and evidence are necessary to present. [20]
As the former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children as
witnesses. Thus, she cannot now fault the lower court for not requiring
them to testify.
Finally, merely collateral or corroborative is the matter of whether
the flight of Marivic to Manila and her subsequent apologies to her
brother-in-law are indicia of her guilt or are attempts to save the life of

her unborn child. Any reversible error as to the trial courts appreciation
of these circumstances has little bearing on the final resolution of the
case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability,
invokes self-defense and/or defense of her unborn child. When the
accused admits killing the victim, it is incumbent upon her to prove any
claimed justifying circumstance by clear and convincing evidence. [21]
Well-settled is the rule that in criminal cases, self-defense (and
similarly, defense of a stranger or third person) shifts the burden of
proof from the prosecution to the defense.[22]

The Battered Woman Syndrome

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

battered woman syndrome. While new in Philippine jurisprudence, the
concept has been recognized in foreign jurisdictions as a form of selfdefense or, at the least, incomplete self-defense. [23] By appreciating
evidence that a victim or defendant is afflicted with the syndrome,
foreign courts convey their understanding of the justifiably fearful state
of mind of a person who has been cyclically abused and controlled over
a period of time.[24]
A battered woman has been defined as a woman who is
repeatedly subjected to any forceful physical or psychological behavior
by a man in order to coerce her to do something he wants her to do
without concern for her rights. Battered women include wives or
women in any form of intimate relationship with men. Furthermore, in
order to be classified as a battered woman, the couple must go through
the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and
she remains in the situation, she is defined as a battered woman. [25]
Battered women exhibit common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and the
female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterers actions; and false
hopes that the relationship will improve.[26]
More graphically, the battered woman syndrome is characterized
by the so-called cycle of violence,[27] which has three phases: (1) the
tension-building phase; (2) the acute battering incident; and (3) the
tranquil, loving (or, at least, nonviolent) phase.[28]
During the tension-building phase, minor battering occurs -- it
could be verbal or slight physical abuse or another form of hostile
behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way.
What actually happens is that she allows herself to be abused in ways
that, to her, are comparatively minor. All she wants is to prevent the
escalation of the violence exhibited by the batterer. This wish, however,
proves to be double-edged, because her placatory and passive
behavior legitimizes his belief that he has the right to abuse her in the

first place.
However, the techniques adopted by the woman in her effort to
placate him are not usually successful, and the verbal and/or physical
abuse worsens. Each partner senses the imminent loss of control and
the growing tension and despair. Exhausted from the persistent stress,
the battered woman soon withdraws emotionally. But the more she
becomes emotionally unavailable, the more the batterer becomes
angry, oppressive and abusive. Often, at some unpredictable point, the
violence spirals out of control and leads to an acute battering incident.
[29]

The acute battering incident is said to be characterized by

brutality, destructiveness and, sometimes, death. The battered woman
deems this incident as unpredictable, yet also inevitable. During this
phase, she has no control; only the batterer may put an end to the
violence. Its nature can be as unpredictable as the time of its
explosion, and so are his reasons for ending it. The battered woman
usually realizes that she cannot reason with him, and that resistance
would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and
the terrible pain, although she may later clearly remember every
detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger
physically, and she knows from her past painful experience that it is
futile to fight back. Acute battering incidents are often very savage and
out of control, such that innocent bystanders or intervenors are likely to
get hurt.[30]
The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may show a
tender and nurturing behavior towards his partner. He knows that he
has been viciously cruel and tries to make up for it, begging for her
forgiveness and promising never to beat her again. On the other hand,
the battered woman also tries to convince herself that the battery will
never happen again; that her partner will change for the better; and
that this good, gentle and caring man is the real person whom she
loves.
A battered woman usually believes that she is the sole anchor of
the emotional stability of the batterer. Sensing his isolation and
despair, she feels responsible for his well-being. The truth, though, is
that the chances of his reforming, or seeking or receiving professional
help, are very slim, especially if she remains with him. Generally, only
after she leaves him does he seek professional help as a way of getting
her back. Yet, it is in this phase of remorseful reconciliation that she is
most thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a
battered womans psyche. In this phase, she and her batterer are
indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of
tension, violence and forgiveness, each partner may believe that it is
better to die than to be separated. Neither one may really feel
independent, capable of functioning without the other.[31]
History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the

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

xxxxxxxxx

A Yes, sir.
Q Now, going to your finding no. 3 where you were the one
who attended the patient. What do you mean by
abrasion furuncle left axilla?

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Abrasion is a skin wound usually when it comes in contact

with something rough substance if force is applied.

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction
of injury inflicted on your occurred, after your marriage,
from that time on, how frequent was the occurrence?

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

A Everytime he got drunk.

Q What is meant by pain mastitis secondary to trauma?

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

or in a week?

A So, in this 4th episode of physical injuries there is an

inflammation of left breast. So, [pain] meaning there is
tenderness. When your breast is traumatized, there is
tenderness pain.

A Three times a week.

Q Do you mean three times a week he would beat you?

Q So, these are objective physical injuries. Doctor?

A Not necessarily that he would beat me but sometimes he

will just quarrel me. [32]

xxxxxxxxx

[33]

Referring to his Out-Patient Chart

on Marivic Genosa at the
Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony
on chronic battery in this manner:
Q So, do you have a summary of those six (6) incidents
which are found in the chart of your clinic?

Q Were you able to talk with the patient?

A Yes, sir.
Q What did she tell you?

Q Who prepared the list of six (6) incidents, Doctor?

A As a doctor-patient relationship, we need to know the

cause of these injuries. And she told me that it was
done to her by her husband.

A I did.

Q You mean, Ben Genosa?

Q Will you please read the physical findings together with

the dates for the record.

A Yes, sir.

A Yes, sir.

A 1. May 12, 1990 - physical findings are as follows:

Hematoma (R) lower eyelid and redness of eye.
Attending physician: Dr. Lucero;

xxxxxxxxx
ATTY. TABUCANON:

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

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

Q By the way Doctor, were you able to physical examine the

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

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

A As per record, yes.

o

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

trauma. Attending physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder.
Attending physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple
contusion Pregnancy. Attending physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein
you were the attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?

Q What was the date?

A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable
Court, was the patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of
pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an
examination about her pregnancy or for some other
findings?

Q Can family trouble cause elevation of blood pressure,

Doctor?
A Yes, if it is emotionally related and stressful it can cause
increases in hypertension which is unfortunately does
not response to the medication.
Q In November 6, 1995, the date of the incident, did you
take the blood pressure of the accused?

A No, she was admitted for hypertension headache which

complicates her pregnancy.

A On November 6, 1995 consultation, the blood pressure

was 180/120.

Q When you said admitted, meaning she was confined?

Q Is this considered hypertension?

A Yes, sir.

A Yes, sir, severe.

Q For how many days?

Q Considering that she was 8 months pregnant, you mean

this is dangerous level of blood pressure?

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

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

Another defense witness, Teodoro Sarabia, a former neighbor of
the Genosas in Isabel, Leyte, testified that he had seen the couple
quarreling several times; and that on some occasions Marivic would run
to him with bruises, confiding that the injuries were inflicted upon her
by Ben.[35]
Ecel Arano also testified[36] that for a number of times she had
been asked by Marivic to sleep at the Genosa house, because the latter
feared that Ben would come home drunk and hurt her. On one occasion
that Ecel did sleep over, she was awakened about ten oclock at night,
because the couple were very noisy and I heard something was broken
like a vase. Then Marivic came running into Ecels room and locked the
door. Ben showed up by the window grill atop a chair, scaring them
with a knife.
On the afternoon of November 15, 1995, Marivic again asked her
help -- this time to find Ben -- but they were unable to. They returned to
the Genosa home, where they found him already drunk. Again afraid
that he might hurt her, Marivic asked her to sleep at their house.
Seeing his state of drunkenness, Ecel hesitated; and when she heard
the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa,
at least three other witnesses saw or heard the couple quarreling. [37]
Marivic relates in detail the following backdrop of the fateful night
when life was snuffed out of him, showing in the process a vivid picture
of his cruelty towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in
November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office
working then after office hours, I boarded the service
bus and went to Bilwang. When I reached Bilwang, I
immediately asked my son, where was his father, then
my second child said, he was not home yet. I was
worried because that was payday, I was anticipating
that he was gambling. So while waiting for him, my
eldest son arrived from school, I prepared dinner for

my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking
for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated
this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence
at Bilwang?
A I went back around almost 8:00 oclock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I
requested to sleep with me at that time because I had
fears that he was again drunk and I was worried that
he would again beat me so I requested my cousin to
sleep with me, but she resisted because she had fears
that the same thing will happen again last year.
Q Who was this cousin of yours who you requested to sleep
with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father
would not allow her because of Ben.
Q During this period November 15, 1995, were you
pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were carrying at that

time?

Q What was the bolo used for usually?

A I was aware that it was a gun.

A Marie Bianca.

A For chopping meat.

COURT INTERPRETER:

Q What time were you able to meet personally your

husband?

Q You said the children were scared, what else happened as

Ben was carrying that bolo?

(At this juncture the witness started crying).

A Yes, sir.

A He was about to attack me so I run to the room.

Q What time?

Q What do you mean that he was about to attack you?

A When I arrived home, he was there already in his usual

behavior.

A When I attempt to run he held my hands and he whirled

me and I fell to the bedside.

Q Will you tell this Court what was his disposition?

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

A He was drunk again, he was yelling in his usual unruly

behavior.

A I screamed for help and then he left.

Q What was he yelling all about?

Q You said earlier that he whirled you and you fell on the
bedside?

A His usual attitude when he got drunk.

A Yes, sir.

Q You said that when you arrived, he was drunk and yelling
at you? What else did he do if any?

Q You screamed for help and he left, do you know where he

was going?

A He is nagging at me for following him and he dared me to

quarrel him.

A Outside perhaps to drink more.

Q What was the cause of his nagging or quarreling at you if

you know?
A He was angry at me because I was following x x x him,
looking for him. I was just worried he might be overly
drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to
you if any?
A He was nagging at me at that time and I just ignore him
because I want to avoid trouble for fear that he will
beat me again. Perhaps he was disappointed because I
just ignore him of his provocation and he switch off the
light and I said to him, why did you switch off the light
when the children were there. At that time I was also
attending to my children who were doing their
assignments. He was angry with me for not answering
his challenge, so he went to the kitchen and [got] a
bolo and cut the antenna wire to stop me from
watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting
because they were scared and he was already holding
the bolo.
Q How do you described this bolo?
A 1 1/2 feet.

Q When he left what did you do in that particular time?

A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were
their reactions?
A After a couple of hours, he went back again and he got
angry with me for packing his clothes, then he dragged
me again of the bedroom holding my neck.
Q You said that when Ben came back to your house, he
dragged you? How did he drag you?

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

COURT INTERPRETER:

Q Where were the children during that time?

The witness demonstrated to the Court by using her right

hand flexed forcibly in her front neck)

A My children were already asleep.

A And he dragged me towards the door backward.

ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and
then he kept on shouting at me that you might as well
be killed so there will be nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?

Q You mean they were inside the room?

A Yes, sir.
Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how
does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

Q Did you gather an information from Marivic that on the

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

A He wanted to cut my throat.

A I also heard that from her?

Q With the same blade?

Q You heard that from her?

A Yes, sir, that was the object used when he intimidate me.

A Yes, sir.

[38]

In addition, Dra. Natividad Dayan was called by the RTC to testify

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

Q Did you ask for a complete example who are the relatives
of her husband that were fond of battering their wives?
A What I remember that there were brothers of her husband
who are also battering their wives.
Q Did she not inform you that there was an instance that she
stayed in a hotel in Ormoc where her husband followed
her and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was
battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem
about being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete
on saying this matter. I think that is the first time that
we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this
kind happened, it was really a self-defense. I also
believe that there had been provocation and I also
believe that she became a disordered person. She had
to suffer anxiety reaction because of all the battering
that happened and so she became an abnormal person
who had lost shes not during the time and that is why
it happened because of all the physical battering,
emotional battering, all the psychological abuses that
she had experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely
battered?
A Sir, it is an extreme form of battering. Yes.[40]
Parenthetically, the credibility of appellant was demonstrated as
follows:
Q And you also said that you administered [the] objective
personality test, what x x x [is this] all about?
A The objective personality test is the Millon Clinical
Multiaxial Inventory. The purpose of that test is to find
out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the

truth, or is she someone who can exaggerate or x x x

[will] tell a lie[?]
Q And what did you discover on the basis of this objective
personality test?
A She was a person who passed the honesty test. Meaning
she is a person that I can trust. That the data that Im
gathering from her are the truth.[41]
The other expert witness presented by the defense, Dr. Alfredo
Pajarillo, testified on his Psychiatric Report, [42] which was based on his
interview and examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben, everything looked
good -- the atmosphere was fine, normal and happy -- until Ben started
to be attracted to other girls and was also enticed in[to] gambling[,]
especially cockfighting. x x x. At the same time Ben was often joining
his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he
showed toward his family, particularly to his wife. The Report
continued: At first, it was verbal and emotional abuses but as time
passed, he became physically abusive. Marivic claimed that the
viciousness of her husband was progressive every time he got drunk. It
was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married
for twelve years[;] and practically more than eight years, she was
battered and maltreated relentlessly and mercilessly by her husband
whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were
in vain. Further quoting from the Report, [s]he also sought the advice
and help of close relatives and well-meaning friends in spite of her
feeling ashamed of what was happening to her. But incessant battering
became more and more frequent and more severe. x x x. [43]
From the totality of evidence presented, there is indeed no doubt
in the Courts mind that Appellant Marivic Genosa was a severely
abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the

abused woman, her state of mind metamorphoses. In determining her
state of mind, we cannot rely merely on the judgment of an ordinary,
reasonable person who is evaluating the events immediately
surrounding the incident. A Canadian court has aptly pointed out that
expert evidence on the psychological effect of battering on wives and
common law partners are both relevant and necessary. How can the
mental state of the appellant be appreciated without it? The average
member of the public may ask: Why would a woman put up with this
kind of treatment? Why should she continue to live with such a man?
How could she love a partner who beat her to the point of requiring
hospitalization? We would expect the woman to pack her bags and go.
Where is her self-respect? Why does she not cut loose and make a new
life for herself? Such is the reaction of the average person confronted
with the so-called battered wife syndrome.[44]

To understand the syndrome properly, however, ones viewpoint

should not be drawn from that of an ordinary, reasonable person. What
goes on in the mind of a person who has been subjected to repeated,
severe beatings may not be consistent with -- nay, comprehensible to -those who have not been through a similar experience. Expert opinion
is essential to clarify and refute common myths and misconceptions
about battered women.[45]

as learned helplessness. [T]he truth or facts of a situation turn out to

be less important than the individuals set of beliefs or perceptions
concerning the situation. Battered women dont attempt to leave the
battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe
that nothing they or anyone else does will alter their terrible
circumstances.[54]

The theory of BWS formulated by Lenore Walker, as well as her

research on domestic violence, has had a significant impact in the
United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the
killing of her violent partner. The psychologist explains that the cyclical
nature of the violence inflicted upon the battered woman immobilizes
the latters ability to act decisively in her own interests, making her feel
trapped in the relationship with no means of escape. [46] In her years of
research, Dr. Walker found that the abuse often escalates at the point
of separation and battered women are in greater danger of dying then.

Thus, just as the battered woman believes that she is somehow

responsible for the violent behavior of her partner, she also believes
that he is capable of killing her, and that there is no escape. [55] Battered
women feel unsafe, suffer from pervasive anxiety, and usually fail to
leave the relationship.[56] Unless a shelter is available, she stays with
her husband, not only because she typically lacks a means of selfsupport, but also because she fears that if she leaves she would be
found and hurt even more.[57]

[47]

Corroborating these research findings, Dra. Dayan said that the

battered woman usually has a very low opinion of herself. She has x x x
self-defeating and self-sacrificing characteristics. x x x [W]hen the
violence would happen, they usually think that they provoke[d] it, that
they were the one[s] who precipitated the violence[; that] they
provoke[d] their spouse to be physically, verbally and even sexually
abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a battered
woman does not readily leave an abusive partner -- poverty, self-blame
and guilt arising from the latters belief that she provoked the violence,
that she has an obligation to keep the family intact at all cost for the
sake of their children, and that she is the only hope for her spouse to
change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also
helpful. He had previously testified in suits involving violent family
relations, having evaluated probably ten to twenty thousand violent
family disputes within the Armed Forces of the Philippines, wherein
such cases abounded. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office
in Quezon City. As such, he got involved in about forty (40) cases of
severe domestic violence, in which the physical abuse on the woman
would sometimes even lead to her loss of consciousness. [50]
Dr. Pajarillo explained that overwhelming brutality, trauma could
result in posttraumatic stress disorder, a form of anxiety neurosis or
neurologic anxietism.[51] After being repeatedly and severely abused,
battered persons may believe that they are essentially helpless, lacking
power to change their situation. x x x [A]cute battering incidents can
have the effect of stimulating the development of coping responses to
the trauma at the expense of the victims ability to muster an active
response to try to escape further trauma. Furthermore, x x x the victim
ceases to believe that anything she can do will have a predictable
positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the
University of Pennsylvania, found that even if a person has control over
a situation, but believes that she does not, she will be more likely to
respond to that situation with coping responses rather than trying to
escape. He said that it was the cognitive aspect -- the individuals
thoughts -- that proved all-important. He referred to this phenomenon

In the instant case, we meticulously scoured the records for

specific evidence establishing that appellant, due to the repeated
abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however,
failed to find sufficient evidence that would support such a conclusion.
More specifically, we failed to find ample evidence that would confirm
the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the cycle of
violence supposedly characterizing the relationship of Ben and Marivic
Genosa. No doubt there were acute battering incidents. In relating to
the court a quo how the fatal incident that led to the death of Ben
started, Marivic perfectly described the tension-building phase of the
cycle. She was able to explain in adequate detail the typical
characteristics of this stage. However, that single incident does not
prove the existence of the syndrome. In other words, she failed to
prove that in at least another battering episode in the past, she had
gone through a similar pattern.
How did the tension between the partners usually arise or build
up prior to acute battering? How did Marivic normally respond to Bens
relatively minor abuses? What means did she employ to try to prevent
the situation from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the
third phase of the cycle. She simply mentioned that she would usually
run away to her mothers or fathers house; [58] that Ben would seek her
out, ask for her forgiveness and promise to change; and that believing
his words, she would return to their common abode.
Did she ever feel that she provoked the violent incidents between
her and her spouse? Did she believe that she was the only hope for
Ben to reform? And that she was the sole support of his emotional
stability and well-being? Conversely, how dependent was she on him?
Did she feel helpless and trapped in their relationship? Did both of
them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her
factual experiences and thoughts that would clearly and fully
demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert
witnesses for the defense. Indeed, they were able to explain fully,
albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated

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

BWS as Self-Defense

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

not in itself establish the legal right of the woman to kill her abusive
partner. Evidence must still be considered in the context of selfdefense.[59]
From the expert opinions discussed earlier, the Court reckons
further that crucial to the BWS defense is the state of mind of the
battered woman at the time of the offense [60] -- she must have actually
feared imminent harm from her batterer and honestly believed in the
need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who
resorts to self-defense must face a real threat on ones life; and the
peril sought to be avoided must be imminent and actual, not merely
imaginary.[61] Thus, the Revised Penal Code provides the following
requisites and effect of self-defense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
Unlawful aggression is the most essential element of self-defense.
It presupposes actual, sudden and unexpected attack -- or an
imminent danger thereof -- on the life or safety of a person. [64] In the
present case, however, according to the testimony of Marivic herself,
there was a sufficient time interval between the unlawful aggression of
Ben and her fatal attack upon him. She had already been able to
withdraw from his violent behavior and escape to their childrens
bedroom. During that time, he apparently ceased his attack and went
to bed. The reality or even the imminence of the danger he posed had
ended altogether. He was no longer in a position that presented an
actual threat on her life or safety.
[63]

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

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise
any other modifying circumstances that would alter her penalty, we
deem it proper to evaluate and appreciate in her favor circumstances
that mitigate her criminal liability. It is a hornbook doctrine that an
appeal in a criminal case opens it wholly for review on any issue,
including that which has not been raised by the parties. [69]
From several psychological tests she had administered to Marivic,
Dra. Dayan, in her Psychological Evaluation Report dated November 29,
2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated
battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological
resistance and natural self-control. It is very clear that she developed
heightened sensitivity to sight of impending danger her husband posed
continuously. Marivic truly experienced at the hands of her abuser
husband a state of psychological paralysis which can only be ended by
an act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained
that the effect of repetitious pain taking, repetitious battering, [and]
repetitious maltreatment as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder. [71]
Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious
battering. Second, the severity of the battering. Third,
the prolonged administration of battering or the
prolonged commission of the battering and the
psychological and constitutional stamina of the victim

and another one is the public and social support

available to the victim. If nobody is interceding, the
more she will go to that disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the
qualifications in terms of severity of the postraumatic
stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er
this post[t]raumatic stress disorder is injury to the
head, banging of the head like that. It is usually the
very very severe stimulus that precipitate this
post[t]raumatic stress disorder. Others are suffocating
the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual,
and boxing the individual. In this situation therefore,
the victim is heightened to painful stimulus, like for
example she is pregnant, she is very susceptible
because the woman will not only protect herself, she is
also to protect the fetus. So the anxiety is heightened
to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness,
how do you classify?
A We classify the disorder as [acute], or chronic or delayed
or [a]typical.
Q Can you please describe this pre[-]classification you called
delayed or [atypical]?
A The acute is the one that usually require only one
battering and the individual will manifest now a severe
emotional instability, higher irritability remorse,
restlessness, and fear and probably in most [acute]
cases the first thing will be happened to the individual
will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious
maltreatment, any prolonged, it is longer than six (6)
months. The [acute] is only the first day to six (6)
months. After this six (6) months you become chronic.
It is stated in the book specifically that after six (6)
months is chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal and then
become normal. This is how you get neurosis from
neurotic personality of these cases of post[t]raumatic
stress disorder. [72]
Answering the questions propounded by the trial judge, the
expert witness clarified further:
Q But just the same[,] neurosis especially on battered
woman syndrome x x x affects x x x his or her mental
capacity?
A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence
inflicted upon appellant resulted in cumulative provocation which broke
down her psychological resistance and natural self-control,
psychological paralysis, and difficulty in concentrating or impairment of
memory.
Based on the explanations of the expert witnesses, such
manifestations were analogous to an illness that diminished the
exercise by appellant of her will power without, however, depriving her
of consciousness of her acts. There was, thus, a resulting diminution of
her freedom of action, intelligence or intent. Pursuant to paragraphs
9[74] and 10[75] of Article 13 of the Revised Penal Code, this circumstance
should be taken in her favor and considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. It has been held that this
state of mind is present when a crime is committed as a result of an
uncontrollable burst of passion provoked by prior unjust or improper
acts or by a legitimate stimulus so powerful as to overcome reason. [77]
To appreciate this circumstance, the following requisites should concur:
(1) there is an act, both unlawful and sufficient to produce such a
condition of mind; and (2) this act is not far removed from the
commission of the crime by a considerable length of time, during which
the accused might recover her normal equanimity. [78]
Here, an acute battering incident, wherein Ben Genosa was the
unlawful aggressor, preceded his being killed by Marivic. He had further
threatened to kill her while dragging her by the neck towards a cabinet
in which he had kept a gun. It should also be recalled that she was
eight months pregnant at the time. The attempt on her life was likewise
on that of her fetus.[79]His abusive and violent acts, an aggression
which was directed at the lives of both Marivic and her unborn child,
naturally produced passion and obfuscation overcoming her reason.
Even though she was able to retreat to a separate room, her emotional
and mental state continued. According to her, she felt her blood
pressure rise; she was filled with feelings of self-pity and of fear that
she and her baby were about to die. In a fit of indignation, she pried
open the cabinet drawer where Ben kept a gun, then she took the
weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that
there was no considerable period of time within which Marivic could
have recovered her normal equanimity. Helpful is Dr. Pajarillos
testimony[80] that with neurotic anxiety -- a psychological effect on a
victim of overwhelming brutality [or] trauma -- the victim relives the
beating or trauma as if it were real, although she is not actually being
beaten at the time. She cannot control re-experiencing the whole thing,
the most vicious and the trauma that she suffered. She thinks of
nothing but the suffering. Such reliving which is beyond the control of a
person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from
recovering her normal equanimity. Accordingly, she should further be
credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -psychological paralysis as well as passion and obfuscation -- did not
arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical
nature and the severity of the battery inflicted by the batterer-spouse
upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an
illness diminishing the exercise of her will power without depriving her
of consciousness of her acts.

COURT INTERPRETER

The second circumstance, on the other hand, resulted from the

violent aggression he had inflicted on her prior to the killing. That the
incident occurred when she was eight months pregnant with their child
was deemed by her as an attempt not only on her life, but likewise on
that of their unborn child. Such perception naturally produced passion
and obfuscation on her part.

A Yes, sir.

Second Legal Issue:

Treachery
There is treachery when one commits any of the crimes against
persons by employing means, methods or forms in the execution
thereof without risk to oneself arising from the defense that the
offended party might make.[81] In order to qualify an act as treacherous,
the circumstances invoked must be proven as indubitably as the killing
itself; they cannot be deduced from mere inferences, or conjectures,
which have no place in the appreciation of evidence. [82] Because of the
gravity of the resulting offense, treachery must be proved as
conclusively as the killing itself.[83]
Ruling that treachery was present in the instant case, the trial
court imposed the penalty of death upon appellant. It inferred this
qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an open, depressed, circular
fracture located at the back of his head. As to exactly how and when he
had been fatally attacked, however, the prosecution failed to establish
indubitably. Only the following testimony of appellant leads us to the
events surrounding his death:
Q You said that when Ben came back to your house, he
dragged you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her right
hand flexed forcibly in her front neck)

(At this juncture the witness started crying)

ATTY. TABUCANON:
Q Were you actually brought to the drawer?

Q What happened when you were brought to that drawer?

A Ben tried to pick-up the wallet and the blade, I pick-up the
pipe and I smashed him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like
what happened before when I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood
pressure was raised. I was frightened I was about to die
because of my blood pressure.

A He dragged me towards the drawer and he was about to

open the drawer but he could not open it because he
did not have the key then he pulled his wallet which
contained a blade about 3 inches long and I was aware
that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the
blade, I smashed him then I ran to the other room, and
on that very moment everything on my mind was to
pity on myself, then the feeling I had on that very
moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

COURT INTERPRETER

COURT

(The witness at this juncture is crying intensely).

/to Atty. Tabucanon

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

A And he dragged me towards the door backward.

Q How did he do it?

ATTY. TABUCANON:

A He wanted to cut my throat.

Q Where did he bring you?

Q With the same blade?

A Outside the bedroom and he wanted to get something and

then he kept on shouting at me that you might as well
be killed so there will be nobody to nag me

A Yes, sir, that was the object used when he intimidate me.
xxxxxxxxx

(Upon the answer of the witness getting the pipe and

smashed him, the witness at the same time pointed at
the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been
through with him, I took pity on myself and I felt I was
about to die also because of my blood pressure and the
baby, so I got that gun and I shot him.

Q You shot him?

A Yes, I distorted the drawer.[84]
The above testimony is insufficient to establish the presence of
treachery. There is no showing of the victims position relative to
appellants at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel,
treachery cannot be appreciated as a qualifying circumstance, because
the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant.[85]
Moreover, in order to appreciate alevosia, the method of assault
adopted by the aggressor must have been consciously and deliberately
chosen for the specific purpose of accomplishing the unlawful act
without risk from any defense that might be put up by the party
attacked.[86] There is no showing, though, that the present appellant
intentionally chose a specific means of successfully attacking her
husband without any risk to herself from any retaliatory act that he
might make. To the contrary, it appears that the thought of using the
gun occurred to her only at about the same moment when she decided
to kill her batterer-spouse. In the absence of any convincing proof that
she consciously and deliberately employed the method by which she
committed the crime in order to ensure its execution, this Court
resolves the doubt in her favor.[87]

Q So you said that he dragged you towards the drawer?

A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.

ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised

Penal Code is reclusion perpetua to death. Since two mitigating

circumstances and no aggravating circumstance have been found to

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

circumstances and no aggravating circumstance attending her

commission of the offense, her penalty is REDUCED to six (6) years and
one (1) day of prision mayor as minimum; to 14 years, 8 months and 1
day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum
penalty hereby imposed upon her, the director of the Bureau of Corrections
may immediately RELEASE her from custody upon due determination
that she is eligible for parole, unless she is being held for some other
lawful cause. Costs de oficio.
SO ORDERED.

CONTRARY TO LAW.[2]
G.R. No. 172606

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

On April 7, 1998, the Office of the Provincial Prosecutor,

learning of the identity of the unidentified male co-conspirator of
Araneta as Melanio Nugas y Mapait (Nugas), amended the information
to include Nugas as a co-principal, to wit:

- versus Epilogue
Promulgated:
November 23, 2011
Being a novel concept in our jurisprudence, the battered woman
syndrome was neither easy nor simple to analyze and recognize vis--vis
the given set of facts in the present case. The Court agonized on how
to apply the theory as a modern-day reality. It took great effort beyond
the normal manner in which decisions are made -- on the basis of
existing law and jurisprudence applicable to the proven facts. To give a
just and proper resolution of the case, it endeavored to take a good
look at studies conducted here and abroad in order to understand the
intricacies of the syndrome and the distinct personality of the
chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellants counsel, Atty. Katrina
Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we
can only work within the limits of law, jurisprudence and given facts.
We cannot make or invent them. Neither can we amend the Revised
Penal Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of selfdefense arising from the battered woman syndrome. We now sum up
our main points. First, each of the phases of the cycle of violence must
be proven to have characterized at least two battering episodes
between the appellant and her intimate partner. Second, the final acute
battering episode preceding the killing of the batterer must have
produced in the battered persons mind an actual fear of an imminent
harm from her batterer and an honest belief that she needed to use
force in order to save her life. Third, at the time of the killing, the
batterer must have posed probable -- not necessarily immediate and
actual -- grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these
circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements
were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for
parricide is hereby AFFIRMED. However, there being two (2) mitigating

the above-named accused, with intent to kill, armed

with a bladed weapon, conspiring and confederating
with an unidentified male person, whose true identity
and present whereabout is still unknown, with
treachery and taking advantage of their superior
strength, did, then and there wilfully, unlawfully and
feloniously attack, assault and stab with the said
bladed weapon one Glen Remigio y Santos hitting the
latter on the left neck, thereby inflicting upon him
mortal stab wound which directly caused his death.

MELANIO NUGAS y MAPAIT,

Accused-Appellant.
x-----------------------------------------------------------------------------------------x
DECISION

BERSAMIN, J.:
Self-defense is often readily claimed by an accused even if
false. It is time, then, to remind the Defense about the requisites of the
justifying circumstance and about the duty of the Defense to establish
the requisites by credible, clear and convincing evidence.
Melanio Nugas y Mapait appeals the decision promulgated on
March 8, 2006,[1] whereby the Court of Appeals (CA) affirmed his
conviction for murder under the decision rendered on August 17, 2000
by the Regional Trial Court, Branch 73, in Antipolo City (RTC).

Antecedents
On June 25, 1997, the Office of Provincial Prosecutor in Antipolo City
charged Jonie Araneta y Nugas (Araneta) with murder committed as
follows:
That on or about the 26th day of March 1997, in the
Municipality of Antipolo, Province of Rizal Philippines
and within the jurisdiction of this Honorable Court,

That on or about the 26th day of March, 1997, in the

Municipality of Antipolo, Province of Rizal, Philippines
and within the jurisdiction of this Honorable Court,
the
above-named
accused,
conspiring
and
confederating together and mutually helping and
aiding one another, armed with a bladed weapon,
with intent to kill, evident premeditation, treachery,
and taking advantage of superior strength, did then
and there wilfully, unlawfully and feloniously attack,
assault and stab with the said bladed weapon one
Glen Remegio y Santos hitting the latter on the left
neck, thereby inflicting upon him mortal stab wound
which directly caused his death.
CONTRARY TO LAW.[3]
Upon arraignment on June 9, 1998, Araneta and Nugas, both assisted
by counsel de officio, voluntarily and spontaneously pleaded not guilty
to the offense charged.[4]
In the course of the presentation of evidence for the Defense,
Araneta manifested his willingness to change his plea, and to enter a
plea of guilty as an accomplice in homicide. On July 19, 1999, the RTC
approved his offer to change plea. The plea bargaining was with the
conformity of the State Prosecutor and the heirs of the victim. Thus,
after ensuring that Araneta had understood the consequences of his
new plea of guilty, the RTC allowed him to enter a new plea. He was
subsequently duly convicted as an accomplice in homicide and
sentenced to suffer an indeterminate penalty of two years, four
months, and one day of prision correccional, as minimum, to eight
years and one day of prision mayor, as maximum.[5]
The trial proceeded against Nugas.
Evidence of the Prosecution
On March 26, 1997, at about 9:00 in the evening, Glen
Remigio (Glen), his wife, Nila Remigio (Nila), and their two children,

Raymond and Genevieve, then 11- and 6-years old, respectively, were
traveling on board their family vehicle, a Tamaraw FX, along Marcos
Highway in COGEO, Antipolo, Rizal. Glen was driving, while Nila sat to
his extreme right because their children sat between them. While they
were passing along Carolina Village, two men waved at them signalling
their request to hitch a ride. Glen accommodated the two men, one of
whom was carrying a maroon plastic bag, allowing them to board the
vehicle at the rear. When the vehicle neared Masinag Market, the two
men suddenly brandished knives that each pointed at Glens and Nilas
necks, warning them not to make any wrong move if they did not want
to be harmed. Considering that the two men demanded to be brought
to Sta. Lucia Mall, Glen continued driving the vehicle. Upon the vehicle
reaching Kingsville Village, the man behind Glen suddenly stabbed
Glen on the neck. Thereafter, the two men alighted and fled. Glen
pulled the knife from his neck and handed it to Nila. He drove to the
nearest hospital, but he collapsed on the way and lost control of the
vehicle, causing it to run over two pedestrians, one of whom died and
the other suffered a broken arm. Once the vehicle hit the railings of a
gas station, Nila cried for help. Concerned citizens immediately rushed
Glen to the nearest hospital, which was about 50 to 60 meters away.
Nila stayed behind to look after their children. When she checked the
vehicle, she found the knife, its scabbard, and the maroon plastic bag
left by the assailants at the rear of the vehicle. She gathered the
articles and later turned them over to the police officer in charge of the
investigation. The maroon plastic bag was found to contain the
following items: a National Bureau of Investigation clearance, [6] a police
clearance,[7] Social Security System papers,[8] and official receipts,[9] all
issued in the name of Araneta, a stainless fork knuckle, and a bunch of
keys.
Despite undergoing treatment, Glen succumbed, [10] and his body was
brought for autopsy to the Philippine National Police Crime Laboratory.
The autopsy revealed that Glen had sustained a fatal stab wound on
the left side of his neck originating from the front and going towards
the back and downwards towards the center of his body, piercing the
apex of the left lung and transecting the left common carotid artery;
that the stab wound had been inflicted by a single bladed weapon; and
that the immediate cause of his death was the hemorrhage resulting
from the stab wound.[11] It was opined that the position of the stab
wound would suggest that had the assailant used his left hand, he was
probably directly behind the victim; but had he used his right hand, he
had to be somewhere to the extreme left of the victim.
During trial, Nila identified Nugas as the person who had sat behind her
husband and who had stabbed her husband in the neck, and Araneta
as the person who had sat behind her and who had carried the maroon
plastic bag that she had later recovered from the backseat.
Other witnesses presented were the investigating police
officer, the medico-legal officer who had performed the autopsy, and
Atty. Jose S. Diloy, the lawyer who had assisted Araneta in executing a
sworn statement pointing to Nugas, his own uncle, as the person who
had stabbed the driver of the vehicle they were riding on March 26,
1997.
The State adduced object and documentary evidence,
including the knife, the maroon plastic bag and all its contents, Medico
Legal Report No. M-0406-97,[12] and the sworn statement of Araneta.[13]

Evidence of Nugas
Albeit admitting having stabbed Glen, Nugas maintained that
he did so in self-defense. He claimed that the Tamaraw FX driven by
Glen was a passenger taxi, not a family vehicle; that when he and
Araneta boarded the vehicle at Gate 1 in COGEO, Antipolo, about four
other passengers were already on board; that he argued with Glen
about the fare, because Glen was overcharging; that when he was
about to alight in front of Rempson Supermarket, Glen punched him
and leaned forward as if to get something from his clutch bag that was
on the dashboard; that thinking that Glen was reaching for a gun inside
the clutch bag, he stabbed Glen with his left hand from where he was
seated in order to protect himself (Inunahan ko na sya); and that when
asked why he carried a knife, he replied that he needed the knife for
protection because he was living in a squatters area.

Ruling of the CA
Upon review,[15] the CA affirmed the factual and legal conclusions of the
RTC, and declared that Nugas invoking of self-defense shifted the
burden to him to prove the attendance of the elements of self-defense,
but he failed to discharge such burden.
Issue
Nugas has now come to the Court to reverse his conviction, and begs
us to delve into whether the affirmance by the CA was proper, and
whether the attendant circumstance of treachery was duly proven.
Ruling

Ruling of the RTC

The appeal has no merit.

On August 17, 2000, the RTC convicted Nugas of murder, ruling that his
guilt had been established beyond reasonable doubt.

By pleading self-defense, an accused admits the killing, [16] and thereby

assumes the burden to establish his plea of self-defense by credible,
clear and convincing evidence; otherwise, his conviction will follow
from his admission of killing the victim. Self-defense cannot be
justifiably appreciated when it is uncorroborated by independent and
competent evidence or when it is extremely doubtful by itself. Indeed,
the accused must discharge the burden of proof by relying on the
strength of his own evidence, not on the weakness of the States
evidence,[17] because the existence of self-defense is a separate issue
from the existence of the crime, and establishing self-defense does not
require or involve the negation of any of the elements of the offense
itself.[18]
To escape liability, the accused must show by sufficient,
satisfactory and convincing evidence that: (a) the victim committed
unlawful aggression amounting to an actual or imminent threat to the
life and limb of the accused claiming self-defense; (b) there was
reasonable necessity in the means employed to prevent or repel the
unlawful aggression; and (c) there was lack of sufficient provocation on
the part of the accused claiming self-defense or at least any
provocation executed by the accused claiming self-defense was not the
proximate and immediate cause of the victims aggression.[19]

The RTC accorded greater credence to the testimony of Nila

because she had consistently narrated the incident. It observed that
although Nila had initially made a mistake in identifying who, as
between Nugas and Araneta, had stabbed her husband, she had
rectified her error upon seeing the two accused together in person; that
despite the resemblance of Nugas and Araneta to each other, she had
firmly pointed to Nugas as the person who had stabbed Glen; that even
granting to be true Nugas version that Glen had pushed and punched
him, his stabbing of Glen could not be a reasonable and necessary
means to repel the attack, for, by all standards, fists were no match to
knives; that treachery had been duly proved beyond reasonable doubt,
because Nugas position inside the vehicle in relation to Glen, who had
sat on the drivers seat, and Nugas manner of inflicting the fatal blow
from behind warranted the inference that Nugas had taken advantage
of his position to specially ensure the execution of the felony, without
risk to himself arising from any defense that Glen might make.
The RTC disposed thusly:
WHEREFORE, premises considered, accused
MELANIO NUGAS is hereby found guilty beyond
reasonable doubt and is hereby sentenced to suffer
the penalty of Reclusion Perpetua.
Nugas is hereby further ordered to pay to
heirs of Glen Remigio the amount of P80,000.00 for
actual damages, P50,000.00 for funeral expenses
and P50,000 as death indemnity.
SO ORDERED.[14]

The RTC found that Nugas did not establish the requisites of
self-defense. The CA concurred.
The Court upholds both lower courts.
Unlawful aggression on the part of the victim is the primordial
element of the justifying circumstance of self-defense. Without unlawful
aggression, there can be no justified killing in defense of oneself. [20] The
test for the presence of unlawful aggression under the circumstances is
whether the aggression from the victim put in real peril the life or
personal safety of the person defending himself; the peril must not be
an imagined or imaginary threat.[21] Accordingly, the accused must
establish the concurrence of three elements of unlawful aggression,

namely: (a) there must be a physical or material attack or assault; ( b)

the attack or assault must be actual, or, at least, imminent; and ( c) the
attack or assault must be unlawful.[22]
Unlawful aggression is of two kinds: (a) actual or material
unlawful aggression; and (b) imminent unlawful aggression. Actual or
material unlawful aggression means an attack with physical force or
with a weapon, an offensive act that positively determines the intent of
the aggressor to cause the injury. Imminent unlawful aggression means
an attack that is impending or at the point of happening; it must not
consist in a mere threatening attitude, nor must it be merely
imaginary, but must be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a knife and making
a motion as if to attack). Imminent unlawful aggression must not be a
mere threatening attitude of the victim, such as pressing his right hand
to his hip where a revolver was holstered, accompanied by an angry
countenance, or like aiming to throw a pot. [23]
Nugas did not credibly establish that Glen had first punched
him and then reached for his clutch bag on the dashboard, making
Nugas believe that he had a gun there. For one, as the CA pointed out,
Nugas admitted not actually seeing if Glen had a gun in his clutch bag.
[24]
And, secondly, the CA correctly found and declared Nugas testimony
about Glen punching him to be improbable, viz:[25]
It is also highly improbable that the victim,
in relation to accused-appellant Nugas position, can
launch an attack against the latter. First, the victim
was at the drivers seat and seated between him were
his wife and two children. Second, the victim was
driving the FX vehicle. Third, accused-appellant
Nugas was seated directly behind the victim. All
things considered, it is highly improbable, nay risky
for the victims family, for him to launch an attack.

Consequently, Nugas had absolutely no basis for pleading selfdefense because he had not been subjected to either actual or
imminent threat to his life. He had nothing to prevent or to repel
considering that Glen committed no unlawful aggression towards him.
With unlawful aggression, the indispensable foundation of selfdefense, not having been established by Nugas, it is superfluous to still
determine whether the remaining requisites of self-defense were
attendant. As the Court made clear in People v. Carrero:[26]
Unlawful aggression is the main and
most essential element to support the theory
of self-defense and the complete or incomplete
exemption from criminal liability; without such
primal requisite it is not possible to maintain
that a person acted in self-defense within the
terms under which unlawful aggression is
subordinate to the other two conditions named
in article 8, No. 4, of the Penal Code.[27] When an
act of aggression is in response to an insult, affront,
or threat, it cannot be considered as a defense but as

the punishment which the injured party inflicts on the

author of the provocation, and in such a case the
courts can at most consider it as a mitigating
circumstance, but never as a reason for exemption,
except in violation of the provisions of the Penal
Code. (emphasis supplied)
Treachery is present when two conditions concur, namely: (a)
that the means, methods and forms of execution employed gave the
person attacked no opportunity to defend himself or to retaliate; and
(b) that such means, methods and forms of execution were deliberately
and consciously adopted by the accused without danger to his person.
[28]

The essence of treachery lies in the attack that comes without

warning, and the attack is swift, deliberate and unexpected, and
affords the hapless, unarmed and unsuspecting victim no chance to
resist or escape, thereby ensuring its accomplishment without the risk
to the aggressor, without the slightest provocation on the part of the
victim. What is decisive is that the execution of the attack made it
impossible for the victim to defend himself or to retaliate. Treachery
may also be appreciated when the victim, although warned of the
danger to his life, is defenseless and unable to flee at the time of the
infliction of the coup de grace.[29]
The CA exhaustively discussed and rightly determined the
presence of treachery as a circumstance attendant in the killing of Glen
and the improbability of Glen launching an attack against or defending
himself from Nugas by reason of their relative positions. We affirm the
CA, because there was nothing adduced by Nugas that refuted how the
relative positions of Glen and Nugas had left the former defenseless
and unable to parry or to avoid the fatal blow of the latter. Verily,
Nugas stabbed Glen from behind with suddenness, thereby deliberately
ensuring the execution of the killing without any risk to himself from
any defense that Glen might make.
WHEREFORE, we AFFIRM the decision promulgated on
March 8, 2006 finding MELANIO NUGAS y MAPAIT guilty beyond
reasonable doubt of the crime of murder.

PEOPLE OF THE PHILIPPINES,

Respondent.

x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:

Every circumstance favoring the accuseds

innocence must be duly taken into account. The
proof against the accused must survive the test of
reason. Strongest suspicion must not be permitted to
sway judgment. The conscience must be satisfied
that on the accused could be laid the responsibility
for the offense charged. If the prosecution fails to
discharge the burden, then it is not only the
accuseds right to be freed; it is, even more, the
courts constitutional duty to acquit him.[1]
This treats of the Motion for Reconsideration of Our Resolution dated
August 25, 2010, affirming the July 20, 2009 Decision [2] of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 30907 entitled People of the
Philippines v. SPO2 Lolito T. Nacnac. The CA affirmed the May 23, 2007
Judgment[3] in Criminal Case No. 10750-14 of the Regional Trial Court
(RTC), Branch 14 in Laoag City, which convicted petitioner of homicide.
The Facts
An Information charged the accused as follows:

The accused shall pay the costs of suit.

SO ORDERED.

SPO2 LOLITO T. NACNAC,

Petitioner,

G.R. No. 191913

That on or about February 20, 2003, in Dingras, Ilocos

Norte, and within the jurisdiction of this Honorable
Court, accused SPO2 Lolito I. Nacnac, a public officer,
being then a member of the Philippine National
Police, assigned with the Dingras Police Station,
Dingras, Ilocos Norte, did then and there willfully,
unlawfully and feloniously, with intent to kill, shoot
one SPO1 Doddie Espejo with a gun resulting into the
latters death.[4]

- versus Promulgated:
March 21, 2012

A reverse trial ensued upon the claim of self-defense by the

accused. As summarized by CA, [5] the shooting incident happened as
follows:

The victim, SPO1 Doddie Espejo[,] had a history of

violent aggression and drunkenness. He once
attacked a former superior, P/Insp. Laurel Gayya, for
no apparent reason. On the day of his death, he
visited a cock house for merriment. He was shot by
accused-appellant [petitioner] on February 20, 2003
at around 10:00 p.m. at the Dingras Police Station,
Dingras, Ilocos Norte.
On that fateful night of February 20, 2003, accusedappellant, the victim and a number of other police
officers were on duty. Their shift started at 8:00 in the
morning of the same day, to end at 8:00 the next
morning. Accused-appellant, being the highest
ranking officer during the shift, was designated the
officer-of-the-day. Shortly before 10:00 in the
evening, the victim, together with then SPO1 Eduardo
Basilio, took the patrol tricycle from the station
grounds. When accused-appellant saw this, he
stopped the victim and his colleague from using the
tricycle. The victim told accused-appellant that he
(the victim) needed it to go to Laoag City to settle a
previous disagreement with a security of a local bar.
Accused-appellant still refused. He told the victim
that he is needed at the station and, at any rate, he
should stay at the station because he was drunk. This
was not received well by the victim. He told accusedappellant in Ilocano: Iyot ni inam kapi (Coitus of your
mother, cousin!). The victim alighted from the
tricycle. SPO1 Eduardo Basilio did the same, went
inside the office, and left the accused-appellant and
the victim alone. The victim took a few steps and
drew his .45 caliber gun which was tucked in a
holster on the right side of his chest. Accusedappellant then fired his M-16 armalite upward as a
warning shot. Undaunted, the victim still drew his
gun. Accused-appellant then shot the victim on the
head, which caused the latters instantaneous death.
Accused-appellant later surrendered to the stations
Chief of Police.

The RTC Ruling

The RTC found the accused guilty of the crime charged. The RTC held
that the claim of self-defense by the accused was unavailing due to the
absence of unlawful aggression on the part of the victim. The
dispositive portion of the RTC Judgment reads:

WHEREFORE, the accused SPO2 Lolito

Nacnac is found GUILTY beyond reasonable doubt of

the crime of homicide. Taking into account the

mitigating circumstance of voluntary surrender, the
Court hereby sentences him to an indeterminate
penalty ranging from EIGHT YEARS of prision mayor
as minimum to FOURTEEN YEARS of reclusion
temporal as maximum. He is also ordered to pay the
heirs of the deceased (1) P50,000.00 as indemnity for
his death, (2) P100,000.00 as actual damages, (3)
P50,000.00 as moral damages, and (4) P20,000.00 as
attorneys fees. Costs against the accused.[6]

The CA Ruling
On appeal, the CA affirmed the findings of the RTC. It held that the
essential and primary element of unlawful aggression was lacking. It
gave credence to the finding of the trial court that no one else saw the
victim drawing his weapon and pointing it at accused Senior Police
Officer 2 (SPO2) Lolito T. Nacnac. The fallo of the CA Decision reads:
WHEREFORE, the instant appeal is DISMISSED for
lack of merit and the challenged Judgment dated May
23, 2007 in Criminal Case No. 10750-14 is AFFIRMED
IN TOTO.[7]

On August 25, 2010, this Court issued a Resolution, denying Nacnacs

petition for review for failure to sufficiently show that the CA committed
any reversible error in the challenged decision and resolution as to
warrant the exercise of this Courts appellate jurisdiction.
On October 11, 2010, petitioner filed a Motion for Reconsideration of
this Courts Resolution dated August 25, 2010. On March 21, 2012, this
Court granted the Motion and reinstated the petition. Petitioner raises
the following issues:
1. [Whether the CA erroneously held that] the victims
drawing of his handgun or pointing it at the petitioner
is not sufficient to constitute unlawful aggression
based on existing jurisprudence.
2. [Whether the CA incorrectly appreciated the photo]
showing the victim holding his handgun in a peculiar
manner despite the fact that no expert witness was
presented to testify thereto x x x.
3. [Whether petitioner] has met the second and third
requisites of self-defense x x x.[8]
Petitioner argues that he did not receive a just and fair judgment based
on the following: (1) the trial court did not resort to expert testimony
and wrongly interpreted a photograph; (2) the trial court ignored the
evidence proving unlawful aggression by the victim; (3) the trial court
ignored the two gun reports and two empty shells found at the crime
scene which support the claim that petitioner fired a warning shot; and

(4) the trial court failed to appreciate petitioners act of self-defense.

Petitioner also claims that the CA gravely erred in not giving proper
weight and due consideration to the Comment of the Office of the
Solicitor General (OSG).
In its Comment[9] dated April 27, 2011, the OSG avers that petitioner is
entitled to an acquittal, or at the very least, not one but two mitigating
circumstances.
Our Ruling
We revisit Our ruling in the instant case.
The Revised Penal Code provides the requisites for a valid self-defense
claim:
ART.
11.
Justifying
circumstances.The
following do not incur any criminal liability:
1. Anyone who acts in defense of his person
or rights, provided that the following circumstances
concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means
employed to prevent or repel it;
Third. Lack of sufficient provocation on the
part of the person defending himself.

Unlawful Aggression
Unlawful aggression is an indispensable element of self-defense. We
explained, Without unlawful aggression, self-defense will not have a leg
to stand on and this justifying circumstance cannot and will not be
appreciated, even if the other elements are present. [10] It would
presuppose an actual, sudden and unexpected attack or imminent
danger on the life and limb of a personnot a mere threatening or
intimidating attitudebut most importantly, at the time the defensive
action was taken against the aggressor. x x x There is aggression in
contemplation of the law only when the one attacked faces real and
immediate threat to ones life. The peril sought to be avoided must be
imminent and actual, not just speculative. [11]
As We held:
Even the cocking of a rifle without aiming the firearm
at any particular target is not sufficient to conclude
that ones life was in imminent danger. Hence, a
threat, even if made with a weapon, or the belief that
a person was about to be attacked, is not sufficient. It
is necessary that the intent be ostensibly revealed by
an act of aggression or by some external acts
showing the commencement of actual and material

unlawful aggression.[12]
The following exchange showing actual and material unlawful
aggression transpired during the examination of petitioner:[13]
Atty. Lazo: At any rate, when you again prevented
them from getting the tricycle telling them
again that they should not get the tricycle,
what happened next?
Accused: When police officer Basilio alighted from the
tricycle SPO1 Espejo also alighted sir.
Q What did Doddie Espejo do when he alighted from
the tricycle?
A I saw him hold his firearm tucked on his right waist.
(witness demonstrating by placing his right
hand at his right sideways). And he was left
handed, sir.

squeezed the trigger of your gun the cal. 45

was already pointed at you?
A Yes, sir.
Q Did you ever observe if he squeezed the trigger but
the gun [was] already pointed at you?
A He just pointed his firearm at me, sir.
Q Who first pointed his firearm, the victim pointed his
firearm at you before you pointed your
firearm at him?
A The victim, sir.
Q In short, it was the victim whose gun was
first pointed at you?
A Yes, sir.

Q And what happened next?

Q And that was the time when you raised your

armalite and also pointed the same at him is
that right?

A When I saw him holding his firearm that was the

time I fired a warning shot, sir.

A Yes, that was the time that I shot him, sir.

(Emphasis supplied.)

Q And when you fired [a] warning shot, what

happened next?
A He drew his firearm, sir.
Q When he drew his firearm, what did you do?
A When he drew his firearm I shot him [on] his head
once, sir.
xxxx

According to the trial court, petitioners claim that the victim pointed his
gun at petitioner was a mere afterthought. It ruled that petitioners
sworn statement and direct testimony as well as the testimonies of
SPO1 Eduardo Basilio and SPO2 Roosevelt Ballesteros only established
that the victim drew his gun. The trial court went on to differentiate the
act of drawing a gun and pointing it at a target. It held that the mere
act of drawing a gun cannot be considered unlawful aggression. In
denying petitioners motion for reconsideration, the CA affirmed the trial
courts findings and further held that petitioner had fuller control of his
physical and mental faculties in view of the victims drunken state. It
concluded that the likelihood of the victim committing unlawful
aggression in his inebriated state was very slim.[14]

Atty. Cajigal:
Q By the way, what kind of firearm did the victim
draw from his waist?
A Cal. 45, sir.
Q What firearm did you use in defending yourself?
A M-16 armalite, sir.
xxxx
Q Alright, you mean to tell the Honorable Court then
that at the time that you pointed or

We disagree. The characterization as a mere afterthought of petitioners

testimony on the presence of unlawful aggression is not supported by
the records.
The following circumstances negate a conviction for the killing of the
victim:
(1) The drunken state of the victim;
(2) The victim was also a police officer who was professionally
trained at shooting;
(3) The warning shot fired by petitioner was ignored by the
victim;
(4) A lawful order by petitioner was ignored by the victim; and
(5) The victim was known for his combative and drunken
behavior.

As testified by the victims companion, SPO1 Basilio, petitioner ordered

him and the victim not to leave because they were on duty. SPO1
Basilio also confirmed that the victim was inebriated and had uttered
invectives in response to petitioners lawful order.[15]
Ordinarily, as pointed out by the lower court, there is a difference
between the act of drawing ones gun and the act of pointing ones gun
at a target. The former cannot be said to be unlawful aggression on the
part of the victim. In People v. Borreros,[16] We ruled that for unlawful
aggression to be attendant, there must be a real danger to life or
personal safety. Unlawful aggression requires an actual, sudden and
unexpected attack, or imminent danger thereof, and not merely a
threatening or intimidating attitude x x x. Here, the act of the
[deceased] of allegedly drawing a gun from his waist cannot be
categorized as unlawful aggression. Such act did not put in real peril
the life or personal safety of appellant.
The facts surrounding the instant case must, however, be differentiated
from current jurisprudence on unlawful aggression. The victim here was
a trained police officer. He was inebriated and had disobeyed a lawful
order in order to settle a score with someone using a police vehicle. A
warning shot fired by a fellow police officer, his superior, was left
unheeded as he reached for his own firearm and pointed it at
petitioner. Petitioner was, therefore, justified in defending himself from
an inebriated and disobedient colleague.Even if We were to disbelieve
the claim that the victim pointed his firearm at petitioner, there would
still be a finding of unlawful aggression on the part of the victim. We
quote with approval the OSGs argument[17] on this point:
A police officer is trained to shoot quickly and
accurately. A police officer cannot earn his badge
unless he can prove to his trainors that he can shoot
out of the holster quickly and accurately x x x. Given
this factual backdrop, there is reasonable basis to
presume that the appellant indeed felt his life was
actually threatened. Facing an armed police officer
like himself, who at that time, was standing a mere
five meters from the appellant, the [latter] knew that
he has to be quick on the draw. It is worth
emphasizing that the victim, being a policeman
himself, is presumed to be quick in firing.
Hence, it now becomes reasonably certain that in this
specific case, it would have been fatal for the
appellant to have waited for SPO1 Espejo to point his
gun before the appellant fires back.
Reasonable Means Employed
To successfully invoke self-defense, another requisite is that the means
employed by the accused must be reasonably commensurate to the
nature and the extent of the attack sought to be averted. [18]
Supporting petitioners claim of self-defense is the lone gunshot wound
suffered by the victim. The nature and number of wounds inflicted by
the accused are constantly and unremittingly considered as important
indicia.[19] In People v. Catbagan,[20] We aptly held:

SO ORDERED.
The means employed by the person invoking selfdefense is reasonable if equivalent to the means of
attack used by the original aggressor. Whether or not
the means of self-defense is reasonable depends
upon the nature or quality of the weapon, the
physical condition, the character, the size and other
circumstances of the aggressor; as well as those of
the person who invokes self-defense; and also the
place and the occasion of the assault.

G.R. No. 202847

accused-appellant that his wife was being unfaithful. The unsolicited

information irked the accused-appellant.
October 23, 2013

PEOPLE
OF
THE
PHILIPPINES,
Plaintiff-Appellee,
vs.
ANTERO GAMEZ y BALTAZAR, Accused-Appellant.
RESOLUTION
REYES, J.:

In the instant case, the lone wound inflicted on the victim supports the
argument that petitioner feared for his life and only shot the victim to
defend himself. The lone gunshot was a reasonable means chosen by
petitioner in defending himself in view of the proximity of the armed
victim, his drunken state, disobedience of an unlawful order, and failure
to stand down despite a warning shot.

For review1 is the Decision2 dated May 25, 2011 of the Court of Appeals
CA) in CA-G.R. CR-H.C. No. 00671 which affirmed the Judgment 3 dated
May 9, 2006 of the Regional Trial Court RTC) of Burauen, Leyte, Branch
15 convicting and sentencing accused-appellant Antero Gamez y
Baltazar accused-appellant) to reclusion perpetua for the crime of
parricide.

Lack of Sufficient Provocation

The last requisite for self-defense to be appreciated is lack of
sufficient provocation on the part of the person defending himself or
herself. As gleaned from the findings of the trial court, petitioner gave
the victim a lawful order and fired a warning shot before shooting the
armed and drunk victim. Absent from the shooting incident was any
evidence on petitioner sufficiently provoking the victim prior to the
shooting.
All told, We are convinced that petitioner was only defending himself
on the night he shot his fellow police officer. The rule is that factual
findings of the trial court and its evaluation of the credibility of
witnesses and their testimonies are entitled to great respect and will
not be disturbed on appeal. [21] This rule is binding except where the
trial court has overlooked, misapprehended, or misapplied any fact or
circumstance of weight and substance. [22] As earlier pointed out, the
trial court did not consider certain facts and circumstances that
materially affect the outcome of the instant case. We must, therefore,
acquit petitioner.
Given the peculiar circumstances of this case, We find that the
prosecution was unable to establish beyond reasonable doubt the guilt
of petitioner. Even the OSG shares this view in its Comment appealing
for his acquittal.
WHEREFORE, petitioners Motion for Reconsideration is GRANTED.
The CA Decision dated July 20, 2009 in CA-G.R. CR-H.C. No. 30907 is
REVERSED and SET ASIDE. Petitioner SPO2 Lolito T. Nacnac is
ACQUITTED of homicide on reasonable doubt.
The Director of the Bureau of Prisons is ordered to
immediately RELEASE petitioner from custody, unless he is being held
for some other lawful cause, and to INFORMthis Court within five (5)
days from receipt of this Decision of the date petitioner was actually
released from confinement.

On August 21, 2004, the accused-appellant had a drinking spree in his

house at Barangay Gamay, Burauen, Leyte, with his two brothers,
Nicolas and Cornelio from 12 noon until 3:00 p.m. As he was about to
go out of the kitchen door, the accused-appellant saw Apolinario
standing at the doorway with a long bolo. Apolinario appeared to be
drunk.

The Facts
Accused-appellant was accused of killing his own father, Apolinario
Gamez (Apolinario) through an Information articulating the following
criminal charges, viz:
That on or about the 21st day of August, 2004, in the Municipality of
Burauen, Province of Leyte, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill and
with treachery, did then and there willfully, unlawfully and feloniously
attack, assault, hack and wound one APOLINARIO GAMEZ y AMORILLO,
his father, with the use of a long bladed weapon (sundang) and sickle
(sarad) which the accused provided himself for the purpose, thereby
hitting and inflicting upon Apolinario Gamez y Amorillo multiple hacking
and incised wounds on the different parts of his body which were the
direct and approximate cause of his death.
CONTRARY TO LAW.4
When arraigned, he entered a "Not Guilty" plea. He thereafter desired
to amend his plea to "Guilty" during the pre-trial conference held on
September 26, 2005 but the RTC denied the said plea bargaining. In
view however of the accused-appellants invocation of self-defense, an
inverted trial scheme ensued.5
Through the testimonies of the accused-appellant himself, Dr. Irene
Astilla Dacut, his attending physician, and eyewitness Bienvenido
Buhalog, the defense narrated the events that culminated into the
encounter that claimed Apolinarios life.6
The accused-appellant and 69-year old Apolinario had a less than ideal
father and son relationship with the former claiming that the latter did
not treat him well when he was a child. Their relationship got more
strained when Apolinario meddled with the accused-appellants
personal relationship with his wife. Apolinario apparently told the

To prevent any commotion, Nicolas held Apolinario but he was able to

free himself from his sons grip. The accused-appellant then spoke to
Apolinario: " I think that you are looking for me and I believe it is since
last night ." An argument ensued between them. In order not to
prolong the spat, the accused-appellant and his brothers took their
father to his nipa hut about 500 meters away. But before the accusedappellant could leave, he got into another argument with Apolinario.
The accused-appellant then set out to the place where he gathered
tuba while his brothers went back to his house. After gathering tuba
and tethering his carabao, the accused-appellant proceeded home. He
met Apolinario along a pathway. With no one to pacify them, they
decided to resume their quarrel.
The accused-appellant first remarked: "Father, what are the words that
you uttered?" to which Apolinario responded, "It is better if one of us
will perish." Apolinario then instantaneously hacked the accusedappellant with a long bolo hitting him twice on the head for which he
sustained a 5-centimeter long and scalp-deep incised wound with
fracture of the underlying bone and another 5-cm long incised wound
on the frontal right portion of his head.
The accused-appellant fell to his knees as Apolinario delivered another
blow which the former was able to parry by raising his left arm. The
accused-appellant was wounded on the left 3rd interdigital space
posterior to his palm.
The accused-appellant then held Apolinarios hands, grabbed the bolo
and used the same to hack the latter several times, the count of which
escaped the accused-appellants consciousness as he was already
dizzy. The accused-appellant thereafter left the scene and went home.
His brother brought him to the hospital upon seeing that his head was
teeming with blood. He was hospitalized for six (6) days before he was
taken to the municipal hall by the police officers.
The rebuttal evidence for the prosecution, on the other hand,
principally consisted of the testimony of Maura Anadia (Maura),
Apolinarios daughter and the accused-appellants sister. According to
Maura, at around 4:30 p.m. of August 21, 2004, she was with her father
at their house located at Barangay Gamay, Burauen, Leyte when his
elder brother, the accused-appellant, arrived. He was carrying a long
bolo and a scythe was tucked on his waist.
He approached her and said: "Will you join the killing spree today
including your child that you are carrying? "before turning to Apolinario
with this query: "What are the stories that you were talking?"

Frightened, Maura ran away and hid at a grassy portion near the house.
She then saw her father flee but the accused-appellant gave him a
chase. Apolinario was able to run for about 20 m before the accusedappellant was able to catch up.
The accused-appellant then hacked the unarmed Apolinario on the
right side of his head using the bolo. Apolinario fell down and the
accused-appellant finished him off by slashing his neck with the scythe.
Maura thereafter left to report the incident to the police.
The autopsy conducted on Apolinarios cadaver by Dr. Leonita Azores,
MD,7 showed that he sustained two (2) fatal wounds one of which
almost decapitated his head while the other hit the parietal aspect
thereof exposing the skin and connective tissue. Apolinario also
obtained two (2) incised wounds on his neck and left forearm and two
(2) lacerations on his fingers. He perished at the crime scene. 8
Ruling of the RTC
In its Judgment9 dated May 9, 2006, the RTC found that both the
prosecution and the defense deliberately withheld vital details of the
incident. The prosecution did not reveal that the initial unlawful
aggression was committed by Apolinario who, based on medical
records, hacked the accused-appellant in the parietal area of his head.
The defense, on the other hand, concealed that accused-appellant
pursued the victim after the latter fled. These findings completed the
sequence of the incident and revealed that the accused-appellants
claim of self-defense is unmeritorious.
The RTC held that when accused-appellant hacked and killed
Apolinario, the unlawful aggression which the latter initially perpetrated
has already ceased because he has already ran away for 20 m. Hence,
accused-appellants act was not self-defense but rather one of
retaliation which, in turn, props up the conclusion that he intentionally
killed his father. The decretal portion of the RTC decision thus reads:
WHEREFORE, premises considered, this Court finds the accused
ANTERO GAMEZ y Baltazar GUILTY BEYOND REASONABLE DOUBT of the
crime of Parricide penalized under Art. 246 of the Revised Penal Code
and considering the presence of one (1) mitigating circumstance
without any aggravating to offset it, hereby sentences him to suffer
imprisonment of RECLUSION PERPETUA; to pay the Heirs of Apolinario
Gamez Php50,000.00 as civil indemnity for his death and to pay the
costs of this suit.
The accused who underwent preventive imprisonment since August 21,
2004 shall be credited with the full time during which he was deprived
of his liberty if he agreed voluntarily and in writing to abide by the
same disciplinary rules imposed upon convicted prisoners, otherwise,
he will be entitled to only four-fifths (4/5) thereof. 10
Ruling of the CA
The CA adopted the RTCs findings and similarly concluded that the
accused-appellant put up retaliation and not self-defense because the
aggression proffered by the victim has already ended when the

accused-appellant attacked him. From the time Apolinario ran away

and was disarmed by the accused-appellant, the aggression originally
heaved by the former has ceased. Hence, when the accused-appellant
chased and hacked Apolinario several times, self-defense can no longer
be invoked. The CA affirmed the conviction and sentence rendered by
the RTC as well as the award of civil indemnity but an additional award
of moral damages was granted for Apolinarios heirs. The CA Decision 11
dated May 25, 2011 disposed thus:

Self-defense, when invoked, as a justifying circumstance implies the

admission by the accused that he committed the criminal act. 14
Generally, the burden lies upon the prosecution to prove the guilt of
the accused beyond reasonable doubt rather than upon the accused
that he was in fact innocent. However, if the accused admits killing the
victim, but pleads self-defense, the burden of evidence is shifted to him
to prove such defense by clear, satisfactory and convincing evidence
that excludes any vestige of criminal aggression on his part.15

WHEREFORE, in view of the foregoing premises, the assailed May 9,

2006 Decision of the Regional Trial Court of Burauen, Leyte, Branch 15,
in CRIM. CASE NO. Bn-05-03-4125, is hereby AFFIRMED with
modification. Aside from the civil indemnity already awarded, the
accused is also hereby directed to pay the heirs of Apolinario Gamez
the amount of Php50,000.00 as moral damages in accordance with the
recent jurisprudence.

In order to escape criminal liability, it becomes incumbent upon the

accused to prove by clear and convincing evidence the concurrence of
the following requisites under the second paragraph of Article 11 of the
Revised Penal Code, viz: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) lack of
sufficient provocation on the part of the person defending himself. 16

No pronouncement as to cost.
SO ORDERED.12
The accused-appellant manifested before the Court that in the present
review, he is adopting the arguments contained in his Brief filed before
the CA whereby he argued that his guilt for the crime of parricide was
not proved beyond reasonable doubt and that the trial court erred in
ruling that he failed to prove self-defense.
The Courts Ruling
The Court affirms the accused-appellants conviction.
The arguments proffered by the accused-appellant essentially attack
the evaluation by the trial court of the testimony of the prosecutions
principal witness, Maura, and its ruling that the same satisfactorily
repudiate his claim of self-defense.
This Court has consistently adhered to the rule that the matter of
assigning values to declarations on the witness stand is best and most
competently performed by the trial judge, who had the unmatched
opportunity to observe the witnesses and to assess their credibility by
the various indicia available but not reflected on the record. Hence, the
corollary principle that absent any showing that the trial court
overlooked substantial facts and circumstances that would affect the
final disposition of the case, appellate courts are bound to give due
deference and respect to its evaluation of the credibility of an
eyewitness and his testimony as well as its probative value amidst the
rest of the other evidence on record.13
We see no compelling reason to depart from the foregoing tenets
especially in view of the accused-appellants failure to identify
significant details, which if considered, will alter the outcome of the
trial courts judgment and the affirmation accorded it by the CA. At any
rate, an examination of the records at hand shows that the factual
basis of accused-appellants plea of self-defense cannot relieve him
from criminal liability.

Unlawful aggression is a condition sine qua non for the justifying

circumstance of self-defense. Without it, there can be no self-defense,
whether complete or incomplete, that can validly be invoked. 17 "There
is an unlawful aggression on the part of the victim when he puts in
actual or imminent danger the life, limb, or right of the person invoking
self-defense. There must be actual physical force or actual use of a
weapon."18 It is present only when the one attacked faces real and
immediate threat to ones life. It must be continuous; otherwise, it does
not constitute aggression warranting self-defense. 19
Here, the accused-appellant, miserably failed to discharge his burden
of proving that unlawful aggression justifying self-defense was present
when he killed Apolinario.
The aggression initially staged by Apolinario was not of the continuous
kind as it was no longer present when the accused-appellant injured
Apolinario. As testified by the accused-appellant himself, he was able
to grab the bolo from Apolinario. From that point on, the aggression
initially staged by Apolinario ceased to exist and the perceived threat
to the accused-appellants life was no longer attendant.
Hence, the accused-appellant was no longer acting in self-defense,
when he, despite having already disarmed Apolinario, ran after the
latter for about 20 m and then stabbed him. The accused-appellants
claim of self-defense is further negated by the fatal incision on
Apolinarios neck that almost decapitated his head, a physical evidence
which corroborates Mauras testimony that after stabbing Apolinario
with the bolo, the accused-appellant pulled out the scythe on his waist
and used the same to slash Apolinarios neck. The use of a weapon
different from that seized from the victim and the nature of the injury
inflicted show the accused-appellants determined resolve to kill
Apolinario.
When unlawful aggression ceases, the defender no longer has any
justification to kill or wound the original aggressor. The assailant is no
longer acting in self-defense but in retaliation against the original
aggressor. Retaliation is not the same as self-defense. In retaliation, the
aggression that was begun by the injured party already ceased when
the accused attacked him; while in self-defense the aggression still
existed when the aggressor was injured by the accused.20

The CA was thus correct in upholding the findings and conclusions of

the RTC, thus:
Although, it is supported by the medical report, that the accusedappellant was indeed initially attacked by the victim, the act of the
accused-appellant of going after the victim, who was already running
away from the accused-appellant after the latter has gained possession
of the weapon, is anathema to the self-defense theory invoked by the
accused appellant.
xxxx
In the instant case, the trial court gave credence to the testimony of
the prosecution witness that the victim tried to run away from the
accused-appellant but the accused-appellant ran after him. When the
accused-appellant was able to overtake the victim, the latter was
hacked on the right side of his head. To finish him off, the accusedappellant slashed the victims neck with the use of a scythe until the
victim (his own father) died. Thus, assuming arguendo that the father
was indeed the first aggressor, the aggression ceased the moment the
accused-appellant disarmed him and the victim tried to run away from
the accused-appellant. When the accused-appellant then continued to
chase his 69 year-old father and hacked several times the already
disarmed victim, self-defense can no longer be invoked. 21
In fine, there is no justifiable cause exempting the accused-appellant
from criminal liability and the courts a quo were correct in convicting
him for parricide.
Parricide is committed when: (1) a person is killed; (2) the deceased is
killed by the accused; and (3) the deceased is the father, mother, or
child, whether legitimate or illegitimate, or a legitimate other
ascendant or other descendant, or the legitimate spouse of the
accused.22 Here, it is an undisputed fact that Apolinario was the
accused-appellants father.

culpability of the accused for such death. 27 The award of P50,000.0028

as moral damages is likewise correct. Even in the absence of any
allegation and proof of the heirs emotional suffering, it has been
recognized that the loss of a loved one to a violent death brings
emotional pain and anguish.29
The Court finds that an award of exemplary damages in the amount of
P30,000.0030 is in order considering that the qualifying circumstance of
relationship is present in the crime of parricide. 31
Lastly, in conformity with current policy, we impose on all the monetary
awards for damages an interest at the legal rate of six percent (6%) per
annum from the date of finality of this judgment until fully paid.32
WHEREFORE, premises considered, the Decision dated May 25, 2011 of
the Court of Appeals in CA-G.R. CR-H.C. No. 00671 finding the accusedappellant, Antero Gamez y Baltazar, guilty beyond reasonable doubt of
the crime of Parricide, is hereby AFFIRMED WITH MODIFICATIONS.
Antero Gamez y Baltazar is sentenced to suffer the penalty of reclusion
perpetua without eligibility for parole and ordered to pay the heirs of
the victim, Apolinario Gamez, the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages and P30,000.00 as
exemplary damages. The award of damages shall earn legal interest at
the rate of six percent (6) per annum from the finality of this judgment
until fully paid.
SO ORDERED.
G.R. No. 189405, November 19, 2014
SHERWIN DELA CRUZ, Petitioner, v. PEOPLE OF THE PHILIPPINES
AND CARLOS ALBERTO L. GONZALES, IN BEHALF OF HIS
DECEASED
BROTHER,
JEFFREY
WERNHER
L.
GONZALES,Respondents.
DECISION

Under Article 246 of the Revised Penal, the crime of parricide is

punishable by reclusion perpetua to death.1wphi1 It must be noted
that the declaration of the RTC in its Judgment dated May 9, 2006 on
the presence of a mitigating circumstance is not supported by any
allegation or evidence on record. Nonetheless, in view of Republic Act
(R.A.) No. 934623 prohibiting the imposition of death penalty, the courts
a quo correctly sentenced the accused-appellant to reclusion
perpetua.24
It must be emphasized, however, that the accused-appellant shall not
be eligible for parole pursuant to Section 3 of R.A. No. 9346 which
states that "persons convicted of offenses punished with reclusion
perpetua , or whose sentences will be reduced to reclusion perpetua ,
by reason of this Act, shall not be eligible for parole under Act No.
4180, otherwise known as the Indeterminate Sentence Law, as
amended."25
The award of P50,000.00 as civil indemnity to the heirs of Apolinario is
proper and in line with current jurisprudence. 26 Civil indemnity is
mandatory upon proof of the fact of death of the victim and the

PERALTA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of
Court, seeking to annul and set aside the May 7, 2009 Decision 1 of the
Court of Appeals, in CA-G.R. CV No. 89257, finding petitioner Sherwin
Dela Cruz guilty beyond reasonable doubt of the crime of Homicide,
and its August 19, 2009 Resolution 2 denying his motion for
reconsideration.
Petitioner was charged with the crime of Homicide in an Information 3
dated March 2, 2005, which alleged:
That on or about the 1st day of January 2005, in the City of Makati,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill and with the use of an
unlicensed firearm, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot one JEFFREY WERNHER
GONZALES Y LIM on the head, thereby inflicting upon the latter serious
and moral gunshot wound which directly caused his death.

CONTRARY TO LAW.4

According to the prosecution, on January 1, 2005, at around 2:30 in the

afternoon, petitioner went to the office of Sykes Asia Inc. located at the
25th Floor of Robinson's Summit Center, Ayala Avenue, Makati City.
When petitioner was already inside the building, he went to the work
station of the deceased victim, Jeffrey Wernher L. Gonzales (Jeffrey),
who, by the configuration of the eyewitness Antonette Managbanag's
sketch, was seated fronting his computer terminal, with his back
towards the aisle. As petitioner approached Jeffrey from the back,
petitioner was already holding a gun pointed at the back of Jeffrey's
head. At the last second, Jeffrey managed to deflect the hand of
petitioner holding the gun, and a short struggle for the possession of
the gun ensued thereafter. Petitioner won the struggle and remained in
possession
of
the
said
gun.
Petitioner then pointed the gun at Jeffrey's face, pulled the trigger four
(4) times, the fourth shot finally discharging the bullet that hit Jeffrey in
the forehead, eventually killing him. Finally, after shooting Jeffrey,
petitioner
fled
the
office.
The

defense

recounted

different

version

of

the

facts.

Petitioner claimed that on January 1, 2005, at around 2:30 in the

afternoon, more or less, petitioner, together with his children, went to
Sykes Asia, the workplace of his wife, Darlene Dela Cruz (Darlene),
located at the 25th Floor of Robinson's Summit Building in Makati City,
to fetch the latter so that their family could spend time and celebrate
together
the
New
Year's
Day.
Before entering the Robinson's Summit Building, petitioner underwent
the regular security check-up/procedures. He was frisked by the
guards-on-duty manning the main entrance of said building and no
firearm was found in his possession. He registered his name at the
security
logbook
and
surrendered
a
valid
I.D.
Upon reaching the 25th Floor of the same building, a security guard
manning the entrance once again frisked petitioner and, likewise, found
no gun in his possession; hence, he was allowed to enter the premises
of Sykes Asia. The security guard also pointed to him the direction
towards
his
wife's
table.
However, as Darlene was then not on her table, petitioner approached
a certain man and asked the latter as to the possible whereabouts of
Darlene. The person whom petitioner had talked to was the deceasedvictim, Jeffrey. After casually introducing himself as the husband of
Darlene, Jeffrey curtly told him, "Bakit mo hinahanap si Darlene?" to
which he answered, "Nagpapasundo kasi sa akin." The response given
by Jeffrey shocked and appalled petitioner: "Ayaw na nga ng asawa mo
sayo
sinusundo
mo
pa!"
Shocked by the words and reaction of Jeffrey, petitioner tried to inquire
from Jeffrey who he was. But Jeffrey suddenly cursed petitioner. Then,
Jeffrey suddenly picked up something in his chair which happened to be
a gun and pointed the same at petitioner's face followed by a clicking
sound.
The
gun,
however,
did
not
fire.
Seeing imminent danger to his life, petitioner grappled with Jeffrey for
the possession of the gun. While grappling, the gun clicked for two (2)

to

three

(3)

more

times.

Again,

the

gun

did

not

fire.

Petitioner was able to wrest away the gun from Jeffrey and tried to run
away to avoid any further confrontation with the latter. However,
Jeffrey immediately blocked petitioner's path and shouted, "Guard!
Guard!" Immediately then, Jeffrey took hold of a big fire extinguisher,
aimed and was about to smash the same on petitioner's head.
Acting instinctively, petitioner parried the attack while still holding the
gun. While in the act of parrying, the gun accidentally fired due to the
reasonable force and contact that his parrying hand had made with the
fire extinguisher and the single bullet discharged hit the forehead of
Jeffrey, which caused the latter to fall on the floor and die.
Petitioner left the gun and went out of the premises of Sykes Asia and
proceeded towards the elevator. On his way to the elevator, he heard
Darlene shout, "Sherwin anong nangyari? ", but he was not able to
answer.
After said incident, Darlene abandoned petitioner and brought with her
their two (2) young children. Petitioner later learned that Darlene and
Jeffrey had an illicit relationship when he received a copy of the blog of
Darlene,
dated
January
30,
2005,
sent
by
his
friend.
During his arraignment, on August 22, 2005, petitioner, with the
assistance of counsel, pleaded "Not Guilty" to the charge. Thereafter,
pre-trial conference was conducted on even date and trial on the
merits
ensued
thereafter.
During the trial of the case, the prosecution presented the oral
testimonies of Marie Antonette Managbanag (Managbanag), Maria
Angelina Pelaez (Pelaez) and Carlos Alberto Lim Gonzales (Gomales),
respectively. The prosecution likewise formally offered several pieces of
documentary
evidence
to
support
its
claim.
For its part, the defense presented as witnesses, petitioner himself; his
brother, Simeon Sander Dela Cruz III (Cruz), Greg Lasmarias
Elbanvuena (Elbanvuena) and Managbanag, who was recalled to the
witness
stand
as
witness
for
the
defense.
On February 26, 2007, the Regional Trial Court (RTC) of Makati City,
Branch 147, rendered a Decision5 finding petitioner guilty beyond
reasonable doubt of the crime of Homicide, as defined and penalized
under Article 249 of the Revised Penal Code (RPC), the fallo thereof
reads:chanRoblesvirtualLawlibrary
WHEREFORE, Judgment is rendered finding herein accused Sherwin
Dela Cruz y Gloria Guilty beyond reasonable doubt of the crime of
Homicide as defined and penalized under Art. 249 of the Revised Penal
Code, and sentencing him to suffer the indeterminate penalty of Eight
(8) years and One (1) day of prision mayor medium as Minimum to
Fourteen (14) years eight (8) months and one (1) day of reclusion
temporal medium as Maximum; to indemnify the Heirs of Jeffrey
Wernher Gonzales y Lim in the amount of P50,000.00 plus moral
damages in the amount of P1 Million, and to pay the costs.

On March 28, 2007, petitioner filed a Notice of Appeal, while private

respondent, through the private prosecutor, filed a Notice of Appeal on
April 11, 2007 insofar as the sentence rendered against petitioner is
concerned
and
the
civil
damages
awarded.
After the denial of their motion for reconsideration, petitioner elevated
the case to the Court of Appeals (CA). However, the latter denied their
appeal and affirmed the RTC decision with modification on the civil
liability of petitioner. The decretal portion of the Decision 7 reads:
WHEREFORE, we hereby AFFIRM the Decision of the Regional Trial
Court of Makati, Branch 147 dated 26 February 2007 finding accusedappellant Sherwin Dela Cruz y Gloria GUILTY beyond reasonable doubt
of the crime of Homicide with the following MODIFICATIONS:
(1) to pay the heirs of the victim the amount of P50,000.00 as civil
indemnity;
(2)
the
amount
of
P50,000.00
as
moral
damages;
(3)
the
amount
of
P25,000.00
as
temperate
damages;
(4) the amount of P3,022,641.71 as damages for loss of earning
capacity.
(5) to pay the costs of the litigation.
SO ORDERED.8

Petitioner's motion for reconsideration was denied. Hence, the

present
petition.
Raised are the following issues for resolution:
1
WHETHER ALL THE REQUISITES OF THE JUSTIFYING
CIRCUMSTANCE OF SELF-DEFENSE, AS PROVIDED FOR BY LAW AND
SETTLED JURISPRUDENCE, ARE PRESENT IN THIS CASE.

2
WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE
BULLET WAS DISCHARGED THEREFROM WAS MERELY ACCIDENTAL
WHICH OCCURRED DURING THE TIME THAT THE PETITIONERAPPELLANT WAS STILL IN THE ACT OF DEFENDING HIMSELF FROM
THE CONTINUOUS UNLAWFUL AGGRESSION OF THE DECEASED
VICTIM.

ACCIDENT THAT TRANSPIRED.9

There is no question that petitioner authored the death of the

deceased-victim, Jeffrey. What is left for determination by this Court is
whether the elements of self-defense exist to exculpate petitioner from
the
criminal
liability
for
Homicide.
The essential requisites of self-defense are the following: (1) unlawful
aggression on the part of the victim; (2) reasonable necessity of the
means employed to prevent or repel such aggression; and (3) lack of
sufficient provocation on the part of the person resorting to selfdefense.10 In other words, there must have been an unlawful and
unprovoked attack that endangered the life of the accused, who was
then forced to inflict severe wounds upon the assailant by employing
reasonable
means
to
resist
the
attack.
Considering that self-defense totally exonerates the accused from any
criminal liability, it is well settled that when he invokes the same, it
becomes incumbent upon him to prove by clear and convincing
evidence that he indeed acted in defense of himself. 12 The burden of
proving that the killing was justified and that he incurred no criminal
liability therefor shifts upon him. 13 As such, he must rely on the
strength of his own evidence and not on the weakness of the
prosecution for, even if the prosecution evidence is weak, it cannot be
disbelieved
after
the
accused
himself
has
admitted
the
killing.14chanrobleslaw
Measured against this criteria, we find that petitioner's defense is
sorely
wanting.
Hence,
his
petition
must
be
denied.
First. The evidence on record does not support petitioner's contention
that unlawful aggression was employed by the deceased-victim, Jeffrey,
against
him.
Unlawful aggression is the most essential element of self-defense. It
presupposes actual, sudden, unexpected or imminent danger not
merely threatening and intimidating action.15 There is aggression, only
when the one attacked faces real and immediate threat to his life. 16 The
peril sought to be avoided must be imminent and actual, not merely
speculative.17 In the case at bar, other than petitioner's testimony, the
defense did not adduce evidence to show that Jeffrey condescendingly
responded to petitioner's questions or initiated the confrontation before
the shooting incident; that Jeffrey pulled a gun from his chair and tried
to shoot petitioner but failed an assault which may have caused
petitioner
to
fear
for
his
life.

4
WHETHER THE PRIVILEGED MITIGATING CIRCUMSTANCE OF
SELF-DEFENSE
IS
APPLICABLE
IN
THIS
CASE.

Even assuming arguendo that the gun originated from Jeffrey and an
altercation transpired, and therefore, danger may have in fact existed,
the imminence of that danger had already ceased the moment
petitioner disarmed Jeffrey by wresting the gun from the latter.
After petitioner had successfully seized it, there was no longer any
unlawful aggression to speak of that would have necessitated the need
to kill Jeffrey. As aptly observed by the RTC, petitioner had every
opportunity to run away from the scene and seek help but refused to
do so, thus:

5
WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY
LIABLE FOR THE DEATH OF THE VICTIM ARISING FROM THE

In this case, accused and the victim grappled for possession of the gun.
Accused admitted that he wrested the gun from the victim. From that
point in time until the victim shouted "guard, guard", then

3
WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE
ESSENTIAL ELEMENTS CONSTITUTING THE CRIME OF HOMICIDE.

SO ORDERED.6

took the fire extinguisher, there was no unlawful aggression

coming from the victim. Accused had the opportunity to run
away. Therefore, even assuming that the aggression with use of
the gun initially came from the victim, the fact remains that it
ceased when the gun was wrested away by the accused from
the victim. It is settled that when unlawful aggression ceases, the
defender no longer has any right to kill or wound the former aggressor,
otherwise, retaliation and not self-defense is committed (Peo Vs.
Tagana, 424 SCRA 620). A person making a defense has no more
right to attack an aggressor when the unlawful aggression has
ceased
(PeoVs.
Pateo,
430
SCRA
609).

after
that,
if
any?
A: After they struggled, the gun clicked three times and then after
that Jeff tried to get hold of the fire extinguisher and the fourth shot
went
off
and
then
Jeffrey
fell
down.

Accused alleged that the victim was about to smash the fire
extinguisher on his (accused's) head but he parried it with his hand
holding the gun. This is doubtful as nothing in the records is or would
be corroborative of it. In contrast, the two (2)Prosecution
witnesses whose credibility was not impeached, both gave the
impression that the victim got the fire extinguisher to shield
himself from the accused who was then already in possession
of the gun.18

Atty.

Q:
A:

And
who
Sherwin

(TSN,

Oct.

was
was
17,

2005,

More, a review of the testimony of the prosecution witness, Pelaez, will

show that if there was unlawful aggression in the instant case, the
same rather emanated from petitioner, thus:
DIRECT

EXAMINATION

Atty.
Q:

Mariano:
Can you relate to the Court, Ms. Witness, how did this incident

gun.

pp.

12-14)

Q: So you did not see when Sherwin approached Jeffrey because he

came
from
the
other
side?
Mariano:

Objection,

your

Honor,

witness

on

cross

already

answered

that.

examination,

your

Honor.

COURT
You didn't not see when he approached Jeffrey? A: No, as I said, I saw
him point the gun at the back of Jeff and he did
not

come

from

my

side

so

that

means...

COURT
No, the question is, You did not actually see Sherwin approached
Jeffrey? A:
saw him already at the back of Jeffrey.
Atty.

Q: And then after pulling the fire extinguisher from the wall Jeffrey
again faced the person who was holding the gun already?

A:

He

was

holding

the

Agoot

He was already at the back of Jeffrey when you saw him?

A:
Yes,
Sir.

fire

extinguisher

like

this.

COURT
For

Agoot:
am

Agoot

Witness:

Agoot:

Atty.

Atty.

the

Atty.

record.

Mariano:

Witness demonstrating how the victim Jeffrey Gonzales was

holding the fire extinguisher upright with his right hand above
the fire extinguisher and his left hand below the fire
extinguisher.
Witness:
The

left

hand

would

support

the

weight

Atty.

basically.
Agoot

Q: And then he used that fire extinguisher to protect himself

from the slapping of that person who was in possession of the
gun?
Witness
A:
Atty.
Q:

Yes,
And

then

after

that

there

was

sir.
Agoot
again

grappling?

Witness

A: We were still at work, we were expecting calls but there were no

calls at the moment and I was standing at my work station and then
Sherwin approached Jeff and he pointed a gun at the back of
the
head
of
Jeff.
And

then

what

happened?

A: And then Jeff parried the gun and they started struggling for the
possession
of
the
gun.
Q:
A:

gun?
the

(TSN, Oct. 17, 2005, pp. 26-27)21

happen?

Q:

the

CROSS-EXAMINATION:

Atty.
Thus, when an unlawful aggression that has begun no longer exists, the
one who resorts to self-defense has no right to kill or even wound the
former aggressor.19 To be sure, when the present victim no longer
persisted in his purpose or action to the extent that the object of his
attack was no longer in peril, there was no more unlawful aggression
that would warrant legal self-defense on the part of the offender. 20
Undoubtedly, petitioner went beyond the call of self-preservation when
he proceeded to inflict excessive, atrocious and fatal injuries on Jeffrey,
even when the allegedly unlawful aggression had already ceased.

holding
holding

that Jeffrey aimed and intended to smash the big fire extinguisher on
petitioner's head. Alternatively, the prosecution witnesses maintained
an impression that Jeffrey used the same to shield himself from
petitioner who was then in possession of the gun, a deadly weapon. An
excerpt of the testimony of Managbanag bares just that, to wit:

How far were you from this struggle when you witnessed it?
Probably
10
to
12
feet.

Q: Going back to your story, Ms. Witness, you mentioned that after
Jeffrey warded off the gun, they started to struggle, what happened

Clearly, petitioner's allegation that when he approached Jeffrey, the

latter pulled a gun from his chair and tried to shoot him, is not
corroborated by separate competent evidence. Pitted against the
testimony of prosecution witnesses, Managbanag and Pelaez, it pales in
comparison and loses probative value. We have, on more than one
occasion, ruled that the plea of self-defense cannot be justifiably
entertained where it is not only uncorroborated by any separate
competent
evidence
but
also
extremely
doubtful
in
itself.22chanrobleslaw
In addition, other than petitioner's testimony, there is dearth of
evidence showing that the alleged unlawful aggression on the part of
Jeffrey continued when he blocked the path of petitioner while the
latter tried to run away to avoid further confrontation with Jeffrey. We
also agree with the findings of the RTC that there was no proof evincing

A: No more grappling for possession.

Because Jeffrey was still

holding the fire extinguisher at that time. And then he fell holding
on
Atty.

to

the

fire

extinguisher.
Agoot

Q: You said here which I quote "binaril siya ng lalaki ng sunod-sunod

pero hindi pumutok" Do you affirm and confirm this statement?
Witness
A: Yes, sir. They were pushing each other. The other person
was trying to point the gun at Jeffrey and Jeffrey was trying to

cover himself with the fire extinguisher so nagkakatulakan sila

at
the
same
time.
Atty.

Agoot

Q: You said that the gun clicked, how many times did the gun click
without
firing?
Witness
A:

Three

(3)

times,

sir.

Atty.

Agoot

Q: And what did the late Jeffrey do when the gun clicked but did not
fire?
Witness
A:

They

were

still

pushing

Atty.
Q:

Even assuming arguendo that there was unlawful aggression on the

part of the victim, accused-appellant likewise failed to prove that the
means he employed to repel Homer's punch was reasonable. The
means employed by the person invoking self-defense contemplates a
rational equivalence between the means of attack and the defense.
Accused-appellant claimed that the victim punched him and was trying
to get something from his waist, so he (accused-appellant) stabbed the
victim with his hunting knife. His act of immediately stabbing Homer
and inflicting a wound on a vital part of the victim's body was
unreasonable and unnecessary considering that, as alleged by
accused-appellant himself, the victim used his bare fist in throwing a
punch at him.25

each

other

at

that

time.
Agoot

Using the

fire extinguisher, he used that to push against the

person...
Witness
A: Basically trying to cover himself and trying to push away the
person
who
was
pointing
the
gun
at
him.
Atty.

Agoot

Q: And why do you know that Jeffrey was trying hard to push the fire
extinguisher?
Witness
A: Because I was seated roughly about 5 to 6 feet away from
them. So I clearly saw what was going on at that time.
(Direct Examination of Marie Antonette Managbanag for the Defense,
TSN dated 04 September 2006, pp. 12-17, emphasis supplied) 23

Petitioner's
continuous

contention that
and
imminent

Jeffrey's unlawful aggression was

is,
therefore,
devoid
of
merit.

Given that the criteria of unlawful aggression is indubitably absent in

the instant case, the severe wounds inflicted by petitioner upon Jeffrey
was unwarranted and, therefore, cannot be considered a justifying
circumstance
under
pertinent
laws
and
jurisprudence.
Second. Even assuming that the unlawful aggression emanated from
the deceased victim, Jeffrey, the means employed by petitioner was
not reasonably commensurate to the nature and extent of the alleged
attack, which he sought to avert. As held by the Court in People v.
Obordo:24chanrobleslaw

Indeed, the means employed by a person resorting to self-defense

must be rationally necessary to prevent or repel an unlawful
aggression. The opposite was, however, employed by petitioner, as
correctly pointed out by the RTC, thus:
The victim was holding the fire extinguisher while the second was
holding the gun. The gun and the discharge thereof was
unnecessary and disproportionate to repel the alleged
aggression with the use of fire extinguisher. The rule is that the
means employed by the person invoking self-defense contemplates a
rational equivalence between the means of attack and the defense
(Peo
vs.
Obordo,
382
SCRA
98).
It was the accused who was in a vantage position as he was
armed with a gun, as against the victim who was armed, so to
speak, with a fire extinguisher, which is not a deadly weapon.
Under the circumstances, accused's alleged fear was unfounded. The
Supreme Court has ruled that neither an imagined impending attack
nor an impending or threatening attitude is sufficient to constitute
unlawful aggression (Catalina Security Agency Vs. Gonzales-Decano,
429 SCRA 628). It is a settled rule that to constitute aggression, the
person attacked must be confronted by a real threat on his life and
limb; and the peril sought to be avoided is imminent and actual, not
merely imaginary (Senoja v. Peo., 440 SCRA 695). 26

If petitioner had honestly believed that Jeffrey was trying to kill him, he
should have just run, despite any obstruction, considering that he was
already in possession of the gun. He could have also immediately
sought help from the people around him, specifically the guard
stationed at the floor where the shooting incident happened. In fact, he
could have reported the incident to the authorities as soon as he had
opportunity to do so, if it was indeed an accident or a cry of selfpreservation.
Yet,
petitioner
never
did
any
of
that.
We find it highly specious for petitioner to go through the process of
tussling and hassling with Jeffrey, and in the end, shooting the latter on
the forehead, not only once, but four times, the last shot finally
killing him, if he had no intention to hurt Jeffrey. Thus:
Moreover, the Prosecution's eyewitnesses were consistent in declaring
that while there was prior struggle for the possession of the gun, it was
nevertheless accused who was holding the gun at the time of the
actual firing thereof (TSN, p. 30, October 10, 2005; TSN, p. 14, October

17, 2005). Witness Managbanag even alleged that while the victim
(Jeffrey), who was in possession of the fire extinguisher, and the
accused were pushing each other, accused pointed the gun at the
victim. She heard three (3) clicks and on the 4 th, the gun fired
(TSN, p. 12, October 10, 2005). Under the circumstances, it cannot
be safely said that the gun was or could have been fired
accidentally. The discharge of the gun which led to the victim's
death was no longer made in the course of the grapple and/or
struggle for the possession of the gun27

The observation of the RTC dispels any doubt that the gun may have
been shot accidentally to the detriment of Jeffrey. The fire was neither a
disaster nor a misfortune of sorts. While petitioner may not have
intended to kill Jeffrey at the onset, at the time he clicked the trigger
thrice consecutively, his intent to hurt (or even kill) Jeffrey was too
plain to be disregarded. We have held in the past that the nature and
number of wounds are constantly and unremittingly considered
important indicia which disprove a plea of self-defense. 28 Thus,
petitioner's contention that an accident simultaneously occurred while
he was in the act of self-defense is simply absurd and preposterous at
best. There could not have been an accident because the victim herein
suffered a gunshot wound on his head, a vital part of the body and,
thus, demonstrates a criminal mind resolved to end the life of the
victim.
Besides, petitioner's failure to inform the police of the unlawful
aggression on the part of Jeffrey and to surrender the gun that he used
to kill the victim militates against his claim of self-defense.
In view of the foregoing, we find it illogical to discuss further the third
element of self-defense since it is recognized that unlawful aggression
is a conditio sine qua non for upholding the justifying circumstance of
sell-defense.30 If there is nothing to prevent or repel, the other two
requisites of self-defense will have no basis. 31 Hence, there is no basis
to entertain petitioner's argument that a privileged mitigating
circumstance of self-defense is applicable in this case, because unless
the victim has committed unlawful aggression against the other, there
can be no self-defense, complete or incomplete, on the part of the
latter.
Anent petitioner's argument that the RTC erred when it failed to
consider as suppression of evidence the prosecution's alleged
deliberate omission to present the testimonies of the security guardson-duty at the time of the shooting incident, the same fails to
persuade. We concur with the decision of the CA on this point, to wit:
Having admitted the killing of the victim, the burden of evidence that
he acted in self-defense, shifted to accused-appellant Dela Cruz. He
must rely on the strength of his own evidence and not on the weakness
of the prosecution's evidence, for, even if the latter were weak, it could
not be disbelieved after his open admission of responsibility for the
killing.
The security guards on duty at the time of the subject incident were at
the disposal of both the prosecution and the defense. The defense did
not proffer proof that the prosecution prevented the security guards
from testifying. There is therefore no basis for it to conclude that the
prosecution
is
guilty
of
suppression
of
evidence.

The defense could have easily presented the security guards if

it is of the opinion that their [the security guards] testimonies
were vital and material to the case of the defense. It could have
compelled the security guards on duty to appear before the court,
xxx.33

It is worthy to note that the question of whether petitioner acted in selfdefense is essentially a question of fact.34 It is the peculiar province of
the trial court to determine the credibility of witnesses and related
questions of fact because of its superior advantage in observing the
conduct and demeanor of witnesses while testifying. 35 This being so
and in the absence of a showing that the CA and the RTC failed to
appreciate facts or circumstances of such weight and substance that
would have merited petitioner's acquittal, this Court finds no
compelling reason to disturb the ruling of the CA that petitioner did not
act
in
self-defense.36chanrobleslaw
In this regard, we do not subscribe to petitioner's contention that since
the incident transpired in Jeffrey's office, and the witnesses presented
by the prosecution are known officemates of Jeffrey, the witnesses are
expected to testify in favor of Jeffrey and against petitioner. As
correctly pointed out by respondent, there appears no motive on the
part of the prosecution witnesses to falsely testify against petitioner. 37
The fact that they are officemates of Jeffrey does not justify a
conclusion that Managbanag and Pelaez would concoct or fabricate
stories in favor of Jeffrey for the mere purpose of implicating petitioner
with such a serious crime, especially since they are testifying under
oath.
All told, we find no basis to doubt or dispute, much less overturn, the
findings of the RTC and the C A that the elements of homicide are
present in the instant case as amply shown by the testimonies of the
prosecution eyewitnesses, and they constitute sufficient proof of the
guilt
of
petitioner
beyond
cavil
or
doubt.
Nevertheless, with regard to the appreciation of the aggravating
circumstance of use of an unlicensed firearm, we deviate from the
findings of the CA. A perusal of the Information will show that the use
of unlicensed firearm was expressly alleged in the killing of Jeffrey. This
allegation was further proved during trial by the presentation of the
Certification from the PNP Firearms and Explosives Division, dated
November 11, 2005, certifying that petitioner is not a
licensed/registered firearm holder of any kind and calibre, per
verification from the records of the said Division. Accordingly, under
Paragraph 3 of Section 1 of Republic Act (R.A.) No. 8294, amending
Section 1 of Presidential Decree (P.D.) No. 1866, such use of an
unlicensed firearm shall be considered as an aggravating circumstance,
to wit:
x

If homicide or murder is committed with the use of an unlicensed

firearm, such use of an unlicensed firearm shall be considered as an
aggravating
circumstance.
x
x
x
x.
Under Article 249 of the RPC, the penalty for homicide is reclusion

temporal. There being an aggravating circumstance of use of

unlicensed firearm, the penalty imposable on petitioner should be in its
maximum period.38 Applying the Indeterminate Sentence Law, the
petitioner shall be sentenced to an indeterminate penalty of from ten
(10) years and one (1) day of prision mayor maximum, as the minimum
penalty, to seventeen (17) years, four (4) months and one (1) day o
reclusion
temporal
maximum,
as
the
maximum
penalty.
As to the award of civil indemnity, moral damages, and damages for
loss of earning capacity in favor of private respondent, we sustain the
findings of the CA in so far as they are in accordance with prevailing
jurisprudence. In addition, we find the grant of exemplary damages in
the present case in order, since the presence of special aggravating
circumstance of use of unlicensed firearm has been established. 39
Based on current jurisprudence, the award of exemplary damages for
homicide
is
P30,000.00.
Finally, pursuant to this Court's ruling in Nacar v. Gallery Frames,41 an
interest of six percent (6%) per annum on the aggregate amount
awarded for civil indemnity and damages for loss of earning capacity
shall be imposed, computed from the time of finality of this Decision
until
full
payment
thereof.
WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and
August 19, 2009 Resolution of the Court of Appeals in CA-G.R. CV No.
89257, finding petitioner Sherwin Dela Cruz guilty beyond reasonable
doubt of the crime of Homicide, are hereby AFFIRMED with
MODIFICATIONS,
to
wit:
(1) Petitioner shall be sentenced to an indeterminate penalty of from
ten (10) years and one (1) day of prision mayor maximum, as the
minimum penalty, to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal maximum, as the maximum penalty;
(2) Petitioner is likewise ORDERED to pay the heirs of the victim the
following:
1

the amount of P50,000.00 as civil indemnity;

the amount of P50,000.00 as moral damages;

the amount of P25,000.00 as temperate damages;

the amount of P30,000.00 as exemplary damages;

5
the amount of P3,022,641.71 as damages for loss of earning
capacity;
6
for the civil indemnity and the damages for loss of earning
capacity, an interest of six percent (6%) per annum, computed
from the time of finality of this Decision until full payment thereof;
and
7

the costs of the litigation.

SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

G.R. No. 177743

- versus ALFONSO FONTANILLA

y OBALDO,
Accused-Appellant.

Promulgated:
January 25, 2012

x-----------------------------------------------------------------------------------------x

DECISION
BERSAMIN, J.:
An indispensable requisite of self-defense is that the victim
must have mounted an unlawful aggression against the accused.
Without such unlawful aggression, the accused cannot invoke selfdefense as a justifying circumstance.
The accused prays for the review and reversal of the decision
promulgated on June 29, 2006, [1] whereby the Court of Appeals (CA)
affirmed his conviction for murder handed down by the Regional Trial
Court (RTC), Branch 34, in Balaoan, La Union.
Antecedents
At around 9:30 p.m. on October 29, 1996, Jose Olais was
walking along the provincial road in Butubut Oeste, Balaoan, La Union
when Alfonso Fontanilla suddenly struck him in the head with a piece of
wood called bellang.[2] Olais fell facedown to the ground, but Fontanilla
hit him again in the head with a piece of stone. Fontanilla desisted from
hitting Olais a third time only because Joel Marquez and Tirso Abunan,
the sons-in-law of Olais, shouted at him, causing him to run away.
Marquez and Abunan rushed their father-in-law to a medical clinic,
where Olais was pronounced dead on arrival.[3]
On April 25, 1997, the Office of the Provincial Prosecutor of La
Union filed an information for murder against Fontanilla in the RTC, viz:
That on or about the 29th day of October
1996, along the Provincial Road at Barangay Butubut
Oeste, Municipality of Balaoan, Province of La Union,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with
intent to kill and with evident premeditation and
treachery, did then and there willfully, unlawfully and
feloniously attack, assault and strike with a long
coconut night stick and thereafter hit with a stone the
head of Jose Olais, thereby inflicting on the latter
head wounds which caused the death of the latter, to
the damage and prejudice of the heirs of said victim.
CONTRARY TO LAW.[4]

The accused pleaded not guilty.

The State presented Marquez and Abunan as its witnesses. They
claimed that they were only several meters away from Olais when
Fontanilla struck him; that they shouted at Fontanilla, who fled because
of them; and that they were able to see and to identify Fontanilla as
the attacker of their father-in-law because the area was then welllighted.[5]
Dr. Felicidad Leda, the physician who conducted the autopsy on the
cadaver of Olais, attested that her post-mortem examination showed
that Olais had suffered a fracture on the left temporal area of the skull,
causing his death. She opined that a hard object or a severe force had
hit the skull of the victim more than once, considering that the skull
had been already fragmented and the fractures on the skull had been
radiating.[6]
SPO1 Abraham Valdez, who investigated the slaying and
apprehended Fontanilla, declared that he had gone looking for
Fontanilla in his house along with other policemen; that Fontanillas
father had denied that he was around; that their search of the house
had led to the arrest of Fontanilla inside; and that they had then
brought him to the police station.[7] Valdez further declared that
Fontanilla asserted that he would only speak in court.[8]
At the trial, Fontanilla claimed self-defense. He said that on
the night of the incident, he had been standing on the road near his
house when Olais, wielding a nightstick and appearing to be drunk, had
boxed him in the stomach; that although he had then talked to Olais
nicely, the latter had continued hitting him with his fists, striking him
with straight blows; that Olais, a karate expert, had also kicked him
with both his legs; that he had thus been forced to defend himself by
picking up a stone with which he had hit the right side of the victims
head, causing the latter to fall face down to the ground; and that he
had then left the scene for his house upon seeing that Olais was no
longer moving.[9]

The RTC rejected Fontanillas plea of self-defense by observing

that he had no necessity to employ a big stone, inflicting upon the
victim a mortal wound causing his death[12] due to the victim attacking
him only with bare hands. It noted that Fontanilla did not suffer any
injury despite his claim that the victim had mauled him; that Fontanilla
did not receive any treatment, and no medical certificate attested to
any injury he might have suffered, having been immediately released
from the hospital;[13] that Fontanillas failure to give any statement at
the time he surrendered to the police was inconsistent with his plea of
self-defense;[14] and that the manner of attack against Olais established
the attendance of treachery.[15]

The CA ruled that treachery was attendant, because Olais had no

inkling that a fatal blow was looming upon him, and because Fontanilla
was inconspicuously hidden from view when he struck Olais from
behind, rendering Olais unable to retaliate.[17]
Nonetheless, the CA rectified the penalty from reclusion
perpetua to death to only reclusion perpetua upon noting the absence
of any aggravating or mitigating circumstance, and disposed as
follows:
IN VIEW OF ALL THE FOREGOING, the appealed
decision of the Regional Trial Court of Balaoan, La
Union, Branch 34, in Criminal Case No. 2561 is
hereby AFFIRMED with MODIFICATION that appellant
Fontanilla is hereby sentenced to suffer the penalty
of reclusion perpetua. No cost.
SO ORDERED.[18]

On June 21, 2001, the RTC declared Fontanilla guilty as

charged, and disposed thusly:
WHEREFORE, in the light of the foregoing, the
Court hereby renders judgment declaring he accused
ALFONSO FONTANILLA Y OBALDO @ Carlos guilty
beyond reasonable doubt of the crime of MURDER as
defined and penalized in Art. 248 of the Revised
Penal Code, as amended by Republic Act No. 7659,
Sec. 6, and thereby sentences him to suffer the
penalty of RECLUSION PERPETUA TO DEATH and to
indemnify the heirs of the victim in the amount of
Fifty Thousand Pesos ( P50,000.00).
SO ORDERED.[11]

Ruling
We affirm the conviction.

On appeal, the CA affirmed the RTC, holding that Fontanilla did not
establish the indispensable element of unlawful aggression; that his
failure to report the incident to the police at the earliest opportunity, or
even after he was taken into custody, negated the plea of self-defense;
and that the nature of the victims injury was a significant physical proof
to show a determined effort on the part of Fontanilla to kill him, and not
just to defend himself.[16]

Fontanillas daughter Marilou corroborated her fathers version.

[10]

III.
FURTHERMORE, THE TRIAL COURT GRAVELY ERRED IN
NOT APPRECIATING THE SPECIAL PRIVILEGE[D]
MITIGATING CIRCUMSTANCE OF INCOMPLETE SELFDEFENSE AND THE MITIGATING CIRCUMSTANCE OF
VOLUNTARY SURRENDER.

The accused is now appealing, insisting that the CA erred

because:
I.
THE TRIAL COURT GRAVELY ERRED IN IGNORING THE
ACCUSED-APPELLANTS CLAIM OF SELF-DEFENSE.
II.
EVEN GRANTING THAT ACCUSED-APPELLANT KILLED
THE VICTIM, THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT OF THE
CRIME OF MURDER WHEN THE QUALIFYING
CIRCUMSTANCE OF TREACHERY WAS NOT PROVEN
BEYOND REASONABLE DOUBT.

Fontanilla pleaded self-defense. In order for self-defense to be

appreciated, he had to prove by clear and convincing evidence the
following elements: (a) unlawful aggression on the part of the victim;
(b) reasonable necessity of the means employed to prevent or repel it;
and (c) lack of sufficient provocation on the part of the person
defending himself.[19] Unlawful aggression is the indispensable element
of self-defense, for if no unlawful aggression attributed to the victim is
established, self-defense is unavailing, for there is nothing to repel. [20]
The character of the element of unlawful aggression is aptly explained
as follows:
Unlawful aggression on the part of the victim
is the primordial element of the justifying
circumstance of self-defense. Without unlawful
aggression, there can be no justified killing in defense
of oneself. The test for the presence of unlawful
aggression under the circumstances is whether the
aggression from the victim put in real peril the life or
personal safety of the person defending himself; the
peril must not be an imagined or imaginary threat.
Accordingly, the accused must establish the
concurrence of three elements of unlawful
aggression, namely: (a) there must be a physical or
material attack or assault; (b) the attack or assault
must be actual, or, at least, imminent; and (c) the
attack or assault must be unlawful.
Unlawful aggression is of two kinds: (a) actual
or material unlawful aggression; and (b) imminent
unlawful aggression. Actual or material unlawful
aggression means an attack with physical force or
with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the
injury. Imminent unlawful aggression means an
attack that is impending or at the point of happening;
it must not consist in a mere threatening attitude, nor
must it be merely imaginary, but must be offensive
and positively strong (like aiming a revolver at
another with intent to shoot or opening a knife and
making a motion as if to attack). Imminent unlawful
aggression must not be a mere threatening attitude
of the victim, such as pressing his right hand to his

hip where a revolver was holstered, accompanied by

an angry countenance, or like aiming to throw a pot.
[21]

By invoking self-defense, however, Fontanilla admitted

inflicting the fatal injuries that caused the death of Olais. It is basic that
once an accused in a prosecution for murder or homicide admitted his
infliction of the fatal injuries on the deceased, he assumed the burden
to prove by clear, satisfactory and convincing evidence the justifying
circumstance that would avoid his criminal liability. [22] Having thus
admitted being the author of the death of the victim, Fontanilla came
to bear the burden of proving the justifying circumstance to the
satisfaction of the court,[23] and he would be held criminally liable
unless he established self-defense by sufficient and satisfactory proof.
[24]
He should discharge the burden by relying on the strength of his
own evidence, because the Prosecutions evidence, even if weak, would
not be disbelieved in view of his admission of the killing. [25]
Nonetheless, the burden to prove guilt beyond reasonable doubt
remained with the State until the end of the proceedings.
Fontanilla did not discharge his burden. A review of the
records reveals that, one, Olais did not commit unlawful aggression
against Fontanilla, and, two, Fontanillas act of hitting the victims head
with a stone, causing the mortal injury, was not proportional to, and
constituted an unreasonable response to the victims fistic attack and
kicks.
Indeed, had Olais really attacked Fontanilla, the latter would
have sustained some injury from the aggression. It remains, however,
that no injury of any kind or gravity was found on the person of
Fontanilla when he presented himself to the hospital; hence, the
attending physician of the hospital did not issue any medical certificate
to him. Nor was any medication applied to him. [26] In contrast, the
physician who examined the cadaver of Olais testified that Olais had
been hit on the head more than once. The plea of self-defense was thus
belied, for the weapons used by Fontanilla and the location and number
of wounds he inflicted on Olais revealed his intent to kill, not merely an
effort to prevent or repel an attack from Olais. We consider to be
significant that the gravity of the wounds manifested the determined
effort of the accused to kill his victim, not just to defend himself. [27]
The CA and the RTC found that treachery was attendant. We
concur. Fontanilla had appeared out of nowhere to strike Olais on the
head, first with the wooden stick, and then with a big stone, causing
Olais to fall to the ground facedown. The suddenness and
unexpectedness of the attack effectively denied to Olais the ability to
defend himself or to retaliate against Fontanilla.
The imposition of reclusion perpetua by the CA was warranted under
Article 248 of the Revised Penal Code,[28] which prescribes reclusion
perpetua to death as the penalty formurder. Under the rules on the

application of indivisible penalties in Article 63 of the Revised Penal

Code,[29] the lesser penalty of reclusion perpetua is imposed if there are

neither mitigating nor aggravating circumstances. Yet, the Court points

out that the RTC erroneously imposed RECLUSION PERPETUA TO DEATH
as the penalty. Such imposition was bereft of legal justification, for
reclusion perpetua and death, being indivisible, should not be imposed
as a compound, alternative or successive penalty for a single felony. In
short, the imposition of one precluded the imposition of the other.
The Court also modifies the limiting of civil damages by the CA
and the RTC to only the death indemnity of P50,000.00. When death
occurs due to a crime, the damages to be awarded may include: ( a)
civil indemnity ex delicto for the death of the victim; (b) actual or
compensatory damages; (c) moral damages; (d) exemplary damages;
and (e) temperate damages.[30]
Accordingly, the CA and the RTC should also have granted
moral damages in addition to the death indemnity, which were of
different kinds.[31] The death indemnity compensated the loss of life due
to crime, but appropriate and reasonable moral damages would justly
assuage the mental anguish and emotional sufferings of the surviving
family of Olais.[32] Although mental anguish and emotional sufferings of
the surviving family were not quantifiable with mathematical precision,
the Court must nonetheless strive to set an amount that would restore
the heirs of the deceased to their moral status quo ante. Given the
circumstances, P50,000.00 should be reasonable as moral damages,
which, pursuant to prevailing jurisprudence,[33] we are bound to award
despite the absence of any allegation and proof of the heirs mental
anguish and emotional suffering. The rationale for doing so rested on
human nature and experience having shown that:
xxx a violent death invariably and necessarily brings
about emotional pain and anguish on the part of the
victims family. It is inherently human to suffer sorrow,
torment, pain and anger when a loved one becomes
the victim of a violent or brutal killing. Such violent
death or brutal killing not only steals from the family
of the deceased his precious life, deprives them
forever of his love, affection and support, but often
leaves them with the gnawing feeling that an
injustice has been done to them.[34]
Another omission of the CA and the RTC was their nonrecognition of the right of the heirs of the victim to temperate
damages. The victims wife testified about her familys incurring funeral
expenses of P36,000.00, but only P18,000.00 was backed by receipts.
It is already settled that when actual damages substantiated by
receipts sum up to lower than P25,000.00, temperate damages of at
least P25,000.00 become justified, in lieu of actual damages in the
lesser amount actually proved by receipts. It would obviously be unfair
to the heirs of the victim to deny them compensation by way of actual
damages despite their honest attempt to prove their actual expenses
by receipts (but succeeding only in showing expenses lower than
P25,000.00 in amount).[35] Indeed, the heirs should not be left in a
worse situation than the heirs of another victim who might be
nonetheless allowed temperate damages of P25,000.00 despite not
having presented any receipts at all. With the victims wife having
proved P18,000.00 worth of expenses, granting his heirs temperate
damages of P25,000.00, not only P18,000.00, is just and proper. Not to
do so would foster a travesty of basic fairness.
The Civil Code provides that exemplary damages may be

imposed in criminal cases as part of the civil liability when the crime
was committed with one or more aggravating circumstances. [36] The
Civil Code permits such damages to be awarded by way of example or
correction for the public good, in addition to the moral, temperate,
liquidated or compensatory damages.[37] In light of such legal
provisions, the CA and the RTC should have recognized the entitlement
of the heirs of the victim to exemplary damages on account of the
attendance of treachery. It was of no moment that treachery was an
attendant circumstance in murder, and, as such, inseparable and
absorbed in murder. As well explained in People v. Catubig:[38]
The term aggravating circumstances used by
the Civil Code, the law not having specified
otherwise, is to be understood in its broad or generic
sense. The commission of an offense has a twopronged effect, one on the public as it breaches the
social order and the other upon the private victim as
it causes personal sufferings, each of which is
addressed by, respectively, the prescription of
heavier punishment for the accused and by an award
of additional damages to the victim. The increase of
the penalty or a shift to a graver felony underscores
the exacerbation of the offense by the attendance of
aggravating circumstances, whether ordinary or
qualifying, in its commission. Unlike the criminal
liability which is basically a State concern, the
award of damages, however, is likewise, if not
primarily, intended for the offended party who
suffers thereby. It would make little sense for
an award of exemplary damages to be due the
private offended party when the aggravating
circumstance is ordinary but to be withheld
when it is qualifying. Withal, the ordinary or
qualifying
nature
of
an
aggravating
circumstance is a distinction that should only
be of consequence to the criminal, rather than
to the civil, liability of the offender. In fine,
relative to the civil aspect of the case, an
aggravating circumstance, whether ordinary or
qualifying, should entitle the offended party to
an award of exemplary damages within the
unbridled meaning of Article 2230 of theCivil
Code.
For the purpose, P30,000.00 is reasonable and proper as exemplary
damages,[39] for a lesser amount would not serve result in genuine
exemplarity.
WHEREFORE, we AFFIRM the decision promulgated on June 29, 2006
by the Court of Appeals, subject to the MODIFICATION of the civil
damages, by ordering accused Alfonso Fontanilla y Obaldo to pay to
the heirs of Jose Olais P25,000.00 as temperate damages and
P30,000.00 as exemplary damages in addition to the P50,000.00 as
death indemnity and the P50,000.00 as moral damages, plus interest
of 6% per annum on such amounts from the finality of the judgment.
The accused shall pay the costs of suit.

SO ORDERED.
G.R. No. 214883, September 02, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CRISTINA
SAMSON, Accused-Appellant.
DECISION
MENDOZA, J.:
For review in this appeal is the May 6, 2014 Decision 1 of the Court of
Appeals (CA) in CA-G.R. CR HC No. 05832, which affirmed the
September 27, 2012 Decision2 of the Regional Trial Court, Branch 65,
Tarlac City (RTC) in Criminal Case No. 12285, convicting accusedappellant Cristina Samson (Cristina) for parricide committed against
her husband, Gerry Delmar (Gerry), and sentencing her to suffer the
penalty
of
reclusion
perpetua.
The

Antecedents

On August 14, 2002, Cristina was charged with the crime of Parricide,
defined and penalized under Article 246 of the Revised Penal Code
(RPC). The Information articulates the following criminal charges, viz:
th

That on or about the 27 day of June, 2002 in Tarlac City, Philippines

and within the jurisdiction of this Honorable Court, said accused,
willfully, unlawfully and feloniously and with intent to kill her husband
Gerry Delmar, with whom she was united in lawful wedlock, armed
herself with a deadly weapon, a knife, and stabbed said Gerry Delmar
on
his
chest,
which
resulted
to
his
death.
CONTRARY TO LAW.
When arraigned almost four (4) years later, Cristina entered a plea of
not guilty. Thereafter, trial on the merits ensued with the parties
agreeing to a reverse trial on account of her invocation of the justifying
circumstance
of
self-defense.
Version

of

the

Defense

The version of Cristina appears in the Brief for the Accused-Appellant 4

as follows:
On June 27, 2002, CRISTINA SAMSON (Cristina) was in their house
watching television together with her children when her husband, Gerry
Delmar (Gerry), who was drunk at that time, arrived. Gerry asked
Cristina if she had cooked food already but the latter answered in the
negative because she had no money to buy food. Gerry scolded and
uttered words against her, and then slapped her. They had an
altercation for about ten (10) minutes when Cristina's father arrived
and pacified them. Gerry left but after thirty (30) minutes, he returned.
He pointed a knife at Cristina's neck. The latter begged Gerry not to
hurt her and to pity their children if something happens to her. Gerry
continued pointing the knife and told Cristina to stop talking or
otherwise, he will put a hole in her neck. Then, Gerry slapped Cristina's

face twice. While Gerry was still holding the knife, Cristina pushed him
and he fell on the ground. She took the knife which Gerry was holding
and begged him not to come near her. She was holding the knife near
her chest pointed at Gerry when he suddenly grabbed her and that was
the time that the knife went in contact with his chest. When she saw
her husband bloodied, she shouted for help and her father (Rodolfo
Samson) and brother (Allan Samson) came and brought Gerry to the
hospital. Her relatives told her that Gerry died in the hospital. (TSN,
September
6,
2006,
pp.
14-27)
On June 27, 2002, ALLAN SAMSON (Allan) was at home watching
television with his father. He heard yelling and shouting from the house
of his sister Cristina and brother-in-law Gerry. Since it was just ordinary
for him to hear his sister and brother-in-law fight, he and his father just
ignored it. After fifteen (15) minutes of listening to their quarrel, they
heard Cristina cry for help. Upon hearing this, he immediately went to
the house of his sister and saw her holding Gerry and she requested
him and his father to bring Gerry to the hospital. They called a tricycle
and he, together with his father, brought Gerry to Talon General
Hospital. The doctor, however, declared that Gerry was already dead.
Then, the tanod arrives and Allan instructed the tanod to call the
siblings and relatives of Gerry. When the relatives arrived, they went
home. (TSN, November 18, 2006, pp. 4-6)
Version

of

the

Prosecution

In its Brief for the Appellee, 6 the Office of the Solicitor General (OSG)
provided the following as its Counter-Statement of Facts:
On January 25, 1994, appellant Cristina Samson and victim Jerry
Delmar were married. They were blessed with two (2) daughters
namely Christine and Cherrie Lou. The couple lived in their own house
which is just adjacent to the house of appellant's family. The union of
the two was never a peaceful one. Constant quarrels filled their
household and occurred in front of their children and other relatives.
On June 27, 2002, appellant and the victim had one of their usual
fights. As testified by appellant herself, she and her two children were
watching television in their home when the victim arrived drunk. Victim
asked for his dinner but appellant was not able to cook food which led
to the fight. Christine, the youngest daughter of the appellant and the
victim, narrated that she witnessed the fight between her parents, that
as the fight escalated, appellant was able to get hold of the knife which
was placed on the roof and stabbed the victim. The victim fell on the
ground and crawled until he reached the door. Cristine remembered
that people arrived in their home, helped the victim board a tricycle
and brought him to the hospital. Appellant, on the other hand, ran out
and went to her father and asked for money and left. That was the last
night
that
Christine
and
Cherry
Lou
saw
their
mother.7ChanRoblesVirtualawlibrary
The

Ruling

of

the

RTC

In its September 27, 2012 Decision, the RTC found the proffered selfdefense of Cristina to be untenable. In its view, there was no longer
any threat to her life before she stabbed her husband Gerry. Though
there was an existent danger as there was an altercation before the
stabbing incident, the imminence of such danger ceased when, as
admitted by her, Gerry already put down the knife. The RTC even
concluded that it was she who provoked him when she suddenly

pushed him to the ground. She then took the knife and told him not to
come near her. When he grabbed her, she stabbed him. After she took
hold of the knife, there was no longer any unlawful aggression to speak
of that would necessitate the need to kill Gerry. 8 Thus, the decretal
portion of the RTC decision reads in this wise:
WHEREFORE, finding accused CRISTINA SAMSON guilty beyond
reasonable doubt of the felony of Parricide defined and penalized under
Article 246 of the Revised Penal Code, accused CRISTINA SAMSON is
hereby sentenced to suffer a penalty of "Reclusion Perpetua" pursuant
to R.A. 9346 (An Act Prohibiting the Imposition of Death Penalty in the
Philippines).
Accused is also ordered to indemnify the heirs of the victim, Christine
S. Delmar and Cherrie Lo S. Delmar the amount of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, P30,000.00 as exemplary
damages
and
costs
of
suit.
SO ORDERED.9ChanRoblesVirtualawlibrary
The

Ruling

of

the

CA

The CA affirmed the ruling of the RTC. It stated that although there
could have been an unlawful aggression at the start when Gerry
repeatedly slapped Cristina and held a knife at her throat, it already
disappeared when he put down the knife. According to the CA, it was
this precise act that gave Cristina the opportunity to push her husband
and gain control of the knife. Moreover, the fact that she fled and
evaded arrest for four (4) years contradicted her claim of innocence. 10
The CA disposed as follows:
WHEREFORE, the Decision dated September 27, 2012 of the RTC,
Branch 65, Tarlac City in Criminal Case No. 12285, finding accusedappellant guilty beyond reasonable doubt of the crime of parricide and
sentencing her to reclusion perpetua and to pay damages and the cost
of
suit,
is
AFFIRMED.
SO ORDERED.
Hence, this appeal.
ISSUE

The sole issue to be resolved in this appeal is whether or not the CA

erred in not appreciating the justifying circumstance of self-defense in
favor
of
Cristina.
Let it be underscored that appeal in criminal cases throws the whole
case open for review and it is the duty of the appellate court to correct,
cite and appreciate errors in the appealed judgment whether they are
assigned or unassigned.12 Considering that what is at stake here is no
less than the liberty of the accused, this Court has meticulously and
thoroughly reviewed and examined the records of the case and finds
that
there
is
merit
in
her
appeal.
There appears to be a conflict between the testimony of Cristina and

her daughter, Christine Delmar (Christine). Cristina claimed that she

got the knife from her husband who fell down after she pushed him.
After taking possession of the deadly weapon, she told her husband not
to come near her. She was holding the knife near her chest and pointed
towards him when he suddenly grabbed her and that was the time that
the
knife
went
in
contact
with
her
husband's
chest.
Christine, however, perceived it differently. According to her, she
witnessed the fight between her parents. She narrated that as the fight
escalated, her mother was able to get hold of a knife, which was
inserted in the roof, and used it in stabbing her father.
Both the RTC and the CA believed the version of Cristina, but both were
of the view that before she stabbed her husband, there was no more
imminent danger to her life. For said reason, her fatal stabbing of her
husband was not justified.
The Court's Ruling

Self-defense, when invoked as a justifying circumstance, implies the

admission by the accused that he committed the criminal act.
Generally, the burden lies upon the prosecution to prove the guilt of
the accused beyond reasonable doubt rather than upon the accused
that he was in fact innocent. When the accused, however, admits
killing the victim, it is incumbent upon him to prove any claimed
justifying circumstance by clear and convincing evidence. 13 Well-settled
is the rule that in criminal cases, self-defense shifts the burden of proof
from
the
prosecution
to
the
defense.14
To invoke self-defense, in order to escape criminal liability, it is
incumbent upon the accused to prove by clear and convincing
evidence the concurrence of the following requisites under the second
paragraph of Article 11 of the RPC, viz: (1) unlawful aggression; (2)
reasonable necessity of the means employed to prevent or repel it; and
(3) lack of sufficient provocation on the part of the person defending
himself.15
Presence of Unlawful Aggression even if Aggressor was Disarmed
Among the requisites of self-defense, the most important that needs to
be proved by the accused, for it to prosper, is the element of unlawful
aggression. It must be proven first in order for self-defense to be
successfully pleaded. There can be no self-defense, whether complete
or incomplete, unless the victim had committed unlawful aggression
against the person who resorted to self-defense.16 When the Court
speaks of unlawful aggression, it is an actual physical assault, or at
least a threat to inflict real imminent injury, upon a person. There is an
unlawful aggression on the part of the victim when he puts the life,
limb, or right of the person invoking self-defense in actual or imminent
danger. There must be actual physical force or actual use of a weapon.
It is present only when the one attacked faces real and immediate
threat to his life. It must be continuous, otherwise, it does not
constitute
aggression
warranting
self-defense. 17
The question now is: was there unlawful aggression when Cristina killed
her
husband?
The

Court

answers

in

the

affirmative.

The Court hesitates to share the observation of the RTC and the CA that
Cristina failed to discharge the burden of proving that unlawful
aggression
was
present
when
she
killed
her
husband.
Contrary to the conclusion of the CA that Gerry's aggression had
already ceased when he was disarmed, it is the Court's view that the
aggression still continued. Her perceived peril to her life continued and
persisted
until
she
put
an
end
to
it.
It must be noted that after she was able to take hold of the knife from
her husband, he did not stand down but, instead, continued to move
towards her despite her plea that he should not come nearer. He
grabbed her by the arm which could have precipitated her wellgrounded belief that her life was still in danger if he would be able to
wrest the weapon from her. It was not farfetched to presume that,
being stronger, he could have easily overpowered her and eventually
killed
her.
A similar situation was presented in the case of People v. Rabandaban18
(Rabandaban), wherein the Court ruled that despite the fact that the
accused succeeded in wresting the bolo from his wife, he was still
justified in using the weapon against her because his life was still in
danger. The Court explained:
xxx When appellant got possession of the bolo he already must
have been in a precarious condition because of his wounds, one of
which was described by the sanitary inspector as "fatal" since the large
intestine came out of it. And appellant, we think, was justified in
believing that his wife wanted to finish him off because,
according to the evidence, she struggled to regain possession
of the bolo after he had succeeded in wresting it from her. With
the aggressor still unsubdued and showing determination to
fight to the finish, it would have been folly on the part of
appellant, who must already have been losing strength due to
loss of blood, to throw away the bolo and thus give his
adversary a chance to pick it up and again use it against him.
Having the right to protect his life, appellant was not in duty bound to
expose himself to such a contingency.19 [Emphases Supplied]
In Rabandaban, the victim, instead of running away from the accused
husband after the bolo was wrested from her, continued to struggle
with him to regain possession of the bolo. This fact, together with her
husband's compromised condition, being already badly wounded,
justified him in finally neutralizing his wife who was then determined in
putting an end to his life. In the case at bench, the unlawful aggression
would have ceased if he just walked away from the scene considering
that Cristina had gained the upper hand, being the one in possession of
the knife. Instead, Gerry chose to ignore her plea not to come near her
and continued moving towards her without regard to his safety despite
the fact that the knife was pointed towards his direction.
In both Rabandaban and the present case, the victims, despite having
been disarmed, still posed a threat to the lives of the accused. The
danger to their lives persisted leaving them with no other choice but to
defend themselves lest they be the ones to be victimized.
In that situation, Cristina had reasons to believe that her life was still in
danger. It is to be noted that before she was able to take hold of the

weapon, her husband held the same knife and pointed it at her throat.
So when he, who was taller and stronger, approached her and grabbed
her by the arm, it was instinctive for her to take the extreme
precautionary measure by stabbing him before he could get back the
knife and make good his earlier threat of putting a hole in her throat.
Contrary to the trial court's assessment, she did not show aggression
towards her husband when she pushed him after he pointed the knife
away from her. She was, in fact, manifesting a passive attitude towards
him when she just stood her ground, with the knife in hand, asking him
not
to
come
near
her.20
It would have been a different story if Gerry, after dropping the knife,
walked away and Cristina still went after him. If that were the case, she
could not assert self-defense. She was no longer acting in self-defense
but in retaliation for the earlier aggression. Retaliation is inconsistent
with self-defense and in fact belies it. In retaliation, the aggression that
was begun by the injured party already ceased when the accused
attacked him; while in self-defense the aggression still existed when
the
aggressor
was
injured
by
the
accused. 21
Now that unlawful aggression has already been established, it is well to
consider the other two requisites in order to determine whether the
self-defense
is
complete
or
incomplete.
Reasonable

Necessity

of

the

Means

Employed

The requisite of reasonable necessity of the means employed is met if

the person invoking self-defense used a weapon or a manner
equivalent to the means of attack used by the aggressor. The
reasonable necessity of the self-defense utilized by an accused is to
defend himself "depends upon the nature or quality of the weapon, the
physical condition, the character, the size and other circumstances of
the aggressor; as well as those of the person who invokes self-defense;
and also the place and the occasion of the assault." 22 Moreover, the
nature and location of wounds are considered important indicators
whether
or
not
to
disprove
a
plea
of
self-defense. 23
In the case at bench, the lone stab wound located on the victim's chest
supports the argument that Cristina feared for her life and this fear
impelled her to defend it by stabbing him. It was a reasonable means
chosen by her in view of the attending circumstances, to wit: that her
stronger husband, who had earlier pointed the said knife to her throat,
approached her and grabbed her arm, despite her plea that he refrain
from coming near her; and that she had no other available means or
any less deadly weapon to repel the threat other than the knife in her
hand. She did not have the time or sufficient tranquillity of mind to
think, calculate and choose the weapon to be used. In predicaments
like this, human nature does not act upon the processes of formal
reason but in obedience to the instinct of self-preservation.24 When it is
apparent that a person has reasonably acted upon this instinct, it is the
duty of the courts to sanction that act or to mitigate his
liability.25cralawred
Moreover, the fact that Gerry was no longer armed does not negate the
reasonableness of the means employed by Cristina. Perfect equality
between the weapon used by the one defending himself and that of the
aggressor is not required.26 What the law requires is a rational
equivalence, in the consideration of which will enter as principal factors
the emergency, the imminent danger to which the accused is exposed,

and the instinct more than reason, that moves or impels his defense;
and the proportionateness thereof does not depend upon the harm
done,
but
upon
the
imminent
danger
of
such
injury. 27
Lack

of

Sufficient

Provocation

The last requisite to be considered is lack of sufficient provocation on

the part of the person defending himself. The Court cannot sustain the
trial court's observation that it was Cristina who provoked her husband
when she suddenly pushed him. Her shoving him cannot be considered
a sufficient provocation proportionate to the act of aggression. 28 She
merely capitalized on a window of opportunity, when her husband
removed the knife away from her throat, to save herself from what she
had perceived to be a danger to her life. Anybody, in her situation
would
have
acted
in
the
same
reasonable
way.
Flight

as

an

Indication

of

Guilt

or

Non-guilt

The CA took the fact of Cristina's flight and evasion of arrest for four (4)
years against her. To the appellate court, it belied her claim of
innocence.
Under the attendant circumstances, the Court cannot subscribe to that
view.
Generally, flight, in the absence of a credible explanation, would be a
circumstance from which an inference of guilt might be established, for
a truly innocent person would normally grasp the first available
opportunity to defend himself and assert his innocence. 29 It has been
held, however, that non-flight may not be construed as an indication of
innocence either. There is no law or dictum holding that staying put is
proof of innocence, for the Court is not blind to the cunning ways of a
wolf which, after a kill, may feign innocence and choose not to flee. 30 In
Cristina's case, she explained that she took flight for fear of her safety
because of possible retaliation from her husband's siblings. 31 The Court
finds such reason for her choice to flee acceptable. She did not hide
from the law but from those who would possibly do her harm.
The RTC and the CA might have some hesitation in accepting her
explanation for her choice of action. Nevertheless, under the
circumstances, a cloud of uncertainty lingers. In such a case, it is the
duty of the Court to resolve the doubt in favor of the accused.
Considering that Cristina was justified in killing her husband under
Article 11, paragraph 1 of the RPC, she should be exonerated of the
crime charged. For the same reason, the Court finds no act or omission
from
which
a
civil
liability
may
arise.

SO ORDERED.

EXEQUIEL SENOJA, G.R. No. 160341

Petitioner,
- versus Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent.
October 19, 2004
x--------------------------------------------------x
DECISION
CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision [1] of the

Court of Appeals (CA) in People v. Exequiel Senoja, docketed as CA-G.R.
CR No. 26564, affirming with modification the Decision [2] of the
Regional Trial Court (RTC) of Baler, Aurora, Branch 96, in Criminal Case
No. 2259, for homicide.
The Case For the People
As culled by the Office of the Solicitor General (OSG) in its
comment on the petition, the case stemmed from the following:
1. On April 16, 1997, petitioner Exequiel Senoja, Fidel
Senoja, Jose Calica, and Miguel Lumasac were drinking gin in the
hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora.An
angry Leon Lumasac suddenly arrived at the said place, holding
a bolo in his right hand and looking for his brother Miguel.
Petitioner and Jose tried to pacify Leon. But when petitioner
approached Leon, the latter tried to hack him so he embraced
Leon and Jose took Leons bolo. Then, Leon and petitioner talked
things out and later reconciled (pp. 2-4, TSN, November 16,
1998; pp. 2-4, TSN, August 30, 2002; p. 2, TSN, April 21, 1998;
p. 5, TSN, March 14, 2001; p. 2, CA Decision).

WHEREFORE, the appeal is GRANTED. The May 6, 2014 Decision of

the Court of Appeals, in CA-G.R. CR HC No. 05832, is REVERSED and
SET ASIDE. The accused-appellant, Cristina Samson, is ACQUITTED of
the
crime
charged.

2. Subsequently, Leon walked out of Crisantos hut

followed by petitioner. Suddenly, about ten meters from the hut,
petitioner stabbed Leon at the back. When Leon turned around,
petitioner continued stabbing him until he fell to the ground.
Then, petitioner ran towards the barangay road and threw away
the kolonial knife he used in stabbing Leon. The latter died on
the spot (pp. 2-6, TSN, November 22, 2000; p. 5, TSN, August
30, 2002; p. 3, CA Decision).

Let a copy of this Decision be furnished the Superintendent,

Correctional Institution for Women, Mandaluyong City. The
Superintendent is DIRECTED to cause the immediate release of
appellant, unless she is being lawfully held for another cause and to
report the action she has taken within five (5) days from receipt of this
Decision.

3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal

Health Officer, examined the cadaver of Leon and found multiple
lesions on his body and five fatal wounds on his chest. Dr. Uy
issued a medico-legal report and death certificate (Exhibits A
and B, pp. 13-14, Records; pp. 3-5, TSN, November 20, 1997). [3]

On August 13, 1997, an Information was filed charging

petitioner Exequiel Senoja with homicide, the accusatory portion of
which reads:
That on April 16, 1997 at around 11 oclock in the
morning in Barangay Zarah, San Luis, Aurora, Philippines, and
within the jurisdiction of this Honorable Court, the said accused,
did then and there, willfully, unlawfully, and feloniously, with
intent to kill, attack, assault, and use personal violence upon the
person of one Leon Lumasac by then and there stabbing him
with a bladed weapon locally known as kolonyal at the different
parts of his body thereby inflicting upon the latter mortal stab
wounds which were the direct and immediate cause of his death
thereafter.
CONTRARY TO LAW.[4]
The petitioner admitted killing the victim but invoked the
affirmative defense of self-defense. His version of the fatal incident is
set forth in his petition at bar:
1. On April 16, 1997 at about 11 oclock in the morning,
Crisanto Reguyal, Fidel Senoja, Jose Calica, Miguel Lumasac, and
Exequiel Senoja were in the hut of Crisanto Reguyal in Barangay
Zarah, San Luis, Aurora, drinking gin;
2. Leon Lumasac suddenly arrived holding a bolo and
hacked the doorpost of Crisantos hut, angrily demanding for his
brother, Miguel Lumasac, whom he suspected of drying up the
ricefield he was plowing;
3. At this time, Miguel Lumasac was no longer inside
the hut but fetching water;
4. To prevent Leon Lumasac from entering the hut,
Exequiel Senoja (appellant) and Jose Calica stood by the door
while simultaneously trying to pacify Leon Lumasac;
5. Exequiel Senoja with a knife then went outside and
tried to pacify Leon Lumasac but the latter angered by the
gestures of the former tried to hack Exequiel Senoja;
6. To avoid any injury, Exequiel Senoja embraced Leon
which gave an opportunity to disarm the duo. Jose Calica got the
bolo of Leon and threw it away while Fidel Senoja took the
colonial knife of Exequiel;
7. Jose Calica and Fidel Senoja were able to pacify Leon
Lumasac so they invited him to get inside the hut. Inside the
hut, Leon Lumasac tried to box Fidel Senoja for siding with his
brother, Miguel, but was prevented by Exequiel Senoja who held
Leons hands;
8. After a while, Leon Lumasac left but returned and
angrily demanded for his bolo. Jose Calica gave his own bolo

with a sabbard to replace the bolo of Leon which he threw away;

9. With Jose Calicas bolo in him, Leon Lumasac left but
only after leaving a threat that something will happen to
Exequiel Senoja for siding with his brother;
10. After walking for about 10 meters away from the
hut, Leon Lumasac turned around and saw Exequiel Senoja on
his way home following him;
11. Leon Lumasac walked back to meet Exequiel Senoja
and upon reaching him, the former suddenly and treacherously
hacked the latter at the left side of his head and right thigh;
12. Unable to evade the treacherous attack by Leon
Lumasac who persisted in his criminal design, Exequiel Senoja
drew his colonial knife and stabbed Leon Lumasac in selfdefense, inflicting upon him multiple wounds which caused his
death.[5]
On June 7, 2002, the trial court rendered judgment against the
petitioner, finding him guilty beyond reasonable doubt of the crime
charged. The fallo of the decision reads:
WHEREFORE, premises considered, this Court finds
accused Exequiel Senoja GUILTY beyond reasonable doubt of the
crime of Homicide for the death of victim Leon Lumasac and
hereby sentences him, applying Article 64, paragraph 1 of the
Revised Penal Code and Section 1 of the Indeterminate
Sentence Law, (a) to suffer the penalty of twelve (12) years of
prision mayor as minimum to seventeen (17) years and four (4)
months of reclusion temporal as maximum; (b) to pay the heirs
of the victim the amount of Fifteen (sic) Thousand Pesos (Php
50,000.00) by way of civil indemnity; and (c) to pay the costs.
SO ORDERED.[6]
In due course, the petitioner appealed the decision to the CA
which rendered judgment affirming, with modification, the decision of
the RTC. The petitioner now seeks relief from this Court, contending
that:
The Honorable Court of Appeals failed to appreciate
vital facts which, if considered, would probably alter the result of
this case on appeal finding appellants plea of self-defense
credible.[7]
The petitioner faults the CA for its analysis of his
testimony, as follows:
The injuries suffered by the petitioner at the left side of
his head and right thigh was confirmed by Dr. Rodolfo Eligio in
open court. The relative positions of the wounds clearly show
that the drunken Leon Lumasac brandished and executed
several hacking blows against Exequiel Senoja before he was
stabbed, neutralized and finished by the latter. It would be

physically and highly improbable for the victim if he was

treacherously hit at the left buttock and as he turned around to
face the petitioner, the latter stabbed him successively and
without let-up hitting him 9 times resulting in 9 fatal wounds.
This did not give a chance to the victim to retaliate and inflict
those wounds upon the aggressor. The victim used Mr. Jose
Calicas bolo which was secured by its scabbard. Unless earlier
drawn, it would be impossible for the victim to use it in
defending himself from the surprise attack and stabbing at a
lightning fashion inflicting nine (9) fatal wounds. Time element
was the essence of this encounter which, as narrated by the
Honorable Court, after the assailant poked the victim at the left
side of the buttock with the use of the colonial knife he stabbed
him successively until he fell down dead. Under these
circumstances, how could Exequiel Senoja suffered (sic) those
hacking (sic) wounds inflicted by the victim using Calicas bolo?
In all indications, it was Leon Lumasac who attacked his
adversary first but lost in the duel considering that he was older
than Exequiel Senoja and drunk. Clearly, therefore, it was Leon
Lumasac who was the aggressor both in the first and second
phases of the incident and Exequiel Senoja was compelled to
defend himself.
A closer scrutiny of the attending circumstances which
resulted in this stabbing incident shows that Exequiel Senoja has
no compelling reasons to kill his godfather. On that same
occasion, Mr. Exequiel Senoja was with the brother of the victim,
Miguel Lumasac, which only shows that there was no preexisting grudge between these families. And still, what titillates
our imagination is the fact that Miguel Lumasac, who was then
with the group drinking gin at the hut of Crisanto Reguyal did
not clearly impute this crime to petitioner. On the contrary,
when he was presented to the witness stand, he was very
evasive in answering the questions profounded by the
prosecutors if he wanted the petitioner to be imprisoned. Miguel
Lumasac could have told the real truth that Senoja murdered his
brother.[8]
The CA declared that, based on the evidence on record:
As seen from appellants testimony, Leon Lumasacs
actions can be divided into two (2) phases: the first phase, when
Leon entered Crisanto Reguyals hut, up to the time he and the
appellant reconciled. The second phase was when Leon left to
go home. In phase one where Leon entered Reguyals hut, Leon
was the aggressor but his aggression was mostly directed to his
brother Miguel who was not inside the hut anymore, although it
was also partly directed at the appellant and even at Fidel
Soneja (sic). But Leons aggression against the appellant and
Fidel Senoja ceased since, as appellant testified, when Leon
tried to box Fidel Senoja and he (appellant) told Leon Huwag po,
Huwag po, Leon was pacified.
In the second phase, when Leon left the hut to go
home, his aggression had already ceased.
It is uncontroverted that the appellant followed the
victim when the latter went out of the hut to go home.

Appellants testimony is that when he was two meters outside

the hut, Leon turned around to face him saying if youre not
only my godson in a threatening way, then approached and
hacked him (with Calicas bolo) inflicting wounds on the left side
of his head and his right thigh, thus, he (appellant) attacked the
victim with the kolonial knife he was holding. That appellant
suffered such injuries was corroborated by the testimony of Dr.
Rodolfo Eligio.[9]

The petition is denied.

Paragraph 1, Article 11, of the Revised Penal Code provides:
ART. 11. Justifying circumstances. The following do not
incur any criminal liability:
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself.

The affirmative defense of self-defense may be complete or

incomplete. It is complete when all the three essential requisites are
present; it is incomplete if only unlawful aggression on the part of the
victim and any of the two essential requisites were present. In fine,
unlawful aggression on the part of the victim is a condition sine qua
non to self-defense, complete or incomplete. Whether or not the
accused acted in self-defense is a question of fact. Like alibi, the
affirmative defense of self-defense is inherently weak because, as
experience has demonstrated, it is easy to fabricate and difficult to
disprove.[10]

The right of self-defense proceeds from necessity and limited

by it. The right begins where necessity does, and ends where it ends. [11]
There
is,
however, a perceptible difference between necessity and self-defense,
which is that, self-defense excuses the repulse of a wrong; necessity
justifies the invasion of a right. Hence, it is essential to self-defense
that it should be a defense against a present unlawful attack.[12]
Life can be taken under the plea of necessity, when necessary
for the preservation of the life on the party setting up the plea. Selfdefense is an act to save life; hence, it is right and not a crime. [13] There
is a need for one, indeed, for it is a natural right for one to defend
oneself when confronted by an unlawful aggression by another. It is a

settled rule that to constitute aggression, the person attacked must be

confronted by a real threat on his life and limb; and the peril sought to
be avoided is imminent and actual, not merely imaginary. Absent such
an actual or imminent peril to ones life or limb, there is nothing to
repel; there is no necessity to take the life or inflict injuries on another.
[14]

But then what is the standard to use to determine whether the

person defending himself is confronted by a real and imminent peril to
his life or limb? We rule that the test should be: does the person
invoking the defense believe, in due exercise of his reason, his life or
limb is in danger? After all, the rule of law founded on justice and
reason: Actus no facit remin, nisi mens sit rea. Hence, the guilt of the
accused must depend upon the circumstances as they reasonably
appear to him.[15]

Unlawful aggression presupposes an actual, sudden,

unexpected attack or imminent danger thereof, not merely a
threatening
or
intimidating
attitude.[16]
Hence,
when
an
inceptual/unlawful aggression ceases to exist, the one making a
defense has no right to kill or injure the former aggressor. [17] After the
danger has passed, one is not justified in following up his adversary to
take his life. The conflict for blood should be avoided if possible. [18] An
assault on his person, he cannot punish when the danger or peril is
over.When the danger is over, the right of self-defense ceases. His right
is defense, not retribution.[19]
When the accused offers the affirmative defense of selfdefense, he thereby admits killing the victim or inflicting injuries on
him. The burden of evidence is shifted on the accused to prove, with
clear and convincing evidence, that he killed the victim or inflicted
injuries on him to defend himself. The accused must rely on the
strength of his own evidence and not on the weakness of that of the
prosecution because if the evidence of the prosecution were weak, the
accused can no longer be acquitted.[20]
We agree with the CA that, as gleaned, even from the
testimony of the petitioner, there were two separate but interrelated
incidents that culminated in the petitioners stabbing and killing of the
victim Leon Lumasac. The first was the arrival of the victim, who was
armed with a bolo, in the hut of Crisanto Reguyal, looking for his
brother Miguel Lumasac, whom he was angry at. The victim hacked the
wall of the house in anger. The petitioner, who was armed with a knife,
tried to pacify the victim. The victim attempted to hack the petitioner;
nevertheless, the latter embraced and managed to pacify the victim.
Forthwith, Jose Calica took the bolo of the victim and threw it away. For
his part, Fidel Senoja took the petitioners knife. As it was, the victim
was already pacified. He and the petitioner were already reconciled. [21]
Fidel even gave back the knife to the petitioner.
The second incident took place when the victim demanded
that Calica return his bolo as he wanted to go home already. Because
he had thrown away the victims bolo,Calica was, thus, impelled to give
his own. The victim then warned the petitioner three times, May
mangyayari sa iyo, kung hindi ngayon, bukas, and left the hut. When
the victim had already gone about ten meters from the hut, the

petitioner followed the victim. The victim turned around and told the
petitioner, Kung hindi lang kita inaanak. The victim then hacked the
petitioner, hitting the latter on the left side of his head and thigh.
Believing that the victim would attack him anew, the petitioner stabbed
the victim frontally several times. [22] He also stabbed the victim on the
left buttock. The petitioner could not recall how many times he stabbed
the victim and what parts of the latters body had been hit.
The first episode inside the hut had been completed with the
protagonist, the victim, and the petitioner reconciled. The second
episode commenced inside the hut and continued outside, and ended
with the petitioner stabbing the victim several times.
The trial and the appellate courts gave no credence and
probative weight to the testimony of the petitioner. So do we.
First. The findings of fact of the trial court and its conclusions
based on the said findings are accorded by this Court high respect, if
not conclusive effect, especially when affirmed by the CA. This is
because of the unique advantage of the trial court of having been able
to observe, at close range, the demeanor and behavior of the
witnesses as they testify. This rule, however, is inapplicable if the trial
court ignored, overlooked, or misinterpreted cogent facts and
circumstances which, if considered, will alter or reverse the outcome of
the case. We have reviewed the records and found no justification for a
reversal of the findings of the trial court and its conclusions based
thereon.
Second. The victim sustained six hack wounds and one
lacerated wound. This is gleaned from the Necropsy Report of Dr. Pura
Uy, to wit:
FINDINGS: The victim lies in supine position, stocky in
built; his clothing completely soaked with fresh blood.
CHEST:
(+) stab wound 2 inches below the L nipple 4 inches
deep running medially to the anterior median
line.
(+) stab wound 2 inches to the L of the anterior
median line at the level of the L nipple 5 inches
deep running posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches
deep running inferomedially.
(+) stab wound 2 inches to the left of the anterior
median
line
4
inches
deep
running
inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior
median line at the level of the second right
intercostal space 0.5 inch in depth.
(+) stab wound inch to the right of the anterior
median line at the level of the xyphoid process
3 inches deep running superiorly.
(+) stab wound at the level of the L nipple L anterior
axillary line 4 inches in depth running superiorly
to the left armpit.
(+) hack wound at the left armpit 3 inches long

injuring the muscles and the blood vessels.

(+) lacerated wound on the left palm almost cutting
off the proximal phalanx of the left thumb.[23]
Five of the wounds of the victim on his chest were fatal. [24] The
victim also sustained a stab wound on the left buttock. According to the
doctor, it was unlikely for the victim to have survived even with
medical attention.[25] After the doctor made her initial autopsy and
submitted her report, she noted that the victim sustained a stab wound
of about two inches deep at the left buttock, thus:
Q In this medico-legal report, you indicated that the
cause of death of the victim is Hypovolemic
shock 2 to multiple stab wounds, chest. Will
you please explain this?
A Ito pong nakalagay o dahilan ng pagkamatay ng
biktima sa sobrang natapon na dugo gawa
ng maraming saksak na tinamo ng biktima
sa kanyang dibdib ang nagbigay ng daan sa
kanyang kamatayan.
Q Will you please tell us, Dr. Uy, if there is one amont
(sic) these lesions that is located at the back
of the victim?
A I forgot to tell you that a day after I submitted the
report, the funeral parlor which attended the
victim has called my attention because of
the wound at the back of the victim and I
attended immediately to see these lesions
at the home of the victim. I reviewed for
(sic) these lesions and I saw one lesion
located at the left buttock of the victim.
Q What is the nature of the injury?
A Stab wound, about two inches deep.
Q By the nature of the lesion, is it not fatal?
A It is not that fatal.
Q In your expert opinion, by the nature of the wound
sustained by the victim, what could have
been the relative position of the victim in
relation to his assailant?
A Based on my examination, I think the victim and
the assailant were facing each other.
Masyadong malapit.
Q How many fatal wounds have (sic) the victim
sustained in his chest?
A Five fatal stab wounds on the chest.[26]
Considering the number, nature and location of the wounds
sustained by the victim, the petitioners plea of self-defense is
incredible.[27] It bears stressing that the petitioner resolutely denied
stabbing the victim at the buttock and insisted that he stabbed the
victim frontally:

Q As a matter of fact, he sustained an injury at the

back of his buttock (pigi) and when he faced
you, you stabbed him again several times?
A That is not true, Sir.
Q But you are admitting that you stabbed him several
times frontally?
A Yes, Sir, because I am (sic) defending myself.
Q You also stabbed him in his left armpit?
A I dont know, Sir.
Q But you knew that you stabbed him in his buttock?
A No, Sir.
Q After stabbing him several times and felt that he
was already dead, you already left the
place?
A Yes, Sir.[28]

The testimony of the petitioner is belied by the physical

evidence on record. The settled rule is that physical evidence is
evidence of the highest order; it speaks more eloquently than a
hundred witnesses.[29]
Third. The petitioner threw away his knife and failed to
surrender it to the policemen; neither did he inform the policemen that
he killed the victim in self-defense. The petitioners claim that the victim
was armed with a bolo is hard to believe because he even failed to
surrender the bolo.[30]
Fourth. The petitioners version of the events that transpired
immediately before he stabbed the victim does not inspire belief. He
claims that when he saw the victim emerged from the hut, the victim
walked towards the petitioner saying, Kung hindi lang kita inaanak, but
hit and hacked the latter on the left buttock. [31] As gleaned from his
statement, the victim was not disposed, much less determined to
assault the petitioner. And yet, the petitioner insists that without much
ado, the victim, nevertheless, hit him on the head and on the thigh
with his bolo.
Fifth. According to the petitioner, the victim warned him three
times before leaving the hut, May mangyayari sa iyo, kung hindi
ngayon, bukas. The petitioner testified that shortly before the victim
uttered these words, the latter even touched the blade of the bolo to
see if it was sharp.[32] The petitioner was, thus, aware of the peril to his
life if he followed the victim. The petitioner, nevertheless, followed the
victim and left the hut after the victim had gone barely ten meters. He
should have waited until after the victim had already gone far from the
hut before going home to avoid any untoward incident.
Sixth. The petitioner presented his brother-in-law Ruben Dulay
to corroborate his testimony that the victim stabbed the petitioner and

drunk.[34]

that this impelled the latter to stab the former. But the testimony of
Dulay contradicted the testimony of the petitioner:
Q When Exequiel Senoja stabbed Leon Lumasac
several times, he immediately fell to the ground
and was fatal[ly] wounded, immediately died
because of several stabs and lay (sic) down?
A I did not see that scene because Exequiel Senoja
stabbed Leon Lumasac, I turn (sic) back upon
seeing Leon Lumasac hack Exequiel Senoja, I
turn (sic) back because I was afraid then. When
I turn (sic) back I saw them embracing each
other, Sir.
Q And that is the time when Exequiel Senoja stabbed
Leon Lumasac?
A I did not see the stabbing. What I only saw was that
they were embracing each other, Sir.
Q So you are now changing your answer, you actually
saw Exequiel Senoja stabbing Leon Lumasac
several times, after he was hack[ed] by Leon
Lumasac?
A I did not see that Exequiel Senoja stab Leon
Lumasac, Sir.[33]
Seventh. The bare fact that the petitioner sustained a five-centimeter
wound at the left temporal region and an eight-centimeter hack wound
on the anterior portion of his right thigh does not preclude the fact that
he was the unlawful aggressor; nor buttress his plea that he acted in
self-defense. The petitioner failed to inform the doctor that he
sustained the wounds to defend himself. Moreover, the doctor testified
that the wounds the petitioner sustained were slight:
Pros. Ronquillo:
Q Does (sic) the wound at the right anterior thigh
vertical, diagonal or what?
A I did not place it, Sir.
Q So, you dont know?
A It is vertical, Sir, but I did not place it on the record.
And the hack wound on the temporal region
is oblique.

The doctor gave the petitioner due medications for 30 minutes and the
petitioner then went home:
Q How did it happen that you were able to kill the
victim in this case Mr. Leon Lumasac?
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
Q Where?
A Here, Sir.
And Witness is pointing to his left head.
Q Where else?
A (His) right thigh.
Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.
Q What is his real name?
A Crisanto Reguyal, Sir.[35]

If, as claimed by the petitioner, the victim stabbed him frontally, it is

incredible that the victim was able to hack the anterior part of his right
thigh.
Eighth. The testimony of the petitioner that the victim stabbed him
outside the hut on the left side of his head and the anterior portion of
his right thigh is belied by his testimony on direct examination that the
victim stabbed him while still inside the hut of Reguyal:
Q How did it happen that you were able to kill the
victim in this case Mr. Leon Lumasac?
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.

Q Were the injuries only slight?

A Yes, Sir.

Q Where?
A Here, Sir.

Q So, it is (sic) possible that these injuries were selfinflicted?

A Probably, Sir, but I cannot comment on that.

And Witness is pointing to his left head.

Q You said that the patient was under the influence of

alcohol? Would you say that the patient was
then so drunk at that time?
A When I saw him at that time, he was moderately

Q Where else?
A (His) right thigh.
Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.

Q What is his real name?

A Crisanto Reguyal, Sir.[36]
But then, after the said incident, the petitioner and the victim had
reconciled. We agree with the following findings of the appellate court:
The question that must be resolved is
whether or not the victim was the unlawful aggressor
as the appellants testimony pictures him to be. The
Court rules in the negative. The victim had already
left the hut and was ten (10) meters away from it.
There is no showing that the victim, who was drunk,
was aware that appellant was following him, or that
the appellant called out to him so that he (the victim)
had to turn around and notice him. It is clear that at
that point in time, the victim was simply walking
toward his home; he had stopped being an aggressor.
It was the appellant who, smarting from the earlier
incident in the hut where Leon told him hindi ka
tatagal, sa loob ng tatlong araw mayroong
mangyayari sa iyo, kung hindi ngayon, bukas
repeated three times, wanted a confrontation.
Appellant stabbed or poked the victim in the left
buttock resulting in the non-fatal wound, and when
the latter turned around, successively stabbed and
hacked the victim in the armpit and chest until he
fell. In all, the victim suffered nine (9) wounds.
It is the well-considered finding of this Court
that while Leon Lumasac had ceased being the
aggressor after he left the hut to go home, accused
Exequiel Senoja was now the unlawful aggressor in
this second phase of their confrontation. It bears
mentioning that appellant contradicted himself with
respect for (sic) the reason why he left the hut. First,
it was to pacify Leon and the second reason was that
he was going home.
As for appellants injuries, it is clear that they
were sustained in the course of the victims attempt
to defend himself as shown by the lacerated wound
on the victims left palm, a defensive wound. [37]
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The
assailed Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

EDWIN RAZON y LUCEA, G.R. NO. 158053

Petitioner,
Present:
- versus -

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. June 21, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION

arm measuring 5 cm. with one end blunt and the other end sharp
having an approximate depth of about 1 cm.; and a stab wound on the
right buttock 1.3 cm. long with a depth of about 4 cm. The stab wound
on the abdomen killed Gonzalo, as it penetrated the small intestines,
pancreas and the abdominal aorta, causing massive hemorrhage and
loss of blood. Abrasions and contusions were also found on the body of
Gonzalo, located on the left ear lobe, on the chest, on the left
anterolateral side, on the mid-posterior aspect and on the lumbar
region of the back.[6]

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review on Certiorari seeking the

reversal of the Court of Appeals' (CA) Resolution dated January 31,
2001[1] in CA-G.R. CR No. 22211 entitled People of the Philippines v.
Edwin Razon y Lucea and the CA Resolution dated April 14, 2003 [2]
which denied petitioner's motion for reconsideration.
The facts as found by the Regional Trial Court (RTC) are summarized as
follows:
PO1 Francisco Chopchopen (Chopchopen) was walking towards Upper
Pinget Baguio City, at around midnight of August 1, 1993, when a
taxicab driven by Edwin Razon yLucea (Razon) stopped beside him.
Razon told Chopchopen that he was held up by three men at
Dreamland Subdivision. Chopchopen then asked Razon to go with him
to the place of the incident to check if the persons who held him up
were still there. Razon was hesitant at first but eventually went with
Chopchopen to said area about 100 meters up the road. While walking
about eight meters off the road, Chopchopen noticed a person lying on
the ground and partially hidden by a big stone. Upon closer look,
Chopchopensaw that the person's shirt was soaked in blood and that
he was hardly breathing. Lying beside the man was a wooden cane.
Chopchopen asked Razon to help him bring the person to the hospital.
On the way, Chopchopen asked Razon if he was the one who stabbed
the victim. Razon answered no. Soon they met a police mobile patrol
driven by SPO2 Samuel Bumangil (Bumangil) who followed them to
Baguio General Hospital. The victim, who was later identified as
Benedict Kent Gonzalo (Gonzalo), was pronounced dead on arrival. [3] He
was 23 years old and a polio victim.[4]
Upon questioning, Razon told Bumangil that he was held up by three
men, which included Gonzalo whom he stabbed in self-defense. Razon
brought out a fan knife and toldBumangil that it was the knife he used
to stab Gonzalo. A later search of the cab however yielded another
weapon, a colonial knife with bloodstains which was found under a
newspaper near the steering wheel. At the police station, Razon
admitted having stabbed Gonzalo but insisted that he did so in selfdefense.[5]

An autopsy conducted on the body of the victim showed that he

sustained three stab wounds, to wit: a stab wound measuring 2.5 cms.
Found in the front and lower quadrant of the abdomen, directed inward
towards the mid-line and slightly upward entering the abdominal wall
and perforating the small intestines, pancreas and the abdominal
aorta, having an approximate depth of 12 cm.; a stab wound on the left

Razon for his part asserted that he acted in self-defense. He claimed

that around 11:30 p.m. on August 1, 1993, three men boarded his cab
from the Philippine Rabbit bus station along Magsaysay Avenue
in Baguio who asked to be brought to Dreamland Subdivision in Pinget
for the total sum of P90.00. Upon reaching their destination and while
Razonwas turning the cab around, Gonzalo, who was seated behind the
driver's seat, declared a hold-up and poked a Batangas knife (veinte
nueve) at the right side of the base ofRazon's neck. The two other
passengers were shocked but Gonzalo told them to get their knives,
stab Razon and grab his right hand. Razon however was able to grab
the knife and release his right hand from Gonzalo's two companions.
Gonzalo's companions then went out of the cab and picked up stones.
Gonzalo followed and Razon ran after them.Gonzalo was swinging his
cane and it hit Razon on his right leg. Razon then thought of his knife
inside the cab and he went to get it and confronted the three by
swinging his knife from left to right. Gonzalo's companions ran away
and Razon went back to his cab and left.[7]
Not finding credence in Razon's claim of self-defense, RTC Branch 60 of
Baguio City convicted him of homicide as follows:
WHEREFORE, this Court finds the accused, Edwin Razon
y Lucea, GUILTY beyond reasonable doubt of the crime
of HOMICIDE. There being no mitigating or aggravating
circumstance, he is hereby sentenced to an
indeterminate penalty of 6 years and 1 day of prision
mayor as minimum, to 14 years 8 months and 1 day of
reclusion temporal as maximum.
He is further ordered to pay the heirs of Benedict Kent
Gonzalo, Jr. the amount of P12,770.00 by way of actual
damages; P50,000.00 by way of moral damages; and
P10,000.00 by way of attorney's fees.
SO ORDERED.[8]
Razon filed a notice of appeal, [9] and the CA required him, through his
counsel Atty. Rigoberto D. Gallardo (Atty. Gallardo) to file an appellant's
brief.[10] Two motions for extension of time were filed by Atty. Gallardo.
[11]
Instead of filing the brief, however, Atty. Gallardo filed a Motion to
Withdraw as Counsel for the Accused-Appellant onJanuary 7, 1999,
claiming that Razon had consistently shown his disinterest in the case
by not attending much needed conferences.[12] The CA ordered Atty.
Gallardo to file another motion to withdraw with Razon's conformity;
thus Atty. Gallardo filed a motion dated February 1, 1999, with a

signature, purportedly that of Razon's. [13] Later, the CA received a

Manifestation dated February 17, 1999, stating that Atty. Gallardo's
firm could not secure Razon's signature to signify his conformity to Atty.
Gallardo's withdrawal as his counsel, Atty. Gallardo thus requested that
he be relieved of his responsibilities as counsel even without Razon's
conformity.[14]
Due to the inconsistency of the manifestations of Atty. Gallardo in his
motions dated February 1, 1999 and February 17, 1999, the CA issued
a Resolution directing Razon to manifest the authenticity of his
signature appearing on the February 1, 1999 motion to withdraw as
counsel filed by Atty. Gallardo. The CA also required Razon to cause the
entry of appearance of a new counsel within 5 days from notice.[15]
On August 27, 1999, the CA granted Atty. Gallardo's motion to
withdraw as counsel and directed Razon anew to cause the entry of
appearance of his new counsel or manifest whether he wanted the CA
to appoint a counsel de oficio to defend him, within five days from
notice with warning that failure to comply with said Resolution shall
cause the dismissal of his appeal.[16]
On February 22, 2000, the CA again issued a Resolution which noted
the Judicial Records Division (JRD) report that no compliance had been
filed by Razon with the resolution dated August 27, 1999; considered
the right of the accused to be represented by counsel as waived; and
directed the JRD, in the interest of justice, to resend the notice to file
brief to Razon.[17] On February 28, 2000, the CA issued another notice
to file brief, this time addressed to and received by Razon himself. [18]
On July 12, 2000, the CA issued a Resolution requiring Razon to show
cause why his appeal should not be dismissed for failure to file the
required brief despite notice thereof.[19]

With the failure of Razon to comply with the said directives, the CA on
January 31, 2001, issued the herein assailed Resolution dismissing his
appeal as follows:
WHEREFORE, the appeal is deemed ABANDONED and
DISMISSED on authority of Section 8, Rule 124 of the
Revised Rules of Criminal Procedure.[20]
On July 25, 2001, the CA received a Motion for Reconsideration filed by
Razon stating that he could not read and understand English and that
Atty. Gallardo was negligent of his duties to him, as said lawyer filed his
withdrawal of appearance even without his (Razon's) knowledge and
conformity.[21]
The CA denied Razon's motion for reconsideration through its
Resolution dated April 14, 2003, thus:[22]
1.

Indeed the instant motion for reconsideration was

filed out of time in violation of Section 16, Rule 124 of
the same Rules for the appellant admitted that on
March 6, 2001 he received this Court's Resolution
dated January 31, 2001 dismissing his appeal but the
record shows that he filed the subject motion four
months later or only on July 19, 2001 to be exact.

2.

Our dismissal is warranted by Section 8 of Rule 124

and circumstances showing that it was not only his
previous counsel that was lax and negligent but the
appellant as well...
xxx

3.

The appellant had ignored Our directives and the

option given him to have the services of a counsel de
oficio.[23]

Petitioner now comes before this Court claiming that the CA erred in
declaring his appeal as abandoned and dismissed. [24] He claims that he
is not bound by the actions of Atty. Gallardo who was negligent of his
duties to him; Atty. Gallardo failed to file the required appeal brief
before the CA despite the many extensions given him; worse, Atty.
Gallardo filed a motion to withdraw his appearance as petitioner's
counsel without petitioner's knowledge; it was only when he received
the CA Resolution dated January 31, 2001 that he learned of the
withdrawal of Atty. Gallardo as his counsel, and it was only then that
Atty. Gallardo advised him to get another lawyer; petitioner received
the records of the case from Atty. Gallardo, only on March 9, 2001;
petitioner failed to comply with the CA resolutions because he could
not understand the same due to his educational deficiency; and given
the chance to ventilate his appeal, petitioner would be absolved of the
charge against him as he truly acted in self defense. [25]
For the State, the Office of the Solicitor General (OSG) contended that
petitioner himself is guilty of negligence; the CA gave him ample
opportunity to secure the services of counsel or manifest his desire to
have a counsel de oficio appointed by the court, but petitioner ignored
said directives; petitioner's motion for reconsideration of the CA's
Resolution dated January 31, 2001 was also filed out of time; and Sec.
8, Rule 124 of the Rules of Court provides that the appellate court may
dismiss an appeal if the appellant fails to file his brief within the time
prescribed by the said Rule.[26]
Petitioner filed a Reply and both parties filed their memoranda
reiterating their respective arguments.[27]

Sifting the arguments raised, it is clear that only two questions need to
be answered: (1) whether the CA erred in dismissing petitioner's appeal
for failure to file appellant's brief; and (2) whether petitioner acted in
self-defense in killing Gonzalo.
The Court answers both questions in the negative.
The first issue. Whether the CA erred in dismissing petitioner's appeal
for failure to file appellant's brief.
While appeal is an essential part of our judicial system, a party must
strictly comply with the requisites laid down by the Rules of Court on
appeals, mindful of the fact that an appeal is purely a statutory right.
Procedural rules are designed to facilitate the adjudication of cases.
Both courts and litigants are therefore enjoined to abide strictly by the

rules.While there are instances when the Court allows a relaxation in

the application of the rules, such liberality is not intended to forge a
bastion for erring litigants to violate the rules with impunity. Liberality
in the interpretation and application of the rules applies only in proper
cases and under justifiable causes and circumstances.[28]
Indeed, the CA may dismiss an appeal for failure to file appellant's brief
on time. It is given the discretion which must be exercised in
accordance with the tenets of justice and fair play, having in mind the
circumstances obtaining in each case.[29]

In this case, the CA gave petitioner sufficient opportunity to file his

appellant's brief. Instead of complying, however, petitioner chose to
ignore the many directives of the CA and now puts the blame on his
former counsel Atty. Gallardo, who was allegedly guilty of gross
negligence.
Even if the Court were to admit that Atty. Gallardo was negligent, the
rule is that negligence of counsel binds the client. The only exception is
when the negligence of said counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court. [30] No such
excepting circumstance can be said to be present in this case because
as properly observed by the appellate court, petitioner himself was
guilty of negligence.[31]
As borne by the records, the CA issued a Resolution on April 15, 1999
requiring petitioner to manifest within five days from receipt thereof
the authenticity of his signature appearing in the motion to withdraw as
counsel filed by Atty. Gallardo dated February 1, 1999, and to inform
the CA of his new counsel.[32] On August 27, 1999, the CA granted Atty.
Gallardo's motion to withdraw as counsel and required petitioner anew
to cause the entry of appearance of his new counsel or manifest
whether he desires the CA to appoint a counsel de oficio to defend him,
with a warning that failure to comply with the said resolution shall
cause the dismissal of his appeal. On February 28, 2000, the CA issued
another notice to file brief, this time addressed to Razon himself. [33] In a
Resolution dated July 12, 2000, the CA required Razon to show cause
why his appeal should not be dismissed for failure to file the required
brief.[34] On January 31, 2001, or almost three years after the notice of
appeal was filed, the CA finally issued a resolution dismissing
petitioner's appeal.[35]
Despite the many notices given him, Razon still failed to comply with
the CA's directives. He also took a long time to file his motion for
reconsideration of the CA's January 31, 2001 Resolution because while
he admittedly received a copy of the said resolution on March 6, 2001,
he only filed his motion for reconsideration on July 19, 2001 or more
than four months later.
It is thus clear that petitioner was guilty of neglect. He was aware of his
conviction and of the requirement of filing an appellant's brief. [36] Yet he
had no urgency in filing the same, even with the CA's explicit orders.
His excuse that his educational deficiency prevented him from
complying with the CA's resolutions deserves scant consideration. He
was able to secure the services of counsel to file for him a petition
before this Court. Had he exerted earlier the kind of effort he put in

getting a new counsel, or had he simply notified the court of his desire
to have a counsel de oficio assigned to him, then he would not have to
contend with the predicament he is presently in. For the resolution of
the CA dismissing his appeal on the ground of abandonment, petitioner
has no one else to blame but himself.
The second issue. Whether petitioner acted in self-defense.
While the CA did not rule on the merits of the case, it is best not to
remand the case to the CA. All the records and evidence necessary for
the determination of the innocence or guilt of the petitioner are before
this Court. Thus, for a complete and full disposition of the case and to
avert further delay in the disposition of the same, the Court shall
hereby resolve the case on the merits. [37]
It is settled that when an accused admits killing the victim but invokes
self-defense to escape criminal liability, the accused assumes the
burden to establish his plea by credible, clear and convincing evidence;
otherwise, conviction would follow from his admission that he killed the
victim.[38] Self-defense cannot be justifiably appreciated when
uncorroborated by independent and competent evidence or when it is
extremely doubtful by itself.[39] Indeed, in invoking self-defense, the
burden of evidence is shifted and the accused claiming self-defense
must rely on the strength of his own evidence and not on the weakness
of the prosecution.[40]
Here, petitioner admitted having inflicted the wound which killed
Gonzalo.[41] The burden is therefore on him to show that he did so in
self-defense. As correctly found by the RTC, however, petitioner failed
to prove the elements of self-defense.
To escape liability, the person claiming self-defense must show by
sufficient, satisfactory and convincing evidence that: (1) the victim
committed unlawful aggression amounting to actual or imminent threat
to the life and limb of the person claiming self-defense; (2) there was
reasonable necessity in the means employed to prevent or repel the
unlawful aggression; and (3) there was lack of sufficient provocation on
the part of the person claiming self-defense or at least any provocation
executed by the person claiming self-defense was not the proximate
and immediate cause of the victim's aggression.[42]
The condition sine qua non for the justifying circumstance of selfdefense is the element of unlawful aggression. [43] There can be no selfdefense unless the victim committed unlawful aggression against the
person who resorted to self-defense. [44] Unlawful aggression
presupposes an actual, sudden and unexpected attack or imminent
danger thereof and not just a threatening or intimidating attitude. [45] In
case of threat, it must be offensive, strong and positively showing the
wrongful intent to cause injury.[46] For a person to be considered the
unlawful aggressor, he must be shown to have exhibited external acts
clearly showing his intent to cause and commit harm to the other. [47]
Petitioner claims that Gonzalo, who was seated behind him in the
taxicab, declared a hold-up and poked a knife at the base of his neck.
Granting that this is true, what transpired next, changed the nature of
the roles played by petitioner and Gonzalo.
As correctly found by the trial court:

On re-cross, Razon further admitted that:

Without scrutinizing Razon's assertion that he was held up, and
assuming the same to be true, there was, indeed unlawful
aggression when Gonzalo poked a knife on Razon's neck. But,
whenRazon, in a Herculean feat, was able to grab the knife from
Gonzalo and freed his right hand from the hold of Gonzalo's two
companions, the aggression no longer existed. In fact, Gonzalo's
two companions, went out of the taxicab and Gonzalo himself
went out also towards the canal of the road. At this point, Razon
could have started his taxicab and left the place because he was
left alone in the taxicab. But he did not. He went after Gonzalo
and his two companions and started swinging the knife he
grabbed from Gonzalo. He even had time to go back to the
taxicab and get his own knife and then went back to the three
men. He then was holding two knives. There was no proof that
Gonzalo's companions were able to throw stones at him or the
taxicab to indicate perhaps, that his three passengers who
intended to hold him up continued their unlawful aggression...
When Gonzalo and his two companions went out of the taxicab,
and Razon followed them outside, Razon became the aggressor.
The wounds sustained by Gonzalo would clearly show that he
was attacked by Razon.[48]

Such findings are well supported by the records. During his direct
testimony, Razon admitted that he followed the three men, including
Gonzalo, after they got out of the cab. Then he went back to his cab to
get his knife.[49] On cross-examination, Razon admitted the same thing,
and added the following:
Q. And you said that you swung the knife from left to
right, is that correct?
A. Yes, sir.
Q. And you were able to hit Benedict Kent Gonzalo, Jr.?
A. Yes, sir.
xxx
Q. So you admitted that the injuries sustained by
Benedict Kent Gonzalo in front of his abdomen was due
to your act of swinging the knife from left to right in
front of him?
A. Yes, sir.
xxx
Q. And tell the Court if this is the one that you used, this colonial
knife, previously marked as Exh. A.
A. This is the one, sir.
Q. Yes, you testified the last time that you have to go back to
your taxi cab and get this knife marked as Exh. A?
A. Yes, sir.[50] (Emphasis supplied)

Q. And you went near the canal where Benedict Kent

Gonzalo, Jr. was?
A. Yes, sir.
Q. And the two others were already running away?
A. They were still there at that time.
Q. Do you know that Benedict Kent Gonzalo, Jr. was a victim of
polio?
A. No, sir.
Q. But he did not run unlike the other two?
A. Yes, sir.
Q. He was in the canal which is lower than the road, is
that correct?
A. Yes, sir.
ATTY. GALLARDO:
Witness is demonstrating the height of the canal about one foot,
Your Honor.
ATTY. MOLINTAS:
You have to go near him and go down the canal also, is
that correct?
A. Yes, sir.
Q. That's where you swung your knife left and right towards
Benedict Kent Gonzalo, Jr.?
A. Yes, sir.
Q. And Benedict Kent Gonzalo, Jr. did not try to run away from
you?
A. When I went up to get my taxi, that was the time he run
away, sir.[51] (Emphasis supplied)
Petitioner unequivocally admitted that after the three men went out of
his taxicab, he ran after them and later went back to his cab to get his
colonial knife; then he went down the canal to swing his knife at the
victim, wounding and killing him in the process. Such can no longer be
deemed as self-defense.
It is settled that the moment the first aggressor runs away, unlawful
aggression on the part of the first aggressor ceases to exist; and when
unlawful aggression ceases, the defender no longer has any right to kill
or wound the former aggressor; otherwise, retaliation and not selfdefense is committed.[52] Retaliation is not the same as self-defense. In
retaliation, the aggression that was begun by the injured party already
ceased when the accused attacked him, while in self-defense the

aggression was still existing when the aggressor was injured by the
accused.[53]

is the duty of the Court to correct such errors as may be found in the
judgment appealed from, since an appeal in a criminal case throws the
whole case wide open for review.[66]

vs.
THE PEOPLE OF THE PHILIPPINES and THE INTERMEDIATE
APPELLATE COURT, * respondents.

Even assuming that some danger did in fact exist, the imminence of
that danger had already ceased the moment petitioner was able to
disarm the victim by wresting the knife from the latter. After the former
had successfully seized the weapon, and he as well as his companions
went out of the cab, there was no longer any unlawful aggression to
speak of that would have necessitated the need to kill the victim.[54]

The Court notes that the RTC failed to award the heirs of Gonzalo,
P50,000.00 as civil indemnity for his death.[67] Civil indemnity is
automatically imposed upon the accused without need of proof other
than the fact of commission of murder or homicide. [68]

TEEHANKEE, J.:

The defense employed by petitioner also cannot be said to be

reasonable. The means employed by a person claiming self-defense
must be commensurate to the nature and the extent of the attack
sought to be averted, and must be rationally necessary to prevent or
repel an unlawful aggression.[55] The nature or quality of the weapon;
the physical condition, the character, the size and other circumstances
of the aggressor as well as those of the person who invokes selfdefense; and the place and the occasion of the assault also define the
reasonableness of the means used in self-defense.[56]
In this case, the deceased was a polio victim, which explains the
presence of the wooden cane at the scene of the crime. [57] Petitioner
also admitted that when he went after Gonzalo, he had in his
possession two knives, the Batangas knife he wrested from the holduppers and the colonial knife which he took from his cab.[58]
Other circumstances also render petitioner's claim of self-defense as
dubious and unworthy of belief. The nature and location of the victim's
wounds manifest petitioner's resolve to end the life of the victim. [59]
Here, the wound that killed Gonzalo was 12 cm. deep which was
directed inward and
slightly upward, entering the abdominal cavity, perforating the small
intestines and penetrating the pancreas and the abdominal aorta. [60]
Petitioner also did not inform the authorities at the earliest opportunity
that he wounded Gonzalo in self-defense;[61] neither did he surrender
right away the colonial knife which he used in stabbing the victim. He
only invoked self-defense when he could no longer conceal his deed. As
testified to by Chopchopen, Razon was hesitant at first to go to the
place where he was allegedly held up. [62] Then when Chopchopen
discovered the body of Gonzalo and while they were bringing him to
the hospital, he asked Razon if he was the one who stabbed Gonzalo, to
whichRazon answered in the negative. [63] He only admitted to having
stabbed the victim at the police station after he was investigated by
police officers.[64]
Petitioner's claim that he also suffered injuries brought by the attack on
him by the victim is belied by the testimonies of police officers
Chopchopen and Bumangil who said that they did not see any injury on
Razon on the night in question.[65]

Anent actual damages, the Court resolves to delete the same and in
lieu thereof imposes temperate damages in the amount of P25,000.00.
This is consistent with the ruling of the Court in People v. Werba,[69]
citing People v. Villanueva[70] which held that in instances where actual
expenses amounting to less than P25,000.00 are proved during the
trial, the award of temperate damages of P25,000.00 is justified in lieu
of the actual damages of a lesser amount. [71] In this case, Gonzalo's
heirs were only able to present receipts amounting to P4,925.00.[72]
As to moral damages, the RTC correctly awarded the amount of
P50,000.00, as the prosecution was able to show that the father of the
victim, Benedicto Gonzalo, Sr., suffered mental and emotional anguish
due to the untimely death of his son. Gonzalo Sr., who was 74 years old
at the time of his testimony, said that he had special affection for his
son, not only because he was the youngest among all his children, but
also because he was a polio victim. He said that he could not eat and
sleep thinking that his son could not have put up a fight due to his
physical disability.[73] Indeed, moral damages may be awarded in favor
of the heirs of a victim upon sufficient proof of mental anguish, serious
anxiety, wounded feelings and similar
[74]

injury.

The RTC also did not err in awarding P10,000.00 as attorney's fees to
the heirs of the victim. As provided for in Art. 2208 (11) [75] of the Civil
Code, attorney's fees may be awarded where the court deems it just
and equitable that attorney's fees and expenses of litigation should be
recovered. In this case the award of attorney's fees is proper as it is
borne by the records that the family of the victim hired the services of
a private lawyer to prosecute the case. [76]
WHEREFORE, the Decision of the Regional Trial Court, Branch 60,
Baguio City, in Criminal Case No. 12245-R, entitled People of the
Philippines v. Edwin Razon y Lucea isAFFIRMED with MODIFICATION
to the effect that petitioner is ordered to pay the heirs of Benedict Kent
Gonzalo, Jr. the amount of P50,000.00 as civil indemnity andP25,000.00
as temperate damages in addition to P50,000.00 as moral damages
and P10,000.00 as attorney's fees.
SO ORDERED.

With petitioner's failure to prove self-defense, the inescapable

conclusion is that he is guilty of homicide as correctly found by the RTC.
As to the damages awarded by the RTC, however, the Court finds that
certain modifications need to be made. While not assigned as errors, it

NOLI

ESLABON, petitioner,

Petitioner-accused was charged with murder for having stabbed to

death on August 28, 1976 the deceased Elias Harder with treachery as
the alleged qualifying circumstance. After trial, the trial court in its
decision of March 27, 1981 found that petitioner acted in incomplete
defense of a relative on the ground that he failed to discharge the
burden of proving the element of reasonable necessity of the means
employed to repel the unlawful aggression of the deceased against the
petitioner's first cousin, Francisco Gabutin, a barangay captain of their
barangay, and sentenced him to suffer imprisonment of not less than 2
years and 1 month of prision correccional and not more than 6 years
and 6 months of prision mayor, to indemnify the heirs of the deceased
in the sum of P12,000.00, to pay the costs and to suffer an the
accessory penalties provided for by law. On appeal, the Intermediate
Appellate Court in its decision of June 17, 1983 found no reversible
error and affirmed the appealed judgment.
Hence, the present petition for review on certiorari of respondent
appellate court's decision. After receiving the required comment of the
Solicitor General on behalf of respondent People, the Court has found
the petition to be meritorious and, therefore, dispensing with briefs and
memoranda, resolved to proceed to render this judgment.
The facts as discussed in respondent appellate court's decision are as
follows:
From the testimony of [lone eyewitness 1 ] Rolando Mucho, the theory
of the prosecution is as follows:
Noli Eslabon is the first cousin of Barangay Captain Francisco Gabutin
of Barangay San Roque, Buenavista, sub-province of Guimaras. On the
evening of August 28, 1976, a public dance was hold in said barangay.
Fronting the dance hall was a rolling store run by Elias Harder. To
maintain peace and order, three police officers were assigned in said
public dance. At about 11:30 p.m. when the dance ended, the
barangay captain's wife, Dominica Gabutin, told Elias Harder, who was
then standing near his rolling store, to go home. Harder complained
that the others should also be told to go home but he grudgingly
followed Dominica's suggestion. On his way home, Harder discovered
that a box of his wares for sale was missing so he and his companions
Romeo Mucho and Rolando Mucho returned to the place where his
rolling store was and inquired from Francisco Gabutin about his missing
box. An argument ensued between Harder and Francisco. Angered by
the loss of his box of wares for following the order of Dominica Gabutin,
Harder during the argument thrust his scythe with a blunt end at
Francisco and it (went) stuck below Francisco's right armpit. While
Harder and Francisco were grappling in a standing position, Noli
Eslabon approached them and stabbed Harder twice and Harder
dropped to the ground and lost consciousness. Immediately thereafter,
Romeo Mucho raised Harder and loaded him into a Ford Fiera. Harder
and Francisco were taken to the Holy Clinic and Hospital in Iloilo City
where Francisco was confined for a day and was treated by Dr. Catalino

Nava for a 'stab wound right posters-anterior axially line about 2-

inches long and one centimeter depth (Exh. 2); and that barring any
complications, said wound would heal from 15 to 21 days.
On the other hand, Harder was found to have sustained the following
injuries:
HEAD AND NECK
1) Abrasion, vertical 2 in numbers, 3.7 cm. long, and 2 cat long, right
forehead
THORAX:
1) Stab wound, slightly diagonal sharp on the infero-lateral end, 1.8 x.
0.4 cm. long, 1.0 cm. medial and level from the left nipple, 11 cm. from
the anterior median line, and 45.75 inches from the left heel, level of
the 3rd intercostal space, penetrating, perforating thru and thru the
mid-portion of the right ventricle 1.2 cm. long; about 400 cc of blood
was extracted from the pericardial sac. The direction of the wound is
from left antero-osteriorly medially and slightly downward.
ABDOMEN
No pertinent findings.
EXTREMITIES
1) Stab wound, gaping, sharp on the lateral end, 2.5 x 0.9 cm. in dia
antero-lateral aspect, lower 3rd, left arm, directed downward, muscle
deep.
2) Stab wound, gaping, sharp on the lateral end, 1.2 cm. long, lower
3rd, medial aspect, left arm directed downward, muscle deep.
3) Confluent abrasion 2.5 x 1.2 cm. in dia posterior middle 3rd, left
forearm (Exh. "A", p. 1, Folio of Exhibits; pp. 2-4, tsn., Feb. 23, 1978)
He died due to 'shock cardiac tamponade, due to stab wound (Exh. A).
On the other hand, appellant Eslabon claimed that on the evening of
August 28, 1976, Dominica and Francisco Gabutin attended the dance
at the auditorium of Bo. San Roque, Francisco as barangay captain and
Dominica, because she was in charge of collecting the tickets at the
gate; that the dance ended at about 11:30 p.m. whereupon Dominica
approached Sgt. Rodillo Galve, Chief of Police, telling him that they
were going ahead; that on her way, Dominica passed by the rolling
store of Elias Harder and told him that they were going home as it was
late; that she then continued on her way to catch up with her husband
Francisco who was already ahead; that as she walked hurriedly,
Dominica heard someone running after her and as she turned around,
she saw Elias Harder who then slapped her; that Dominica asked Elias
why he had done so and the latter answered that he resented her

remarks that he should go home that Dominica replied that her

remarks were a courtesy to him but before she could finish her
statement, Harder ran after Francisco who was some 15 arms length
ahead; that as Harder approached Francisco, the latter asked Harder
what had happened regarding his (Harder's) comadre but the latter
answered, "Ano haw?" meaning, "What is it to you?", that at the same
time, Harder struck Francisco with a scythe hitting the latter in the
body, that at this point, Francisco shouted for help whereupon Harder
pulled Francisco with a scythe which got stuck in Francisco's right
armpit; that to protect himself, Francisco embraced Harder and then
Francisco fell to the ground with Harder on top of him and continuing to
slash him that at this juncture, appellant Noli Eslabon, a court of
Francisco Gabutin, came to Francisco's rescue and stabbed Harder at
the left arm which was holding the scythe; that as the stab was made
sideways, Eslabon's knife penetrated the whole left arm of Harder and
reached his chest; that despite the stab wound, Harder did not release
his hold on Francisco so Eslabon struck Harder with his hand; that at
this point, Pat. Davies arrived and pulled Francisco from the clutches of
Harder; that the two, Francisco and Harder, were taken to the hospital
for treatment; and that Francisco was treated only for one day in the
hospital and was released but Harder died in said hospital.
The trial court and respondent appellate court found present the
elements for the petitioner's actions in defense of his first cousin
Francisco in that there was unlawful aggression on the part of the
deceased nor was there sufficient provocation on the part of Francisco
who was the subject of the aggression and much less was there any
provocation on the part of petitioner, but ruled against the reasonable
necessity of the means employed by petitioner to repel the unlawful
aggression on the part of the deceased.
Respondent court upheld petitioner's submittal that notwithstanding
that Francisco was treated for only one day in the hospital, he in fact
suffered less serious physical injuries that would take some 15 to 21
days to heat barring any complications, as follows:
Appellant insists that the court a quo erred in concluding that the injury
sustained by Francisco Gabutin was only slight and in finding that Dr.
Catalino Nava did not testify that said injury would heal in 15 to 21
days. A careful review of the record sustains the appellant's claim. The
medical certificate issued by Dr. Nava on November 2, 1976 (EXIL 2)
clearly shows that the stab wound suffered by Francisco Gabutin would
heal from 15 to 21 days barring any complications Dr. Nava indeed
testified to and confirmed the correctness of the recitals of Exhibit 2.
Under Article 265 of the Revised Penal Code, where the injuries
sustained by the offended party would incapacitate him from labor or
require medical attendance for ten days or more, the crime would be
less serious and not slight physical injuries. This fact, notwithstanding,
Francisco Gabutin did not suffer any fatal wounds that would have
required the appellant's act of stabbing Elias Harder.
Respondent court rejected petitioner's claim of having delivered only
one thrust at the deceased while conceding that "two of Harder's stab
wounds on the left chest and left forearm could have been caused by
one knife thrust according to Dr. Jose Rafio," but "the third stab wound
on the left arm must have been caused by another knife thrust."

But it ruled against the reasonable necessity of the means employed

by the petitioner, as follows:
... Appellant's act of stabbing Elias Harder twice was clearly
unnecessary. The scythe used against Gabutin had a blunt end and was
merely stuck below Gabutin's right armpit. Under such circumstance,
the wounding of Francisco was not sufficient to imperil his life.
Appellant himself admitted that he did not intend to seriously injure
Harder but merely wanted to release Harder's hold on Francisco
because the scythe stuck on the latter's armpit. Appellant likewise
claimed that the deceased Harder could not have possibly inflicted
another injury on Gabutin because the curve of the scythe's blade
rendered it difficult for such weapon to be dislodged. Moreover, three
police officers had previously been assigned in the area to maintain
peace and order and, according to Dominica Gabutin, when the dance
ended at about 11:30 p.m. said police officers were still around and,
according to witness Rolando Mucho, they were only short distance
from the scene of the incident. If the appellant's purpose was merely to
release Francisco Gabutin from the hold of Elias Harder, appellant
should have sought the aid of one of the police officers and should not
have taken the law into his hands by repeatedly stabbing the
deceased. Indeed, defense witness Francisco Gabutin testified that he
and the deceased were still grappling when Pat. Davies separated them
by firing his gun into the air and holding him at the back of his collar.
The Court is not convinced and grants the petitioner the benefit of the
doubt on the ground of established jurisprudence that the gauge of
rational necessity of the means employed to repel the aggression as
against one's self or in defense of a relative is to be found in the
situation as it appears to the person repelling the aggression. It has
been held time and again that the reasonableness of the means
adopted is not one of mathematical calculation or "material
commensurability between the means of attack and defense but the
imminent danger against the subject of the attack as perceived by the
defender and the instinct more than reason that moves the defender to
repel the attack. It has further been stress in such cases that to the
imminent threat of the moment, one could not be hoped to exercise
such calm judgment as may be expected of another not laboring under
any urgency and who has sufficient time to appraise the urgency of the
situation. 2
Tested by these standards, petitioner's acts justified the knife thrust(s)
that he delivered at the deceased in order to stop the latter's attack
against Francisco who had already suffered a substantially serious
wound with the scythe imbedded in his right armpit which the
deceased did not let go. Since there is evidence that the deceased
aggressor was bigger than Francisco, he could have inflicted with a
little more effort a much more serious, if not fatal, wound on
Francisco. 3 The stab wounds inflicted by petitioner on the deceased
were all directed at the left forearm of the deceased, sustaining
petitioner's statement that he did not intend to seriously injure Harder
but merely wanted to release the latter's hold on Francisco because the
scythe was stuck under the latter's armpit. In view of the fact that
Francisco and Harder were grappling, it is entirely credible that the
same knife thrust at Harder's left arm caused the wound on Harder's
left chest as testified by the attending doctor, which wound
unfortunately proved fatal. Under the emergency situation confronting
the petitioner, who feared for the life of Francisco, it would have been

rash and unnatural on his part, as rationalized by respondent court, if

he were yet to look for a police officer instead of rushing to the defense
of Francisco who was under serious attack and in grave danger.
ACCORDINGLY, the Court sets aside the appealed judgment of
respondent appellate court and instead renders judgment acquitting
the petitioner-accused.

G.R. No. L-43588

November 7, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs.

NATIVIDAD LUAGUE and WENCESLAO ALCANSARE DefendantsAppellant.
RECTO, J.:
The spouses Wenceslao Alcansare and Natividad Luague having been
charged with homicide in the Court of First Instance of Occidental
Negros and sentenced, the former to the penalty of from eight years
and one day of prision mayor, as the minimum, to fourteen years, eight
months and one day of reclusion temporal, as the maximum, with the
accessories of the law, and the latter to that of from six years and one
day of prision mayor, as the minimum, to twelve years and one day of
reclusion temporal, as the maximum, with the accessory penalties of
the law, both to indemnify jointly and severally the heirs of Paulino
Disuasido in the sum of one thousand pesos, with costs, appealed to
this court for a review of the judgment rendered against them, praying
that the same reversed and that they be acquitted.
Upon examination of the appeal, it appears: that in the morning of
February 18, 1935, while the accused Natividad Luague was in her
house situated in Lupuhan, barrio of Agpagi, municipality of Calatrava,
Occidental Negros, with only her three children of tender age for
company, her husband and co-accused Wenceslao Alcansare having
gone to grind corn in Juan Garing's house several kilometers away,
Paulino Disuasido came and began to make love to her; that as
Natividad could not dissuade him from his purpose, she started for the
kitchen where Paulino followed her, notwithstanding her instance that
she could by no means accede to his wishes, for Paulino, bent on
satisfying them at all costs, drew and opened a knife and, threatening
her with death, began to embrace her and to touch her breasts; that in
preparing to lie with her, Paulino had to leave the knife on the floor and
the accused, taking advantage of the situation, picked up the weapon
and stabbed him in the abdomen; and that Paulino, feeling himself
wounded, ran away jumping through the window and falling on some
stones, while the accused set forth immediately for the poblacion to
surrender herself to the authorities and report the incident.
Natividad Luague's act in mortally wounding Paulino Disuasido,
unaided her husband and co-accused Wenceslao Alcansare, and in the
circumstances above set out, constitutes the exempting circumstance
defined in article 11, subsection 1, of the Revised Penal Code, because,
as stated by a commentator of note, "aside from the right to life on
which rest the legitimate defense of our person, we have the right to

party acquired by us, and the right to honor which is not the least
prized of man's patrimony." (1 Viada, 172, 173, 5th edition.) "Will the
attempt to rape a woman constitute an aggression sufficient to put her
in a state of legitimate defense?" asks the same commentator. "We
think so," he answer, "inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, cannot her very
existence; this offense, unlike ordinary slander by word or deed
susceptible of judicial redress, in an outrage which impresses an
indelible blot on the victim, for, as the Roman Law says: quum
virginitas, vel castitas, corupta restitui non protest (because virginity or
chastity, once defiled, cannot be restored). It is evident that a woman
who, imperiled, wounds, nay kills the offender, should be afforded
exemption from criminal liability provided by this article and subsection
since such killing cannot be considered a crime from the moment it
became the only means left for her to protect her honor from so great
an outrage." (1 Viada, 301, 5th edition.)
Similar to the present question was the one determined the Supreme
Court of Spain in a decision of February 21, 1911: "This court in due
homage to the principles of morality and in strict observance of the
provision of law justly interpreted, has always held that one of the
rights referred to in article 8, subsection 4, of the Penal Code, is that
which assists a woman in defense of her honor when an attempt is
made to repel the aggression or to avoid in time the imminent danger
of its consummation; and in view of this, it must be conceded upon the
findings of the trial court, that the accused Maria Sanchez Caistro
acted in legitimate self-defense, because the conduct of Diego
Cardenas, who made love to her, in blowing in at midnight, knocking at
the door and demanding admittance and against Maria's refusal,
insisting in his purpose and threatening to break open the door, in the
light of prior events and the circumstances of the case, implies the
imminence of an affront against honor, involving an actual and certain
danger to the person so threatened, while at the same time the fact
that she was alone that no help was forthcoming; her founded fear that
the door might give way and the dreaded evil wrought, her consequent
helplessness on the advent of that crisis, and her natural desire to
attest openly her conjugal fidelity by foiling all suspicious aspersions,
show the reasonableness of the defensive measures availed of by her
and warrant her complete exemption from liability, inasmuch as, aside
from all these, it does not appear from the decision that said accused
had previously committed any act deserving of censure or marring the
just motive which obviously induced her to repel, as she did, a violence
unprovoked by her. Thus viewed, all the requisites of the exempting
circumstance above mentioned are present and should be taken into
consideration, etc." (1 Viada, 304, 5th edition.)
The theory the prosecution, which we consider a trifle unsubstantial is
as follows: The accused Wenceslao Alcansare, thinking that Paulino
importuned his wife with unchaste advances, out of jealousy, decided
to get rid of him. His chance to bring about his plan can when, in the
morning of the crime, Paulino happened to pass in front of the house of
the spouses with his friend Olimpio Libosada. The accused wife invited
Paulino to drop in, which the letter and his friend did. The spouses met
them at the threshold. The accused wife asked Paulino whether he had
a knife and as the latter answered in the affirmative, she asked him to
lend it to lend it to her because she wanted to cut her nails, to which
Paulino willingly acceded, while the accused wife was cutting her nails,
she asked Paulino where he came from and the latter answered,
turning his head around, that he came from the house of one Inting,

whereupon the accused wife slashed him in the abdomen. Paulino tried
to return the blow but the accused husband picked up a stone and
struck him in the forehead. Wounded in the abdomen and in the
forehead, Paulino fled therefrom.
The government presented three witnesses to establish this theory.
Pablo Alvarez, barrio lieutenant of Cabugahan, testified that on his
way to "communal" the day before the crime, he met the accused wife
who told him that she had wanted to see him and ask his help because
her husband, who was jealous of Paulino, was maltreating her and he
was furthermore resolved to assault Paulino at sight. On the following
day, Alvarez, in his way to Bacacay, dropped in the house of the
accused spouses to inquire whether they had tobacco seeds and, as
they answered him in the negative, he went his way. He had hardly left
the place when Paulino and Olimpio arrived, the accused wife inviting
the former to drop in. Paulino and Olimpio went to the threshold of the
house and the accused spouses, in turn, went down, and the four
engaged in a conversation which, to Alvarez, seemed a friendly one.
The witness left and when he returned to the place sometime later, he
was informed that Paulino had been stabbed.
The accused were from the barrio of Agpagi and not from Cabugahan
where the witness was the barrio lieutenant. Had the accused wife
gone to complain against the alleged conduct of her husband, she
would have sought the lieutenant of Agpagi, her barrio. The accused
wife, by reporting the incident directly to the municipal authorities
without seeking the intervention of any barrio lieutenant, showed that
she knew where to go in a difficulty.
Were it true that the accused husband, prompted by jealousy, designed
to do away with Paulino, it would have been because he observed that
his wife somehow returned Paulino's attentions, for otherwise he would
not have indulge in tragic cogitations. From any point of view, however,
it is quite incomprehensible why the wife would take upon herself and
the husband would charge her with, the execution of the plan. The
observation is no less true if the spouses plotted in common for it
would have been patently disgraceful and cowardly of the husband to
thrust its execution upon the wife at the hazard of her life, and liberty
to shield his own, in the event of prosecution; and there is the husband
was thus minded. Under the theory of the prosecution, whether the
accused husband doubted his wife's fidelity or was sure of it, in
connection with Paulino's attentions, the natural thing in either case
would be for him, unaided by his wife, to avenge the affront or punish
the offender. In the case at bar, we must assume that, if the motive
attributed to him by the prosecution were true, the accused would
have acted, as would the great majority of men in identical
circumstances.
The witness Alvarez, himself testified that he was informed the day
before by the wife of the accused husband that the latter would get
even with Paulino at the first opportunity. The witness saw them
together in the morning of the crime and he should have surmised that
the announced tragedy might take place. Rather than foil it, as an
agent of the law, if for no other reason, he went his way unconcerned,
as if nothing serious was impending.
We find his conduct, or that which he claims to have followed, so
extremely strange to be considered true. When the truth is beyond our

reach, as is often the case, we have to be contented with the probable.

This is the basis of the so-called presumptions of fact. The acts which
this witness claims to have done are so out of ordinary conduct of men
as to be devoid of probability. Occasionally, indeed, there are those
who behave strangely, but this is the exception and not the rule.
In addition to this, the theory of the prosecution that the accused
husband and his wife had conspired to kill Paulino is overcome by the
very facts which the prosecution itself has attempted to prove. If such
conspiracy had really existed, the accused spouses would have been
fully prepared to carry it into execution, because rational beings differ
from those who are not in that when they embark on anything, they
make the s equal to its realization. However, these amused, on the on,
had neither a rusty bolo nor an outworn club to cope with Paulino. The
weapon with which Paulino was first wounded was his own knife which,
according to the prosecution, the accused wife had to borrow from him
on the pretext that she wanted to cut her nails, and later a stone which
the accused husband casually picked up from the ground. Yarns of this
kind make good material for fables.
Angel Emia, the other government witness who testified at the trial
that he saw the crime attributed to the two accused by the
prosecution, made a previous statement wherein he disclaimed
knowledge of who had stabbed Paulino. Required to explain the
contradiction, he bungled in his attempt. The trial judge erred in giving
him credit. Olimpio Libosada, another government witness, likewise
affirmed that he had seen all that bad transpired, claiming that he then
accompanied Paulino, It seem strange, however, that in the two
statements made by Paulino before his death he did not state that he
was accompanied by Libosada or by any other person in the morning of
the crime. It likewise happens that the conduct of this witness,
according to his own testimony, appears to be inconsistent because he
did nothing to defend and help Paulino, his friend and companion, in
that most critical moment, and did not report the crime to the
authorities, disappearing from the scene all of a sudden with a very
frivolous excuse that "he was afraid to be implicated". Furthermore,
after discarding the testimony of Angel Emia, there is nothing to
corroborate that of Olimpio Libosada which, by its inherent weakness,
cannot be alone and unsubstantiated by other reliable incriminatory
circumstances, support a judgment of conviction.
As to the two statements, Exhibit C and D, styled, ante mortem by the
Solicitor-General, the trial court properly disregarded because them
there is no evidence of record that Paulino had made them under a
sense of impending death and with no hope of recovery.
The trial judge gave unusual importance to the testimony of the two
policemen who testified that they made an ocular inspection of the
scene of the crime and found no bloodstain in the kitchen of the house
of the accused spouses. This, according to the trial judge, destroys the
theory of the defense that Paulino was stabbed in said kitchen by the
accused wife when he tried to lie with her through intimidation and
violence. We are of the opinion that the trial judge erred on this point
as he did on others. It appears that the said policemen did not also find
any bloodstain on the threshold of the house of the accused spouses
where, according to the prosecution, the aggression took place.
Therefore, said testimony contradicts the defense no less than it does
the prosecution.

In resume, we are of the opinion that we should, as we do hereby hold

that the accused Natividad Luague in wounding Paulino Disuasido to
death, acted in legitimate self-defense, and that the other accused
Wenceslao Alcansare had no participation in said act; wherefore,
reversing the appealed judgment, we hereby acquit both accused, and
order their immediate release, if in confinement, with costs de oficio.
C.A. No. 384

February 21, 1946

THE
PEOPLE
OF
THE
PHILIPPINES,
plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of
First Instance of Tayabas, for the crime of murder, of which Nicolas
Jaurigue was acquitted, but defendant Avelina Jaurigue was found
guilty of homicide and sentenced to an indeterminate penalty ranging
from seven years, four months and one day of prision mayorto thirteen
years, nine months and eleven days of reclusion temporal, with the
accessory penalties provided by law, to indemnify the heirs of the
deceased, Amando Capina, in the sum of P2,000, and to pay one-half of
the costs. She was also credited with one-half of the period of
preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed
to the Court of Appeals for Southern Luzon, and in her brief filed
therein on June 10, 1944, claimed
(1) That the lower court erred in not holding that said appellant
had acted in the legitimate defense of her honor and that she
should be completely absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the
additional mitigating circumstances that (a) she did not have the
intention to commit so grave a wrong as that actually committed,
and that (b) she voluntarily surrendered to the agents of the
authorities; and
(3) That the trial court erred in holding that the commission of the
alleged offense was attended by the aggravating circumstance of
having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below,
has sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the
deceased Amado Capina lived in the barrio of Sta. Isabel, City of San
Pablo, Province of Laguna; that for sometime prior to the stabbing of
the deceased by defendant and appellant, in the evening of September
20, 1942, the former had been courting the latter in vain, and that on
one occasion, about one month before that fatal night, Amado Capina
snatched a handkerchief belonging to her, bearing her nickname

"Aveling," while it was being washed by her cousin, Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her
house, Amado approached her and spoke to her of his love, which she
flatly refused, and he thereupon suddenly embraced and kissed her
and touched her breasts, on account of which Avelina, resolute and
quick-tempered girl, slapped Amado, gave him fist blows and kicked
him. She kept the matter to herself, until the following morning when
she informed her mother about it. Since then, she armed herself with a
long fan knife, whenever she went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house
of defendant and appellant, and surreptitiously entered the room where
she was sleeping. He felt her forehead, evidently with the intention of
abusing her. She immediately screamed for help, which awakened her
parents and brought them to her side. Amado came out from where he
had hidden under a bed in Avelina's room and kissed the hand of
Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's
mother made an attempt to beat Amado, her husband prevented her
from doing so, stating that Amado probably did not realize what he was
doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada,
and for Amado's parents, the following morning. Amado's parents came
to the house of Nicolas Jaurigue and apologized for the misconduct of
their son; and as Nicolas Jaurigue was then angry, he told them to end
the conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information
that Amado had been falsely boasting in the neighborhood of having
taken liberties with her person and that she had even asked him to
elope with her and that if he should not marry her, she would take
poison; and that Avelina again received information of Amado's
bragging at about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20,
1942, Nicolas Jaurigue went to the chapel of the Seventh Day
Adventists of which he was the treasurer, in their barrio, just across the
provincial road from his house, to attend religious services, and sat on
the front bench facing the altar with the other officials of the
organization and the barrio lieutenant, Casimiro Lozada. Inside the
chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly
after the arrival of her father, also for the purpose of attending religious
services, and sat on the bench next to the last one nearest the door.
Amado Capina was seated on the other side of the chapel. Upon
observing the presence of Avelina Jaurigue, Amado Capina went to the
bench on which Avelina was sitting and sat by her right side, and,
without saying a word, Amado, with the greatest of impudence, placed
his hand on the upper part of her right thigh. On observing this highly
improper and offensive conduct of Amado Capina, Avelina Jaurigue,
conscious of her personal dignity and honor, pulled out with her right
hand the fan knife marked Exhibit B, which she had in a pocket of her
dress, with the intention of punishing Amado's offending hand. Amado
seized Avelina's right hand, but she quickly grabbed the knife with her
left hand and stabbed Amado once at the base of the left side of the
neck, inflicting upon him a wound about 4 1/2 inches deep, which was
necessarily mortal. Nicolas Jaurigue, who was seated on one of the
front benches, saw Amado bleeding and staggering towards the altar,

and upon seeing his daughter still holding the bloody knife, he
approached her and asked: "Why did you do that," and answering him
Avelina said: "Father, I could not endure anymore." Amado Capina died
from the wound a few minutes later. Barrio lieutenant Casimiro Lozada,
who was also in the same chapel, approached Avelina and asked her
why she did that, and Avelina surrendered herself, saying: "Kayo na po
ang bahala sa aquin," meaning: "I hope you will take care of me," or
more correctly, "I place myself at your disposal." Fearing that Amado's
relatives might retaliate, barrio lieutenant Lozada advised Nicolas
Jaurigue and herein defendant and appellant to go home immediately,
to close their doors and windows and not to admit anybody into the
house, unless accompanied by him. That father and daughter went
home and locked themselves up, following instructions of the barrio
lieutenant, and waited for the arrival of the municipal authorities; and
when three policemen arrived in their house, at about 10 o'clock that
night, and questioned them about the incident, defendant and
appellant immediately surrendered the knife marked as Exhibit B, and
informed said policemen briefly of what had actually happened in the
chapel and of the previous acts and conduct of the deceased, as
already stated above, and went with said policemen to the police
headquarters, where her written statements were taken, and which
were presented as a part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however
humble they may be, is universal. It has been entertained and has
existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and
that a virtuous woman represents the only true nobility. And they are
the future wives and mothers of the land. Such are the reasons why, in
the defense of their honor, when brutally attacked, women are
permitted to make use of all reasonable means available within their
reach, under the circumstances. Criminologists and courts of justice
have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show
loyalty to womanhood, as in the days of chivalry. There is a country
where women freely go out unescorted and, like the beautiful roses in
their public gardens, they always receive the protection of all. That
country is Switzerland.
In the language of Viada, aside from the right to life on which rests the
legitimate defense of our own person, we have the right to property
acquired by us, and the right to honor which is not the least prized of
our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression
sufficient to put her in a state of legitimate defense, inasmuch as a
woman's honor cannot but be esteemed as a right as precious, if not
more, than her very existence; and it is evident that a woman who,
thus imperiled, wounds, nay kills the offender, should be afforded
exemption from criminal liability, since such killing cannot be
considered a crime from the moment it became the only means left for
her to protect her honor from so great an outrage (1 Viada, Codigo
Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in

killing her aggressor, in the defense of her honor. Thus, where the
deceased grabbed the defendant in a dark night at about 9 o'clock, in
an isolated barrio trail, holding her firmly from behind, without warning
and without revealing his identity, and, in the struggle that followed,
touched her private parts, and that she was unable to free herself by
means of her strength alone, she was considered justified in making
use of a pocket knife in repelling what she believed to be an attack
upon her honor, and which ended in his death, since she had no other
means of defending herself, and consequently exempt from all criminal
liability (People vs. De la Cruz, 16 Phil., 344).

admitting having stabbed the deceased, immediately after the

incident, and agreed to go to her house shortly thereafter and to
remain there subject to the order of the said barrio lieutenant, an agent
of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the
further fact that she had acted in the immediate vindication of a grave
offense committed against her a few moments before, and upon such
provocation as to produce passion and obfuscation, or temporary loss
of reason and self-control, should be considered as mitigating
circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs.
Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

And a woman, in defense of her honor, was perfectly justified in

inflicting wounds on her assailant with a bolo which she happened to
be carrying at the time, even though her cry for assistance might have
been heard by people nearby, when the deceased tried to assault her
in a dark and isolated place, while she was going from her house to a
certain tienda, for the purpose of making purchases (United States vs.
Santa Ana and Ramos, 22 Phil., 249).

Defendant and appellant further claims that she had not intended to
kill the deceased but merely wanted to punish his offending hand with
her knife, as shown by the fact that she inflicted upon him only one
single wound. And this is another mitigating circumstance which should
be considered in her favor (United States vs. Brobst, 14 Phil., 310;
United States vs. Diaz, 15 Phil., 123).

In the case, however, in which a sleeping woman was awakened at

night by someone touching her arm, and, believing that some person
was attempting to abuse her, she asked who the intruder was and
receiving no reply, attacked and killed the said person with a pocket
knife, it was held that, notwithstanding the woman's belief in the
supposed attempt, it was not sufficient provocation or aggression to
justify her completely in using deadly weapon. Although she actually
believed it to be the beginning of an attempt against her, she was not
completely warranted in making such a deadly assault, as the injured
person, who turned out to be her own brother-in-law returning home
with his wife, did not do any other act which could be considered as an
attempt against her honor (United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado
Capina, when the latter climbed up her house late at night on
September 15, 1942, and surreptitiously entered her bedroom,
undoubtedly for the purpose of raping her, as indicated by his previous
acts and conduct, instead of merely shouting for help, she could have
been perfectly justified in killing him, as shown by the authorities cited
above..
According to the facts established by the evidence and found by the
learned trial court in this case, when the deceased sat by the side of
defendant and appellant on the same bench, near the door of the
barrio chapel and placed his hand on the upper portion of her right
thigh, without her consent, the said chapel was lighted with electric
lights, and there were already several people, about ten of them, inside
the chapel, including her own father and the barrio lieutenant and
other dignitaries of the organization; and under the circumstances,
there was and there could be no possibility of her being raped. And
when she gave Amado Capina a thrust at the base of the left side of his
neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his
death a few moments later, the means employed by her in the defense
of her honor was evidently excessive; and under the facts and
circumstances of the case, she cannot be legally declared completely
exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily
and unconditionally surrendered to the barrio lieutenant in said chapel,

The claim of the prosecution, sustained by the learned trial court, that
the offense was committed by the defendant and appellant, with the
aggravating circumstance that the killing was done in a place
dedicated to religious worship, cannot be legally sustained; as there is
no evidence to show that the defendant and appellant had murder in
her heart when she entered the chapel that fatal night. Avelina is not a
criminal by nature. She happened to kill under the greatest
provocation. She is a God-fearing young woman, typical of our country
girls, who still possess the consolation of religious hope in a world
where so many others have hopelessly lost the faith of their elders and
now drifting away they know not where.
The questions raised in the second and third assignments of error
appear, therefore, to be well taken; and so is the first assignment of
error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to
death the deceased Amado Capina, in the manner and form and under
the circumstances above indicated, the defendant and appellant
committed the crime of homicide, with no aggravating circumstance
whatsoever, but with at least three mitigating circumstances of a
qualified character to be considered in her favor; and, in accordance
with the provisions of article 69 of the Revised Penal Code, she is
entitled to a reduction by one or two degrees in the penalty to be
imposed upon her. And considering the circumstances of the instant
case, the defendant and appellant should be accorded the most liberal
consideration possible under the law (United States vs. Apego, 23 Phil.,
391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43
Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of
homicide; and if it should be reduced by two degrees, the penalty to be
imposed in the instant case is that of prision correccional; and pursuant to
the provisions of section 1 of Act No. 4103 of the Philippine Legislature,
known as the Indeterminate Sentence Law, herein defendant and appellant
should be sentenced to an indeterminate penalty ranging from arresto
mayor in its medium degree, to prision correccional in its medium degree.
Consequently, with the modification of judgment appealed from, defendant
and appellant Avelina Jaurigue is hereby sentenced to an indeterminate
penalty ranging from two months and one day of arresto mayor, as

minimum, to two years, four months, and one day ofprision correccional, as
maximum, with the accessory penalties prescribed by law, to indemnify the
heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the
corresponding subsidiary imprisonment, not to exceed 1/3 of the principal
penalty, in case of insolvency, and to pay the costs. Defendant and
appellant should also be given the benefit of 1/2 of her preventive
imprisonment, and the knife marked Exhibit B ordered confiscated. So
ordered..

M A N U E L O. O R I E N T E ,

premedita tion and treacher y, ta king advantage of

superior strength, did then and there wil lfully ,
unlawfully and feloniously attack, assault and
employ personal violence upon the person of one
R O M U LO C A R I O Y VA L LO b y t h e n a n d t h e r e h i t t i n g
h i m w i t h a l e a d p i p e o n t h e d i ff e r e n t p a r t s o f h i s
b o d y t h e r e b y i n fl i c t i n g u p o n h i m s e r i o u s a n d m o r t a l
wounds which were the direct and immediat e cause
of his death, to the damage and prejudice of the
heirs of the victim.

G.R. No. 155094

C O N T RA RY T O L AW. [ 3 ]

Pe t i t i o n e r ,

Upon arraignment, petitioner pleaded not guilty to the

c r i m e c h a r g e d . T h e r e a ft e r , t r i a l o n t h e m e r i t s e n s u e d .
- versus -

The e vidence presented by

summarized by the CA, are as fol lows:

the

parties,

The prosecutions version of the case is as

follows:
PEOPLE OF THE
PHILIPPINES,

Pr o m u l g a t e d :

Re s p o n d e n t .

January 30, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

A U S T R I A - M A RT I N E Z , J . :

Fo r r e v i e w b e f o r e t h e C o u r t a r e t h e D e c i s i o n [ 1 ]
d a t e d Fe b r u a r y 1 4 , 2 0 0 2 o f t h e C o u r t o f A p p e a l s ( C A )
w h i c h a ffi r m e d t h e D e c i s i o n o f t h e Re g i o n a l Tr i a l C o u r t o f
Q u e z o n C i t y , B r a n c h 1 0 3 ( RTC ) , d a t e d N o v e m b e r 1 5 ,
1 9 9 9 , i n C r i m i n a l C a s e N o . 9 6 - 6 5 3 1 3 , fi n d i n g M a n u e l
Oriente(petitioner) guilty of the crime of Homicide; and
t h e C A Re s o l u t i o n [ 2 ] d a t e d S e p t e m b e r 9 , 2 0 0 2 w h i c h
d e n i e d p e t i t i o n e r s M o t i o n f o r Re c o n s i d e r a t i o n .
A n I n f o r m a t i o n d a t e d M a r c h 1 8 , 1 9 9 6 w a s fi l e d
w i t h t h e RTC c h a r g i n g t h e p e t i t i o n e r w i t h t h e c r i m e o f
Murder, committ ed as follo ws:
That on or about the 16 th day of March 1996, in
Quezon
City,
Philippines,
the
said
accused
conspiring, confederating wi th three other persons
whose true names and whereabouts have not as y et
been ascertained and mutually helping one another,
with
intent
to
kill,
q u a l i fi e d
by
evident

On 16 March 1996, at around 10:00 oclock in the

e v e n i n g , A r n e l Ta n a e l w a s o n h i s w a y t o t h e h o u s e
o f Ro m u l o C a r i o y Va l l o a t N o . 4 0 L u k b a n S t r e e t ,
A r e a 9 , L u z o n A v e n u e , B r g y. Pa s o n g Ta m o , Ta n d a n g
S o r a , Q u e z o n C i t y. H e p a s s e d i n f r o n t o f t h e h o u s e
of [petitioner] Manuel Oriente and saw the latter
and his companions having a drinking spree at the
te rrace of the [peti tioners] house. He arr ived at
Ro m u l o s h o u s e w h e r e t h e l a t t e r w a s d r i n k i n g b e e r
a l o n e . T h e r e a f t e r , Ro m u l o w e n t o u t o f t h e h o u s e t o
buy cigare tte . Whil e wa tching tel evision in the
h o u s e o f Ro m u l o , A r n e l Ta n a e l h e a r d t w o g u n s h o t s .
Hence, he rushed outside the house to check on
what the gunshots were all about.

Pe e p i n g t h r o u g h p o t t e d p l a n t s ( a b o u t 3 f e e t h i g h )
perched on top of a neighbors fence (about 2 fe et
high), and at a distance of more or less eight (8)
m e t e r s , h e s a w Ro m u l o C a r i o , [ p e t i t i o n e r ] M a n u e l
Oriente, the la tters daughter Marilou Lopez and the
l a t t e r s h u s b a n d , Pa u l L o p e z a n d o n e Ro g e l i o G a s c o n
arguing along the alle y beside the concrete fence in
front of Manuel Orientes house where there was a
l i g h t e d fl u o r e s c e n t l i g h t . H e h e a r d Pa u l L o p e z
t e l l i n g Ro m u l o C a r i o , I ka w C a r i o , a n d l i i t - l i i t m o , a n d
y a b a n g m o ! T h e n A r n e l Ta n a e l s a w M a r i l o u c o m i n g
out from their house with a lead pipe and handed i t
o v e r t o Pa u l . Pa u l t h e n h i t Ro m u l o w i t h a l e a d p i p e
at his right arm . Accused-appellant got the lead
p i p e f r o m Pa u l a n d h i t Ro m u l o o n h i s l e f t e y e b r o w.
Ro m u l o r e e l e d a n d f e l l d o w n . U p o n s e e i n g Ro m u l o
fall down, Arnel got confused, hence, he went back

as

i n s i d e t h e h o u s e a n d s w i t c h e d o ff t h e l i g h t a n d
t u r n e d t h e t e l e v i s i o n o ff . H e w e n t o u t s i d e a g a i n a n d
s a w Ro m u l o m o a n i n g . A t t h i s p o i n t , Pa u l L o p e z w a s
a l r e a d y p o k i n g a g u n a t Ro m u l o , t h e n p u l l e d t h e
t r i g g e r t w i c e b u t t h e g u n d i d n o t fi r e . A r n e l t h e n
s h o u t e d , Pu t a n g i n a n i n y o , b a k i t n i y o g i n a g a w a i y a n
s a b a y a w ko , b a k i t n i n y o g i n a g a n i t o s i y a , a n o b a
a n g ka s a l a n a n n i y a s a i n y o . O r i e n t e a n d h i s
c o m p a n y d i d n o t s a y a n y t h i n g . A r n e l c a r r i e d Ro m u l o
and brought the lat ter inside the house. He called
u p M a r i o a t t h e Pa n a b u i l t Tr a n s p o r t o ffi c e t o g e t a
c a b . W h e n t h e c a b a r r i v e d , Ro m u l o C a r i o w a s
b r o u g h t b y A r n e l t o t h e E a s t Av e n u e M e d i c a l C e n t e r
w h e r e Ro m u l o , t w o h o u r s a f t e r , p a s s e d a w a y.
D r. Ro b e r t o G a r c i a , t h e N B I M e d i c o - L e g a l O ffi c e r
who conducted the post-mortem examination on the
vic tims cadaver declared that the cause of death
o f Ro m u l o C a r i o w a s t r a u m a t i c h e a d i n j u r y. H e
opined that even with immediate and adequate
medical attendance, the victim would not have
survived due to the ext ensiv e nature of hemorrhage
s u ff e r e d b y Ro m u l o .
I n a n a t t e m p t t o e xc u l p a t e [ t h e p e t i t i o n e r ] ,
the defense gave the following version:
On the night of the commission of the crime,
[ p e t i t i o n e r ] M a n u e l O r i e n t e w a s f e t c h e d b y Ta n o d
m e m b e r s i n t h e i r a r e a t o a t t e n d a w a ke . I t w a s
a l r e a d y t h e Ta n o d s o ff - d u t y. W h i l e h e w a s o n h i s w a y
o u t o f t h e h o u s e , h e s a w s p o u s e s Pa u l a n d M a l o u
and his granddaughter inside the car going out of
the garage . The three went to visi t Malous in-laws .
At
the
gate
of
his
house,
while
having
a
c o n v e r s a t i o n w i t h t h e Ta n o d m e m b e r s w h o f e t c h e d
him, the y heard two gunshots coming from downhill.
T h e y n o t i c e d t h a t t h e p e r s o n w h o fi r e d t h e s h o t s
was wal king towa rds them. They wait ed for him to
p a s s b y. T h i s p e r s o n w a s Ro m u l o C a r i o . W h e n t h e
lat ter reached a store, which is a fence away from
O r i e n t e s h o u s e , t h e l a t t e r a s ke d Ro m u l o w h a t w a s
h i s p r o b l e m . S u d d e n l y , C a r i o ex t e n d e d h i s a r m s a n d
p o ke d [ h i s ] g u n t o O r i e n t e a n d h i s c o m p a n i o n s .
Ro m u l o t o l d t h e m n o t t o g e t n e a r h i m o r h e w i l l
shoot and kill all of them. Surprised by the victims
response and for fear of being shot, [peti tioner]
Oriente stepped back towards his yard and was able
t o t a ke h o l d o f a p i e c e o f w o o d a n d h i t Ro m u l o .
[ Pe t i t i o n e r ] O r i e n t e m e n t i o n e d t h a t h e d o e s n o t
know if he hit Carios hands, e yebrow and other
parts of his body with that single blow but he saw
Ro m u l o C a r i o l o s e h i s b a l a n c e , f a l l a n d h i t h i s h e a d
on the ground. The victim was still holding the gun.
Af t e r fi v e s e c o n d s , Ro m u l o C a r i o s t o o d u p a n d r a n
( p a s u r a y- s u r a y ) t o w a r d s t h e d i r e c t i o n o f h i s h o u s e .
Fe a r i n g t h a t C a r i o w i l l s h o o t t h e m i f t h e y w o u l d g o

a ft e r h i m , [ p e t i t i o n e r ] O r i e n t e t o l d t h e Ta n o d s t h a t
t h e y w i l l j u s t a t t e n d t o h i m t h e f o l l o w i n g d a y.
[ Pe t i t i o n e r ] O r i e n t e f u r t h e r t e s t i fi e d t h a t h e h a d n o
intention of killing Cario and that his purpose was
only to disarm him. [4]
T h e RTC r e n d e r e d a D e c i s i o n d a t e d N o v e m b e r 4 ,
1999 convicting the petitioner of the crime of Homicide.
The dispositive portion of the Decision states:
A C C O R D I N G LY , t h e c o u r t r e n d e r s j u d g m e n t fi n d i n g
t h e a c c u s e d M A N U E L O R I E N T E Y O R I L LO G U I LT Y
b e y o n d r e a s o n a b l e d o u b t a s Pr i n c i p a l o f t h e c r i m e
o f H O M I C I D E a s d e fi n e d a n d p e n a l i z e d b y t h e
Re v i s e d Pe n a l C o d e w i t h t w o ( 2 ) m i t i g a t i n g
circumstances of lack of intent to commit so grave
a w r o n g a n d s u ffi c i e n t p r o v o c a t i o n a n d s o h e i s
h e r e b y s e n t e n c e d t o s u ff e r a j a i l t e r m o f S i x ( 6 )
M o n t h s o f A r r e s t o M a y o r a s m i n i m u m a n d Fo u r
Ye a r s a n d O n e ( 1 ) D a y o f P r i s i o n C o r r e c t i o n a l a s
maximum.
On the civil aspect, the accused Manuel Oriente y
Orillo is ordered to pay the la wful heirs of the
victim
Ro m u l o
Carino
y
Orillo
the
sum
of
P41,500.00 as actual damages and P50,000.00 as
i n d e m n i fi c a t i o n d a m a g e s .
Costs against the accused.
SO ORDERED.[5]
How ever, on November 12, 1999, before the foregoing
j u d g m e n t b e c a m e fi n a l a n d e xe c u t o r y , t h e RTC i s s u e d a n
Order motu proprio sett ing aside the said judgment
b e c a u s e o f a m i s t a ke i n t h e j u d g m e n t p r o p e r a n d
requiring both peti tioner and his counsel to appear
before the court on November 17, 1999. [6]
O n t h e l a t t e r d a t e , t h e RTC p r o m u l g a t e d
Decision dated November 15, 1999, the
portion of which states:

its second
dispositive

A C C O R D I N G LY , t h e c o u r t r e n d e r s j u d g m e n t
fi n d i n g t h e a c c u s e d M A N U E L O R I E N T E y O r i l l o
G U I LT Y b e y o n d r e a s o n a b l e d o u b t a s Pr i n c i p a l o f t h e
c r i m e o f H O M I C I D E a s d e fi n e d a n d p e n a l i z e d b y t h e
Re v i s e d
Pe n a l
Code
with
two
(2)
mitigating
circumstances of lack of intent to commit so grave
a w r o n g a n d s u ffi c i e n t p r o v o c a t i o n a n d s o , a p p l y i n g
A r t i c l e 6 4 , p a r a g r a p h 5 , o f t h e Re v i s e d Pe n a l C o d e
and also the Indeterm inate Sentence Law, [the]
accused
is
hereby
sentenced
to
s u ff e r
an
i n d e t e r m i n a t e j a i l t e r m o f Fo u r ( 4 ) Ye a r s , Tw o ( 2 )
Months and One (1) Day of Prision Corr ec cional
a s m i n i m u m a n d E i g h t ( 8 ) Ye a r s a n d O n e ( 1 )
D ay o f P r i s i o n M ay o r a s m a x i m u m .

On the civil aspect, the accused Manuel

Oriente y Orillo is ordered to pay the law ful heirs of
t h e v i c t i m Ro m u l o C a r i o y Va l l o t h e s u m o f
P41,500.00 as actual damages and P50,000.00 as
i n d e m n i fi c a t i o n d a m a g e s .
Costs against the accused.
SO ORDERED.[7] (Emphasis supplied)
T h e RTC f o u n d t h a t t h e t e s t i m o n i e s o f t h e d e f e n s e
wi tnesses, including the peti tioner, are incredible; that
t h e v i c t i m s u ff e r e d ex t e n s i v e h e a d i n j u r i e s ; t h a t t h e
defense failed to show any imminent threat or danger to
the life of the accused; that the accused has in his favor
the mit igating circumstance of lack of intent to commi t
s o g r a v e a w r o n g u n d e r A r t i c l e 4 o f t h e Re v i s e d Pe n a l
C o d e ; t h a t t h e r e w a s s u ffi c i e n t p ro v o c a t i o n o n t h e p a r t o f
the vict im since the incident was preceded by an int ense
a r g u m e n t , a n d , t h e r e f o r e , t h e p r o v o c a t i o n q u a l i fi e s a s
another
mitigating
circumstance
in
favor
of
the
peti tioner; that treacher y is not present since there was
an alt ercation immediate ly preceding the incident; that
the prosecution failed to prove the elements of evident
premedita tion; that there is no clear showing that the
accused took advantage of superior strength; and,
fi n a l l y , t h a t t h e p r o s e c u t i o n d u l y p r o v e d a c t u a l d a m a g e s
amounting to P38,500.00 for the funeral services and
P 3,000.00 for the cemet ery lot and religious services,
w h i l e t h e o t h e r ex p e n s e s w e r e n o t s u p p o r t e d b y
evidence.
T h e p e t i t i o n e r a p p e a l e d t o t h e C A . O n Fe b r u a r y
14, 2002, the CA rendered its Decision, the disposit ive
portion of which states:
WHEREFORE, in view of the foregoing, the
decision dated 4 November 1999 rendered by the
t r i a l c o u r t i s h e r e b y A F F I R M E D w i t h M O D I F I C AT I O N
that the penalt y imposed is an indete rminate prison
t e r m o f s i x ( 6 ) y e a r s a n d o n e ( 1 ) d ay o f p r i s i o n
m ay o r a s m i n i m u m t o t w e l v e ( 1 2 ) y e a r s a n d
o n e ( 1 ) d ay o f r e c l u s i o n t e m p o r a l a s m a x i m u m ,
a n d t o i n d e m n i fy t h e h e i r s o f t h e d e c e a s e d Ro m u l o
C a r i o y Va l l o i n t h e a m o u n t o f Fi ft y T h o u s a n d
( P 5 0 , 0 0 0 . 0 0 ) Pe s o s .
SO ORDERED.[8] (Emphasis supplied)
The CA held that there is no cogent reason to depart from
t h e fi n d i n g s o f t h e RTC c o n v i c t i n g t h e p e t i t i o n e r ; t h a t , a t
most, the inconsistencies of prosecution witness Arnel
Ta n a e l r e f e r t o m i n o r d e t a i l s o n l y , w h i c h t e n d t o
s t r e n g t h e n , r a t h e r t h a n w e a ke n , h i s c r e d i b i l i t y , a n d ,
moreover , prove that his test imony was unrehearsed;

that , all in all, the testimonies of the prosecution

wi tnesses are highly credible; that the eva luation of the
t e s t i m o n i e s o f t h e e y e w i t n e s s e s b y t h e RTC s h o u l d b e
accorded great weight and respect; that the testimony of
Ta n a e l o n t h e i n j u r i e s i n fl i c t e d o n t h e v i c t i m i s s u p p o r t e d
b y t h e fi n d i n g s o f t h e N B I m e d i c o - l e g a l o ffi c e r a s s t a t e d
in the post mortem report; that the detail ed test imony of
a wi tness in homicide cases acquires greater weight and
credibil ity if it corresponds with the autopsy report; that
the mere fact that the judge who penned the decision
was not the same judge who heard the testimonies of the
wi tnesses does not ipso facto render the decision
e rroneous, more so when the judgment appears to be
fully supported by the evidence on record; that the
alleged act of the victim poking the gun at the petitioner
and
his
companions
does
not
constitute
unlawful
a g g r e s s i o n , a n e s s e n t i a l r e q u i r e m e n t f o r s e l f- d e f e n s e ,
since the mere aiming of the gun and threat to kill
mere ly constitute a threat or intimidating att itude which
does not amount to an actual and unexpected attack or
imminent danger thereof; and that the accused did not
resist but went peacefull y with the police authorities
when the latter invited the petitioner to the station does
n o t a m o u n t t o v o l u n t a r y s u r r e n d e r.
Fi n d i n g t h a t t h e RTC e r r e d i n fi n d i n g t h a t t w o
mit igating circumstances were present, namely , lack of
i n t e n t t o c o m m i t s o g r a v e a w r o n g a n d s u ffi c i e n t
p r o v o c a t i o n o r t h r e a t o n t h e p a r t o f t h e o ff e n d e d p a r t y
i m m e d i a t e l y p r e c e d i n g t h e a c t , t h e C A m o d i fi e d t h e
p e n a l t y i m p o s e d b y t h e RTC . A c c o r d i n g t o t h e C A , t h e
ext ensiv e nature of the injuries as stated in the postm o r t e m fi n d i n g s n e g a t e s t h e c o n t e n t i o n o f t h e p e t i t i o n e r
that he had no intention of killing the victim because his
purpose was only to disarm him; and the provocat ion, if
any, done by the victim was not immediate to the act of
p e t i t i o n e r s b e a t i n g t h e v i c t i m , s i n c e a c e r t a i n Pa u l L o p e z
had already previously assaulted the victim , and,
m o r e o v e r , t h e r e w a s a s u ffi c i e n t i n t e r v a l o f t i m e b e t w e e n
the
provocation
of
the
o ff e n d e d
party
and
the
c o m m i s s i o n o f t h e c r i m e b y t h e p e t i t i o n e r.
Hence, herein petition for review raising the
follo wing assignment of e rrors:
A.
T H E H O N . C O U RT O F A P P E A L S G RAV E LY E R R E D I N
A F F I R M I N G T H E D E C I S I O N O F T H E LO W E R C O U RT
T H AT
THE
ACCUSED
IS
G U I LT Y
OF
HOMICIDE
A LT H O U G H I T WA S O BV I O U S T H AT T H E LO W E R
C O U RT F O U N D O U T T H AT T H E R E WA S N O I N T E N T O N
T H E PA RT O F T H E P E T I T I O N E R T O C O M M I T S A I D
C R I M E A N D T H E R E WA S N O P R OV O C AT I O N AT A L L O N
H I S PA RT ;
B.
T H E H O N . C O U RT O F A P P E A L S A N D T H E R E G I O N A L

T R I A L C O U RT B E LO W E R R E D I N N O T A P P R E C I AT I N G
T H AT T H E R E WA S A N U N L AW F U L A G G R E S S I O N O N
T H E PA RT O F T H E V I C T I M , A N D T H E M E A N S
E M P LOY E D BY P E T I T I O N E R T O P R E V E N T T H E S A M E
WA S
REASONABLE
AND
FA L L S
UNDER
THE
J U S T I F Y I N G C I RC U M S TA N C E S O R S E L F - D E F E N S E ;
C.
T H E H O N . C O U RT O F A P P E A L S A N D T H E LO W E R
C O U RT G RAV E LY E R R E D I N G I V I N G C R E D E N C E T O
THE
TESTIMONY
OF
THE
LO N E
ALLEGED
EYE
WITNESS, WHEN SAID TESTIMONY HAS FULL OF
INCONSISTENCIES; AND
D.
T H E H O N . C O U RT O F A P P E A L S H A S C O M M I T T E D
G RAV E A B U S E O F D I S C R E T I O N TA N TA M O U N T T O
L ACK OF JURISDICTION WHEN IT MODIFIED THE
DECISION
OF
THE
REGIONAL
TRIAL
C O U RT ,
I N C R E A S I N G T H E P E N A LT Y T H E R E O F W I T H O U T A N Y
D I S C U S S I O N O R E X P L A N AT I O N I N T H E D E C I S I O N
I T S E L F W H Y S A I D M O D I F I C AT I O N O F P E N A LT Y I S
N E C E S S A RY A N D I N A C C O R D A N C E W I T H L AW.
T h e C o u r t a ffi r m s t h e c o n v i c t i o n o f t h e p e t i t i o n e r
except as to damages and the penalty imposed.
The
petitioner
emphasizes
that
the
victim,
a l l e g e d l y a t r o u b l e m a ke r i n t h e v i c i n i t y , w a s d r u n k , fi r e d
his gun twic e, and then proceeded to wards the peti tioner
a n d h i s c o m p a n i o n s . Pe t i t i o n e r a r g u e s t h a t t h e v i c t i m s
act of poking the gun at him constitutes unlawful
a g g r e s s i o n s u ffi c i e n t t o w a r r a n t h i s c l a i m o f s e l f- d e f e n s e .
The Court is not convinced.
W h e n s e l f- d e f e n s e i s i n v o ke d , t h e b u r d e n o f
e v i d e n c e s h i ft s t o t h e a c c u s e d t o s h o w t h a t t h e k i l l i n g
w a s l e g a l l y j u s t i fi e d . H a v i n g o w n e d t h e k i l l i n g o f t h e
vic tim, the accused should be able to prove to the
s a t i s f a c t i o n o f t h e C o u r t t h e e l e m e n t s o f s e l f- d e f e n s e i n
o r d e r t o a v a i l o f t h i s ex t e n u a t i n g c i r c u m s t a n c e . H e m u s t
discharge this burden by clear and convincing evidence .
When successful, an otherwise felonious deed would be
excused, mainly predicated on the lack of criminal intent
of the accused.
S e l f- d e f e n s e r e q u i r e s t h a t t h e r e b e ( 1 ) a n u n l a w f u l
aggression by the person injured or kil led by the
o ff e n d e r ,
(2)
reasonable
necessity
of
the
means
employed to prevent or repel that unlaw ful aggression,
a n d ( 3 ) l a c k o f s u ffi c i e n t p r o v o c a t i o n o n t h e p a r t o f t h e
p e r s o n d e f e n d i n g h i m s e l f. A l l t h e s e c o n d i t i o n s m u s t
c o n c u r. [ 9 ] T h e r e c a n b e n o s e l f- d e f e n s e , w h e t h e r c o m p l e t e

or incomplete, unless the victim had committed unlawful

a g g r e s s i o n a g a i n s t t h e p e r s o n w h o r e s o r t e d t o s e l fdefense.[10]
U n l a w f u l a g g r e s s i o n , a p r i m o r d i a l e l e m e n t o f s e l fdefense, would presuppose an actual, sudden and
u n ex p e c t e d a t t a c k o r i m m i n e n t d a n g e r o n t h e l i f e a n d
limb of a person not a mere threatening or intimidating
attitude but most importantly, at the time the defensive
a c t i o n w a s t a ke n a g a i n s t t h e a g g r e s s o r. [ 1 1 ] To i n v o ke s e l fdefense successfully , there must have been an unlawful
a n d u n p r o v o ke d a t t a c k t h a t e n d a n g e r e d t h e l i f e o f t h e
a c c u s e d , w h o w a s t h e n f o r c e d t o i n fl i c t s e v e r e w o u n d s
upon the assailant by employing reasonable means to
resist the attack . [12]
T h e p e t i t i o n e r s p l e a o f s e l f- d e f e n s e c o n t r a d i c t s
c o m m o n k n o w l e d g e a n d ex p e r i e n c e . N o b e t t e r t e s t h a s
ye t been found to measure the value of a witness
test imony than i ts conformit y to the knowledge of
mankind.[13]
T h e C o u r t a g r e e s w i t h t h e fi n d i n g s o f t h e RTC
which are supported by the evidence on record:
The testimonies of the defense witnesses, including
the accused, that Cario threat ened the persons
gathered in front of Orientes house with a gun is
q u i t e d i ffi c u l t t o b e l i e v e i n v i e w o f t h e a d m i s s i o n s
of the same defense witnesses, including the
accused, that Cario was able to get up from the
ground after being hit and ran away w ith gun in
hand. A person who was already threatening to ki ll
with a gun and who was then hit with a piece of
wood in a serious manner , can be reasonably
e x p e c t e d t o m a ke u s e t h e r e o f. H e r e , t h e d e f e n s e
m a ke s a r a t h e r u n u s u a l c l a i m t h a t C a r i o s i m p l y r a n
away and did not use the gun he was holding while
running.
T h e t e s t i m o n y o f A r n e l Ta n a e l t h a t C a r i o d i d n o t r u n
awa y but he got him at the place where he fel l in
the alle y beside Orientes house appears more
credible and reasonable than that of the defense.
Moreov er,
considering
the
extensive
injuries
s u ff e r e d b y C a r i o s e v e r a l c o n t u s i o n s o n t h e f a c e
and head fractures it is doubtful that a person in
that condition, aggravated by what the defense
claimed to be Carios state of stupor (drunk and
p a s u r a y- s u r a y ) , c o u l d s t i l l r u n , m u c h l e s s h o l d a
handgun while running.
In his testimony, the accused stated that Cario
w a l ke d t o w a r d s h i m a n d h i s c o m p a n i o n s s a y i n g :
Dont come near me. I will shoot all of you. I will kill
a l l o f y o u . I n t h e fi r s t p l a c e , w h y w i l l C a r i o u t t e r

such statements when there was no e vidence by the

defense that the accused and/or any of his
companions at that time10:00 in the evening of
March 16, 1996 and place in front of the house of
t h e a c c u s e d a t B r g y. Pa s o n g Ta m o , Q . C . w e r e i n t h e
act of arresting Cario. In the second place, the
alleged statement of Cario: Dont come near me,
shows that there were then persons in the act of
going near him. In the third place, if indeed as
claimed , Cario was poking his gun with both arms
e x t e n d e d a t O r i e n t e a n d h i s Ta n o d - c o m p a n i o n s , i t i s
q u i t e d i ffi c u l t t o a p p r e c i a t e h o w h e c o u l d n o t h a v e
seen the person in the act of hitting him right
across his face and, as he allegedly threatened,
how he could not have shot that person too[,]
i n s t i n c t i v e s e l f- d e f e n s e [ , ] i n s t e a d o f r u n n i n g a w a y
with gun in hand.[14]
N o t t h a t t h e RTC i s a l o n e . T h e C A , t o o , a p t l y o b s e r v e d :
x x x We fi n d t h e t e s t i m o n y o f [ d e f e n s e ] w i t n e s s e s
highly incredible . Their version is that Cario, after
he was hit with the lead pipe, fell on the ground
s t i l l h o l d i n g a g u n . T h e r e a ft e r , h e j u s t s t o o d u p a n d
r a n a w a y. I t i s s u r p r i s i n g , h o w e v e r , w h y t h e s e Ta n o d
members
including
accused-appellant
did
not
wrestle for the gun when they had all the
opportunit ies to do so when Cario fell down, if there
was indeed a threat to their lif e and limb. And
le tting an armed man go would not be the normal
react ion of persons in charge of peace and order in
the community, especia lly if the armed man had
previously threatened to shoot them. The only
logical conclusion is that Cario was not a threat to
them and to their community, for as accuseda p p e l l a n t t e s t i fi e d , t h e y w i l l j u s t d e a l w i t h h i m t h e
f o l l o w i n g d a y. [ 1 5 ]
Noteworthy is the testimony of NBI
D r. Ro b e r t o G a r c i a , o n h i s fi n d i n g s
examination of the cadaver of the
of death was traumatic head injury,

M e d i c o - L e g a l O ffi c e r ,
from his post-mortem
victim that the cause
viz:

1. abrasion, right forea rm;

2 . c o n t u s e d - a b r a s i o n , l e ft t e m p l e ;
3. lacerated wounds above the left eyebro w; over
the left eyebrow;
4 . h e m a t o m a s o r b i t a l , l e ft . S c a l p f r o n t a l r e g i o n ,
l e ft s i d e ;
5 . f r a c t u r e s , s ku l l
6. hemorrhages: ext ensive
7. visceral organs, congested. [16]
O n c r o s s - e x a m i n a t i o n , D r. G a r c i a o p i n e d t h a t e v e n
with immediate and adequate medical attendance, the
victim would not have survived considering the extensive
n a t u r e o f t h e h e m o r r h a g e s f o u n d . [ 1 7 ] A s t h e RTC h e l d :

[ C ] o n s i d e r i n g t h e ex t e n s i v e i n j u r i e s s u ff e r e d
by the victim several contusions on the face and
head fractures it is doubtful that a person in that
condition, aggravated by what the defense claimed
t o b e C a r i o s s t a t e o f s t u p o r ( d r u n k a n d p a s u r a ysuray), could still run, much less hold a handgun
while running.[18]
T h u s , t h e d e f e n s e f a i l e d t o e s t a b l i s h t h e ex i s t e n c e o f t h e
gun being pointed at petitioner to constitute unlawful
aggression on the part of the vict im.
While petitioner avers that the testimony of Arnel
Ta n a e l
is
burdened
with
improbabil ities
and
inconsistencies, after having owned the crime, however,
the burden of proof is reversed and, therefore, he cannot
simply protest that the evidence of the prosecution is
wea k. It then becomes incumbent upon peti tioner to rel y
on the strength of his own evidence and not on the
wea kness of the evidence of the prosecution, for ev en if
t h e l a t t e r w e r e w e a k , i t c o u l d n o t b e d i s b e l i e v e d a ft e r h e
had admitted the killing. Hence, if the accused fails to
d i s c h a r g e t h e b u r d e n o f p ro o f , h i s c o n v i c t i o n m u s t e n s u e
as a matter of consequence. [19]
The petit ioner insists that the CA erred in
m o d i f y i n g t h e RTC s d e c i s i o n b y i n c r e a s i n g t h e p e n a l t y
imposed upon him. It is settled that in a criminal case, an
appeal throws the whole case
open for revie w, and it becomes the duty of the appella te
court to correc t such errors as may be found in the
judgment appealed from, whether they are made the
subjec t of assignment of errors or not, [20] including the
p r o p r i e t y o f t h e i m p o s a b l e p e n a l t y. [ 2 1 ]
There is also no point in considering petit ioners
a r g u m e n t t h a t t h e RTC p r o m u l g a t e d t w o d e c i s i o n s a n d , b y
d o i n g s o , h e w a s p l a c e d i n d o u b l e j e o p a r d y.
Courts have the inherent power to amend their
d e c i s i o n s t o m a ke t h e m c o n f o r m a b l e t o l a w a n d j u s t i c e .
This prerogativ e, however , is not absolut e. The rules do
not contempla te amendments that are substantial in
nature. [22] They merel y cover formal changes or such that
w i l l n o t a ff e c t t h e c r u x o f t h e d e c i s i o n , l i ke t h e c o r r e c t i o n
of typographical or cler ical errors. Courts will viola te due
p r o c e s s i f t h e y m a ke s u b s t a n t i a l a m e n d m e n t s i n t h e i r
d e c i s i o n s w i t h o u t a ff o r d i n g t h e o t h e r p a r t y t h e r i g h t t o
contest the new ev idence presented in a mot ion for
r e c o n s i d e r a t i o n . [ 2 3 ] T h e C o u r t fi n d s t h a t t h e c h a n g e i n t h e
p e n a l t y b y t h e RTC i n t h e i n s t a n t c a s e d i d n o t i n v o l v e t h e
consideration of any new evidence but a mere correction
o f t h e p e n a l t y i m p o s e d t o c o n f o r m w i t h t h e Re v i s e d Pe n a l
C o d e a n d T h e I n d e t e r m i n a t e S e n t e n c e L a w.
And as the Solicitor General correct ly noted, the
t r i a l c o u r t m o d i fi e d t h e p e n a l t y i n i t s D e c i s i o n d a t e d
November 15, 1999 before the peti tioner could perfec t
h i s a p p e a l f r o m t h e fi r s t D e c i s i o n d a t e d N o v e m b e r 4 ,

1999 which was promulgated on November 10, 1999.

N o t e w o r t h y i s t h a t i t w a s t h e RTC s s e c o n d D e c i s i o n d a t e d
November 15, 1999 which the petitioner elevated on
appeal to the CA. It is well settled that when an accused
appeals from the sentence of the trial court , he waiv es
the consti tutional safeguard against double jeopardy ,
and, as discussed above , throws the whole case open to
the re vie w of the appellate court , which is then called to
render judgment as the la w and justice dictate, whether
favorable or unfavorable, and whether they are made the
subjec t of assigned errors or not. This precep t should be
borne in mind by every law yer of an accused who
u n w i t t i n g l y t a ke s t h e r i s k i n v o l v e d w h e n h e d e c i d e s t o
appeal his sentence.[24]
As to the mitigat ing circumstances, the CA is correct in
fi n d i n g t h a t t h e RTC e r r e d i n a p p r e c i a t i n g i n f a v o r o f t h e
peti tioner the mit igating circumstances of lack of intent
t o c o m m i t s o g r a v e a w r o n g a n d s u ffi c i e n t p r o v o c a t i o n o n
t h e p a r t o f t h e v i c t i m , Ro m u l o C a r i o .
O n t h e fi r s t c i r c u m s t a n c e , t h e RTC h e l d :
Acco rding to the accused, he did not intend
to k ill Cario. In turn , Cario did not die immedia tely
from his wounds as he still lived for around two (2)
h o u r s a ft e r h i s b o d y w a s t a ke n t o t h e h o s p i t a l . T h i s
fact and the fact that Cario was hit by a hard , blunt
object, convince [sic] this court that the intent of
the accused to kill Cario appears to be reasonably
doubtful. . . .[25]
How ever, the CA correc tly took into consideration
t h e p o s t - m o r t e m fi n d i n g s o f t h e N B I m e d i c o - l e g a l ex p e r t
and his testimony that even with immediate and
adequate medical attendance, the victim would not have
survived due to the ext ensiv e nature of the hemorrhage
s u ff e r e d b y t h e v i c t i m . T h e b r u t e f o r c e e m p l o y e d b y t h e
petitioner contradicts the claim that he had no intention
to k ill the victim . The mitigating circumstance of lack of
intent to commit so grave a wrong as that actuall y
perpetrat ed cannot be appreciated where the acts
e m p l o y e d b y t h e a c c u s e d w e r e r e a s o n a b l y s u ffi c i e n t t o
produce and did actually produce the death of the v ictim.
[26]

O n t h e s e c o n d c i r c u m s t a n c e , t h e RTC p o i n t e d t o
the fact that the incident was preceded by an intense
argument betwe en the victim and the accused so as to
qualify the situation as a mit igating circumstance of
s u ffi c i e n t p r o v o c a t i o n o r t h r e a t o n t h e p a r t o f t h e
o ff e n d e d p a r t y w h i c h i m m e d i a t e l y p r e c e d e d t h e a c t . [ 2 7 ]
P r o v o c a t i o n i s d e fi n e d t o b e a n y u n j u s t o r
i m p r o p e r c o n d u c t o r a c t o f t h e o ff e n d e d p a r t y , c a p a b l e o f
exciting, inciting, or irri tating anyone. In order to be
m i t i g a t i n g , p r o v o c a t i o n m u s t b e s u ffi c i e n t a n d s h o u l d

i m m e d i a t e l y p r e c e d e t h e a c t . Pr o v o c a t i o n i s s u ffi c i e n t i f
i t i s a d e q u a t e t o ex c i t e a p e r s o n t o c o m m i t t h e w r o n g ,
w h i c h m u s t a c c o r d i n g l y b e p r o p o r t i o n a t e i n g r a v i t y. T h a t
the provocat ion must immediate ly precede the act means
that there should not be any int erval of t ime betw een the
p r o v o c a t i o n b y t h e o ff e n d e d p a r t y a n d t h e c o m m i s s i o n o f
t h e c r i m e b y t h e p e r s o n p r o v o ke d . [ 2 8 ]
The fact that a heat ed or intense argument
p r e c e d e d t h e i n c i d e n t i s n o t b y i t s e l f t h e s u ffi c i e n t
p r o v o c a t i o n o n t h e p a r t o f t h e o ff e n d e d p a r t y a s
c o n t e m p l a t e d b y l a w. M o r e o v e r , p e t i t i o n e r f a i l e d t o
establish by competent evidence that the victim had a
g u n a n d u s e d i t t o t h r e a t e n p e t i t i o n e r.
Wi t h r e s p e c t t o t h e o t h e r a g g r a v a t i n g c i r c u m s t a n c e s o f
treacher y, e vident premedita tion, and grave abuse of
s u p e r i o r s t r e n g t h , t h e C o u r t l i ke w i s e a g r e e s w i t h t h e
fi n d i n g s o f t h e RTC , a s a ffi r m e d b y t h e C A , t h a t n o n e o f
these circumstances are present for lack of evidence .
T h u s , t h e C A i s p a r t l y c o r r e c t i n m o d i fy i n g t h e
p e n a l t y i m p o s e d b y t h e RTC . T h e RTC i m p o s e d a n
indete rminate prison term of four (4) years, two (2)
months and one (1) day of prision correccional as
minimum to eight (8) years and one (1) day of prision
mayor as maximum, while the CA adjusted the sentence
upwards since no mitigating circumstances attended the
crime , and imposed an indete rminate prison term of six
(6) years and one (1) day of prision mayor as minimum to
twelve (12) years and one (1) day of reclusion temporal
a s m a x i m u m . A r t i c l e 2 4 9 o f t h e Re v i s e d Pe n a l C o d e
provides that any person found guilty of homicide shall
be punished by reclusion temporal, i.e., twelve (12) years
and one (1) day to twenty (20) years.Applying Section 1
of the Inde terminat e Sentence Law, the minimum term of
the sentence shall be within the range of the penalty
next lower, which
is prision
mayor , i.e ., any where
between six (6) years and one (1) day to eight (8) years.
T h e C A a p p r o p r i a t e l y e xe r c i s e d i t s d i s c r e t i o n w h e n i t
imposed six (6) years and one (1) day of prision mayor as
the minimum te rm.
How ever, the CA erred in imposing tw elv e (12)
years and one (1) day of reclusion temporal as the
maximum te rm of the indete rminate sentence .In the
computation of the maximum te rm, the law prescribes
that the attending circumstances should be considered.
There being no aggravating or mitigating circumstance in
this case, the penalty that should be imposed is the
medium period of the penalty prescribed by law , [29] that
is, reclusion temporal in its medium period, or, any where
between fourteen (14) years, eight (8) months and one
(1) day to seventeen (17) years and four (4) months.
And last, the CA, wi thout reason, omit ted a
p o r t i o n o f t h e a w a r d o f d a m a g e s b y t h e RTC i n t h e c i v i l
aspect of the case, namely, the amount of actual

d a m a g e s w h i c h c o m p r i s e d t h e ex p e n s e s f o r t h e c e m e t e r y
l o t a n d r e l i g i o u s s e r v i c e s . I n p a r t i c u l a r , t h e RTC h e l d t h a t
the prosecution was able to prove actual damages
amounting to P41,500.00 based on supporting evidence,
[30]
in addition to the death indemnity of P50,000.00 as
required by current jurisprudence . [31] On the other hand,
the disposi tive portion of the CA judgment merely
ordered peti tioner to indemnify the heirs of the deceased
victim in the amount of P50,000.00.
The Court restores the full amount
d a m a g e s o r i g i n a l l y a w a r d e d b y t h e RTC .

of

actual

Moral damages are not awarded for lack of basis

i n f a c t a n d l a w. [ 3 2 ] N o w i t n e s s e s t e s t i fi e d t o p r o v e t h e
existence of the factual
b a s i s t h e r e f o r.
Pu r s u a n t t o A r t i c l e 2 2 3 0 o f t h e C i v i l C o d e , i n
c r i m i n a l o ff e n s e s , e xe m p l a r y d a m a g e s m a y b e i m p o s e d
when the crime is commit ted with one or more
aggravating
circumstances.
Considering
that
no
aggravating circumstance is present in this case, the
l o w e r c o u r t s a r e c o r r e c t i n n o t a w a r d i n g exe m p l a r y
damages.
WHEREFORE, the petition is DENIED. The assailed
D e c i s i o n a n d Re s o l u t i o n o f t h e C o u r t o f A p p e a l s a r e
A F F I R M E D w i t h M O D I F I C AT I O N . T h e p e t i t i o n e r i s f o u n d
G U I LT Y b e y o n d r e a s o n a b l e d o u b t o f H o m i c i d e a n d i s
s e n t e n c e d t o s u ff e r t h e p e n a l t y o f a n i n d e t e r m i n a t e
sentence of six (6) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8)
months, and one (1) day, as maximum. The petitioner is
further ordered to pay the heirs of the victim the
amounts
of
P50,000.00
as
death
indemnity
and
P41,500.00 as actual damages.
SO ORDERED.
PEOPLE v APOLINAR
C.A., 38 O.G. 2870
Facts:
Midnight of December 22, 1936, the defendant and appellant Anastacio
Apolinar alias Atong was at that time the occupant of a parcel of land
owned by Joaquin Gonzales in Papallasen, La Paz, Umingan,
Pangasinan. Armed with a shotgun, Atong was looking over said land
when he observed that there was a man carrying a bundle on his
shoulder. Believing that he was a thief (of palay), the defendant called
his attention but he ignored him. The defendant fired in the air and
then at the person. The man, identified as Domingo Petras, was able to
get back to his house and consequently narrated to Angel Natividad,
the barrio chief, that he had been wounded in the back by a shotgun.

He then showed the two wounds - one in each side of the spinal column
- which wounds were circular in form and a little bigger than a quarter
of an inch, according to the medical report of Dr. Mananquil. Petras
died of the wounds he sustained. The defendant surrendered to the
authorities immediately after the incident and gave a sworn statement
(Exhibit F) before the Justice of Peace of Umingan on December 23,
1936.
Issue:
WON the killing of Petras was justified by defense of property
Held:
No; the right to property is not of such importance as right to life, and
defense of property can be invoked as a justifying circumstance only
when it is coupled with an attack on the person of one entrusted with
said property.
________________________________________________________________________
G.R. No. L-5318 December 23, 1909
THE
UNITED
STATES,
plaintiff-appellee,
vs.
RAFAEL BUMANGLAG, ET AL., defendants. - GREGORIO BUNDOC,
appellant.
Iigo
Bitanga
Attorney-General Villamor for appellee.

for

appellant.

TORRES, J.:
On the night of January 2, 1909, Rafael Bumanglag, an inhabitant of
the pueblo of San Nicolas, Province of Ilocos Norte, missed 4 baares or
40 bundles of palay which were kept in his granary, situated in the
place called "Payas," barrio No. 16 of the said pueblo, and on
proceeding to search for them on the following morning, he found them
in an inclosed filed which was planted with sugar cane, at a distance of
about 100 meters from his granary; thereupon, for the purpose of
ascertaining who had done it, he left the palay there, and that night,
accompanied by Gregorio Bundoc, Antonio Ribao, and Saturnino
Tumamao, he waited near the said field for the person who might
return to get the palay. A man, who turned out to be Guillermo Ribis,
made his appearance and approaching the palay, attempted to carry it
away with him, but at that instant Bumanglag, Bundoc, and Ribao
assaulted the presumed thief with sticks and cutting and stabbing
weapons; as a result of the struggle which ensued the person attacked
fell down and died instantly, Bumanglag and his companions believing
that Guillermo Ribis was the author of several robberies and thefts that
had occurred in the place.

In view of the foregoing, the provincial fiscal filed a complaint on

January 15, 1909, charging Rafael Bumanglag, Gregorio Bundoc, and
Antonio Ribao with the crime of homicide, and the trial judge, on
February 5 of the present year, rendered judgment in the case,
sentencing the three accused persons to the penalty of fourteen years
eight months and one day of reclusin temporal, with the accessories,
and to the payment of an indemnity of P1,000 to the heirs of the
deceased, and the costs in equal parts, from which decision only
Gregorio Bundoc appealed.
From the facts above mentioned, fully proven in this case, the
commission of the crime of homicide, defined and punished by article
404 of the Penal Code, is inferred, inasmuch as Guillermo Ribis was
violently deprived of his life in consequence of serious wounds and
bruises, some of them of a mortal nature, as appears from a certificate
issued by a physician who examined the body of the deceased, and
who ratified said certificate at the trial under oath.
The accused Bundoc, the only appellant, pleaded not guilty, but, in the
absence of justification, and his exculpatory allegation being
unreasonable, it is not proper to hold that he assaulted and killed the
deceased, with the help of his codefendants, in order to defend himself
from an attack made by the former with a bolo.
Both Gregorio Bundoc and his codefendants Bumanglag and Ribao
declared that, during the fight with the deceased Ribis, they only beat
the latter with sticks, because he unsheathed the bolo he carried; but
from the examination made of the body it appeared that several
serious wounds had been inflicted with cutting and stabbing weapons,
besides some bruises, and according to the declaration of the health
officer Felipe Barba, which declaration was confirmed by the municipal
president of Laoag, the bolo worn by the deceased was in its sheath
and hanging from his waist; therefore it can not be concluded that the
deceased even intended to assault his murderers with his bolo either
before he was attacked by them or during the fight, because, had Ribis
made use of the bolo he carried sheathed, the bolo would have been
found unsheathed at the place where the fight occurred, and it is not
reasonable to believe that, before falling to the ground in a dying
condition he succeeded in sheathing his bolo, in which condition it was
found on his body.
It is therefore indisputable that, without any prior illegal aggression and
the other requisites which would fully or partially exempt the accused
from criminal responsibility, the appellant and his two companions
assaulted Guillermo Ribis with sticks and cutting and stabbing arms,
inflicting upon him serious and mortal wounds, and therefore, the said
accused is guilty of the crime of homicide as co-principal by direct
participation, fully convicted, together with his codefendants who are
already serving their sentence.
In the commission of the crime we should take into account the
mitigating circumstance No. 7 of article 9 of the Penal Code, because
the defendant acted with loss of reason and self-control on seeing that
Guillermo Ribis was taking material possession of the palay seized and
hidden by him on the previous night, thus committing one of the
numerous unlawful acts perpetrated at the place, to the damage and
prejudice of those who, by their labor endeavor to provide themselves
with the necessary elements for their subsistence and that of their

families. The special circumstance established by article 11 of the

same code should be also considered in favor of the accused, in view of
the erroneous and quite general belief that it is legal to punish, even to
excess the thief who, in defiance of law and justice, while refusing to
work, devotes himself to depriving his neighbors of the fruits of their
arduous labors; these two circumstances are considered in the present
case as especially admissible, without any aggravating circumstance,
and they determine, according to article 81, rule 5, of the Penal Code,
the imposition of the penalty immediately inferior to that prescribed by
the law, and in its minimum degree, and therefore
By virtue of the foregoing considerations, we are of the opinion that,
the judgment appealed from being reversed with respect to Gregorio
Bundoc only, the latter should be, and is hereby, sentenced to the
penalty of six years and one day of prisin mayor, to the accessories of
article 61 of the code, to indemnify the heirs of the deceased jointly or
severally with his codefendants, in the sum of P1,000, and to pay onethird the costs of both instances. So ordered.
________________________________________________________________________
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE
OF
THE
PHILIPPINES,
vs.
MAMERTO NARVAEZ, defendant-appellant.

plaintiff-appellee,

MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of
South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for
murder which, after a joint trial, resulted in the conviction of the
accused in a decision rendered on September 8, 1970, with the
following pronouncement:
Thus, we have a crime of MURDER qualified by treachery
with the aggravating circumstance of evident premeditation
offset by the mitigating circumstance of voluntary surrender.
The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez
reasonable doubt of the crime of murder,

guilty

beyond

(a) In Criminal Case No. 1815, he is hereby sentenced to

RECLUSION PERPETUA, to indemnify the heirs of the
deceased Davis Q. Fleischer in the sum of P 12,000.00 as
compensatory damages, P 10,000.00 as moral damages, P
2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the

deceased Flaviano Rubia in the sum of P12,000.00 as

compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been
represent by a private prosecutor, and to pay the costs (p.
48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano
Juan, Jesus Verano and Cesar Ibanez together with the two
deceased Davis Fleischer and Flaviano Rubia, were fencing
the land of George Fleischer, father of deceased Davis
Fleischer. The place was in the boundary of the highway and
the hacienda owned by George Fleischer. This is located in
the municipality of Maitum, South Cotabato. At the place of
the fencing is the house and rice drier of appellant Mamerto
Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant
was taking his rest, but when he heard that the walls of his
house were being chiselled, he arose and there he saw the
fencing going on. If the fencing would go on, appellant would
be prevented from getting into his house and the bodega of
his ricemill. So he addressed the group, saying 'Pare, if
possible you stop destroying my house and if possible we will
talk it over what is good,' addressing the deceased Rubia,
who is appellant's compadre. The deceased Fleischer,
however, answered: 'No, gademit, proceed, go ahead.'
Appellant apparently lost his equilibrium and he got his gun
and shot Fleischer, hitting him. As Fleischer fell down, Rubia
ran towards the jeep, and knowing there is a gun on the
jeep, appellant fired at Rubia, likewise hitting him (pp. 127133, t.s.n., Defense transcript). Both Fleischer and Rubia
died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp.
8-9, Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long
drawn out legal battle between the Fleischer and Co., Inc. of which
deceased Fleischer was the secretary-treasurer and deceased Rubia
the assistant manager, on the one hand, and the land settlers of
Cotabato, among whom was appellant.
From the available records of the related cases which had been brought
to the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this
Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial
notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon
who went to Mindanao in 1937 and settled in Maitum, a former sitio of
Kiamba and now a separate municipality of South Cotabato. He
established his residence therein, built his house, cultivated the area,
and was among those who petitioned then President Manuel L. Quezon
to order the subdivision of the defunct Celebes Plantation and nearby
Kalaong Plantation totalling about 2,000 hectares, for distribution
among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W.
Fleischer, an American landowner in Negros Oriental, filed sales
application No. 21983 on June 3, 1937 over the same area formerly

leased and later abandoned by Celebes Plantation Company, covering

1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did
the actual survey in 1941 but the survey report was not submitted until
1946 because of the outbreak of the second world war. According to
the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps.
176 Kiamba, were set aside for Sales Application No. 21983, while the
rest were subdivided into sublots of 5 to 6 hectares each to be
distributed among the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and
Company was declared open for disposition, appraised and advertised
for public auction. At the public auction held in Manila on August 14,
1948, Fleischer and Company was the only bidder for P6,000.00. But
because of protests from the settlers the corresponding award in its
favor was held in abeyance, while an investigator was sent by the
Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty.
Gozon came back after ten days with an amicable settlement signed by
the representative of the settlers. This amicable settlement was later
repudiated by the settlers, but the Director of Lands, acting upon the
report of Atty. Gozon, approved the same and ordered the formal award
of the land in question to Fleischer and Company. The settlers appealed
to the Secretary of Agriculture and Natural Resources, who, however,
affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of
First Instance of Cotabato which then consisted only of one sala, for the
purpose of annulling the order of the Secretary of Agriculture and
Natural Resources which affirmed the order of the Director of Lands
awarding the contested land to the company. The settlers as plaintiffs,
lost that case in view of the amicable settlement which they had
repudiated as resulting from threats and intimidation, deceit,
misrepresentation and fraudulent machination on the part of the
company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R)
which likewise affirmed on August 16, 1965 the decision of the Court of
First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of
First Instance dated September 24, 1966, from the land which they had
been occupying for about 30 years. Among those ejected was the
appellant who, to avoid trouble, voluntarily dismantled his house, built
in 1947 at a cost of around P20,000.00, and transferred to his other
house which he built in 1962 or 1963 near the highway. The second
house is not far from the site of the dismantled house. Its ground floor
has a store operated by Mrs. June Talens who was renting a portion
thereof. He also transferred his store from his former residence to the
house near the highway. Aside from the store, he also had a rice mill
located about 15 meters east of the house and a concrete pavement
between the rice mill and the house, which is used for drying grains
and copra.
On November 14, 1966, appellant was among the settlers on whose
behalf Jose V. Gamboa and other leaders filed Civil Case No. 755 in the
Court of First Instance of Cotabato, Branch I. to obtain an injunction or
annulment of the order of award with prayer for preliminary injunction.
During the pendency of this case, appellant on February 21, 1967
entered into a contract of lease with the company whereby he agreed

to lease an area of approximately 100 to 140 square meters of Lot No.

38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a
consideration of P16.00 monthly. According to him, he signed the
contract although the ownership of the land was still uncertain, in order
to avoid trouble, until the question of ownership could be decided. He
never paid the agreed rental, although he alleges that the milling job
they did for Rubia was considered payment. On June 25, 1968,
deceased Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc.
for that portion of land in which your house and ricemill are
located as per agreement executed on February 21, 1967.
You have not paid as as even after repeated attempts of
collection made by Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the
agreement, I have no alternative but to terminate our
agreement on this date.
I am giving you six months to remove your house, ricemill,
bodega, and water pitcher pumps from the land of Fleischers
& Co., Inc. This six- month period shall expire on December
31, 1966.
In the event the above constructions have not been removed
within the six- month period, the company shall cause their
immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the
property line parallel to the highway. Some posts were planted right on
the concrete drier of appellant, thereby cutting diagonally across its
center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to
appellant's house (p. 231, t.s.n., supra). The fence, when finished,
would have the effect of shutting off the accessibility to appellant's
house and rice mill from the highway, since the door of the same opens
to the Fleischers' side. The fencing continued on that fateful day of
August 22, 1968, with the installation of four strands of barbed wire to
the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap
after working on his farm all morning, was awakened by some noise as
if the wall of his house was being chiselled. Getting up and looking out
of the window, he found that one of the laborers of Fleischer was
indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n.,
Vol. 6), while deceased Rubia was nailing the barbed wire and
deceased Fleischer was commanding his laborers. The jeep used by the
deceased was parked on the highway. The rest of the incident is
narrated in the People's Brief as above-quoted. Appellant surrendered
to the police thereafter, bringing with him shotgun No. 1119576 and
claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the
following errors:
First Assignment of Error: That the lower court erred in

convicting defendant-appellant despite the fact that he

acted in defense of his person; and
Second Assignment of Error:That the court a quo also erred
in convicting defendant-appellant although he acted in
defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed.
Appellant admitted having shot them from the window of his house
with the shotgun which he surrendered to the police authorities. He
claims, however, that he did so in defense of his person and of his
rights, and therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance
under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be
appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The aggression referred to by appellant is the angry utterance by
deceased Fleischer of the following words: "Hindi, sigue, gademit,
avante", in answer to his request addressed to his compadre, the
deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan
natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in
reaction to his having been awakened to see the wall of his house
being chiselled. The verbal exchange took place while the two
deceased were on the ground doing the fencing and the appellant was
up in his house looking out of his window (pp. 225-227, supra).
According to appellant, Fleischer's remarks caused this reaction in him:
"As if, I lost my senses and unknowingly I took the gun on the bed and
unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant
testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and
upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and
when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep
and knowing that there was a firearm in the jeep and
thinking that if he will take that firearm he will kill me, I shot
at him (p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the
prosecution. They claim, however, that the deceased were in lawful
exercise of their rights of ownership over the land in question, when
they did the fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the
evidence reveals that five persons, consisting of the deceased and

their three laborers, were doing the fencing and chiselling of the walls
of appellant's house. The fence they were putting up was made of
bamboo posts to which were being nailed strands of barbed wire in
several layers. Obviously, they were using tools which could be lethal
weapons, such as nail and hammer, bolo or bamboo cutter, pliers,
crowbar, and other necessary gadgets. Besides, it was not disputed
that the jeep which they used in going to the place was parked just a
few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on
his walls, his first reaction was to look out of the window. Then he saw
the damage being done to his house, compounded by the fact that his
house and rice mill will be shut off from the highway by the fence once
it is finished. He therefore appealed to hiscompadre, the deceased
Rubia, to stop what they were doing and to talk things over with him.
But deceased Fleischer answered angrily with 'gademit' and directed
his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance
of the fencing would have resulted in the further chiselling of the walls
of appellant's house as well as the closure of the access to and from his
house and rice mill-which were not only imminent but were actually in
progress. There is no question, therefore, that there was aggression on
the part of the victims: Fleischer was ordering, and Rubia was actually
participating in the fencing. This was indeed aggression, not on the
person of appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims
have a right to fence off the contested property, to destroy appellant's
house and to shut off his ingress and egress to his residence and the
highway?
Article 30 of the Civil Code recognizes the right of every owner to
enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no.
755 for annulment of the order of award to Fleischer and Company was
still pending in the Court of First Instance of Cotabato. The parties could
not have known that the case would be dismissed over a year after the
incident on August 22, 1968, as it was dismissed on January 23, 1970
on ground of res judicata, in view of the dismissal in 1965 (by the Court
of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the
award to the company, between the same parties, which the company
won by virtue of the compromise agreement in spite of the subsequent
repudiation by the settlers of said compromise agreement; and that
such 1970 dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November 28, 1968
to annul the sales patent and to cancel the corresponding certificate of
title issued to the company, on the ground that the Director of Lands
had no authority to conduct the sale due to his failure to comply with
the mandatory requirements for publication. The dismissal of the
government's supplemental petition was premised on the ground that
after its filing on November 28, 1968, nothing more was done by the
petitioner Republic of the Philippines except to adopt all the evidence
and arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for
a favorable judgment in Civil Case No. 755 filed on November 14, 1966
and his execution of the contract of lease on February 21, 1967 was

just to avoid trouble. This was explained by him during crossexamination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we
better rent the place because even though we do not know
who really owns this portion to avoid trouble. To avoid
trouble we better pay while waiting for the case because at
that time, it was not known who is the right owner of the
place. So we decided until things will clear up and determine
who is really the owner, we decided to pay rentals (p. 169,
t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10,
p. 2, Defense Exhibits) within which to vacate the land. He should have
allowed appellant the peaceful enjoyment of his properties up to that
time, instead of chiselling the walls of his house and closing appellant's
entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through
force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or a
right to deprive another of the holding of a thing must invoke
the aid of the competent court, if the holder should refuse to
deliver the thing.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536
and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to
destroy or cause damage to appellant's house, nor to close his
accessibility to the highway while he was pleading with them to stop
and talk things over with him. The assault on appellant's property,
therefore, amounts to unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least
threatened assault of immediate and imminent kind (People
vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's
property which he had the right to resist, pursuant to Art. 429 of the
Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the

justifying circumstance of self-defense or defense of one's rights under

paragraph 1 of Article 11, Revised Penal Code. When the appellant fired
his shotgun from his window, killing his two victims, his resistance was
disproportionate to the attack.
WE find, however, that the third element of defense of property is
present, i.e., lack of sufficient provocation on the part of appellant who
was defending his property. As a matter of fact, there was no
provocation at all on his part, since he was asleep at first and was only
awakened by the noise produced by the victims and their laborers. His
plea for the deceased and their men to stop and talk things over with
him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not
justifiable, since not all the elements for justification are present. He
should therefore be held responsible for the death of his victims, but he
could be credited with the special mitigating circumstance of
incomplete defense, pursuant to paragraph 6, Article 13 of the Revised
Penal Code.
The crime committed is homicide on two counts. The qualifying
circumstance of treachery cannot be appreciated in this case because
of the presence of provocation on the part of the deceased. As WE held
earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden
unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that
the method of assault adopted by the aggressor was deliberately
chosen with a special view to the accomplishment of the act without
risk to the assailant from any defense that the party assailed might
have made. This cannot be said of a situation where the slayer acted
instantaneously ..." (People vs. Caete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident
premeditation not sufficiently established. The only evidence presented
to prove this circumstance was the testimony of Crisanto Ibaez, 37
years old, married, resident of Maitum, South Cotabato, and a laborer
of Fleischer and Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about
7:00 A.M., he was drying corn near the house of Mr. and Mrs.
Mamerto Narvaez at the crossing, Maitum, South Cotabato,
when the accused and his wife talked to him. Mrs. Narvaez
asked him to help them, as he was working in the hacienda.
She further told him that if they fenced their house, there is
a head that will be broken. Mamerto Narvaez added 'Noy, it
is better that you will tell Mr. Fleischer because there will be
nobody who will break his head but I will be the one.' He
relayed this to Mr. Flaviano Rubia, but the latter told him not
to believe as they were only Idle threats designed to get him
out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the
aggravating circumstance of evident premeditation. As WE have
consistently held, there must be "direct evidence of the planning or
preparation to kill the victim, .... it is not enough that premeditation be
suspected or surmised, but the criminal intent must be evidenced by

notorious outward acts evincing the determination to commit the

crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a
"showing" that the accused premeditated the killing; that the culprit
clung to their (his) premeditated act; and that there was sufficient
interval between the premeditation and the execution of the crime to
allow them (him) to reflect upon the consequences of the act" (People
vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of
the deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning
or preparation to kill the victims nor that the accused premeditated the
killing, and clung to his premeditated act, the trial court's conclusion as
to the presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the
victims to stop the fencing and destroying his house and to talk things
over just before the shooting.
But the trial court has properly appreciated the presence of the
mitigating circumstance of voluntary surrender, it appearing that
appellant surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the
commission of the crime. The appellant awoke to find his house being
damaged and its accessibility to the highway as well as of his rice mill
bodega being closed. Not only was his house being unlawfully violated;
his business was also in danger of closing down for lack of access to
the highway. These circumstances, coming so near to the time when
his first house was dismantled, thus forcing him to transfer to his only
remaining house, must have so aggravated his obfuscation that he lost
momentarily all reason causing him to reach for his shotgun and fire at
the victims in defense of his rights. Considering the antecedent facts of
this case, where appellant had thirty years earlier migrated to this socalled "land of promise" with dreams and hopes of relative prosperity
and tranquility, only to find his castle crumbling at the hands of the
deceased, his dispassionate plea going unheeded-all these could be too
much for any man-he should be credited with this mitigating
circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the
killing not being attended by any qualifying nor aggravating
circumstance, but extenuated by the privileged mitigating
circumstance of incomplete defense-in view of the presence of unlawful
aggression on the part of the victims and lack of sufficient provocation
on the part of the appellant-and by two generic mitigating
circumstance of voluntary surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for
homicide as reclusion temporal. Pursuant to Article 69, supra, the
penalty lower by one or two degrees shall be imposed if the deed is not
wholly excusable by reason of the lack of some of the conditions
required to justify the same. Considering that the majority of the
requirements for defense of property are present, the penalty may be
lowered by two degrees, i.e., to prision correccional And under
paragraph 5 of Article 64, the same may further be reduced by one

degree, i.e., arresto mayor, because of the presence of two mitigating

circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of
Zulueta vs. Pan American World Airways (43 SCRA 397), the award for
moral damages was reduced because the plaintiff contributed to the
gravity of defendant's reaction. In the case at bar, the victims not only
contributed but they actually provoked the attack by damaging
appellant's properties and business. Considering appellant's standing in
the community, being married to a municipal councilor, the victims'
actuations were apparently designed to humiliate him and destroy his
reputation. The records disclose that his wife, councilor Feliza Narvaez,
was also charged in these two cases and detained without bail despite
the absence of evidence linking her to the killings. She was dropped as
a defendant only upon motion of the prosecution dated October 31,
1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on
November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of
Fleischer and Company, despite its extensive landholdings in a Central
Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers,
who uprooted their families from their native soil in Luzon to take
advantage of the government's resettlement program, but had no
sufficient means to fight the big landowners, were the ones prejudiced.
Thus, the moral and material suffering of appellant and his family
deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person
convicted of prision correccional or arrests mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969
made the provisions of Art. 39 applicable to fines only and not to
reparation of the damage caused, indemnification of consequential
damages and costs of proceedings. Considering that Republic Act 5465
is favorable to the accused who is not a habitual delinquent, it may be
given retroactive effect pursuant to Article 22 of the Revised Penal
Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED
EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL
AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY
SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO
INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR
ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY
SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY
ORDERED. NO COSTS.

SO ORDERED.
G.R. No. L-4160

July 29, 1952

ANITA
TAN,
plaintiff-appellant,
vs.
STANDARD VACUUM OIL CO., JULITO STO DOMINGO, IGMIDIO
RICO, and RURAL TRANSIT CO.,defendants-appellees.
BAUTISTA ANGELO, J.:
Anita Tan is the owner of the house of strong materials based in the
City of Manila, Philippines. On May 3, 1949, the Standard Vacuum Oil
Company ordered the delivery to the Rural Transit Company at its
garage at Rizal Avenue Extension, City of Manila, of 1,925 gallons of
gasoline using a gasoline tank-truck trailer. The truck was driven by
Julito Sto. Domingo, who was helped Igmidio Rico. While the gasoline
was being discharged to the underground tank, it caught fire,
whereupon Julito Sto. Domingo drove the truck across the Rizal Avenue
Extension and upon reaching the middle of the street he abondoned
the truck with continued moving to the opposite side of the first street
causing the buildings on that side to be burned and detroyed. The
house of Anita Tan was among those destroyed and for its repair she
spent P12,000.
As an aftermath of the fire, Julito Sto. Domingo and Imigidio Rico were
charged with arson through reckless imprudence in the Court of First
Instance of Manila where, after trial, both were acquitted, the court
holding that their negligence was not proven and the fire was due to an
unfortunate accident.
Anita Tan then brought the action against the Standard Vacuum Oil
Company and the Rural Transit Company;, including the two
employees, seeking to recover the damages she has suffered for the
destruction of her house.
Defendants filed separate motions to dismiss alleging in substance that
(a) plaintiff's action is barred by prior judgment and (b) plaintiff's
complaint states no cause of action; and this motion having been
sustained, plaintiff elevated the case to this Court imputing eight errors
to the court a quo.
The record discloses that the lower court dismissed this case in view of
the acquittal of the two employees of defendant Standard Vacuum Oil
Company who were charged with arson through reckless imprudence in
the Court of First Instance of Manila. In concluding that accused were
not guilty of the acts charged because of the fire was accidental, the
court made the following findings: "the accused Imigidio Rico cannot in
any manner be held responsible for the fire to the three houses and
goods therein above mentioned. He was not the cause of it, and he
took all the necessary precautions against such contingency as he was
confronted with. The evidence throws no light on the cause of fire. The
witnesses for the prosecution and for the defense testified that they did
not know what caused the fire. It was unfortunate accident for which
the accused Iigmidio Rico cannot be held responsible." And a similar
finding was made with respect to the other accused that the

information filed against the accused by the Fiscal contains an itemized

statement of the damages suffered by the victims, including the one
suffered by Anita Tan, thereby indicating the intention of the
prosecution to demand indemnity from the accused in the same action,
but that notwithstanding this statement with respect to damages, Anita
Tan did not make any reservation of her right to file a separate civil
action against the accused as required by the Rules of Court Rule 107,
section 1-(a). As Anita Tan failed to make reservation, and the accused
were acquitted, the lower court ruled that she is now barred from filing
this action against the defendants.
This ruling is so far as defendants Julio Sto. Domingo and Imigidio Rico
are concerned is correct. The rule is that "extinction of the penal action
does not carry with it extinction of the civil, unless the extinction
proceeds from the declaration in a final judgment that the fact from
which the civil might arise did not exist" (Rule 107, section 1-d, Rules of
Court). This provision means that the acquittal of the accused from the
criminal charge will not necessarily extinguish the civil liability unless
the court declares in the judgment that the fact from which the civil
liability might arise and did not exist. Here it is true that Julito Sto.
Domingo and Igmidio Rico were acquitted, the court holding that they
were not responsible for the fire that destroyed the house of the
plaintiff,which as a rule will not necessarily extinguish their civil
liability,but the court went further by stating that the evidence
throws no light on the cause of fire and that it was an unfortunate
accident for which the accused cannot be held responsible. In our
opinion, this declaration fits well into the exception of the rule which
exempts the two accused from civil liability. When the court acquitted
the accused because the fire was due to an unfortunate accident it
actually said that the fire was due to a fortuitous event for which the
accused are not to blame. It actually exonerated them from civil
liability.
But the case takes a different aspect with respect to the other
defendants. For one thing, the principle of res judicata cannot apply to
them for the simple reason that they were not included as co-accused
in the criminal case. Not having been included in the criminal case they
cannot enjoy the benefit resulting from the acquittal of the accused.
This benefit can only be claimed by the accused if a subsequent action
is later taken against them under the Revised Penal Code. And this
action can only be maintained if proper reservation is made and there
is no express declaration that the basis of the civil action has not
existed. It is, therefore, an error for the lower court to dismiss the case
against these two defendants more so when their civil liability is
predicated or facts other than those attributed to the two employees in
the criminal case.
Take, for instance, of the Standard Vacuum Oil Company. this company
is sued not precisely because of supposed negligent acts of its two
employees Julito Sto. Domingo and Igmidio Rico but because of acts of
its own which might have contributed to the fire that destroyed the
house of the plaintiff. The complaint contains definite allegations of
negligent acts properly attributable to the company which proven and
not refuted may serve as basis of its civil liability. Thus, in paragraph 5
of the first cause of action, it is expressly alleged that this company,
through its employees, failed to take the necessary precautions or
measures to insure safety and avoid harm to person and damage to
property as well as to observe that degree of care, precaution and
vigilance which the circumstances justly demanded, thereby causing

the gasoline they were unloading to catch fire. the precautions or

measures which this company has allegedly failed to take to prevent
fire are not clearly stated, but they are matters of evidence which need
not now be determined. Suffice it to say that such allegation furnishes
enough basis for a cause of action against this company. There is no
need for the plaintiff to make a reservation of her right to file a
separate civil action, for as this court already held in a number of
cases, such reservation is not necessary when the civil action
contemplated is not derived from the criminal liability but one based on
culpa aquiliana under the Old Civil Code (articles 1902 to 1910). These
two acts are separate and distinct and should not be confused one with
the other. Plaintiff can choose either (Asuncion Parker vs. Hon. A.J
Panlilio supra, p. 1.)
The case of the Rural Transit Co. is even more different as it is
predicated on a special provisions of the Revised Penal Code. Thus,
article 101, Rule 2, of said Code provides:
Art. 101. Rules regarding civil liability in certain cases. The
exemption from criminal liability established in subdivisions 1, 2,
3, 5 and 6 of article 12 and in subdivision 4 of article 11 of this
Code does not include exemption from civil liability, which shall be
enforced to the following rules:
xxx

xxx

xxx

Second. In cases falling within subdivision 4 of article 11, the

persons for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they have received.
And on this point, the complaint contains the following averments:
3. That after the corresponding trial the said defendants were
acquitted and defendant Julio Sto. Domingo was acquitted, on the
ground that he so acted causing damage to another in order to
avoid a greater evil or injury, under article 11, paragraph 4 of the
Revised Penal Code, as shown by the pertinent portion of the
decision of this Honorable Court in said case, dated October 28,
1949, which reads as follows:
Under the foregoing facts, there can be no doubt that had the
accused Julito Sto. Domingo not taken the gasoline tank-truck
trailer out in the street, a bigger conflagration would have
occurred in Rizal Avenue Extension, and, perhaps, there might
have been several deaths and bearing in mind the provisions of
Article 11, paragraph 4 of the Revised Penal Code the accused
Julito Sto. Domingo incurred no criminal liability.
4. That it was consequently the defendant Rural Transit Co., from
whose premises the burning gasoline tank-truck trailer was driven
out by defendant Julito Sto. Domingo in order to avoid a greater
evil or injury, for whose benefit the harm has been prevented
under article 101, second subsection of the Revised Penal Code.
Considering the above quoted law and facts, the cause of action
against the Rural Transit Company can hardly be disputed, it appearing

that the damage caused to the plaintiff was brought about mainly
because of the desire of driver Julito Sto. Domingo to avoid greater evil
or harm, which would have been the case had he not brought the tanktruck trailer to the middle of the street, for then the fire would have
caused the explosion of the gasoline deposit of the company which
would have resulted in a conflagration of much greater proportion and
consequences to the houses nearby or surrounding it. It cannot be
denied that this company is one of those for whose benefit a greater
harm has been prevented, and as such it comes within the purview of
said penal provision. The acquittal of the accused cannot, therefore, be
deemed a bar to a civil action against this company because its civil
liability is completely divorced from the criminal liability of the accused.
The rule regarding reservation of the right to file a separate civil action
does not apply to it.
Wherefore, the order appealed from is hereby modified as follows: it is
affirmed with regard to defendants Julito Sto. Domingo and Igmidio
Rico; but it is reserved with regard to defendants Standard Vacuum Oil
Company and Rural Transit Company, with costs.
G.R. No. L-47722

July 27, 1943

THE
PEOPLE
OF
THE
vs.
ANTONIO Z. OANIS and
appellants.

PHILIPPINES,
ALBERTO

plaintiff-appellee,

GALANTA,

defendants-

MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan
and corporal of the Philippine Constabulary, respectively, were, after
due trial, found guilty by the lower court of homicide through reckless
imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison
correccional and to indemnify jointly and severally the heirs of the
deceased in the amount of P1,000. Defendants appealed separately
from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following tenor: "Information
received escaped convict Anselmo Balagtas with bailarina and Irene in
Cabanatuan get him dead or alive." Captain Monsod accordingly called
for his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio
Serna and D. Fernandez, upon order of their sergeant, reported at the
office of the Provincial Inspector where they were shown a copy of the
above-quoted telegram and a newspaper clipping containing a picture
of Balagtas. They were instructed to arrest Balagtas and, if
overpowered, to follow the instruction contained in the telegram. The
same instruction was given to the chief of police Oanis who was
likewise called by the Provincial Inspector. When the chief of police was
asked whether he knew one Irene, a bailarina, he answered that he
knew one of loose morals of the same name. Upon request of the
Provincial Inspector, the chief of police tried to locate some of his men
to guide the constabulary soldiers in ascertaining Balagtas'

whereabouts, and failing to see anyone of them he volunteered to go

with the party. The Provincial Inspector divided the party into two
groups with defendants Oanis and Galanta, and private Fernandez
taking the route to Rizal street leading to the house where Irene was
supposedly living. When this group arrived at Irene's house, Oanis
approached one Brigida Mallare, who was then stripping banana stalks,
and asked her where Irene's room was. Brigida indicated the place and
upon further inquiry also said that Irene was sleeping with her
paramour. Brigida trembling, immediately returned to her own room
which was very near that occupied by Irene and her paramour.
Defendants Oanis and Galanta then went to the room of Irene, and an
seeing a man sleeping with his back towards the door where they were,
simultaneously or successively fired at him with their .32 and .45
caliber revolvers. Awakened by the gunshots, Irene saw her paramour
already wounded, and looking at the door where the shots came, she
saw the defendants still firing at him. Shocked by the entire scene.
Irene fainted; it turned out later that the person shot and killed was not
the notorious criminal Anselmo Balagtas but a peaceful and innocent
citizen named Serapio Tecson, Irene's paramour. The Provincial
Inspector, informed of the killing, repaired to the scene and when he
asked as to who killed the deceased. Galanta, referring to himself and
to Oanis, answered: "We two, sir." The corpse was thereafter brought to
the provincial hospital and upon autopsy by Dr. Ricardo de Castro,
multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers
were found on Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by
the evidence, particularly by the testimony of Irene Requinea.
Appellants gave, however, a different version of the tragedy. According
to Appellant Galanta, when he and chief of police Oanis arrived at the
house, the latter asked Brigida where Irene's room was. Brigida
indicated the place, and upon further inquiry as to the whereabouts of
Anselmo Balagtas, she said that he too was sleeping in the same room.
Oanis went to the room thus indicated and upon opening the curtain
covering the door, he said: "If you are Balagtas, stand up." Tecson, the
supposed Balagtas, and Irene woke up and as the former was about to
sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the
door, and Oanis receded and shouted: "That is Balagtas." Galanta then
fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain
covering the door and after having said, "if you are Balagtas stand up."
Galanta at once fired at Tecson, the supposed Balagtas, while the latter
was still lying on bed, and continued firing until he had exhausted his
bullets: that it was only thereafter that he, Oanis, entered the door and
upon seeing the supposed Balagtas, who was then apparently watching
and picking up something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural urge
to exculpate themselves of the crime, but also because they are
materially contradictory. Oasis averred that be fired at Tecson when the
latter was apparently watching somebody in an attitudes of picking up
something from the floor; on the other hand, Galanta testified that
Oasis shot Tecson while the latter was about to sit up in bed
immediately after he was awakened by a noise. Galanta testified that
he fired at Tecson, the supposed Balagtas, when the latter was rushing
at him. But Oanis assured that when Galanta shot Tecson, the latter
was still lying on bed. It is apparent from these contradictions that

when each of the appellants tries to exculpate himself of the crime

charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially,
the testimony of Irene Requinea. It should be recalled that, according
to Requinea, Tecson was still sleeping in bed when he was shot to
death by appellants. And this, to a certain extent, is confirmed by both
appellants themselves in their mutual recriminations. According, to
Galanta, Oanis shot Tecson when the latter was still in bed about to sit
up just after he was awakened by a noise. And Oanis assured that
when Galanta shot Tecson, the latter was still lying in bed. Thus
corroborated, and considering that the trial court had the opportunity
to observe her demeanor on the stand, we believe and so hold that no
error was committed in accepting her testimony and in rejecting the
exculpatory pretensions of the two appellants. Furthermore, a careful
examination of Irene's testimony will show not only that her version of
the tragedy is not concocted but that it contains all indicia of veracity.
In her cross-examination, even misleading questions had been put
which were unsuccessful, the witness having stuck to the truth in every
detail of the occurrence. Under these circumstances, we do not feel
ourselves justified in disturbing the findings of fact made by the trial
court.
The true fact, therefore, of the case is that, while Tecson was sleeping
in his room with his back towards the door, Oanis and Galanta, on
sight, fired at him simultaneously or successively, believing him to be
Anselmo Balagtas but without having made previously any reasonable
inquiry as to his identity. And the question is whether or not they may,
upon such fact, be held responsible for the death thus caused to
Tecson. It is contended that, as appellants acted in innocent mistake of
fact in the honest performance of their official duties, both of them
believing that Tecson was Balagtas, they incur no criminal liability.
Sustaining this theory in part, the lower court held and so declared
them guilty of the crime of homicide through reckless imprudence. We
are of the opinion, however, that, under the circumstances of the case,
the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of
fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The
maxim is ignorantia facti excusat, but this applies only when the
mistake is committed without fault or carelessness. In the Ah Chong
case, defendant therein after having gone to bed was awakened by
someone trying to open the door. He called out twice, "who is there,"
but received no answer. Fearing that the intruder was a robber, he
leaped from his bed and called out again., "If you enter the room I will
kill you." But at that precise moment, he was struck by a chair which
had been placed against the door and believing that he was then being
attacked, he seized a kitchen knife and struck and fatally wounded the
intruder who turned out to be his room-mate. A common illustration of
innocent mistake of fact is the case of a man who was marked as a
footpad at night and in a lonely road held up a friend in a spirit of
mischief, and with leveled, pistol demanded his money or life. He was
killed by his friend under the mistaken belief that the attack was real,
that the pistol leveled at his head was loaded and that his life and
property were in imminent danger at the hands of the aggressor. In
these instances, there is an innocent mistake of fact committed without
any fault or carelessness because the accused, having no time or
opportunity to make a further inquiry, and being pressed by
circumstances to act immediately, had no alternative but to take the

facts as they then appeared to him, and such facts justified his act of
killing. In the instant case, appellants, unlike the accused in the
instances cited, found no circumstances whatsoever which would press
them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity
without hazard to themselves, and could even effect a bloodless arrest
if any reasonable effort to that end had been made, as the victim was
unarmed, according to Irene Requinea. This, indeed, is the only
legitimate course of action for appellants to follow even if the victim
was really Balagtas, as they were instructed not to kill Balagtas at sight
but to arrest him, and to get him dead or alive only if resistance or
aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such
force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm (People vs. Delima, 46
Phil, 738), yet he is never justified in using unnecessary force or in
treating him with wanton violence, or in resorting to dangerous means
when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612).
The doctrine is restated in the new Rules of Court thus: "No
unnecessary or unreasonable force shall be used in making an arrest,
and the person arrested shall not be subject to any greater restraint
than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a
peace officer cannot claim exemption from criminal liability if he uses
unnecessary force or violence in making an arrest (5 C.J., p. 753;
U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas
was a notorious criminal, a life-termer, a fugitive from justice and a
menace to the peace of the community, but these facts alone
constitute no justification for killing him when in effecting his arrest, he
offers no resistance or in fact no resistance can be offered, as when he
is asleep. This, in effect, is the principle laid down, although upon
different facts, in U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by
storm" without regard to his right to life which he has by such notoriety
already forfeited. We may approve of this standard of official conduct
where the criminal offers resistance or does something which places
his captors in danger of imminent attack. Otherwise we cannot see
how, as in the present case, the mere fact of notoriety can make the
life of a criminal a mere trifle in the hands of the officers of the law.
Notoriety rightly supplies a basis for redoubled official alertness and
vigilance; it never can justify precipitate action at the cost of human
life. Where, as here, the precipitate action of the appellants has cost an
innocent life and there exist no circumstances whatsoever to warrant
action of such character in the mind of a reasonably prudent man,
condemnation not condonation should be the rule; otherwise we
should offer a premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence,
the killing being intentional and not accidental. In criminal negligence,
the injury caused to another should be unintentional, it being simply
the incident of another act performed without malice. (People vs. Sara,
55 Phil., 939). In the words of Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en el malicia ni intencion
alguna de daar; existiendo esa intencion, debera calificarse el hecho
del delito que ha producido, por mas que no haya sido la intencion del
agente el causar un mal de tanta gravedad como el que se produjo."
(Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once

held by this Court, a deliberate intent to do an unlawful act is

essentially inconsistent with the idea of reckless imprudence (People
vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where
such unlawful act is wilfully done, a mistake in the identity of the
intended victim cannot be considered as reckless imprudence (People
vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is
murder with the qualifying circumstance ofalevosia. There is, however,
a mitigating circumstance of weight consisting in the incomplete
justifying circumstance defined in article 11, No. 5, of the Revised Penal
Code. According to such legal provision, a person incurs no criminal
liability when he acts in the fulfillment of a duty or in the lawful
exercise of a right or office. There are two requisites in order that the
circumstance may be taken as a justifying one: (a) that the offender
acted in the performance of a duty or in the lawful exercise of a right;
and (b) that the injury or offense committed be the necessary
consequence of the due performance of such duty or the lawful
exercise of such right or office. In the instance case, only the first
requisite is present appellants have acted in the performance of a
duty. The second requisite is wanting for the crime by them committed
is not the necessary consequence of a due performance of their duty.
Their duty was to arrest Balagtas or to get him dead or alive if
resistance is offered by him and they are overpowered. But through
impatience or over-anxiety or in their desire to take no chances, they
have exceeded in the fulfillment of such duty by killing the person
whom they believed to be Balagtas without any resistance from him
and without making any previous inquiry as to his identity. According to
article 69 of the Revised Penal Code, the penalty lower by one or two
degrees than that prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are
hereby declared guilty of murder with the mitigating circumstance
above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15)
years of reclusion temporal, with the accessories of the law, and to pay
the heirs of the deceased Serapio Tecson jointly and severally an
indemnity of P2,000, with costs.
G.R. No. L-4445

February 28, 1955

THE
PEOPLE
OF
THE
PHILIPPINES,
plaintiff-appellee,
vs.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO,
and JACINTO ADRIATICO, defendants-appellants.
REYES, J.B.L., J.:
This is an appeal by accused Manuel Beronilla, Policarpio Paculdo,
Filipino Velasco, and Jacinto Adriatico from the judgment of the Court of
First Instance of Abra (Criminal Case No. 70) convicting them of murder
for the execution of Arsenio Borjal in the evening of April 18, 1945, in
the town of La Paz , Province of Abra.
Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak
of war, and continued to serve as Mayor during the Japanese
occupation, until March 10, 1943, when he moved to Bangued because

of an attempt upon his life by unknown persons. On December 18,

1944, appellant Manuel Beronilla was appointed Military Mayor of La
Paz by Lt. Col. R. H. Arnold, regimental commander of the 15th Infantry,
Philippine Army, operating as a guerrilla unit in the province of Abra.
Simultaneously with his appointment as Military Mayor, Beronilla
received copy of a memorandum issued by Lt. Col. Arnold to all Military
Mayors in Northern Luzon, authorizing them "to appoint a jury of 12
bolomen to try persons accused of treason, espionage, or the aiding
and abetting (of ) the enemy" (Exhibit 9). He also received from the
Headquarters of the 15th Infantry a list of all puppet government
officials of the province of Abra (which included Arsenio Borjal, puppet
mayor of La Paz), with a memorandum instructing all Military Mayors to
investigate said persons and gather against them complaints from
people of the municipality for collaboration with the enemy (Exhibit 12a).
Sometime in March, 1945, while the operations for the liberation of the
province of Abra were in progress, Arsenio Borjal returned to La Paz
with his family in order to escape the bombing of Bangued. Beronilla,
pursuant to his instructions, placed Borjal under custody and asked the
residents of La Paz to file complaints against him. In no time, charges
of espionage, aiding the enemy, and abuse of authority were filed
against Borjal; a 12-man jury was appointed by Beronilla, composed of
Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos,
Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano
Ajel, Felimon Labuguen, Felix Murphy, Pedro Turqueza, and Delfin
Labuguen as members; while Felix Alverne and Juan Balmaceda were
named prosecutors, Policarpio Paculdo as clerk of the jury, and Lino
Inovermo as counsel for the accused. Later, Atty. Jovito Barreras
voluntarily appeared and served as counsel for Borjal. Sgt. Esteban
Cabanos observed the proceedings for several days upon instructions
of Headquarters, 15th Infantry. The trial lasted 19 days up to April 10,
1945; the jury found Borjal guilty on all accounts and imposed upon
him instruction from his superiors. Mayor Beronilla forwarded the
records of the case to the Headquarters of the 15th Infantry for review.
Said records were returned by Lt. Col. Arnold to Beronilla on April 18,
1945 with the following instructions:
HEADQUARTERS
15TH
In the Field

3RD
MILITARY
INFANTRY,

DISTRICT
USAFIP

R.

H.
15th

Inf.,

(Sgd.)
MANUEL
Military Mayor, La Paz, Abra

ARNOLD
PA

Received April 18, 1945, 10:35 a.m.

(Sgd.)
MANUEL
Military Mayor, La Paz, Abra

BERONILLA

(Exhibit 8, 8-a)
and on the night of the same day, April 18, 1945, Beronilla ordered the
execution of Borjal. Jacinto Adriatico acted as executioner and Antonio
Palope as grave digger. Father Luding of the Roman Catholic Church
was asked to administer the last confession to the prisoner, while
Father Filipino Velasco of the Aglipayan Church performed the last rites
over Borjal's remains. Immediately after the execution, Beronilla
reported the matter to Col. Arnold who in reply to Beronilla's report,
sent him the following message:
HEADQUARTERS
15TH
In the Field

Charges

337
Against

3RD
MILITARY
INFANTRY,

DISTRICT
USAFIP

1. Returned herewith are the papers on the case of Arsenio Borjal.

2. This is a matter best handled by your government and
whatever disposition you make of the case is hereby approved.

Two years thereafter, Manuel Beronilla as military mayor, Policarpio

Paculdo as Clerk of the jury, Felix Alverne and Juan Balmaceda as
prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen,
Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito Casel,
Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro
Turqueza as members of the jury, Jacinto Adriatico as executioner,
Severo Afos as grave digger, and Father Filipino Velasco as an alleged
conspirator, were indicted in the Court of First Instance of Abra for
murder, for allegedly conspiring and confederating in the execution of
Arsenio Borjal. Soon thereafter, the late President Manuel A. Roxas
issued Executive Proclamation No. 8, granting amnesty to all persons
who committed acts penalized under the Revised Penal Code in
furtherance of the resistance to the enemy against persons aiding in
the war efforts of the enemy. Defendant Jesus Labuguen, then a master
sergeant in the Philippine Army, applied for and was granted amnesty
by the Amnesty Commission, Armed Forces of the Philippines (Records,
pp. 618-20). The rest of the defendant filed their application for
amnesty with the Second Guerrilla Amnesty Commission, who denied
their application on the ground that the crime had been inspired by
purely personal motives, and remanded the case to the Court of First
Instance of Abra for trial on the merits.
Upon motion of defense counsel, the case against defendant Jesus
Labuguen, who had been granted amnesty by the Amnesty
Commission of the Armed Forces of the Philippines, was ordered
provisionally dismissed: defendant Juan Balmaceda was discharged
from the information so that he might be utilized as state witness,
although actually he was not called to testify; while the case against
defendants Antonio Palope (the grave digger) and Demetrio Afos( a
boloman) was dismissed for lack of sufficient evidence.

22 April 1945

Msg.
Subject:
Report
and
To: Military Mayor Beronilla

(Sgd.)
Lieut.-Colonel,
Commanding

BERONILLA

(Exhibit 21, 21-a)

No.
information

Re

Borjal

398
case

1. Received your letter dated 18 April 1945, subject, above.

2. My request that you withhold action in this case was only
dictated because of a query from Higher Headquarters regarding
same. Actually, I believe there was no doubt as to the treasonable
acts of the accused Arsenio Borjal and I know that your trial was
absolutely impartial and fair. Consequently, I Can only compliment
you for your impartial independent way of handling the whole
case.

16 April 1945

Msg.
No.
Subject:
Arsenio
Borjal,
To: Military Mayor of La Paz, Abra.

(Sgd.)
Lieut.-Colonel,
Commanding

R.

H.
15th

Received April 26, 1947 7:00 a.m.

Inf.,

ARNOLD
PA

Trial proceeded against the rest of the defendants; and on July 10,
1950, the Court below rendered judgment, acquitting the members of
the jury and the grave digger Antonio Palope on the ground that they
did not participated in the killing of Arsenio Borjal; acquitting
defendants Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro
Parado upon insufficiency of evidence to establish their participation in
the crime; but convicting defendants Manuel Beronilla, Policarpio
Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and coprincipals of the crime of murder, and sentencing them to suffer
imprisonment of from 17 years, 4 months and 1 day ofreclusion
temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal
jointly and severally in the amount of P4,000 with subsidiary
imprisonment in case of insolvency, and each to pay one fourth of the
costs. In convicting said defendants the Court a quo found that while
the crime committed by them fell within the provisions of the Amnesty
Proclamation, they were not entitled to the benefits thereof because
the crime was committed after the expiration of the time limit fixed by
the amnesty proclamation;: i.e., that the deceased Arsenio Borjal was
executed after the liberation of La Paz, Abra.
In view of the sentence meted by the Court below, the accused
Beronilla, Paculdo, Velasco and Adriatico appealed to this Court.

The records are ample to sustain the claim of the defense that the
arrest, prosecution and trial of the late Arsenio Borjal were done
pursuant to express orders of the 15th Infantry Headquarters. (Exhibit
9 and 12-a), instructing all military mayors under its jurisdiction to
gather evidence against puppet officials and to appoint juries of at
least 12 bolomen to try the accused and find them guilty by two thirds
vote. It is to be noted that Arsenio Borjal was specifically named in the
list of civilian officials to be prosecuted (Exhibit 12-b).
In truth, the prosecution does not seriously dispute that the trial and
sentencing of Borjal was done in accordance with instructions of
superior military authorities, altho it point to irregularities that were
due more to ignorance of legal processes than personal animosity
against Borjal. The state, however, predicates its case principally on
the existence of the radiogram Exhibit H from Col. Volckmann, overall
area commander, to Lt. Col. Arnold, specifically calling attention to the
illegality of Borjal's conviction and sentence, and which the prosecution
claims was known to the accused Beronilla. Said message is as follows:
"Message:
VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES
OF ABRA HAVE ORGANIZED JURY SYSTEM PD BELIEVE THAT THIS
BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS THEREOF PD
SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO
PROPER AND IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF LA
PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO
BE HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER
PD MSG BEGINS CLN"
(EXH. H)
The crucial question thus becomes whether or not this message,
originally sent to Arnold's quarters in San Esteban, Ilocos Sur, was
relayed by the latter to appellant Beronilla in La Paz, Abra, on the
morning of April 18, 1945, together with the package of records of
Borjal's trial that was admittedly returned to and received by Beronilla
on that date, after review thereof by Arnold (Exhibit 8-8-a). Obviously,
if the Volckmann message was known to Beronilla, his ordering the
execution of Borjal on the night of April 18, 1945 can not be justified.
We have carefully examined the evidence on this important issue, and
find no satisfactory proof that Beronilla did actually receive the
radiogram Exhibit H or any copy thereof. The accused roundly denied
it. The messenger, or "runner", Pedro Molina could not state what
papers were enclosed in the package he delivered to Beronilla on that
morning in question, nor could Francisco Bayquen (or Bayken), who
claimed to have been present at the delivery of the message, state the
contents thereof.
The only witness who asserted that Beronilla received and read the
Volckmann message, Exhibit H, was Rafael Balmaceda, a relative of
Borjal, who claimed to have been, as Beronilla's bodyguard, present at
the receipt of the message and to have read it over Beronilla's
shoulder. This testimony, however, can not be accorded credence, for
the reason that in the affidavit executed by this witness before Fiscal
Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention of

the reading, or even the receipt, of the message. In the affidavit, he

stated:
Q. In your capacity as policeman, do you know of any usual
occurrence that transpired in La Paz, Abra? A. Yes, sir.
Q. Will you state what is the event? A. On April 17, 1945, I was
assigned as guard at the Presidencia where Mayor Arsenio Borjal
is confined. On the 18th of April, 1945, six bolomen came to me
while I was on duty as guard, that Mayor Borjal should be tied, on
orders of Mayor Beronilla, Mayor Borjal wanted to know the reason
why he would be tied, as he had not yet learned of the decision of
the jury against him. Mayor Borjal wrote a note to Mayor Beronilla,
asking the reason for his being ordered to be tied. I personally
delivered the note of Borjal to Mayor Beronilla. Mayor Beronilla did
not answer the note, but instead told me that I should tie Mayor
Borjal, as tomorrow he would die, as he cannot escape. I returned
to the Presidencia, and Mayor Borjal was tied, as that was the
ordered of Mayor Beronilla.
The plain import of the affidavit is that the witness Rafael Balmaceda
was not with Beronilla when the message arrived, otherwise Beronilla
would have given him his orders direct, as he (Balmaceda) testified
later at the trial. Moreover, it is difficult to believe that having learned
of the contents of the Volckmann message, Balmaceda should not have
relayed it to Borjal , or to some member of the latter's family,
considering that they were relatives. In addition to Balmaceda was
contradicted by Bayken, another prosecution witness, as to the
hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed
that the accused-appellants decided to kill Borjal in the early evening
of April 18, while Bayken testified that the agreement was made about
ten o'clock in the morning, shortly after the accused had denied
Borjal's petition to be allowed to hear mass.
Upon the other hand, Beronilla's conduct belies his receipt of the
Volckmann message. Had he executed Borjal in violation of superior
orders, he would not have dared to report it to Arnold's headquarters
on the very same day, April 18th, 1945, as he did (Exhibit 20), half an
hour after the execution. And what is even more important, if Borjal
was executed contrary to instructions, how could Lt. Colonel Arnold on
April 21, 1945, write in reply (Exhibit 21, 21-a) "I can only compliment
you for your impartial but independent way of handling the whole case"
instead of berating Beronilla and ordering his court martial for
disobedience?
Our conclusion is that Lt. Col. Arnold, for some reason that can not now
be ascertained, failed to transmit the Volckmann message to Beronilla.
And this being so, the charge of criminal conspiracy to do away with
Borjal must be rejected, because the accused had no need to conspire
against a man who was, to their knowledge, duly sentenced to death.
The state claims that the appellants held grudges against the late
Borjal. Even so, it has been already decided that the concurrence of
personal hatred and collaboration with the enemy as motives for a
liquidation does not operate to exclude the case from the benefits of
the Amnesty claimed by appellants, since then "it may not be held that
the manslaughter stemmed from purely personal motives" (People vs.

Barrioquinto,* G. R. Nos. L-2011 and 2267, June 30, 1951). Actually, the
conduct of the appellants does not dispose that these appellants were
impelled by malice (dolo). The arrest and trial of Borjal were made
upon express orders of the higher command; the appellants allowed
Borjal to be defended by counsel, one of them (attorney Jovito
Barreras) chosen by Borjal's sister; the trial lasted nineteen (19) days;
it was suspended when doubts arose about its legality, and it was not
resumed until headquarters (then in Langangilang, Abra) authorized its
resumption and sent an observer (Esteban Cabanos, of the S-5) to the
proceedings, and whose suggestions on procedure were followed; and
when the verdict of guilty was rendered and death sentence imposed,
the records were sent to Arnold's headquarters for review, and Borjal
was not punished until the records were returned eight days later with
the statement of Arnold that "whatever disposition you make of the
case is hereby approved" (Exhibit 8), which on its face was an assent to
the verdict and the sentence. The lower Court, after finding that the
late Arsenio Borjal had really committed treasonable acts, (causing
soldiers and civilians to be tortured, and hidden American officers to be
captured by the Japanese) expressly declared that "the Court is
convinced that it was not for political or personal reason that the
accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727).
It appearing that the charge is the heinous crime of murder, and that
the accused-appellants acted upon orders, of a superior officers that
they, as military subordinates, could not question, and obeyed in good
faith, without being aware of their illegality, without any fault or
negligence on their part, we can not say that criminal intent has been
established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil.,
48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7 January 1901;
24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit reum
nisi mens si rea.
To constitute a crime, the act must, except in certain crimes made
such by statute, be accompanied by a criminal intent, or by such
negligence or indifference to duty or to consequence, as, in law, is
equivalent to criminal intent. The maxim is, actus non facit reum,
nisi mens rea-a crime is not committed if the minds of the person
performing the act complained of be innocent. (U. S. vs. Catolico,
18 Phil., 507).
But even assuming that the accused-appellant did commit crime with
they are charged, the Court below should not have denied their claim
to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off.
Gaz., 2072)on the ground that the slaying of Arsenio Borjal took place
after actual liberation of the area from enemy control and occupation.
The evidence on record regarding the date of liberation of La Paz, Abra,
is contradictory. The Military Amnesty Commission that decided the
case of one of the original accused Jesus Labuguen, held that La Paz,
Abra, was liberated on July 1, 1945, according to its records; and this
finding was accepted by Judge Letargo when he dismissed the case
against said accused on March 15, 1949. On the other hand, Judge
Bocar and Hilario, who subsequently took cognizance of the case,
relied on Department Order No. 25, of the Department of the Interior,
dated August 12, 1948, setting the liberation of the Province of Abra on
April 4, 1945, fifteen days before Borjal was slain. The two dates are
not strictly contradictory; but given the benefit of the Presidential
directive to the Amnesty Commissions (Adm. Order No. 11, of October
2, 1946) that "any reasonable doubt as to whether a given case falls
within the (amnesty) proclamation shall be resolved in favor of the

accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil.,
107 46 Off. Gaz., (No. 12) p. 6093.

1. In considering the evidence of the prosecution more worthy of credit

than that of the defense.

For the reasons stated, the judgment appealed from is reversed and
the appellants are acquitted, with costs de oficio.

2. In finding the defendant-appellant guilty of the crime of falsification

of private documents, and in imposing upon him the penalty of one
year, eight months, and twenty-one days of prision correccional, to
indemnify the Compaia General de Tabacos de Filipinas in the sum of
P10,857.11, and to suffer the corresponding subsidiary imprisonment in
case of insolvency, and to pay the costs of the trial, notwithstanding
the insufficiency of the evidence adduced by the prosecution.

EN BANC
G.R. No. L-31563 January 16, 1930
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs.
LUCIANO BARROGA Y SALGADO, Defendant-Appellant.
ROMUALDEZ, J.:
Convicted of the crime of falsification of a private document, the
defendant appeals from the judgment sentencing him to one year,
eight months and twenty-one days of prision correccional, to indemnify
the Compaia General de Tabacos de Filipinas in the sum of
P10,857.11, with subsidiary imprisonment, the accessaries of law, and
the costs.
The errors attributed by the appellant to the trial court are:

The defendant freely admits that he prepared the falsified documents

with full knowledge of their falsity; but he alleges that he did so from
data furnished by his immediate chief, the now deceased Baldomero
Fernandez, and only in obedience to instructions from him.
As regards the data, we find it to be sufficiently proven that they were
not supplied by the aforementioned Baldomero Fernandez, but by the
head of the pressmen, Hermenegildo de la Cruz, and the defendant
later collated them with the books of the daily pressings.
With respect to the alleged instructions give by said Baldomero
Fernandez, even supposing that he did in fact give them, and that the
defendant committed the crime charged by virtue thereof, inasmuch as
such instructions were not lawful, they do not legally shield the

appellant, nor relieve him from criminal liability. In order to exempt

from guilt, obedience must be due, or as Viada lucidly states, it must
be a compliance with "a lawful order not opposed to a higher positive
duty of a subaltern, and that the person commanding, act within the
scope of his authority. As a general rule, an inferior should obey his
superior but, as an illustrious commentator has said, "between a
general law which enjoins obedience to a superior giving just orders,
etc., and a prohibitive law which plaintiff forbids what that superior
commands, the choice is not doubtful." (1 Penal Code, Viada, 5th
edition, p. 528.)
We reiterate the statement that it has not been proved that the
defendant committed the acts charged in the information in obedience
to the instructions of a third party. But even granting, for the sake of
argument, that such was the case, we repeat that such obedience was
not legally due, and therefore does not exempt from criminal liability.
(U. S. vs Cuison, 20 Phil., 433.)
There being no merit in the assignments of error, the judgment
appealed from is affirmed with costs against the appellant. So ordered.